Question III: How error, or fraud, vitiates a contract

It is to be noted from St. Bonaventure, book 4, distinction 30, question 1, and doubt 3, that error concerning a contract can be twofold.

The first concerns the substance of the thing; the second, its accidents. Error concerning the substance of the thing arises, for example, when you wish to buy, and you ask for a gold necklace, and you receive one of brass; or if you ask for a diamond, and you are given a piece of crystal. Error concerning accidents occurs if you wish and ask for gilded copper, and it is given to you, but spotted; or if you ask for a horse, and you are given a defective one.

Yet the Saintly Doctor admonishes on these points at article 4, that if you ask for a necklace in general, and name it gold, while not knowing the price of gold, nor what gold is, and copper is given to you at a fitting price, there will be no substantial error, because your intention is only about a metal necklace, but you name it gold, speaking like a magpie. Say the same also of error through deceit.

I assert first that error, or deceit, concerning the substance of the thing contracted about renders the contract null by natural law, if it is a preceding error, or deceit, giving cause to the contract, which being removed the contract would not have been made.

It is proved first by Cardinal Bonaventure, in the place cited, on the first foundation: consent being taken away, the contract is taken away. It is confirmed by the Saintly Doctor; for we are not held to will what we do not know, and much less something different from what we do know; as if we want gold, and copper is given. Fagundez uses this argument, chapter 3.

It is proved secondly from the Saintly Doctor. The voluntary is that whose moving principle is within, in the one willing, knowing the particulars: Therefore the involuntary is what comes to us from without against our knowledge, through error.

It is proved thirdly from the Saintly Doctor. No less involuntary is what is done through violence than what is done through error. And it is confirmed from cause 29, question 1, where it is defined.

It is confirmed by the Saintly Doctor in the body of the text, with the same arguments, adding the authority of Cardinal Augustine, book 2 of the Trinity, chapter 1, and tractate 96 on John, where he says: We can love what we see: what we do not know, by no means.

This assertion is received with great applause by St. Thomas, II II, question 77, article 3, Molina, tractate 2 on justice, disputation 259, and the Thomists there, Lessius, volume 1, book 2, chapter 17, doubt 5, number 27, Sanchez, book 7 on marriage, disputation 18, number 12, Bonacina on contracts in general, disputation 3, question 1, point 2, § 1, and others among these; and Tanner says, disputation 4, question 7, doubt 1, number 11, that it is the opinion of all.

Fagundez nevertheless adds, number 6, with Sálaza on sales, doubt 35, that there can be error concerning the substance, and yet the contract still hold, as if alchemic gold were of the same perfection as gold taken from veins, and that were given to you for this; or if one slave girl were bought and given for another of the same quality, or from an apothecary one medicine of equal virtue in place of the one ordered by the physician. But these either do not vary the substance, and if they do, they break the contract; as if I wished that particular slave girl by number, and would not buy another, or that medicine. In the matter of marriage, however, it is certain, as these very men concede, that it is invalid.

I assert secondly, with Cardinal Bonaventure, whom Fagundez follows, number 9, Suárez, tractate 1 on laws, book 1, chapter 11, number 6, Sanchez, book 1 on marriage, disputation 64, Molina, tractate 2, disputation 272, Navarre, Latin Summa, chapter 2, number 27, and commonly, that if the error concerns accidents which gravely alter the judgment of the thing, and which can be reduced, by the judgment of the prudent, to the substance of the thing, the contract is null.

The reason is, because the consent necessary is supposed absent, as above.

Hence I conclude, with St. Bonaventure, book 4, distinction 30, doubt 6, that if the error concerns virtue and morals, for instance if she be dishonest whom I judged honest, these are circumstances greatly to be weighed, and Sanchez says they can break betrothals.

I assert thirdly: if the error concerns circumstances of lesser moment, in the judgment of the prudent, then even if he would not contract if he knew, it is probable that it does not void the contract by natural law. So Molina, tractate 2, disputation 352, Rebello, book 1, question 6, section 2, number 11, and book 9, question 1, Bonacina on contracts, disputation 3, article 1, point 2, Mantica on ambiguous agreements, book 1, title 9, Aegidius Lusitanus on the law "ex hoc iure," chapter 8, number 95.

Therefore if you contracted with her whom you thought rich, noble, beautiful, and you found her ignoble, poor, bleary-eyed; the contract stands, because these do not greatly vary in this contract.

The reason is also, because that error, or deceit, is indeed a cause of the contract; yet it still has its own object, on which it falls, that is, the substance of the thing, as Pontius says, book 4 on marriage, chapter 21.

In another way Casas defines it, tractate 19, disputation 1, section 3, number 35, with Castro Palau, volume 3, tractate 14, disputation 2, point 5. Whenever error, or deceit, is only a causative cause, but not the object of the contract, it will not be null by natural law; but if it is an object expressly declared, such a contract will be null, but not if only implicitly; because then the error, or deceit, is held to be accidental, since there is still supposed an object sufficient for the being of the contract.

The Seraphic Doctor, distinction 30, doubt 3, distinguishes error concerning accidents thus, for instance concerning goods of fortune, in marriage: it can be an impulsive cause in estimation only, and in hope, in such a way that the consent falls upon the person still precisely determined, as upon the object of consent; or it can be such that consent is suspended upon the person, and under this condition it falls: I accept the person, if she is rich, and not otherwise. In the first way the Saintly Doctor says the contract is valid, because consent still has a sufficient object upon which to fall; but in the other way, since consent is absent but reserved, it will not be valid.

He ADDS, however, at question 1, error concerning accidentals in marriage, concerning condition, or servitude, because it prejudices the great good of liberty; but this is a deposit of positive law, as he explains at distinction 36, question 2.

IN the response indeed to the last, he distinguishes thus: error concerning goods of fortune, for instance concerning nobility, dignity, and other accidentals, can be twofold. First, if one errs concerning the subject of the person. Second, if concerning the properties.

Error occurs CONCERNING the subject, when the girl, knowing and recognizing the person, for instance the son of the King of England, by sight or by hearing, consents to him and not to another, and then there will be a substantial error voiding the contract of marriage. But if she does not recognize the person of the son of the King of England, but only believes that this one whom she sees has that dignity, then since she consents only to this one, the consent will be valid, even if he is not endowed with that dignity.

I ASSERT fourthly; if we speak of positive law, the most received opinion is the one teaching: if the error concerns the substance of the thing, and the accidents and substantial qualities which greatly vary the judgment, and the contract itself is made in good faith on one part, and through deceit on the other, so that the deceit gives cause to the contract, the contract is null by positive law. So Vasquez on the law of Emphyteusis, question 5, number 9, Lusitanus on the law "ex hoc iure," Digest on justice and law, chapter 8, from number 93, Bonacina on contracts, disputation 3, question 1, point 3, § 2, Gómez, volume 2, varieties, chapter 2, number 48, Fagundez, book 1, chapter 3, Bassaeus V. Contractus, Tanner, disputation 4, question 7, doubt 1. It is clear from Law 1, and from the law "sciendum," § last, Digest on the aedilitian edict, and from Law 65, title 5, Partidas 5.

It is PROVED by Cardinal Bonaventure, in the question lately adduced, from the matter of marriage, from cause 29, question 1, and from the reasons adduced for the first assertion. For what is invalid by natural law cannot be validated by positive law; otherwise positive law would be against natural law.

WHAT we have said of antecedent error, some apply also to concomitant error, not only in the contract of marriage, as when you contract with Bertha, thinking her Titia, but yet you would contract more gladly with Titia if you recognized her; but also in other contracts, as if you buy crystal, judging it a gem, but yet you would buy even if you knew it to be crystal. So Fagundez, number 7, adducing St. Thomas, I II, question 6, article 8, Bonacina on contracts, disputation 3, question 1, point 2, § 1, and on marriage, question 3, point 2, number 3.

HENCE you observe, it is disputed: whether a contract excused from deceit can be validated, the option being given by natural law to the deceived party, to stand by the contract or not, if it is reduced to equality; and both opinions are probable: I judge that it can, because by natural law the deceived party can repair the injury.

BUT by natural law the deceiver is held to stand by the contract; if the deceived party so wills, but this after the judge's sentence.

It is PROVED by Cardinal Bonaventure, book 4, distinction 17, article 2, question 2, ad 4, from cause 30, question 1, also in every forum, whether judicial, civil, or Canonical: indeed even in the forum of conscience, where it is defined that fraud and deceit ought not to avail the defrauder, law "Quoties," § "qui dolo," Digest on proofs, from the chapter "sedes Apostolica," on rescripts, the chapter "ex tenore" of the same, and the chapter "ex literis," on deceit and contempt, and finally the final law, title 2, Partidas 4, which defines, that the option must always be given to the deceived party, whether he wills or does not will to stand by the contract, which by natural law was void, in punishment of the deceit, lest he obtain advantage from his own deceit; for the whole law always resists deceit and fraud, as Fagundez notes, number 18.

There is given also to the deceived party an action against the third party who committed the deceit, law 2, Digest on proceeds and rights introduced, and every deceiver is held in conscience to restitution of damages before the judge's sentence; for deceit and fraud are of the genus of mortal sin, as Reginald shows in practice, book 25, number 125, Bonacina on contracts, disputation 3, question 1, point 2, § 2, Fagundez, number 23, from Cardinal Bonaventure in the Mirror of the Soul, chapter 2, § the second branch, and the following.