§ I. On the Qualities of Legitimate Consent

845. • Consent ought to be external, internal, mutual, free and deliberate.

1° External, that is, manifested, because it ought to be made known to the co-party; but it cannot be made known to the other party unless it comes forth exteriorly by some visible sign.

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

3° Mutual, because a contract is an agreement of two or several; hence, if it is onerous, cession and acceptance are required on both sides. 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 produce a perfect obligation.

846. Questions. - Query 1° Is a contract valid which has been entered without the mind of obligating oneself, or without the mind of fulfilling it?

Resp. to the 1st. More probably it is not valid, because the condition appended is contrary to the substance of the contract.¹

Resp. to the 2nd. The contract is valid. The reason is that the will not to fulfill can stand together with the will to obligate oneself.²

Query 2° Must the consent of each party be elicited simultaneously?

Resp. Negatively, because the consent of one once given, and not revoked, morally perseveres, so that, when the consent of the other accedes, the contract is at once perfected.

847. Resolutions. - 1° He who fictitiously consents to a contract is bound in the forum of conscience to render the deceived party unharmed, and, if no other means of repairing the injury is available, to furnish internal consent and to stand by the contract.³

But if the contract fictitiously entered has been committed to execution, no dominion has in fact been transferred. "Whence, by reason of the thing accepted, the deceived party must be held as a possessor of good faith, but the deceiver as a possessor of bad faith."

2° If I offer you my house for sale for $100, and you accept, the contract is perfected, not when you internally consent, but when your acceptance comes forth externally to me through some sign. But my consent is sufficiently intimated to you by the fact that I offer you my house for the stated price.

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

4° Silence is regularly regarded as consent if the matter is favorable to the one silent. Hence Rule of Law 43 in the Sixth: He who is silent seems to consent.

5° If Paul says before John: I give $100 to Peter; and if John, unbidden, reports this to Peter, and the latter says: I accept; Paul is not judged obligated; because the intimation of the promise was not made to Peter by Paul's mandate, who moreover showed nothing else by the reported words except the mere purpose of giving.