Case XXIII: A Promise

Case.—Peter, an aged man, without wife or children, promises to his faithful servant a legacy of fifteen hundred dollars to induce her to remain in his service. This legacy he actually puts in his will. Eventually he falls grievously ill and feels the approach of death. Now he becomes uneasy in his mind and fears that his

‘relatives, the legal heirs, will be indignant over the legacy to his servant, and he decides to lessen the amount. He mentioned the matter to his servant and she is urgently asked to content herself with half the amount, and, furthermore, she is requested to inform his heirs of this change at the reading of the will. The servant does not take kindly to this proposition, but gives her consent in order to ease her dying master’s mind. After his death, however, she lets the heirs pay her the full legacy, which they cheerfully do, considering it proper that so faithful a servant should be provided for in her old age. Now, however, the servant feels troubled in conscience, because she has not kept her promise; and she asks her confessor whether she may keep the whole legacy.

Solution.—Above all it is necessary to ascertain whether the promise is binding under the circumstances mentioned. The servant’s dislike of the proposition was overcome only by sympathy for the dying man, and hence her consent might be considered not entirely voluntary. On the other hand, the fact that she gave her consent with a “heavy heart,” as she says, proves that she was fully aware of what she was doing: and that suffices to render the consent a voluntary one. The fact that a strong emotion influences an act does not take away from it the free will, if the person’s judgment is sufficiently clear to realize the nature of the act. Otherwise most mortal sins might not be mortal sins; for indeed most of them are committed in the heat of passion and yet free will is essential in mortal sin. Hence Lugo says (De iust. et iure, disp. 23, n. 18): “The common and true opinion teaches that, for an obligation arising from a promise, full awareness is required and sufficient—the awareness that would suffice for mortal sin—even if the promise is made in the heat of anger or another passion.”

Of greater importance here is another fact that would appear as opposed to the voluntary character of the promise. There was present an error, namely, the supposition that the heirs would be displeased with the legacy. This error, it is true, was an error of the dying man, and the direct cause of his request, but the same error, no doubt, influenced the servant’s promise; otherwise she would surely have given her consent conditionally, namely, that she would agree to a smaller amount if the heirs would really show displeasure. We have here, therefore, an error causam dans contractui, and such an one makes every contractus gratuitus a failure, at least in foro conscientiae (Compare Lehmkuhl, Theol. Mor., 1. 1063). Therefore, the servant’s promise is not binding.

If the old man’s supposition had not proved an error, if the heirs had really shown displeasure at the legacy, the promise would have been binding. The question then would be, does it involve an obligation of strict justice, with obligation to make restitution, or merely an obligation of fidelity (obligatio fidelitatis) involving no obligation of restitution? Either may be the case in a promise. “I promise to give you this and that” may mean I pledge my word, my fidelity, that I will give you this thing; but it may also mean I invest you with the right to demand this thing from me at the proper time. The latter meaning is not the usual nature of a promise as such, hence such meaning must be expressed in some positive way in order to be valid. We speak, indeed, in the case of a promise about the “right” to the thing promised. However, this is a right only in an abstract sense, and is really nothing more than the right to say to the one who made the promise: “Either you keep your word, or I must henceforth regard you as an unreliable person.” The servant had given her word that at the reading of the will she would renounce part of her legacy. Accordingly there was only an obligation of fidelity, in the event that the heirs would be displeased with her legacy. The obligation of restitution would not be present in her case.