§ 1. Notions concerning These Defects and their Effects

308. Practical rules. In practical moral discipline, where account must be taken not only of speculative truth but also of various opinions, many distinctions are handed down concerning error and fear and their force and efficacy; here there is neither time nor advantage in pursuing them with exact discussion. Yet, so that we may touch upon the chief points which must be placed before the eyes in this disputation, let precisely these things be said:

1. CONCERNING ERROR. Substantial error per se dissolves a contract; accidental error does not,¹ unless consent has been expressly or tacitly subjected, as to a condition without which not—I contract if such a quality is present—to the quality which is falsely thought to be present. But if that error gave cause to the contract and arose from the deceit—or fraud—of one party, the other can rescind the contract at his own discretion. Indeed, even if no fraud was committed, as soon as error was truly the cause of contracting, Lessius, chap. 17, no. 33, and St. Alphonsus, bk. 3 (4), no. 715, grant to the party who erred the power of withdrawing from the contract, provided, as Génicot, vol. 1, no. 589, III, suitably adds, that he preserve the other party harmless.

¹ But if it has introduced inequality, or was the cause why something was bought for an excessive price, the price must be suitably moderated.

Moreover, an error is called substantial which affects the essence of a contract: whether its nature—a donation for a sale; its cause—you promise the restitution of money as having been accepted by loan, although it was not given by loan; or an object which, by the determination of the parties, is essential. Hence a quality which is principally intended pertains to the essence understood in this manner. Thus, if you seek a house for country living, its location in the country will be essential. An antecedent error gives cause to the contract, that is, an error without which consent would not have been given.

We posit the error as invincible. From a vincible error, losses will have to be repaired according to the degree of fault.

2. CONCERNING FEAR. Omitting fear which so disturbs the mind that it takes away essential deliberation, and fear from an intrinsic cause or from an extrinsic but just cause, by which a contract is not vitiated, all first oblige the author of unjust fear to repair the losses. Then, if a contract is made directly from extrinsic and unjust fear, some permit him who has suffered the fear to rescind the contract, provided that the fear was comparatively grave—with respect to the frightened person—or, if light, nevertheless gave cause to the contract and a gratuitous contract is in question, or one which, like betrothal, demands greater freedom.² Others deny that the contract is rendered infirm unless the other contracting party himself was to be blamed for the offense, at least as an unjust cooperator. Then they make the contract rescindable at the will of him who was affected by fear; indeed, some at least make it null, provided the fear was at least comparatively grave.

² These solutions are sought from equity. Cf. below, no. 312, 2, b.

Fear which was neither a sufficient nor a necessary cause of the contract does not vitiate it, but obliges to repair the losses. Finally, if a contract is made indirectly from fear, the contract is not rescindable unless the other party was blameworthy.

Moreover, a contract is made from fear if there would have been no agreement without the fear; it is made directly from fear if the fear was inflicted to extort consent; it is made indirectly from fear if force was inflicted for another end, so that the contract is just in itself.

309. The argument and opinions. We by no means intend to attack these solutions, but we inquire into their true and intimate explanation. Concerning the argument of the thesis, theologians think as follows:

1. Most defend the rules concerning error, relying upon this principle: that per se only substantial error, or an error by which a condition without which not is lacking, renders an agreement invalid.³ Some, however, whom we support, attribute to an error giving cause the power per se of rendering the act infirm. Thus Conradus, On Contracts, q. 57; Medina, On Restitution, q. 33.

³ Molina, tract 2, disp. 209, no. 25; Lessius, chap. 17, nos. 33, 34; C. de Lugo, disp. 22, no. 68 ff., especially no. 92; St. Alphonsus, bk. 3 (4), no. 715; Ballerini-Palmieri, Moral Work, vol. 3, pt. 3, no. 81 ff.

2. As regards fear, there are those who think that a contract becomes null through every grave fear unjustly inflicted by the contracting party.⁴ Others hold the same only concerning gratuitous contracts,⁵ while our position, to be explained immediately, is called the more probable and most common by St. Alphonsus, bk. 3 (4), no. 716. Lessius, chap. 17, dub. 6, and C. de Lugo, disp. 22, no. 115, agree with us.

⁴ Molina, disp. 326, no. 14; Rebellus, On the Obligations of Justice, etc., pt. 2, bk. 1, q. 5, no. 15; Ballerini-Palmieri, Moral Work, vol. 3, pt. 3, nos. 100-102.

⁵ Soto and others cited by C. de Lugo, disp. 22, no. 114.

We give what we think briefly in this manner: Through error, whose rationale we separate completely from fear, we pronounce that a contract becomes null from its first beginning as soon as consent must be derived from error; but we explain the practical efficacy which a contract infected by a non-substantial error, although giving cause, often obtains through a ratification which tacitly supplied the defect at the same time and is not rarely commanded by the law of nature.

Fear, on the contrary, as we opine, renders no contract infirm of itself. Yet he who contracted from fear will be able to rescind the contract if either an injury must be repaired by the other contracting party, or natural equity—cf. no. 312, 2, b—counsels that this faculty belongs to the one who suffered fear. Yet we defend these things only as more probable to us.