Point I. On Error

775. • Error in contracts can be concerned: 1. with the substance of the thing, as if you buy copper for gold; 2. with the nature or species of the contract, e.g. if you take lease for sale; 3. with the quality or accidents of the thing, suppose if a horse is slow while it is reputed swift; 4. with the person, e.g. if someone were to give to Peter, wishing to give to Paul; 5. with the motive, e.g. if you were to give something to Caius on account of poverty or piety, while he is rich or impious.

Nevertheless, error concerning quality, although accidental, can be the cause of the contract.

776. Principles. - I. Every error concerning the substance of the thing or the nature of the contract renders the contract null. The reason is that then there is no consent, which regards a wholly diverse thing. - St. Lig., n. 714.

II. Error concerning quality alone does not of itself invalidate the contract, at least if, once the error was known, the contract would nevertheless have been entered. For consent wholly voluntary concerning the principal object of the agreement is had. - But if, once the error was known, the contract would not have been entered, it is controverted, as we shall say immediately.

777. Questions. - It is asked, 1. Whether error concerning a quality giving cause to the contract invalidates a contract, whether onerous or gratuitous?

I reply, 1. More probably negatively as regards onerous contracts, because such error does not impede cognition, nor consent as regards the substance of the thing. Otherwise scarcely any contract would be valid, which would tend to the overturning of human commerce. Make exception if the quality is expressly intended as a condition without which not, because then it passes over into the substance of the thing.

I reply, 2. As regards gratuitous contracts, more probably affirmatively. The reason is that such contracts of their nature require a full voluntary and every sort of spontaneity; but this was plainly lacking when the cause moving one to give is supposed to be lacking. - Thus commonly, against some who, since they otherwise admit that these contracts are rescindable at the will of the donor thus deceived, scarcely differ in practice, one sentence from the other ¹. - See St. Alph., nn. 714, 715; Hom. apost., nn. 124, 125. It is asked, 2. Whether error concerning the person invalidates the contract?

¹ Nevertheless, between two sentences, of which one says that certain contracts are void of themselves, the other only rescindable, a difference of great moment can be present as regards effects. Thus, e.g., if the discussion is about betrothals, according to this diversity of sentences it will be defined whether from the contract the impediment of public honesty has been introduced or not.

Moreover, the same dissent of sentences, and the same character of difference between them, is to be seen among the Doctors also as regards onerous contracts to which, nevertheless, the fraud of one or the other contracting party has given cause; of one or the other contracting party, I say; for if fraud is employed by some third party, and the other party of the contracting persons is not a participant in the fraud, the contract is held valid without controversy, although an action is given to the deceived person against that third party who employed the fraud (see Molina, tract. 2, disp. 352, n. 7).

Therefore, when fraud giving cause to the contract is employed by the other of the contracting parties, or if it is employed by a third party, yet the other party is a participant in it, the Doctors agree that contracts of strict law are to be sustained as valid; but as regards contracts of good faith they differ among themselves. And Molina indeed (disp. cited, n. 2), with most of the older authors, contends that they are void; but more recent authors (see Lugo, disp. 22, n. 70) have more commonly held them as valid, although afterward they must be rescinded at the choice of the deceived person. But among the dissenting parties Cardinal De Lugo intervened as a sort of arbiter, about to reconcile them somewhat. "Each sentence," he says (disp. 22, n. 73), "can perhaps be reconciled, if we say that contracts of this kind are by natural law, and also by positive law, indeed partly valid, partly void, and altogether to be annulled at the will of him who suffered the fraud." The excellent theologian entered upon this way especially so that a reason could be given why it is in the free power of the deceived person to stand or not stand by the contract, while the deceiver is bound to stand by the contract according to the choice of the deceived person.

And indeed let it suffice to have indicated these opinions of the Doctors; for the brevity of a Note does not permit their force and reasons to be weighed. Nevertheless, we do not judge that the conclusions which pertain to practice are to be passed over, and this the more because all the sentences agree in them, however much each may perhaps differ somewhat according to its own principles in giving their reason. Therefore have these from Molina (l.c., n. 16):

Either someone is deceived while the other contracting party is ignorant of it; and then, if no inequality arises in the contract because no transgression of the limits of just value has been made, the contract in each forum is valid and firm, in which no change must be made. But if inequality arises, because either something was received beyond the strict just price, or something was given below the just and lowest price, then in the forum of conscience it must be reduced to equality only down to the limits of the just price, and also in the external forum if the transgression was within or beyond one half of the just price.

But if the deception is known indeed to the other contracting party, but without fraud, and without concealing things which he was bound to manifest, then altogether the same things must be said as we said just above, when someone was deceived while the other contracting party was ignorant.

But if lies and fraud have intervened, a distinction must be made. For either someone was induced to contract, or to increase the price or recompense, or not, because he did not give faith, knowing that this is the custom of those celebrating similar contracts; or, even if those lies had not been used, he would have contracted similarly: and then altogether the same thing must be said as in the two preceding events, because the fraud employed was neither the cause of the contract, nor of increasing the recompense or diminishing it. And hence often merchants who lie and affirm by oath either that the thing is worth more, or that they bought it more dearly, and who invent many other things, both so that they may sell or sell more dearly, and so that they may buy or buy more cheaply, will be excused both from the burden of rescinding contracts of this kind and also from restitution of part of that which they thus received.

When by lies or other frauds someone was induced to contract, or to increase the price or recompense, fraud is said to intervene in the contract in the sense in which thus far in this disputation we have been speaking. But if then the fraud gave cause to the contract, it is invalid in the forum of conscience if the deceived person so wills, and also in the external forum if the contract was of good faith, even though no inequality has arisen from it.

Observe nevertheless that, when there is no inequality, regularly it is not a mortal fault not to rescind that contract, or not to offer this to the deceived person; and, when the thing is no longer intact so that the contract can be dissolved, regularly no obligation arises of restoring something under mortal fault. And hence those who, lying that wine is of many years, or is of one place, sold it to him who, if he knew that it was not of so many years or not of that place, would by no means have bought it, or would not have bought it at so great a price, will be excused from mortal fault and from the burden of restoring under mortal fault, when the wine in itself, all circumstances being computed, was equally good and of equal value. And likewise when he would not have bought it for so much, and the increase of price was not so great as is required for mortal fault.

Nevertheless, while the matter is intact, then there is always an obligation under venial fault of rescinding the contract, or of offering this to the deceived person, or of restoring to him what he would have given less, at least when he would have bought from another at a lesser price, unless he had been deceived by this one in such a way, even though he bought from this one within the limits of the strict just price; for when from no other would he have bought better wine or at a cheaper price, then, although an injury had been done to him by selling to him in this way, nevertheless, because no damage, even of cessant gain, would have followed from it for him, no obligation of restoring would arise.

I said, regularly mortal fault does not intervene by not rescinding similar contracts or by not restoring; because if the thing were of great value, and especially if otherwise he was going to buy an equally good thing at a lesser price, so that this decrease in price would suffice for mortal fault, then indeed both to enter that contract with fraud intervening, and, while the thing is intact, not to rescind it, and finally, when the thing is now no longer intact, to omit restitution of the damage following from that contract to him thus deceived, would be a mortal fault.

I reply, 1. Negatively, speaking generally, as regards onerous contracts, because in these an error of this kind is merely accidental; and surely it is of little interest both to the seller to whom he sells the thing, provided he receives a fitting price, and to the buyer from whom he buys, if the thing is suitable to him. The contract of marriage must be excepted, in which the consent affects the very person who becomes at the same time both the contracting party and the object of the contract itself.

I reply, 2. Affirmatively, for the most part, as regards gratuitous contracts, because in these the person of the donee is usually specially intended by the donor. Nevertheless, the circumstances of the things must be considered, from which the will of the benefactor can be better recognized.

778. • It is asked, 3. Whether error concerning the motive invalidates a contract?

I reply, 1. Affirmatively, if the error falls upon the final motive; e.g. if you were to give alms to Titius because you reputed him poor, when he is rich; for your consent is lacking as regards the very substance of the thing.

I reply, 2. Negatively, if the error falls only upon the impelling motive; e.g. if you were to give alms to poor Peter, whom you believe very upright, when he is less upright; for this error is merely accidental. - St. Lig., n. 737; Hom. apost., n. 137.

779. You will resolve. - 1. If a priest by night buys cloth for himself, thinking it to be black in color, while it is green or violet, the contract is not valid if he expressly declared that he wished cloth of black color; for although color in itself is a mere quality, in this case it passes into substance, and therefore the error becomes substantial.

2. If Burgundy wine is offered to you when you wish to buy Bordeaux wine, the contract is valid of itself, notwithstanding error or fraud, because the error is not substantial. But justice is injured accidentally if Bordeaux wine is dearer; and therefore the seller will be liable to restitution. But if the price of each wine is equal, or if the price is diminished in proportion to the excess, the seller will be immune from injustice, although not from the sin of lying. I said, of itself; because the error could easily be substantial, as, e.g., if the buyer had attached his intention by express words to Bordeaux wine on account of a certain end to which any other wine would not conduce. - Reuter, n. 113 and following.

3. He who buys a book at a bookseller's, which he judges good, and afterwards discovers it to be bad, nevertheless contracted validly, because he wished to buy this present book absolutely and without restriction, although certainly he would not have bought it if he had known it was bad. But it is otherwise if a false title had been inscribed on the book, because then the title would have furnished the cause of a substantial error. - See Cases, n. 779 and following.

4. Fraud differs from simple error in this, that error proceeding from fraud has been produced by artifices employed for this end. Error which of itself would not be sufficient for invalidating a contract can give place to nullity if fraud has intervened on the part of the other contracting party.