Chapter XLIII: Part II: SPECIAL MORAL THEOLOGY (Continued) (6)

(a) the public good, for the welfare of society is a greater good than the life of an individual. Eleazar is praised because he exposed himself to death in order to deliver his people (I Mach., vi. 43 sqq.). It is not sinful, then, but rather obligatory for a soldier to advance against the enemy or to blow up an enemy fortification, though it be certain that his own death will result; nor is it wrong for a pastor to go about ministering to his flock during a pestilence, though it be certain that he will fall a victim to the plague. Explorers and experimenters may also risk their lives for the advancement of science;

(b) the good of another suffices for indirect suicide, when he is in extreme spiritual need. Indeed, there may be an obligation of charity to risk one’s life for the salvation of a soul (see 1166). Hence, it is lawful to go as a missionary to a country whose climate is so trying that strangers die there after a few years;

(c) the higher good of self (i.e., the good of virtue) justifies indirect suicide, when there is an urgent reason for exercising a virtue in spite of the peril of death. Thus, for the sake of charity a shipwrecked passenger may yield his place in the life-boat to his parent, wife, friend, or neighbor; for the sake of faith, one may refuse to flee in time of persecution (see 1006), or may refuse and should refuse to take food or drink offered as a mark of idolatry; for the sake of chastity a virgin, at the peril of her life, may jump from a high window or resist the assailant, although it does not seem that this is obligatory if no internal consent will be given to the rape; for the sake of justice, a criminal in the death house who has an opportunity to escape from prison, may decide to remain and be executed, or a malefactor condemned to die by starvation may refuse to take food secretly brought him; for the sake of mortification, one may practise moderate austerities, as by fastings, watchings, scourgings, hair-shirts, etc., which sometimes shorten life, though generally they lengthen it;

(d) the preferable temporal good of self suffices, that is, one may risk the danger of death to escape another danger that is more likely to happen or more terrible. Thus, a man in a burning building may leap from a high window, even though death from the fall is almost certain, for death by burning is more terrible; a prisoner who is about to be tortured to death may make a break for liberty if he sees a chance of escape, for death is more certain if he remains. On the same principle, one may engage in hazardous but useful occupations, such as working on high buildings, or as a diver or miner, for it is better to live a shorter time with employment and the necessities of life, and to be of service to the public, than to live a longer time without these advantages. But a worker should not undertake dangerous tasks for which he is unfitted or unprepared, and the employer is bound to safeguard the lives of the workers.

1858. The same reasons are not sufficient in all cases. (a) Thus, the greater the risk of death, the more serious the reason required. Hence, to save the money one has it might be lawful to jump from a second-story window, but not from a higher window when the fall would most likely kill one. (b) The more immediate the danger of death, the more serious the reason required. Thus, to save money one might lawfully enter a quarantined house, but the risk would not be permitted if the house were tottering in an earthquake. (c) The more notable the shortening of life, the greater the reason needed to permit it. Thus, if the practice of a certain mortification or labor reduces the expectancy of life for a few years, a lesser reason suffices than if it reduces the expectancy for ten or more years.

1859. Indirect suicide is unlawful and has the guilt of self-murder when the reason for risking death is frivolous or insufficient or sinful.

(a) Examples of insufficient reasons are found in the cases of persons who engage in occupations or actions that are very dangerous to life or limb but of little public or private value, as when for the sake of performing a feat a man walks a tight-rope, pricks himself with pins and needles, or puts his head into a lion’s mouth. But if the performer is very skillful and has no other means of livelihood, it seems that he may exercise his art for the sake of entertainment.

(b) Examples of sinful reasons for risking death are found in persons who abbreviate their lives by over-eating, drunkenness, habitual indulgence in strong spirits, or immoderate passion of any kind; and also in those who refuse to make use of the ordinary means for the preservation of health (see 1566 sqq.) or of the ordinary remedies against disease (see 1571). It is not necessary that one be anxious to live long (see 1063), but it is obligatory to use the normal means for the preservation of life, and those who notably neglect these means are guilty of indirect suicide.

1860. Is it suicidal to refuse a surgical operation pronounced necessary for life?

(a) If the operation is likely to be successful and there is no good reason for refusing it, it seems that one may not refuse it without the guilt of indirect suicide, although one might be excused on account of good faith.

(b) If the success of the operation is doubtful, or if there is a good reason for refusing, one who refuses is not guilty of suicide. Among the good reasons are spiritual ones (e.g., modesty, the fear of falling into blasphemy or despair under the pain are given by some writers) and temporal ones (e.g., the poverty that would be brought upon the patient’s family or the hardship that would result for the patient himself).

1861. Canonical Penalties for Suicide.--(a) Those who attempt suicide are irregular _ex delicto_ (Canon 985, n. 5). (b) If they die, they are not given ecclesiastical burial unless they gave signs of repentance before death (Canon 1240, n, 3), and, if they recover, they are subject to various penalties (Canon 2350, Sec. 2). (c) If it is doubtful whether a person committed suicide, or was responsible, the doubt is decided in his favor, provided no scandal is likely.

1862. Accidental Homicide.--Accidental homicide is that which happens without any direct purpose to kill. But the following cases should be distinguished:

(a) when the homicide is not voluntary, either in itself or in its cause (see 35, 94), that is, when the slayer had no intention to kill and could not foresee that death would result from his act or omission;

(b) when the homicide is voluntary only in its cause, inasmuch as the person who kills is guilty of negligence in a lawful thing, or of something unlawful, and death results from the negligence or from that which is unlawful, although there was no direct wish to kill.

1863. The Case of One From Whose Lawful Act or Omission Homicide Accidentally Results.--(a) If this person was not guilty of negligence, he is not responsible for the resultant homicide, since it was not voluntary, either directly or indirectly. Thus, if a man who was said to be dead, but who knows nothing about the report, calls at his home and his wife drops dead on seeing him, he is not responsible for her death.

(b) If the person in question was negligent, he is guilty of homicide in a greater or less degree according to the seriousness of his neglect. Thus, a sane man who flourishes a loaded revolver in a crowded room is responsible if the revolver goes off and kills someone present; but a nurse who leaves a sick room for just a moment with the result that her patient falls out of bed and is killed, is only slightly responsible at the most, if there was little reason to expect what happened.

1864. The Case of One From Whose Unlawful Act or Omission Homicide Accidentally Results.--(a) If this person was not negligent and his conduct was not dangerous to the lives of others, he is not guilty of homicide; for the death that ensued was not voluntary, either directly or indirectly. Thus, if a thief is driving away carefully with a stolen automobile and a reckless pedestrian gets in front of the car and is killed, the driver is guilty of theft, but not of homicide.

(b) If the person in question was not negligent but his conduct was nevertheless dangerous to the lives of others, he is guilty of homicide; for the death that followed was voluntary indirectly, since he could have foreseen the homicide and should have avoided the conduct. Thus, if a person strikes lightly a pregnant woman and she suffers an abortion, or if one who is not a surgeon tries to mutilate an innocent person and kills him, he is responsible for the death, since the acts committed remained dangerous to life, no matter how careful the offender may have been to avoid killing.

1865. Moral and Legal Guilt.--The law may hold one responsible for homicide, even though there is no theological guilt (see 1766 sqq.). (a) Thus, one may be held responsible for the consequence of acts only juridically negligent, as when an automobilist while driving at a speed unreasonable in law, but not in fact, kills a pedestrian. (b) One may be held responsible for acts committed by those subject to one’s care or control, as when a man keeps a dog loose not knowing that it is vicious and it kills a neighbor’s child, or when he illegally lends his car to a minor, thinking the latter is a good driver, and the minor carelessly runs down a person in the road.

1866. Bodily Injuries.-Injustice is done not only by destroying the life of a human being, but also by harming him in his rights to bodily integrity or well-being. The chief bodily injuries are the following:

(a) mutilation, which deprives a person of limbs or members, without inflicting death;

(b) wounding, which by an act of violence (such as a stab or blow) breaks the continuity of the body, or impairs its strength or beauty;

(c) enfeeblement, which impairs or destroys the health, strength, or comfort of the body in unlawful ways (e.g., by deprivation of necessary food, sleep, fresh air, by communication of infection, by beating, hazing, etc.);

(d) restraint, which hinders the lawful exercise of the bodily powers (e.g., by holding a person against his will, by chaining him to a post, by locking him in a room).

1867. Mutilation. In general, any kind of act which injures or impairs bodily integrity is called mutilation. In the strict sense, mutilation is any cutting off, or some equivalent action, through which an organic function or a distinct use of a member is suppressed or directly diminished. Accordingly, three distinct types of mutilation are possible: (a) when a part of the body with a distinct function is excised; (b) when a distinct organic function is totally suppressed, without excision of the organ; (c) when the function is directly lessened or partially suppressed.

1868. Morality. (a) Liceity. The basic principle governing the morality of mutilation is: Man is not the master of his own life, but only the custodian. Accordingly, neither is he master of his own body. Thus, Pope Pius XII, speaking of the “Surgeon’s Noble Vocation” (_The Catholic Mind_, Aug. 1948, pp. 490 ff.), declared: “God alone is Lord of the life and integrity of man, Lord of his members, his organs, his potencies, particularly of those which make him an associate in the work of creation. Neither parents, nor spouse, nor the individual in question may dispose of them at will.”

As steward, man has duties toward his body, its health and welfare, according to the norms of reason and the divine law, so that it may be a means of his attaining life with God. Acting in accord with these norms and the end of life, it may become necessary and licit for man to mutilate his body in order to safeguard health or to save his life. The principle expressing the morality of mutilation, known as the principle of totality (Pius XII, _Nous vous saluons_, AAS 45-674), may be formulated: Man may licitly mutilate his body only insofar as this is expedient for the good of the whole. In fact, such mutilation is often obligatory, since one must use ordinary means to protect his life and health, and since the part is for the whole. Thus, one would be bound to undergo an operation for appendicitis in order to save one’s life.

Although an organ be not diseased, it may under certain circumstances be removed. Thus, a surgeon operating for hernia may remove a healthy appendix, should the danger of adhesions be foreseen that would require a later operation. Nor is it necessary that there be a “present” danger. The words of Pope Pius XII, that mutilations are permissible when required “to avoid ... serious and lasting damage” (AAS 44-782), are suggestive of the liceity of prophylactic operations. (See medical-ethics texts for special cases, such as lobotomy, thalamotomy, experimentation, etc.)

The problem of mutilation involved in organic transplantation for the benefit of a neighbor is highly controverted at the present time, Pope Pius XII discussed the legality of corneal transplants from the dead to the living (_The Pope Speaks_, Autumn, 1956, pp. 198 ff.), but he did not touch the matter of transplants from living bodies. In this controversial matter, the following principles seem to be clear:

1) Mutilation for the good of the neighbor cannot be justified by the principle of totality, for the subordination implied in the principle is characteristic of a physical, not a moral, not even the Mystical, body.

2) Minor mutilations, such as skin grafts or blood transfusions, are certainly permissible. The speculative basis is still a matter of dispute.

3) It is solidly probable extrinsically that organic transplantations may be permitted, possibly out of charity and for a proportionate reason. Some contend, however, that the act of mutilation involved is intrinsically evil and can not be justified by the extrinsic motive of charity.

Mutilation is lawful by public authority in punishment of a criminal; for if the state has the right to inflict death for serious crime, much more has it the right to indict the lesser punishment of mutilation. The expediency, however, of exercising the right must be judged in terms not only of punishment, but also of prevention of crime. Mutilation has no necessary connection (apart from special circumstances) with deterring criminals from further crime.

(b) In other cases mutilation is unlawful; for just as man is not the master of his life, neither is he the master of his limbs, and he commits a wrong against God, society, and the individual if he destroys parts of his body when neither public good nor private safety demands that this can be done. Thus, mutilation of a criminal performed by private authority is unlawful. Hence, a husband may not mutilate a man who has broken up his home.

Mutilation of an innocent person that it not necessary for his bodily safety is unlawful. Even spiritual good is not a sufficient reason; for example, one may not castrate oneself in order to escape temptation, for this operation does not take away passion, and, moreover, there are spiritual means which suffice against temptation. When Our Lord says that one should cut off a hand or foot that causes scandal (Matt., xviii. 8), He is speaking metaphorically of the avoidance of the occasions of sin. Much less is temporal good a sufficient reason for mutilation. Hence, a youth may not have his teeth pulled in order to escape military service; a pauper may not have his arm amputated in order to get larger alms; a boy may not be castrated in order to give him a better singing voice; a woman may not have the hysterectomy or other similar operations performed merely to prevent conception; a man may not have the operation of vasectomy performed on him in order to prevent generation.

1869. Morality of Sterilization. Mutilations which frustrate the power of procreation in men and women are called sterilization. Two kinds are distinguished; indirect, to remove diseased organs; direct, to prevent conception.

(a) Indirect sterilization (also called by many therapeutic) is lawful when it is necessary to save life or health. The ethical principle involved is the indirect voluntary or the principle of double effect. Hence, vasectomy may be used to prevent idiocy or death, or to remove or allay physiological abnormalities that bring on certain sexual perversities or disturbances, if it is likely that these evils are imminent or present and that the operation will be beneficial.

(b) Direct sterilization by public authority includes both punitive and eugenical sterilization. The latter was condemned by Pope Pius XI in _Casti Connubii_. In context the Holy Father was dealing with the false claims made in the name of eugenics that the State might legitimately sterilize those who by reason of hereditary defect might be considered likely to generate defective offspring. This position is vehemently rejected: “Public magistrates have no direct power over the bodies of their subjects. Therefore where no crime has taken place and there is no cause present for grave punishment, they can never directly harm or tamper with the integrity of the body, either for the reasons of eugenics or for any other reason. St. Thomas teaches this when, inquiring whether human judges for the sake of preventing future evils can inflict punishment, he admits that the power indeed exists as regards certain other forms of punishment, but justly and properly denies it as regards the maiming of the body.”

In the same context, punitive sterilization, whether as punishment for crime or as deterrent, was also declared to be unlawful. However, fasciole 14 of the AAS for 1930 emended the text and seems to have withdrawn the formal condemnation of punitive sterilization. a subject of theological discussion at the time. The matter had not been closed and the emendation had the force of reopening the question.

Theological opinion is still divided as to the liceity of punitive sterilization. Some still maintain that since the state can inflict the superior penalty of death for serious crime, _a fortiori_ also the lesser punishment of sterilization. Others deny the liceity, for sterilization does not achieve the essential purposes of punishment; it is not corrective, preventive, retributive, or emendatory. Accordingly punitive sterilization is unreasonable and inconvenient. This latter view prevails among most modern moral theologians. Confirmation for the view is sought in the response of the Holy Office (AAS 32-73) that direct sterilization is prohibited by the law of nature. Since punitive sterilization has as its immediate effect, whether as an end or as a means, sterility of the generative potency, it may well fall under the category of direct and hence also under condemnation of the Holy Office.

1870. Other Bodily Punishments.--Other bodily harms (wounds, blows, restraint) may not be inflicted except under the following conditions:

(a) there must be sufficient authority. The State, being a perfect society, has greater coercive power, and may inflict penalties that are of a permanent character, such as death or mutilation or wounds (e.g., by branding); and it may impose restraint, not only from unlawful, but also from lawful acts. The family, being an imperfect society, has a limited coercive power, and hence the father, or those who hold his place (e.g., teachers), may administer corporal chastisements that are not of an irreparable kind to his children (such as beatings, whippings). Other persons may punish or restrain only in case of urgent necessity (e.g., one may hold a stranger who is about to commit murder; one may chastize a neighboring boy who cannot be kept from depredations on one’s property in any other way). It is not wrong, however, to inflict moderate bodily hurts, if the other person is not unwilling and there is a reasonable purpose, such as exercise, training in the art of boxing or wrestling, recreation, or mortification;

(b) there must be a sufficient reason for the harm done. The good of the public is a sufficient reason; for example, when a criminal is incorrigible and it is dangerous for him to be at large, it is not unreasonable to give him a life sentence. The good of the individual is also sufficient; for example, when a surgeon has to wound in order to cure, when a father has to use the rod in order to improve the child or to uphold discipline (Prov., xiii. 24, xxiii. 13);

(c) there must be moderation in the harm or pain inflicted. Thus, while children should not be spoiled, nor prisoners pampered, the other extreme of maltreatment or torture must be avoided. It is cruel to box children soundly on the ears, or to push them roughly about, or to tie them up in the dark, as they may suffer permanent injury from such methods. Likewise, it is barbarous to send convicts to a place or prison so horrible that they lose their minds or fall victims to lingering disease, or to inflict excruciating punishments by rack, thumb-screw, prolonged scourgings, etc.

1871. Injury to Health.--Harm unjustly done to the health of others is sinful, and, if the harm is great, the sin is mortal. Examples: (a) Harm to health is done negatively by omission of duty, as when a medical man or physical director does not use sufficient care and a patient thereby suffers detriment to health, or an employer does not see that his factory or place of business is sanitary, or that the work is not too exhausting with the result that employees lose their vigor. (b) Harm to health is done positively by acts or objects that tend to deprive another of the means to physical well-being (e.g., annoyances, noises that prevent sleep, adulterated food, maintenance of a nuisance which creates suffocating smells or harmful vapors, etc.), or that bring to another the infection of disease (e.g., when a well person is made to live or room with one who has tuberculosis).

1872. Theft and Robbery.--Having considered the injuries to person committed by homicide, mutilation, imprisonment, etc., we shall now take up the injuries to property committed by theft and robbery. Private ownership of property is allowed by natural and divine law, and it is necessary when, as at present, human affairs cannot be well managed under another system. It has its limits, however, since it is subordinate to the public good, and charity requires that those who have the goods of this world share them with those who are in need (see 1210 sqq.). The chief titles to private ownership are the following:

(a) original titles, which are those by which one takes possession and dominion of goods that have never had or have not now an owner, and these are reduced to two, namely, occupation (i.e., the taking possession of a material thing) and accession (i.e., the union of a material thing with one’s property);

(b) derivative titles, which are those by which one obtains dominion, through transfer of right, of the goods that belong to another. These titles are produced by the law itself (as in prescription), or by the law and the free will of man (as in inheritance from testament or from intestate), or by the free will of man (as in contracts).

1873. The Chief Kinds or Ways of Occupation.--(a) Animals.--Domestic animals (e.g., dogs, cats) may not be occupied, even though they have strayed from their owner; tamed animals (e.g., bees, pigeons, songbirds) may be occupied only when they have recovered their liberty; wild animals (e.g., birds, foxes, fishes, hares, etc., at large) may not be occupied, unless they are kept in a small enclosure from which they cannot escape.

(b) Land and Plants. These may be occupied only when they have no present owner.

(c) Treasure-trove.--This is a deposit of precious movables hidden away so long ago that it is impossible to discover the owner. According to natural law it may be occupied by the finder, but the civil law sometimes decides that the find must be divided with the owner of the place or with the government.

(d) Lost Property.--This embraces those movables which an owner has recently parted with, through accident or forgetfulness, without any intention of giving up his ownership of them, and which are now easily findable, although their owner is not known. The finder is obliged to make reasonable efforts to find the owner. If he neglects to make these efforts, proportionate to the worth of the found article, and is convinced that he might have found the owner, he is considered by some theologians to be a possessor in bad faith and bound to reserve the article for the owner or turn it over to the poor or to pious causes. Having made the effort unsuccessfully, according to natural law, he may use the article as his own. The prescriptions of civil law as to the time interval before he may begin to use the article must be observed.

(e) Abandoned Goods.--According to natural law one may occupy goods voluntarily relinquished by the owner (e.g., an old automobile left by the roadside), but the civil law sometimes awards certain classes of goods (e.g., immovables) to the State.

(f) Vacant Goods.--According to natural law the goods of one who died without heirs may be occupied; but under the civil law they usually devolve to the State, whether they be movables or immovables.

1874. Principles on Accession.--(a) According to natural law, if the two things united are separable, then each owner should be given his own property; but if the things are inseparable and one is more valuable, the owner of the more valuable part keeps all, but compensates the owner of the less valuable part; if the things are inseparable and of equal value, there is joint ownership.

(b) According to positive law, these natural principles are applied to various cases of accession, whether it be natural (as through growth of plants or deposit of land by rivers) or artificial (as through change made in a material by labor, or addition of one substance to another). These details are treated in books on law.

1875. Prescription.--Prescription laws (see 1798) are valid in conscience, since they are determinations about property rights made in the interest of the common welfare. But the following conditions are required for acquisition of property through prescription:

(a) the object of prescription must be a thing prescriptible according to natural and positive law. Thus, natural rights and public property may not be prescribed against;

(b) the subject of prescription must be a person capable of possessing, and he must be honestly convinced that he has a right to what he possesses;

(c) the claim of the subject to the object must rest on possession, on apparent title to the property, and on the lapse of the legal time during which possession has been held or ownership has remained undisputed.

1876. Wills.--A will is a declaration made in legal form (i.e., with the solemnities required by law) of the disposal to be made of one’s property after one’s death. Defects in a will or legacy sometimes operate to take away the moral obligations of observing it.

(a) Thus, if the defect is one of natural law (e.g., a will made under duress), there is no moral right or obligation produced by reason of the gift.

(b) If the defect is of positive law only and makes the will rescindable (e.g., a will not subscribed, as by law required, in presence of the testator), the gift is good in conscience until adverse decision of court.

(c) If the defect is of positive law only and makes the will _ipso facto_ invalid (e.g., a legatee acts as witness to a will), the gift is good in conscience, if there is question of pious causes, since property donated to God may not be alienated by human laws. But the Church desires civil formalities to be observed in the making of wills (Canon 1513).

(d) If the defect is positive and _ipso facto_ invalidating, and there is question of profane causes, the will is not good in conscience, even before declaration of court.

1877. Contracts.--A contract may be deined as a mutual agreement concerning the transfer of a right.

1. A contract is a mutual agreement, i.e., there must be consent of at least two parties to the same object. An offer made but not accepted is not a contract, for only one party consents.

2. The contractants transfer a right which produces in most instances under justice a corresponding obligation of doing or omitting something. Promises, pledges, pacts, etc., while they impose obligations based on truthfulness, loyalty, etc., are not contracts. See 1888 (a).

3. The obligation in justice may be on both sides (bilateral) or only on one side (unilateral), but consent must be on both sides.

The elements of a contract are made up of essentials and accidentals. (a) The essentials include the subject-matter, the parties contractant, their agreement, and the external form that manifests the agreement. (b) The accidentals include bonds, oaths, conditions and modes.

1878. The subject-matter of a contract--that is, the thing or action or forbearance with which the agreement is concerned--must have the following qualities:

(a) it must be something possible, for one may not undertake what one cannot perform. Thus, one cannot bind oneself by an accessory contract (such as suretyship), if the principal contract itself is _ipso facto_ invalid. But if the impossibility is only moral (i.e., great difficulty), one who knowingly undertakes the arduous is bound to fulfill his promise; if it is only partial, one is held to the part that is possible; if it is culpable, one is bound to repair damage caused the other party through non-fulfillment;

(b) it must be something disposable, for one may not transfer that over which one has no right of control or transfer. Thus, one may not contract to sell public property that is _extra commercium_, or property of which one has only the possession, or goods over which others have a claim (e.g., a debtor may not bestow gifts to the detriment of creditors’ rights), or goods not transferable for pay (e.g., payment for a favorable decision by a judge, or property owed to a third party) or for money (e.g., academic degrees, public offices, Sacraments, indulgences);

(c) it must be something existent and determinable, for no one wishes to contract for a right that is valueless and illusory. Thus, one may not sell shares of a stock company that has no assets, or an indefinite house or lot or chattel;

(d) it must be something good and lawful, for one may not bind oneself to iniquity. If it is sinful (e.g., a contract to sell a house in order to spite a third party), the agreement is _per se_ valid. But if the substance is evil (e.g., a contract for fornication made with a prostitute), the agreement is null before the performance of the promised sin; but it seems to many that after performance of the sin the promisor is obliged to pay the money promised, unless the law makes the contract void (see 1886 c). If the law merely denies protection to a sinful engagement, or forbids it under penalty, it would seem that after performance of the sin one may follow, as far as strict justice is concerned, the rule that right is with the possessor. In the United States immoral and illegal contracts and those that are opposed to public policy are generally regarded as null, but in some cases the law declares immoral conditions _de futuro_ non-existent and considers the agreement to which they are added as valid (e.g., wills and gifts _inter vivos_ in some codes).

1879. Sinful Contracts.--There is no form of contract that may not be made sinful as to its substance on account of the wicked offer or consideration (e.g., sale may deal with immoral objects, labor may be given to criminal projects), but there are certain forms of contract that are particularly open to abuse and hence are frequently associated with evil circumstances or results. Some contracts are often illicit according to natural law.

(a) Thus, a gift is sinful, on the part of the donor, when it is made by an employer for the purpose of seducing a servant, and on the part of the servant, when it is accepted for the purpose of encouraging the unlawful attentions of the employer; but if the gift is unconditional, there is no obligation in justice to return it.

(b) Borrowing is sinful, when the lender is in greater need, or when one becomes unduly obligated to the lender; lending is sinful when the lender cannot afford to part with the thing loaned, or when the borrower is encouraged in thriftlessness, or when he will make evil use of the thing borrowed, etc.

(c) Wagers are frequently sinful, since many of them are incitements to sin (e.g., a bet that another is afraid to get drunk), or results of sinful motives (e.g., bets made in order to deceive, or to satisfy avarice, or to live without work), or causes of great evils (e.g., destitution of families, frauds, scandal, and corruption).

(d) Gaming is sinful when the form of the sport is objectionable (e.g., the ancient gladiatorial fights in which the combatants killed each other), or when the motives or circumstances are wrong (e.g., to play as a professional gambler so as to avoid work, to play cards all day Sunday, to play for higher stakes than one can afford, to spend time in “gambling hells”).

(e) Lottery is sinful when the object is bad (e.g., the raffle of an important office with the risk that incompetent persons may be chosen), or when the circumstances are bad (e.g., if persons are led into superstition or idleness and prodigality).

(f) Speculation is sinful in many instances, since it often brings on a gambling fever that makes the speculator useless to himself and his dependents, and causes poverty and crime.

(g) Pawning of property is often unjustifiable, since it makes persons deprive themselves of necessary property in order to indulge in some useless or extravagant whim with borrowed money.

1880. Illegal Contracts.--For reasons of public policy the positive law puts its disapproval on many of the above-mentioned contracts, at least in certain instances.

(a) Thus, sometimes the law makes a contract unenforceable in court, though the natural obligation is not affected. Hence, if a wager is only denied a hearing before a judge, the winner may keep his gains, and the loser should pay.

(b) If the law merely declares that a contract is illegal, the effect seems to be that the contract retains its natural validity unless the party who has suffered by it wishes to disavow it. As to the sinfulness of such a contract, that depends on whether or not the law is penal or preceptive in intent. Thus, many regard laws that make betting illegal as preceptive under venial sin, while others regard them as punitive only. Other examples of illegal contracts are: gifts made to a judge in connection with a trial; lottery, in Great Britain and the United States; certain games of chance, in some States; and in Canon Law, as regards the clergy, alcatory games for money, speculation and trading (Canons 138, 142).

(c) If the law makes a contract voidable, the effect is that the contract possesses its natural force until adverse decision is given by court. Hence, if a wager is voidable in law, the winner may keep his gains until obliged by a judge to give them up, but the loser is not bound to pay, unless he confirms the wager.

(d) If the law makes the contract ipso facto void, the agreement loses its natural force (see 558-560). In most of our States, wagering contracts are illegal and void whether by statute or by judicial decision. In many of these States the statute permits the recovery of the money from the winner or the stakeholder. Gifts offered as bribes are invalid, and those who give or take such gifts are guilty of serious sin and of a criminal offense. In some of our States, certain gaming contracts are also null.

1881. Qualities Necessary in the Parties Contractant.--The parties contractant must have the following qualities:

(a) from natural law it is necessary that they have the use of reason sufficient to understand what they are doing. Incompetent are babies and the insane, and also those who are totally drunk or otherwise temporarily deranged. Less competent are the half-witted and those who need a guardian in important matters;

(b) from positive law it is necessary that they be not legally excluded. In Canon Law administrators of church property and solemnly professed religious are unable to make certain contracts (Canons 1527, 536). In civil law there are restrictions on the contractual powers of minors, wives, aliens, guardians and corporations. Persons not yet conceived are not capable in civil law of receiving a donation, and there are many prohibitions against the tender or acceptance of gifts by those who can reasonably be suspected of exercising undue influence or of being subject to undue influence.

1882. Legal Privileges of Minors.--The law grants certain benefits to minors and the like; for example, in some cases they are not bound by a non-executed agreement, while the other party is bound, or in an executed contract they may recover property without restoring or offering to restore the consideration, if they have nothing with which to replace it.

(a) Minors and other persons who are legally incompetent to contract, may avail themselves of the benefits of the law with a good conscience, if they are in good faith; for it is just that the law should protect those who are unable to protect themselves, and those who make contracts with such persons should know that they (the competent parties) act at their own risk.

(b) Minors and other persons legally incompetent may not avail themselves of the benefit of the law if they have acted in bad faith (e.g., if a minor by deceit induced the other party to sell to him).

1883. Qualities Necessary for Valid Consent.--The agreement or consent of the contracting parties must have the following qualities:

(a) it must be internal, that is, one must accept in will and not merely in words the proposal or consideration offered by the other party. If one consents only to the form of the contract, the contract is null, and the same is probably true if one does not accept internally the obligations of the contract; if one consents to the obligations, but does not intend to fulfill them, the contract is valid, but unlawful. One who contracts invalidly sins, and is bound in the external forum to keep the contract seriously made, and in the internal forum to repair the damage to the other party by giving true consent or making restitution. One who contracts unlawfully also sins, and is bound to the engagement;

(b) it must be external, that is, one must manifest in some sensible way one’s agreement to the proposition contained in an offered contract. Silence gives consent only when the contract is favorable to the party who is silent, or when that party should and easily could manifest his lack of consent, if the proposal did not please him. In the case of contracts between parties who are not in each other’s presence, the intimation to the offerer of the offeree’s acceptance is not necessary for validity, if the contract is gratuitous; but the contrary seems to be true, at least _per se_, if the contract is onerous. We shall speak later (1885) on the legal formalities required in contracts;

(c) it must be mutual, that is, there must be a meeting of minds in the same sense, or agreement of both parties to the same thing. Mutuality requires that consent be contemporaneous, that is, that the acceptance of one be given while the offer of the other still holds good. But it does not require that the parties be in each other’s presence, or that they contract through direct personal communication, or (at least according to natural law) that the knowledge of the accomplishment of mutual agreement be known to the offerer. The law in the United States generally is that an offer may be withdrawn immediately or after a reasonable time, unless it was made on time for a consideration; and that a contract between the absent begins only on receipt by the offerer of the acceptance of the offeree, if the former stipulated for this, or if the offerer uses one means of communication as his agency and the offeree another. In other cases it begins the moment that acceptance is entrusted to the agent of the offerer;

(d) it must be free, that is, it must have the advertence and voluntariness necessary for a human act. If the contract is of grave import, there should be the same kind of deliberation as is necessary for commission of a mortal sin (see 173 sqq.); if it is of lesser import, the deliberation should correspond with the seriousness of the case. But some authors think there should be perfect deliberation in every contract, since the contractants are assuming obligations of justice.

1884. Defects that Invalidate Consent.--The defects that vitiate consent by taking away knowledge or choice render contracts either void or voidable (see 40-55). These impediments are the following:

(a) error, which is a judgment of fact or of law in reference to the contract, not in harmony with the truth, but not maliciously caused by other persons. If error is substantial (that is, about the nature of the contract or the nature of the subject-matter of the contract), the agreement is naturally void; if error is only accidental (that is, about features of the contract, subject-matter or co-contractant, that are only incidentally intended), an onerous agreement is naturally valid, but positive law in the interest of freedom will often grant the privilege of rescindment (see Canon 1684, n. 2). But if error cannot be proved, courts will stand for the validity of a contract;

(b) fraud, which is error or mistake about a contract caused in one of the parties by the dishonest representations of the other party or of a third person (e.g., when an insurance agent deceives about the benefits, or a policy-taker deceives about his age or health). Fraud exists, then, when there is intention, at least indirect, to mislead, and statements, acts or omissions calculated to mislead; but the usual boasts of vendors and advertisers about the wonderful excellence of their wares are not fraudulent, since the public understands that such talk must be taken _cum grano salis_. The effects of fraud on the value of contracts are the same as those produced by error; but it should be noted that the person guilty of the fraud is bound to make good the losses of the injured party, even though the contract be valid and not rescindable, or though the guilty person be not a party to the contract;

(c) fear, which is a disturbance of mind caused by the belief that some danger is impending on oneself or others (see 41 sqq.). It makes a contract invalid in natural law, when it takes away all consent (e.g., when it overpowers the reason, or makes one dissent internally from what is agreed to externally), and probably also when it takes away perfect freedom in a gratuitous contract, or makes one enter into a contract for immunity from an unjust vexation; it renders an act or engagement invalid according to positive law in many special cases (e.g., the Canons declare null elections, resignations, marriages, vows, etc., which are made under the influence of fear). Contracts are considered naturally voidable if one of the parties unjustly extorts the consent of the other by grave fear, or if a third party intimidates a person into bestowing something through gratuitous contract; and the positive law generally treats agreements entered into under grave fear as rescindible (see Canon 103, n. 2). Fear unjustly caused, even though it does not make a contract void or voidable, is at times a reason for the duty of restitution, as when a third party by his unjust threats forces an innocent person to make expensive contracts as a measure of protection, and probably also when a third party directly constrains one to make an onerous contract with a person who knows nothing about the coercion. Fear, no matter how great, does not in any way weaken a contract, if there is consent and the fear is induced by a natural cause (e.g., a storm), or by a human cause acting justly (e.g., an injured man threatening a lawsuit);

(d) violence or coercion, which is like to fear, the latter being moral force and the former physical force (see 52). According to natural law, violence invalidates a contract, unless we suppose that it is only concomitant, as when Sempronius uses coercion to make Balbus sign a contract which Balbus is really willing to sign. Positive law does not recognize, or will set aside, agreements made under overpowering constraint (see Canon 103, n. 1).

1885. Form of Contract.--The form of a contract is the external manner in which, according to the positive law, the internal consent of the parties must be expressed and manifested.

(a) Thus, Canon Law in certain contracts (e.g., engagement of marriage, marriage, alienation of church property) requires specified solemnities under pain of nullity of act.

(b) Civil law in the United States designates various formalities to be used in transfers of property (e.g., that a deed for real estate be written, signed, sealed and attested; that a gift be made by delivery or equivalent act; that certain contracts be in writing; that no contract be of worth unless it be for a consideration, or else be on paper with seal attached). The law has the right to annul informal contracts _ipso facto_, but whether this is the intention in modern codes is a matter of dispute. The practical rule to be followed, then, is that the possessor is to be favored, unless there has been a court decision against his claim. It should be noted, too, that some legal conditions, such as valuable consideration in simple contracts, are required for enforceability, not for validity, and hence a good contract wanting some such condition, though indefensible before the courts, is obligatory in conscience.

1886. The Accidentals of a Contract.--(a) Bond is the agreement by the obligor of a contract to pay a certain forfeit to the obligee, if the former does not perform his contract or does not perform it before a certain date. This agreement obliges in conscience, if the promise was seriously made, if the penalty is not excessive, and if the breach of agreement is culpable.

(b) Oaths added to contracts have moral effects on the contracts themselves and also on acts contrary to them. As regards the contract, an oath adds the obligation of religion to that of justice, if the contract is valid and irrescindable; and the common opinion is that it strengthens a contract extrinsically, that is, it induces an obligation of religion to keep the promise, if the oath is invalid or rescindable by positive law only and in favor of a private privilege; but an oath in no way strengthens a contract that is naturally invalid or rescindable positively on account of the public good. As regards acts that are contrary to an invalid or rescindable contract that was confirmed by a valid oath, they are sinful, as being irreligious, but not invalid nor unjust (see 2260).

(c) Conditions are accidents or circumstances so added to a contract that the consent or dissent is made dependent upon their existence or fulfillment. An immoral condition, if unfulfilled, takes from the contract all obligation, exception being made for separable parts that are not affected by the immoral clause; but if it has been fulfilled, it seems that there is a moral obligation to pay the consideration promised (see 1878 d).

(d) Modes are accidents or circumstances so added to a contract as to qualify the rights or duties of the contractants, or the purpose, matter or time of the contract, but not so as to make the consent dependent on the fulfillment of the thing designated. Thus, if Titus leaves money to Balbus, chiefly because Balbus is his nephew, and secondarily because he imposes on Balbus the obligation of using the money for his education, Balbus in accepting the money accepts also the obligation, but the gift does not lapse if the obligation is not complied with. If a donor adds an immoral mode to his gift (e.g., that the donee use in immoral ways the money left him), this purpose is regarded as non-existent and the gift stands in spite of it. If an agent violates a mode (e.g., he pays $1001 when he was directed to pay $1000) but not a condition (e.g., that he purchase land and not a house), the contract stands.

1887. The Moral Obligation of Entering into a Contract.--(a) There is a duty of justice when one is under public or private engagement to make a contract. Examples are a merchant who opens a store for public patronage, or an auctioneer who holds a sale before invited patrons, or an owner who makes with another person a contract to sell, or a man and woman who make solemn espousals.

(b) There is a duty of charity when a neighbor is in such need that he deserves to be helped, for example, by a loan or by assistance to make a loan: “From him that would borrow of thee turn not away” (Matt., v. 42); “A good man is surety for his neighbor” (Ecclus., xxix. 18).

1888. Every valid contract obliges to faithful performance as a duty of conscience, even though it be unenforceable and without civil obligation. We shall discuss the properties of this obligation.

(a) Quality of the Obligation.--Onerous contracts oblige in virtue of commutative justice and under pain of restitution; gratuitous contracts oblige according to some from justice, according to others from fidelity, according to others from fidelity or justice as the obligor intends (see 1692, 1753). In practice one may follow the rule that a liberal promise or wager or other gratuitous contract obliges only from fidelity with no duty of restitution, unless it be certain that the promisor intended to bind himself in justice. One is responsible, however, for damages resultant on breach of promise. The obligation seems to be one of legal justice only when the thing promised is something on which a pecuniary value cannot be set and consists in compliance with law (e.g., in suretyship or bail for keeping the peace or appearing in court).

(b) Quantity of Obligation.--In onerous contracts the degree of obligation depends on the importance of the subject matter, and hence it is a mortal sin to violate a contract in which a grave right is concerned; in gratuitous contracts the degree of obligation depends entirely, according to some, on the will of the person who liberally binds himself, but others hold that it depends on the importance of the subject-matter.

(c) Subjects of Obligation.--The parties to the contracts and those who take their place (e.g., heirs, executors) or who are responsible for the contract (e.g., those who commanded the agreement) are morally bound to fulfill the agreement, while others are bound not to interfere with the fulfillment.

(d) Objects of Obligation.--Directly, there is the duty of observing what is contained explicitly or implicitly in the agreement, and indirectly of making good any losses caused by breach of contract. A rescindable contract obliges until it is lawfully disaffirmed by the party who has the right to break it; a quasi-contract imposes on the party who has benefited by the services or expenses of another a moral obligation of making compensation. If a contract transfers ownership (e.g., contract of sale passing title to buyer, _mutuum_), the transferee must bear the risks and expenses of the thing transferred; but if it does not transfer ownership (e.g., contract to sell, _commodatum_) or has not yet done so (e.g., contract of sale in which title will pass later, on delivery or payment), the transferer has the risk and expense (see 1796).

1889. Cessation of Obligation.--The obligation of a contract ceases in various ways: (a) by action of the contractants, as when a promisee renounces his right, or each of the parties to a promise has made a gratuitous promise in favor of the other and one refuses to keep his word; (b) by action of law, for example, by prescription, by annulment; (c) by impossibility, as when a thing freely promised has become unlawful or useless, or when the donee of a gift _mortis causae_ dies before the donor.

1890. Theft.--Theft is the secret taking of what belongs to another, with the intention of appropriating it to oneself, against the reasonable wishes of the owner.