In Catholic canon law, the canon law of contract follows that of the civil jurisdiction in which Catholic canon law operates (Latin contractus; Old French contract; Modern French contrat; Italian contratto).
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In Catholic canon law, the canon law of contract follows that of the civil jurisdiction in which Catholic 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 and canon law does not provide otherwise. 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". If a contract is valid in civil law, it is valid in canon law also. If a contract is rendered invalid by civil law, it is thereby rendered invalid in canon law as well. [1]
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. 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 legal capacity of physical and juridic persons to contract comes from canon law itself, however, and not from civil law, 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.
Canon law is a set of ordinances and regulations made by ecclesiastical authority for the government of a Christian organization or church and its members. It is the internal ecclesiastical law, or operational policy, governing the Catholic Church, the Eastern Orthodox and Oriental Orthodox churches, and the individual national churches within the Anglican Communion. The way that such church law is legislated, interpreted and at times adjudicated varies widely among these four bodies of churches. In all three traditions, a canon was originally a rule adopted by a church council; these canons formed the foundation of canon law.
A prenuptial agreement, antenuptial agreement, or premarital agreement, is a written contract entered into by a couple prior to marriage or a civil union that enables them to select and control many of the legal rights they acquire upon marrying, and what happens when their marriage eventually ends by death or divorce. Couples enter into a written prenuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property, retirement benefits, savings, and the right to seek alimony with agreed-upon terms that provide certainty and clarify their marital rights. A premarital agreement may also contain waivers of a surviving spouse's right to claim an elective share of the estate of the deceased spouse.
The Bürgerliches Gesetzbuch, abbreviated BGB, is the civil code of Germany. In development since 1881, it became effective on 1 January 1900, and was considered a massive and groundbreaking project.
A disclaimer is generally any statement intended to specify or delimit the scope of rights and obligations that may be exercised and enforced by parties in a legally recognized relationship. In contrast to other terms for legally operative language, the term disclaimer usually implies situations that involve some level of uncertainty, waiver, or risk.
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.
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.
In the canon law of the Catholic Church, an impediment is a legal obstacle that prevents a sacrament from being performed either validly or licitly or both. The term is used most frequently in relationship to the sacraments of Marriage and Holy Orders. Some canonical impediments can be dispensed by the competent authority as defined in Catholic canon law.
In the Catholic Church, a declaration of nullity, commonly called an annulment and less commonly a decree of nullity, and by its detractors, a "Catholic divorce", is an ecclesiastical tribunal determination and judgment that a marriage was invalidly contracted or, less frequently, a judgment that ordination was invalidly conferred.
Canadian contract law is composed of two parallel systems: a common law framework outside Québec and a civil law framework within Québec. Outside Québec, Canadian contract law is derived from English contract law, though it has developed distinctly since Canadian Confederation in 1867. While Québecois contract law was originally derived from that which existed in France at the time of Québec's annexation into the British Empire, it was overhauled and codified first in the Civil Code of Lower Canada and later in the current Civil Code of Quebec, which codifies most elements of contract law as part of its provisions on the broader law of obligations. Individual common law provinces have codified certain contractual rules in a Sale of Goods Act, resembling equivalent statutes elsewhere in the Commonwealth. As most aspects of contract law in Canada are the subject of provincial jurisdiction under the Canadian Constitution, contract law may differ even between the country's common law provinces and territories. Conversely; as the law regarding bills of exchange and promissory notes, trade and commerce, maritime law, and banking among other related areas is governed by federal law under Section 91 of the Constitution Act, 1867; aspects of contract law pertaining to these topics are harmonised between Québec and the common law provinces.
Consideration is a concept of English common law and is a necessity for simple contracts but not for special contracts. The concept has been adopted by other common law jurisdictions.
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 enforceable agreement that creates, defines, and governs mutual rights and obligations among its parties. A contract typically involves the transfer of goods, services, money, or a promise to transfer any of those at a future date. In the event of a breach of contract, the injured party may seek judicial remedies such as damages or rescission. Contract law, the field of the law of obligations concerned with contracts, is based on the principle that agreements must be honoured.
The Indian Contract Act, 1872 prescribes the law relating to contracts in India and is the key act regulating Indian contract law. The Act is based on the principles of English Common Law. It is applicable to all the states of India. 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.
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.
In the canon law of the Catholic Church, excommunication, the principal and severest censure, is a penalty that excludes the guilty Catholic of all participation in church life. Being a penalty, it presupposes guilt and being the most serious penalty that the Catholic Church can nowadays inflict, it supposes a grave offense. The excommunicated person is basically considered as an exile from the Church, for a time at least, in the sight of ecclesiastical authority.
South African contract law is "essentially a modernized version of the Roman-Dutch law of contract", and is 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.
In the canon law of the Catholic Church, a person is a subject of certain legal rights and obligations. Persons may be distinguished between physical and juridic persons. Juridic persons may be distinguished as collegial or non-collegial, and public or private juridical persons. The Holy See and the Catholic Church as such are not juridic persons, since juridic persons are created by ecclesiastical law. Rather, they are moral persons by divine law.
Promulgation in the Catholiccanon law 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.
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 Eastern Catholic canon law of the Eastern Catholic Churches, Photios holds a place similar to that of Gratian for the West.
Presumption in the canon law of the Catholic Church is a term signifying a reasonable conjecture concerning something doubtful, drawn from arguments and appearances, which by the force of circumstances can be accepted as a proof. It is on this presumption our common adage is based: "Possession is nine points of the law". Presumption has its place in canon law only when positive proofs are wanting, and yet the formulation of some judgment is necessary. It is never in itself an absolute proof, as it only presumes that something is true. Canonists divide presumption into:
This article incorporates text from a publication now in the public domain : Thomas Slater & Charles William Sloane (1913). "Contract". In Herbermann, Charles (ed.). Catholic Encyclopedia . New York: Robert Appleton Company.