Question XIV: Whether deceitful oaths bind

IN the tenth question we saw the malice of a deceitful oath, and the kinds of deceit; see them there.

BECAUSE deceit either consists in this, that the mind does not correspond to the words of the one swearing; or in this, that, although words and mind agree with each other, he deceives the recipient with equivocal words, and does not respond to the sense of the hearer. Now the voice can depart from the sense in three ways. First, if the mind does not intend to swear. Second, when he does not will to give, and therefore not even to promise. Third, when the will to swear is present, but not the will to bind himself, as I said there.

AND first indeed, when the intention of swearing is lacking, all concede, alleging that it is not an oath, and therefore under that aspect it does not bind. The reason of D. Bonaventure in the foundations is, because since the interior intention is as it were the soul of the words, giving them their being (for words are by their own nature ordered to expounding the mind), if the interior intention of swearing is lacking, the oath will be fictitious. It is confirmed by D. Bonaventure, because the obligation of an oath is a certain law which each one imposes upon himself; but no one is deemed to impose a law upon himself unless he wills it; therefore since he does not will to swear, neither will he will to bind himself. He gives the example in Sanchez num. 4. from D. Bonaventure: just as marriage contracted externally without interior consent is fictitious and induces no obligation, so neither is an oath.

WHEN indeed the will to fulfill is lacking, since neither is the will to bind oneself or to promise present, the same must be said as of one swearing without a will to bind himself.

THE FIRST opinion on this is that such an oath binds. So the Angelic Doctor V. iuram. 4. Sylvester 3. quaest. 2. Cajetan 2. 2. quaest. 89. art. 7. ad 4. Soto lib. 8. de Iustitia, art. 7. quaest. 1. ad 4. Covarruvias de pactis, 1. part. §. 5. Gutierrez in Canonical Questions, lib. 2. cap. 22. num. 31. Lud. Lopez p. p. instructory, cap. 42. Manuel in the first Tomus, cap. 192. num. 7. Aragon 2. 2. quaest. 89. art. 7. fol. 108. Henriquez lib. 11. de matrim. cap. 13. Suarez lib. 2. de Iuram. from num. 11. Valencia 2. 2. d. 6. quaest. 7. puncto 4. Lessius lib. 2. de Iustitia, cap. 42. d. 8. num. 38. Sayrus lib. 5. ap. 6. num. 8. and he says it is the safer view; Tabiena V. iurare, quaest. 11. They add that it has force also in conscience even in invalid contracts; so Diana part. 4. Tract. 4. Miscel. resol. 25. and others cited by him, and others with Baffizio quaest. 10.

THE SECOND opinion is that then the oath does not bind; so D. Bonaventure here, whom Gabriel follows eadem dist. 39. tertii, quaest. 1. art. 2. concl. 5. Almain ibi quaest. unica. Richard ibi, art. 2. quaest. 1. et 2. Antonius cap. si vero, num. 5. de iure iurando and there the Abbot at the end, Nemo num. 37. Imola at the end. Fortunius de ultimo fine, illatione 22. num. 477. D. Antoninus 2. part. tit. 10. cap. 6. Rosella V. iurare, num. 19. Angelus under the word Iuram. 5. num. 8. et 10. et 32. Sylvester qq. q. 7. 17. et 19. Armilla num. 14. Felinus on that cap. Si vero, num. 8. Ioan. a Medina Tract. de Confess. quaest. de dispens. a reuelanda confess. ad 7. Palac. 4. d. 29. d. 1. fol. 665. Navarrus ad cap. Humanae aures, quaest. 3. num. 6. Philiarchus de off. Sacerd. Tom. 1. part. 2. lib. 3. cap. 16. Seraphinus de privil. iur. privil. 110. num. 16. Gutierrez de Iuram. p. p. cap. 57. num. 20. and Azorius asserts it as probable Tom. 1. lib. 11. cap. 4. quaestio 2. and Lessius also says it is common loc. cit. supra num. 37. and Tabiena there: D. Thomas favors it 3. d. 39. quaest. 1. art. 3. quaestiuncula 3. Selva de iureiurando 3. part. quaest. 1. num. 34. et 37. Sanchez lib. 3. summa, cap. 10. num. 8. Hostiensis holds the same cap. Ad audientiam, and there Ioannes Andr. num. 4. citing authorities for the opposite view, whom Imola there num. 5. says must be understood as binding only in the forum of the Church, not in the forum of conscience. Hostiensis wills the same, as is clear to the reader, and the same think others after D. Bonaventure, who in the body asserts the same in the forum of the Church.

I ASSERT that an oath uttered without a will to bind oneself does not bind in conscience.

IT IS PROVED by D. Bonaventure, first from D. Gregory 28. moral. cap. 7. and it is had in cap. Humanae aures 22. quaest. 5. The words serve the intention, and God judges such words as those which are uttered from the inmost depths: Therefore if a man does not intend to bind himself, however much he may speak inwardly, God does not deem him bound.

SECOND, because in 1 Kings 16. it is said: Man judges those things that appear: but God beholds the heart: Therefore God weighs the obligation of an oath according to the measure of the intention.

THIRD, Those things which profess voluntary obligation, and spontaneously prescribe a law, depend for their prescription upon the will of the one prescribing: But an oath is a particular law which a man freely imposes upon himself: Therefore it depends upon the will of the one imposing.

Valencia loc. cit. col. penultima, num. 1417. ANSWERS with Cajetan and Soto, that the obligation, by reason of the oath, does not rest upon the will of the swearer; but that by natural law it is per se attached to the oath; whence it is not in the power of the swearer to separate it from the oath.

BUT Valencia is mistaken, because a promissory oath has two intrinsically distinct elements: One is the invocation of the Divine witness: The other is the promise; and in this it differs from an assertory oath, and without it cannot subsist, so that if it is taken away, the essence, or (granted) an intrinsic passion of it, is removed. Therefore if anyone swears, invoking God, he does not forthwith remain bound, if he intends not to bind himself, for he appends an implication by which the rationale of the oath is destroyed; since he removes that without which the rationale of a promissory oath cannot subsist, as even the adversaries confess. But this does not follow from the nature of the thing, namely that the oath taken alone, as it is the invocation of God as witness of my intention, should thus remain. Just as it does not follow in the assertory oath that the thing is true, of which God is brought in as witness.

HENCE the holy Doctor draws out the ultimate foundation, because an obligatory oath requires the truth of the obligation, which is the inseparable companion of a promissory oath; for he does not will to say that an oath lacking truth is simply invalid.

IT IS PROVED fourth by D. Bonaventure in the body, by the argument by which Sanchez and others chiefly rely. External things which depend upon the internal do not have their being without it: But an oath is an external obligating act, depending upon the internal: Therefore. The major is proved by St. Bonaventure in the body. Marriage, even if it is entered into by word of mouth; if nevertheless the will is absent of binding oneself to that life with its consequent necessary properties, it is invalid; so also a vow, unless the intention of binding oneself is present, does not avail. The same the holy Doctor notes in the third argument. Likewise one uttering heresy, if inwardly he rightly holds in faith, is not a heretic, because these depend upon the internal. Similarly, therefore, one swearing a promissory oath, not intending to promise, does not swear; for he appends an implicative, destructive condition, namely being unwilling to promise and to bind oneself, and so destroys the rationale of the oath, insofar as it is the invocation of God as witness of my promise. For of two things, one positive, one destructive, equally concurring, the destructive is more powerful to destroy than the positive is to posit, because good is from an integral cause; but evil from any defect whatsoever, as D. Bonaventure is often accustomed to say, adding that negation is a devouring fire consuming all things.

The adversaries ANSWER that one truly swearing by that very fact calls God as witness to the promise and to the future truth to be fulfilled, and therefore to the promise; otherwise he would not be a perjurer, having no will to fulfill: Nor can the obligation be separated from a true promissory oath, but it implies that one have an intention of swearing by a promissory oath, and not of promising and binding oneself.

NOR are the examples to the point, because in acts whose substance consists in obligation, the will to bind oneself destroys their substance, as happens in a vow, in marriage, and in contracts; but when the substance of the act does not consist in obligation, but this is a following effect, then whether he wills or not, one exercising the act remains bound. As one killing a man, whether he wills or not, is subjected to eternal and temporal punishment by the laws enacted.

SINCE therefore such is the substance of a promissory oath,¹ as has been said, that it does not consist in obligation, but this is a following effect, because the rationale of the oath consists in bringing God in as witness; it follows that one truly swearing is subjected to the consequent obligation of fulfilling, whether he wills or not, nor can he by his own will impede this effect. It is confirmed, for this comparison of the swearer with the sinner is from D. Bonaventure in 3. dist. 39. art. 3. quaest. 2. foundation 3. just as (he says) the sinner is necessarily destined to eternal punishment; so also one truly swearing promissorily is bound necessarily to keeping the truth, nor can it depend upon the will. ¹ N. Editor's note: the print/OCR reads 'substantia iuramenti promissorii, missorii'; 'missorii' is an OCR ghost repeating 'promissorii'; rendered as 'promissorii'.

NEVERTHELESS these things are refuted by our foundations, as Sanchez notes num. 8. for a promissory oath differs from an assertory one in this, that the latter is directed to present truth: but the former to future truth; yet for both God ought to be brought in as witness. Therefore just as one destroying present truth by swearing, but unwilling to bind himself to telling the truth, would not truly swear; because he would append an incompossible condition; so in a promissory oath, one appending the condition of not binding himself destroys the rationale of an obligatory oath; nor is the example of the homicide to the point, because it does not depend upon the intention of the killer, which would be such as to have no effect; but in our case, even if we grant that the obligation of executing is an effect of the oath, or its passion, it depends upon the intention; and thus all concede that it can be null if the intention of swearing is lacking: Therefore likewise when he does not will to swear absolutely, but with an incompatible condition, namely not to contract an obligation; for although, if an oath of swearing absolutely is uttered, the obligating effect follows; nevertheless, if in the act of swearing a condition contrary to the nature of the oath itself is appended, as it is obligatory for the future thing to be fulfilled, it will not be a true, but a fictitious oath, as such it is.

TO what is objected from D. Bonaventure it is answered, that the argument was taken from the holy Doctor by the adversaries, but not to the point: For St. Bonaventure compares the sinner with one truly swearing, insofar as he intended to bind himself out of fear. Thus the arguments of the adversaries collapse.

I ASSERT secondly, that in the forum of the Church he remains bound.

IT IS PROVED by D. Bonaventure, first from D. Isidore lib. 2. sent. as related by the Master in 3. dist. 39. cap. By whatever artifice of words anyone swears, God receives it just as he to whom the oath is sworn understands it, that is, wills it to be received by the Church.

SECOND, because fraud and deceit ought to patronize no one; otherwise human commerce, contracts, assurances of fidelity, etc., would be abolished. For since we cannot penetrate the minds of others, it is necessary that I be secure in a human way in entering into contracts.

THE SAME he has in 4. d. 38. question one, next to the last.

THERE arises indeed some question concerning the other mode of deceit, when the swearer, uttering words conforming to his mind, utters them amphibolously, so as to elude the hearer: I have discussed its nature in quaest. 10.

AND indeed, if the swearer in good faith without deceit, but with prudent equivocation, inflicts no injury; the Doctors commonly hold, and chiefly those alleged, that the oath binds in the sense which the hearer perceives, but which the swearer intends. For then he is not bound by justice, since he lacked deceit; nor has he inflicted any injury. Nor even by the Religion of the oath: And this is what D. Gregory says, adduced by D. Bonaventure in the first foundation; and it is had in the canon Humanae aures, 22. quaest. 5. there: Our human ears judge our words as those which sound without: but the Divine judgments hear them as those which are uttered from the inmost depths: But in the external forum, since the intention lies hidden; if the words signify something more, one must stand by that; but if they signify several things equally, one must stand by that sense which prudent men judge. Moreover, the proper sense is always to be preferred, as D. Bonaventure notes at the end of the question, and it is had in cap. ex litteris de sponsal. l. librorum §. Quod tamen Cassius, ff. de legat. 3. and Covarruvias teaches it de pactis 1. part. §. 5. Sanchez lib. 3. cap. 10. num. 11.

BUT if he swore deceitfully to deceive another man of good faith.

SOME say, that the oath binds in conscience according to the sense which the recipient understood. So D. Thomas 2. 2. quaest. 89. art. 7. ad 4. D. Antonin. 2. part. tit. 10. cap. 7. §. 3. Angelus V. iuramentum 4. Sylvester there 3. quaest. 2. Tabiena there quaest. 13. num. 14. Armilla num. 16. Navar. summa, cap. 12. num. 13. Hostiensis, and others, whom Covarruvias reports and follows de pactis 1. part. §. 5. Parladorus on everyday matters lib. 2. in the final cap., 1. part. §. 4. num. 15.

THE SECOND opinion is, that an oath of this kind does not bind by the religion of the oath beyond the intention of the deceitful swearer, but by reason of the scandal, which would arise from the transgression of his oath. So D. Thomas in 3. dist 39. quaest. 1. art. 3. quaestiuncula 3. Lessius lib. 2. de iustitia, cap. 42. dub. 9. num. 45. Suarez Tom. 2. de religione, Tract. de iuramento, lib. 2. cap. 7. Sanchez num. 13. And in a similar case of a deceitful oath given without the will to swear, namely that it binds by reason of scandal, Cajetan teaches 2. 2. quaest. 89. art. 7. Soto lib. 8. de Iustitia, quaest. 1. art. 7. Azor Tom. 1. Instit. lib. 15. cap. 4. quaestio 2. Valencia 2. 2. disp. 6. quaest. 7. puncto 4. col. ultima, Petrus Ledesma 2. Tomo, tract. 11. cap. 3. dub. 5. dicto 2. Covarruvias, Lessius and Suarez in the cited places.

AS TO D. Bonaventure, he opines that this oath by its nature is not valid; that it is nevertheless a sin of deceit even in the forum of God: but that in the forum of the Church the swearer is bound. So ad primum, and at the end of the question. He indeed indicates in the last foundation that he is bound by reason of scandal.

I ASSERT therefore, that such an oath does not bind by Religion.

THE REASON of D. Bonaventure in the body is, because an oath by its law does not bind beyond the intention of the swearer, as I said above; the same is had in cap. Humanae aures cited above.

I ASSERT secondly, that this man is bound by reason of scandal. It is proved by D. Bonav. in the last foundation, because thus contracts, commerce, the security of fidelity would be abolished, and an approach would lie open to a hundred injuries.

I ASSERT thirdly, that this oath binds even in the forum of the Church.

IT IS PROVED by the holy Doctor by the arguments adduced above for the second assertion of the principal question.

THERE occurs a doubt to be solved from what has been said: Whether one swearing falsely in jest sins by that equivocation, say, by saying that the Bishop is in his house, understanding the painted image.

NEARLY ALL condemn him of mortal fault; so the Angelic Doctor, Tabiena, Armilla, Navarrus, Toletus, Sayrus, Philiarchus, Lopez, and others cited by Sanchez Tom. 1. lib. 3. cap. 6. and it seems so to D. Bonaventure quaest. 3. ad 3. where he excuses the jest from mere indeliberation.

THE OPPOSITE Sanchez himself teaches, adducing others, to whom add Bonacina Tract. de leg. d. 4. quaest. 1. puncto 12. Filliuccius tom. 2. tract. 25. cap. 11. num. 331. Diana part. 2. tract. 13. resol. 25. and it is expressly D. Bonaventure here quaest. 3. fund. 1.

His reason is, Perjury occurs when God is brought in as witness to a falsehood; but this ought to be understood seriously. But here he does not bring God in witness to a falsehood, but to guarding his own truth. It is confirmed by the holy Doctor; for not every invocation of God is vain; it is serious, as all confess. This naming of God indeed is without necessity, and a kind of irreverence.

To the passage of D. Bonaventure I say that he excuses the jest from mere indeliberation, so that the word is not jesting, because the man does not will to jest deliberately: But if there should arrive an oath not extracted from the state of venial sin and drawn to mortal, unless the word were to be jesting, because there is no formal advocacy of God as witness if it is not serious, since he is not truly called upon.

You will say that the end of a sacred and grave thing is frustrated, which you abuse.

I say the end of the Oath is to call God as witness, when there is necessity of truth; but here no necessity of truth occurs; therefore it is applied superfluously; yet not against the essence of the principal end of the oath.

You will object first against the first: D. Isidor. lib. 2. sent. cap. 31. and it is related in the canon Quacumque arte 22. quaest. 5. there: By whatever artifice of words each one swears, nevertheless God, who is the witness of conscience, receives it just as he to whom the oath is sworn understands it.

D. Bonaventure ad 1. ANSWERS, whom Sanchez follows num. 13. that God esteems this man for punishment by reason of fault and deceit, because he is bound by justice not to deceive, and by truth not to lie. Therefore in this way God receives the deceit, so that, because the other, deceived, understands it to his own harm, he may punish the deceiver with eternal punishment.

He ANSWERS secondly, that God receives it, understanding causally willing by the Church to receive it in his name in the external forum, so that he wills him to be bound thus in the external forum, even if the oath by its nature does not bind, because it is null.

In the same sense the Regian law prescribes it l. finali tit. 11. p. 5. namely that he be held in the external forum in punishment of the fraud.

You will object secondly. It would follow, that this man derive gain from the fraud.

Sanchez num. 13. ANSWERS, from D. Bonav. ad 3. that he does not derive gain from the fraud, because since he sins mortally, he is punished with eternal punishment; and in the external forum he is compelled to stand by his promises.