§ 2. Conclusion and Supplements to the Doctrine

Per se, every error truly giving cause to a contract invalidates the contract, but no fear, even grave fear, does so. In practice, however, a contract infected by a non-substantial error will often bind simply, on account of a tacit ratification or one imposed by nature itself; while an injury to be repaired or natural equity not rarely gives to one who has suffered fear the power of rescinding a stipulation made from fear.

310. I. State of the Question. 1. INTENTION OF THE THESIS. This appears from what has been said to be that we define the true force of error and fear upon agreements, and thus at the same time attain the just measure and the deeper rationale of the solutions which are commonly reported. What we will, moreover, has just been handed down. Hence:

2. THE TERMS ARE EXPLAINED.

Per se invalidates the contract: that is, by the law of nature and considered in its first, as it were, beginning, the contract as such does not produce juridical effects.

Every error truly giving cause: that is, removing that knowledge which would have prevented consent.

Every: both concerning the substance and concerning a quality, whether the mind of the one erring was positively conditioned or not.

But no fear: even if it was inflicted unjustly and directly to extort consent.

Even grave fear. By these words we indicate not only that the case of light fear is easier, but also intimate that we do not consider fear by which the mind is so disturbed that it takes away a human act. For concerning this the question is readily resolved.

It is also apparent that we posit consent which is truly internal, so that we exclude the case of fiction which Ballerini-Palmieri constructs in the work cited, no. 100.

In practice, however, a contract will often bind simply. This they commonly admit. Therefore, we give our own—and, unless we are mistaken, more adequate—explanation; yet we do not reject the practical response of others.

Infected by a non-substantial error. For substantial error, at least invincible error, leaves the transaction unperfected, as all confess. But if it was vincible, losses can have to be repaired according to the degree of fault.

On account of a tacit will signified by the contract itself. For he who expressly consents, for example, to a sale, at the same time tacitly says that he renounces the benefit of errors which, from common sense and according to the varying nature of contracts, cannot be taken into account. He is regarded as bearing this habitual disposition of mind. And from that tacit and simultaneous confirmation we derive the efficacy of the consent which we judge to be inefficacious per se; while, for our adversaries, the consent itself is efficacious per se, unless, on account of a conditioned mind, it is subjected to a tacit revocation.

Or a ratification imposed by nature itself. For the natural law itself, since it prevents contracts from being too unstable, imposes this ratification. But if the will of the party positively resists, it will be blameworthy for an injury to be repaired.

While an injury to be repaired or natural equity not rarely gives to one who has suffered fear the power of rescinding a stipulation made from fear. Cf. no. 308, 2. By stipulation we understand the contract itself.

II. Proof.

311. A. OF THE FIRST PART. Concerning the efficacy which belongs per se to error or fear.

In order that nothing essential be lacking in a contract on the part of consent, it is required and sufficient that consent, which is truly a human act, find its adequate cause.

But. Every error giving cause per se takes away this requisite, but no fear, even grave fear, does so per se. Therefore.

The major is evident, because a contract is a voluntary commutation.

The minor is proved. Insofar as consent labors under ignorance, the act is non-human; but insofar as it would not have been given without that ignorance, it formally enters the contract in fieri [in its coming-to-be] by this very non-human part of itself and would exercise necessary efficiency upon the effect of the obligation, if the latter were present. Hence St. Thomas, I-II, q. 6, art. 8, pronounces universally that antecedent ignorance—which is present “when it is not voluntary and nevertheless is the cause of willing what one otherwise would not will ... causes the simply involuntary.” Hence also the sayings: “Those who err do not seem to consent. There is no consent of one who errs. The will of one who errs is null.”

On the contrary, consent given from fear remains wholly human. Deliberately, with this or that evil impending, this means of escape is chosen.

Therefore, things done from fear which does not disturb reason are universally pronounced voluntary simply, although for the most part they are at the same time involuntary in a qualified respect. Cf. St. Thomas, I-II, q. 6, art. 6.

It is confirmed, as regards the effect of error:

a) From the fact that the practical rules of Lessius and St. Alphonsus—above, no. 308, 1—can scarcely be explained in the other opinion. For how, if an error giving cause to a contract does not vitiate the contract, is withdrawal from the contract permitted to a person who was deceived by no one except himself, so that, especially while the thing remains intact, he does not consider himself bound? How is this called the tacit mind of the contracting parties by St. Alphonsus, no. 715?

b) From the fact that Ballerini-Palmieri himself, no. 91, perceives and explains exceedingly well the difficulty of the matter, namely, that no greater obligation can be imposed upon someone through a contract than that which he himself willed to assume, nor can it be that he willed what he did not know. Hence the contract retains force merely to avoid disturbances in human intercourse. But this inconvenience is avoided equally well by our opinion.

It is confirmed, as regards fear, from the fact that fear which is not unjust, or which is from an intrinsic cause, as all confess, does not render the contract infirm; nevertheless, it touches consent in no other manner than unjustly inflicted fear does. But an injury which has been done, although it indeed produces its own effects, nevertheless does not intrinsically change the contract itself, as Ballerini-Palmieri, no. 90, appears to contend.

312. B. OF THE OTHER PART. Concerning the practical corollaries.

1. In practice, however, a contract infected by a non-substantial error will often bind simply, on account of a tacit ratification or one imposed by nature itself.

Contracts, although vitiated by some error, obtain of themselves that firmness which is commonly required for intercourse among men. For the parties are regarded as mutually furnishing to one another this security against fortuitous errors and deceptions; and the natural law itself, so that it may sufficiently provide for the common good, imposes this firmness. But no greater firmness would be proved by any argument.

But. A tacit ratification by which the parties, within the limits of the common requirement, renounce the benefit of error plainly renders the contract firm to the extent required for the common good.

Therefore. This ratification is to be admitted or is imposed by nature itself; and therefore, on account of it, it will not rarely happen that a contract infected by a non-substantial error binds simply. By a non-substantial error, I say: for there is not the same rationale for substantial error, which more fully removes all efficiency of the will and is more easily avoided.

Our adversaries, however, while they attribute to vitiated consent itself a general efficacy of commuting rights, introduce in vain into contracts a certain effect beyond consent. In vain: for there is no necessity; nor then will they be able to explain the faculty of withdrawing which was conceded above, no. 308, on the authority of Lessius and St. Alphonsus.

2. An injury to be repaired or natural equity not rarely gives to one who has suffered fear the power of rescinding a stipulation made from fear.

Nature itself wills that an injury be adequately repaired unless a prevailing common detriment stands in the way; and nature itself sanctions natural equity. For this sanction pertains to the suitable governance of private property.

But. The faculty of rescinding granted to him who has suffered fear:

a) Is required for the perfect reparation of an injury, as soon as the other contracting party is in some manner guilty of the force inflicted. This is evident. For unless he permits the outcome of the contract to the will of him upon whom he inflicted fear, he will truly reap the fruit of his injury.

b) Is often demanded by natural equity, even if the other party was not blameworthy. For it would be per se contrary to natural equity for someone through consent extorted by fear to relinquish his thing or his right in an immutable manner; and this would be the more inequitable, the more the contract by its nature demands a spontaneous will, or the less detriment to the other party is to be feared from rescission. For all hold that it belongs even per se to the rationale of ownership, which bears upon this, that it grant the free use of a thing, that agreements be made from sufficiently spontaneous consent; and that this is especially necessary in those whose cause is the intention of doing good, or by which personal freedom itself is in some manner alienated. Hence, on the one hand, the common good of itself demands that true consent be efficacious; yet, on the other hand, equity wills, especially in donations and marriage, that this consent be spontaneous. A fitting manner of reconciling these things will be that contracts made from unjust fear are indeed valid, but are not firm without new consent, unless either the very nature of the contract, which cannot be rescinded, or a prevailing detriment to the other party stands in the way—as would happen if, in an onerous contract, light fear inflicted by a third party could be opposed against the party who had no share in the injury.¹

¹ Thus we defend the cases handed down in no. 308, 2. Yet this faculty of rescinding, on account of equity, is not approved by all.

Therefore. This faculty is granted by nature insofar as it can be granted without detriment to a greater common good.

But the greater sanction of nullity a) is not required per se, since nothing harms the injured party except an obligation firmly assumed; b) indirectly favors him less, since it dissolves the bond of the other contracting party. But the objection drawn from contracts which, like marriage, cannot be rescinded will be resolved below, among the replies to the difficulties.

313. III. Difficulties.

1. NOT EVERY ERROR GIVING CAUSE RENDERS A CONTRACT INFIRM PER SE. For:

a) An error of this kind is often not substantial but accidental. But. What is not substantial does not take away the essence of a thing. Therefore.

Reply. I distinguish the major. It is not substantial in relation to the object, insofar as it does not regard its substance, I concede; in relation to the voluntary, I deny. I contradistinguish the minor: what is in no respect substantial does not take away the essence of a thing, I concede; what is substantial in some respect, I deny; or I subdistinguish: it does not take away the essence of the thing under this respect, I concede; under another respect and simply, since the essence itself perishes when one note is lacking, I deny.

Through every error giving cause, it comes about that the contract is no longer wholly from the will as from an adequate proximate cause; this corrupts the voluntariness required for a contract. Hence, strictly speaking, there is not even consent to the substance of the thing as it exists, but rather to the abstract rationale of the substance.

b) If anything involuntary took away a contract, because of the frequency of the occurrence, there would be an incredible disturbance in human intercourse. Ballerini-Palmieri, On Contracts in General, no. 91.

Reply. Unless it recovered its firmness from a necessary ratification, I concede; with the law of ratification posited, I deny.

c) The will of one who errs concerning a quality is not to be explained by these words: “I contract if the thing has this quality,” but by these other words: “I contract, although I would not contract if I knew that the thing lacked that quality.” But. Since he is in fact ignorant, that condition effects nothing and does not impede the actual and absolute consent which is present in fact. Therefore.

Reply. I deny the major, because at least its latter part is false.

For the intention is to be declared thus: “I contract, not intending to contract unless, as I judge, such a quality is inherent in the thing.” But the objector so explains consent that, contrary to the hypothesis, he suppresses every error. In place of error he posits consciousness or a positive suspicion of true ignorance! But the rationale of infirmity is not so much the defect of an appended condition as the defect of voluntariness from an error giving cause.

2. A CONTRACT MADE FROM UNJUST FEAR IS OF ITSELF INVALID. For:

a) That fear takes away the cause of the contract.

For either a gratuitous contract is in question: he who promises from fear does not have an intention of liberality (Ballerini-Palmieri, no. 102); or an onerous or bilateral contract is in question: he does not intend to exchange the other's burden or obligation for his own, but merely exchanges his own obligation for redemption from unjust harassment. But this is a false cause, since it regards an object which is not capable of valuation by price, as being already owed from commutative justice.

Reply. I deny the assertion and its proof.

For he who truly consents to a contract wills the intrinsic end of the obligation which pertains to this contract. Therefore, he wills to give gratuitously, although that intention does not proceed from a mind benevolent of its own accord. Yet how often does it happen that gifts are made with little willingness, but sincerely, because custom compels or the hope of some utility advises it! Similarly, he truly wills to exchange his own obligation for the burden or obligation of the other. The difficulty confuses a cause properly so called with an impelling motive or a more remote end. Cf. C. de Lugo, disp. 22, no. 120.

Instance. He who, in order to cover his head, puts his arm in the way of a stick, and his arm is therefore injured, is not regarded as having consented to that wound. But. The matter stands in the same way here. Therefore. Ballerini-Palmieri, work cited, no. 102.

Reply. I distinguish the major. He is not regarded as having consented to the injury of his arm, I concede; to the extension of his arm, although done from fear as a means of protecting himself, I deny. I distinguish the minor. The matter stands in the same way here insofar as the contract is the wound itself, I deny; the extension of the arm, I concede or I pass over.

The wound will rather be the injury or loss, if any, which follows from the contract itself.

b) To affirm a right of withdrawing at will is to deny the obligation. But to deny the obligation is to deny the force of the contract, since the proper and necessary effect of an agreement is an obligation. Therefore. Since rescission at his own discretion is permitted to him who suffered unjust fear, the nullity of the contract on his side is conceded. Ballerini-Palmieri, no. 89.

Reply. I distinguish the major. To affirm a right of withdrawing is to deny the obligation as regards its first arising or existence, I deny; as regards its firm existence, I subdistinguish: on account of a cause intrinsic or extrinsic to the contract, I concede; on account of a cause necessarily intrinsic to it, I deny. I contradistinguish the minor. To deny the obligation as regards its first existence, or as regards its firm existence on account of a cause intrinsic to the contract, is to deny the validity of the contract, I concede or I pass over; on account of an extrinsic cause, I deny. I deny the consequence.

Rescission is permitted on account of the fear inflicted; this injurious deed precedes the contract, is its moral cause, and therefore is extrinsic to it. Just as, if a prior agreement concerning some thing to be performed has been made, its execution is remitted to the discretion of the debtor by another agreement, you would not call the prior agreement null, whose effect is only removed from without; so, in the present case, we have two juridical deeds: a certain injury and a contract. The former produces in him who inflicted the fear the obligation of repairing the loss, if the injured person wills. The latter imposes upon the injured person an obligation whose rescission is the adequate reparation of the loss. As if creditor and debtor of the same thing, he can extinguish that obligation by compensation.

c) The faculty of withdrawing does not sufficiently protect the person who suffered fear, since it leaves indissoluble contracts, such as marriage, without a remedy.

Reply. I deny the antecedent; and, to the rationale, I distinguish. Without any remedy, I deny; without the remedy of rescission, I subdistinguish: per se, I deny; per accidens, on account of the prevailing utility of the common good, I concede.

For this remedy is available: that he who suffered fear feign consent. Positive law can also attach a fuller effect of invalidation to this defect of consent, as the Church has done for marriage and religious profession. But if the contracting party omitted to use the faculty of feigning and positive law was silent, per accidens, on account of the public cause which forbids certain contracts to be rescinded, a certain adequate reparation of the injury will be lacking. Yet it is sufficient that sufficient remedies for repairing injuries be present per se in the natural law, although not rarely a superior rationale opposes their use. Thus, for example, adequate reparation through marriage for a violated body is inaccessible to a married deceiver.

IV. COROLLARIES.

314. How the opinions differ in reality. The formal difference between the explanation of the efficacy of error which is handed down by most and our own is this: they derive the infirmity of the contract from a positive will—of positing a condition without which not—which is superadded to the error; while we attribute the firmness of the contract to another positive will—of holding the agreement ratified—and permit error its connatural effect. According to them, the contract is valid from erroneous consent; according to us, from another consent which is sufficiently manifested in these circumstances through a general disposition of the will and which is in no respect erroneous. Cf. nos. 309 and 312.

315. A gratuitous stipulation made from fear. Since a unilateral gratuitous contract produces this sole effect of obliging the promisor, and in practice a bond dissoluble at will is no bond, gratuitous contracts can be said to be rendered infirm by fear itself as regards practical efficacy.