§ 3. On Legitimate Consent

The consent of the contracting parties is truly the soul of the contract, because when legitimate consent is lacking, the contract is dead.

We shall treat the qualities and defects of consent.

255. A. Qualities of consent. Consent must be: 1. true or internal; 2. free and deliberate; 3. externally manifested; 4. mutual.

1. True or internal, not merely external or feigned. Hence consent in external words alone does not suffice for the validity of a contract in the forum of conscience. Thus the common opinion against a few older authors.³⁷

The reason is that a contract gives rise to a truly human obligation, i.e., one morally affecting not only the body but also the soul. I say, however: in the forum of conscience, because in the external forum (especially the civil forum), where interior things are judged by exterior things, a contract entered even with feigned consent is regarded as valid. Therefore, one who feigns consent, i.e., without the intention of contracting, is not bound in conscience by reason of the contract, since it is null; nevertheless, he is bound to indemnify the other who suffered damage from this deception. Indeed, if no other means of repairing the damage is available, the one feigning consent is bound to furnish true and valid consent. This can especially happen in matrimonial consent feignedly furnished. - But what is to be said if a contracting party indeed had the will to contract but by no means wished to oblige himself? St. Alphonsus thinks more probable the opinion which affirms that even in this case the contract is invalid, because that will existing from the beginning is contrary to the substance of the contract and consequently invalidates it.³⁸ But if someone has the will indeed to oblige himself, but not to stand by the promise, then the contract is valid, because the will to oblige oneself suffices for the essence of a contract. It is evident, however, that a contracting party of this kind sins on account of the deception caused to the other contracting party.

2. Free and deliberate, i.e., furnished with that advertence and freedom which are required for a perfectly human act.

Complete freedom from every fear is not always required for the validity of a contract, as will be evident below. Since a contract is a human act inducing a moral obligation, it is manifestly evident that it requires sufficient deliberation. Hence the insane, infants, etc., lacking sufficient deliberation, cannot enter a contract.

3. Externally manifested, so that it can be clearly perceived by the other.

For since contracts are entered between men who do not know the secrets of hearts, merely internal consent does not suffice for a valid contract. Hence consent offered to another does not perfect the contract at the time when the latter consents, but when the offerer clearly perceives and accepts the other's consent. The manner in which consent must be manifested is wont to be determined by positive laws: whether by orally pronounced words, or in writing, or before witnesses, etc.

Silence is generally not held for consent unless this is evident from the circumstances. But this is presumed to be evident: a) if the contract is favorable to the one remaining silent, as in a donation; b) if the contracting party could very easily contradict it and does not do so. - Nevertheless, even in these cases silence furnishes nothing except a presumption, which must sometimes yield to the opposite truth. Hence, e.g., if publishers of newspapers or books send their works and declare that those who do not return them are considered subscribers, silence can by no means be held as consent, at least where civil law establishes nothing concerning this matter. But a civil law establishing the contrary seems burdensome and ought to be abolished.

4. Mutual, i.e., furnished by both contracting parties concerning the same object.

This holds even in gratuitous contracts. For although someone can by his own will alone cast off dominion over some thing, he nevertheless cannot bring that same thing under the dominion of another unless the latter consents. But it is not required that the consent of both contracting parties be elicited at the same time; it suffices that the internal and manifested consent of one virtually persevere when the other elicits and first manifests his consent. One who offers a contract can also determine the time within which his consent virtually endures and the other must furnish consent. If the other has consented within this time and has expressed this, the contract is valid; but once this time has elapsed, new consent of both is required. As is evident, many disputes can easily arise from this source; hence positive laws are wont to establish when a contract is perfected, especially if it was offered between absent persons by letters or by procurators. These statutes indeed are to be observed even in conscience. Hence the commercial codes of the various regions are to be consulted.

³⁷ Cf. Billuart, De contract. diss. 2, a. 2.

³⁸ Theol. mor. l. 3, n. 710.

256. B. Defects of consent are said to be those impediments which either remove or diminish the consent of the contracting parties and consequently either invalidate the contract itself or render it rescindable. They are commonly enumerated as: a) error and fraud, by which the intellect is deceived; b) force and fear, by which the freedom of the will is injured. We shall speak of error together with fraud, and of force together with fear.

257. a) On error and fraud. Error is a judgment discordant with objective truth. Error which has place in contracts can be either substantial or accidental, according as it concerns either the very substance of the contract or only its accessories. Moreover, the substance of the contract is that which the contracting party intends primarily or at least as a condition without which not. It can be either the substance itself or a quality of the thing or both together; e.g., substantial error is present if someone wishes to buy wine from grapes and wine from apples is sold to him. - On the contrary, an error is regarded as accidental when it concerns qualities which do not redound to the substance and consequently are not primarily willed; e.g., if someone thinks he is buying pure milk, but in fact receives milk to which a very small part of water has been added. In practice it is not always easy to distinguish between accidental and substantial error. Therefore attention must be paid both to the intention of the contracting parties and to the individual species of contracts.

When the error of one contracting party is caused by the frauds or fallacies of the other or of a third person, there is malicious fraud (arglistige Täuschung). Therefore fraud is often the cause of error, although error can be present without fraud. When fraud is on the part of one and error on the part of the other contracting party, the following principles hold a fortiori, although they are also verified concerning error alone without malicious fraud.

Principle 1. Substantial error renders a contract invalid.

Thus all systems of law establish.³⁹ The reason is that one who errs concerning the very substance does not give true consent. But without true consent no contract exists. Hence, e.g., if someone wishes to buy wine from grapes and receives wine from apples, the contract is invalid; or if someone wishes to buy a painting of Raphael and receives a painting of another painter, the purchase is invalid. - In the external forum, substantial error must be strictly proved before the contract is invalidated.

Principle 2. Accidental error does not of itself render a contract invalid; nevertheless, it often renders it rescindable.

The reason for the first part is that consent to the substance suffices for the validity of a contract. But accidental error does not necessarily destroy this consent to the substance.⁴⁰ - The reason for the second part is that it greatly concerns the common good that contracts be free in every respect. But even accidental error in some manner renders a contract not free. Hence in several cases positive laws permit rescission of a contract when it can be proved that accidental error or fraud intervened. - By natural law, however, there is considered rescindable on account of accidental error: 1. a gratuitous contract which was made for the utility of one who caused the accidental error. E.g., a donation made to a poor man who pretends to be upright but in fact is wicked is indeed valid, but can be invalidated by the donor. 2. An onerous contract which was caused by the fraud of the other contracting party, or when enormous injury was deceitfully caused to one of the contracting parties, e.g., by a truly excessive price or by corrupted or damaged merchandise. In practice the statutes of positive law are to be followed, since many cases are insoluble from natural law alone.⁴¹ Concerning error in a contract of espousals and matrimony, cf. below in the tract on matrimony.

³⁹ Cf. Code of Canon Law, c. 104; German Civil Code § 119; French Civil Code art. 1109ff.; Swiss Code of Obligations, art. 23ff.

⁴⁰ Cf. St. Alphonsus, Theol. mor. l. 3, n. 715.

⁴¹ Cf. Billuart, De contract. diss. 1, a. 3; German Civil Code § 123; Swiss Code of Obligations, art. 28. Ecclesiastical law establishes that one who, from error in a contract, has suffered grave injury, i.e., beyond one half, can seek rescission of the contract within two years. Code of Canon Law, c. 1684, § 2.

258. b) On force and fear. Force or violence proceeds absolutely from an extrinsic principle, so that the one suffering force wholly resists but is overcome by the greater power of the one inflicting force. Since force or violence entirely removes voluntariness, as is evident from what was said above, I, n. 65, concerning human acts, it also removes consent and consequently invalidates every contract.⁴² Sometimes, however, force or violence is not so absolute that the one suffering force cannot resist in any way, and then the same is to be said of it as holds concerning fear. Since enough has already been said above, I, n. 67ff., concerning the notion and division of fear, the following propositions are briefly set down here in the matter of contracts:

1. Fear so grave that it disturbs the use of reason invalidates every contract.

This is evident of itself, because it totally removes consent.

2. Grave fear inflicted by a natural cause, or even justly inflicted by a free cause, neither invalidates nor renders a contract rescindable.

The reason is that such fear neither removes consent nor inflicts any injury upon the contracting party. Hence, e.g., one who, from grave fear lest he be defamed, marries a girl deflowered by him validly effects the matrimonial contract; or one who enters religion on account of grave fear of hell emits a valid religious profession.

3. Slight fear unjustly inflicted by a free cause is not regarded in the external forum, but in the internal forum: a) more probably invalidates gratuitous contracts (because the greatest freedom is required for them); and b) probably renders onerous contracts rescindable.

For the rest, authors are by no means in agreement in this matter.⁴³ In practice attention must be paid to the matters concerning which the contract was entered. Thus, e.g., espousals entered on account of slight fear can more probably be rescinded.⁴⁴

4. Grave fear unjustly inflicted by a free cause in order to extort consent ordinarily does not indeed invalidate a contract, but renders it rescindable.⁴⁵

I say: ordinarily does not invalidate, because there are several cases in which contracts of this kind are invalid by positive law, as was said above, I, n. 71. The far more common and more probable opinion teaches that contracts entered from such fear are not invalid by natural law itself. The reason is that this fear removes neither voluntariness nor consent, and consequently the essence of the contract remains intact. Certainly, if a contracting party under the influence of grave fear unjustly inflicted furnishes external consent only, but internally dissents, then the contract is invalid. - Billuart⁴⁶ thinks that, by natural law itself, a contract is invalid whose object is liberation alone from grave and unjust harassment. For this liberation, or cessation from such unjust harassment, is not salable, because it is already owed from justice itself. For everyone has a strict right not to be harassed by unjust fear, and the one harassing is bound from justice to cease from harassment. Therefore, just as a judge cannot validly contract concerning the pronouncement of a just sentence, to which he is already bound by force of his office, so such an unjust harasser cannot validly contract concerning cessation from that harassment. This opinion indeed seems to be subtle rather than true. For in every contract entered on account of unjust fear, the contracting party intends to free himself from unjust harassment. Therefore it would have to be said that all such contracts are invalid, which nevertheless Billuart himself does not admit. - Some theologians teach that all gratuitous contracts entered from grave fear unjustly inflicted are altogether invalid.⁴⁷

Authors teach most commonly that contracts entered from grave fear can be rescinded. The reason is that "things which are done by fear and force ought by law to be called into nullity."⁴⁸ For one who has suffered grave fear unjustly can petition a competent judge⁴⁹ that the injury inflicted upon him be repaired; but this cannot be done sufficiently unless he is held harmless, or unless the contract entered is rescinded. Whether this rescission can be made even by one's own authority is disputed. St. Alphonsus^49a calls the affirmative opinion more common and to be held, but the negative opinion is more conformable to the Code of Canon Law, c. 103, § 2, and also safer for avoiding illusions. The permission of the confessor suffices, however, for the internal forum.

For the rest, the whole controversy concerning contracts entered under grave fear unjustly inflicted is not of such great moment for practice; for whether these contracts are called invalid or rescindable, their effect can always be forestalled by rescission. Nor is there any further difficulty concerning a contract of espousals, of which there will be discussion elsewhere.⁵⁰

⁴² Code of Canon Law, c. 103, § 1.

⁴³ Cf. St. Alphonsus, l.c., n. 718.

⁴⁴ Ibid., l. 6, n. 844.

⁴⁵ Code of Canon Law, c. 103, § 2.

⁴⁶ L.c., a. 4.

⁴⁷ Cf. Marc, Instit. mor. I, n. 1051, and Tanquerey, De iust. n. 636.

⁴⁸ c. 2, X 1, 40; Code of Canon Law, cc. 103 and 1684.

⁴⁹ Cf. Code of Canon Law, l.c., and c. 1688, § 2. Civil codes are wont to determine one year for this action.

^49a Theol. mor. l. 3, n. 712.

⁵⁰ Cf. below, III, n. 719.