Morals of the Church
Library › Wouters, Manual of Moral Theology › Volume I › Book II. On the Exercise of the Christian Life, or on the Cultivation of the Virtues › Treatise II. On the Cultivation of the Moral Virtues › Dissertation I. On the Precepts of the Decalogue › Part VII. On the Seventh and Tenth Precepts of the Decalogue › Section I. On Commutative Justice Itself › Chapter II. On Commutative Justice in Contracts › Article I. On Contracts Generally › § IV. On the Intrinsic Form of Contract, or on Consent › Point II. On the Obstacles of Consent

Section — Wouters, Manual of Moral Theology

II. Fear

838.

I. Notion. Fear is a trepidation of mind on account of a present or future danger.1

1 Thus Roman Law, L. 1, ff. Quod metus causa, IV, 2.

FearContractsThe nature of contractFraud and duress

839.

II. Division. Fear, with our matter considered, is distinguished:

  1. Into grave and light. It is grave when the evil to be feared is grave and certainly or probably threatens. But the gravity of the evil must be taken, or judged, relatively, with age, sex, and the condition of the person to whom fear is instilled considered. It is light when a light evil threatens, or indeed a grave evil, but one that is little probable.

Reverential fear, insofar as it signifies confusion and trouble because of the indignation of a superior, is not grave. Nevertheless grave fear is had if "there are added either blows, or threats, or fear of some grave evil, for example hatred, long-lasting indignation, etc." (St. Alphonsus, 1056).

  1. Into fear justly and unjustly instilled.

  2. Into fear proceeding from within, from a necessary cause, from the other contracting party, or from a third party.1

  3. Into fear instilled for extorting consent, or in order to the contract, or for another end.2

  4. Into fear which gave cause to the contract, and fear which did not give cause to it.

1 For example, a robber lies in wait for you; but you promise a sum of money to a passerby so that he may protect you.

2 For example, someone threatens death to you from hatred; but you promise a sum of money to him so that he may withdraw from his purpose.

Fraud and duress

840.

III. Influence upon the contract. Fear which so disturbs the use of reason that the act is not fully deliberated makes the contract void, as follows from the things said in n. 834. With these things set aside:

  1. Fear, whether arisen from within, or from a necessary cause, or instilled justly or unjustly by a free cause, does not make the contract void. The reason is that fear does not prevent the contracting party from furnishing perfect consent. But by perfect consent a contract is intrinsically constituted (St. Alphonsus, III, 716; cf. can. 103, § 2). Nevertheless observe: 1° that some contracts entered into from grave and unjust fear are invalid by canon law, as, for example, a matrimonial contract; 2° that the same, according to many, holds for matrimony by reason of a special reason, even if only natural law is considered, as we shall explain in its own place.

Objection 1. Unjustly instilled fear makes a gratuitous contract void; for the matter about which one contracts in the case is liberation from unjust vexation, as if someone gives something to another because the other threatens him with death. But liberation from unjust vexation, as already owed from justice, cannot be the matter of a contract.

Response. Liberation from unjust vexation is only in appearance, but not in reality, the matter about which the contract is made. For there is question of a gratuitous contract; but in a contract of this kind the matter is from only one party, for example from the one promising or giving, and is, for example, that which is promised or given.

Objection 2. Unjustly instilled fear makes a gratuitous contract void, because the cause of the contract is lacking, that is, the liberal mind to be shown.

Response. A liberal mind is the ordinary cause of a gratuitous contract; but it is not repugnant that from another motive, for example from fear of an evil otherwise threatening, something be promised or given.

  1. Fear renders a contract rescindable if it was both unjustly instilled, and by the other contracting party, and gave cause to the contract. If one of the assigned conditions is lacking, fear does not render the contract rescindable.

The former is deduced from the fact that, in the hypothesis posited, one contracting party inflicted an injury on the other, which must be repaired by him. But it is repaired by the fact that the effect of the injury, that is, the contract, is removed or rescinded. Therefore the contract must be rescinded, or at least its rescission offered, by him who inflicted the injury; from which it follows that the contract can be rescinded at the will of the party who suffered the injury (St. Alphonsus, III, 717). If the contract has already been given to execution, the injury is repaired by the fact that the one who suffered fear is restored to his former state with respect to his things. But it makes no difference whether the fear was instilled for extorting consent or for another end, because in fact the contract was the effect of the injury. Moreover, if the thing has come to a third possessor in good faith, the one who suffered fear can seek the thing back from him, and it must be restored by him, because a thing taken away from its owner through injury remains bound to him (St. Alphonsus, III, 719). Except if, with positive law considered, the thing had been prescribed.

The latter involves three things, namely:

a) Fear does not render the contract rescindable if it proceeded from within or from a necessary cause; likewise if it was instilled by a free cause but justly. The reason is that an injury to be repaired is absent.

b) Fear does not render the contract rescindable if it was instilled by a third party. The reason is that injury to be repaired by the other contracting party, for example by Peter, is absent. But an injury inflicted by a third party, Paul, upon one contracting party, James, is not a reason why the other contracting party, Peter, can be deprived, through rescission of the contract, of the right acquired through the contract with James.

c) Fear does not render the contract rescindable if it did not give cause to the contract. For from the fact that, with fear excluded, the contract nevertheless would have been entered into, it follows that the contract, equally as other contracts entered into without fear, was acceptable to the will; hence, equally as those other contracts, it must be held as firm and non-rescindable.

Note 1. Light fear is presumed not to have given cause to the contract; and account of it is not had in the external forum (St. Alphonsus, III, 718; VI, 844).

Note 2. With respect to ecclesiastical matter, observe these words of can. 1684, § 2: "If someone, moved by grave fear unjustly instilled ... has entered into a contract which is not null by the law itself, he can, once the fear has been proved, obtain ... rescission of the contract by the action which is called rescissory."

Note 3. What civil law establishes concerning fear, see in the civil Code.

Fraud and duress