Chapter II — On the various contracts

I. QUESTION I. Whether a contract celebrated from grave fear is valid? ANSWER. Many conditions are required that fear be called grave. First, that the imminent evil be grave. Second, that there be present probable grounds for fearing the evil. Third, that he who inflicts the fear be wont to commit the threatened menaces to execution. Fourth, that the terrified man be unable to decline the evils. The evils of death, of mutilation, of exile, of defloration, of the loss of one's estate, of vast goods, are, according to all, grave. Fear of infamy, of an excommunication unjustly passed, is likewise grave.

II. Theologians disagree upon the validity of this contract celebrated from grave fear. The first opinion denies that it is valid by natural law; the other affirms it, which St. Thomas clearly teaches, I-II, q. 6, art. 6: because things which are done from fear are absolutely voluntary, involuntary only in a certain respect. Fear therefore does not take away the liberty necessary for entering upon a contract.

III. Positive laws declare many contracts celebrated from grave fear null. And these are matrimony, betrothal, religious profession, the payment or promise of a dowry, the election of a prelate, the authorization of guardians, vows made to God, the handing over of ecclesiastical things, absolution from excommunication.

IV. The disagreement of theologians in this cause is of no moment: because although the contract be valid by natural law, nevertheless he who inflicts grave fear is bound by natural law to rescind the contract, that he may make good the injury inflicted. Nay, authors commonly defend that a contract vitiated even by slight fear is to be rescinded, since even slight fear inflicts an injury which ought to be repaired.

V. QUESTION II. Whether guile makes a contract void? ANSWER. Guile is taken for deceit, or for fraud, or for craft, by which one deceives another. Error, or guile, which precedes or accompanies a contract, if it be concerning the substance of the contract, makes it null and empty, because it takes away altogether the voluntary consent. When therefore guile, error, and craftiness are the cause of a contract, it is certain that it is null. On the contrary, if the guile or error be not against the substance, but against some accidental quality, it does not make void the contract, because it does not take away liberty as regards the substance of the contract. What if error or guile concerning a quality were the cause of contracting, so that if the guile or error were known by the deceived contracting party, he would in no way have entered upon the contract? In this case I judge that the contract is null. For although a quality in the physical order be accidental, yet while it gives cause to the contract, in the moral order it puts on the character of a principal cause. Nothing is more frequent in contracts of buying and selling than that the qualities of wares are the chief cause for carrying out the purchase; which cause being removed, voluntary consent fails. Hence it is that the civil laws in fact rescind contracts to whose entering upon guile or error gave cause. If losses follow, the party which circumvented the other contracting party is bound to make good the same. Whether therefore the contract be of strict right or of good faith, they are altogether null when guile or error is the chief cause of celebrating them. I do not deny, nevertheless, that in contracts of strict right one must adhere more severely to the formulas of words and expressions: for they are therefore called of strict right, because one must stand by the rigour of the words. But natural equity, which is the soul of every contract, ought always to be regarded.

VI. Adulations and blandishments do not hinder, but rather allure contracting parties to enter upon a contract. But two kinds of blandishments are to be distinguished. Blandishments, importunate entreaties, and flatteries, which by the courtesy of speech, the enticement of gesture, and the sweetness of the voice, falsehood and fraud being excluded, soothe and delight men's minds. That this kind of flattery does not destroy contracts is agreed among all. Other blandishments, crafty, malicious, furnished with frauds, lies, and arts of deceiving, which turn the mind away from virtue and from truth. That by this kind of flattery contracts are annulled and destroyed, no one can by right deny, when they give cause to the contract.

VII. QUESTION III. What is to be said of contracts entered upon under a cause, a mode, a demonstration, or a condition? ANSWER. A contract is said to be celebrated under a cause when the cause inducing to contract is set forth. The cause is twofold. One final, which so moves the contracting party that, it being removed, he would not contract. The other impelling, which allures the contracting party that he may more easily contract; he would nevertheless contract even it being removed. The contract is valid in the latter, null in the former case.

VIII. A mode added to a contract is a certain burden to be fulfilled by him who undertakes and accepts the contract. This mode does not suspend, but supposes a perfect contract. A demonstration in a contract is when something is indicated either of the thing concerning which the disposition is made, or of him with whom the contract is made; for example, if it be said: I sell you the horse which I bought at Padua for your sake; I enter upon a contract with you because you are my friend. These circumstances commonly do not vitiate the contract, because they do not give cause to the contract. Nor is every cause therefore a chief cause which, had the contracting party known it, he would have abstained from the contract; but that is called the principal cause which in fact brings in a grave change, and which, being known, would have drawn back the contracting party from entering upon the contract.

IX. QUESTION IV. How is a contract made to a day, or under a disjunction, to be interpreted? ANSWER. If the day designated be determinate, the contract is to be celebrated on that day. The debtor is not bound to complete it before the appointed day, nor can he defer it after the appointed day. If the day be not appointed, but uncertain and annexed to a condition, then the condition is to be awaited. If no condition have been added, the time ought to be designated at the arbitration of prudent men. Disjunction comprehends diverse species; as if you say: I promise you a horse, or fifty gold pieces: both species remain disjunctively under obligation, but the choice is at the promiser's arbitration. One species perishing, nevertheless, the other remains under obligation.

X. QUESTION V. How does a contract bound by a condition oblige? ANSWER. A condition added to a contract regards time either past, or present, or future. That which regards the first two times is not properly a condition, since it does not suspend the contract, but makes it absolute. A condition therefore properly taken regards the future. Conditions intrinsically necessary do not suspend a contract. Impossible conditions make the contract null, as do shameful conditions — two contracts being excepted, of matrimony and of last will, in which shameful conditions are held as not added.