(a) Thus, Canon Law in certain contracts (e.g., engagement of marriage, marriage, alienation of church property) requires specified solemnities under pain of nullity of act.
(b) Civil law in the United States designates various formalities to be used in transfers of property (e.g., that a deed for real estate be written, signed, sealed and attested; that a gift be made by delivery or equivalent act; that certain contracts be in writing; that no contract be of worth unless it be for a consideration, or else be on paper with seal attached). The law has the right to annul informal contracts _ipso facto_, but whether this is the intention in modern codes is a matter of dispute. The practical rule to be followed, then, is that the possessor is to be favored, unless there has been a court decision against his claim. It should be noted, too, that some legal conditions, such as valuable consideration in simple contracts, are required for enforceability, not for validity, and hence a good contract wanting some such condition, though indefensible before the courts, is obligatory in conscience.
1886. The Accidentals of a Contract.--(a) Bond is the agreement by the obligor of a contract to pay a certain forfeit to the obligee, if the former does not perform his contract or does not perform it before a certain date. This agreement obliges in conscience, if the promise was seriously made, if the penalty is not excessive, and if the breach of agreement is culpable.
(b) Oaths added to contracts have moral effects on the contracts themselves and also on acts contrary to them. As regards the contract, an oath adds the obligation of religion to that of justice, if the contract is valid and irrescindable; and the common opinion is that it strengthens a contract extrinsically, that is, it induces an obligation of religion to keep the promise, if the oath is invalid or rescindable by positive law only and in favor of a private privilege; but an oath in no way strengthens a contract that is naturally invalid or rescindable positively on account of the public good. As regards acts that are contrary to an invalid or rescindable contract that was confirmed by a valid oath, they are sinful, as being irreligious, but not invalid nor unjust (see 2260).
(c) Conditions are accidents or circ.u.mstances so added to a contract that the consent or dissent is made dependent upon their existence or fulfillment. An immoral condition, if unfulfilled, takes from the contract all obligation, exception being made for separable parts that are not affected by the immoral clause; but if it has been fulfilled, it seems that there is a moral obligation to pay the consideration promised (see 1878 d).
(d) Modes are accidents or circ.u.mstances so added to a contract as to qualify the rights or duties of the contractants, or the purpose, matter or time of the contract, but not so as to make the consent dependent on the fulfillment of the thing designated. Thus, if t.i.tus leaves money to Balbus, chiefly because Balbus is his nephew, and secondarily because he imposes on Balbus the obligation of using the money for his education, Balbus in accepting the money accepts also the obligation, but the gift does not lapse if the obligation is not complied with. If a donor adds an immoral mode to his gift (e.g., that the donee use in immoral ways the money left him), this purpose is regarded as non-existent and the gift stands in spite of it. If an agent violates a mode (e.g., he pays $1001 when he was directed to pay $1000) but not a condition (e.g., that he purchase land and not a house), the contract stands.
1887. The Moral Obligation of Entering into a Contract.--(a) There is a duty of justice when one is under public or private engagement to make a contract. Examples are a merchant who opens a store for public patronage, or an auctioneer who holds a sale before invited patrons, or an owner who makes with another person a contract to sell, or a man and woman who make solemn espousals.
(b) There is a duty of charity when a neighbor is in such need that he deserves to be helped, for example, by a loan or by a.s.sistance to make a loan: "From him that would borrow of thee turn not away" (Matt., v.
42); "A good man is surety for his neighbor" (Ecclus., xxix. 18).
1888. Every valid contract obliges to faithful performance as a duty of conscience, even though it be unenforceable and without civil obligation. We shall discuss the properties of this obligation.
(a) Quality of the Obligation.--Onerous contracts oblige in virtue of commutative justice and under pain of rest.i.tution; gratuitous contracts oblige according to some from justice, according to others from fidelity, according to others from fidelity or justice as the obligor intends (see 1692, 1753). In practice one may follow the rule that a liberal promise or wager or other gratuitous contract obliges only from fidelity with no duty of rest.i.tution, unless it be certain that the promisor intended to bind himself in justice. One is responsible, however, for damages resultant on breach of promise. The obligation seems to be one of legal justice only when the thing promised is something on which a pecuniary value cannot be set and consists in compliance with law (e.g., in suretyship or bail for keeping the peace or appearing in court).
(b) Quant.i.ty of Obligation.--In onerous contracts the degree of obligation depends on the importance of the subject matter, and hence it is a mortal sin to violate a contract in which a grave right is concerned; in gratuitous contracts the degree of obligation depends entirely, according to some, on the will of the person who liberally binds himself, but others hold that it depends on the importance of the subject-matter.
(c) Subjects of Obligation.--The parties to the contracts and those who take their place (e.g., heirs, executors) or who are responsible for the contract (e.g., those who commanded the agreement) are morally bound to fulfill the agreement, while others are bound not to interfere with the fulfillment.
(d) Objects of Obligation.--Directly, there is the duty of observing what is contained explicitly or implicitly in the agreement, and indirectly of making good any losses caused by breach of contract. A rescindable contract obliges until it is lawfully disaffirmed by the party who has the right to break it; a quasi-contract imposes on the party who has benefited by the services or expenses of another a moral obligation of making compensation. If a contract transfers ownership (e.g., contract of sale pa.s.sing t.i.tle to buyer, _mutuum_), the transferee must bear the risks and expenses of the thing transferred; but if it does not transfer ownership (e.g., contract to sell, _commodatum_) or has not yet done so (e.g., contract of sale in which t.i.tle will pa.s.s later, on delivery or payment), the transferer has the risk and expense (see 1796).
1889. Cessation of Obligation.--The obligation of a contract ceases in various ways: (a) by action of the contractants, as when a promisee renounces his right, or each of the parties to a promise has made a gratuitous promise in favor of the other and one refuses to keep his word; (b) by action of law, for example, by prescription, by annulment; (c) by impossibility, as when a thing freely promised has become unlawful or useless, or when the donee of a gift _mortis caus_ dies before the donor.
1890. Theft.--Theft is the secret taking of what belongs to another, with the intention of appropriating it to oneself, against the reasonable wishes of the owner.
(a) It is a taking, that is, a carrying away of goods. But theft also includes the receiving or keeping of property, since the harm done is the same as when the goods are carried away. Hence, he who does not restore borrowed or deposited or found objects, or who does not pay back a loan, when he could and should, is a thief.
(b) It is a secret taking, that is, the property is taken away without the knowledge of the owner or lawful possessor, even though he be present. In this respect theft differs from robbery.
(c) It is the taking of property. This includes not only corporeal things (e.g., books, money, jewelry, clothing), but also incorporeal things (e.g., patents, trademarks, copyrights), and even persons if they are looked on as possessions. Hence, plagiarism or infringement of copyright or man-stealing or kidnapping (i.e., the carrying off of another"s slave or child) are forms of theft.
(d) It is the taking of property that belongs to another, that is, of goods of which another person is the owner, or lawful possessor as usufructuary, guardian, depositary, etc. Hence, one can steal from oneself by taking one"s goods by stealth from the bailee with the design of charging him for their value or of depriving him of their use to which he has a right.
(e) It is the taking away of goods with the intention of appropriating them to one"s own possession, use or enjoyment to the exclusion of the rightful owner. Hence, strictly speaking, it is not theft to carry away property with the intention of borrowing it for a time or of destroying it; but these are acts of unlawful possession or of unlawful damage. It is obligatory to take an object from another, if this is necessary to prevent the commission of a crime (e.g., to take away and hide the gun with which another intends to kill).
(f) It is against the wishes of the owner. This refers to the substance (that is, the conversion of the property to one"s use), not to the mode (that is, secrecy with which it is done). Hence, if the owner is unwilling that the property be taken, he who takes it is guilty of theft; if the owner is not unwilling that it be taken, but is unwilling that it be taken without his knowledge, he who takes it in this way sins at least venially, but is not guilty of theft in the strict sense.
(g) It is against the reasonable wishes of the owner or possessor; for no injury is done if he does or should consent to the loss. The owner does consent if the person who takes the goods is acting according to a general and recognized custom (e.g., when a servant takes things left over from her employer"s table, which it is certain the latter does not wish to keep); the owner should consent, if justice forbids that he prevent the taking (e.g., when a starving man is taking food from one who has plenty), or if domestic duty commands that he should give the thing taken (e.g., when a wife takes from her husband"s pockets the needed money he denies his family, for a wife and family have the right to receive from the head of the house support according to their station and means). But the owner is not bound to consent to the loss of his goods from the mere fact that he misuses them to his own spiritual disadvantage, or owes them in charity to the taker. Hence, it is theft to take a flask from the pocket of one who drinks too much, or to steal a book from one who is harmed by reading it, or to filch money from a rich man because one is poor and he will not give an alms.
1891. Unauthorized Use of Another"s Funds.--What is the guilt of one who uses for his own purposes the money of another entrusted to him for other purposes?
(a) There is no theft, for it is supposed that the purpose of the user is to make only a temporary loan of the money.
(b) There is an act of injustice, if the permission of the owner cannot be presumed; for the rights of an owner are violated when one converts his property to uses displeasing to him. Thus, if the prospect is that the owner may never get his money back or that he will lose profits by the use made of it, the guilt of unjust damage is incurred, at least in intention (e.g., a depositary uses a deposit to buy stocks on margin, or a company official makes an unauthorized loan instead of investing the amount for the company"s benefit).
(c) There is no sin, if the permission of the owner can be reasonably presumed; for to him who willingly consents no injury is done. Thus, if one who is managing the funds of another has the chance to make a large amount of money today by using those funds for himself but cannot get in touch with the owner, the latter"s consent can be presumed, if he will suffer no present loss and it is absolutely certain that his funds will be returned tomorrow. But on account of the risk that is ordinarily present, this case would be rare.
1892. Comparison of Theft and Robbery.--(a) They differ in species, for theft contains injustice to an owner in his property, but robbery, which is an unjust and violent taking of what belongs to another, contains injustice both to property and to person. The unwillingness of the owner in the case of theft is due to his ignorance of his loss; in the case of robbery it is due to intimidation or force. (b) They differ in gravity, robbery being according to its nature the more serious kind of stealing; for the robber does a twofold injury, and the owner"s unwillingness to be robbed is greater.
1893. Kinds of Theft and Robbery.--(a) There are many varieties of theft, the differences arising from the circ.u.mstances in which the stealing is done. Thus, he who steals from the Church is guilty of sacrilegious theft; he who uses the public goods for his private ends commits peculation; he who takes from his parents practises domestic thievery.
(b) There are also many ways in which robbery or rapine is committed.
The following persons are guilty of robbery: pirates, bandits, highwaymen, burglars, usurers, profiteers, venal judges, unmerciful creditors who deprive debtors of necessaries, debtors who escape payment by fraudulent bankruptcy, profiteers, laborers who extort unjust wages, those who force subordinates to contribute graft, and blackmailers. Two forms of robbery are described in Scripture as sins that cry to heaven for justice, namely, defrauding laborers of their wages (James, v. 4) and oppression of the poor, which happens especially when one denies their rights to those who are unable to defend them. The following persons are also cla.s.sed as thieves: pickpockets, spongers, smugglers, forgers, counterfeiters, embezzlers, and those who misappropriate funds entrusted to them.
In the civil law theft is also known as larceny, and is defined as the unlawful severance of personal property from the possession of its owner. The following kinds of larceny are distinguished:
(a) in respect to the manner of perpetration, a theft is larceny when the property is taken from the possession of the owner by one who had no possession, whether the latter be a stranger or a custodian; it is embezzlement when committed by one upon whom the owner had conferred temporary possession on account of a fiduciary relationship between them; it is false pretence when committed by one who procures permanent possession or ownership through fraudulent representations;
(b) In respect to the matter or quant.i.ty stolen, theft is called pet.i.t larceny when it falls below a certain sum fixed by the law, grand larceny when it exceeds that sum.
1894. The Sinfulness of Theft.--(a) From its nature theft--and, much more, robbery--is a grave sin; for it is opposed to the virtues of charity and justice, it is expressly forbidden in the Seventh Commandment ("Thou shalt not steal," Exod., xx. 15), and it excludes from eternal life ("Neither thieves nor extortioners shall possess the kingdom of G.o.d," I Cor., vi. 10). The thief attacks the sacred right of the individual to his property, and imperils the peace and stability of society itself. Theft is a grave sin, even when it is committed by little and little, as happens when a merchant gives underweight habitually: "A deceitful balance is an abomination to the Lord" (Prov., xi. 1). The proposition that rest.i.tution for a large sum taken in parts at different times is not a grave duty was condemned by Innocent XI (Denzinger, 1188). Canonical penalties for theft include exclusion from acts and offices, censures, and deposition (Canon 2354).
(b) From the imperfection of the act theft may be only a venial sin, for example, when the thief is a kleptomaniac and steals without advertence, or when he is invincibly ignorant that the thing taken is not his own or is of great value, or from the smallness of the matter involved (e.g., when the thing taken has little value, or the owner is opposed rather to the stealthy manner of taking than to the taking, or is only slightly unwilling to lose the goods).
1895. Theft of a small amount may be a mortal sin (see 187). This may happen: (a) on account of the internal or subjective circ.u.mstances, as when the thief intends to steal as much as he can or a large amount here and now, or when he intends to steal a small amount here and new but to keep this up every day until he has stolen a considerable amount, or when a child steals a small sum from its parents and falsely thinks that the theft is gravely sinful in itself; (b) on account of external or objective circ.u.mstances, as when the amount taken today is small but const.i.tutes, with amounts previously taken, a large sum, or when the thief foresees serious consequences from his act (e.g., that the person from whom the goods are taken will fall under suspicion and be discharged or arrested). It should be noted, however, that the consequences of the theft do not necessarily make the sin grave precisely as it is a sin of theft (e.g., in the case just given the theft was a venial sin, but the unjust damage was a mortal sin), or even precisely as it is a sin of injustice (e.g., if one steals a picture of small value, foreseeing that the owner will be afflicted beyond measure at the loss, the sin against justice is small, but the sin against charity is mortal).
1896. The determination of the amount that const.i.tutes grave matter in theft or robbery (or in unjust damage) is a very difficult task, because the factors upon which the injury depends are to some extent doubtful and vary in particular cases. Hence, there is a great diversity of opinion among moralists on this subject, and it will frequently be uncertain in an individual case whether a theft is mortally or only venially sinful in itself. But on account of the spiritual and temporal interests that are concerned it is necessary to give at least general rules for direction that will enable one to distinguish between grave and venial theft, and to know when the duty of rest.i.tution is serious, when light.
1897. Moralists are in agreement on the following points:
(a) the standard for measuring gravity of matter is not an invariable one, but will differ according to circ.u.mstances of times and places.
Thus, money has much less purchasing power today than it had before the Civil War, and the same amount will not go so far nor last so long in the United States as in some countries of Europe. Hence, other things being equal, it is less harmful to steal the sum of $10 in 1958 than it was to steal the same sum in 1858, less harmful to steal that amount from an American than to steal its equivalent from a European;
(b) the standard for a particular country and period is to be interpreted morally, not mathematically; for it depends on the opinions or estimates of the prudent, which after all are only approximations and subject to revisions. Hence, it would be absurd to draw such a hard and fast distinction between grave and venial theft--for example, to decide from the amounts alone that he who stole $50 is certainly guilty of mortal sin and fit for h.e.l.l, while he who stole $49.99 is guilty of venial sin only and not fit for h.e.l.l. The figures given by moralists for grave matter are averages, and hence they cannot be expected to suit each individual locality or moment or injured person. But, being based on actual conditions, they are serviceable. If a sum stolen is much above or below them, they indicate truly the theological species of the sin; if it is only a little above or below them, they afford a basis for probability, or at least show that there is room for doubt.
1898. Moralists are also at one in measuring the injury of theft by the following considerations:
(a) it should be estimated by the property loss, that is, that theft should be deemed a grave sin which in view of all the circ.u.mstances and the common opinion indicts a notable loss on the owner in his property rights. This is a matter of common sense, for every one can see that it is a very different thing to steal a cent and to steal $100.
(b) it should be estimated by the personal injury, that is, by the unwillingness of the proprietor to suffer the loss. This is also clear, since the unwillingness of the proprietor is one of the ingredients of theft, as was explained above in the definition, and everyone will readily grant that an amount which would be notable if stolen from a stranger, would not be notable if stolen from an indulgent parent.
1899. There are two opinions about the estimation of the property loss.
(a) Thus, an older opinion held that the standard should be an absolute one, that is, that the loss should be determined independently of the wealth or poverty of the person injured, since the financial situation of this person is a purely extrinsic circ.u.mstance of the theft. The rich man has just as much right to his $10 as the poor man has to his $10, and it is therefore just as injurious to deprive the former of the sum as it is to deprive the latter. What is a mortal theft in one case is a mortal theft in every case.
(b) A later opinion, which seems to be the common one today, distinguishes two standards: an absolute one, which fixes one highest amount that is always grave matter on account of its magnitude, however wealthy the loser may be, and a relative one, which proposes a scale of lower amounts that are grave matter on account of the economic condition of the persons stolen from. It is argued that a relative standard should be set up, since the injury of theft is certainly felt more by those who have less means to fall back on; and that an absolute standard is also necessary, since without it the property of the rich would not be sufficiently safeguarded and the peace and order of society would be endangered.
1900. Opinions on the Amounts that Are Grave Matter.--(a) The older opinion, according to which there is only one invariable standard for all cla.s.ses and conditions, regards as grave matter the amount necessary to support for a day, according to his state and obligations, a man whose financial condition is midway between wealth and poverty; for the loss of a day"s support is usually looked on as a serious loss, and a standard for all should be taken from the average. This daily support amount may be reckoned from the amount of daily wages or income. In the United States in 1955 the average daily wage was between $14 and $15, but, if only skilled laborers or those who are in moderately prosperous circ.u.mstances are considered, the average would be considerable higher. Perhaps it would range between $25 and $30. Or if we strike a medium between the highest and the lowest figures given by the advocates of two standards, we should arrive at approximately $30 or $35.
(b) The common opinion today fixes the absolute amount, which is grave matter even when theft is from the wealthiest person or society as the equivalent of a week"s wages for the head of a family living in fairly good circ.u.mstances but dependent upon his work for its support. As to the actual amount, authors differ. Thus, Father Francis Connell, C.SS.R., wrote in 1945 in _American Ecclesiastical Review_ (p. 69): "To lay down a general norm in view of actual conditions and value of money, it would seem that the actual sum for grave theft would be about $40." In 1946, writing in the _Homiletic and Pastoral Review_ (p.
694), Father Joseph Donovan, C.M., stated: "It is hard to see how less than $100 could be absolutely grave with the chances of a higher amount being probably so."[*] This sum was criticized as being excessive and did not meet with ready acceptance by all moral theologians. On page 127 of the third printing of his _Outlines of Moral Theology_ (1955), Father Francis J. Connell, C.SS.R., suggested $75 as a reasonable absolute sum considering the value of money at the time, and, as a practical norm, the sum has been acceptable to most confessors and authors. Relatively grave matter corresponds with the amount needed to support a worker and his family for a day or, according to some, the amount required for the support of the worker alone. Relatively grave matter would range from about $5 from a poor person on relief, through $20-$35 from skilled laborers and persons in comfortable circ.u.mstances, to $75 from the wealthy. The latter sum const.i.tutes the absolute standard. For a general norm to establish relatively grave matter, then, an acceptable procedure is to take the daily earning power or expenses of those who do not belong to the wealthiest cla.s.ses, but who just barely make a living by reason of their work or charity.
[*] This is not to suggest that the authors cited hold to the "week"s pay norm" as the standard. Father Connell, for example, defines the absolute as "a sum which is so large that society would suffer much if it could be stolen without grave sin even from the richest or from a wealthy corporation" (op. cit., pp. 127-128). The interest in citing the authors is to show the precise sums suggested by them at various times regardless of the norm used in arriving at the particular amount suggested.