§ 3. ON THE CONSENT OF CONTRACTING PARTIES

The consent of contracting parties is the soul of the contract. We shall treat of it on a twofold point, by establishing: 1. what are the qualities of legitimate consent; - 2. what vices are opposed to it.

1044. PRINCIPLE. The consent of contracting parties must be: 1. internal; - 2. mutual; - 3. externally manifested; - 4. free and deliberate.

1. Internal; because the obligation of contract arises from the will alone of the contracting parties, whether explicit or implicit. Thus commonly, against Vasquez and some others. Cf. Lehmkuhl, I, n. 1256.

Hence: if someone fictitiously consents, that is, without the mind of contracting, he is not held in conscience by reason of the contract, which is null; but by reason of deception he is held to make the other unharmed, and if another means of repairing the injury does not offer itself, he must give true consent and stand by the contract. The same must more probably be said if someone, knowing the obligation of contract, indeed consents with the mind of contracting, but without the mind of binding himself. The reason is that the condition appended, contrary to the substance of the contract, invalidates the contract. But a contract does not become invalid if it is entered upon without the mind of fulfilling it (III, 172, 709, 710; VI, 833; H. Ap., X, 122).

In the external forum, true consent is always supposed until the contrary has been certainly proved; because that which ought to have been done by right is presumed to have been done. Likewise, no one is held to believe him who asserts that he did not consent interiorly, unless it is evident, for example from circumstances, that the consent was jocular.

2. Mutual, even in a gratuitous contract. For, as Lugo says (disp. 23, n. 39): "although someone by his will alone can lose ownership or possession of his own thing, nevertheless by his will alone he cannot make his thing belong to another; for to this is also required the internal consent of him to whom it ought to belong," according to that saying of Law: A benefit is not given to one unwilling (l. 69, ff., de Reg. Jur.).

3. Externally manifested, namely in such a way that the consent of one can be known and accepted by the other, and the acceptance, on the part of the second, can become known; for it is an act of human commerce, which cannot be such unless it is externally manifested. Hence, if I offer to you a thing for sale for one hundred lire, and you accept, the contract is perfected, not when you consent internally, but when your acceptance comes forth externally through some sign.

On these things let the following be noted: a) Silence is reputed as consent if the circumstances are such as to admit no reasonable doubt (cf. Austrian Code, 863). This regularly happens if the matter is favorable to the silent person, for example in donation; for then the Rule of Law has force: "He who is silent seems to consent."

b) In a bilateral contract it is not enough if the consent of one becomes known to the other in any manner whatever, but it is required that the offering of consent be manifested by way of denunciation, that is, that it be intimated from the intention and will of the one placing it; otherwise it is considered a mere internal purpose (Vermeersch, n. 316). - Yet it is not required that the consent of both contracting parties be emitted at the same time; but it suffices that the consent of one given is not revoked before the consent of the other is joined to it.

c) If a contract is made through a procurator, the contract is perfected as soon as the procurator accepts, even though the one in whose name he acts has not yet accepted; because the acceptance of the procurator is morally the acceptance of the contracting party.

d) With respect to contracts carried out by letters, it is disputed at what precise time they are perfected, whether namely at that moment at which the other, for example by writing a response or letter, accepts the proposition of the other offering, or rather at that moment at which the offerer knows the other's acceptance. - Considering the law of nature alone, the contract seems to be perfected as soon as the other accepts, unless law or custom, or the express will of the one proposing, has disposed otherwise. For then the consent of two persons into the same agreed thing is present (Lehmkuhl, I, n. 1258; Carriere, I, 34, 4; Crolly, II, 104). Yet the other opinion is more conformable to more recent jurisprudence, especially in FRANCE and in ITALY. Cf. Camillo Re, Tratt. sulla compra e vendita, n. 10. In AUSTRIA (n. 862), in SPAIN (n. 1262), in GERMANY (n. 147-156 and Commercial Code, 321), and in several regions, practical rules concerning this matter are had in the Code itself.

4. Free and fully deliberate, in such a way that the contracting party, even if it is a question of light matter, not only is master of himself, but acts with that advertence which is required for grave sin. Otherwise it would be only an imperfect will and therefore an imperfect act, which could not produce a perfect obligation. Hence the half-drunk, the half-foolish do not enter a valid contract, so much less because here it is a question of a burden to be imposed on himself. See what we said about vow n. 625.

1045. The vices opposed to consent are: 1. error and deceit; - 2. force and fear. We shall speak of deceit together with error, and of force with fear.

Things to be noted beforehand. Error and ignorance here are equated (cf. the things said n. 287).

ERROR is substantial or accidental, according as it is concerned with the substance of the contract or something accidental to it. The substance of a contract is that about which the intention of the contracting party is concerned primarily and principally, and it can be either the very substance of the thing, for example donation or sale, or also its quality, for example if you buy a thing precisely because it was in the use of some celebrated man, or also both at once. Likewise, the person of the contracting party can pertain to the substance of the contract, if consideration of him is the principal motive of your consent, as generally happens in gratuitous contracts (Crolly, II, 121).

DECEIT, in the present matter, is a machination or cunning employed by one contracting party to deceive the other (l. 1, ff., de Dolo malo).

1046. PRINCIPLES. I. Error concerning the substance of a contract irritates the contract by the law of nature. And this, even if the error did not give cause to the contract, that is, even if, when the error had been made manifest, the party would still have contracted. It is the common opinion. The reason is that, when cognition of the object is lacking, the required consent is lacking (III, 714; cf. Lugo, disp. 23, s. 6; Spanish Code, 1266).

Hence: 1. A contract is null if you have erred concerning the nature of the agreement, for example if you enter upon a contract which you think is a loan for use, when it is a lease; or concerning the substance of the thing, for example if you sell vinegar for wine, glass for a gem.

2. A contract is null if the error is concerning a quality which redounds into substance, either because you intended that quality solely or primarily, for example if you buy a painting because you judge it the work of a most celebrated painter; or because you openly consented under the condition "if such a circumstance is present"; for, when the appended condition is lacking, the contract does not subsist. But it must be noted that such a condition, which is called sine qua non, does not necessarily have to be expressed in a contract of good faith; it is discerned as placed implicitly, either from the disposition of laws, or from the usage of places, or from the estimation of men, or from the nature of the contract, or from the end to which the thing or action about which the contract is made is manifestly deputed, for example if you say that you want wine for a sick person, for the sacrifice of Mass, cloth for a priestly vestment, etc. (Gousset, I, 735).

3. A contract is null if you have erred concerning the person with a view to whom you principally acted. Hence a donation is null which you made to Paul from error, intending to make it to Peter; or which you made to John because you erroneously believed that he was joined to you by consanguinity; or which you made to rich Titus, whom you thought poor. Likewise, a sale is void which you made to Caius, expressly intending to make it to Sylvius, and to him alone (III, 734, 736; cf. Austrian Code, 872, 873; German, 119, 120).

1047. II. Accidental error irritates no contract, but renders a gratuitous contract rescindable if it was its cause; and similarly an onerous contract of which it was the cause, if it was caused by the deceit of the other party, or if it gave occasion to enormous lesion. This assertion must be explained by parts.

1. Accidental error irritates no contract: because a contract entered upon from such error is not invalid, neither by Positive Law, which does not admit this cause of nullity, nor by Natural Law, since for validating the contract a voluntary mind with respect to the substance suffices, although it is involuntary with respect to the accidents. Wherefore, if you buy wine which you estimate to be four years old, while it is two years old, the contract is valid; yet, if the wine is not of the same value, the contract must be reduced to equality.

2. It renders a gratuitous contract rescindable if it was its CAUSE. For this contract requires greater spontaneity; indeed there are Doctors who hold such a contract to be altogether void. - Hence, a donation made to a poor man because he is reputed very upright is valid, although it can be irritated by the donor (III, 737; Lehmkuhl, I, n. 1262; Gopfert, I, n. 95, 3).

3. It renders an onerous contract, of which it was the cause, rescindable if it was caused BY THE DECEIT OF THE OTHER contracting party: because the deceiver is held to remove the deceit, and insofar as he can, to replace the deceived person in that state in which he would be if he had not been deceived. But this demands that the deceived person can, if he wishes, rescind the contract (cf. Spanish Code, 1270). But if the error was caused by the deceit of some third party, the contract does not become rescindable for that reason. Except if the contracting party himself was participant in this third party's deceit (III, 715).

4. It renders an onerous contract rescindable if it gave occasion TO ENORMOUS LESION. Positive Law commonly admits this cause of rescission,⁰¹ provided the lesion is beyond half the value of the thing. But since the law in some places favors the seller, and in other places the buyer, one must stand by the dispositions of Law.⁰² But if the lesion was not so great as to grant the faculty of rescinding, the contract must be reduced to equality. See Lehmkuhl, l. c.

1048. Absolute force takes away every voluntary, and therefore absolutely irritates a contract (cf. n. 286). Force that is not absolute is not distinguished from fear. Hence, only fear must be treated.

FEAR is: 1. grave or light; - 2. induced by an intrinsic or extrinsic cause, necessary or free, just or unjust; - 3. instilled to extort consent, or for other ends (cf. n. 285).

From Natural Law it is plainly the same whether either the one who has suffered fear, or another person most closely joined to him, ought to be affected by the evil with which the one instilling fear threatens.

From Positive Law, this has force only concerning descendants, ascendants, and spouses, who are equated with blood relatives.⁰³

1049. PRINCIPLES. I. Fear justly instilled does not invalidate a contract nor render it rescindable. It does not invalidate, because fear not taking away reason, as is supposed here, does not take away but only diminishes the voluntary; it does not render rescindable, because no injury is inflicted on the contracting party. - Hence, he who, from fear lest a crime be brought before the judge, marries the girl whom he deflowered under promise of marriage, contracts validly.

1050. • II. Light fear never invalidates a contract, nor, more probably, renders an onerous contract rescindable, excepting nevertheless betrothals. The reason for the first: such fear does not impede true and free consent into the contract. The reason for the second: relatively light fear is presumed to have given occasion rather than cause to the contract, since the contracting party was only lightly unwilling (III, 718; H. Ap., X, 125). Hence a civil action is never conceded to such a contracting party, according to that saying of Law: "There is no just excuse of vain fear" (l. 184, ff., de Reg. Jur.).

It is said 1. It does not render an onerous contract rescindable; for according to the more common opinion it renders a gratuitous contract rescindable, on account of the greatest spontaneity which such a contract requires. - 2. Excepting betrothals, which can be rescinded even when contracted through light fear, from the greatest liberty which betrothals demand for themselves (cf. what must be said n. 1950).

There are nevertheless authors who probably affirm that all contracts, except marriage and religious profession, entered upon from light fear are rescindable at the will of the one who suffered fear (III, 718).

1051. III. Grave fear, unjustly instilled by the other party, does not invalidate a contract, but renders it rescindable at the will of the vexed person. Thus the very common and more probable opinion.

It is said 1. Grave fear, unjustly instilled by the other party, and indeed even if it was not instilled in order to extort consent (Lugo, disp. 22, n. 177).

2. It does not irritate the contract, since this does not obtain either by Natural Law or by Positive Law. "Not by Natural Law, because fear does not simply take away the voluntary; not by Positive Law, since in civil Law judges are commanded to rescind such contracts; therefore, of itself, the law holds them as valid" (III, 716).⁰⁴

There are excepted some contracts, or acts, which CANON Law declares void by the fact itself if they are made from grave fear. Such are: marriage, and probably also betrothals; religious profession; vow; election of a prelate; promise or handing over of ecclesiastical things; absolution from censures; renunciation of benefices (III, l. c., Quaer. 1). - Also excepted is a gratuitous contract, if fear takes away every liberality, and consent is furnished only for avoiding unjust vexation. In which case, there is had rather an unnamed contract, I give that you may do, which is, of itself, void on account of defect of just matter.

3. It renders the contract rescindable. The reason: the one instilling fear is held to repair the injury done to the other; and this cannot be done unless the one who suffered fear is replaced in the former state of liberty. - Hence it is said in Canon Law: "the things which are done by fear and force must be recalled into voidness," and in Roman Law: "sales, donations, which have been extorted by power, we command to be weakened" (l. ult., c. 2, de his quae vi).

But rescission can be made by private authority; and this even if the thing has come to a third possessor of good faith. But if the other refuses, the one who suffered fear can secretly compensate himself (III, 717, 719).

Note. A contract entered upon from grave unjust fear is very often invalid from the beginning; because in the one who suffers fear, internal consent is lacking. But if that internal consent was present, let the conclusion which we have stated stand.

1052. IT IS ASKED. What if the fear was instilled not by the other party, but BY A THIRD PARTY?

Resp. If it was not instilled in order to extort consent, the contract is altogether firm; because then fear must be called the occasion rather than the cause of the contract. Wherefore, he who, attacked by a robber, calls others to his aid, is held to pay the promises made to those assisting. If nevertheless the sum were enormous, it would have to be diminished according to the judgment of a prudent man.

But if it was instilled to extort consent, there is controversy. - The first probable opinion holds that the contract is rescindable; because by reason of fear, even that instilled by a third party, perfectly free consent, which is required for firmly contracting, is lacking. Thus various Codes decree.⁰⁵ The second opinion, also probable, denies it, because since neither party has made an injury, there is, from the nature of the thing, no reason why the contract be void, and why it can be rescinded at the will of one, with the other unwilling.⁰⁶ In practice, favor must be given to the possessor, until the sentence of a judge decrees.