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The canon law of contract follows that of the civil jurisdiction in which canon law operates. (Latin contractus; Old French contract; Modern French contrat; Italian contratto).
Sometimes canon law makes the civil law (the law of civil society) its own, giving it the same effect in canon law as if it had actually been promulgated by canonical legislators, subject to the proviso that such civil law does not contravene divine law. [1] This should be considered more than "a mere recognition" of secular law; such secular law "is made into canon law." [1]
Contract law is an area of civil jurisprudence which the 1983 Code "canonizes". [1] If a contract is valid in civil law, it is valid in canon law also. [1] If a contract is rendered invalid by civil law, it is thereby rendered invalid in canon law as well. [1]
The 1983 Code of Canon Law, also called the Johanno-Pauline Code, is the "fundamental body of ecclesiastical laws for the Latin Church". It is the second and current comprehensive codification of canonical legislation for the Latin Church sui iuris of the Catholic Church. It was promulgated on 25 January 1983 by John Paul II and took legal effect on the First Sunday of Advent 1983. It replaced the 1917 Code of Canon Law, promulgated by Benedict XV on 27 May 1917.
Canon 1290: Without prejudice to Can. 1547, whatever the local civil law decrees about contracts, both generally and specifically, and about the voiding of contracts, is to be observed regarding goods which are subject to the power of governance of the Church, and with the same effect, provided that the civil law is not contrary to divine law, and that canon law does not provide otherwise. [2]
Prior to the 1917 Code, canon law required that the Roman law of obligations be observed when ecclesiastical moral persons (termed "juridic persons" in the 1983 Code, except for the Holy See and the Catholic Church as such [3] ) entered into contracts. [4] Canon 1529 of the 1917 Code made a shift regarding contract law, recognizing the civil law binding in the particular territory in which a contract was made as binding in canon law as well (with certain exceptions). [4]
The 1917 Code of Canon Law, also referred to as the Pio-Benedictine Code, was the first official comprehensive codification of Latin canon law. It was promulgated on 27 May 1917 and took legal effect on 19 May 1918. It was in force until the 1983 Code of Canon Law took legal effect and abrogated it on 27 November 1983. It has been described as "the greatest revolution in canon law since the time of Gratian".
Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables, to the Corpus Juris Civilis ordered by Eastern Roman Emperor Justinian I. Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law.
In the canon law of the Catholic Church, a person is a subject of certain legal rights and obligations.
The legal capacity of physical and juridic persons to contract comes from canon law itself, however, and not from civil law, [4] even though the provisions of the civil contract law are observed in canon law with the same effects. [4]
Canon law, therefore, cannot be said to have a universal contractual law. [4]
The canonical and moralist doctrine on this subject is a development of that contained in the Roman civil law. In Roman law a mere agreement between two parties to give, do, or refrain from doing something was a nude pact (pactum nudum) which gave rise to no civil obligation, and no action lay to enforce it. It needed to be clothed in some investitive fact which the law recognized in order to give rise to a civil obligation which should be enforced at law. Not that the nude pact was considered to be destitute of all binding force; it gave rise to a natural obligation, and it might afford ground for a legal exception. A man of honour would keep his engagements even if he knew that the law could not be invoked to compel him to do so. Moral theology, being the science of Christian conduct, could not be satisfied with the mere legal view of the effect of an agreement. If the agreement had all other requisites for a valid contract, moral theology must necessarily consider it to be binding, even though it was a nude pact and could not be enforced in the courts of law. Canon law made this moral attitude its own. In the Decretals of Gregory IX it is expressly laid down that pacts, however nude, must be kept, and that a strenuous endeavour must be made to put in execution what one has promised. It thus came to pass that nude pacts could be enforced in the Christian courts, and the Church's legislation served eventually to break down the rigid formalism of Roman law, and to prepare the way for the more equitable law of contract which all Christian nations now possess.
In the canonical and moral doctrine there is hardly room for the distinction between a nude pact, or mere agreement, and a contract. The Roman jurist's definition of the former is frequently used by canonists to define contract. They say that a contract is the consent of two or more persons to the same proposal; or, bringing out a little more definitely the effect and object of a contract, they define it to be an agreement by which two or more persons mutually bind themselves to give, do, or abstain from something.
From the moralist's point of view, then, every agreement seriously entered into by those who are capable of contracting with reference to some lawful object is a contract, whether such agreement can be enforced in the civil courts or not. The intention of the parties is looked at, and if they seriously intended to bind themselves, there is a contractual relation between them.
This doctrine, however, gives rise to a question of some importance. The Church fully admits and defends the right of the State to make laws for the temporal well-being of its citizens. All States require certain formalities for the validity of certain actions. Last wills and testaments are a familiar example, and although they are not strictly contracts, yet the principle is the same and they will serve for an example of what is meant. A deed, the only formal contract of English law, is another example.
A will destitute of the requisite formalities is null and void at law; but what is the effect of such a voiding law in the forum of conscience? This question has been much debated among moralists.
Some have maintained that such a law is binding in the internal as well as in the external forum, so that a formal contract, destitute of the formalities required by law, is null and void in conscience as it is in law.
Others adopted the contrary opinion, and held that the want of formality only affected the external forum of civil law, and left intact the natural obligation arising from a contract.
The common opinion takes a middle course. It holds that the want of formality, though it makes the contract void in the eyes of the law, renders it only voidable in the forum of conscience; so that, until one of the parties moves to set the contract aside, it remains valid, and anyone deriving benefit under it may enjoy his benefit in peace. If, however, the party interested moves to set it aside, and does so effectively by having recourse to the court of law if necessary, both must then abide by the law which makes the contract void and of no effect.
Annulment is a legal procedure within secular and religious legal systems for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place. In legal terminology, an annulment makes a void marriage or a voidable marriage null.
The Bürgerliches Gesetzbuch, abbreviated BGB, is the civil code of Germany. In development since 1881, it became effective on January 1, 1900, and was considered a massive and groundbreaking project.
In the canon law of the Catholic Church, a distinction is made between the internal forum, where an act of governance is made without publicity, and the external forum, where the act is public and verifiable. In canon law, internal forum, the realm of conscience, is contrasted with the external or outward forum; thus, a marriage might be null and void in the internal forum, but binding outwardly, i.e.,in the external forum, for want of judicial proof to the contrary.
Guarantee is a legal term more comprehensive and of higher import than either warranty or "security". It most commonly designates a private transaction by means of which one person, to obtain some trust, confidence or credit for another, engages to be answerable for him. It may also designate a treaty through which claims, rights or possessions are secured. It is to be differentiated from the colloquial "personal guarantee" in that a Guarantee is a legal concept which produces an economic effect. A personal guarantee by contrast is often used to refer to a promise made by an individual which is supported by, or assured through, the word of the individual. In the same way, a guarantee produces a legal effect wherein one party affirms the promise of another by promising to themselves pay if default occurs.
Joint wills and mutual wills are closely related terms used in the law of wills to describe two types of testamentary writing that may be executed by a married couple to ensure that their property is disposed of identically. Neither should be confused with mirror wills which means two separate, identical wills, which may or may not also be mutual wills.
The canon law of the Catholic Church is the system of laws and legal principles made and enforced by the hierarchical authorities of the Catholic Church to regulate its external organization and government and to order and direct the activities of Catholics toward the mission of the Church. It was the first modern Western legal system and is the oldest continuously functioning legal system in the West, while the unique traditions of Oriental canon law govern the 23 Eastern Catholic particular churches sui iuris.
In the Catholic Church, a declaration of nullity, commonly called an annulment and less commonly a decree of nullity, is a judgment on the part of an ecclesiastical tribunal determining that a marriage was invalidly contracted or, less frequently, a judgment determining that ordination was invalidly conferred.
A void marriage is a marriage which is unlawful or invalid under the laws of the jurisdiction where it is entered. A void marriage is "one that is void and invalid from its beginning. It is as though the marriage never existed and it requires no formality to terminate."
Regarding the canon law of the Catholic Church, canonists provide and obey rules for the interpretation and acceptation of words, in order that legislation is correctly understood and the extent of its obligation is determined.
A contract is a legally-binding agreement which recognises and governs the rights and duties of the parties to the agreement. A contract is legally enforceable because it meets the requirements and approval of the law. An agreement typically involves the exchange of goods, services, money, or promises of any of those. In the event of breach of contract, the law awards the injured party access to legal remedies such as damages and cancellation.
The title-transfer theory of contract (TTToC) is a legal interpretation of contracts developed by economist Murray Rothbard and jurist Williamson Evers. The theory interprets all contractual obligations in terms of property rights, viewing a contract as a bundle of title transfers. The TTToC stands in oppositions to most mainstream contract theories which view contractual obligations as the result of a binding promise. Proponents of the approach often claim it is superior on grounds of both consistency and ethical considerations. The TTToC is often supported by libertarians.
The Indian Contract Act, 1872 prescribes the law relating to contracts in India. The Act is based on the principles of English Common Law. It is applicable to all the states of India except the state of Jammu and Kashmir. It determines the circumstances in which promises made by the parties to a contract shall be legally binding. Under Section 2(h), the Indian Contract Act defines a contract as an agreement which is enforceable by law.
Canon 1398 is a rule of canon law of the Catholic Church which declares that "a person who procures a completed abortion incurs a latae sententiae (automatic) excommunication."
Consensu or obligatio consensu or obligatio consensu contracta or obligations ex consensu or contractus ex consensu or contracts consensu or consensual contracts or obligations by consent are, in Roman law, those contracts which do not require formalities.
South African contract law is ‘essentially a modernised version of the Roman-Dutch law of contract’, which is itself rooted in canon and Roman laws. In the broadest definition, a contract is an agreement two or more parties enter into with the serious intention of creating a legal obligation. Contract law provides a legal framework within which persons can transact business and exchange resources, secure in the knowledge that the law will uphold their agreements and, if necessary, enforce them. The law of contract underpins private enterprise in South Africa and regulates it in the interest of fair dealing.
Promulgation in the canon law of the Catholic Church is the publication of a law by which it is made known publicly, and is required by canon law for the law to obtain legal effect. Universal laws are promulgated when they are published in Acta Apostolicae Sedis, and unless specified to the contrary, obtain legal force three months after promulgation. Particular laws are promulgated in various ways but by default take effect one month after promulgation.
For the treatise on time written by Bede the Venerable, see The Reckoning of Time.
The jurisprudence of Catholic canon law is the complex of legal theory, traditions, and interpretative principles of Catholic canon law. In the Latin Church, the jurisprudence of canon law was founded by Gratian in the 1140s with his Decretum. In the Oriental canon law of the Eastern Catholic Churches, Photios holds a place similar to that of Gratian for the West.
For a look at Presumption in other jurisdictions, see Presumption.
