The Virtue of Justice and Contrary Vices
Since this treatise is extremely long it is divided for the sake of clarity into two sections :
Section I. Rights and the virtue of justice.
Section II. Potential parts of the virtue of justice.
Rights and the Virtue of Justice
This section is further divided into four questions :
2. The virtue of justice considered in itself.
3. Injustice and restitution.
QUESTION 1: Rights
This question is to be considered in four separate chapters :
1. Definition and kinds of rights.
2. Objects of ownership.
3. Subjects of ownership.
4. Titles to ownership.
CHAPTER I. DEFINITION AND KINDS OF RIGHTS
238. Definition. The Latin word “ ius ’’—translated here as “ right ” — has at least four meanings :
1. the sentence of a judge (ius dicere) ;
2. law or objective right (ius canonicum) ;
3 – the just thing due to another (a passive right) ;
4. the moral power to do or omit something or to exact something from another, etc. (right actively considered).
Right taken both in its active and passive senses constitutes a subjective right. Thus : — Objective right =laws
Subjective right, which is a passive right, i.e. and : an active right, i.e. the just thing due to another the moral power of exacting something etc.
239. Kinds. The more important kinds of right are the following : —
1. In respect of their origin rights are either natural if they arise from the very foundations of nature itself (the right of self-defence), or divine if they arise from a positive command of God (the right to receive the sacraments), or human if they take their origin from human law whether ecclesiastical (ecclesiastical rights) or civil (civil rights).
2. In respect of their effects rights are either strict if their violation is an injustice properly so-called (the right to property), or not strict if it is merely fitting to a greater or less degree that such rights be respected (the right to receive certain honours).
It is customary to distinguish strict rights into rights in a thing (ownership) and rights to a thing (iura quaesita) which a person possesses to enable him to possess as his own things which are not already in his possession.
240. Ownership which is the legitimate power to dispose of something as one’s own is divided as follows: —
a) Ownership is perfect when one has complete power to dispose both of the tiling itself and of its fruits; it is imperfect when the power of disposal extends only to the thing itself (direct or radical ownership) or to its fruits (indirect or useful ownership). This disposal of the fruits of a thing is either unlimited (usufruct) or limited to the enjoyment of the fruits for oneself (mere use).
b) The right of eminent domain is the form of ownership possessed by the supreme civil or ecclesiastical authority which has the right of disposing of the goods of individuals for the welfare of the community when there exists a grave reason (the right of expropriation) ; personal and private ownership is that which belongs to individuals in the State and is the legitimate power of disposing of something as one s own.
241. Origin and lawfulness of private ownership.
Authors are not agreed regarding the origin of private ownership. Some (Grosstest, Puffendorf) maintain that it arose from some social agreement, others (Hobbes, Montesquieu, Bentham) from civil law, others (modern Socialists) from occupation by force. According to the true opinion private ownership is a right which follows as a conclusion from the principles of Natural law, since it is exceedingly useful both for peace and for the orderly administration of property.
The opponents of private ownership arc the Apostolici, Manichaeans, Waldensians, Socialists and Communists.
CHAPTER III. Objects of ownership
242. 1. Man has indirect ownership (or the use only) of those goods which form intrinsic parts of his body and soul, since he is God’s steward over these things.
2. Man has a strict right (although qualified) to his reputation.
3. Man has perfect ownership of the products of his own skill and industry to the extent determined by particular civil laws. Consequently a man who injures the rights of an author as determined by civil law is bound to restitution.
4. Men may have indirect ownership of each other. Consequently slavery is not forbidden by Natural law, although it is at present forbidden by positive law.
243. Scholium. Various types of goods, a) Movable and immovable property, as determined by individual laws, b) Fungible goods which may take the place of others in payment of debts and which are usually consumed in their first use, such as money ; non-fungible goods which do not permit of substitution in the course of trade and must be replaced by their equivalent in kind if they have been taken away, c) Goods which are consumed in their first use (food, money), and goods which are not so consumed (clothing, books).
CHAPTER III. SUBJECTS OF OWNERSHIP
244. Principle. Neither irrational nor inanimate creatures but rational creatures only are capable of ownership, since this is a moral power which can exist in rational persons alone.
1. Since animals have no rights they cannot suffer injury in the strict sense of the word. Nevertheless cruelty to animals (without grave cause) is sinful in so far as it is contrary to right reason.
2. Even imbeciles, and children before attaining the use of reason, and in fact any living person immediately after conception arc capable of ownership, since they are rational creatures.
3. In addition to physical persons, moral or juridical bodies are capable of ownership.
Art. i. Property Rights of the Married
For a fuller treatment of this question, cf. the author’s Man. Thcol. mor. Here are set forth only the general principles of Natural law and the statutes of ancient Roman law.
245. General Principles. Husband and wife have entered upon an undivided way of life of which man is the head. Each party is hound to provide for the reasonable maintenance of the other and of their children. The reasonable and decent maintenance of each other includes food, clothing, reasonable recreation, the ability to give alms to the poor and to give such gifts as are proper to their state of life. Thus a wife would not sin against justice by doing all these things without the knowledge of her husband or even without his consent. However, circumstances could arise where such behaviour would be contrary to the virtue of prudence.
The administration of common property (and sometimes even of the personal property of the wife) is the right of the husband in his capacity as head of the family.
Ancient Roman law recognised the following different kinds of goods belonging to the wife : a) bona paraphernalia, of which the wife had perfect ownership and administration. (In modern codes of law these are referred to as free goods), b) bona dotalia (the dowry), which the wife handed over to her husband for the maintenance of the family ; the wife retained the direct ownership of this property but its administration and indirect ownership passed to the husband, c) bona communia (common possessions), which were acquired during married life by the industry of either party ; the administration and indirect ownership of these goods and the direct ownership of half of them belonged to the husband, while the other half came under the direct ownership of the wife.
The question of a wife’s petty thefts will be discussed later.
Art. 2. Property Rights of Children
246. Definitions. It is customary to distinguish between children who have not yet completed their seventh year (infants), children below the age of legal puberty — for boys the age of fourteen, for girls the age of twelve — minors who have not yet attained their majority as determined by civil law (normally the age of twenty-one), persons who have attained their majority, and emancipated minors who enjoy by privilege the rights of those attaining their majority.
Note. The following principles apply to legitimate children and to children who have been made legitimate, but not to illegitimate children.
Kinds of property. Ancient Roman law made the following distinctions in referring to the property of children : a) bona castrensia ; b) quasi-castrensia ; c) adventitia ; d) profectitia. These distinctions are now obsolete and have been replaced by the following : goods which are free and goods which are not free.
247. General Rules, i. No injustice is committed if a person on attaining his majority (or after his emancipation) retains for himself everything that he has acquired lawfully, after deducting whatever his parents require for his maintenance. This is the common opinion.
2. A minor living away from the home of his parents docs not sin against justice by retaining his own salary. This is usually stated in modern codes of law.
3. It is not contrary to justice for a minor living under the parental roof but receiving a salary for work performed outside that home to keep for himself what remains after paying the expenses of his maintenance. This is valid, unless the civil law declares that his salary belongs to his parents. °
4. A minor living and working at home seems to offend against justice if he steals from the household goods anything which is not required for his own reasonable maintenance.
5. A sin against the virtue of piety is committed by any children of a family who cause undue suffering to their parents through withholding some of their possessions.
Art. 3. Property Rights of Clerics
248. Kinds. Clerical ownership extends to patrimonial property, quasi-patrimonial property, revenue from benefice, savings.
1. A cleric s patrimony includes everything which a cleric receives outside the exercise of his ministry and distinct from the fruits of an ecclesiastical benefice (legacies, gifts, salary received for work apart from the priestly ministry) ; in a word, everything which the cleric receives as a man.
2. Quasi-patrimonial property consists of those goods which the priest receives in virtue of a spiritual title and not in virtue of a benefice (Mass stipends, etc.) ; in a word, everything received by the cleric as a cleric.
3 – The revenue of a benefice consists of those goods which are intended to provide suitable maintenance for the beneficiary— viz. that property which the cleric receives as a beneficiary. According to present discipline the revenue of a benefice includes : i) pensions or salaries granted to clerics by the State ; 2) contributions of the faithful— levied in the form of a tax— corresponding to former tithes ; 3) foundation Mass stipends attached to the benefice; 4) stole fees received by beneficiaries ; 5) the distributions made to canons for choral recitation of the Office (cf. c. 1410).
4. Personal savings are the goods accumulated by a cleric from the revenue of his benefice as the result of his economical way of living.
249. Principle. Clerics who are not Religious are free to dispose of all their property , with the exception of the residue from the revenues of a benefice which he is under a grave obligation to give to the poor or to pious purposes without being bound to make restitution (cf. c. 1473 )- Some authors are of the opinion that a cleric is bound in justice to make restitution for any superfluous income from the benefice which he does not use for the poor or for pious purposes, but since there is no universal agreement on this point the obligation cannot be urged (cf. St. Thomas, S.T. ii, n, q. 185, a. 7 ; St. Alphonsus, Theol. mor. bk. 3, n. 492). — Although it is generally agreed that a cleric is under a grave obligation to give to the poor or to pious purposes that part of the revenue of his benefice which is not required for his fitting maintenance, it is difficult to decide the amount which constitutes grave matter in the violation of this precept. It seems that it would have to be much greater than the amount necessary for a grave sin of theft, since the cleric is not depriving another of his possessions but is failing to put to good use his own personal property. One must take into consideration the different circumstances affecting both the cleric and his gift.
Cardinals have special privileges with regard to the revenue from their benefices (c. 239, § 1, n. 19).
CHAPTER IV. TITLES TO OWNERSHIP
250. Introductory. Ways of acquiring ownership are founded either on law (Natural or positive) which are usually known as legal titles, or on agreement freely contracted between men which are termed conventional titles. There are four legal titles : occupancy, finding lost property, accession, prescription. Conventional titles include all the various forms of contracts, amongst which may be included the receiving of legacies. 1
1 Some authors speak of work as a means of acquiring ownership, but work is better considered as a contract of lease (labour-contract) if it concerns the property of another, and as accession if it concerns one s own property.
Art. 1. Occupancy
We shall consider : 1. occupancy in general ; 2. appropriation of animals ; 3. treasure-trove ; 4. war loot.
251. 1. Occupancy in general is the taking possession of a thing belonging to no one else with the intention of making it one’s own. The following conditions must be verified in order that occupancy may constitute a lawful title to ownership.
a) The object seized must not in fact belong to anyone else (that is to say, they must be goods which have been abandoned or which have no owner).
b) The act of seizure must be real and physical ; a mere intention is insufficient.
c) One must intend to make the thing one’s own, so that the intention of taking care of an object for the benefit of its true owner would not be sufficient.
252. 2. Animals may be appropriated by hunting, fishing, or fowling. a) Wild animals are such as naturally avoid the company of human beings, v.g. hare, deer, fish ; b) tame animals are those which normally avoid man’s company but which are brought under his control by his skill and industry, such as pigeons in a dove-cot, fish in a small pond ; c) domestic animals are those which of their nature are accustomed to the society of men (sheep, hens, dogs). Animals which were previously tamed and have since regained their freedom and now avoid human company are in the same category as wild animals.
Principle. From Natural law wild animals and those which have regained their previous liberty belong to their first occupant ; tame and domestic animals remain the property of their owner unless the former regain their liberty.
Hunting and Fishing.
253. Principle. The ruling authority has the right to prohibit by law hunting, fishing, and fowling, and to reserve these for itself not only within the confines of its own property but also in other open spaces. Such laws are just and most beneficial to the community. Therefore, generally speaking, they cannot be regarded as mere penal laws. Consequently those who transgress such laws commit sin unless they have some excuse.
Grave sin is committed by those who habitually hunt illegally with lethal weapons, viz., poachers, since they constitute a grave danger even to their own lives, they foster strong passions, and cause grave damage to others. Similarly those who cause grave damage to the lawful owner of game commit grave sin. The amount of damage caused is determined not merely by the value of the animals which have been captured illegally but rather by the degree of hope which the owner himself had of capturing the game.
1. Older theologians who consider the pursuit of hunting must be read carefully since the present situation is vastly different.
2. Special regard must be had for common opinion regarding illegal forms of hunting which arc viewed with varying degrees of severity in different places.
3 – It is rare that the illegal hunter has a grave obligation of making restitution since the lawful owner does not incur grave loss in the majority of cases, and furthermore many modern theologians regard laws forbidding hunting as merely penal.
254. 3. Treasure-trove.
Definition. Treasure-trove is defined in Roman law as goods which have lay hidden so long that they have been forgotten and thus do not possess any owner.
The term “ goods ” is here limited to the products of man’s skill and does not include natural things. Such things as coal, metals, precious stones existing in their natural state in the ground are not considered treasure-trove but the natural produce of the earth.
Ownership of treasure-trove, 1. From Natural law alone treasure-trove belongs in its entirety to the finder. Since it has no owner it becomes the property of the first occupant.
2. Civil law usually determines that treasure found on one’s own land belongs to the finder ; if it is found on someone else’s land, then the treasure must be divided between the finder and the owner of the land. This provision of civil law seems to be binding in conscience. 2
255. 4. War loot. Ancient Roman law regarded enemy possessions as having no owner and thus capable of being acquired by occupancy. Canon law adopts the same view while limiting it to a just war. Modern international law, which appears to be binding in conscience, lays down the following rules :
a) Private property is inviolable unless there exists urgent need.
b) Everything necessary for the waging of a just war can be seized from the enemy, such as weapons, clothing, food.
c) Soldiers driven by hunger or want to deprive the enemy of necessary
* In English law treasure-trove belongs to the Crown until the true owner is found. Tr.
food and clothing without the explicit authority of their official superior are not bound to restitution since they do not violate commutative justice, even though they are acting contrary to military discipline. On the other hand soldiers who seize other goods of great value from their enemy without legitimate authority are held to restitution.
Art. 2. Finding Lost Property
256. Definition. Finding lost property is not a form of occupancy in the strict sense of the word since the object of occupancy is a thing which never had an owner, whereas lost property does have an owner, although unknown.
Principles of Natural law.
1. A private individual has no obligation in strict justice to take into his own safe keeping another person’s property which he happens to find, but in ordinary circumstances there is at least a light obligation in charity to do so.
2. The finder who takes possession of a lost article is bound in justice to take care of it and to find its rightful owner.
This follows from the fact that the finder by taking the article into his possession tacitly makes a contract (“ reruni gestio ” : cf. n. 338).
3. If after using due care the finder has no reasonable hope of discovering the true owner, he may keep the article, although it would be more praiseworthy to give it to the poor or to some pious purpose. This is the more common and probable opinion, which may be safely followed in practice.
4. Although the finder may keep the article once there is no further prudent hope of finding its rightful owner, the act of finding considered in itself would not seem to constitute a sufficient title to ownership; there is also required the title of prescription as determined by the laws of each country. This is the probable opinion which is not admitted by some authors who maintain that the finder acquires ownership of the article not by prescription but by occupancy.
Art. 3. Accession
257. Definition. Accession is a lawful title to acquiring ownership of an increment added to one’s lawful possessions.
Accession is natural if the increment results from natural forces alone (by birth, by fruitage, by alluvion) ; it is artificial if the improvement is made by man’s unaided skill (by commixture, by building, etc.); it is of a mixed character if the increment is due to human skill in conjunction with natural forces.
Principles or Natural law.
1. If the things joined together can be separated with no great loss, each should be restored to their lawful owners.
2. If separation is impossible, “ it is fitting that the increment conform to the nature of the principal object ” (Reg. iur. 28 in VI 0 ), but a suitable price should be paid for the accessory object acquired in this way.
Note. In the confessional one must observe the civil laws relating to accession.
Art. 4. Prescription
258. Definition. Prescription is a means of acquiring ownership in consequence of uninterrupted possession of goods during a fixed period of time determined by law.
Prescription may be acquisitive or liberative. It is acquisitive — usucaption — when it confers a new right on an individual, such as the right of walking through another’s field ; it is liberative when it frees one person or his property from some burden or subjection to another, such as the burden of paying a debt.
Prescription is effective both in conscience and in the external forum. Otherwise a) possessions would frequently be the object of uncertainty and subject to legal disputes ; b) some owners would be in no hurry to justify their own rights (cf. c. 1508).
Prescription once it is legally completed transfers ownership of the property and its fruits from the very moment of acquiring possession.
2 59. Five conditions are required for lawful prescription : the object must be capable of prescription, there must be good faith, a title, actual possession, and the legitimate time must be observed.
1. Objects are capable of being prescribed if they can become objects of perfect ownership. Therefore the following things are not open to prescription : rights of Natural and divine law ; goods declared exempt from prescription by civil or ecclesiastical law — such as sacred things.
2. Good faith is a prudent conviction that the thing possessed is one’s own. It must exist during the entire period of prescription (c. 1512). In liberative prescription negative good faith would seem sufficient, i.e., the absence of deceit — in other words, prescription is valid if the debtor has done nothing unlawful to prevent another vindicating his rights.
3 . A Title is the reason on account of which a person assumes possession of a thing— or, the reason which convinces a person that what he possesses is his own. Any title which is either plausible or supposed or presumed is sufficient for prescription. A plausible title is an action which would certainly transfer ownership if it were not labouring under some hidden defect, such as buying stolen property in good faith. A supposed title (titulus existimatus) exists if a person is hindered from actually acquiring ownership through another’s fault. A presumed title is one which the law supposes to have come into existence in consequence of possession over a considerable period of time.
4. Actual possession is the actual retention of a thing or the exercise of a right. For lawful prescription possession must be continuous, open (not concealed), peaceable (not contended), and certain.
j. The period of time required for prescription is determined by ecclesiastical and civil law. Ecclesiastical law normally requires thirty years for the prescription of those ecclesiastical goods which do not belong to the Holy See (c. 1511).
The Virtue of Justice in Itself
This question is discussed in two chapters: 1. definition of justice ; 2. the parts of justice.
CHAPTER I. DEFINITION OF JUSTICE
260. Definition. The virtue of justice is the constant and permanent determination to give to everyone his due.
This is the definition given by Ulpianus, St. Thomas, and almost all authors. Sometimes in Sacred Scripture justice is understood in other ways, v.g., for every virtue (Mt. v. 6), for justification (Rom. iv, 3) etc. Taken in its strict sense as a cardinal virtue, it is distinct from all other virtues by reason of the subject in which it resides and by reason of its object. The subject of justice is the will, whereas the subject of prudence is the intellect, the subject of temperance and fortitude is the sense appetite. The object of justice is the good or right due to another ; on the other hand the object of prudence is practical truth, the objects of temperance and fortitude are the passions which have to be regulated. Special attention must be given to the difference between justice and charity to the neighbour. Each virtue is concerned with our neighbour but in different ways : charity is based on the union existing between the lover and the loved and regards the neighbour as another self , justice on the other hand is founded on the distinction between a man and his neighbour. Thus a man can display charity towards himself but not justice in the strict sense of that term, and while he can offend against charity towards himself he cannot be strictly unjust to himself.
Since the object of justice consists in rendering to each person what is his due scholastics are correct in their view that in the practice of justice there must be observed a true objective mean, viz. a strict equality between one thing and another.
CHAPTER II. THE PARTS OF JUSTICE
261. i. The subjective parts of justice (i.e. the species of the general virtue) are said by some authors to be three in number— legal justice, distributive justice, commutative justice, in so far as justice regulates the parts of society in relation to the whole, the whole in relation to the parts, and the parts in relation to each other. Strictly speaking, however, virtues are to be distinguished not by their objects which they regulate, but by their formal objects to which they are directed primarily and essentially. Now the virtue of justice possesses a two-fold formal object : the welfare of the community directly intended (legal justice) and the welfare of the individual (commutative and distributive justice). Therefore it is better to follow the distinction given by St. Thomas into legal (general) justice which is the constant and permanent determination to render to society what is its due, and particular justice which is the constant and permanent determination to render to individuals (whether physical or moral) what is their due. Particular justice is then further subdivided into commutative justice which operates in exchanges by preserving a strict equality between the thing given and the thing received, and distributive justice which inclines the ruler of a community to distribute rewards, honours and burdens to his subjects in proportion to their merits and capabilities. Mention must also be made of vindictive justice which inclines the supreme authority to inflict suitable punishment on those who transgress the law. This form of justice is regarded by some authors as belonging to legal justice, by others as part of distributive justice, by others as belonging to commutative justice.
2. The integral parts of justice are listed by St. Thomas as twofold : doing good and refraining from evil— not in their wider aspects but as referring to what is due to another.
3. The potential parts of justice are nine in number according to St. Thomas : religion, piety, respect, truthfulness, gratitude, protection of others, liberality, affability, equity.
The first three of these virtues are called potential parts of justice or annexed virtues because they do not preserve the equality between one thing and another as perfectly as justice itself does ; the other six virtues differ from perfect justice in so far as they do not refer to a strict debt in the same way as justice itself does. All these virtues will be given separate treatment later.
Injustice and Restitution
This question is divided into four chapters : 1. injustice in general ; 2. injustice committed by taking the property of another ; 3. injustice committed by unjust damage to another ; 4. reparation of injustice — restitution.
CHAPTER I. INJUSTICE IN GENERAL
262. First Principle. In its essence injustice is a grave sin , but it may become a venial sin through parvity of matter or through some imperfection in the act.
This principle is clear from Sacred Scripture where thieves and other offenders against justice are threatened with exclusion from the kingdom of heaven.
Rule for determining the gravity of the sin. Injustice is a serious sin as often as the sufferer or the ruler of the community has due cause for being most unwilling to bear the injustice.
Second Principle. Although every form of injustice is contrary to the same virtue, they involve specifically distinct sins because their formal objects are distinct.
Thus, for example, calumny and theft are specifically distinct sins even though opposed to the same virtue of justice, and yet it is possible for the same virtue to be violated by different vices.
CHAPTER II. TAKING THE PROPERTY OF ANOTHER
Introductory. The unjust removal of another’s property is said to be either simple or qualified : in the first sense it is identified with theft, in the second sense some new circumstance is added which changes its species, such as the sacred character of the goods taken (sacrilege) or the violence used in taking the goods (rapine). Here the discussion is confined to theft as a violation of the virtue of justice, and the chapter is divided into three articles : 1. nature and gravity of theft in general ; 2. particular forms of theft ; 3. taking not theft.
Art. 1. Nature and Gravity of Theft in General
Definition. Theft is the secret removal of another’s goods against the owner’s reasonable will.
263. The gravity of the matter involved in theft is either absolute or relative.
Absolutely grave matter is measured only by the value of the thing stolen without taking into account the condition of the person robbed. This absolute sum is thought to be about fifty francs, gold standard. Relatively grave matter is measured by the living conditions of the person robbed. Thus it may be thought that one franc constitutes relatively grave matter for the poor, five or six francs for the middle classes, twenty francs for the rich, and fifty francs for the very rich. a In determining relatively grave matter one must also take into account the incidental damage suffered by the injured party. Thus, for instance, it would be considered a serious sin to deprive a poor tailor of his needle and thus prevent him working for several hours, since he would thus incur a notable loss.
Arc. 2. Particular Forms of Theft
The rules already given regarding the gravity of matter in theft have to be qualified to some extent if there are long intervals between petty thefts, or if the lawful owner was not entirely reluctant, or if the thing stolen does not belong in its entirety to another.
264. Petty Thefts in general. The term is used for rather frequent thefts of small amounts. In themselves such thefts are venial sins but they become serious sins : a) if one has the evil intention of eventually acquiring a large sum ; b) if they are so frequently repeated that the intervals between each theft are short (less than a month) and there is no revocation of the thief’s intention to steal and the total amount of all the thefts is grave. However it is the common teaching of theologians that the amount required for grave sin in petty thefts inflicted on the same person is half as much again as that required for grave sin when stealing the whole amount at one and the same time, whereas when the petty thefts are inflicted on several owners twice that amount is required for grave sin.
265. 2. When considering the petty thefts of domestic servants the following rules apply :
1 Fr. Davis, S ,J., put the absolute sum for England in the year 1934 at £3 : Moral and Pastoral Theology, ii, p. 303, ed. 3.
2 Fr. Davis, ibid., p. 302, proposed the following amounts as constituting the relative standard in England in 1933 : one shilling in the case of the very poor ; six to eight shillings in the case of day labourers ; eight to ten shillings in the case of skilled workmen, artisans or tradesmen ; twenty shillings in the case of the moderately rich.
a) Servants rarely commit grave sin by their pilferage of ordinary food and drink for their own consumption.
Their master or mistress who has a duty to feed all his or her servants is opposed not so much to the actual loss of this food and drink as to the practice of stealth. — This rule does not apply to unusual and expensive food and drink nor to food and drink given to outsiders.
266. b) Wives are rarely obliged to make restitution for their petty thefts. The wife is the companion and not the servant of her husband and therefore has a certain liberty in disposing of small amounts of their common possessions. Moreover the husband is considered to be unwilling to give his consent not so much to the actual loss of money as to the stealthy behaviour of his wife.
c) Children who commit petty thefts in the home are obliged to make restitution if when taking all circumstances into consideration their parents must be regarded as seriously opposed not only to the manner but also to the substance of the theft.
Since in practice children are rarely in a position to make restitution, the confessor should prudently advise them to seek forgiveness from their parents.
d) Wives and children should be treated more leniently than servants who indulge in petty thefts in the home.
The reason is that in such circumstances one can more easily presume the consent of the lawful owner.
267. 3. In the theft of public property one must pay particular attention to public opinion. Thus, if in one country such thefts are regarded as transgressions of merely penal laws there is no obligation of restitution ; otherwise the principles given in n. x regarding petty thefts in general will apply.
Art. 3. Taking not Theft
There are two reasons which permit persons to take the property of another: extreme need, and justifiable occult compensation.
268. 1. In extreme need a person may take so much of the goods of another as will free him from his present necessity. This is agreed by all.
In such need the goods of the .earth are common property. — Merely grave or common need does not justify such action. Proximate danger of death constitutes extreme need, whereas grave want constitutes grave need.
269. 2. Occult compensation under certain conditions is justified, but recourse to it should be rare and even more rarely should the confessor advise it.
a) Occult compensation is justifiable under the following conditions i) the debt must be one due injustice ; 2) the debt cannot be recovered in any other way ; 3) every precaution must be taken to prevent harm to the debtor or to any third party. In these circumstances no harm is being done either to the social order or to the rights of a third person. In a word : such compensation is nothing more than justified defence against injury inflicted by another.
b) Recourse to occult compensation should not be frequent since it is wide open to the dangers of illusion and disorder.
c) The confessor should advise recourse to occult compensation even less frequently, since he is liable to become the victim of unfavourable comment and runs the risk of punishment in the civil courts.
CHAPTER III. UNJUST DAMAGE
This chapter is divided into four articles : I. unjust damage in general ; 2. co-operation in unjust damage ; 3 – physical injury ; 4 – verbal injury.
Art. 1. Unjust Damage in General
270 Definition and Kinds. Unjust damage (in its strict meaning ) is any action which inflicts harm on another without material benefit to the person inflicting the injury, such as burning down the house of one’s enemy.
Unjust damage may be caused with or without the co-operation of another. It is formal if a theological fault is incurred at the same time ; otherwise it is material. A theological fault is a transgression of the Divine law and in the present instance, a sin against commutative justice ; a juridical fault is a mere transgression of human law which through lack of knowledge or consent does not involve a theological fault. But it is rare that anyone commits a mere juridical fault— at least on those occasions when his act is genuinely human, since even positive law does not suppose the existence of juridical fault where all moral blame is lacking.
271 First Principle. Unjust damage is a grave sin which admits of slight matter and also imposes the obligation of restitution when the act of damage was a) unjust in the strict sense, b) formally sinful, and c) the effectual cause of the damage.
It is evident that unjust damage must be seriously sinful admitting of slight matter, since it is a form of injustice which, as already proved, is itself a grave sin which admits of slight matter. The act of damage is said to be : a) unjust in the strict sense of the word, when it violates the strict right of another ; b) the effectual cause of the damage, when it is the real cause of damage that actually ensued and not merely the occasion or an essential condition or the accidental cause of the damage ; c) formally sinful, when the act involves a theological fault and not merely a juridical fault. When the act of damage fulfils these conditions it is a formal violation of commutative justice, and it is precisely this formal violation which is responsible for the obligation of restitution that ensues, as will be explained more fully below.
Practical cases, i. A person who by entreaty or persuasion induces an uncle to exclude some stranger from his will is not bound to make restitution since he is not injuring the strict right of another ; the situation would be altered if he had recourse to calumny.
2. An innkeeper serving drinks to a drunkard foreseeing the harm that will follow is not bound to restitution since he is the occasion and not the effectual cause of the damage.
3. A doctor who errs through no fault of his own is not obliged to make restitution since he has not incurred any theological fault.
The gravity of this obligation of restitution. All are agreed that grave damage which involves the commission of grave sin is responsible for a grave obligation to make restitution. If venial sin is committed, there is a light obligation to make restitution. This is the most common opinion, provided that the harm done was only slight ; where serious harm results from an act which was venially sinful, many theologians absolve the person causing damage from any obligation of restitution since there is no proportion between the venial fault and the restitution to be made for the serious harm caused. But it is more probable that there does exist a real, although slight, obligation to make restitution for all the damage, since otherwise the injured party would incur an unjust burden and the person inflicting the damage would be undeservedly reprieved.
272. Second Principle. No obligation of restitution arises from damage which is materially unjust unless: 1. a judge orders restitution to be made, 2. or it is voluntarily agreed that restitution be made.
In the first instance the judge’s verdict is just and must be observed. In the second case such agreements are entirely lawful and therefore binding in conscience.
Art. 2. Co-operation in Unjust Damage
273. Positive co-operation may be given by command, counsel, consent, flattery, defence, participation ; negative co-operation by silence, by failure to prevent, the harm, by concealment.
General Rule. The same two principles set forth in the preceding article regarding unjust damage inflicted by an individual also apply to co-operation . — Since there is some difficulty involved in the application of these principles to practical cases, the following points are to be noted :
1. Whoever orders or commands another to commit injustice and thus effectually and formally violates commutative justice is bound to make restitution both to the injured person and in certain circumstances to the person so commanded.
The reason for the first part of this statement is self-evident, since such commands are responsible for the violation of a strict right of the person on whom the damage is inflicted. Furthermore restitution must be made to the person commanded for any harm he himself incurs in the execution of the command, if he was induced to commit the damage by deceit or force or abuse of authority.
2. The counsellor who by persuasion is the moral cause of another inflicting harm on a third party is bound to repair the harm which he foresaw would follow from his evil counsel.
Counsel is said to be theoretical in character when it is sufficient to convince the reason that some action is not forbidden or that taking all the circumstances into consideration the action must be done or that these are suitable means for accomplishing the action ; it is termed impelling if entreaties, exhortation, or promises are used to influence the will. — A person who earnestly retracts his evil counsel before the damage is inflicted is not bound to make restitution if the counsel given was merely impelling ; if however it was of a theoretical nature, mere recovation is insufficient and the counsellor must do all in his power to prevent harm to the third party. — Normally the counsellor is not obliged to make restitution to the person who actually inflicts the harm unless he has used guile, deceit or lies, or has the duty of giving correct counsel by reason of his office.
3. One who consents to an act of damage by external approval, by his vote or judgement, co-operates effectually and unjustly in causing injury to his neighbour and is therefore bound to repair the harm caused. Those who vote in favour of unjust laws are consenting to an act of unjust damage. If such persons by mutual agreement or secret ballot or other means are the effectual causes of unjust laws, such as laws commanding the seizure of Church property, they are obliged to make restitution. But since such restitution is often impossible, recourse must be had to the decrees of the Sacred Penitentiary which have been specially drawn up for this contingency.
4 . The flatterer who by praise or disparagement induces another to commit injustice is practically an evil counsellor.
5. Anyone who shelters or defends an evil-doer or thief as such (and not merely as a friend) in order to protect him more securely against his pursuers or to provide him with a place to deposit his stolen property to another restitution he has co-operated effectively in causing harm
6. A person participates in unjust damage either by receiving part of what has been stolen or by helping another in his unjust action. In the first instance he must restore all that he has received ; if he took part in doing harm to another he must repair all the harm of which he was fault cause by his action on and for which He incurred theological
274- 7- Negative co-operation exists : 1) when prior to an act of injustice a person remains silent and does not warn the victim, even though his office obliges him to do so ; 2) when a person does not prevent the harm while it is being inflicted, even though he is bound injustice to do so ; 3) when after the harm has been inflicted a person does not denounce the evil-doer to the injured party or to his superior when there is a duty to do so. All such persons are bound to repair the harm inflicted, if they could have prevented it without grave inconvenience to themselves.
Art. 3. Physical Injury
The question will be discussed in the following order : 1. physical injury to self; 2. physical injury to another; 3- injury arising from rape and adultery.
§ 1 . Physical Injury to Self
Introduction. No one has complete ownership of his body but the use only, since man is God’s steward, so to speak ; if he abuses or destroys his own body he inflicts an injury on God, but he does not inflict an injury (strictly so-called) on himself since injury is always concerned with the rights of others.
275 . First Principle. The direct killing of oneself on one’s own authority is a most grievous sin against divine, Natural, and ecclesiastical law.
a) Against divine law : “ Thou shalt not kill ” ;
b) Against Natural law, since it injures the welfare of society and violates the virtue of charity to self ;
c) Against ecclesiastical law which deprives the suicide of ecclesiastical burial and prayers, unless the suicide was entirely secret or doubtful or committed while the person was of unsound mind or unless he manifested signs of repentance prior to death (c. 1240).
Second Principle. Indirect suicide is forbidden unless there is a proportionately grave reason.
Suicide is direct when it is directly intended and results from an action voluntarily performed and directly causing death ; it is indirect when not intended but foreseen as the effect of a physical act which does not cause death directly but gives rise to a most serious danger of death. Among the reasons which suffice for permitting indirect suicide are the common good (soldiers fighting for their country) and the welfare of the soul (a priest administering the Sacraments to those suffering from contagious disease).
Those who expose their life to grave danger or who shorten their life without sufficient reason commit grave sin.
Scholium. A desire for death may be lawful, unlawful, or an imperfection.
a) It is lawful to desire death when it is inspired by a good motive, such as the desire for union with God in Heaven.
b) It is unlawful when inspired by an evil motive, such as tiredness with life. However, such a desire is rarely grievously sinful.
c ) It is an imperfection when through impatience one prefers to lose one’s life rather than endure a life full of severe hardship.
276. Self-mutilation. It is forbidden to mutilate oneself or to remove part of one’s body unless this is necessary to save bodily life.
Man possesses only indirect ownership of his bodily members which he must use in dependence on God’s will. Thus it is forbidden to mutilate oneself in order to escape military service or to preserve the virtue of chastity.
§ 2. Physical Injury to Another
Under this heading will be considered : x. capital punishment ; 2. killing the unjust aggressor ; 3. dueling ; 4.- war ; 5. killing the innocent ; 6. craniotomy ; 7. abortion.
1 . Capital Punishment
277. Principle. Only the State has the right to put to death those who have committed most serious crimes.
The State has this right since the penalty of death is sometimes necessary for safeguarding the common weal and only the State has the duty of safeguarding society. Capital punishment must be reserved for the most serious crimes and these must be fully proven.
Scholium. Mutilation and flogging. Since the State has the power to put the criminal to death, so it has the power for a sufficient reason to mutilate the criminal (v.g. by cutting off his hand) or to flog him. But in modern times neither of these forms of punishment is common. No one else is permi tted to mutilate another without the latter’s legitimate consent. Consequently not even a surgeon can perform an operation without first obtaining the explicit and lawful consent of his patient. When the patient is a child who has not yet attained the use of reason the necessary consent can be supplied by a lawful superior.— A just flogging of one’s neighbour can be performed by a legitimate superior but not by a private individual except in defence of himself or his property.
2. Killing the Unjust Aggressor
278. Principle. One may defend oneself against an unjust aggressor even to the point of killing him, provided that one does not injure him more than is absolutely necessary to ensure self-protection.
Every man has a strict right to protect himself and his property against unjust aggression. On the part of the assailant, aggression that is at least materially unjust would be sufficient to justify self-defence. Accordingly one retains the right to kill even a madman who tries to inflict grave injury.— In the act of defending oneself it is not permitted to kill the assailant unless this is absolutely necessary to safeguard one’s own life or goods of great value. Therefore one is not allowed to kill the aggressor, a) if his attack is not presently but only remotely imminent (prop. 18 condemned by Alexander VII), b ) if the attack is directed against goods not yet possessed (prop. 32 condemned by Innocent XI) or of little value (prop. 31 condemned by Innocent XI), c) if the attack is directed against one’s honour or good name (prop. 30 condemned by Innocent XI). On the other hand we are justified in killing a man who desires to kill or mutilate us or to injure us in our virtue of chastity (a probable opinion) or in temporal goods of great value.
279. Definition. A duel is a contest between two or a few individuals waged by agreement as to time, place and weapons which are lethal (or at least adapted to inflict serious injury).
Principle. Dueling undertaken by private authority is gravely sinful and incurs grave ecclesiastical penalties.
Dueling is gravely sinful since the contestants expose themselves to serious danger of death and injury without sufficient reason. The usual excuse given for a duel is the vindication of honour which is rarely achieved by dueling.
Ecclesiastical Penalties for dueling.
1. Excommunication reserved simply to the Holy See incurred not only by the duelists themselves but also by those who (seriously) challenge or who accept a challenge to a duel or who offer help to them or who are deliberately present at a duel (c. 2351, § 1).
2. Ecclesiastical burial is denied to those who die in consequence of a wound received in a duel unless they show signs of repentance before death (c. 1240, §1).
3. Infamy in law is incurred by the duelists and their seconds (c. 2351, S 4
4. Irregularity arising from infamy of law and from the crime of murder for the person who has wounded or killed another, from infamy of law only for all others (Council of Trent, Sess. 25, c. 9 ; c. 2351, § 2).
Note. Anyone who uses moral force to compel a person who is unwilling to accept a challenge to a duel and causes him serious material harm is bound to make restitution for he is the cause of unjust damage.
4 . War
280. Definition. War is an armed conflict between two opposing armies. It therefore differs from a duel, a quarrel, or an insurrection. War is cither offensive when it is fought to obtain satisfaction for injury, or defensive when it is intended as a means of warding off unjust aggression from another ruler or State. Sometimes it is far from easy to distinguish an offensive war from a defensive war, since it does not always follow that the army which opens the war is conducting an offensive war.
Principle. A supreme authority, a just cause, and a right intention are required to justify the declaration of war. To wage war legitimately all the statutes of International law must be observed.
The first condition required for the declaration of war is self-evident. The second condition— a just cause — is best explained in the words of Francis de Vittoria : “ There is only one just cause for entering upon war — violated rights.” Therefore one would not be justified in waging war for the purpose of self-aggrandizement or winning renown or in order to convert the pagan.
The third condition is also immediately evident.
Once war has broken out it is necessary to observe the statutes of International law of which the most important is : war is not waged against individuals but against an entire nation as a public person. Generally speaking, one is permitted to use everything necessary for crushing the resistance of the enemy. Soldiers commit grave sin if in the course of a just war they desert or cross over to the enemy lines.
5. Killing the Innocent
281. Principle, a) No one is ever allowed to kill an innocent person directly ; b) indirect killing is sometimes permissible— that is tv say, it is not sinful on those occasions when one has an adequately grave reason to do or omit some action which, in itself indifferent, results in the death of an innocent person although this is not intended.
The first part of the principle is evident from the words of Sacred Scripture: “Do not bring death on an innocent man that has justice on his side” (Ex. xxiii, 7). “The killing of an innocent person is a sin crying to heaven for vengeance” (Gen. iv, 18).
For the second part of the principle, refer to n. 23 where we discussed the indirectly voluntary act. Indirect killing often takes place in indirect abortion.
6 . Craniotomy
282. Definition. Craniotomy is a surgical operation whereby a viable foetus is crushed in the mother’s womb and then extracted in parts.
Principle. Craniotomy and other surgical operations which directly cause the death of a child are entirely forbidden.
Craniotomy is the direct killing of an innocent person which is always forbidden, as is evident from previous paragraphs. Thus the Sacred Office (May 24, 1884 and Aug. 19, 1889) gave the following reply: It cannot be safely taught that craniotomy is permissible. Not only can it not be safely taught but it is also completely unlawful, as is evident from the reply of the Holy Office (July 24, 1895).
In practice one may sometimes leave in good faith those doctors who have recourse to craniotomy as the only means of saving the life of the mother. In such circumstances it would be difficult to convince them that such an operation is unlawful. — Other means which can be used to save the mother and the child on such occasions aie : caesarean section, symphysiotomy, pubiotomy.
283. Definition. Abortion is the expulsion of a living inviable foetus from the womb. It is therefore distinct from : 1. craniotomy which consists in killing a suable foetus in the womb, whereas abortion is the killing of an inviable foetus ; 2. from the induction of premature labour when a viable foetus (i.e. after the twenty-eighth week) is expelled from the uterus by artificial means.
Abortion is spontaneous if it takes place by chance without any deliberate intention ; it is induced or artificial when procured by intentional interference. Induced abortion is procured either directly if the means used kill or expel the foetus immediately and of their very nature, or indirectly if the means used have as their immediate and direct effect the health of the mother, although it is foreseen that afterwards they will cause the expulsion of the foetus.
First Principle. The induction of premature labour in an indirect abortion are permissible for sufficiently grave reasons.
That the expulsion of a viable foetus by artificial means is permissible for grave reasons is evident from the explicit reply of the Holy Office, May 4, 1 898 and from the fact that although premature labour is dangerous for mother and child it is not intrinsically evil.
That indirect abortion is permissible for grave reasons is evident from the previous discussion of indirect voluntary acts and of indirect killing of innocent persons.
Second Principle. Direct abortion of a living foetus is grievously sinful and punished by positive laws.
Proof, a) Anyone who procures a direct abortion of a living foetus is directly killing an innocent person, and this is never permitted, b) Not only the body but also the soul is being forcibly deprived of life, since the foetus is frequently unbaptized, c) The Holy Office (Aug. 14, 1889) condemned any surgical operation which is the direct cause of killing a foetus.
284. Penalties inflicted on those procuring abortion.
x. Excommunication reserved to the Ordinary (c. 2350, § 1). The mother herself who procures an abortion is not excused from this censure, neither are those who order the abortion ; those who co-operate are excused.
2. Criminal irregularity (c. 985, n. 4). Dispensation from this irregularity is reserved to the Holy See, but in urgent need the confessor may use epikeia and give absolution, at the same time imposing the obligation of having recourse within a month to the Sacred Penitentiary (Holy Office, March 28, 1906 ; and Sept. 6, 1909 ; c. 2290).
3. Clerks are to be deposed. This penalty must be inflicted by explicit pronouncement (c. 2350, § 1).
Other penalties may be inflicted by particular ecclesiastical laws. The civil law also punishes those who procure abortion.
§ 3. Injury arising from Rape and Adultery
285. First Principle. There is no obligation to make restitution for the mere physical act of fornication even when obtained by force, unless there follows a legal judgement to that effect or material loss is incurred as a result of the act.
It is impossible for private authority to estimate such a physical act in terms of money. However, a legal judge may impose a just compensation for the act. If material harm ensues from the act, then in certain circumstances restitution must be made, as will be stated in the following principles.
Second Principle. Anyone using force, grave fear, or deceit to induce a woman ( whether married or not) to consent to sexual intercourse is bound to make reparation for all the ham which the woman, her offspring, her parents, or her husband suffer in consequence.
In such circumstances the man is inflicting unjust damage.
Third Principle. A man who has sexual intercourse with a woman (whether married or not) who is a willing partner has no obligation of restitution to her, but he is bound equally with the woman to bear all the material consequences of their act.
The reason for the first part of the principle is that no injury can be inflicted on a person who knows and freely consents to what is being done.
The reason for the second part is that both accomplices are equally blameworthy. — The consequences of their action may be a) children, in which case each accomplice in default of the other is bound to meet in full all the expenses which ensue from the birth and education of the child ; b) a reduction in the inheritance of other legitimate children. Great prudence must be shown in determining the means and amount of restitution in such cases : cf. the author’s Man. Theol. mor. II, n. 152.
Art. 4. Verbal Injury
Introductory. Following the method of St. Thomas we shall consider : 1. verbal injury in court ; 2. verbal injury outside court. In the first question a brief summary will be given of the duties and sins of judges, plaintiffs and prosecutors, witnesses, advocates, defendants ; in the second question will be included lies, mental restriction, the violation of secrets, injury to honour and good name, rash judgement.
1. Verbal Injury in Court
§ 1. Duties and Sins of Judges
286. First Principle. In order to exercise his office lawfully a judge must be equipped with sufficient knowledge and pass judgement in accordance with just laws.
Therefore a judge would commit sin if he were not sufficiently acquainted with legal science, if he did not investigate carefully the case to be tried, if he passed sentence at variance with just laws. On the other hand a judge cannot base his opinion on such positive laws as are in evident conflict with Natural or divine law. Whether a judge is permitted from grave necessity to pronounce a decree of divorce in valid Christian marriages will be considered in the treatise on marriage.
Second Principle. A judge’s sentence which is manifestly unjust does not bind in conscience except incidentally— that is to say, in order to avoid public scandal or public disorder.
Such unjust sentences are similar to unjust positive laws which are not binding when in conflict with Natural or divine law but nevertheless have to be observed in certain circumstances in order to avoid greater evil.
Third Principle. In doubtful matters the judge must base his opinion on the greater probability ; when the defendant’s guilt is not proved, the judge must set him free.
The first part of the principle is evident from the second proposition condemned by Innocent XI : “I deem it probable that a judge may pass sentence according to the opinion which is even less probable” (Denz. n. 1152). The second part is based on the Regula iur. 49 : “ In the infliction of punishment the more favourable interpretation must be followed.” For no one is presumed guilty unless this is proved.
§ 2 . Duties and Sins of Plaintiff and Prosecutor
287. Definitions. A person who accuses another in court before a judge is termed the plaintiff in a civil case, the prosecutor in a criminal trial. Therefore in general terms a prosecution is a charge brought against one accused of some crime so that he may receive public punishment, made by a person who undertakes to prove that crime. He who prosecutes another is obliged to prove the crime, otherwise he receives heavy punishment. To prosecute is not the same as to denounce a criminal, whereby a crime is brought to the knowledge of a superior so that he may enquire into it and punish it, but in this instance there is no strict obligation to prove the crime. Denunciation is either judicial when it is undertaken for the purpose of punishing the crime, or evangelical when the crime is brought to the notice of a superior in his capacity as a kind father, not that of a severe judge.
Principle. Officials in virtue of their office are obliged to make known to the legitimate superior all crimes which they detect ; private persons have no strict obligation hi this matter unless denunciation is demanded by : a) positive law (denouncing a confessor guilty of solicitation) ; b) the common good (denouncing those who are responsible for counterfeit money) ; c) the need to avert grave harm to the neighbour.
All parts of this principle are clear and require no further proof.
§ 3 . Duties and Sins of Witnesses
288. The obligation to give evidence may result from : a ) charity, (v.g. in order to prevent the neighbour suffering injury) ; b) commutative justice, if a person is bound to testify in virtue of his office ; c ) legal justice or obedience, when a judge lawfully commands a person to testify.
The following reasons excuse a person from giving evidence : a) the seal of confession ; b) a professional secret — at least in most cases ; c) serious damage which would result for the witness or his relatives in consequence of the evidence given (c. 1755) ; d) if a judge is not entitled to ask the question proposed ; e) if the witness has obtained his knowledge by inflicting injury on another (cf. the author’s Man. iur. can. q. 496).
Sins and duties of false witnesses. False witness involves the commission of three sins : perjury, injustice, lying. The person responsible is bound to repair all the material damage which follows unjustly. Tills obligation is serious. However, it is rare that a false witness is obliged to reveal his perjury, since no one is bound to damage his own good name.
§ 4 . Duties and Sins of Advocates
289. The chief duties of an advocate are : a) to possess sufficient knowledge of the law and of the case to be tried ; b ) to defend just causes by all lawful means ; c) not to demand exorbitant fees.
An advocate commits sin by ignoring any of these duties, or by attending to the cases lie undertakes in a negligent manner, or by not honestly revealing to his client the dangers of his lawsuit.
§ 5 . Duties and Sins of Defendants
290. In order to avoid confusion we must distinguish the duties which exist prior to the judge’s sentence from those which exist after it. Before sentence is passed the defendant a) is not bound to admit his crime ; h) may defend himself by all lawful means. — Modem legal practice has changed in reference to the confession of crime. The principle formerly proposed by theologians— “ when the judge proposes lawful questions to the accused which accord with justice, the defendant is bound to admit the truth is still true today, but the judge is no longer considered to be within his rights by forcing the accused to admit his crime (c. 1743 sq.).
After sentence has been passed the criminal who has been justly condemned cannot offer positive resistance to his guards in order to prevent the infliction of his punishment, but he may escape from prison if he can. It is self-evident that a prisoner is within his rights to escape an unjust punishment.
2 . Verbal Injury Outside Court
§ 1 . Lies
291. Definition and Kinds. A lie is a voluntary utterance contrary to intellectual conviction.
1. A lie is said to be profitable if it is spoken to benefit a person, although no harm is intended.
2. It is said to be harmful (or pernicious) if it causes special injury to another.
3. A lie is said to be jocose if it is spoken for the sake of giving amusement or pleasure.
Belonging to the same category are : boasting whereby one makes oneself out to be greater than one is, irony whereby one lowers oneself unjustly, insincerity which consists in being false not in word but in deed, hypocrisy whereby one pretends be to virtuous or holy.
292. Malice of Lying, i. A lie is intrinsically evil, so that no reason whatsoever can justify its use.
Sacred Scripture forbids all forms of lying without distinction : “ Keep clear of untruth ” (Ex. xxiii, 7) ; “ Do not tell lies at another’s expense ” (Col. iii, 9). The intrinsic reason for the evil character of lying is that it is opposed to : a) the natural purpose of speech which is given to man to reveal what is in his mind ; b) natural human intercourse which is disturbed by lying ; c) the good of the listener who is deceived by the lie ; d) the welfare of the speaker himself who, although he may obtain some temporary advantage from the lie, will suffer greater evils in consequence.
2. As contrary to the virtue of truthfulness lying is a venial sin, but it may become grievously sinful if contrary to other virtues, such as justice, religion, etc.
The reason for the first part is that lying, as contrary to truthfulness, is an abuse of speech which does not involve a serious disorder.
The reason for the second part is that violations of these virtues are grave sins which admit of slight matter.
§ 2 . Mental Reservation and Amphibology
293. Definitions. Mental reservation is an act of the mind whereby in the course of conversation we restrict the sense of the words used to a meaning different from their obvious meaning. If a prudent man could gather the intended meaning from the surrounding circumstances, then it is broad mental restriction ; otherwise it is strict.
Amphibology is a statement with several meanings (Peter is staying at home = he is actually at home or he dines at home).
Principle. Strict mental reservation is never permitted, but when there is need or a reasonable cause one may have recourse to broad mental reservation or to amphibology.
Strict mental reservation is an odious lie, whereas broad mental restriction and amphibology are a concealment of truth which in certain circumstances is not only permitted but even necessary and was used by Christ himself (John vii, 8 ; Mark xiii, 22). Generally speaking, however, mental restriction should be used as little as possible in the course of conversation.
§ 3 . The Violation of Secrets
294. Definition and Kinds of secret. In its objective sense a secret is something hidden ; in its subjective sense it is the knowledge of a hidden fact and the obligation not to reveal this fact. We are here considering the word in its subjective sense. There are three kinds of secrets : natural, promised and entrusted secrets.
1. A natural secret is so called because the obligation not to reveal the hidden fact arises from Natural law, such as when one discovers another’s secret and shameful sin.
2. A promised secret is one which a person has promised to keep after the secret has been received.
3. An entrusted (rigorous) secret is one which was obtained only after an explicit or tacit agreement had been made that secrecy would be observed. To this category belong : professional secrets (such as those of doctors and midwives) and the sacramental secret or seal of Confession which is the most binding of all secrets.
Principle. Of their very nature natural secrets bind under grave sin ; like-wise entrusted secrets ; promised secrets are in themselves binding under venial sin in ordinary circumstances.
The reason is that the violation of either natural or entrusted secrets is a sin against justice either because of the very nature of the secret itself or because of the agreement made, and such a sin is a mortal sin which admits of slight matter. On the other hand, when a promised secret is not kept it is the virtue of fidelity which is violated and this virtue does not of itself and in normal circumstances bind under grave sin, since its violation is nothing other than a lie. In practice, however, the transgression of even a promised secret is frequently a serious offence because it results in grievous harm to the neighbour, or because such promised secrets are at the same time natural secrets.
295. A reasonable cause for revealing a secret is the urgent necessity of either the public or private good.
In such necessity the neighbour would be unreasonable in not consenting to the revelation of the secret — that is to say, it is permissible to think that he forgoes his right of having his secret kept hid. Since the public good must have precedence over the good of the individual it is evident that the individual’s secret must be sacrificed if the public good requires it. The good of the individual may refer either to the person who is aware of the secret, or to the person who benefits from the continued preservation of the secret, or to some third party. Where there exists a need it is permissible to reveal a secret (apart from the confessional secret) for the benefit of any of those three persons.
296. Reading another’s letters. It is grievously sinful to read the secret letters or writings of another without the consent of either the sender or recipient or without legitimate authority or without just cause, because in so doing a person is deprived of secrets which he has a perfect right to preserve. Just as theft is committed by secretly removing the goods of another, so it is theft to pry into secrets contained in letters. In practice, however, grievous sin is often not committed either because such letters contain nothing that is secret, or because their readers are acting with an erroneous conscience, since many people think that no grave sin is involved in reading another’s letters.
§ 4 . Contumely
397. Definitions. Honour consists in the external recognition of a person’s excellence. This recognition may be conveyed in words (v.g. by praise), in deeds (v.g. a bow of reverence), or in external objects (v.g. by the conferment of a dignity).
Honour is principally violated by contumely which may be defined as unjustly dishonouring another in his presence.
The malice of contumely. Contumely is a grave sin of injustice which allows parvily of matter.
Contumely is a violation of a person’s honour, which is a good of great value to which every man has a strict right. Other sins frequently accompany contumely, such as sins contrary to religion, lack of respect, blasphemy, scandal.— Contumely becomes venially sinful, 11) if there is some imperfection in the act itself, or b) if the person did not intend any serious injury to another’s honour, or c) if only slight injury resulted due to the state of the speaker and his hearer.
Restitution must be made for any insult offered to a person’s honour in the same way as restitution is necessary for material goods taken away unjustly. — The method of restitution must be determined by the status of the person who offered the insult and that of the person offended.
§ 5 . Defamation of Character
298. Definitions. Good esteem is the opinion which men express in words regarding the excellence of another.
This esteem is violated by defamation whereby one secretly blackens the good name of another. Modern theologians usually distinguish defamation into detraction and calumny. Detraction is the unjust revelation of another’s genuine but hidden fault ; calumny is the untruthful imputation of some fault not actually committed. Older theologians spoke of calumny, detraction, and defamation, without making any distinction between them so far as their morality was concerned.
In this category must also be included tale-bearing which is a form of detraction that sows discord between friends.
299. Malice of defamation. Unjust defamation ( whether it be simple detraction or calumny) is a grave sin contrary to justice and charity which admits of slight matter.
This is evident from the words of S. Thomas ( S. Th. II, II, q. 73, a. 2) : “It is a serious matter to take away the good esteem of another, because amongst man’s temporal possessions nothing is more precious than his good name ; if he lacks this he is prevented from doing many good things. Therefore it is said: ‘Take care of your good name ; for this will be a more lasting possession of yours than a thousand valuable and precious treasures.’ And therefore detraction considered in itself is grievously sinful.”
It is evident that calumny is a violation of strict justice since it is an unjust lie. On the other hand the harm caused by detraction derives from the fact that the secret sinner still retains the good esteem of others and he cannot be dispossessed of this without a just title. Now the detractor does not possess such a just title for revealing his neighbour’s secret sin ; otherwise it would cease to be detraction and become a justifiable revelation of a secret sin. — Moreover, detraction is the cause of harm to the welfare of society since it normally gives rise to quarrels, disputes, excessive hatred, all of which are contrary to charity ; accordingly, detraction (and calumny, a fortiori) violates not only justice but also charity.
Defamation does not assume a different species of sinfulness, a) from the fact that it is calumny or detraction, since the effects of both are the same; b) from the fact that it is this or that sin of the neighbour which is unjustly disclosed ; c) from the fact that it takes place in the presence of a few persons or of several. However, in all these cases there are aggravating circumstances, and the sin of calumny must be mentioned by name in confession, otherwise the confessor will not possess sufficient knowledge to judge of the gravity of the sin and of the restitution that must be made.
The gravity of defamation. To decide in practice how grave is defamation one must consider :
1. the person who speaks, who, if he is a prudent man of some importance, will cause more harm than an unreliable, talkative character ,
2. the persons who listen ; if numerous, loquacious, and even influential, grave injury more easily ensues than if they were few, discreet and unimportant ;
3. the person injured; if his dignity is high and his good name intact, he is more likely to suffer grave injury than if he were a worthless character ;
4. the motive which inspires a person to reveal another’s faults. Granted that no motive is sufficient to justify calumny, yet there are reasons which justify or at least make less sinful the manifestation of another’s secret (cf. n. 295 — the revelation of secrets).
Note. Even the dead retain their right to their good name, and therefore it is forbidden to reveal and make known their sins and vices without sufficient reason.
300. Restitution of violated good esteem. A person who defames another unjustly is obliged in justice to repair : 1. the loss of good esteem ; 2. all the material losses which are foreseen at least confusedly as resulting from his defamation. The first obligation is personal, the second real and therefore passes to a man’s heirs ; but in some circumstances it may be wiser to leave the latter in good faith if it is foreseen that the warning will cause more harm than good.
In making restitution the calumniator will not employ the same method as the detractor. The calumniator is bound to make a public declaration of the falsity of his previous assertion, whereas the detractor must use all the lawful means he can to excuse the faults which he has unjustly revealed.
Reasons which excuse from restitution for the loss of good esteem are:
1. if the defamation has been forgotten through passing of time ;
2. if the defamed has lawfully condoned reparation either expressly or tacitly. Sometimes compensation may be regarded as a form of condonation— that is to say, when the person defamed has himself dishonoured the good name of the other and neither is willing to repair the loss of good name of the other.— If the defamation injured not only the person defamed but also his state of life and other persons, it is impossible to condone reparation ;
3. if reparation is impossible ; v.g. if those who heard the defamation are unknown or cannot be traced, or if the reparation could not be made without suffering much greater harm.
§ 6. Rash Judgement
301. Definition and malice. Rash judgement is the firm assent of the mind ( whether manifested externally or not ) to the existence of sin in another without sufficient reason.
Rash judgement in its strict sense is a grave sin of injustice which admits of slight matter.
This is so, since it violates the perfect right which each man has to the good esteem of men until the contrary is proved. Three conditions must be verified for rash judgement to be grievously sinful : 1. it must be fully deliberate ; 2. it must be completely rash — i.e., it is known that there are insufficient grounds to support the allegation of sin ; 3. it must concern another’s grave sin. Only rarely are all these conditions fulfilled, and therefore rash judgement is rarely a grave sin.
CHAPTER IV. RESTITUTION — OR — reparation of violated rights
The question will be discussed in the following order : 1. the obligation of restitution in general ; 2. grounds of restitution ; 3. the manner and circumstances of restitution ; 4. reasons which excuse from restitution.
Art. 1. The Obligation of Restitution in General
302. Definition. Restitution may be understood in a wide sense when it signifies the return of anything received and this is the meaning given to the term in the contract of deposit and in the contract for consumption ; or it may be understood in its strict sense as compensation For injury inflicted on another. Restitution may be necessary whether one is or is not to blame for the injury caused.
Principle. The obligation of restitution arises from the transgression of commutative justice only, not from the violation of either legal or distributive justice.
The reason is that restitution effects a strict equality between one thing and another, and such equality exists in commutative justice only, viz. between what is given and what is received, between the injury and the compensation. In legal and distributive justice the equality is one of proportion (St. Thomas, S. Th. II II, q. 61, a. 2). But on many occasions a violation of legal or distributive justice also includes a violation of communative justice, and this incidentally gives rise to the obligation of restitution.
Note. The violation of commutative justice does not cause an obligation of restitution unless some material damage is caused. Theologians are not agreed whether merely personal harm, such as a wound, pain, contumely, rape, etc. make a man liable to restitution. The affirmative view seems the more correct in theory, but in practice a strict obligation to repair the harm cannot be imposed unless a judge’s sentence intervenes.
303. The necessity of restitution. It is necessary for salvation to make restitution either in fact or at least in intention for any notable harm inflicted on another.
The reason is evident. One cannot attain to salvation without observing justice. But whosoever refuses to make restitution when he is able to do so, either a) for something that he has unjustly removed, or h) for something that he possesses unjustly, or c) for unjust damage inflicted on another is violating justice. Therefore restitution is necessary for salvation. Hence the brief statement in Regula iur. 4 in VI : “ Sin is not forgiven unless one restores what has been taken away.”
If actual restitution is impossible, then the intention to make restitution is both necessary and sufficient, viz. a firm resolution to repair the harm as soon as this is feasible.
Art. 2. Grounds of Restitution
304. Introductory – . St. Thomas and older theologians, understanding restitution in its wider meaning, used to propose two grounds of restitution, stating that a man was bound to restitution either 1. because of the article received, or 2. because of the manner in which the article was received. Because of the article received the possessor of another’s property is bound to restitution whether he is in good faith or in bad faith ; because of the manner in which the article was received an obligation of restitution ensues : a ) from every formal crime which causes real damage to the neighbour whether it be theft or unjust damage ; b) from certain contracts, such as the contracts of loan and deposit.— More recent theologians, taking restitution in its stricter meaning, usually propose the following grounds of restitution : 1. possession of another’s property ;
2. damage to another’s property. Since we intend to devote a special section to the obligation arising from contracts, for the present we shall confine the discussion to the two grounds of restitution understood in its strict sense. — Other theologians speak of co-operation as a separate ground of restitution, but this is without foundation since it may be included under. either of the two grounds already mentioned — unjust possession or unjust damage.
§ 1 . Possession of the Property of Another
303. Definition. A man may possess or retain the goods of another in good, bad, or doubtful faith. Therefore the duties resulting from each form of possession must be considered separately.
The products of goods are :
1. natural products if they result from things with practically no assistance from man, such as the grass in the fields ;
2. products which are acquired chiefly through the industry of man, such as profit made in the course of trading ;
3. products which are the result of equal efforts by man and nature, v.g. butter ;
4. products which result from lease (fructus civiles).
Expenses are :
1. necessary for the preservation of goods ;
2. useful for their improvement ;
3. superfluous, if incurred in the mere embellishment of goods.
1 . Possession In Good Faith
306. General Principles.
1. The unjust possessor of another’s goods is hound to restore them to their owner who alone has the right to the natural products of these goods, and if the goods perish the owner is the loser. Furthermore no one has the right to be enriched at the expense or harm of another.
This is the teaching of all theologians in accord with the principles of ancient Roman law. However, recent laws have introduced certain modifications which may be used even in the forum of conscience, such as laws relating to the products obtained from another’s property.
2. When doubt exists the person in possession has the better title.
This is demanded by the welfare of the State and its citizens, otherwise the social order would soon be disturbed.
Rights and obligations.
The possessor in good faith has the following obligations and rights.
a ) When he knows for certain that he possesses property belonging to another he must restore it to the lawful owner.
b) If the property perishes he is absolved from further obligation.
c) He acquires genuine ownership of another’s property after lawful prescription.
d) According to modem law he usually retains all the products which he has acquired in good faith from the goods possessed.
e) He may demand compensation for all useful and necessary expenses, after deducting the value of the products received from the goods.
For practical guidance in cases of conscience one must pay particular attention to the civil laws of each country. Since in doubtful cases possession is nine-tenths of the law, one must favour the possessor in good faith. Finally in each instance one must try to determine whether the possessor has a just title for acquiring the chattel, its equivalent and its products.
2. Possession in Bad Faith
307. Principle. The unjust possessor of another’s goods in bad faith is bound to repair all the foreseen damage caused to the lawful owner. Therefore : a) he must restore the thing itself if it still exists ; if it has perished he must restore its equivalent value.
b) He must restore to the owner all the natural products of his property together with any profit obtained by leasing the goods and also the increase in value which the legitimate owner would have obtained, even though the unjust possessor himself did not obtain it.
c) Generally speaking, he must recompense the owner for all ensuing loss and for the loss of profit which the owner would have obtained if the property had been in his possession and which the present owner foresaw at least vaguely.
d) He is allowed to deduct all necessary and really useful expenses.
3. Possession in Doubtful Faith
308. The possessor in doubtful faith is one who has grave reason for positively doubting whether the thing he possesses belongs to himself or to someone else. The doubt may exist before or after his possession of the thing.
Obligations, 1. When the doubt arises after taking possession of the thing, the possessor must undertake a careful investigation in order to resolve his doubt ; should the doubt persist after investigation he may keep the thing, since possession is nine-tenths of the law. But if he is morally certain that he is in wrongful possession of another’s property, he incurs all the rights and obligations of a possessor in good faith already indicated.
2. When the doubt exists prior to possession, he is bound to restore the tiling he has acquired to the original owner since he has no sufficient title to the possession of the tiling. Unless he acquired the property from a possessor in doubtful faith by a legitimate title (by purchase, by inheritance, etc.), then he is under an obligation to try to find the rightful owner and restore the article once he is found. But if the doubt persists he must make restitution in proportion to his doubts or else give to the poor or to pious causes the article in doubt.
§ 2. Unjust Damage
309. Introductory. Since we have already discussed sufficiently (n. 271 sq.) the circumstances in which the obligation of restitution arises from unjust damage, i t only remains to say a few words about the restitution which must be made by those who co-operate unjustly in such damage. For the difficulty may be raised, to what extent and in what order must these unjust co-operators make restitution ? The extent of their obligation may take one of three forms : 1. an absolute obligation of complete restitution — that is to say, an obligation binding each co-operator to repair the entire damage without having recourse to other co-operators ; 2. a conditional obligation of complete restitution — that is to say, an obligation affecting each co-operator to repair the entire damage in default of his fellow co-operators meeting their share of the restitution. Once he has repaired the damage he may demand suitable compensation from the defaulters ; 3. an obligation of restitution pro rata, viz. an obligation to repair his share of the damage.
310. First Principle, a ) In cases of co-operation the principal cause has an absolute obligation to make complete restitution ; b) in the case of several co-equal causes each has a conditional obligation of complete restitution ; c) partial causes of unjust damage are bound to make restitution in proportion to their individual share of the harm caused.
The reason for the first part of the principle is that the principal cause of unjust damage uses the other co-operators as mere instruments, and it is only just that the principal cause (and not the instruments) should meet the entire restitution.
Concerning the second part it must be noticed that the action of each co-operator exercises an influence on the entire damage and therefore each of them is bound to repair the entire damage if the others cannot repair their part of the damage or refuse to do so.
The reason for the third part is that the co-operator in this instance is responsible for only part of the damage, and it is this part for which he must make restitution.
Second Principle. If several co-operators inflicted the same degree of damage in exactly the same way, all are equally bound to make restitution ; otherwise the order in making restitution is this : 1. the person who is now in possession; 2. the one who commanded the injustice ; 3. he who executed the command; 4 – oil other positive co-operators; 5 – oil negative co-operators.
This principle requires no further explanation or proof.
Art. 3. The Manner and Circumstances of Restitution
Here we consider: I. to whom, 2. at what time, 3. in what place, 4. in what way is restitution to be made.
3 1 1. 1. To whom must restitution be made ? The question is answered in the following distinction :
a) If the victim of the injustice is known for certain, then in ordinary circumstances restitution must be made to him or to his heir.
Notice : in ordinary circumstances, because in certain circumstances one is permitted to give the amount to be restored to the poor or to some pious purpose, v.g., when restitution has to be made to some society which is thoroughly immoral, or to the State, or to certain insurance companies. These exceptions are more fully considered in the author’s Man. Theol. mor. II, 229 sqq.
b) If the victim of the injustice is not known even after careful enquiry, the possessor in good faith may retain the property in his possession, but the possessor in bad faith and anyone who has inflicted unjust damage must make restitution to the poor or to some pious purpose.
c) If after careful enquiry there still remains some doubt regarding the legitimate owner of lost property, the chattel must be divided as much as possible amongst the few probable owners ; if there are many probable owners, making a reasonable division of the property impossible, it should be given to the poor or to some charitable cause.
Thus a shop-keeper who has harmed several of his customers who cannot now be traced, v.g. by adulterating the goods sold or by selling under weight or measure, may make restitution by increasing the weight or measure of the goods he sells or by lowering his prices it he knows that practically the same customers still patronise his business ; otherwise he must make restitution to the poor or to pious purposes.
312. 2. When is restitution to be made ;
As soon as possible, morally speaking. Thus a person commits grave sin if without sufficient reason he postpones for an appreciable length of time the reparation of grave injury ; moreover, he will be obliged to make good the damage caused to the lawful owner by his culpable postponement of restitution.
3. WHERE IS RESTITUTION TO BE MADE
a) The possessor in good faith fulfils his obligation of making restitution for the thing that has come into his possession by error if he leaves it in the place where it is and allows the lawful owner to dispose of it at will.
b) The possessor in bad faith and the author of unjust damage must at their own expense restore the article to the place where the owner would have kept it if it had not been unjustly removed. Should this prove morally impossible, the property may be given to the poor or to pious purposes.
Should the article to be restored be destroyed by chance or through the fault of a third party while in transit, the possessor in good faith is quit of all obligation since the owner must bear the loss when the article perishes (res perit domino). The possessor in bad faith and the author of unjust damage must again do all in their power to repair all harm incurred by the owner, and this seems to remain true even if restitution had been attempted through the agency of a confessor.
4. How IS RESTITUTION TO BE MADE
Only one thing is necessary — namely, that restitution be made in such a way that the equality of justice which had been disturbed should be fully restored. Therefore restitution may be made secretly, or in the form of a gift, or through some other person, etc.
Art. 4. Causes Excusing from Restitution
Causes which absolve completely from restitution must be distinguished from those which merely postpone the obligation.
§ 1 . Causes which Absolve from Restitution
313. There are five causes which completely absolve from restitution : condonation, compensation, prescription, composition, extreme need.
1. Condonation or the remission of debt excuses from restitution, whether it is expressed, tacit, or reasonably presumed, provided that a) condonation is completely voluntary, viz. free from error, deceit, force, fear ; and b ) is made by someone who has the power to condone the debt in accord with Natural and positive law.
2. Compensation is the mutual destruction of two equal and certain debts ; for example, A owes B £100; B owes A an article valued at £100 ; in such circumstances the debts could be remitted by compensation.
3. Prescription after the specified period of time destroys only those debts incurred by a possessor in good faith ; cf. n. 259 regarding die requisites for lawful prescription.
4. Composition, which is the remission of debt by the Holy See, applies only to ecclesiastical property and goods due to unknown creditors. In Spain and Portugal special faculties exist for granting this form of remission in virtue of the Bull “ Cruzada.”
5. Extreme need (or its equivalent) does not make a person quit of all obligation of restitution unless there is no reasonable hope of terminating this need. Otherwise it merely postpones the obligation.
§ 2. Causes which Postpone Restitution
314. The two chief causes of postponement are : temporary incapacity and surrender of property to creditors.
I. Temporary impossibility of making restitution may be either physical or moral ; it is physical when the debtor possesses nothing wherewith to make restitution ; it is moral when restitution would cause grave harm to the debtor or to some other person. While physical or moral impossibility endures, the obligation of restitution is postponed since no one is obliged to the impossible.
315. 2. When a debtor is no longer able to discharge his debts, he then surrenders his property so that his creditors may receive at least a proportionate amount of the money due to them. This surrender of property does not of itself free the debtor in conscience from restitution ; it merely postpones the obligation until such time as he is able to meet his previous debts. However in some countries the civil law seems to grant a complete discharge from all obligation of making restitution, when the surrender of effects is transacted in court. The just statutes of civil law can and in certain cases must be observed in the internal forum, when they determine the rights and duties of a debtor who surrenders his effects.
This question is discussed in two chapters : 1. contracts in general ; 2. particular contracts.
CHAPTER I. CONTRACTS in general
In this chapter are considered : 1. the definition and kinds of contract ; 2. the requisites for contract ; 3. the obligation of contract.
Art. 1. Definition and Kinds of Contract
316. Definition. A contract is the consent of two or more persons to the same resolution.
This is the definition taken from Roman law. Thus two things are required for a contract : an act of the intellect, viz. the practical proposition to which the parties agree, and an act of the will, viz. the consent, which is the proper efficient and formal cause of the contract.
Kinds. Among the many divisions given, the following seem the more necessary for use in the confessional.
1. A formal (or explicit) contract is one made in words or writing which formally manifests the consent of the contracting parties ; a virtual (or implicit) contract is one contained implicitly in the acceptance of some office, such as that of doctor. This latter is sometimes referred to as a quasi-contract.
2. A contract is unilateral when it creates an obligation in only one of the parties, as in a gratuitous contract ; it is bilateral when it imposes an obligation on both parties, as in the contract of buying and selling.
3. Contracts may concern things which are quite definite, such as buying an article at this or that price, or they may concern fortuitous and future events ( aleatory contracts) such as assurance and betting.
4. A gratuitous contract confers a benefit on one of the parties only, as in a gift ; an onerous contract imposes a burden on both parties, as in the contract of lease.— Every bilateral contract is to some extent an onerous contract.
317. Scholium. The tower of the civil law over contracts. Civil laws can render certain contracts void both in the external forum and in the internal forum. Such power is required for the effective control of society. Whether invalidating civil laws do in fact destroy a contract in its entirety, or whether it declares that it can be rescinded, is a question of fact which must be determined in the various cases which arise.
Generally speaking, unless the contrary is obvious, contracts which are rendered null and void by civil law can also be considered void in conscience, cf. n. 320.
Canon law recognises the prescriptions of civil law in each country relating to contracts, unless there is anything contrary to Natural of ecclesiastical law in those prescriptions.
Art. 2. Requisites for Contract
318. Four essential elements are required for a contract : 1. a suitable object ; 2. a competent person ; 3. legitimate consent ; 4. a suitable form.
1. An object is suitable for a contract must possess several qualities :
a) it must be possible, both physically and morally ;
b) it must exist, actually or potentially ;
c) it must belong to the contracting party ;
d) it must be capable of being valued at a price ;
e ) it must be morally good and lawful.
Spiritual objects cannot be valued at a price and therefore, if sold, the contract is simoniacal and completely void (c. 729).
If the object of a contract is morally evil the base contract can and in fact must be rescinded before the evil is committed. But if the immoral act has already been performed it is not wrong to pay the agreed price. Accordingly, it is probable that an evil contract is valid post factum. However, since there are many theologians who hold that an evil contract is completely null and void, in practice it is better to act on the principle : “ the person in possession has the better title,” — that is to say, the price received for an immoral deed may be retained, but it is also permissible to refuse to pay the agreed sum in such circumstances.
2. A competent person for making contracts is anyone who has the use of reason and is not specifically forbidden by positive law. Because they lack the use of reason imbeciles, children, and the perfectly intoxicated are debarred from making contracts. Through the intervention of positive law the following are usually forbidden (at least partially) from entering into contracts : minors, married women, solemnly professed religious, etc.
319. 3. The consent required for contract must possess certain characteristics and may be vitiated in different ways.
The consent must be :
a) genuine or internal,
b ) free and deliberate.
c) manifested externally,
The consent may be vitiated by :
a) error and fraud which deceive the intellect ;
b) duress and fear whereby the freedom of the will is impaired.
A substantial error relating to the subject-matter of the contract or to a condition without which the contract would not have been made renders the contract void. The requisite consent is then lacking. An accidental error which concerns incidentals does not of itself void the contract, but it often leaves the contract open to rescission. Accidental error does not destroy but only diminishes the consent and therefore positive law is justified in stating that certain of these contracts may be rescinded, especially if the error was the result of fraud.
What has been said about error applies equally well to fraud, which is present when one person uses deceits and lies to persuade another to enter into contract.
Violence renders a contract invalid since it destroys freedom.
Fear does not invalidate a contract unless it disturbs the use of reason. This follows from Natural law, and the reason is that the freedom required for making contracts still remains. By positive law certain contracts, such as those of marriage and religious profession, are declared invalid if made under the influence of grave fear. Nearly all contracts are capable of being rescinded if fear played a part in their making — cf. the previous discussion of fear in n. 32.
320. 4. A definite external form is not prescribed for making contracts. It is sufficient that the consent of the parties be clearly manifested. This is all that Natural law requires, but sometimes positive law demands some definite formula under pain of invalidating the contract, as in the sale of immovable goods.
Are contracts valid in conscience when made without the legal form ? a) If the legal form was demanded by ecclesiastical law as an essential part of the contract, then the contract is invalid both in conscience and in the external forum. Thus the contract of betrothal made without the form prescribed by law (cf. c. 1017) is absolutely invalid in either forum.
b) If the form required by civil law is not observed, then theologians are not unanimous ; some maintain that the contract is binding in conscience, while others hold that it is invalid, and yet a third school affirm that preference should be shown to the possessor until he is obliged to make restitution by judicial sentence. This final opinion seems the one to be followed in practice.
Art. 3. The Effect or Obligation of Contract
321. The obligation attached to contract is threefold : a natural obligation binding in conscience only in consequence of the nature of a contract ; a civil obligation arising from civil law and binding in the civil forum only ; a mixed obligation binding in conscience and in the civil forum.
The gravity of the obligation is normally determined by the gravity of the subject-matter of the contract, but special consideration must be reserved for clauses attached to the contract and which qualify the contract.
The chief forms of such qualified contracts are :
a) Conditional contracts. Leaving on one side those conditions which refer to something past or present and which render the contract valid or invalid according as the conditions are verified or not, a condition referring to the future either suspends a future obligation or relaxes an existent one. An immoral condition attached to a contract normally renders it void since it has an immoral object and thus is morally impossible. But in certain circumstances such a condition is considered not to be part of the contract, as in the contract of marriage.
b) Modal contracts (sub modo) are those which stipulate the use or purpose of the object of the contract ; v.g. I give you this sum of money for the purchase of boob. Such a contract is not rendered void if the object is not used in the way prescribed. In practice it is sometimes difficult to distinguish a modal contract from a conditional one.
c) Delayed contracts are those which postpone the fulfilment of the agreement until a determined date. Such a contract is binding immediately although it is not intended for immediate execution.
322. d) Contracts made under oath. General rule : a contract made under oath is not thereby changed in its character as a contract, and thus if it is invalid in itself, it is not validated by the oath. A two-fold obligation ensues from a valid contract made under oath : an obligation of justice and an obligation of religion. — A promissory oath obtained under duress or grave fear is valid but may be relaxed by an ecclesiastical superior (c. 1317, § 2).
CHAPTER II. PARTICULAR CONTRACTS
This chapter is divided into three articles : 1. gratuitous contracts ; 2. onerous contracts relating to certain events ; 3. aleatory contracts.
Art. 1. Gratuitous Contracts
Introductory. Gratuitous contracts are either unilateral — such as promises or gifts — or bilateral — such as loans for use, deposit of chattels, stake, agency, loans for consumption, usury.
§ 1. Promise
323. Definition, A gratuitous promise is a contract whereby a person freely and spontaneously obliges himself to give something to another or to omit something. Therefore three things are required for a gratuitous promise : 1. the intention to bind oneself ; 2. a spontaneous desire free from all duress, fear and error ; 3. the manifestation and acceptance of the promise.
Since the promise is binding by reason of the virtues of truthfulness and fidelity, the obligation would seem to be in itself light. This is an opinion which is certainly probable, although contradicted by some who regard the violation of a promise that has been accepted as grievously sinful, provided that it relates to grave matter which is four times the amount required for a grave sin of theft.
Accidentally the obligation involved in promises may be grave if, for instance, grave damage results for the promise by the violation of the promise, or if the promisor intends to put himself under a grave obligation. Such an intention would seem to be present, a) if the person making the promise confirms it by oath, b) if his promise concerns grave matter, c) if he makes his promise in the presence of a notary, d) if he says : I intend to bind myself as far as I possibly can. The obligation of a promise ceases, according to St. Thomas (S. T. II II, q. no, a. 3, ad 5), 1. when the matter promised is unlawful, 2. when the object promised or the circumstances of either the object or the person undergo a notable change. Modem theologians add two further reasons : if the promisee voluntarily condones the promise ; if one of the parties does not stand by his promise after a mutual promise had been made.
§ 2 . Gift
324- Definition and Kinds. A gift is the generous offer of part of one’s possessions to another who accepts it.
i. Liberal gifts— gifts in the strict sense of the word— presuppose the existence of no obligation in the donor to make the gift ; remunerative gifts are those which suppose an obligation of gratitude in the donor.
3. Gifts inter vivos are delivered with the intention of transferring ownership of at least the substance of the gift actually and irrevocably to the recipient. Gifts mortis causa transfer ownership, but the gifts themselves are revocable until the death of the donor ; thus I give you this sum of £1,000 to be delivered to you after my death, unless in the meantime I have need of it for other reasons. Gifts made in the form of a will do not transfer ownership immediately but only at some future date, viz. on the death of the donor.
1 . Gifts in General
335. Certain conditions are required to be fulfilled in order that a soft be lawful : a) the donor must be competent to make the gift ; b) the donee must be competent to receive it ; c) the thing given must be suitable ; d) the prescribed form must be observed ; e ) the donee must accept the gift.
a) A person is competent to make a gift if he has the ownership and free disposal of the thing which he gives. Ecclesiastical and civil positive laws determine in detail those who are not competent to make gifts. Generally speaking, the following are more or less incapable of making gifts : minors, imbeciles, prodigals, wives, religious, etc.
b) A person is competent to receive gifts if he is capable of ownership. Therefore a child who has been conceived (but not yet born) is capable of receiving gifts. In certain circumstances civil law excludes some people from receiving gifts : v.g. according to Gallic law doctors are debarred from receiving gifts in the strict sense of the word from their patients (art. 909).
c) A thing is judged suitable for forming the object of a gift if it is at the free disposal of the donor.
A) Frequently positive law requires the observance of certain formalities in handing over gifts (v.g. the presence of a notary). Normally, illegal gifts— i.e., those made without observing the legal form— may be considered as binding in conscience until a legitimate judge rescinds the contract made.
c) The acceptance of the gift (at least presumed acceptance) is required for all forms of gifts.
Revocation of the contract of gift is sometimes permitted by positive law as, for example, when the gift injures the obligations of piety by depriving the donor’s children of their lawful share of his goods, when another child is born unexpectedly, when the beneficiary is grossly ungrateful to the donor.
2. Gifts inter vivos and Gifts mortis causa
326. x. All the previous principles regarding gifts in general apply also to gifts inter vivos.
2. Gifts mortis causa confer a conditional right to the property given ; they differ little from legacies bequeathed in wills. In many countries gifts “ mortis causa ” as distinct from legacies have been suppressed by civil law.
3. Last Will and Testament
327. Introductory notions. Although hereditary succession is not a contract in the strict sense of the word since the consent of the person conferring the inheritance and the consent of the inheritor do not exist at the same time, nevertheless one is justified in regarding it as a type of contract of gift, because by it — and especially by a will — ownership is transferred to others gratuitously.
Hereditary succession is either legal (or intestate ) when the right of succession arises from the prescription of law without the expressed will of the dead person ; it is testamentary when the right of succession derives from the last will of the testator.
The estate of a dead person comprises the sum-total of the dead person’s possessions. The heir or he who receives the property of the dead person is either the sole heir if he receives all the property, or a joint heir if he receives a part of the estate. An essential heir is one who in virtue of positive law cannot be excluded from the inheritance, except in specified cases ; an arbitrary heir is one who shares in the inheritance through the free choice of the testator.
The legitimate part of an inheritance is that portion of the estate which must be left to the essential heirs in virtue of positive law to that effect. A will is the final and complete disposal of goods made by the dead person.
A codicil is an addition made to a completed will which either explains or changes something in the will.
A legacy is that specific part of the total inheritance which the testator decides must be given to a particular person.
328. The form of a will is usually determined, by positive law and must be observed under penalty of invalidity. The chief forms are these:
a) an ordinary will, which is completed in normal circumstances according to die legal form ; an extraordinary will, which is recognised in extraordinary circumstances as legal by reason of a privilege (and consequently is sometimes referred to as a privileged will), such as the will made by soldiers on active service ;
b) a will in writing which is drawn up by a notary in strict legal form, and a nuncupative will (verbally declared) which is made by the testator in his own words in the presence of witnesses, and a holograph will which is made in the handwriting of the testator and signed by himself.
329. The validity of an irregular will, viz. a will made without observing the legal form, cannot be denied if the intention of the testator is known. This is so by reason of Natural law and before any judicial sentence declaring such a will to be void. After legal judgement the will ceases to be binding even in conscience, if it concerns legacies for secular purposes. Such a sentence is just and must be observed in conscience. If the will relates to legacies in favour of pious purposes, it remains good and valid notwithstanding the judgement of the civil court to the contrary because such pious purposes should not be made to suffer loss through the dispositions of State law. C. 1513. § 2 states the following rule: “In last wills made in favour of the Church all the formalities of the civil law should be complied with, if possible ; if they were omitted, the heirs should be admonished to fulfil the will of the testator. The words “ should be admonished ” are a command and not a mere exhortation : this was made clear by the Pontifical Commission, February 17, 1930 (Act. Ap. Sed. XX, 196). Cf. c. 2348.
Acceptance of wills. No one can be forced to accept a will from which he himself benefits, since a will is in the form of a gift which may always be refused. The heir may accept the inheritance “ under benefit of inventory,” so that he is not obliged to pay the debts of the testator beyond the amount of the inheritance.
330. Revocation of wills. The testator is always at liberty to revoke or change his will, except in case of joint wills. After the death of the testator the State has the power to commute the will, since it possesses the right of eminent domain over all the property of its subjects. Wills made in favour of pious purposes are equivalent to vows and oaths and therefore may be commuted by the Holy See. But the interpretation of such wills falls within the province of the Ordinary also, who is their executor in accordance with the statutes of Canon law (c. 1515 and 1517).
4 . Intestate Succession
331. Duties of the testator, a) In accordance with Natural law the testatoris bound to leave a reasonable part of his property to his children, his wife, and to other relatives who are in need. This is demanded both by the virtue of piety and by the virtue of charity.
b) Any just cause — such as the immoral life led by the heir and not merely the reasons set forth in the various codes of State law is sufficient for withholding from essential heirs their legitimate share in the estate.
c) It is probable that the testator is not bound to make restitution for depriving die essential heirs of their legitimate share and using the latter for gifts or even squandering it. This opinion is based on the fact that no harm is done to commutative justice since the heirs have no strict right to the inheritance.
332. Duties of the heirs, a) The essential heirs of an estate cannot resort to occult compensation in order to remedy any diminution in their legitimate share of the estate, but they are at liberty to go to Court to obtain their due portion.
b) Essential heirs must include in the dead person’s estate all the goods (which were not entirely gratuitous) which they have already received during the lifetime of the testator.
§ 3. Loans for Use, Deposit of Chattels, Stakes, Agency
333. I. The loan for use is a gratuitous loan of a non-fungible filing to be used for a definite purpose and for a specified time. If money is demanded in return for the loan, the contract becomes an onerous one, viz, a contract of lease.
334. 2. Such loans are sometimes made on the understanding that the lender may demand the return of the object loaned at any time (precarium). (L. 1 Dig. 43, 26.)
335. 3. A contract of deposit is one in which some movable good is placed in the custody of a person on condition that it is returned when the depositor demands it.
336. 4. Stakes are a form of deposit ; the object to be contested for is deposited with a third party (the stakeholder) on the understanding that once the matter is settled the object will be handed to the winner. The Code of Canon law (c. 1675, §§ 2 and 3) states : “ The stakeholder should be as diligent in guarding, preserving and caring for the deposit as he is over his own possessions, and afterwards he is bound with good reason to return it to whomsoever the judge decides it should be restored. — The judge should determine a suitable reward if the stakeholder asks for one.”
337. 5. Agency is a contract whereby one party undertakes to conduct some action or business on behalf of another.
338. 6 . Agency presumed. Sometimes a contract of agency is presumed (negotiorum gestio), and is then a tacit contract (quasi-contract) whereby one person manages the affairs of another not by express command but from his presumed desire ; thus, for instance, a man who takes into his possession an article which he has found is bound in the meantime to take the place of the proprietor and act in his name. Note. In all the above-mentioned contracts it is essential to attend to positive law which frequently regards them not as gratuitous but as onerous contracts.
§ 4. Loans for Consumption and Usury
339. Definitions. A loan for consumption is a contract whereby the ownership of a fungible good which is also consumed in its first use is given to another who incurs the obligation of restoring its equivalent in kind at some future date. The object of such a loan is something fungible which is consumed in its first use ; nowadays it is usually money. Usury is “the acceptance of money for something that has been loaned for consumption” (St. Thomas). Interest, although the word itself does not differ in meaning from usury, is usually understood to refer to profit lawfully acquired for legitimate reasons from a loan for consumption.
Principle. Usury in its strict sense is contrary to divine positive law, to Ecclesiastical law, and to Natural law.
a) Divine law commands : “ Lend to them (your enemies) without any hope of return ” (Lk. vi, 35 ; cf. Ex. xxii, 25 ; Lev. xxv, 35-37 ; Ez. xviii, 8, 13).
b) Ecclesiastical law has severely forbidden usury in five Ecumenical Councils (Lateran III, IV, V ; Lyons II ; Vienna) and in several condemned propositions (cf. c. 1543).
c) Natural law forbids selling the same thing twice. But in fungible goods which are also consumed at their first use, the goods themselves and their use are morally the same — that is to say, they do not possess separate prices. Therefore a person who demands a price both for the thing he loans and for its use is selling the same thing twice and thus offends against Natural law. Accordingly S. Leo the Great well says : “ Foenus pecuniae funus est animae.”
340. Extrinsic reasons which make interest lawful.
1. The risk involved when the lender is reasonably afraid that he will never recover his loan ;
2. the statutory penalty which takes the form of money to be paid to the lender when the borrower through culpable delay postpones the return of the loan beyond the specified time ;
3. loss of profitable investment, when the lender forgoes the immediate hope of gain which he would certainly have obtained if he had put the money lent to some other use ;
4. resultant loss which the lender suffers because of the contract of loan ;
5. legal reward, which is a title for taking interest instituted by State law in order to encourage trade. This title is recognised by ecclesiastical law also, provided that the legal reward or profit is not excessive. In fact it is permissible to stipulate for more than the legal rate of interest if there is a just and proportionate title to justify this (c. 1543). Under modern conditions there are nearly always some extrinsic titles (especially, loss of profitable investment and resultant losses) to justify the taking of reasonable interest for money lent. What amount of interest is reasonable cannot be determined with mathematical precision but must be decided from considering the risk involved, the loss of profit, etc.
341. Scholium. Nothing further need be said regarding pawnshops, savings-banks, and banks, which have been established for receiving a moderate rate of interest ; one must apply to them the general principles of justice and contracts (cf. the author’s Man. Theol. mor. II, 289).
Art. 2. Onerous Contracts
§ I. Buying and Selling in General
342. Definition. Buying and selling are two correlative contracts which are parts of the single contract of buying and selling, which may be defined as an onerous contract whereby some commodity is given for a price and a price for a commodity.
1. The Commodity and the Obligations of the Seller
343. The commodity or object of a sale may be anything which can be valued at a price and which belongs to the seller, unless specifically forbidden by positive law. If the commodity is not valued at a price, then there is no sale in the strict sense of the word, but barter, such as purchasing ten sheep for a cow, or exchange, such as Swiss money for German money. Positive law forbids the sale of certain goods except under special precautions, v.g. poison, weapons.
The obligations of the seller.
a) He must demand a just price. What this just price is will be discussed in a moment.
b ) He is bound to reveal to the buyer any substantial defects in the commodity sold, for if the buyer is unaware of such defects the contract of buying is non-existent owing to die presence of substantial error. Defects in the article sold are regarded as substantial if they render it notably useless for the primary and known purpose which the buyer has in mind. If the buyer asks, he must also be informed of any accidental defects. However the seller may refuse to answer this question and say simply : I am selling the thing as it is.
c) He is bound to hand over a commodity which is physically or at least morally the same as the buyer intends to purchase. Thus, for instance, anyone who sells artificial wine in the place of natural wine which the buyer intended to purchase is guilty of injustice.
d) He is bound to deliver to the buyer the commodity in the same condition as it was at the time of the sale. One must attend to State law regarding this matter.
2. The Price and the Obligations of the Buyer
344 . Tile buyer must observe all the just conditions agreed upon in the contract, such as the time and manner of receiving the commodity, of paying the price, etc. The buyer has a special obligation to pay a just price.
Definition and Quality of the just price. The price of an article is its value expressed in terms of money. But it is far from easy to decide how this value is to be measured, whether by social valuation or by its utility to the buyer or seller. St. Thomas and St. Alphonsus were of the opinion that the value and therefore the just price of a thing must be based on :
1. the intrinsic value of the tiring ;
2. the resultant loss and loss of profitable investment which the seller suffers by reason of his sale.
345. Kinds of price. There are three kinds of price : the legal price, the market (or common) price, and the price agreed upon by the contracting parties themselves.
1. The legal price is fixed by public authority or by law, such as the price of railway tickets and of chemist’s drugs, etc.
Commutative justice requires the observance of this price unless it is manifestly unjust, since this price has been lawfully determined for the common good by public authority which has supreme ownership over the goods of its subjects. Therefore this price is perfectly just and departure from it is unjust. Therefore any notable departure from the legal price normally obliges a person to restitution — with a few exceptions.
2. The market price is that which is fixed by common estimation based on the varying circumstances of time and place. There is no single market price, and therefore there are the highest, lowest and mean market prices. If no legal price has been determined one is obliged to observe the market price, so that selling above the highest price and buying below the lowest price are violations of commutative justice, since the market price is fixed by social valuation which is presumed to be just.
There are many extrinsic titles which permit one to exceed the limits of the market price. Thus, for instance, it is permissible to sell at a higher price :
a) because of the loss of investment-opportunity or extrinsic losses which the seller incurs by the sale ; b) because the seller has a special attachment to the thing he sells, although it is probably unlawful to charge more simply because the buyer has a special attachment to the tiling, since this does not belong to the seller ; c) because of the character of the sale, v.g. when a commodity in short supply must be sold in small quantities. — Likewise it is permissible to buy an article at less than the market price for many external reasons : a) because the buyer loses an opportunity of profitable investment or suffers loss as the result of his buying the article ; b ) because the article for sale is being offered free of charge ; c) because of the character of the sale, v.g. when a commodity is being bought in large quantity.
3. The price agreed upon by the parties themselves is that which is freely decided between the buyer and the seller. Such a price is just, provided a) the article has no legal or market price attached to it, and b) no deceit or fear is used in the sale.
346. Scholium. Counterfeit money. Not only the forger himself— together with his confederates — of coins and paper money but also all who knowingly use such money in payment for goods bought are bound to restitution, since counterfeit money is not a just price for the article purchased. Neither is a man who spends such money excused from restitution on the grounds that he received it in good faith. The fact that he has been deceived with consequent loss to himself does not give him any right to deceive an innocent third party.— Restitution must be made to whomsoever the counterfeit money was given. If the latter suffered no loss since he in his turn succeeded in disposing of the money, restitution must be made to the person who actually suffers damage. If this person cannot be traced, then the value of the money must be given to the poor or to pious purposes.
§ 2. Particular Forms of Buying and Selling
347. 1. Auction sales. These are held either voluntarily at the owner’s request or by direction of a judge. In such sales a just price is that which is offered by the final bidder without recourse to unfair means and accepted by the seller. This is the practice commonly in use among the people to which the legislator consents.
348. 2. Monopoly is an exclusive right granted to one or a few persons of selling certain commodities. Such monopolies are usually controlled by State law (State monopolies). Where such laws are insufficient private monopolies are frequently instituted to demand excessive and unjust prices. But in general a monopoly in itself is not unjust.
349. 3. For SELLING THROUGH middlemen (agents) one must use the general principles regarding contracts and co-operation in unjust damage.
§ 3. Lease and Labour Contract
Definitions and Kinds. Lease is an onerous contract whereby one person (the lessor) allows another (the lessee) the use or usufruct of real property or promises him certain services or work in return for a specified price. There are three types of lease :
350. 1. A lease of real property is one whereby the lessee is granted the use or usufruct of some thing — such as a house or a room — and is similar to the contract of buying and selling, and thus the same principles apply.
2. A lease OF undertaking some work — understood in its strict meaning — differs in no way from a contract of buying and selling. An agreed price is paid in return for some work which is undertaken, such as building a house, making a dress (contract work). Since this contract is to a certain extent an aleatory contract, the contractor is bound to fulfil all the conditions agreed upon, even in a case where he may suffer loss as a result. However, if unforeseen incidents occur unexpectedly, v.g. an epidemic or a thunder-bolt, then the original agreement should be modified in accordance with the statutes of civil law.
351. 3. Lease of service is more usually known as a labour contract. The object of this form of contract is the work of the individual — or rather the ability to work — which one person hires out to another for a definite period of time. This contract exists primarily between an employer and his employees.
352. The duties of an employer are founded partly on justice, partly on charity.
By justice he is obliged :
a) to pay a just salary at the stated time ;
b) to grant sufficient time to his employees in order that they may fulfil their religious and domestic duties ;
c) not to impose work beyond the strength of his employees.
By charity he is obliged :
a) to show kindness to his workers and to help them in their needs ;
b) to support any laws or decrees which justly improve the conditions of the workers.
353. The duties of employees are well set forth in Leo XIII’s encyclical “Rerum Novarum,” May 15, 1891 :
a) “ to fulfil honestly and fairly all equitable agreements freely entered into ” ;
b) “ never to injure the property of their employer ” ;
c) “ never to violate the person of their employer,” v.g. by insults, or calumny, etc. ;
d) “ never to resort to violence in defending their own cause, nor to engage in riot, and to have nothing to do with men of evil principles.” These words forbid unjust strikes, such as ceasing from work when a just labour contract has not yet been completed, or by demanding an excessive salary or other unreasonable conditions. But one must not conclude from this that all strikes are intrinsically evil.
3 54. The moral character or strikes. A strike is an organised cessation from work on the part of many men in order to obtain certain benefits from their employers. A strike may be inspired by one of two reasons : either the desire to remove unjust oppression by the employer — defensive strikes — or by the desire to receive higher wages or shorter and easier work, even though the salary so far received has not been absolutely insufficient nor has the work been excessive. The defensive strike is lawful provided no other means are to hand for lawful defence against the injustice of the employer. The other form of strike is not intrinsically unlawful, provided 1. it does not take place before the termination of their contract with the employer, 2. that there is a proportionately grave reason, 3. that the means used in the strike are just. Nevertheless it is most rare that recourse to strike action is expedient since it is frequently the cause of grave harm, both physical and moral, either for the workers themselves or for their employers or for the general public. Therefore all possible means must be used to effect a peaceful settlement of differences between employers and their operatives.
355. The just wage. A personal wage is one which is sufficient for the proper maintenance of the worker himself ; a family wage is one which is sufficient for the support of the worker and his family.
A PERSONAL WAGE IS DUE TO THE WORKER IN COMMUTATIVE JUSTICE.
Every worker has a strict right to sufficient maintenance in accordance with the principle : “ the labourer is worthy of his hire ” ; neither is he obliged to beg for it. There are two exceptions : 1. if the price of food rises sharply and work becomes more scarce ; 2. if the worker suffers from illness or old age. In such cases the employer has no strict obligation in justice — although sometimes there is an obligation in charity — to pay a perfect personal wage, since that would be an intolerable burden. It is then that the State must come to the rescue of the workers.
A personal wage is due to the worker in commutative justice.
A family wage must also be granted to a healthy worker when industry is normal.
It is said — when industry is normal, because when industry and trade are in a disturbed state, then even the workers themselves must bear their share of the burden. Also — to a healthy worker : for there is no strict obligation to pay a sick worker even a personal wage, as indicated already.
The reason why the worker has a right, ordinarily speaking, to a family wage is because he has a right to marry, and once he is married he has to support the members of his family by his own work.
Art. 3. Aleatory Contracts
356. Definition. Aleatory contracts (so-called from the Latin word “ alea ” meaning hazard or chance) are those in which a sum of money is paid in order to gain an uncertain profit or to avoid an uncertain loss.
General Principle. Such contracts are lawful, provided that :
1. the risk is morally equal for both parties ;
2. no deceit is practised ;
3. there is no scandal and no just prohibition of positive law.
§ 1. Insurance
357. Definition. Insurance is a contract by which one person ( the insurer ) in return for a fixed sum of money undertakes to pay compensation for any damage which another ( the insured) may suffer by involuntary chance. Therefore the object of such a contract is the danger which may befall in varying circumstances, such as the danger from fire, storm, death. In certain forms of life insurance an annual sum of money is paid not because of any danger which is likely to happen but in order to receive a stated sum of money at a definite time.
Requisites for just insurance. The contract of insurance is just :
1. if the annual premium corresponds to the gravity of the danger to which the thing insured is exposed ;
2. if the insured declares truthfully the value of the thing and the dangers to which it is exposed, and does not himself expose it to danger through negligence which is gravely culpable ;
3. if everything required by positive law and by particular agreement justly entered upon is faithfully observed.
358. Life insurance deserves special mention amongst the various forms of insurance both because of its frequency and because of the difficult cases of conscience which may arise. These difficulties are caused by the fact that the insured may have used deceit in taking out policies or if the doctor has been excessively lenient in describing the health of the insured. In practice, however, when the fraud is not most patent and grave, the confessor must not lightly oblige the insured to make restitution, because a) insurance companies exercise the utmost care and are rarely led into grave error ; b) civil laws favour the validity of contracts unless the fraud was substantial and manifest ; c) it is often most difficult to decide what disease was responsible for death. How restitution is to be made to insurance companies which have suffered unjust damage has already been described in n. 311.
§ 2 . Betting
359. Definition. Betting is a contract in which two or more persons disputing the truth of some event lay down a sum of money to be given to the person who was right. Therefore in normal circumstances such a contract is both onerous and bilateral, although occasions occur in which only one of the contracting parties puts himself under an obligation — for example : I wager I can finish the course inside an hour, otherwise I will give ten francs to the poor.
Lawfulness of betting. Bets are lawful, provided a) they are made for a morally good purpose, and b ) are laid on a suitable object — namely, something lawful and uncertain for both parties.
Civil laws today, as a result of the many abuses which can easily arise, prohibit betting either completely or partially or declare it void. They therefore state : a) that no obligation to payment arises from the original wager ; b ) that anyone who gains by betting is not bound to make restitution. These statutes seem to be legitimate and, ordinarily speaking, may be followed in conscience.
§ 3 . Gaming
360. Definition and Kinds. Gaining is an aleatory contract whereby a reward is given to the winner of a contest undertaken as a pastime.
Therefore the purpose of gaming must be lawful recreation. If its primary purpose is other than this, either the game is unlawful or the stakes must be regarded as a salary in return for work done.
a ) Caines of skill are those in which die result of the game depends largely on the skill of the players themselves, such as football ; b) games of chance depend on fortune and practically no skill is used, as in dice games ; c) games of a mixed character depend partly on skill, partly on chance, v.g. many card games.
Principle. Games played for stakes are lawful, provided the following conditions are verified :
1. the players must be free to dispose of the stakes for which they gamble ;
2. the gamble is undertaken with full knowledge and consent ;
3. the players must have a morally equal chance of winning ;
4. all fraud must be excluded ;
5. gain must not be the chief motive of the game neither must it be sought after too eagerly.
Note. Since games played for stakes are most dangerous because of the serious disorders which often ensue, the confessor should prudently censure them.
§ 4. Lottery
361. Definition. A lottery is an aleatory contract whereby on payment of a certain sum of money the right is acquired of obtaining some prize, if fortune favours that person. Since a lottery is no different from a game of chance, the same principles apply as for gaming.
Speculations on the exchange — a frequent form of aleatory contract in these times — cannot be more briefly discussed than in the author’s Man. Theol. mor. II, 231, to which the reader is referred.