§ I. On the Endowments of Legitimate Consent

772. • Consent must be external, internal, mutual, free, and deliberate.

1. External, that is, manifested, because it must be manifested to the counterparty; but it cannot be made open to the other party unless it comes forth outwardly by some visible sign.

2. Internal, because the obligation of the contract arises from the will alone of the contracting party. - Thus commonly.

3. Mutual, because a contract is an agreement of two or more; hence if it is onerous, cession and acceptance are required on each side. If it is gratuitous, cession is required on one side and acceptance on the other.

4. Free and deliberate, so that the contracting party is not only master of himself, but also acts with that deliberation which is required for grave sin; otherwise the will would be imperfect, and therefore the act imperfect, which could not beget a perfect obligation.

773. Questions. - It is asked, 1. Whether a contract entered into ¹ without the intention of obliging oneself, or without the intention of fulfilling it, is valid?

¹ Understand a contract entered into with the intention of contracting, although without the intention of obliging oneself, etc. For otherwise the question will return to the one contracting fictitiously, concerning whom the Author treats afterward in the first Resolution.

I reply to the first. More probably it is not valid, because the condition attached is contrary to the substance of the contract ². St. Lig., n. 710. - Others say that the contract is valid according as the volition of the contract prevails or does not prevail. - Lacroix.

² Certain ones (apud Lugo, disp. 22, n. 38) affirm, because whoever wills the cause wills also the effect, and he who gives the form wills the consequences belonging to the form. But others deny, both because in contracts an obligation cannot arise except from one's own will, and because (which the Author also touches on) a condition which is contrary to the substance destroys the contract; to which pertains cap. Si conditiones, fin., De conditionibus appositis.

Nevertheless, the solution of the question will be more apt if you use suitable distinctions. For either the promise and the intention of not obliging yourself are concerned with wholly the same object and under the same respect or sense; and then the promise is altogether illusory, since a promise is an obligation of faith, and nevertheless by hypothesis you do not will this obligation. But if the promise and the intention of not obliging yourself are referred to an object which has a multiple consideration, then again one must distinguish with De Lugo (disp. 22, n. 39). For it is necessary to inspect which of the two contrary wills must be said to prevail; but that one ought to prevail which is more efficacious and absolute, or which has a more universal mode of willing and with formal or virtual reflection upon the other. Therefore, if the will of promising and contracting is more efficacious and absolute than the will of not obliging yourself, an obligation will arise, even if from error you think that an obligation does not arise from the contract or promise, and therefore you do not will to oblige yourself. Thus one who absolutely wills religious profession, being otherwise ignorant of some burden attached to it. But if the will of not obliging yourself is more efficacious and absolute than the will of contracting or promising, an obligation will not follow. For truly there is not present an efficacious and absolute will of promise, but only a conditioned one, namely if that obligation does not arise from it. But if you suppose that each will is equally efficacious, the act would be null, as intending an impossible effect. And since you do not have the will of promising unless it lacks obligation, in reality there is no absolute will of promising, but only a chimerical one.

I reply to the second. The contract is valid. The reason is that a will not to fulfill can consist together with a will to oblige oneself. - St. Lig. and others commonly.

It is asked, 2. Whether the consent of each party must be elicited simultaneously?

I reply negatively, because the consent of one person, once given and not revoked, morally perseveres, so that when the consent of the other accedes, the contract is immediately perfected.

774. You will resolve. - 1. He who fictitiously consents to a contract is bound in the forum of conscience to make the deceived party unharmed, and, if another means of repairing the injury is not at hand, to furnish internal consent and to stand by the contract. - Hom. apost., tract. 10, n. 93.

But if the contract entered fictitiously has been put into execution, no dominion has in reality been transferred. Hence, by reason of the thing received, the deceived person is to be held as possessor in good faith, but the deceiver as possessor in bad faith.

2. If I offer you a house for sale for 100 gold coins, and you accept, the contract is perfected not when you consent internally, but when your acceptance outwardly comes forth to me by some sign. But my consent is sufficiently intimated to you by this, that I offer you my house for the price appointed.

3. If you contract with me through a procurator, the contract is perfected when your procurator accepts, although you have not yet accepted, because the acceptance of your procurator is morally yours.

4. Silence is regularly reputed as consent if the matter is favorable to the one keeping silence. Hence the rule of law: He who is silent seems to consent.

5. If Paul says in the presence of John: I give 100 gold coins to Peter; and if John, not commanded, reports this to Peter, and Peter says: I accept; Paul is not judged bound, because the intimation of the promise was not made to Peter by the mandate of Paul, who moreover by the words reported shows nothing else than a mere purpose of giving. - See Cases, n. 776.