§ 1. Notions and Conclusion

True or internal consent, manifested by an external sign and mutual among the contracting parties, pertains to the essence of every agreement.

299. I. State of the Question. 1. INTENTION OF THE THESIS. The very description of a contract shows that some rationale of consent is necessary. What kind is demanded for the efficacy of every agreement, we here inquire into and define, requiring consent which is at once internal, external, and mutual.

2. OPINIONS. These conditions seem indubitable and not to provide an occasion for disputing. Nevertheless, Vasquez,¹ on account of his definition of a promise, contends that it is impossible for words of promise to be uttered without the will of promising; but that, if it can be done, such a promise will oblige no less than if it were made with the will of promising. Some assent to him, against the common and certain opinion which we defend by this position. Cf. C. de Lugo, disp. 22, no. 45 ff.; Carrière, On Contracts, no. 21. The most common doctrine likewise, with St. Thomas, II-II, q. 88, art. 1, corpus, holds that external consent is required, although Molina, disp. 266 (from no. 8), considers it doubtful when a gratuitous contract is in question.

¹ Diss. 6, chap. 2, in the tract On Marriage, which, being overtaken by death, he could not complete, and which is found at the end of his Disputations on the Third Part of St. Thomas. The definition of a promise is handed down in no. 14.

3. THE TERMS ARE EXPLAINED.

Pertains to the essence of every agreement. We ask, therefore, with what qualities consent must be adorned so that, by the law of nature itself, a contract can subsist. We do not deny that other requisites can be superadded both by the contracting parties and by positive law; rather, we inquire into the minimum which is necessary.

True or internal consent pertains to it: consent is of this kind if the mind agrees with the words or signs which indicate assent. But when a contract is made only externally and apparently, without the intention of contracting, the consent is called fictitious.

External consent was already held by Vasquez to be true; his opinion gave us cause to say: true or internal.

Manifested by an external sign. Silence itself, in certain circumstances, can disclose consent. Hence the common saying—yet to be accepted cautiously: “He who is silent is regarded as consenting” (rule 43, On Rules of Law, bk. 6).

And mutual among the contracting parties: by these words we signify that it is required not only that each party consent, but that the consent of each concur in the same object, in the same contract—not by a merely material identity of occurrence, but formally, so that they constitute one moral thing.

300. II. Proof. A contract is, from its very definition, a voluntary commutation of rights. Therefore, that consent is essential to every agreement which alone can be the adequate cause of the commutation of rights.

But. Consent of this kind cannot be such a cause unless it is true or internal, external, and mutual. Therefore.

The first inference is apparent; hence,

To the minor. A commutation of rights does not signify a simple extinction of a right or the assumption of an obligation in one person, and the acquisition of a similar right by another, but the formal transfer of the same right from one to another, the immediate succession of one person into the place of another in the same right, by which one loses a right or obliges himself in order that it may be acquired by the other; while the other acquires dependently upon the loss by the former. Cf. above, no. 222.

But the cause of a transfer cannot be voluntary unless there is:

1. TRUE OR INTERNAL CONSENT. Argument 1. That which does not exist effects nothing. But. Fictitious consent is consent only in appearance. Therefore.

Argument 2. From a promise. “A promise is a private law which the promisor imposes upon himself and by which he binds himself.” But. Without the intention of binding oneself, the law does not subsist. Therefore. Cf. C. de Lugo, disp. 23, no. 4; and St. Thomas, II-II, q. 88, art. 1.

2. EXTERNAL CONSENT. This appears necessary in every respect. For if, in a contract, you consider the rationale of the transfer of a right from one to another, this implies the intercourse of men among themselves, which does not exist without external signs; if you consider the obligation which has arisen, this is correlative to a right, which can in no way be granted to the other by the merely internal and hidden consent of the former, since a right, as a faculty of the will, ought per se to be capable of being known; finally, if you consider the thing itself, the object of the right, a merely internal act cannot connect it in a sensible or human manner with him who acquires the right, so that others can and ought to respect that relation of the thing to the person. Cf. C. de Lugo, disp. 23, no. 31.

Or, still more briefly: Such consent is required as can effect a change of rights among men. But. Among men, merely internal consent is as though it did not exist and therefore can effect nothing. Therefore. External consent is required.

3. MUTUAL CONSENT, in the rationale explained: a) insofar as the consent of each party is required. For on account of the personal independence of each, neither can be obliged or acquire a right by the consent of the other, but only by his own consent.

b) Insofar as they concur formally in the same thing. For unless one formally wills to acquire from the other, by such an agreement, that very thing which the other wills to grant to him through this agreement, there will not be an immediate succession from consent as a complete cause.

301. III. Difficulties.

1. AN EXTERNAL PROMISE NECESSARILY IMPLIES A TRUE PROMISE. He who voluntarily utters defamatory words necessarily defames, although he wills not to defame. By parity of reasoning, he who voluntarily utters promissory words necessarily promises (Vasquez, work cited, no. 17).

Reply. I deny the parity.

The effect of defamation is obtained from words uttered externally; the effect of a promise is not so obtained, for its cause is the will binding itself. Indeed, for defamation which is formal in the terminus (nos. 143, 145), not even the intention of uttering the words is required. Therefore, this argument, if it were valid, would prove too much.

Instance. But. There is parity. For an external promise is nothing other than “an affirmation and a certain enunciation of a thing to be done in the future, intimated to him for whose favor and utility or service the thing is to be done.” But. As soon as the words of a promise are voluntarily uttered, this definition is present. Therefore. (Vasquez, work cited, no. 14.)

Reply. I distinguish the major: a thing to be done in the future from an obligation imposed upon oneself by the will—then I concede or I pass over the major; a thing to be done in the future, that is, a thing which is foreseen as future, or whose obligation flows from a certain injurious deed, such as deception, I deny. I contradistinguish the minor. As soon as the words are uttered, that definition is present: in the former sense, I subdistinguish: if the internal intention was present, I concede; otherwise, I deny; in the other sense, I concede.

The definition, understood in the manner which we have rejected, applies to the enunciation either of a freely conceived resolution—as C. de Lugo, disp. 23, nos. 7-9, shows well—or of a debt arising from an offense.

An external promise is rather the speech of a will binding itself to perform something for another. Where such a will is not present, there is, strictly speaking, no speech of it.

Instance. But. That definition is always present in the former sense, which was conceded.

For he who does not keep an external promise of this kind is called unfaithful.

Reply. He is called unfaithful in a certain broader sense and because he is presumed not to have made this fiction, I concede; in the strict sense, I deny. Cf. no. 305.

Instance. But. In the strict sense. For the obligation of fidelity is an obligation of a certain veracity. But. Veracity requires that the sign agree with the thing signified and therefore that deeds agree with the words by which they are promised externally. Therefore. An external promise gives rise to an obligation of fidelity.

Reply. I deny the supposition.

We are treating the obligation of justice, while the argument is drawn from the obligation of fidelity. Moreover, in what manner the things said concerning this latter obligation can be conceded, cf. above, no. 290.

2. EXTERNAL CONSENT IS NOT REQUIRED.

a) Words and signs have no power except from the interior act. Therefore. The latter suffices, since it appears to contain the whole power (Molina, tract 2, disp. 266, no. 9).

Reply. I distinguish the antecedent, that is: they do not operate except in virtue of the interior act, I concede; with this power posited, they effect nothing instrumentally, I deny. I distinguish the consequent: the interior act suffices if words contain no instrumental power, I concede; otherwise, I deny. To the necessity of how many instruments could the same difficulty be opposed!

b) By positive law, certain donations are valid without any acceptance. But. Then there is no longer any rationale for demanding an external sign. Besides, positive law cannot derogate from nature. Therefore. (Molina, work cited, no. 10.)

Reply. In such a way that they oblige from justice, I deny; from fidelity or religion, when, for example, you have made a vow to God rather than a promise to another man, I concede or I pass over. And the minor could rather be denied as well, with C. de Lugo, disp. 23, no. 34.

Certainly, sometimes it is not the donee himself, but another who represents a man or a pious institution, who perfects the contract by his acceptance; but that there is a case in which, without any acceptance, an obligation of justice formally arises, C. de Lugo rightly denies, and he explains the more difficult cases in disp. 23, no. 42 ff.

c) If yesterday, by a merely internal act, you promised something to someone, and today you disclose to him your unrevoked promise of yesterday, you will be bound from yesterday's internal promise by the promisee's acceptance. Therefore. (Molina, work cited, no. 11.)

Reply. I distinguish the antecedent. If your speech today has the rationale of a notification, I concede; if it has the rationale of a speculative narration, I deny—unless perhaps the other, taking possession of the thing, can retain it under this title because he knows that you do not urge your right to restitution. Or even then, the taking of your thing can be a kind of petition to which you tacitly assent. Cf. C. de Lugo, disp. 23, no. 34.

d) By an internal act alone you can lose possession or ownership. Therefore. By parity of reasoning. (Molina, work cited, no. 12.)

Reply. 1. I distinguish the antecedent. To lose it in an irrevocable manner and in a manner which binds me, I deny; otherwise, I concede.

So long as this has not appeared externally, no one will be able to take possession of the thing against my will.

2. I also pass over the antecedent. I deny the parity.

Here the question concerns not losing a right but communicating it to another.

e) He who violates a merely internal promise is unfaithful. (Molina, work cited, no. 13.)

Reply. Either I pass it over, because we are not treating the obligation of fidelity; or I deny it, because he is unfaithful to no one who deceives no one.

f) He who confirms a merely internal promise by an internal oath is bound gravely by this promise. (Molina, work cited, no. 14.)

Reply. Insofar as the oath has the force of a vow, I concede; otherwise, I deny. Cf. C. de Lugo, work cited.

3. AT LEAST IN GRATUITOUS CONTRACTS, EXTERNAL ACCEPTANCE IS NOT REQUIRED.

a) “If you have Peter's book on loan, and he writes to you donating the book: by the very fact that, after reading the letter, you accept the gift, you are regarded as sufficiently acquiring ownership of the book without another external act, and you can dispose of that book.” Therefore. From use and practice, external acceptance is not required. C. de Lugo, disp. 23, no. 64.

Reply. I distinguish the antecedent. You can dispose of that book because you accepted only internally, I deny; because in a matter of mere favor you sufficiently declare your consent either by the very disposition of the book or, even earlier, by silence itself, I concede. I distinguish the consequent likewise.

b) “If an external action were necessary, ... it would suffice for this end that, alone in your room, after reading the letter, you say in a perceptible voice: I accept. But this seems wholly superfluous.” C. de Lugo, work cited.

Reply. I deny that this would suffice.

For external acceptance is required in order to human intercourse, so that it can therefore be established among men. Cf. Carrière, nos. 27, 28.

c) “Acceptance is required insofar as no one is to be compelled against his will to acquire something new; but for this internal consent and acceptance suffice.” C. de Lugo, work cited.

Reply. I concede the first part of the assertion, which stands in the place of the major. But I deny the other part, that is, the minor, by which it is said that internal consent suffices for this. For consent, as soon as it is required, must be such that rights can be changed among men. But merely internal consent cannot found a right which must be observed by other men, since it can be violated.

4. THE CONSENT OF BOTH PARTIES IS NOT REQUIRED.

a) Otherwise positive law could not bring it about, as it sometimes does, that certain donations not yet accepted cannot be revoked.

Reply. I deny it. For the legislator can bring this about, either because he himself meanwhile accepts under a condition, in the name of the moral person—for example, the one to whom the donation is offered—or because, on account of the public good, he binds the will of the citizen with a stricter bond than the offer bears of itself. Cf. C. de Lugo, disp. 23, no. 40; Lessius, chap. 18, no. 40.

b) An obligation arises not from the will of the one accepting but from the will of the one promising. Therefore. Acceptance is not required for an obligation.

Reply. I distinguish the antecedent. The obligation does not arise from the will of the one accepting as from an adequate or primary cause, I concede; as from a partial cause, I subdistinguish: if it is an obligation of justice, I deny; of fidelity, I concede or I pass over.

For an obligation of justice arises from the concurrence of both wills, to which the will of the one accepting pertains. Or, if you prefer, there is no obligation of justice toward another unless the other has acquired a right; but he does not acquire it except by his own will. Therefore, this will has a partial efficiency. Cf. C. de Lugo, work cited.

c) After a debt has been remitted by the creditor, even before any acceptance, the debtor is freed from the obligation of paying; for the debt can remain unpaid without the creditor's being unwilling, just as another's thing can universally be retained without the owner's being unwilling. Therefore. At least acceptance is not always required.

Reply. I distinguish the antecedent. Before acceptance, the debtor is indeed freed from the obligation of paying, in a revocable manner and while the same will of the creditor endures, just as another's thing can be retained—as another's thing—before acceptance, I concede. He is freed in an irrevocable manner, so that he has acquired a right by which he becomes immune from an action by the creditor, and another's thing can now be retained as one's own, I deny. Cf. C. de Lugo, disp. 23, nos. 53-55.

By acceptance, however, he acquires that right; that is, the right which the creditor had passes to him. But since he is at the same time the debtor, and no one can owe anything to himself, that right is extinguished in him by confusion. Thus C. de Lugo, work cited, no. 60 at the end.

By a similar rationale, by will alone someone cannot so lose ownership that, before another takes possession of the thing as abandoned, he cannot justly resume it after changing his will. Concerning these things, cf. C. de Lugo, work cited, nos. 56-60.

5. AT LEAST CONSENT STRICTLY MUTUAL, OR THE MORAL UNION OF EACH WILL, IS NOT REQUIRED.

He who takes possession of another's thing while ignorant of the latter's consent, and afterwards is informed that the other was not then unwilling; or, generally, he who takes something for himself from the presumed will of the owner, can retain the thing. But. Then there is no moral union. Therefore.

Reply. I divide the major. As regards the former assertion: he can retain the thing either as having been made the property of the first occupant, if it was then simply abandoned; or so long as the other does not change his will, that is, does not exercise his right, I concede. He can retain the thing as acquired for himself by contract, I deny. As regards the other assertion: he can retain the thing in such a way that he has acquired a right against the person whose consent he presumes, I deny; because the other does not exercise his right, which he has not lost, I concede.

You should distinguish the non-use of a right from the cession of a right. Yet it can happen that he whose will is said to be presumed has given such signs by which he offers things, as it were, perpetually. Thus merchants act who publicly announce that they will buy or sell certain merchandise at a price already defined. Indeed, for the required moral union to be present, it will then suffice per se if this permanent offer is accepted.