Section 2. On the Vices of Consent

534. Declarations. 1. The vices of consent are called those impediments which obstruct the liberty of consent and therefore bring it about that a contract is either altogether invalid or at least rescindable. Vices of this kind are error and deceit, force and fear.

2. A contracting party in contracting can be deceived in two ways: either by his own error, which is caused by no other, or by error which has been induced by another. The former deception is simply called error, but the latter deceit (taken passively).

a. Deceit actively is a saying or deed applied to deceiving another. This deceit can be committed either by the other contracting party or by some third person in order to enter a contract.

b. As to the value of the contract, it makes no difference whether the error was caused by the deceit of the contracting party or not; but this matters between the contracting parties: that the contracting party who deceived the other is bound to repair the damage arising from this for the other contracting party, provided he foresaw it at least confusedly; but the contracting party who did not deceive the other is not held for damages.

3. Absolute force, which takes away voluntariness, manifestly renders the contract invalid; but force that is not absolute, which does not take away voluntariness, is not distinguished from fear. Wherefore the same principles hold concerning force and fear. But it makes no difference whether he who instills fear threatens evil to the contracting party himself or to a person closely joined with the contracting party.

535. Divisions of error, which also equally hold concerning deceit. 1. Error can be substantial or accidental. It is called substantial: a. if it concerns the substance of the thing concerning which the contract is made, as if someone thinks he is buying gold but buys brass; b. if it concerns a substantial quality or a quality redounding into the substance of the thing concerning which the contract is made, either because that quality is intended primarily or because it is a condition without which consent is not given; c. if it concerns the substance of the contract itself, as if the contracting party thinks that there is question of donation when there is question of sale.

If a painting is bought for this reason, because it is thought to be the work of a very famous painter, this circumstance is intended primarily. A condition without which not need not necessarily be expressed, but can be known implicitly either from the disposition of law, from the usage of places, from the nature of the contract, or from the end to which the thing concerning which the contract is made is applied, as if wine is bought for a sick man or for the sacrifice of Mass.

Accidental error is said: a. if it concerns an accidental quality (not redounding into the substance) of the thing concerning which the contract is made, as if someone buys wine of two years which he thought was of four years; b. if it concerns an accidental quality of the contract, as if someone thinks payment of the price is to be made in this money, when it is to be made in another.

Error concerning the person with whom a contract is made is sometimes substantial, sometimes accidental. And in marriage indeed it is always substantial, because in this contract the person not only has the character of the contracting party, but also of the thing concerning which the contract is made; but in other contracts it is substantial if the person is intended per se and principally, which more easily happens in gratuitous contracts than in onerous ones. Thus if someone gives a precious thing to Peter thinking he is Paul, the error is substantial; but if someone sells a horse to Titius thinking he is Caius, the error is accidental. The same must be said of error concerning the quality of the person: namely, if the contracting party makes his consent depend on a determined quality, because it is the principal motive of the contract, the error is substantial, as if someone gives to Titius because he thinks him a blood-relative when he is not; otherwise the error is accidental, as if someone gives alms to someone because he is poor, but at the same time is thought to be a blood-relative.

2. Error is called antecedent when it gives cause to the contract, so that the contracting party, with the error removed, would not have made the contract; and it is called concomitant if it does not give cause to the contract, so that the contracting party would have made the contract even with the error removed.

536. On contracts entered from error. 1. Every substantial error, even merely concomitant, renders the contract invalid from defect of consent into the substance of the contract: for he who errs concerning the substance of the thing does not consent to the thing concerning which the contract is made, but to another concerning which he thinks the contract is made; and he who does not wish to contract except under a certain condition, namely that the thing be furnished with a determined quality, does not consent to the contract if that condition is lacking, even if the condition in itself is of no moment. Therefore by natural law a contract of this kind is invalid.

a. Therefore if someone buys wine made from apples thinking it wine from the vine, or if a priest buys blue cloth for making a cassock, thinking the cloth is black, the contract is null because of substantial error. And if the substantial error of one contracting party was caused by the deceit of the other (by substantial deceit), the deceiver is bound to repair the damage arising from this for the other, and if it cannot be repaired otherwise, he is bound to fulfill the contract.

b. In the external forum it is not enough that someone assert that he erred concerning the substance of the contract, but he must also prove the error; if he has not proved it, one must stand for the value of the contract. But in the internal forum the contract is void, provided the error truly happened, even if it cannot be proved.

c. It is not necessary that a quality of this kind, to which consent is attached, be expressly indicated by the contracting party: for it can also be known from the end to which the thing concerning which the contract is made is destined, as if a priest buys wine for the sacrifice of Mass.

2. No accidental error, even if it was antecedent and caused by the other contracting party, renders the contract invalid: for for the value of the contract it suffices that there be consent into the substance of the contract; otherwise contracts would be invalid too frequently, with disturbance of human commerce. But accidental error, even antecedent and caused by the other, does not impede consent into the substance of the contract; therefore the contract is valid by which someone buys fresh wine which he thinks to be old.

3. Antecedent accidental error which was caused by the deceit of the other contracting party renders the contract rescindable at the discretion of the deceived person, if it is soluble by its nature: for although the deceived person gave consent as to the substance, nevertheless the injury which he suffered obstructs its efficacy.

a. And indeed he who deceived another must remove the deceit or injury inflicted with all its effects; but the effect of the deception is the contract; therefore he must dissolve the contract if the deceived person wishes. But he who deceived another cannot dissolve the contract against the will of the deceived person: for the deceiver gave consent, against whose force and efficacy nothing obstructs. Hence antecedent error which is not caused by deceit, but is proper to the contracting party, does not make the contract (at least an onerous one) rescindable. A contract of this kind can be rescinded only by mutual consent, either simply or with reparation of the damage which arose for the other contracting party.

b. If not the contracting party himself, but some other person caused the error, the contract is rescindable where the contracting party was a participant in the deceit; but where the deceit was committed without the knowledge of the contracting party, although in his favor, the contract is not rescindable. For the right of rescinding a contract arises from the injury which one contracting party suffers from the other contracting party; but in this case one contracting party does not suffer injury from the other contracting party. Yet the deceiver must repair the damage of the contracting party, if any was suffered, and if he cannot repair it otherwise, he is bound to procure that he in whose favor he deceived the contracting party rescind the contract.¹

4. Concomitant accidental error, even if it was caused by the deceit of the other contracting party, does not render the contract rescindable: for the deceived person in this case does not suffer a true injury, because he would have made the contract even with the error known. Hence he who buys Austrian wine thinking it Rhenish, which nevertheless he would have bought even with the error known, makes a contract not only valid, but also firm or not rescindable; yet he has the right of reducing the contract to equality, or of diminishing the price so that it corresponds to the thing bought.

Therefore if a merchant sells adulterated goods or deceives buyers in weight and measure, it can happen that the contract of sale is invalid, or only infirm or rescindable, or valid and firm but to be reduced to equality.

a. The contract is invalid if the adulteration is so great that the thing sold is no longer suitable for the common use and the use intended by the buyer, as if old cloths recently colored, or worn garments recently cleaned and repaired, are sold as new; or if goods mixed in a notable quantity with cheaper matter are sold: for substantial deceit intervenes.

b. The contract is rescindable if the buyer bought adulterated goods for this reason alone, because the seller affirms that they are genuine; as if a wine-seller sells wine mixed with artificial wine as natural to him who would have bought only natural wine; or if a merchant sells goods mixed with cheaper matter, but not in a notable quantity, when nevertheless the buyer would have wished only genuine goods: for deceit intervenes, accidental indeed but antecedent.

c. The contract is valid and firm if the buyer would have bought the goods even if he had known the error, although not at the same price, as if the seller does not give full measure or full weight: for accidental and concomitant deceit intervenes. But the deceived buyer has the right that the excess of the price which he paid be restored to him.

¹ C.A. Sections 871-876. C.G. Section 123 agrees with natural law.

537. On contracts entered from fear. A contract is made from fear if fear gives cause to the contract, so that without fear it would not have been made. In general it must be said that contracts entered from fear are valid, provided fear did not disturb the use of reason: for consent which is given from fear is a perfectly human act and voluntary simply, although at the same time it is involuntary in a qualified sense.¹ In particular these things must be held:

1. Fear, even grave fear, which is not unjustly instilled, renders a contract neither invalid nor rescindable: not the first, because fear does not take away consent simply voluntary; not the second, because no injury is inflicted on the contracting party.

Valid and not rescindable is the contract of him who, from fear of prison because of a grave crime committed, wishing to emigrate to America, enters a contract with the captain of a ship. Likewise valid is the contract of him who injured another in honor and from fear of penalty promises him money, lest he refer the matter to a judge.

2. Fear, both grave and light, unjustly instilled for extorting consent, by natural law does not render a contract invalid, but nevertheless renders it rescindable at the discretion of him who suffered the fear.²

The reason for the first is that the contract cannot be demonstrated invalid either because of defect of consent or because of injury inflicted on the contracting party: for this injury indeed brings it about that the contract is rescindable, but not that it is invalid.

The reason for the second is that he who, by instilling fear, inflicted injury on the other contracting party must remove the injury inflicted, whether it was grave or light. But this is removed by the fact that he who suffered the fear can dissolve the contract if he wishes, but if he does not wish, can compel the other party to fulfill the contract. Light fear in the forum of conscience makes a contract rescindable if the fear was truly the cause of the contract; in the external civil forum light fear is not considered.

a. In this matter a twofold exception must be made: alpha. a contract entered from grave and unjust fear, as if a robber extorts money by instilling fear of death, is invalid if the contracting party did not consent in fact: for since he consents not spontaneously but under compulsion, it can happen that he furnishes no other consent than that which in circumstances of this kind suffices for avoiding the evil which he fears; but for this merely external consent suffices. Therefore it can happen that a contract of this kind is invalid from defect of consent. beta. Marriage and religious profession, if they are celebrated from grave and unjust fear, are invalid by positive law, as will be declared in their own places.

b. There are authors (Dicastillo, Lugo, Reuter, etc.) who, also excepting gratuitous contracts from this law, teach that those entered from grave fear unjustly instilled are invalid by natural law. Nearly all admit the probability of this opinion. For for the value of a gratuitous contract, consent altogether free and perfectly voluntary seems to be required; otherwise the one promising or giving is not considered to transfer right in the thing promised or given. Therefore in practice the one promising (according to some simply, but according to others only after rescission of the promise has been made) is not bound to hand over the promised thing. The same must be said of the giver.

3. Fear, both grave and light, unjustly instilled for another end, not for extorting consent, makes the contract rescindable if it is instilled by the other contracting party, but does not make it rescindable if it is instilled by some third person without the consent of the contracting party.

The reason for the first is that the one instilling fear must cease from injury and repair every effect or damage arising from the injury; as if someone spontaneously promises money to an enemy so that he may cease from vexations and calumnies.

The reason for the second is that the contracting party inflicts no injury and therefore must repair no effect or damage of injury; as if someone, in fear of death instilled by a robber, promises money to a man he meets so that he may free himself from danger.

¹ Cf. De principiis, n. 56.

² Lugo, disp. 22, n. 133 ss. C.A. Section 870 and C.G. Section 123 declare contracts entered from unjust fear rescindable.