Point II. On Fear

Fear is: 1. either grave or light; 2. induced by an intrinsic or extrinsic cause, necessary or free, just or unjust; 3. struck in order to contract, or for another end. - Recall the things said in the Treatise on Human Acts, n. 17 and following.

780. Principles. - I. Any fear whatever so disturbing the use of reason that it excuses from grave fault wholly invalidates the contract which follows from it by every law. The reason is that then the consent required for contracting is lacking, whether fear altogether takes away the use of reason or so impedes it that consent cannot be called full and perfect.

II. No contract from fear arising from an intrinsic source, or from a necessary, or natural, cause is invalid, unless perhaps he who contracts from fear was not master of himself. The reason is that no injury is inflicted upon the contracting party, and from another side he preserves sufficient liberty. The same must be said if fear has been struck by a free cause, or by a man, for a just cause; hence a deflowerer compelled by grave but just fear to marry the girl whom he seduced contracts validly.

III. More probably ¹ no contract, at least an onerous one, entered from light fear is invalid, nor rescindable at the will of him who suffered the fear. The reason is that fear light from whatever source is reputed as nothing in law, since it can easily be contemned. - For otherwise very grave inconveniences would follow in human commerce, since light fear is most frequent. Thus St. Lig., Hom. apost., tract. 10, n. 125, etc. Lugo contradicts, however, with others whose sentence is called probable by St. Alphonsus, especially if the fear, although light, is the sole cause of contracting.

¹ Since the Doctors dispute concerning these matters on each side, this matter perhaps claims for itself a more fitting place among Questions than among Principles.

I said, at least an onerous one; for if it is a question of gratuitous contracts, contracts of this kind more probably seem void whenever light fear has been unjustly struck for extorting consent of this kind. For it is essential to these contracts that they proceed from benevolent and spontaneous liberality. Nevertheless, the opposite sentence has seemed probable to others ².

² If probability requires a prudent judgment, and therefore one resting upon some solid reason, it scarcely appears whence probability can be procured for this opinion. For since a gratuitous contract proceeds by its own nature from spontaneous liberality, therefore consent extorted by fear, which on that account someone unwillingly elicits, is repugnant to the nature of the same.

781. Questions. - It is asked, 1. Whether grave fear struck by the counterparty in order to contract invalidates a contract, if it by no means disturbs reason?

I reply, 1. By the sentence of all, contracts of this kind are rescindable, whether they are gratuitous or onerous.

I reply, 2. As regards gratuitous contracts, affirmatively. For this is clear a fortiori from what has been said concerning light fear. And surely if a contract of this kind were valid, he who strikes fear would acquire a right in the thing handed over or promised to him; but this is repugnant, both because the intention of giving gratuitously is lacking, and because right cannot arise from injustice ³. - Thus commonly. - St. Lig., n. 716, admits this as probable.

³ Understand that he who inflicts injury cannot through this acquire a right against the injured person, since rather he contracts the obligation of repairing the injury.

I reply, 3. As regards onerous contracts, it is very much controverted, and a twofold probable sentence is given.

The first, more common sentence affirms that contracts of this kind are valid. For he who suffers fear truly and absolutely wills to contract from the motion of his own will. - Thus St. Lig., ibid. - Lugo, and others.

The second sentence teaches that those contracts are plainly void from natural law. The reason is that otherwise right would arise from injustice; and accordingly he who strikes fear could retain the thing extorted without injustice up to the sentence of the judge, which nevertheless nearly all the adversaries deny. Nor should you say that compensation is given in an onerous contract through money paid or an equivalent handed over; for often it is harder for the proprietor to alienate his own thing from himself than to grant money gratuitously from fear. Moreover, in practice these sentences do not differ very much, since each finally resolves the question in favor of the coerced person, as we have already said concerning a similar case, n. 777.

Notice nevertheless that from canon law contracts elicited from grave fear are certainly invalid where the question is: 1. about marriage, and probably also about betrothals; 2. about the handing over of things of the Church and the renunciation of a benefice; 3. about a vow and religious profession; 4. probably also about ecclesiastical jurisdiction and absolution from censures ⁴.

⁴ The question concerning ecclesiastical jurisdiction extorted through fear must be distinguished from the question concerning absolution from censures. For this latter is manifestly declared void in law, just as Gregory X decreed in the Ecumenical Council of Lyons (cap. unic. de iis quae vi metusve causa fiunt in VI): "The benefit of absolution from a sentence of excommunication, or any revocation whatever of it, or of suspension, or even of interdict, extorted by force or fear, by the authority of the present constitution we wholly empty of force" (see Lugo, disp. 22, n. 129). But it must be said otherwise concerning the former, for whose invalidity only L. 2 De Iudic. is brought forward, which law does nothing to the matter, since it speaks about a judge to whose jurisdiction litigants are not subject, which it declares to be null if, when any one of the litigants had resisted, he was compelled by the powers of the Praetura. Hence De Lugo (disp. 22, n. 131) calls more probable the sentence of those who hold jurisdiction of this kind to be valid. This sentence can sometimes be of use, so that, a reasonable cause requiring it, someone may use this less certain jurisdiction for absolving, even if he suspects that jurisdiction has been conferred by a superior on account of some fear.

782. • It is asked, 2. Whether a contract entered because of reverential fear is rescindable?

I reply negatively, more probably ⁵, because it does not seem of itself a sufficient cause for rescinding a contract, unless at the same time it includes grave fear, suppose of long-lasting indignation, etc. Likewise even most importunate prayers do not constitute grave fear, unless perhaps they are joined with reverential fear toward a Superior. - Sanchez. - Salm. and others commonly. - See St. Lig., n. 717.

⁵ It could be answered more briefly and clearly: affirmatively, when reverential fear can be held grave; otherwise, negatively. But when reverential fear is equivalent to grave or light fear is supposed to have been handed down in the Treatise On Human Acts.

It is asked, 3. Whether a contract is void, or rescindable by private authority, if grave and unjust fear is struck by a third party only, so that the other party is not a participant in the injury?

I reply. It is controverted. The first probable sentence affirms, because by reason of the injury, even inflicted by a third party, the thing remains bound to the prior owner, and consequently passes with that burden to any persons whatever; nor is it fitting that someone should lose every right in his own thing through another's injury. - Billuart, etc.

The second sentence, and itself probable, denies; because, since neither party committed injury, no reason from the nature of the thing is present why the contract should be void, and why it could be rescinded at the pleasure of one party when the other is unwilling. - Lugo, disp. 22, n. 117 ⁶. - Reuter, n. 126.

⁶ Lugo (l.c.) holds, speaking of natural law, that it cannot be rescinded unless he who inflicted the fear somehow makes one thing with the contracting party against whom it was to be rescinded, but that an action is given to the one who suffered fear against him who inflicted the fear, for the damage inflicted. These are Lugo's views, with natural law considered; for (ibid., n. 118) concerning positive law he holds, with the common sentence, that the contracts are valid but to be annulled, excepting some which by the same positive law are void.

783. • It is asked, 4. What if grave fear indeed was unjustly struck, but not for extorting consent?

I reply. It is controverted, but it seems that one must distinguish thus: 1. If fear has been struck by the other of the contracting parties, the contract is not valid, or at least is rescindable, because he who strikes fear is bound to remove all the inconveniences which proceed from the injury. Reuter, n. 127. - Lugo, disp. 22, n. 177, etc.... - 2. It is otherwise if the fear comes from a third party, because none of the contracting parties inflicted injury; but the third party who inflicts fear cannot take away the obligation of the contract by consenting to its rescission, since the contract was not entered with him; nevertheless he is bound to induce toward rescission, so that he may avert the injury from the innocent person, if the latter wishes. Hence a purchase of a sword made from fear of your enemy is valid. Lugo, n. 178, excepts the contract of marriage, which he thinks is invalid if entered from such fear. Others except also gratuitous contracts, because thus better provision is made for the innocent person, and the other cannot complain, since he is deprived only of gain and remains in the state in which he was before; and just as he himself would not wish to be obliged in those circumstances, so also he ought not to oblige the other.

784. You will resolve. - 1. If you threaten someone caught in theft that you will report him to the injured master, or to the guard, or to the judge, unless he promises you a certain gift, the promise holds, nor are you bound to return the gift received, unless perhaps in the judgment of a prudent man it seems excessive ⁷. This is also true even if you had not had the intention of reporting him, but only of frightening him, because you would cede from your right of doing that, which is estimable by price. - Elbel, n. 307. - Reuter, n. 120.

⁷ Concerning this case Roman law has thus: If the thief gave something lest he be betrayed, since the baseness of each one (namely, of the giver and of the receiver) is involved, repetition ceases, that is, an action is denied for recovering what had been given. And again: If you have received something from my fugitive slave, lest you reveal him, I can condict this from you, as from a thief (L. Idem 4, sects. 1 and 4, De condictione ob turpem causam). To these things Johannes Voet (book 12, title 5, n. 3): "To him whose interest it was that something was not given for a base cause, condiction of the things given is read as granted; as, for instance, to the master from whose fugitive or thieving slave you had received money lest you reveal him." From these things it is sufficiently gathered that this question almost falls back into a contract concerning a base thing. Therefore, rather than saying that he who promises silence to the thief cedes from his right, perhaps it must be said that he departs from an office either of justice, or charity, or legal justice or charity toward the republic; and that no other title of receiving or retaining things received from the thief is at hand for him, except that he exposes himself to some danger or damage, whether spiritual or temporal. Compare De Lugo (disp. 19, nn. 103-104) and Molina (De Iust. et Iur., tract. 2, disp. 735, n. 3), who deny that promised silence, if the aforesaid dangers of damage are absent, is estimable by any price and therefore that the accepted price can be retained.

2. If Titius inflicted fear upon you so that you would hand over some thing to Caius, the contract does not hold. For if Caius, at the time at which he accepts the thing from you, knows the injury inflicted on you, he himself is judged to inflict fear through Titius. But if he knows it afterward, he is to be assimilated to a possessor in good faith, who must restore the thing possessed as soon as he discovers it is another's. - Billuart, diss. 1, art. 4.

3. If someone prepares damage for you from mere malevolence, and therefore asks nothing from you, but you of your own accord promise money so that you may escape unharmed, you are not bound to hand it over; because although fear was not in order to contracting, nevertheless it has for its object only the cessation of unjust vexation. But the vexer cannot sell this cessation; therefore whatever he acquires in this way he receives as a possessor in bad faith, and therefore he must restore it. - Billuart, ibid.

4. If a traveler, oppressed by a robber, calls upon a passing man for help by promising him money, the promise is valid, because fear is not its cause, but only the occasion; and from another side the help furnished by the passerby is estimable by price. Nevertheless, if the sum were enormous, it would have to be diminished. - See Cases, n. 785 and following.