Question XII: On the rescission of a sale and purchase on account of fraud, etc.

IT MUST BE NOTED that D. Bonaventure, in the Mirror of the Soul, chapter 2, teaches that hidden injustice is often committed in contracts in many ways, namely by frauds in number, weight, and measure; in value or in quantity; by silence about a defect, or by deceiving the simplicity of a buyer, by commending a false thing with perjuries, by asserting things with execrations, by duplicity of words — all of which are against charity, and also against justice, insofar as they are directed at deceiving and damaging one's neighbor; for they give a cause to contracts which buyers would not enter into if they knew such things. Similarly, sellers often disparage merchandise, spreading reports that such goods must be reduced to a very cheap price; by disseminating letters; by ships quickly landing, laden with the same merchandise, etc. These sometimes give a cause to contracts. About these we must see what we ought to hold.

THEREFORE, FIRST, frauds and deceits concerning the substance of things, when they give a cause to the contract, render it void, as all confess. The reason is given by D. Bonaventure in 4 dist. 27, art. 2, question 2, and elsewhere in the same distinction: because fraud and deceit make the contract itself involuntary; but without free consent a human act cannot stand. This is proven also by the others: Lessius book 2, chap. 17, dub. 5, n. 27; Fagundez book 5, chap. 42, n. 2.

I SAY secondly, that fraud and deceit which do not cause the contract, but only an increase or diminution of the price, do not void the contract, but only oblige to reducing the price to equality. See Molina t. 2, disp. 352; Less. book 2, chap. 17, dub. 5, n. 28.

I SAY thirdly. If deceit, error, or fraud gives a cause to a contract of sale, or to any other, such that the party suffering the deceit would not contract if he knew of the deceit, and the deceit itself proceeds from the other contracting party, or he shares in it, the other contracting party being in good faith, the contract is void in the forum of conscience and in the external forum; yet in the external forum, in favor of the deceived party and of the deceiver, by civil and canonical law there is given an action for rescinding the contract, or for reducing it to equality, as the deceived party may prefer, even if the deception does not go beyond the limits of the just price. So Molina T. 2, disp. 259 and 352; Couar. ad regulam Possessor, p. 2, §. 6; Medina Cod. de restit., question 35; Vallascus de iure emphyt., question 5, n. 9; Sylvest. v. culpa, question 7; Fagundez book 5, chap. 42; and it is evident ex l. si dolo C. de rescind. vendit. and ex cap. cum dilecti de empt. et vendition.

IT IS PROVED commonly by the argument placed above of D. Bonaventure, because free consent, necessary for every contract, was lacking.

I SAY fourthly. If the deceit is brought about by some third party, the contracting parties being unaware, although the contract is valid, yet the deceived party can in the forum alone have an action against that third party for damages, as is found in cap. cum dilecti, de empt. et vendit., and Leg. eleganter, at the beginning, ff. de dolo, and ex Leg. si dolo C. de rescind. vendit.; and this is taught commonly by Molina t. 2, disp. 352; Less. cited book, chap. 17, dub. 5, n. 33; and others as gathered by Fagundez n. 16.

SOME, however, say that such a contract is null in conscience, because consent, which is the substance of the whole contract, is lacking. So Medina C. de restit., question 33; Conrad. in addit. sum., ad question 57, dicto 3 and 4. For the rest see the disput. de contractibus, question 3. Bassaeus adds at n. 13 that the contract cannot be patched up at the very lowest by an occult diminution of measure, unless he is compelled to go below the minimum.