Article I. Initial Formulation of the Question

140. Definition and parts of the question. 1. Above, no. 30, we saw that no one can be injurious to himself, that is, formally suffer injury from himself. We now ask whether, from the deed of another which you willingly bear, you can properly be affected by injury, or whether the action of another also cannot be injurious to you when you are willing.

The general reply is plain, and can at once be presented and confirmed by the maxim of both bodies of law: No injury is done to one who knows and consents.

2. But the proper force of this maxim, or within what limits it is contained, is less evident.

Then, concerning the consent itself by which injury is removed, it is usefully asked today what kind it must be: whether any assent whatsoever suffices— whether even one which you gave unwillingly, or only one which is in no part involuntary or, as they say, mixed with no involuntary element.

Finally, this other question is sufficiently related to the present question: to what extent an injury is done to one who is unwilling, but not reasonably so; that is, what reasonable cause permits one to invade another’s property against the owner’s will.

It is our intention to say something concerning these three matters, whether in the thesis or in the supplements.

141. Various opinions. 1. As regards the scope of the maxim, St. Thomas, Molina, and Lessius, at the places cited, prove it without applying any correction. C. de Lugo circumscribes its force to some degree by requiring a will which is civilly valid. Lessius, however, already recalls several who restricted the efficacy of consent to those things in which we could yield our right. He himself refutes this opinion. Nevertheless, it pleased some of the more recent authors, such as Carrière and Most Illustrious D. Waffelaert, who consequently judge that the cited maxim must be completed in this manner: “No injury is done to one who efficaciously and validly consents.” Others, however, whom we judge to speak better, reject these exceptions. Thus Rev. DD. Crolly and Pottier.

2. But the consent by which injury is removed is declared by Molina to be such that it is voluntary even in a qualified respect, or is given with full knowledge and full will. Nor do I think that anyone theoretically disagrees. In practice, however, that condition has very frequently been neglected, since in our days nothing has been more frequent than to hear men who, under the pretext of consent of any kind whatsoever, attempted to excuse deeds unjustly done.

3. The third point is less thoroughly examined. Most pass over the matter in silence, so that their particular replies are destitute of certain principles. Those who discuss the argument somewhat, such as Carrière, no. 983, establish rather this rule: that a thing cannot justly be taken against the owner’s will unless he is bound from justice to consent. Yet in practice the cited author himself admits that much is remitted from this rigor.