Consent in contracts

THE consent of the parties is the efficient and formal cause of a contract. When the two wills meet together and agree on the matter of the contract, the contract is formed. In order to produce its effect this consent must have certain qualities; it must be deliberate and free, mutual, internal as well as external.

It must be deliberate, for a contract imposes a perfect and serious obligation on the parties, an obligation which they voluntarily take upon themselves, and which is not imposed from without. Now such an obligation cannot arise from a semi-deliberate act; full and perfect deliberation is required to give rise to a full and perfect obligation which is voluntarily undertaken.

It must be free, not unjustly forced; for an obligation which binds in justice cannot arise from injustice.

It must be mutual, for a contract is the agreement of two wills. It is not necessary that consent be given at the same time by both parties. Provided that one of them has consented previously and his consent still endures, the contract will be formed when the other party gives his consent, for then there will be the agreement of the two wills.

It must be internal, for a contract is an agreement of wills; one renounces a right in favour of the other who accepts it, and this requires an internal act of the will. If the internal act be wanting, we may have a seeming contract, a contract in appearance, a fictitious but not a real contract. Inasmuch as a fictitious contract is no contract at all, it cannot as a contract bind the conscience, and so one who enters into a contract without intending to bind himself is not bound by it. He is, however, guilty of deception and fraud, and on this ground he is bound to indemnify the other party for any damage that he has caused him by his sinful and unjust action; and if the only means of doing this is for him to fulfil the terms of the contract, he will be bound in justice to do that. When a contract is entered into without the intention of fulfilling its obligations, there is no contradiction here as in the former case; the contract exists, and its obligations must be faithfully executed.

‘Internal consent is not sufficient of itself to form a contract; it must also be outwardly manifested to the other party in order that he may know that his offer has been accepted and that there is mutual agreement. In other words, the consent must be external as well as internal. This internal and external agreement of the parties to a contract is brought about by an offer being made by one of them and accepted by the other. As soon as acceptance is externally manifested, all the requisites for a contract are present, and it forthwith springs into existence, even though the offeror does not yet know of the acceptance of the offeree. English law accepts this doctrine so far as to decide that “‘ if acceptance through the post is expressly or by implication prescribed or permitted by the offeror, acceptance is made, and the contract is concluded, at the moment when an acceptance is duly posted for transmission to the offeror, even though the acceptance is delayed or lost in the post.”¹ Ordinarily, however, acceptance is not complete until it is communicated to the offeror.²

¹ Digest of English Civil Law, n. 198.

² ibid., n. 196.

Mistake concerning what was principally intended in the contract is said to be substantial, and it renders the contract null and void, for there is then no agreement of wills in the same matter. Thus, if one of the parties thinks that the contract is one of hiring, while the other thinks it is a sale, the mistake is substantial, and there is no contract. Similarly, mistake about the matter of the contract is substantial, and Vitiates it, as if one thinks he is buying gold, while the other knows that it is brass. Mere ignorance as to what the object was would not make the contract invalid. Again, if one of the parties makes his consent conditional on some definite point, there will be no consent and no contract if the condition is not verified. Mistake concerning the other party to the contract is as a rule not substantial, and does not vitiate the contract. In marriage, however, and in gratuitous contracts in favour of a certain person for purely personal reasons, mistake about the person of the other party is substantial. Even in onerous contracts mistake about the person with whom the contract is made may be substantial in special circumstances, when for particular reasons the consent is given only to a definite person.

Mistake about what is accessory and accidental in a contract does not invalidate it, for there is agreement about what is substantial and essential. Even if the party would not have entered into the contract if he had not been under a mistake about some matter which is accidental to it and not substantial, still the contract is valid, for, in fact, he gave his consent; unless, of course, he only gave consent conditionally, on some supposition which was not verified.

If, however, one of the parties was induced to give his consent by the fraud or misrepresentation of the other, and he would not otherwise have entered into the contract, the contract is voidable at the option of him who was deceived. The law of nature seems to indicate this as a suitable means of repairing the injury done by the fraud, and it is confirmed by English civil law.

Even if there be no fraud or misrepresentation but only non-disclosure of facts which it was of importance for the other party to know, this will suffice to enable the party who had a right to full knowledge to avoid contracts of marine, fire, and life insurance, for the sale of land, for family settlements, and for the allotment of shares in companies. are in English law said to be uberrimae fidei. Such contracts

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. I, Ch. II, Art. I, § IV. On the Intrinsic Form of Contract, or on Consent · Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. I, Ch. II, Art. I, § V. On the Extrinsic Form of Contract

A contract is also voidable at the option of one of the parties who has entered into it under duress—i.e., actual or threatened violence affecting the contracting party, or his wife, parent, or child, and inflicted by the other party to the contract, or by someone acting with his knowledge and for his advantage. Fear caused in other ways does not invalidate the contract or make it voidable, unless it was so great as to deprive the contracting party of the use of reason. When one of the parties stands to the other in the relation of parent, guardian, trustee, medical attendant, legal adviser, spiritual director, or the like, any contract between them by which the one in authority obtains benefit or advantage may, according to English law, be set aside by the other on the ground of undue influence, unless it can be shown that the transaction was fair. The burden of proving this rests on the superior, who will seldom be successful unless he can show that the other had access at least to independent advice,

Wouters, Manual of Moral Theology

Ludovicus Wouters, C.SS.R. — 3 passages

Vol. I, Pt. I, Q. I, Art. 2. Acts as Human, Obstacles to Consent · Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, Contracts · Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, Fraud in Contracts · Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, In Sales

The very nature of contract sufficiently signifies the necessity of consent, and of consent furnished by each party and simultaneous (n. 828). Hence the following do not suffice: 1° interpretative consent, that is, consent which would be present if this or that had place, which in reality does not have place; 2° only presumed consent; if consent is only presumed, it is lacking in reality.

These things having been noted, we shall speak distinctly about the qualities and about the obstacles of consent.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. I, Ch. II, Art. I, § V. On the Extrinsic Form of Contract

n. 843.

I. Notion. By the extrinsic form of a contract are understood the solemnities, according to law, to be employed in entering at least some contracts.

n. 844.

II. Division. 1. The extrinsic form of a contract is divided:

With Canon Law considered, into essential and accidental, according as it is required for validity or only for liceity; thus the presence of witnesses and of the pastor for matrimony is essential; but that matrimony must be entered into publicly pertains to the accidental form.
With civil law considered, some solemnities are sometimes required for merely proving the contract; others are in some way necessary for validity, as we shall explain more fully in the scholion.

McHugh–Callan, Moral Theology

John A. McHugh, O.P., and Charles J. Callan, O.P. — 28 passages (filed under the subtopics)

n. 40.

Obstacles to Consent

Obstacles to Consent.—The obstacles to consent are all those factors that take away or lessen the voluntariness of an act. (a) Thus, the actual obstacles that affect the intellect are reduced to ignorance, spoken of above; those that affect the will are passion and fear, and that which affects the external powers is coercion. (b) The habitual obstacles are habits and abnormal mental states.

n. 41.

Fear is a disturbance of mind caused by the thought that a future danger is impending. It is an obstacle to consent in various ways: (a) it lessens or takes away freedom of judgment, inasmuch as it hinders or suspends the reasoning processes; (b) it lessens the voluntariness of choice, inasmuch as it makes one decide for what is not of itself agreeable.

n. 42.

An act done under fear that impeded the use of judgment is: (a) involuntary, if the fear was so great that one was temporarily out of one’s mind. Example: Titus is so panic-stricken at the thought that a wild animal is pursuing him that he fires a revolver in every direction; (b) less voluntary, if the fear prevents one from thinking with calmness and deliberation. Example: Caius is being questioned by a stern examiner who demands an immediate reply. Fearing to hesitate, Caius gives what he knows is a “bluffing” answer.

n. 43.

The acts of one who is under fear are of various kinds.

(a) Acts are done with fear, when the fear is concomitant—i.e., when it is not willed and does not cause the act, but is merely its occasion or would rather prevent it. Examples: Julius is ordered under pain of death to drink a glass of wine, a thing he was intending to do and which he would have done even without any threats. Balbus walks along a lonely road, because he must get home, but he trembles at the thought of robbers. Caius, a highwayman, at the point of the revolver, forces Balbus to hand over his purse, but he fears that the police may arrive before he has secured the money. Titus, a business man, makes a trip by air, because he must reach another city without delay, but he has some apprehensions about his safety. All these men act, not because of, but apart from or in spite of their fears.

(b) Acts are done through fear, when fear causes an act that would not otherwise be performed. The fear may be antecedent (i.e., unwilled) or consequent (i.e., willed). Examples: Balbus, in the case mentioned above, surrendered his purse because of involuntary fear which was caused by the revolver of the robber. Claudius makes an act of sorrow for sin because of voluntary fear which he produces by thinking of the punishment of hell.

n. 44.

The effects of fear, which do not take away the use of reason, on the voluntariness of acts are as follows.

(a) Acts done with fear are not made really involuntary on account of the fear that accompanies them, for they are done for their own sake, not out of fear or as a consequence of fear. They may be called relatively involuntary in the sense that, by reason of fear, they are comparatively unpleasant, unless one enjoys the thrill of danger. Examples: Balbus, Caius and Titus, in the cases mentioned above, acted with perfect willingness. Whether they enjoyed their experiences or not, depends on their attitudes towards adventure and excitement.

(b) Acts done through fear are voluntary simply and absolutely, for the act done under the impulse of fear is what the agent considers here and now as most desirable. Examples: Balbus’ surrender of his purse and Claudius’ act of contrition are just what these two men wish to do as best suited to the circumstances.

(c) Acts done through fear are involuntary in a certain respect, if the agent can retain his inclination towards the opposite of the act and still avoid what he fears; otherwise, they are in no way involuntary. Examples: Balbus retains his liking for the money taken from him by force, and hence the surrender of it to the highwayman, although voluntary, if all things are considered, is not voluntary, if only the money itself is considered. Claudius, on the contrary, retains no liking for his sins, for he knows that, if he does, he will defeat the purpose of his act of sorrow, which is to escape the pains of hell; hence, his contrition, although the result of fear, is in no respect involuntary.

n. 45.

Passion is a movement of the sensitive appetite towards its object through love, desire, hope, or its repose therein through delight. It tends towards good, as fear tends away from evil (see 117 sqq.). Passion is an obstacle to consent in the following ways: (a) it takes away voluntariness (i.e., the quality of proceeding from an internal principle with knowledge of the end of the act), whenever it is so intense as to prevent knowledge; (b) it diminishes liberty (i.e., the quality of being perfectly voluntary, or indifferent as between many acts), even when it does not prevent knowledge.

n. 46.

Spiritual appetites fortify the reason, but the opposite is true of sensible appetites; for these latter draw all the attention to things that are lower and away from those that are higher, and impede the exercise of imagination and other senses that serve the reason. In extreme and rare cases passion may be so intense as to distract from or prevent altogether the exercise of reason, or to produce insanity. Thus, we sometimes hear of persons losing their minds through affection for money, or of performing irrational deeds under the excitement of joy.

n. 47.

With reference to the will, passion is twofold. (a) It is antecedent, when it precedes the act of the will and causes it. In this case the passion arises not from the will, but from some other cause (e.g., the bodily state, as when a sick man longs for food that is forbidden). (b) Passion is consequent when it follows the act of the will and results from it. This may happen either without the will choosing the passion (as when the very vehemence with which the will desires some object causes a corresponding sensitive emotion to awaken), or because the will has deliberately aroused the emotion in order to be able the better to act through its cooperation.

n. 48.

Antecedent passion makes an act more voluntary, since it makes the will tend with greater inclination to its object; but it likewise makes an act less free, since it impedes deliberation and disturbs the power of choice. Example: A man who takes extreme delight in sports, plays voluntarily, but is less free than if he were not so immoderately inclined that way.

n. 49.

Consequent passion which results naturally from an intense act of the will does not increase the voluntariness of the act, since it is not its cause; but it does show that the act of the will is intense, for it is only that which is willed vehemently that overflows from the will and affects the emotions.

n. 50.

Consequent passion which results from the deliberate choice of the will increases the voluntariness of the act that follows, since the act is performed with greater intensity on account of the passion that has been deliberately excited.

n. 51.

What has been said about the passions that tend to sensible good can be applied also to the passions that are concerned with sensible evils, such as hatred, sadness, aversion, boldness, anger. If they are antecedent, they increase the voluntariness of an act, but diminish its freedom; and, if they cause a passing frenzy or insanity, they take away all responsibility. If they are consequent, they either increase the willingness of the act, or indicate that it is willed with great intensity.

n. 52.

Violence, or coercion, is the use of force by an external agent to compel one to do what one does not want to do. Its effects on voluntariness are: (a) it cannot affect the internal act of the will, else we should have the contradiction that the act of the will was both voluntary, as proceeding from the will, and involuntary, as proceeding from external coercion; (b) it can affect external acts, such as walking, and so make them involuntary. If a boy is driven to school, the violence makes his going involuntary, but it does not make his will not to go to school involuntary.

n. 53.

Habits

Habits.—Characteristic of habits is a constant inclination, resulting from repeated acts, to perform similar acts (see 133 for definition of habit). Its effect[s] on the voluntariness of acts are:

(a) if the habit is in a sense involuntary, i.e., caused by free acts but retracted by a sincere act of contrition, it diminishes or even takes away voluntariness. If the actual advertence to the act is imperfect, the voluntariety is diminished; if advertence is totally absent, all voluntariety is taken away. Thus a drunkard who retracts his habit and makes an act of true contrition may again fall into sin because of the acquired dispositions to drink. Then the sins are less voluntary or at times, owing to total lack of advertence, may be regarded solely as material sins.

(b) if the habit is voluntary, i.e., acquired by free acts and not retracted, it increases the voluntariness in respect to the inclination to act. Should all advertence and deliberation be taken away, a rare occurrence, it diminishes the liberty of the act and consequently its morality as good or bad. Voluntariety, however, is not taken away entirely, since the habit itself was freely willed and hence acts flowing from it are voluntary in cause (see 35.). If sufficient advertence remains, the habit diminishes the freedom of the act owing to the impeding of reason; but this diminution of liberty is in accord with the will of the individual who freely contracted and conserves the habit to have facility in acting. Accordingly, absolutely speaking, a voluntary habit increases the voluntariety of acts caused by that habit and consequently increases their goodness or evil. Thus St. Thomas asserts that one who sins from habit sins from certain malice, i.e., not from ignorance or passion, but from the will’s own choice.

n. 54.

Natural propensities are inclinations that arise from bodily constitution or physical condition (e.g., a strong native attraction to temperance or to intemperance not acquired by frequent acts). Natural propensities have the same kind of influence on the willingness of an act as involuntary habits (see 53.).

n. 55.

Pathological states are diseases of the brain or nerves that react upon the intellect and the will, such as various kinds of neuroses and psychoses, hysteria and epilepsy. The influence of pathological states on the voluntariness of acts seems similar in kind to that ascribed to antecedent passion (see 48.). Caution must be observed in applying these principles to particular kinds of mental diseases.[1]

[1] In doubt whether an act associated with a pathological state is free or not, the rule of moralists is lenient. When the act is sinful, it is not imputed as gravely sinful, for man is innocent until proven guilty. If the act is good, it is presumed voluntary and free and, consequently, meritorious. See Prummer, D.M., O.P., Manuale Theologiae Moralis (Barcelona: Herder, 1946), I. n.93.

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, Contracts

n. 1884.

Defects that Invalidate Consent

Defects that Invalidate Consent.—The defects that vitiate consent by taking away knowledge or choice render contracts either void or voidable (see 40-55). These impediments are the following:

(a) error, which is a judgment of fact or of law in reference to the contract, not in harmony with the truth, but not maliciously caused by other persons. If error is substantial (that is, about the nature of the contract or the nature of the subject-matter of the contract), the agreement is naturally void; if error is only accidental (that is, about features of the contract, subject-matter or co-contractant, that are only incidentally intended), an onerous agreement is naturally valid, but positive law in the interest of freedom will often grant the privilege of rescindment (see Canon 1684, n. 2). But if error cannot be proved, courts will stand for the validity of a contract;

(b) fraud, which is error or mistake about a contract caused in one of the parties by the dishonest representations of the other party or of a third person (e.g., when an insurance agent deceives about the benefits, or a policy-taker deceives about his age or health). Fraud exists, then, when there is intention, at least indirect, to mislead, and statements, acts or omissions calculated to mislead; but the usual boasts of vendors and advertisers about the wonderful excellence of their wares are not fraudulent, since the public understands that such talk must be taken cum grano salis. The effects of fraud on the value of contracts are the same as those produced by error; but it should be noted that the person guilty of the fraud is bound to make good the losses of the injured party, even though the contract be valid and not rescindable, or though the guilty person be not a party to the contract;

(c) fear, which is a disturbance of mind caused by the belief that some danger is impending on oneself or others (see 41 sqq.). It makes a contract invalid in natural law, when it takes away all consent (e.g., when it overpowers the reason, or makes one dissent internally from what is agreed to externally), and probably also when it takes away perfect freedom in a gratuitous contract, or makes one enter into a contract for immunity from an unjust vexation; it renders an act or engagement invalid according to positive law in many special cases (e.g., the Canons declare null elections, resignations, marriages, vows, etc., which are made under the influence of fear). Contracts are considered naturally voidable if one of the parties unjustly extorts the consent of the other by grave fear, or if a third party intimidates a person into bestowing something through gratuitous contract; and the positive law generally treats agreements entered into under grave fear as rescindible (see Canon 103, n. 2). Fear unjustly caused, even though it does not make a contract void or voidable, is at times a reason for the duty of restitution, as when a third party by his unjust threats forces an innocent person to make expensive contracts as a measure of protection, and probably also when a third party directly constrains one to make an onerous contract with a person who knows nothing about the coercion. Fear, no matter how great, does not in any way weaken a contract, if there is consent and the fear is induced by a natural cause (e.g., a storm), or by a human cause acting justly (e.g., an injured man threatening a lawsuit);

(d) violence or coercion, which is like to fear, the latter being moral force and the former physical force (see 52). According to natural law, violence invalidates a contract, unless we suppose that it is only concomitant, as when Sempronius uses coercion to make Balbus sign a contract which Balbus is really willing to sign. Positive law does not recognize, or will set aside, agreements made under overpowering constraint (see Canon 103, n. 1).

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, Fraud in Contracts

n. 2121.

Fraud

Fraud.—Having discussed the various kinds of injustice that are committed in involuntary commutations, we now pass on to the study of those injustices that are done in voluntary transactions (see 1748). These vices can be reduced to the following:

(a) injustices perpetrated against a person who is entirely unwilling (viz., theft and robbery), as when one steals an object that had been entrusted to one as a pledge or loan, or compels another, by fear or violence, to sign a contract unfavorable to himself and which he does not wish to agree to. It is unnecessary to speak of theft and robbery in contracts, since the same principles apply to them as to theft and robbery outside of contracts (see 1890 sqq.);

(b) injustices perpetrated against a person who is partly willing, since he consents to a contract, but is also partly unwilling, since unfairness or fraud is used against him. These injuries are of two general kinds: fraud, a sin committed in buying and selling and other contracts in which payment is made for some valuable consideration; usury, a sin committed in the loan of money in which payment is made for something that is nonexistent.

n. 2122.

Definition of Fraud

Definition of Fraud.—By fraud (see 1677-1679) we here understand any unlawful conduct on the part of one party to a contract that puts the other party under a disadvantage in agreeing to the contract (e.g., misrepresentations about the excellence of merchandise), or that takes away the equality that should exist between the parties (e.g., an excessive price charged for merchandise; see 1750). The contract of sale is the type of all onerous contracts (see 1749), and to it all the others, whether certain or aleatory, can be reduced, for in every one of them there is a thing that is purchased (e.g., in aleatory contracts the hope of securing some prize), and a price that is paid for the object of purchase. Hence, it will suffice to speak of the frauds that are committed in sales, and the same principles that govern these can be applied to other kinds of contract.

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, In Sales

n. 2123.

Two Kinds of Injustices in Sales

Two Kinds of Injustices in Sales.—Equality between the buyer and the seller requires that each give the other a good equivalent for what he receives. Hence, the injustices committed in sales are reducible to two kinds: (a) injustices in the prices charged or paid; (b) injustices as to the goods furnished or taken.

n. 2124.

Injustice Regarding the Price

Injustice Regarding the Price.—Sin is committed in reference to the price charged as follows:

(a) by fraud, when one of the parties uses deception against the other party in order to charge more or pay less than is fair; for one who is party to a contract has the right that no lying or trickery be used against him, a contract being an agreement to which knowledge and consent are requisite;

(b) by overcharge or underpayment; for sale has for its purpose the mutual advantage of the buyer and seller, and hence one of them should not be overburdened for the advantage of the other, but the burdens and benefits should be equally distributed. Hence, it is unjust to sell an object for more than it is worth, or to buy it for less than it is worth.

n. 2125.

The Criteria of a Just Price

The Criteria of a Just Price.—(a) The constitutive norm of a just price is not merely subjective, that is, the fairness does not depend on the arbitrary wishes or on the special needs of the contractants, or on some monopoly which controls the prices; it is objective, that is, founded on the value of the thing sold, its capacity to be of benefit and satisfaction to its possessor, its rarity, the amount of labor put into its production and care, etc.

(b) The manifestative norm for commodities that are in common use (such as the necessities of life and the more usual luxuries) is the common judgment expressed either in law (legal price) or in the free custom of buyers and sellers at a particular place and time (market price); for objects that are not in common use and that have no settled price (e.g., rare archeological finds, ancient documents or paintings) the norm is the prudent and free judgment of the parties, or the decision of an expert chosen by them.

n. 2126.

The Obligation of Observing Prices Settled by Law Or Custom

The Obligation of Observing Prices Settled by Law Or Custom.—(a) The legal price (e.g., in some countries the prices on government monopolies, such as tobacco and salt), which in modern times is rare, is ordinarily obligatory in virtue of commutative justice, since its disregard harms one of the parties to the sale. But in exceptional cases the price may for reasons of equity be no longer obligatory (e.g., when the lawgiver does not insist on its observance).

(b) The market price is ordinarily of like obligation, and for the same reason. But it should be noted that the current price allows of some latitude, since the common estimate does not agree on exactly the same figure, and hence there is a highest, a lowest, and an average price. Injustice is done when one sells above the highest market price, that is, when one charges a sum notably in excess of that charged by others at the same place and time; or when one buys below the lowest market price, that is, when one pays a sum notably less than that paid by other buyers. St. Alphonsus gives as a rule that when a commodity is valued at 5, it may be sold for 6 or bought for 4; when valued at 10, it may be transferred or acquired for 12 or 8; when valued at 100, it may be exchanged for 105 or 95.

n. 2127.

When the Market Price May Be Disregarded Without Injustice

When the Market Price May Be Disregarded Without Injustice.—In some exceptional cases one may disregard the market price without injustice, if there are reasons that justify this.

(a) Reasons that rest on the matter of the contract are that the thing on sale has increased or decreased in value (e.g., the merchandise is of extraordinary excellence or rarity), or that the contractant would lose or risk loss from the sale itself by keeping to the market price (e.g., the buyer would by his purchase deprive himself of money that could be used more profitably in another transaction; the article if sold would have to be replaced by the seller at a higher price; the vendor by waiting can make a better sale later; the object which a person wishes to purchase is especially prized by the owner and cannot be duplicated). In these cases, however, the vendor should give notice to the buyer that for special reasons a higher price is being asked, so that the latter may have the choice of going elsewhere, if he prefers.

(b) Reasons that rest on the manner of the contract are that certain exceptional forms of sales are justified by law or custom and do not violate basic justice. Auction sales are of this kind, and, if the conditions of aleatory contracts are observed so that the risk will be equal on both sides, it is not unfair to take a price above the highest current price or to bid and buy below the minimum price.

n. 2129.

Unjust Sales Based on Ignorance of Real Value

Unjust Sales Based on Ignorance of Real Value.—There are also cases in which an object is purchased at an unjust price because its true value was unknown to the contractants or was hidden.

(a) If the value was unknown on account of substantial error (e.g., a woman buys paste ornaments, thinking they are genuine diamonds), the contract is invalid; if it was unknown on account of the individual error of a contractant (e.g., a woman buys a diamond of great value for a few dollars, because the seller did not know the value of the jewel), the contract is unjust; if it was unknown on account of public error reflected in the current price (e.g., an art dealer buys at a low price a masterly painting, because his superior judgment enables him to recognize in it qualities which others did not perceive), the contract is both valid and just. It is also lawful to buy at the present prices when one knows from sources that one can honorably use that the objects purchased will soon rise greatly in value, for one is not bound to share with others one’s personal knowledge.

(b) If the hidden value is no man’s property or is abandoned (e.g., a man buys a field in which he, but not the owner, knows that a treasure is concealed, or he buys a goose and finds gold pieces in its stomach and cannot discover how they got there), the buyer is entitled to acquisition; but if it has an owner who can be discovered (e.g., a man buys a coat in a second-hand store and discovers a large quantity of money in bills sewed inside the lining, and is able to trace back the coat to its former wearer, if he tries), the buyer is bound to restitution.

n. 2130.

Obligation of Restitution on Account of Unjust Prices

Obligation of Restitution on Account of Unjust Prices.—(a) Unjust Possession.—If there was bad faith without fraud, the seller should restore the difference between what he received and the highest current price, the buyer the difference between what he paid and the lowest current price. Overcharges or underpayments in conventional prices should be compensated for according to a reasonable standard, such as the decision of the experts.

(b) Unjust Damage.—If there was bad faith and fraud with resultant damages to one of the parties, the losses should be made good, even though the just price itself was not violated by excess or defect (see 1762).

(c) Nullity.—If there was good faith on both sides, there is no obligation of restoration, unless we suppose substantial error, lack of proper consent, conditional agreement, etc., which make the sale null or rescindable (see 1725).

n. 2131.

Injustice Regarding the Thing Sold

Injustice Regarding the Thing Sold.—Having spoken of the injustices committed in reference to the price, we shall now treat of the injustices committed in reference to the thing sold. The contract supposes that the thing sold be of a certain character, and hence injustice is done if one of the parties wilfully misleads the other about that character.

(a) Thus, the species of the thing sold enters into the contract, and so it is unjust to deceive another person about the nature of the thing that is being sold (e.g., if the seller gives inferior substitutes or adulterated goods to those who desire the genuine and pure article, or if the buyer deceives an inexperienced merchant into thinking that the high-grade clothing material he has for sale is low grade).

(b) The quantity of the thing sold is also a part of the contract, and it is unjust to take advantage by giving less or taking more than is agreed on: “Thou shalt not have divers weights in thy bag, a greater and a less, neither shall there be in thy house a greater bushel and a less” (Deut., xxv. 13, 14).

(c) The quality of the thing sold belongs to the contract, and hence there is fraud if one of the parties deceives the other about it (e.g., if the horse sold is sickly or slow, when he is supposed to be healthy and speedy).

n. 2132.

Defects in the Thing Sold

Defects in the Thing Sold.—If there are defects in an article sold, but a fair reduction in the price is made on account of the imperfection of the article, there is no injustice in the price. But the seller is unjust, nevertheless, if he conceals the defects in spite of a contrary condition in the contract, for he injures the buyer by leading him into an agreement against his will.

(a) There is an indicated condition when the buyer inquires whether there are defects in the article, having the intention to take nothing that has any considerable defect. In such a case if the seller conceals even an accidental defect (i.e., one that makes the article less suitable for the buyer), the contract is null on account of lack of consent, or at least, as others think, it is rescindable on account of the fraud practised. But if a defect is inconsiderable, the contract, unless it is expressly stipulated to the contrary, is good and lawful, for there is hardly anything that has not some small defects.

(b) There is an implied condition when the buyer makes no inquiry, but there is a substantial defect (i.e., one that makes the article dangerous or unsuitable for the purchaser), and this defect is hidden, either because it is of a kind that would escape most persons, or because the purchaser is inexperienced or unable to perceive it for himself. Since every person who buys intends to get something useful, there is no consent and the contract is invalid, if one is given something harmful (e.g., corrupted or poisonous food instead of good food), or something entirely useless to him either for service or for sale (e.g., a lame horse instead of a sound horse for one who deals in race-horses).

Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 18 passages

Vol. I, Treatise On Contracts, First Part. On Contracts i…, Ch. I, Article III. On the Required Consent · Vol. I, Treatise On Contracts, First Part. On Contracts i…, Ch. I, Art. III, § I. On the Endowments of Legitimate Consent · Vol. I, Treatise On Contracts, First Part. On Contracts i…, Ch. I, Art. III, § II. On the Vices Opposed to Consent

Its endowments; 2. the opposed vices.

- Consent must be external, internal, mutual, free, and deliberate.

External, that is, manifested, because it must be manifested to the counterparty; but it cannot be made open to the other party unless it comes forth outwardly by some visible sign.

Internal, because the obligation of the contract arises from the will alone of the contracting party. - Thus commonly.

Mutual, because a contract is an agreement of two or more; hence if it is onerous, cession and acceptance are required on each side. If it is gratuitous, cession is required on one side and acceptance on the other.

Free and deliberate, so that the contracting party is not only master of himself, but also acts with that deliberation which is required for grave sin; otherwise the will would be imperfect, and therefore the act imperfect, which could not beget a perfect obligation.

Questions. - It is asked, 1. Whether a contract entered into ¹ without the intention of obliging oneself, or without the intention of fulfilling it, is valid?

¹ Understand a contract entered into with the intention of contracting, although without the intention of obliging oneself, etc. For otherwise the question will return to the one contracting fictitiously, concerning whom the Author treats afterward in the first Resolution.

I reply to the first. More probably it is not valid, because the condition attached is contrary to the substance of the contract ². St. Lig., n. 710. - Others say that the contract is valid according as the volition of the contract prevails or does not prevail. - Lacroix.

² Certain ones (apud Lugo, disp. 22, n. 38) affirm, because whoever wills the cause wills also the effect, and he who gives the form wills the consequences belonging to the form. But others deny, both because in contracts an obligation cannot arise except from one's own will, and because (which the Author also touches on) a condition which is contrary to the substance destroys the contract; to which pertains cap. Si conditiones, fin., De conditionibus appositis.

Nevertheless, the solution of the question will be more apt if you use suitable distinctions. For either the promise and the intention of not obliging yourself are concerned with wholly the same object and under the same respect or sense; and then the promise is altogether illusory, since a promise is an obligation of faith, and nevertheless by hypothesis you do not will this obligation. But if the promise and the intention of not obliging yourself are referred to an object which has a multiple consideration, then again one must distinguish with De Lugo (disp. 22, n. 39). For it is necessary to inspect which of the two contrary wills must be said to prevail; but that one ought to prevail which is more efficacious and absolute, or which has a more universal mode of willing and with formal or virtual reflection upon the other. Therefore, if the will of promising and contracting is more efficacious and absolute than the will of not obliging yourself, an obligation will arise, even if from error you think that an obligation does not arise from the contract or promise, and therefore you do not will to oblige yourself. Thus one who absolutely wills religious profession, being otherwise ignorant of some burden attached to it. But if the will of not obliging yourself is more efficacious and absolute than the will of contracting or promising, an obligation will not follow. For truly there is not present an efficacious and absolute will of promise, but only a conditioned one, namely if that obligation does not arise from it. But if you suppose that each will is equally efficacious, the act would be null, as intending an impossible effect. And since you do not have the will of promising unless it lacks obligation, in reality there is no absolute will of promising, but only a chimerical one.

I reply to the second. The contract is valid. The reason is that a will not to fulfill can consist together with a will to oblige oneself. - St. Lig. and others commonly.

It is asked, 2. Whether the consent of each party must be elicited simultaneously?

I reply negatively, because the consent of one person, once given and not revoked, morally perseveres, so that when the consent of the other accedes, the contract is immediately perfected.

You will resolve. - 1. He who fictitiously consents to a contract is bound in the forum of conscience to make the deceived party unharmed, and, if another means of repairing the injury is not at hand, to furnish internal consent and to stand by the contract. - Hom. apost., tract. 10, n. 93.

But if the contract entered fictitiously has been put into execution, no dominion has in reality been transferred. Hence, by reason of the thing received, the deceived person is to be held as possessor in good faith, but the deceiver as possessor in bad faith.

If I offer you a house for sale for 100 gold coins, and you accept, the contract is perfected not when you consent internally, but when your acceptance outwardly comes forth to me by some sign. But my consent is sufficiently intimated to you by this, that I offer you my house for the price appointed.

If you contract with me through a procurator, the contract is perfected when your procurator accepts, although you have not yet accepted, because the acceptance of your procurator is morally yours.

Silence is regularly reputed as consent if the matter is favorable to the one keeping silence. Hence the rule of law: He who is silent seems to consent.

If Paul says in the presence of John: I give 100 gold coins to Peter; and if John, not commanded, reports this to Peter, and Peter says: I accept; Paul is not judged bound, because the intimation of the promise was not made to Peter by the mandate of Paul, who moreover by the words reported shows nothing else than a mere purpose of giving. - See Cases, n. 776.

Vol. I, On Laws, IV. On the Obligation of Law · Vol. I, On Sins and Virtues, V. On the Capital Vices · Vol. I, On Sins and Virtues, VI. On Virtues · Vol. I, On the Second Precept of t…, III. On Oath · Vol. I, On the Second Precept of t…, IV. On Vow · Vol. II, On the Seventh and Tenth P…, IV. On the Modes of Acquiring Ownership by Private Will · Vol. II, On the Seventh and Tenth P…, XXIV. On Restitution from Unjust Damaging · Vol. III, On the Particular Obligati…, IV. On Profession · Vol. III, On Penance, XI. On Reservation · Vol. IV, On Marriage, I. On Betrothals and on the Banns · Vol. IV, On Marriage, II. On the Nature and Properties of Marriage · Vol. IV, On Marriage, III. On the Impediments of Marriage

The principal ones are error, fraud, force, and fear, which are reduced to error and fear ¹.

¹ It is wholly due to the study of brevity in the Compendium that the Author said all these things are to be reduced to error and fear, and therefore touches them in such a way that he passes over several things, and those of grave moment. And indeed, that he reduces force to fear in such a way that he is wholly silent concerning it, no one will disapprove. For now, as St. Thomas teaches (4 Dist. 29, q. 1, art. 1), the question is about internal consent, into which coercion or force does not fall, which is distinguished from fear; and therefore, as regards the proposal, coercion is the same as fear. But the same judgment cannot hold when fraud is so reduced to error that the things which pertain more specially to the former can be omitted. For, as Lugo observes (disp. 22, n. 68), it matters very much whether the contracting party is deceived by the other contracting party, or by some third party without fault of the other contracting party, or even by himself, who erroneously thought the thing to be better or more useful, and therefore buys it, or buys it for more, when otherwise he would not have bought it, or certainly would not have bought it for so much; and again, whether, when he is deceived by another, this happens with the other's fault or without fault. This is to be noted because, although each deception diminishes the voluntary in the other contracting party, nevertheless each does not beget the same obligation in the deceiver.

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 15 passages (filed under the subtopics)

Vol. I, On Laws, IV. On the Obligation of Law

n. 207.

To what does law oblige? - Every law first obliges to knowledge of itself, and afterward to observance of itself. For law cannot be observed unless it is known. Therefore, unless it commands an act in vain, it must also implicitly command knowledge of itself, and it commands this first; since, without it, observance of the law is altogether impossible. Therefore a law is violated not only by an act opposed to it, but also by voluntary ignorance of it. Hence vincible ignorance concerning some precept is a sin, and in a grave matter can be grave, if the negligence was notable. L. 148-151. - Secondly, it obliges to observance of itself, that is, to furnishing that which the law commands to be furnished; not something else, for it does not command that. But since one who is obliged to an end is also obliged to the means, observance of the law also obliges one to employ these means, as to avert the danger of transgressing it. Since Pontifical laws are promulgated in the Official Commentary, the obligation consequently is to procure the aforesaid Commentary for oneself in order to know those laws. Yet it does not oblige to means except ordinary ones; for law is established for cases that commonly occur, and not for rare ones.

Consequently law obliges that no one act in fraud of it. To act in fraud of the law is to embrace the words of the law and to strive against the will of the law; R. I. in 6. Therefore he acts against the law who does what the law prohibits, or omits what the law commands. But he acts in fraud of the law where that which the law did not wish to be done, though nevertheless it did not forbid it to be done, is done, or where that which the law wished to be done, though nevertheless it did not command it in express words, is omitted. L. 29, 30, ff. de Legib. Wherefore in order to act in fraud of the law it is necessary that the law at least implicitly command or prohibit that thing. Otherwise one uses his own right. Hence a nobleman acts in fraud of the law who, so as not to fast, occupies himself with servile works; but not at all by drinking wine, although it nourishes in some way, and so that he himself may not suffer hunger.

But as regards the observance itself of the law, it must be noted that what is minimal is reputed as nothing, e.g., if in the recitation of the office, in hearing Mass, some little thing is omitted, if a minor in contracting is slightly injured, etc.; except those things which are defined by nature, or by law, or by the will of man, since in these there is no place for moral estimation; for example, if a novice emits profession on the penultimate or last day of the sixteenth year of age, he emits no profession. S. Th. 2. 2. q. 66, a. 6, ad 3.

n. 221.

Is it licit to posit causes impeding the observance of law? It is not licit directly to posit impeding causes, whether proximate or remote. Indeed, it is not even licit indirectly to posit proximately impeding causes, unless there is a proportionate necessity. But it is licit, even without reason, indirectly to posit remotely impeding causes. Proof of the first part. For every law implicitly obliges that nothing be done deliberately so that the law may be eluded; or, what is the same, every law prohibits anyone from acting in fraud of that same law; otherwise the law would be almost void as to imposing obligation. L. 29, 30 de Legib.; L. 5 e. t. C.; L. 152; l. 3, n. 1045; S. Th. 4 D. 15, q. 3, a. 4, q. 1, ad 1; Sanch. Con., l. 5, c. 1, d. 7, n. 11. - Proof of the second part.

Because a law proximately urging proximately binds the will to employ the means, from the nature itself of the thing necessary and ordinary, lest the law itself be violated without sufficient reason, and therefore to not throw in impediments. Otherwise the act of the legislator, by which he intends to oblige subjects, is altogether frustrated. S. Th. 2. 2. q. 147, a. 4, ad 3. But the reason for the exception is that on the one side there is a sufficient reason for positing the impediment, and on the other side the non-observance of the law is outside the intention of the agent. - Proof of the third part.

Because neither divine positive law nor human law obliges generally with a very grave inconvenience. But it would be a too grave burden if each person, long before the obligation of the law, were constrained to abandon all works incompatible with that obligation, and to wait for the time of the obligation. This reason, by which the thesis is proved, can be the best norm for judging in doubt whether a cause is only remotely impeding, namely if its omission would bring a grave inconvenience. But here it must be noted generally that not always will the same inconvenience which is truly grave with respect to one precept be such also with respect to every precept, since the gravity of all precepts is not the same. Hence that grave inconvenience must be judged not only absolutely and in itself, but also respectively and in relation to the precept with which the matter is concerned. L. 152; S. Th. 1. 2. q. 152; Ithur., Cas. 32; Sanch. in Dec., l. 1, c. 15, n. 4; Suarez, de Pecc., d. 3, s. 4, n. 10.

Vol. I, On Sins and Virtues, V. On the Capital Vices

n. 324.

What are the daughters of avarice? - They are the following: 1. Hardening of heart, against mercy, by not compassionating the needy and poor, by reproaching them, by demanding debts too harshly when the debtor is not able to pay, etc. By this one can sometimes sin mortally, when the precept of almsgiving or charity urges, and nevertheless from such hardness he is not helped. L. 69. 2. Disquiet of heart, i.e., a vehement and inordinate application of the mind to acquiring or conserving riches, with empty and vain fear lest they not be acquired or lest they be lost. It is mortal when it withdraws from spiritual things or other things to which we are obliged by grave precept, or induces superfluous fear, and from this distrust toward God. It is venial if it is concerning a good matter, but at an undue time or place, e.g., concerning family, harvest, vintage, when someone is in church, or should be free for God. S. Th. 2. 2. q. 55, a. 6; L. 69.

Violence, namely the usurpation of another's thing by force. It is mortal if it concerns a grave thing, or inflicts grave force. L. 69. 4. Fallacy, or deceit in words; it can be mortal by reason of the end or of the means. S. Th. 2. 2. q. 55, a. 4; L. 69. 5. Perjury, if confirmation by oath is added. 6. Fraud, or deceit in deed. It is mortal from its genus; and it occurs in many ways in contracts. S. Th. 2. 2. q. 55, a. 5; L. 69. - 7. Betrayal, which is deception against faith given or owed, to the harm of another. It is mortal from its genus. It occurs in almost three ways: 1. concerning persons, in which way Judas betrayed Christ; 2. concerning things, as if you show to the enemy the manner of taking a fortress, or show to a robber money, clothing, etc., that has been hidden; 3. concerning a secret, either by revealing one committed to oneself, or by reading others' letters. But if this is in a grave matter, it is per se mortal. L. 69; S. Th. 2. 2. q. 118, a. 8; q. 55, a. 8.

Vol. I, On Sins and Virtues, VI. On Virtues

n. 346.

What is prudence, what are its parts, and what vices are opposed to it? R. To the first. It is a certain special virtue of the practical intellect, by which in any business occurring we know what is honorable, what shameful. And thus prudence is the right reason of things to be done, or the virtue rightly ordering those things which are toward the end of the whole of life. But every virtue is in the mean; the mean is to do those things which virtue commands, when one ought, where one ought, as one ought; and accordingly the office of prudence is to find a mean of this sort, which is one thing as a mean of reason, another as a mean of the thing. - The acts of prudence are: 1. To take counsel, namely by inquiring what means and what circumstances are necessary, so that the work may be done honorably. 2. To judge concerning the things found, i.e., after diligent consideration, to conclude what is to be done, in what way, in what place and time, and with what other circumstances. 3. To command, namely by prescribing what and when it is to be done, by applying to operation those things which have been counseled and judged. 4. To operate solicitously the things commanded. For solicitude is that moderated speed by which, by the cleverness and vigilance of the soul, that which has been consulted and defined is quickly committed to execution.

Hence a precept of prudence is not given by reason of itself, but only by reason of another thing, namely of a virtue to be exercised and a sin to be avoided. Therefore as all precepts pertain to prudence, because it is directive of all virtuous acts, so universal Moral Theology pertains to prudence, and especially the treatise on Conscience; since the whole of Moral Theology and the aforesaid treatise in particular hand down rules so that we may act prudently and rightly. S. Th. 1. 2. q. 64; 2. 2. q. 47; q. 56.

R. To the second. The integral parts of prudence, which concur toward its perfect act, are: 1. Memory, which is knowledge of past things. For since experience is required for prudent persons, and experience is from many memories, the memory of many things is required for prudence. 2. Understanding or intelligence, not as it is a certain power, but as it is a certain right estimation of some ultimate principle. For every deduction of reason is from some principle, and prudence is the right reason of things to be done. 3. Docility, by which someone is prompt and easy in receiving instruction from others and acquiring knowledge from them. For prudence consists about particular things to be done, which someone cannot always know all by himself alone. 4. Shrewdness, which is an easy and prompt conjecturing, by which, when something occurs unexpectedly, someone quickly by himself finds what is fitting. 5. Reason. For it belongs to a prudent man to be good at taking counsel; but counsel is a certain inquiry proceeding from certain things to others, which is the work of reason. 6. Foresight, which imports a respect of something distant, or future, to which those things which occur in the present are to be ordered. Therefore foresight is the right ordering of suitable means to the end, and accordingly includes rectitude of counsel, judgment, and command. 7. Circumspection, by which that which is ordered to the end is compared with the things which surround it, and therefore is an accurate consideration of all circumstances. For something is good in itself and fitting to the end, which nevertheless, from certain concurrent things, is rendered either evil or not opportune to the end. 8. Caution, which is consideration of evils and extrinsic impediments, through which it happens that they are avoided, lest good be impeded by evil, lest evil be mixed with good. Of these eight parts, the first five pertain to prudence according as it is cognitive; but the three later according as it is preceptive, applying knowledge to work. S. Th. 2. 2. q. 49.

The subjective parts of prudence are: 1. Prudence simply so called, which is ordered to one's own good. 2. Royal prudence, which is the prudence of the king himself, which rules a city or kingdom. For it belongs to prudence to rule and fittingly to command. And therefore to the king, to whom it pertains to rule a city or kingdom, a more special prudence belongs. For a rule is so much the more perfect, the more universal it is, extending itself to more things and reaching a further end beyond itself. 3. Political prudence, and this is that by which men rule themselves in obeying Princes in order to the common good of the city or kingdom. 4. Economic prudence, by which men direct themselves toward living well according to domestic intercourse, for the common good of the house or family. 5. Military prudence, by which harms from enemies are repelled. S. Th. 2. 2. q. 47, aa. 10, 11, 12; q. 48, 50.

The potential parts of prudence are: 1. Eubulia, or the virtue of taking counsel well, whose office is to suggest good counsel. 2. Synesis, which is the virtue of judging well concerning particular things to be done, according to common rules. 3. Gnome, which is the virtue of judging about things to be done beyond common principles; and consequently it imports a certain perspicacity of judgment. These parts are potential parts of prudence, because the principal act of prudence is to command execution, to which taking counsel well and judging well are directed. S. Th. 1. 2. q. 57, aa. 4-6; 2. 2. q. 48; q. 51.

R. To the third. Imprudence is opposed to prudence. It is either such privatively, or contrarily. "But negatively it is not properly so called, namely so that it properly imports only the lack of prudence, which can be without sin. Privatively, indeed, imprudence is so called insofar as someone lacks prudence which he is naturally apt and ought to have; and according to this, imprudence is a sin by reason of negligence, by which someone does not apply effort to having prudence. But contrarily imprudence is taken according as reason is moved or acts in a contrary mode to prudence; for instance, if the right reason of prudence acts by taking counsel, the imprudent person spurns counsel; and so concerning the other things which must be considered in the act of prudence. And in this way imprudence is sin according to the proper account of prudence. For this cannot happen, that man acts against prudence, except by turning aside from the rules by which the reason of prudence is rectified. Hence, if this happens by aversion from divine rules, it is a mortal sin; for instance when someone, as if contemning and repudiating divine documents, acts precipitately. But if he acts beside them without contempt and without detriment of those things which are of the necessity of salvation, it is a venial sin." S. Th. 2. 2. q. 53, a. 1.

Generally speaking, every sin is against prudence, as follows from the very nature of prudence and imprudence. But specifically one sins against prudence by excess and by defect. By defect: by precipitation, inconsideration, inconstancy, negligence. By excess, or rather by a certain species of prudence: by prudence of the flesh, cunning, deceit, fraud, solicitude about temporal things, solicitude about future things.

Precipitation is that which, some end having been proposed, immediately undertakes the work, or at least judges concerning the means and mode of executing it, deliberation being omitted, against the office of prudence to take counsel. It is not grave except by reason of the danger of grave sin. - Inconsideration is that which judges while diligent inspection of things from which right judgment proceeds has been omitted, against the office of prudence to judge well. Likewise it is not grave except by reason of the danger of grave sin. - Inconstancy is that by which, without just cause, one's opinion is changed, and one contemns commanding those things which according to right reason had previously been judged and proposed, against firmness of judgment. It is not grave unless from some extrinsic circumstance, e.g., of scandal, precept, vow, someone is bound to persist in the opinion. - Negligence is that which imports defect of due solicitude, and omits to commit to execution at the opportune time a thing deliberated and judged, against the vigilance of reason in executing. It is not grave except in a grave matter.

Prudence of the flesh is that which thinks out suitable means for accomplishing the works of the flesh, so that one may follow the instinct and motions of corrupted flesh. The sin is grave or light by reason of the depraved affection, grave or light, which underlies it. Under prudence of the flesh is comprehended the prudence of the age and of the world, because we also desire the exterior things of the world on account of the flesh. - Cunning generally is the manner of doing something in a hidden mode. But here it is taken specifically for knowledge of depraved means suitable for deceiving, joined with an affection of executing them. It has place in those things which regard the neighbor. For no one hides something from himself. Therefore cunning is a sin by which someone uses not true ways, but false and simulated ways, for obtaining some end, whether good or evil. It is a grave or light sin according to the account of the affection which underlies it, and the harm which follows for the neighbor. - Deceit is the execution of cunning, whether by words or deeds; for it is a general name. Therefore deceit is the assumption of ways that are not true, but simulated and apparent ways, according to the execution of the work. It differs from cunning because cunning is the assumption of ways of this sort, not in execution, but only in the thinking out of them. Fraud is the execution of cunning through deeds, as when someone spends adulterated coin, and is something more restricted than deceit. Deceit and fraud are used especially in contracts, and they are a grave or light sin according to grave or light harm of neighbor. Concerning fraud and deceit the Rules of Law are: "Fraud and deceit ought to patronize no one," C. Ex tenore 16, de Rescr.; "Fraud is not done to him who knows and consents," L. Nemo de Reg. Iur.

Solicitude about temporal things is excessive occupation of mind, proceeding from inordinate love of having, or fear of losing. For solicitude imports a certain effort applied to obtaining something. - Solicitude about future things is excessive occupation of soul concerning future things, especially so that the necessities of life may be had, joined with anxiety and little confidence in Providence. Each solicitude is a grave or light sin, according as by it someone is prepared to violate a precept in a grave or light matter. S. Th. 2. 2. qq. 53-55; Theol. Wirceb., de Virt. Card. de Prud.

Vol. I, On the Second Precept of t…, III. On Oath

n. 563.

Does a promissory oath emitted through error or deceit oblige? - R. Negative, if the error or deceit concerns the substance of the thing; but otherwise if it affects only its accidental adjuncts, because a simple contract would be invalid in the former case, but not in the latter. L. 175. Yet the same St. Alphonsus, l. 3, n. 187, warns that the opposite opinion is probable when the error or deceit concerns those circumstances which, although accidental, if they had been known from the beginning, would have deterred one from the oath and promise. Those things entering the quasi-substance of the contract are as a condition without which not. This warning of St. Alphonsus indeed ought to hold, as in vows, so in gratuitous contracts, but not in onerous contracts. Cf. 575.

Vol. I, On the Second Precept of t…, IV. On Vow

n. 575.

Is a vow made through error valid? - R. Negatively, if the error concerns the substance of the thing, or substantial circumstances, or those which are principally intended, or pertain to the substance, or notably change it; because then the thing promised is not sufficiently known and willed. Indeed St. Alphonsus, n. 198, adds: "it is certain that error concerning the substance invalidates a vow, even if it was concomitant, that is, not giving cause to the vow, for example, if even when the error was known, you would still have vowed; and even if the error was however crass." For even such ignorance renders the act non-voluntary.

R. Affirmatively, if the error is only concerning an impulsive cause. "The vow is valid, because that is only a secondary cause, and if it is set aside, the act is sufficiently voluntary according to its substance. Nor does such an error vitiate the act in other contracts; for example, someone vowed a pilgrimage to Rome with zeal for worshiping God, and at the same time also had a secondary impulsive cause, that he might visit his brother, whom he thought to be at Rome; even if afterwards he understands that the brother is not there, he does not therefore cease to be obligated by the vow." L. 198.

R. Affirmatively also, if the error concerns accidental circumstances of lesser moment, which would not have stood in the way of the vow if, the error being excluded, they had been known; for one who vows is judged to oblige himself to undergo merely accidental inconveniences which can occur in fulfilling the vow. Thus St. Liguori, who nevertheless in n. 198 does not deny that it is probable that error invalidates a vow in accidental circumstances, if these are of great moment, and if, had they been known, the vow would not have been emitted. Cf. 563, 567, 597, 598.

Yet vows must be excepted which are emitted after the novitiate in any approved order; for these are not void because of any error, except only substantial error, concerning the substance. For by their nature they constitute a stable and irrevocable state; and therefore one dependent upon no other error than substantial error. Moreover, because otherwise it would follow that many Professions would be invalidated, to the grave damage and scandal of the commonwealth. This also holds concerning marriage. L. ib.; Lugo, de Iust. et Iure, d. 22, n. 88; Sanch., de Matr., l. 10, d. 9, n. 20.

Vol. II, On the Seventh and Tenth P…, IV. On the Modes of Acquiring Ownership by Private Will

n. 943.

Do error and fraud invalidate a contract? A twofold fraud is distinguished: good fraud and bad fraud. Good fraud is nothing other than a certain skillfulness in acting, and in this sense Ulpian said that it is lawful for contracting parties in the price of purchase and sale naturally to circumvent one another, namely within the limits of the just price. Bad fraud, of which there is question at present, is: shrewdness, fallacy, contrivance, employed for circumventing, misleading, deceiving another. Shrewdness is found in keeping silent, fallacy in lying, contrivance in doing. C. H. 1269; C. L. 663. "A contract is null if fraud or error concerns the substance of the contract, because actual consent is lacking."

L. 714; C. I. 1108, 1110; C. H. 1266; C. L. 659, 660; C. A. 871; C. G. 1110; C. B. 119. If error or fraud concerns the quality of the thing, and has not given cause to the contract, the contract is valid; for consent is not lacking concerning the object itself of the agreement. C. I. 1110; C. H. 1270. If error or fraud concerns the quality of the thing, but has given cause to the contract, it is disputed. The first opinion affirms. "The reason is that although quality in physical being is something accidental, nevertheless in moral being it has the character of substance. Yet the opposite is commonly handed down by doctors and is more probable...

The reason is that this contract is not invalid either by positive law (whether Roman, or Italian 1110, 1115, 1300, or French 1116, 1117, or Spanish 1266, and Austrian 872), or by natural law... for to validate a contract a voluntary intention as to the substance suffices, although it is involuntary as to the accidents; unless... the contracting party expressly consents under the condition, if such a circumstance is present, because then the quality passes into the substance. But doctors commonly teach that such a contract can always be invalidated by the deceived person, by reason of the injury and defect of consent, and that the deceiver is bound to damages arising from the deception." And although the error was invincible, nevertheless someone can still invalidate the contract in conscience and not fulfill it, if the matter is of great moment, to which he is deservedly not considered to have wished to consent, at least altogether absolutely.

L. 714, 715; l. 6. n. 835; C. A. 874; C. I. 1108, 1115; C. B. 123, 853; C. H. 1270, 1101, 1102, 1107, 1726. - But "if fraud is employed by some third party, without any fault of the other contracting party, the contract is certainly valid; but some with Lessius, Sanchez, Bonacina wish it still to be rescindable; others say that it cannot be rescinded, but that an action is given to the deceived person against the deceiver for obtaining reparation of damages." Gur. 777; C. A. 875; C. B. 123. Error or fraud concerning the motive cause of the contract invalidates the contract, for then consent is lacking concerning the very substance of the contract. C. I. 1109; C. H. 1266.

Hence "it is not surprising if a fiction of poverty impedes the transfer of ownership, since the motive for giving alms to this poor person is his poverty, which that man wickedly and deceitfully feigns in order to extort alms." Lugo, Resp. Mor. d. 17. n. 1. But restitution in that case can probably be made either to the owner himself, or to other poor persons from the presumed will of the owner. L. 622. Error or fraud concerning the merely impulsive cause of the contract, for example if you lavish alms on a poor man because you consider him very upright, though he is less upright, does not invalidate the contract, since consent in the substance of the thing is not lacking; nevertheless someone can in conscience rescind the contract if the matter is of great moment, to which he is deservedly not considered to have wished to consent, at least altogether absolutely, as was said about a quality giving cause to the contract.

And this has place especially in gratuitous contracts, which require a full voluntary act and spontaneity. L. 737; C. I. 1109, 1110; C. H. 1266. Error or fraud concerning the person of the contract, speaking per se, does not invalidate the contract in onerous contracts; for the person is altogether extrinsic and indifferent in such contracts. Except, however, marriage, in which the contracting person is at the same time the object of the contract itself.

But it invalidates the contract in gratuitous contracts, speaking per se; for in these, on the contrary, the person of the donee is customarily specially intended by the donor. It is said speaking per se, for the circumstances of the matter must be considered, from which the will of the contracting party may be better known. C. I. 1110; C. G. 1110; C. H. 1266; C. A. 873. Lessius 1. 2. c. 17. D. 5; Rogron and Gousset in a. 1110; Molina tr. 2. d. 352. nn. 7, 8. From C. He., title on Dispositions mortis causa, art. 462, dispositions made under the influence of error, bad fraud, violence, threats are null. Nevertheless they become valid if the disposer has not revoked them within a year from the moment at which he knew the error or fraud, or at which the effects of violence and threats ceased.

Vol. II, On the Seventh and Tenth P…, XXIV. On Restitution from Unjust Damaging

n. 1357.

Whether from damaging there arises an obligation of restitution? A damager is called one who injures another's right, harming his neighbor in his goods, yet without becoming richer thereby. Wherefore damaging is a source of restitution diverse from the preceding ones. "Whoever damages someone seems to take away from him that in which he damages him; for damage is so called from the fact that someone has less than he ought to have.... And therefore a man is bound to restitution of that in which he damaged someone." St. Thomas, 2. 2, q. 62, aa. 4, 6; Inst. l. 4, t. 3; C. B. 249 ff. Whatever act of man is the cause of damage to another obliges to reparation of that damage.

Nor indeed does only one's own act oblige to restitution, but also the act of another person or of a thing, of which someone has custody and care. And thus the proprietor of a house which falls because of defect of due conservation or construction is held concerning the damage which comes from it. The proprietor or custodian of an animal which causes pauperies is also held concerning damage. If a damaging act of this kind was committed with the intention of harming, it is called deceit and delict; if without that intention, from imprudence and negligence, it is called quasi-delict and juridical fault. C. I. 1151 ff.; C. G. 1382 ff.; C. H. 1089, 1092, 1104, 1105, 1902 ff.; C. A. 1293 ff.; C. B. 823 ff.; St. Thomas, 2. 2, q. 62, a. 1, ad 2; aa. 4, 7; E. M.

Vol. III, On the Particular Obligati…, IV. On Profession

n. 277.

What things are required for religious profession? - For the value of profession there is required: 1. That the person be fit for entering religion. - 2. That the one professing has completed the sixteenth year, computing this time mathematically from moment to moment. For thus Trent decreed, s. 25, c. 15 de Reg., according to the S. C. and all the doctors. Laymen or conversi cannot be admitted to profession before they have arrived at the age of twenty-one completed years, from Clement VIII, C. Regularis disciplinae, March 19, 1603. But now from the Decree of the S. C. of Religious, January 1, 1911, they are admitted to solemn vows only when the thirtieth year of age has been completed, after a six-year period of simple vows, a year of Novitiate, and two years of Postulancy. Cf. 267 bis. - 3. That a whole year of probation has preceded. Trent ibid. - 4. That it be done with the intention of making profession; for it is a certain spiritual marriage with religion, which, just as carnal marriage, is itself lacking when consent is lacking.

That profession not be emitted because of fraud or deceit; otherwise true consent would be lacking. - 6. That it not be done from force or grave fear, unjustly inflicted from without to extort profession. C. 1 de His quae de vi metusve, etc.; C. ult. Qui clerici vel voventes; Trent s. 25, c. 18, 19 de Reg. - 7. That the three substantial vows be emitted; otherwise the essence of the religious state will not be present. - 8. That profession be made in some approved religion. - 9. That profession be accepted by one having power for this. Cf. Ferraris v. Moniales a. 1, n. 101 ff.; C. Ad Apostolicam de Regular. - 10. That the one professing attach no condition repugnant to the substance of religion. - 11. That express profession be made; for tacit profession as regards men has been abrogated by Pius IX, Decree of the S. C. Regular Discipline, June 12, 1858. Cf. Ferraris l. c. n. 109. By custom it has also been abrogated as regards nuns, and as regards more recent Institutes of simple vows. - 12. That both men and women first emit simple vows and remain in them for three whole years before solemn profession is to be emitted. From just and reasonable causes these vows can be extended up to the completed twenty-fifth year of age. Pius IX, Brief In universalis Ecclesiae, February 7, 1862; S. C. Bishops and Regulars, May 3, 1902. Meanwhile they must remain in houses of the professed and of studies, and observe perfect common life, and they are held to the observance of the rule of the order as solemnly professed men and women are; and they enjoy the privileges and indulgences of the order or monastery as these do. The active and passive voice is computed from the day of emission of simple vows. Yet they do not have a suffrage in admission to solemn profession, and can be elected only to lesser offices, not also to offices of superiority. S. C. Regular Discipline, August 6, 1858; S. C. Bishops and Regulars, May 3, 1902; February 20, 1905. By this profession of simple vows, which precede solemn vows, residential benefices do not become vacant. S. C. Bishops and Regulars, March 30, 1908. - 13. If one vow, e.g., of poverty, is not solemn, neither are the other two solemn. S. Penitentiary 1820 to the Bishop of Limoges. - 14. As regards nuns, solemn profession is not had without papal enclosure, C. Periculoso un. de Stat. reg.; St. Pius V, C. Cura pastoralis, May 29, 1566. - Lugo, Resp. Mor. l. 4, d. 14, 18, 21, 43; l. 3, d. 16.

Concerning Religious bound to military service. - "... The S. C. of Religious ... decreed the following:

I. In Regular Orders in which solemn vows are emitted, young men who are not certainly established to be exempt from active military service, namely from that service which they, when first called to the military, must perform for one or more years, cannot be admitted to Sacred Orders or to solemn profession until they have completed military service and, this having been completed, have remained at least for a year, according to what is to be said below, in simple vows, with the decree Sacrosancta Dei Ecclesia, edited on this same day, observed as regards Laymen.

II. In Institutes of simple vows, the young men concerning whom in the preceding article will be able to be admitted only to temporary vows up to the time of military service; nor is it lawful for them, while they give service to the military, to renew profession. When they have been dismissed from military service, they will again emit profession, at least for a year, before they bind themselves by the bond of perpetual profession.

III. But let young men serving in the military take care lest they lose the gift of holy vocation, and let them always converse with that modesty and caution which befits religious men. Wherefore let them shrink from suspect places and little gatherings; let them abstain from theaters, dances, and other public spectacles; let them avoid the commerce of the bad, slippery conversations, things discordant with religion, men professing suspect doctrines, readings contrary to morals or faith according to the dictates of the Holy See, and other dangers of sinning; let them not omit, as much as is lawful for them, to frequent churches and the sacraments; let them approach Catholic circles or meetings for recreation and instruction of soul.

IV. Wherever their station is placed, if there is there a house of their Religion or Institute, let them frequent it and be under the immediate vigilance of the Superior. But if the aforesaid house is not present, or they cannot conveniently frequent it, let them approach a priest designated by the Bishop, and use his counsels and company, so that when it is necessary to leave the same station, they may be able to receive from him written testimony concerning the observance of all those things which are prescribed in the preceding article. But if a priest designated by the Bishop is not had, let them choose for themselves a prudent priest, to be indicated at once to their Superiors, who will procure for themselves from the Ordinary information about his morals, doctrine, and prudence. Furthermore, let them establish correspondence by letters and, as far as can be done, diligently pursue it with their respective Superior or another religious or member of their Institute designated for this, whom they are to make more certain concerning the manner and condition of their life, concerning each change of their station, and especially let them notify him of the name and domicile of that priest whose company and direction they use, as was prescribed above.

V. Superiors General or Provincial, even local according to the custom of each Institute, by themselves or by a delegated member, who in clerical Institutes is to be marked with the priestly order, are altogether held to inquire concerning the life, morals, and conduct of the pupils while military service lasts, especially by the work of the priest or priests concerning whom above, through secret letters if there is need, so that they may be made more certain whether these have preserved the right way of faith and morals, observed the cautions prescribed above, and shown themselves faithful to the divine vocation, their conscience being gravely burdened.

VI. When they have been definitively dismissed from active military service, let each one be held to return by a straight path to his own religious houses, and there, if it is certainly established concerning their good conduct, as was said in the preceding article, some days of holy recollection having been premised, those who are assigned to Institutes of simple vows are to be admitted to renewing temporary profession; but in Regular Orders, let them be placed among the younger clerics or professed, or at least in a house where perfect regular observance flourishes, under the special vigilance and direction of a religious commended for piety and prudence, who in clerical Institutes must be a priest. In that state they must complete the whole time, which, according to what has been said in articles I and II, will not be able to be less than a year, to be premised to solemn or perpetual vows according to the path of the Apostolic Prescriptions and of the Constitutions of their own Religious Family, yet in such a way that the time spent in simple or temporary vows from the first emission of vows up to departure from the religious house because of military service is indeed computed, but not that which was given to military service.

VII. At that time, let them give attention to studies and regular observance; but let the immediate Superiors and the members placed over the direction of the younger men consider them most diligently, investigate their morals, fervor of life, opinions, doctrines, and zeal for persevering, so that concerning them before the last profession they may be able to render an account under faith of oath to the higher Superiors.

VIII. If any, during military service or after it has ended, before they are admitted to solemn or perpetual profession, have given doubtful signs of perseverance, or have not obeyed the cautions prescribed during the time of military service, or have turned aside from purity of morals or faith, let them be dismissed by the Superior General with the consent of his Counselors or Definitors, and let their vows be held as dissolved by the very act of dismissal.

But if the young men themselves desire or spontaneously ask to be relaxed from the bond of vows, the faculty is given to the aforesaid Superiors, as delegates of the Apostolic See, of dissolving the vows, if it is a question of clerical Institutes; but if the matter concerns Institutes of laymen, let the vows be judged dissolved by letters of the Superiors, by which license is given to them to return to the world.

IX. Ecclesiastical Societies also are held by these prescriptions, which, although they do not use vows, neither solemn nor simple, nevertheless have simple promises by which their pupils are bound to those Societies.

X. If anything new, not foreseen in this Decree, or if anything doubtful in understanding it should occur, recourse is to be made in individual cases to this S. Congregation.... Anything contrary whatsoever notwithstanding." S. C. Religious, Decree Inter reliquas, January 1, 1911.

Declarations concerning the Decree Inter reliquas on the military service of religious. - "I. Whether perpetual vows emitted before the promulgation of the Decree Inter reliquas cease ipso facto when active military service is assumed?

II. Whether temporary vows likewise cease ipso facto when the same service is assumed?

III. Whether solemn profession in Orders, and perpetual profession in Institutes of simple vows, emitted in good faith by one who falsely thought himself exempt from military service, is valid?

IV. Whether solemn profession in Orders, and perpetual profession in Institutes of simple vows, emitted before a year has been completed from the day active military service was completed, is valid?

V. Whether a whole year must flow before he who was assigned to active military service for only three months is admitted to solemn or perpetual profession?

VI. Whether those Religious can be admitted to solemn or perpetual profession who, subject to active military service, nevertheless have and manifest the firm intention of giving themselves to foreign Missions, and of remaining in them up to the time established by civil law for obtaining perpetual exemption from military service, as, for example, in Italy it is the thirty-second year of age?

R. To I. In the negative. - To II. In the negative of itself, or, the vows do not cease ipso facto at the beginning of military service; nevertheless Religious can ask for dispensation from vows from the first day of military service, according to Art. VIII of the Decree Inter reliquas, if they do not intend to persevere; if they intend to persevere, in no case can they emit a new profession of vows unless military service has been completed, even if the time of profession has expired during military service. - To III. In the negative. - To IV. In the negative. - To V. In the negative; but it is necessary and sufficient in the case that there be three months, or a space of time shorter than a year, corresponding to the time spent in military service. - To VI. In the negative of itself. Yet the Sacred Congregation concedes that in the last year of the course of studies it is lawful to admit to solemn profession, or respectively to perpetual profession, and to promote to sacred Orders, young men about to set out for sacred Missions within a year, after an oath has first been emitted on the part of the candidate concerning service to be rendered to the Missions up to the time predefined by civil law for obtaining exemption, and with the conscience of Superiors burdened concerning its execution.

Concerning religious Profession in the article of death. - "... In any Order, or any Congregation or religious Society, or monastery whether of men or women, or even in Institutes in which, although vows are not emitted, nevertheless common life is lived after the manner of Religious, it is lawful thereafter to admit Novices or Probands, who by the judgment of the physician are gravely sick, so that they are judged to be constituted in the article of death, to profession or consecration or promise according to their own Rules or Constitutions, although they have not yet completed the time of novitiate or probation.

Yet, in order that novices or probands may be admitted to the above-said profession or consecration or promise, it is necessary:

That they have canonically begun the novitiate or probation.
That the Superior who admits the Novice or Proband to profession or consecration or promise be the one who actually governs the monastery or house of novitiate or probandate.
That the formula of profession or consecration or promise be the same which is in use in the Institute outside the case of sickness; and vows, if they are pronounced, are to be pronounced without determination of time or perpetuity.
That he who has emitted profession, consecration, or promise of this kind will be a participant in absolutely all the indulgences, suffrages, and graces which Religious truly professed dying in the same Institute obtain; and to the same there is mercifully conceded in the Lord plenary indulgence and remission of his sins in the form of a Jubilee.
This profession or consecration or promise, besides the graces declared in the preceding article, produces altogether no other effect. Therefore:

A) if the Novice or Proband after profession or consecration or promise of this kind dies intestate, the Institute will be able to claim for itself no goods or rights pertaining to him;

B) if he recovers before the time of novitiate or probandate expires, he is to be in altogether the same condition as if he had emitted no profession; and therefore: a) freely, if he wishes, he will be able to return to the world; and b) Superiors are able to dismiss him; c) he must complete the whole time of novitiate or probandate defined in individual Institutes, even if beyond a year; d) this time having been completed, if he perseveres, a new profession or consecration or promise will have to be emitted.

Anything contrary whatsoever notwithstanding." S. C. of Religious, September 10, 1912.

277 bis. What form of admission is to be observed? - When Novices are to be admitted to profession, "the Conventual Chapter ... is to declare by secret votes whether the Novice can be admitted to profession.... Then the Provincial and the Examiners (Provincial, at least three) are to define by secret votes whether the Novice ... can safely be admitted to profession. If the Novice has been approved, the Provincial is to render the Superior General instructed concerning everything, who ... is to revoke or confirm the approval ... yet so that he can never permit the profession of a Novice who has been rejected by the Provincial Examiners.... If the Constitutions and rules of some Order and Institute further require anything in admitting Novices to profession, that also will have to be observed only in that part which is by no means contrary to the tenor of this Decree." Decree Regulari disciplinae of the S. C. on the State of Regulars, January 25, 1848.

As regards nuns of solemn vows, those things are to be observed which are established in their proper Constitutions. As regards more recent Institutes of simple vows, the Norms of the Sacred Congregation and their own Constitutions approved by the Holy See are to be observed.

As regards the rite of making profession and renewing vows, the General Decree of the S. R. C., August 14, 1894, n. 3836, and June 5, 1896, n. 3912, is to be observed. - E. M.

Vol. III, On Penance, XI. On Reservation

n. 797.

Who can absolve from reserved matters, and when? - Besides the Roman Pontiff and the Major Penitentiary, those who reserve, and those who act in their place, can absolve by ordinary right. Therefore Bishops absolve from episcopal cases, and their vicars general. C. Non putamus 2, de Consuet. in 6, each one in his own diocese; not likewise canon penitentiaries. L. 509. From cases reserved by Regulars, their superiors absolve, and at present all Confessors approved by the local Ordinary. Cf. here 790. But at present Regulars cannot absolve from papal cases, from the Constitution Apostolicae Sedis of Pius IX on censures; nor can they absolve from episcopal reserved cases from prop. 12 condemned by Alexander VII. Yet they can absolve from those reserved to Bishops by the common law itself. For this faculty is found nowhere revoked. L. 599; S. O., March 22, 1881. - Likewise all absolve from reserved matters who receive special delegated jurisdiction over reserved matters.

Power of absolving from reserved matters, given simply for papal cases, or given even for papal cases, does not hold as regards cases reserved by Ordinaries. Benedict XIV, Constitution Pias Christi; L. 594. Power given by an Ordinary for absolving from reserved matters does not hold for papal cases. But each power given simply does not hold for specially reserved cases, or those reserved in a special manner. C. Si Episcopus 2, de Poenit. in 6.

Since pilgrims by common custom confess and are absolved as inhabitants of the place in which they stay, they cannot be absolved from reserved matters in the place of Confession by a simple confessor; but they can be absolved from matters reserved in their own country, unless they have come there in fraud of the reservation, and there is question of censures reserved ab homine. Clement X, Constitution Superna, June 21, 1670; S. C. C., Sept. 16, 1649, apud Benedict XIV, de Syn., l. 5, c. 8; S. C. C., Nov. 12, 1612; S. Penit., Nov. 21, 1873. He comes in fraud of the reservation who comes for this principal end, of avoiding the judgment of his own pastor and of obtaining absolution from reserved matters. Therefore, if he comes in order to handle his other business, and then confesses, or even in order to confess better, he uses his own right. Concerning censures reserved ab homine; for as regards these a universal custom cannot be invoked, as for censures, even reserved ones, imposed by law, though others deny this. D'Annibale 346, vol. 1, ed. 3; L. 573, 574, 587, 592, 593; Filliucci, tr. 7, c. 10, n. 284; Gury-Dumas, Gury-Ballerini 582.

Confessors even privileged cannot absolve penitents of another rite from a case reserved by each one's own Ordinary. Leo XIII, Constitution Orientalium dignitas, Nov. 30, 1894. Cf. here n. 766. - At the point of death all can absolve from reserved sins and censures, because then there is no reservation from Trent, sess. 14, C. 7. Therefore for absolving from papal cases no permission of the Bishop is needed, and anyone can absolve from reserved matters, even when the superior or another having power is present. Cf. n. 773 and n. 799.

On the faculty of Cardinals to absolve from reserved matters, cf. vol. 1, n. 266 bis 1.

A superior who has ordinary jurisdiction can remove reservation outside Confession; and the penitent can then be absolved by any confessor. But one who has delegated jurisdiction, since it is given principally for absolving sins, can absolve from reserved matters only in sacramental Confession. Suarez, de Censur., d. 7, s. 5, n. 36; Lugo, d. 20, n. 74. "But can a superior absolve a penitent from reserved matters, and send him back to an inferior for the others? Some affirm universally... Others say that this is lawful only in a case of grave necessity, for example if the superior could not free himself from some very grave business, and on the other hand judged it necessary personally to hear the reserved sin. And Lugo, d. 20, n. 78, Salm., etc., admit this. But in a very rare case, with it added that the penitent would be under necessity of communicating and would not wish to confess the same sins twice. This last does not seem improbable, granted the case with all these conditions." L. 595. "One who has been absolved from reserved matters by a superior can afterward be absolved from the same by anyone; because they are no longer necessary matter of Confession." L. 596. - Lugo, Resp. Mor., l. 1, d. 27; l. 4, d. 28; l. 3, d. 6; E. M.

Vol. IV, On Marriage, I. On Betrothals and on the Banns

n. 921.

Are betrothals contracted through deceit giving cause to the contract void, even if the deceit is about a quality, for example riches, qualities of body or soul? This is disputed. The first opinion, sufficiently probable, affirms. For this is proper to betrothals, because marriages must be entered into voluntarily by mutual benevolence. The second opinion, more probable, denies. For this is common to any contract, that it is not void except by defect of consent or of object. "But then the deceived party has an action for voiding the contract on account of injury and defect of consent, and this holds even if the deception came from some third party, with the party ignorant." L. 835. "Lessius, etc., probably say that if the matter is intact, as happens in simple betrothals, and the error is invincible in conscience, the deceived party is not bound to stand by the contract, not even after the sentence of a judge." L., H. A., tr. 18, n. 2.

Vol. IV, On Marriage, II. On the Nature and Properties of Marriage

n. 962.

What is to be done if someone says that he consented fictitiously? - As regards the external forum, credence is not given to him, unless from the circumstances it is clear that he was either deceived by fraud or induced by grave fear to contract; for it cannot be supposed that he who freely entered marriage consented fictitiously. - As regards the internal forum, he who asserts that he consented fictitiously must be obliged to abstain from asking and rendering the debt until he has truly consented, and ordinarily also to place true consent, so that he thus repairs the injury inflicted on the other party. Ordinarily, because if the other party consents to separation, or if he himself was forced to contract, he is not bound to supply consent. But it suffices that the consent of the one party accede to the preceding and not revoked consent of the other. Wherefore, if someone before the parish priest and witnesses did not truly consent, he satisfies by consenting afterward.

Besides, the spouse who placed true assent is not obliged to believe the other asserting that he consented fictitiously, unless he confirmed it by oath; and therefore he would licitly ask the debt until the defect of consent was evidently proved. S. C. C., February 24, 1720; St. Thomas, Suppl. q. 45, a. 4, ad 2. But the obligation of entering marriage by true consent easily shows itself to be most grave, not only because otherwise one sins gravely against the reverence owed to the sacrament, but also because by injury a most grave damage is inflicted on the other party. Indeed since in the external forum fiction can be proved with very great difficulty, other nuptials are not permitted to the deceived party, and therefore this one thing remains to that party: either to enter Religion, or to remain unmarried in the world. - L. 887, 1113, 1114; Schmalzgrueber, l. 4, t. 1, n. 265 ff.

Vol. IV, On Marriage, III. On the Impediments of Marriage

n. 1022.

What is the impediment of error, condition, and fury? As regards consent, there are impediments of marriage from error, condition, fury, fear, and abduction. Error dirimently impedes marriage by natural law if it is concerning the person, since it is a substantial error in the present matter, even if it is gross and concomitant, e.g., if Titius, falsely thinking that he is marrying Caia, says within himself: I would marry this woman even if she were not Caia. It is otherwise if he said: I wish to marry this woman, even if perhaps she is not Caia. Error concerning the qualities of the person, or concerning the nature and properties of marriage, provided that it is not concerning the thing itself of the contract, does not dirimently impede marriage. For it is very much in the interest of the public good that marriages not be dissolved because of any other error besides a substantial one, e.g., if someone contracts marriage with an error of fact, thinking that he is marrying a virgin, healthy, noble woman, and on the contrary marries a prostitute, a leprous woman, one born in the street, although he errs through the efficacious fraud of the spouse and certainly would not have contracted with such a woman; for this is an interpretative will, which, since it does not exist, can effect nothing. The same is to be said if someone errs with an error of law, thinking, for example, that marriage can be dissolved. And the same must be said if someone contracts while ignorant of the nature of the use of marriage. For for the validity of the contract of marriage it suffices to wish to contract as others contract, to wish to enter marriage as it was instituted by God and by Christ the Lord. A certain confused knowledge of marriage suffices, the general will of marriage prevailing and absorbing the aforesaid ignorance or error. Benedict XIV, de Syn., book 13, chap. 22, n. 7.

Three cases of accidental error must be excepted, which dirimently impedes marriage. The first case is when the quality is a condition under which consent is given; for it is manifest that when the condition is lacking, the conditioned thing, that is, consent, is also lacking.

The second case is when the quality is determinative of the person with whom one intends to contract; or when he does not know or determine the person with whom he contracts except from the indication and mark of that quality. Concerning this matter Pirhing, book 4, tit. 1, n. 163, says: "If by the quality in which there is error a certain and individual person is designated and conceived in the mind, who was previously unknown by sight, then error redounds into error of person." Likewise Sanchez, book 7, disp. 18, n. 38, says rather clearly: "To explain when error concerning a quality redounds into error of person dirimently impeding marriage, I say briefly that this happens when there is error concerning a quality which designates a certain person who was not previously known to the contracting party apart from that quality, namely except from that quality; and it is not established that the mind of the contracting party was to consent to the person present to him, whoever that person may be."

The third case is error concerning the servile condition of the spouse, which dirimently impedes marriage by ecclesiastical law, as is established from book 4 of the Decretals, tit. 9. This impediment no longer has place in Europe, not because the law ceases, but because the occasion is commonly lacking, unless perhaps in parts of the Turkish empire, or if some persons still bound to slavery should come from elsewhere into other parts of Europe. But error in this matter, according to the common opinion of doctors, dirimently impedes marriage even if it was gross. L. 1019; Schmalzgrueber, book 4, tit. 9, nn. 29-31.

But if the contracting party knows the servile condition of the other, or if a marriage contracted in ignorance is afterwards ratified after the error has become known, according to the opinion of all it is certain that the marriage is valid. But from the disposition of Canon Law, C. Si viduam 15, d. 34, one knowingly contracting with a female slave becomes irregular, L. 1018; Schmalzgrueber, l.c., nn. 15-18. And in the second case consent would have to be renewed before the pastor and witnesses, unless perhaps the nullity of the preceding contract were so altogether occult that it could not be proved; for then consent again emitted by the free party would suffice. Schmalzgrueber, book 4, tit. 3, n. 121, and tit. 9, n. 18. This impediment, moreover, as is clear, has force only as regards the marriage of a free person with a slave; for, and this must be carefully noted for places in which slavery still flourishes, marriages between slaves, beyond controversy, Schmalzgrueber, l.c., n. 7, are to be held valid, cf. C. 2, q. 2, c. 29, and St. Thomas, II-II, q. 104, a. 5, even if they are contracted without the consent of the master, C. Dignum 1, de Coniug. serv.; Schmalzgrueber, l.c., n. 10. Therefore just as a slave licitly contracts marriage even against the will of his master, so the master sins gravely against justice if he either positively impedes a slave from marriage, or treats him more harshly for this reason after he has contracted. Leo XIII, Letter, May 5, 1888; Sanchez, book 7, disp. 21, n. 15; Schmalzgrueber, l.c., nn. 13, 14. Italian Civil Code, 105; French Civil Code, 180; Austrian Civil Code, 57-59; German Civil Code, 1332-1334. "It must be said that madness either precedes marriage or follows it. If it follows, it in no way dirimently impedes it; but if it precedes, then either the madman has lucid intervals, or he does not. If he has them, then although, while he is in that interval, it is not safe for him to contract marriage, because he would not know how to educate offspring, nevertheless if he contracts, it is marriage. But if he does not have them, or if he contracts when he does not have them, then because there cannot be a contract where the use of reason is lacking, it will not be a true marriage." St. Thomas, Suppl., q. 58, a. 3. German Civil Code, 1325; L. 1009 ff.; St. Thomas, Suppl., q. 51, q. 52.

n. 1024.

What is the impediment of abduction? Abduction is the violent carrying away of a woman from a safe place to another, where she is detained under the power of the abductor, for the sake of entering marriage. Abduction dirimently impedes marriage by ecclesiastical law between the abductor and the abducted woman. Trent, sess. 24, chap. 6, de R. M.

Three conditions are required for incurring this impediment, namely: 1. that the abducted woman be led away from place to place. Woman, whoever she may be. Also a betrothed woman? It must be affirmed, because the law does not distinguish. Others, however, deny it, because a betrothed woman can be compelled to nuptials, unless perhaps she has a just cause for withdrawing from the betrothals. Cf. Collectanea S.C. de Propaganda Fide, n. 1418. She can indeed be compelled to nuptials; nevertheless betrothals do not give a right to inflict force upon her. An abducted woman; the impediment is not incurred if a woman abducts a man, because Trent speaks only of a male abductor. Be led away; not if she is unwillingly retained in the place to which she had gone spontaneously, since strict interpretation is needed here. It is the same whether the abductor executes the abduction by himself or through others; likewise whether he keeps the abducted person in his power by himself and with himself, or through others and with others. Sacred Congregation of the Council, June 25, 1864, A.S.S., vol. 1, pp. 15-24. But the impediment is incurred by the one who abducts for himself, not by those who abduct for another, although these can incur other penalties decreed against abductors both by civil and by canon law. Schmalzgrueber, book 5, tit. 17, n. 26. From place to place; the impediment is not contracted if she is led from room to room in the same house, because thus she is not properly constituted under the power of the abductor.

That the woman be abducted only for the sake of marriage; therefore the impediment is not incurred if the woman is led away for another cause, e.g., for satisfying lust. For Trent intends nothing else except to favor the liberty of marriage. Nor is the impediment incurred if marriage is contracted between the abductor and the abducted woman after she has been freed from the power of the abductor. This appears clearly from the text of Trent. On the contrary, this impediment lasts as long as the abducted woman is in the power of the abductor, even if she consents freely.
That the abduction be made while the woman resists, or is altogether unwilling, force being inflicted or fear being struck. Hence the impediment is not had if the woman consents to the carrying away; for then there is not abduction but flight, although those under whose power she is are unwilling. And, on the contrary, the impediment is present if, with these persons consenting, she herself is led away unwillingly. Abduction by seduction, as it is called, by inducing a woman with flatteries or gifts to follow him, does not constitute the impediment, because no force and no fraud is employed against the one led away, nor is injury inflicted upon the parents. But if a woman, deceived by fraud, unknowingly comes into the power of the one contriving the abduction, abduction is still had and the marriage is dirimently impeded. Sacred Congregation of the Council, April 24, 1868; June 25 and August 27, 1864; A.S.S., vol. 1, p. 23; Riganti, de Cancell. Reg., 40, n. 79 ff. L. 1107 ff.; St. Thomas, II-II, q. 154, a. 7, ad 4; Schmalzgrueber, book 5, tit. 17, nn. 37-40; E.M.

n. 1026.

What was clandestinity of marriage formerly, according to the Council of Trent? Besides the thing, the cause, and consent, in marriage its solemnities are to be considered, namely that extrinsic form of marriage by which marriage as a contract is validly effected, and by which the sacrament is entered holily. Hence another impediment of marriage arises, namely clandestinity. We set forth here first those things which had to be observed from the preceding law, both because they can still serve practice and because they serve for an adequate knowledge of canon law. Afterwards we will set forth those things which are to be observed under the present law now in force.

A clandestine marriage is called that which is contracted without the solemnity required by the Church, i.e., without the assistance of the proper pastor and at least two witnesses. This impediment is of ecclesiastical law alone, since it was constituted by Trent, sess. 24, chap. 1, de R. M.

Here the proper pastor is the pastor of domicile or quasi-domicile, Benedict XIV, Const. Paucis abhinc; Collectanea S.C. de Propaganda Fide, n. 1409, not likewise of origin, unless perhaps someone has a domicile there; and as regards wanderers, the pastor of the place in which they are when they contract, although only one of the spouses is a wanderer. L. 1089. If someone has domicile in two places, or domicile in one and quasi-domicile in another, he can contract before any of these. But the proper pastor is that of either the bridegroom or the bride in his own parish. Indeed, "the pastor of the man suffices even in the parish of the woman, because marriages are matters of voluntary jurisdiction, and because the Council expressed nothing concerning place, and because the Council seems to have wished the presence of the pastor and witnesses for removing only clandestinity, for which one pastor, whether of the man or of the woman, suffices." Sacred Congregation apud Fagnan, in C. Quod nobis, de Clandest. despons., n. 33; Barbosa, de Offic. parochi, part 2, chap. 21, n. 45; Benedict XIV, Notification 33, n. 5 ff.; Quaest. Can., 182; L. 1087. Pastor; the marriage is equally valid if it is contracted before the Bishop or his Vicar General, Benedict XIV, Quaest. Can., 182, or, while the See is vacant, before the Capitular Vicar. Cardinals also have the faculty of assisting at marriages, each in his own Title, and pontifical Legates in the provinces entrusted to them. For Cardinals in their Titles are Ordinaries and have episcopal jurisdiction; and likewise pontifical Legates, whether ordinary or extraordinary, whether a latere, whether merely sent, or even born, have ordinary jurisdiction in the provinces entrusted to them. Ferraris, v. Matrimonium, a. 3, nn. 12, 20, 45; v. Cardinales, a. 3, nn. 12, 20; v. Legatus, nn. 12, 45. Pastor; a pro-pastor also validly assists, or vicar, who from the Ordinary or from the pastor himself has absolute, full, and unrestricted power in the parish. Benedict XIV, de Syn., book 13, chap. 23, n. 1.

Since the pastor is present as a qualified, authorized witness, no power of order or jurisdiction is needed. Therefore he is licitly present even if he is only a cleric; and validly even if he is suspended, irregular, excommunicated, vitandus, or non-Catholic, schismatic, even if the Bishop has prohibited this to him. The same must be said of the Vicar General if, against the prohibition of the Bishop, either he himself assists at the marriage, or gives to some priest the faculty of assisting. The same pastor is validly present, although he is falsely pastor, if he has a colored title and by common error is reputed pastor; and more probably even if only common error is present, without a colored title. The pastor is validly present even in another's territory, even against the will of the pastor or Ordinary of that place, although he cannot solemnly bless the marriage. He can likewise delegate another, provided that he delegates a priest, not a deacon, and validly any priest whatever, even a vitandus. Not a deacon, unless perhaps by common error he is held as a priest. Sanchez, book 3, disp. 22, n. 61. General delegation also suffices, even tacit or extorted by fear, but not presumed, e.g., for exercising parochial duties. But a vice-curate also can delegate another, since he himself is delegated for the universality of causes. Ferraris, v. Matrimonium, a. 2, nn. 179-181.

It makes no difference if the pastor and witnesses are present by chance, fraud, or induced by force. For it suffices that they know what is being done, whether from words, if they are blind and recognize the voices of the contracting parties, or from signs, if they are deaf, or through an interpreter, if they are ignorant of the language. Therefore the marriage is valid even if the pastor pretends that he does not hear, stopping his ears with his fingers, that he does not see, closing his eyes, or that he does not understand, provided that in reality from antecedent and consequent acts he has perceived the consent of the parties; if, for example, he did not at all hear the voice of the bride or bridegroom, but saw the bridegroom holding the bride by the hand, Sacred Congregation of the Council, January 12, 1715, or handing her a ring, Sacred Congregation of the Council, November 28, 1671. For it suffices that all be morally present as witnesses, who must give testimony concerning the matter performed. Benedict XIV, de Syn., book 13, chap. 23; L. 899. For the validity of marriage any witnesses whatever suffice, whether men or women, even parents, nuns, unbelievers, whether adults or minors, provided they have the use of reason and are able to testify concerning the contracted marriage.

If marriage is contracted by proxy or by letters, the marriage is valid when the declaration of marriage is made by the proxy before the pastor and witnesses, or when the letters of each contracting party are read before the pastor and witnesses.

Domicile and quasi-domicile here are to be reckoned by Canon Law, not Civil Law, namely by the intention of dwelling in a place, i.e., in a parish, and not only in a diocese, perpetually or for the greater part of a year. Nor indeed is the fact itself of habitation for the aforesaid time needed, but as soon as one has come into that place, he acquires domicile or quasi-domicile and validly contracts.

But it was declared for the United States of America that habitation for the space of at least one month suffices, and inquiry need not be made concerning the intention of remaining in the place for the greater part of the year. Holy Office, May 6, 1886. This Declaration for the United States of North America, May 6, 1886, concerning sufficient residence of one month for the validity of marriage, without inquiry needing to be made concerning the intention of remaining there for the greater part of the year, was extended to the Archdiocese of Paris. Holy Office, May 20, 1905, A.S.S., vol. 38, p. 210. As regards students, young men, girls in colleges and monasteries, foundlings, and the sick in hospitals, if they are to remain in that place for the greater part of the year, the proper pastor of quasi-domicile is not the rector, confessor, or chaplain of the college, monastery, or hospital, but the pastor in whose parish the college, monastery, or hospital is situated. Likewise as regards servants, the proper pastor is the pastor in whose parish the masters whom they serve have their domicile, although perhaps in the same city or town the servants themselves have a house and domicile. Persons detained in prisons, whose case has not yet been concluded and for whom the prison is only a place of custody, must be joined in marriage by the pastor of their proper domicile or quasi-domicile. But if their case has been concluded, and they have been condemned perpetually or for a determined time, and the prison is a place of punishment, then their proper pastor is the one in whose parish the prison is situated. Benedict XIV, Notification 33, 88; Pirhing, book 3, tit. 28, § 1, n. 12; Ferraris, v. Moniales, a. 1, n. 36; Lugo, Responsa Moralia, book 1, disp. 35, 37; D'Annibale, 457.

Clandestine marriages are altogether invalid in all places where the Decree of the Council has been promulgated, and, in doubt, where at some time it was observed in the parish as the Decree of the Council. Sacred Congregation of the Council, January 18, 1663. Indeed Trent renders those contracting clandestinely incapable of henceforth contracting thus, i.e., without pastor and witnesses. Therefore those also contract invalidly there who, both spouses or only one of them, have domicile or quasi-domicile in places where Trent is not in force.

But they are not invalid in places where this promulgation, whether culpably or inculpably, was omitted; or where the Decree went into desuetude, although only one of the spouses has domicile or quasi-domicile there, while the other has domicile or quasi-domicile in a place where Trent is in force, because of the indivisibility of the contract. Benedict XIV, de Syn., book 6, chap. 6, n. 12; Clement XIII, 1762, to the Archbishop of Mechlin; Collectanea, cited, n. 1400. Therefore in these places the marriage called civil is ratified. In the same places the marriage is valid of those who have domicile or quasi-domicile in a place where Trent is in force, unless they came to that place in fraud, i.e., with the sole intention of contracting marriage without pastor and witnesses; but by no means if they also had first acquired domicile or quasi-domicile there; for then their marriage is valid. Sacred Congregation of the Council, September 5, 1626; Urban VIII, Brief to the Archbishop of Cologne, August 14, 1626; Benedict XIV, Const. Paucis abhinc annis, Notification 33. Indeed the more common opinion held that the marriage is also valid of those who, having domicile or quasi-domicile in a place where Trent is in force, come to another place where Trent is not in force, without the intention indeed of acquiring domicile or quasi-domicile, but at the same time without the intention of contracting clandestinely, if afterwards they contract clandestinely there. Nevertheless the decisions of the Sacred Congregation of the Council and of the Holy Office are now contrary to this, by which it has been declared that the Tridentine law is at once local and personal; and also because in the external forum fraud is presumed from the very fact. Cf. Sacred Congregation de Propaganda Fide, June 7, 1867, n. 1407; A.S.S., vol. 36, p. 222 ff.

Finally, the marriages are invalid of those who, having and retaining domicile where the Tridentine decree has not been promulgated, come into a place where it has been promulgated and contract there without any pastor or witnesses, or even before witnesses and the pastor of this place. For in order that they contract validly there before witnesses and pastor, it is necessary either to acquire domicile or quasi-domicile in that place, or to contract before the pastor of the prior retained domicile, or a priest delegated by him. Sanchez, book 3, § 13, nn. 27, 28, 35; Lugo, Responsa Moralia, book 1, disp. 36; Pontius, book 5, chap. 9, nn. 2, 7; Engel, book 4, tit. 3, n. 20, "I say third"; Barbosa, de Offic. Episc., part 2, alleg. 32, n. 153; Reiffenstuel, book 4, tit. 3, n. 123; Verricelli, tract de Apost. miss., tit. 15, q. 251; A.S.S., vol. 32, p. 419.

A marriage contracted in the house of the legation of that nation in which the Decree of Trent is not in force is null if the legation is found in the place of a nation in which the Decree of Trent is in force, and the Tridentine form is not observed in that marriage. Holy Office, August 1, 1900.

Clandestine marriages are everywhere illicit and prohibited under grave obligation. For the Church has always detested them, as Trent declares and Benedict XIV clearly shows, de Syn., book 8, chap. 12, n. 4. St. Thomas, Suppl., q. 45, a. 5.

The Tridentine Decree is acknowledged as received in Italy, Spain, Portugal, France, Holland, present-day Belgium, the Grand Duchy of Luxembourg, Austria strictly taken, Ireland, Bavaria, etc. But it was not received in England, Scotland, Sweden, Saxony, Denmark, Prussia strictly so called, and several federated Provinces of Switzerland, etc. Cf. Perrone, de Matr., book 2, sec. 1, chap. 6; Zitelli, Apparatus Iur. eccles., book 2, chap. 2, a. 7, list of places, etc.; Ferraris, Supplement, v. Matrim. clandest.; Collectanea S.C. de Propaganda Fide, nn. 1387, 1392, 1399, 1402, 1408, 1412.

Lastly Benedict XIV issued a Declaration on November 4, 1741, in which he established that clandestine marriages, entered or to be entered in Holland and in the federated Provinces of Belgium which had previously been subject to Spain, between heretics, or between one heretical party and the other Catholic, are valid. But he established nothing concerning marriages of Catholics among themselves. Indeed Benedict XIV expressly declared that that disposition in no way regards Catholics. "Let them know," he says, "that unless they have celebrated nuptials before a Catholic minister and two witnesses, they will never be true and legitimate spouses either before God or before the Church." Letter of September 17, 1746, to Simon, Missionary in Holland, § 3, Bullarium, vol. 3, Supplement, n. III; see also de Syn., book 6, chap. 7. L. 1078 ff.; Pontius, book 5; A.S.S., vol. 23, p. 751; E.M.

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 23 passages (filed under the subtopics)

144. The Nature of Marriage

Augustinus, a jurist, holds that in the marriage of the faithful the contract and the sacrament can well be distinguished. Therefore matrimonial causes, he says, are mixed, and under the aspect of a contract pertain to the civil power, under the aspect of a sacrament to the Church.

It is asked: What must be thought of the doctrine of Augustinus?

R. Augustinus is remarkably deceived. For the sacrament of matrimony is not something added over and above the contract itself, or extrinsic to the contract, or separable from the contract, or really distinct from the contract itself; but the sacrament is the contract itself. And therefore, if matrimonial causes under the aspect of a sacrament pertain to the Church by her own right, they also pertain to her under the aspect of a contract. Therefore the Church, and she alone, and by her own right, has power to establish diriment impediments, and also directly to establish impediments which of themselves impede, and to dispense them; of herself also, and consequently, she has equal power of judging concerning the value, the consistency, and the duration of marriage.

Besides, from the opinion of Augustinus it would follow "that the marriage of the evangelical law, sanctified and perfected by the grace acquired by Jesus Christ through His Passion, and raised to the dignity of the great sacrament of the Church, would at the same time, by divine disposition, be exposed to contradictory enactments of laws, and would be perpetually battled over in war between two different powers, while the one protects what is rendered void by the other; the one holds in contempt and punishes what the other blesses and applies sanctification to; the one grants civil effects to him whom the other renders incapable of civil and spiritual effects." S. O., July 6, 1817; Collect. S. C. de P. F. n. 1289; I. M. 971.

Those things which precede are confirmed from the things which Benedict XIV has in the Letter of Sept. 17, 1746, Redditae sunt Nobis. For he says, speaking of places where the Decree of the Council of Trent has been promulgated, "it is clear that a marriage entered into before a civil magistrate or a non-Catholic minister, and not likewise before the proper parish priest of either of the contracting parties and two witnesses, can be sustained neither under the aspect of a sacrament nor under the aspect of a contract, nor in any way be reputed valid." Therefore, under each aspect altogether, both of sacrament and of contract, the marriage of Christians is subject to no power except that of the Church. And soon after he adds: "Let the Catholics entrusted to your care know that, when they present themselves to a civil magistrate or a heretical minister for the sake of celebrating marriage, they perform a merely civil act, by which they show their obedience toward the laws and institutes of rulers; but that then no marriage is contracted by them. Let them know that, unless they celebrate nuptials before a Catholic minister and two witnesses, they will never be TRUE AND LEGITIMATE SPOUSES either before God or before the Church; nor, if meanwhile they have had conjugal intercourse with each other, will it be without grave fault. Finally let them know that, if any offspring arises from such a union, that offspring, as BORN FROM A NON-LEGITIMATE WIFE, WILL BE ILLEGITIMATE IN THE EYES OF GOD, and, unless the spouses renew consent according to the prescription of the Church, WILL BE PERPETUALLY ILLEGITIMATE ALSO IN THE FORUM OF THE CHURCH."

From these things it is clear what the nature of civil marriage is, and what and how great is the force of marriage as sacrament. It is, namely, so great that, true marriage being removed, the effects of true marriage are lacking before God, that is, in the objective truth of things and in the forum of conscience.

Hence Leo XIII, in the Encyclical Letter of February 10, 1880, expressly teaches these things: "It ought to be established for all that, if any union of a man and a woman among the Christian faithful is contracted apart from the sacrament, it lacks the force and character of a just marriage; and although it has been made agreeably to civil laws, nevertheless it cannot be more than a rite or custom introduced by civil law; but by civil custom only those things can be ordered and administered which marriages of themselves bring forth in the civil sphere, AND WHICH, IT IS MANIFEST, CANNOT BE BROUGHT FORTH UNLESS THEIR TRUE AND LEGITIMATE CAUSE, NAMELY THE NUPTIAL BOND, EXISTS." Cf. Cass. 55; I. M. 959, 969, 970, 973.

"It is asked whether a marriage contracted by two Catholics who are minors by birth, according to the forms prescribed by the Church, but nevertheless with the parents unwilling, is valid.

"R. Affirmatively; for neither the dissent of parents nor minor age can in any way be numbered among the impediments diriment of marriage in these our times. We do not delay over imperial laws and commands of rulers contrary to this opinion; for they are to be understood either only of civil effects, as outstanding men think concerning the edict of Henry III, Most Christian King, confirmed by Louis XIII: Loretus, Counselor in the senate of Paris, Hubertus, Bishop of Vabres, Cabassutius, Gerbasius, Natalis Alexander, and others; or, since they establish what exceeds the limits of secular power, they are altogether to be rejected. Concerning those things which pertain to the nature of the sacraments, the full power of defining belongs not to secular rulers, but to the Church alone. But she not only held and declared marriages of this sort valid in cap. Licet and in cap. Tua de Sponsa duorum, but also at Trent, legitimately gathered in the Holy Spirit, struck with anathema those who falsely affirm that marriages contracted by children of families without the consent of parents are void, and that parents can make them valid or void. Therefore no place of doubt is left concerning the validity of the aforesaid marriage." S. O., Nov. 17, 1835; Collect. S. C. de P. F. n. 1448.

"... Into three classes can be divided those Armenians who present themselves before the Turkish judge to contract marriage. Some go there to take a concubine, and these cannot intend to celebrate the contract of marriage, but to cloak their lust in such a way. Others present themselves to the Turkish minister to make a simple declaration of a marriage already contracted, or to be contracted shortly, but they do not intend then to contract a true marriage, although they use verba de praesenti. - Finally, others also appear before the same judge in order to take a woman as a true wife, which at times has not been granted to them by the Church by reason of some impedient impediment; but these persons, not knowing that their marriage, celebrated in such a way before the Turkish minister, can be a true and valid marriage, although illicit, cannot intend to contract it, although they have the will for it, and they believe rather that they are contracting a concubinage; but if they knew the sufficiency of this act of theirs for contracting a true marriage, they would certainly intend to contract it.

"R. This is the substance of the doubts to which the Sacred Congregation responded that the marriages contracted by those of the first class before the Turkish judge are null and void, because the will of the contracting parties and their consent is directed to concubinage alone; and meanwhile externally they say that they celebrate marriage, insofar as they wish with this color to cover their incontinence. But if perchance this intention had been hidden in the mind of only one of the contracting parties, who had conducted himself in all external acts as if he had wished to celebrate a true marriage, and in such a way had deceived the other spouse with craft and fraud, in this case, if legitimate proof of the fraud and deception cannot be had, although the marriage may be null in the internal forum, nevertheless the same judgment must not be formed in the external forum. Therefore the Vicar Apostolic will be obliged, when the case occurs of having to decide concerning one of such marriages contracted with a feigned intention and with the mind of taking a concubine and not a wife; he will be obliged, I say, to examine well the circumstances of the fact, and not to give faith to the mere assertions of the deceiving spouse, especially if the woman was entirely ignorant of the deception; and he must oblige him to persevere in the marriage and to renew the necessary internal consent, because he is bound under mortal sin to consent anew and to effect a true marriage, as all the theologians teach us and as duty requires.

"For the others of the second class, who present themselves before the Turkish judge, but do not then wish to contract a true marriage, although they use verba de praesenti, intending to contract it afterward if they have not contracted it before, the Vicar Apostolic must verify the circumstance whether the marriage had been validly contracted before presenting themselves before the Turkish judge, or whether it must be contracted afterward. In the case in which the marriage had already been validly contracted before, the appearance before the Turkish judge, when it is made for a truly civil act and in order to obey the laws of the Principality, is not prohibited, as Benedict XIV teaches in his Constitution 139, t. 1, Bull. § 10, and it harms nothing in the validity of the marriage already celebrated; but if the marriage either had not been contracted, or had not been validly contracted, since, when these persons present themselves before the Turkish judge, they do not have the intention of then contracting a true marriage, thus, true and internal consent being lacking in them, and they being disposed only to furnish it then when they will celebrate the marriage, they cannot be regarded as legitimate spouses, nor can their marriage be said to be valid. But also for these the Vicar Apostolic must be very careful not to give faith so easily to the hidden intentions of the contracting parties, when from the exterior acts there results the contrary of what they assert.

"Finally, for the others of the third class, who have the will of taking a true wife, but are in the error that it is not sufficient for the value of marriage to present themselves before the Turkish judge, but if they knew the sufficiency of this act of theirs for contracting a true marriage, they would certainly intend to contract it, the Sacred Congregation ... decided that these marriages are valid when no other canonical impediment intervenes. For, according to the circumstances of the proposed case, there can be no doubt of the true, legitimate, internal, and reciprocal consent of the contracting parties. Their error that marriage cannot be validly contracted before the Turkish judge cannot render it null, because it does not concern nor belong to the substance of marriage, and does not remove the preceding will of the one who wished to celebrate it, but falls only upon its form and solemnity, and thus cannot render it invalid, since, in marriage as in other contracts, when the error is concomitant and does not influence the essence of the thing which is willed, but its accidental qualities, the contract remains valid. Nor does the opinion prevailing among the Armenian nation stand in the way of the validity of such marriages, namely, that a marriage cannot be contracted before the Turkish minister, but that it is necessary to celebrate it before the Church and with the priestly blessing. This opinion is not constant, nor is it even common among the nation; and the ecclesiastics who have studied theology know how to think differently.... Moreover, this opinion is not furnished with any Armenian synodal canon; it is not approved by the Apostolic See, but rather derives from the ignorance of the Armenians, who do not distinguish invalid marriage from illicit marriage.

"... The necessity of the assistance of the parish priest at marriages has been introduced only in the Latin Church by the Decree of the Sacred Council of Trent; and the Armenians, who, as Benedict XIV wrote in the noted Instruction of 1754, have never heard of this Decree, consequently cannot be subject to it. And therefore, when they celebrate their marriage in the presence of two or three upright and honorable witnesses, or before the Turkish judge, since then there can be no doubt of legitimate consent reciprocally manifested for contracting marriage, so its validity cannot be called into question." Instr. S. C. de P. F., Oct. 1, 1785; I. M. 959, 962, 967, 969.

"In the present case, with the parish priest and two witnesses present, and with the woman purposely waiting there, the bridegroom arrived in order to contract clandestinely; and at his very entrance, being asked by a certain third person why he was coming into that place, he answered: I come that I may see Lady N., my spouse, or, as others said, who is my spouse. Having heard this, the parish priest rose and fled, lest he be compelled to assist at a clandestine marriage. Therefore it was doubted whether those words of the man sufficed for contracting marriage concerning the present.

"R. In strictness it is not a true marriage, because although the contracting parties, afterward, having mutually given hands, expressed consent, nevertheless the parish priest neither saw nor heard that, but only those prior words, which indeed do not seem in practice to signify obligation, but enunciatively or narratively. For if someone says to a certain third person: I wish to leave Peter my heir, by these words he does not in practice constitute him heir, but only signifies the intention which he has. Likewise, if he says: Call the notary, because I wish to donate my goods, he does not in practice donate by these words. Thus, therefore, in that case, he who responds to a third person asking the cause of his coming, that he comes to see his spouse, does not use words which, by the institution of men, signify obligation in practice, but only narrates what has been done, or what is to be done in the near future; for that whole proposition spoken to a third person seems ordered only to giving a reason. For suppose someone to have come in the same way to make a testament in favor of Peter existing there, and, being asked by another third person why he was coming, says: I come to see Peter my heir; certainly by these words he would not institute him heir. Likewise, when the Supreme Pontiff used to be elected by public suffrages and adoration, if a cardinal, with the mind of electing someone, should go to the chapel where the one to be elected was present with others, and, being asked by another, Whither are you going?, should say, To adore the Pope, certainly by this response he would not be considered already to have given practical consent and suffrage for his election, but would signify only the mind with which he was coming to elect him." Lugo, de Iust. et iur., d. 22, n. 23.

Titius gave a mandate to Caius that he should contract marriage in his name with Sempronia. While Caius was contracting the marriage, Titius, seized by a very grave typhoid fever, fell into furious madness. But, many remedies having been applied, after a year he wholly recovered.

It is asked: Is the aforesaid marriage valid?

R. Affirmatively. For during the intervening time the will of Titius was not retracted, although then, when Caius was contracting for him, Titius had lost the use of reason. Sanchez, l. 2, d. 11, n. 12; I. M. 963.

"With what rite will the priest assist at marriages in which one party is non-Catholic? Is it permitted to pronounce the form, to say prayers, to bless the ring of the heretical bride?

"R. Negatively." S. O., Aug. 1, 1821; Collect. S. C. de P. F. 1543, 1427, 1443; Enchir. Moral. 1016; I. M. 1016.

"Many Protestants, without any intention of embracing the Catholic religion, often request that, either before one of their own ministers or before the bishop himself, they furnish consent for contracting marriage. It is to be noted that in such circumstances the bishop and priests would act not as priests, but as civil magistrates, which is permitted by the laws of the republic. Now he asks, whether it is permitted to him and to his missionaries to preside over such marriages?

"R. If there is question of marriage between two heretical parties, although an intervention of this sort is not so reproved that it can never be licit, nevertheless commonly it must be dissuaded. But if one party is Catholic, with a dispensation having been obtained from the impediment of mixed religion, and with the usual clauses and conditions being observed, it is permitted." S. O., Dec. 20, 1837. Cf. Enchir. Moral. 1016.

Tanquerey

Adolphe Tanquerey, S.S. — 19 passages (filed under the subtopics)

Vol. III, Contracts, and the Obligat…, On the Virtue of Justice (…, Part II — Chapter I: On Contracts in General

n. 620.

I. On the Qualities Required for Consent.

Principle. For the validity of a contract, consent by natural law must be: 1. internal and free; 2. external, or manifested by external signs; 3. mutual.

Internal and free, that is, not feigned, nor indeliberate or coerced, but furnished from the soul, with that advertence and liberty which are required for a truly human act, and with the intention of obligating oneself. For by a contract a right is transferred and a moral obligation is undertaken; but a right, since it is a moral power, cannot be transferred without a moral and free act; likewise a moral obligation cannot be undertaken without a truly human act, and therefore one internal and free.

Therefore consent uttered in jest, or merely presumed, or given on the condition that it can be withdrawn at pleasure, does not suffice for a contract; nor consent furnished by him who is actually drunk, hypnotized, or insane.

n. 621.

Corollaries. (A) He who consents fictitiously, although externally he seems seriously to utter words, in fact does not perfect a contract. But in the external forum, both civil and ecclesiastical, consent seriously given is deservedly presumed to be internal, until the contrary is morally certain.

(B) He who, coerced by no force, consented fictitiously, has unjustly inflicted damage upon another, and from justice is bound to repair it; but often the damage cannot be repaired except by furnishing true consent, and therefore by perfecting the contract.

(C) He who enters a pact with the intention of obligating himself, but with the mind of not fulfilling the obligation undertaken, validly contracts, undertakes a true obligation, and is bound to fulfill it; for for the essence of a contract the intention of undertaking an obligation suffices, which is included in the will of contracting. - Yet, if someone were to manifest the intention of not fulfilling the obligation, saying, e.g.: I promise you one hundred coins, which nevertheless I shall never give, such a mode of speaking could be held as a jest.

n. 622.

1. External, that is, manifested by sensible signs; for since contracts are entered among men, who cannot understand the intimacies of the heart unless they are externally manifested, merely internal consent by no means suffices for the validity of a pact.

By natural law it is not required that consent be expressed by words, but any external sign suffices by which the mind of those making the pact is clearly understood. But often by civil law it is commanded that consent be manifested by words or writings, so that lawsuits may more easily be guarded against.

But silence, or taciturnity, generally is not held for consent unless from the circumstances it signifies assent. Now in gratuitous contracts, as in donation, silence can for the most part be held as acceptance; yet not so in French law (below, n. 681); for in favorable things, he who is silent seems to consent; but otherwise in onerous contracts, since no one is judged to undertake an obligation unless he manifests consent by some sign.

Hence, if publishers of newspapers, by sending papers to various persons, declare that the price of subscription is owed by those who do not send the newspapers back, silence cannot be held as consent, at least where civil law decrees nothing concerning this matter.

n. 623.

1. Mutual, or furnished by each contracting party concerning the same object after the notification of at least one to the other. For there are at least two contracting parties, namely one who proposes, or offers, something, and the other who accepts; and therefore, if the consent of either party concerning one and the same thing is lacking, there will no longer be a contract. This indeed is clear where the question concerns a bilateral contract, since no one can obligate himself without some consent; and it holds also for a unilateral contract, because no one acquires a right unless he accepts the thing offered.

It is not required that each contracting party elicit or signify consent at the same time, but it suffices that the consent of one morally persevere when the other expresses his consent or at least manifests it to the other: for then both truly consent to the same agreed thing. Hence a contract between absent persons can be perfected through a procurator, letters, or by the help of telegraph or telephone.

n. 624.

Corollaries. (A) He who has offered some thing to another can by natural law recede from his promise as long as it has not been accepted by the other; for a mere offer does not bind unless after it has been accepted. - He can moreover determine the time within which the other must consent, saying, e.g., I offer you this horse for one thousand coins, if you consent within three days; then, if the other consents within this time, the contract has force; but if after the elapsed time, it does not have force, because the prior consent no longer virtually perseveres. - If no time has been fixed beforehand, the consent of the offerer given absolutely is judged to continue until it is revoked; but sometimes civil laws define something concerning this matter, which, as determinative of right, obliges in conscience.

(B) When a contract between absent persons is perfected, it is doubted whether it is entered at the time at which the accepting party expresses his consent, or only at that time at which this acceptance becomes known to the offerer.

(a) In gratuitous contracts, by natural law the contract is perfected as soon as acceptance is manifested by an external sign, even if it is not yet known to the offerer; for, in a favorable thing, silence itself is held as consent, and a fortiori positive acceptance, even if not yet notified. - Yet sometimes, by civil law, acceptance notified to the donor is required, as happens in France for solemn donation.

(b) In onerous contracts, the matter is controverted; some affirm that acceptance suffices, without its being notified to the other; for since the consent of the offerer perseveres, now there is the consent of two in the same agreed thing; - but others deny it, because as long as the offerer does not know the acceptance, he can revoke the consent previously given. Each opinion is probable; hence the matter must be defined by civil law or custom, which is not the same among various Nations.¹

¹ Thus, in France, jurists generally teach that a contract does not have force until after acceptance has become known to the offerer (Planiol, II, n. 986); the same prevails in Germany, from art. 130 of the Civil Code.

n. 625.

I. On Error.

1. Notion and species. Error is a false judgment concerning some matter; speculatively indeed it differs from ignorance, which is the lack of knowledge; but practically and juridically error and ignorance produce the same effects. - It matters little whether the error is an error of law or an error of fact.

Error is substantial or accidental, according as it concerns the essence or the accessories of a contract. - In our matter, the essence or substance of a contract is that about which consent is principally borne.

Now error is held as substantial: (a) when it falls upon the very nature or species of the contract: e.g., if someone thinks the question concerns sale, while the question concerns lease; (b) when it falls upon the thing itself, e.g., Titius intends to sell such a white horse, while Caius wishes to buy another red horse; for then there is no consent concerning one and the same thing; (c) when it concerns a substantial quality, to which consent is attached, so that the consent would not have been furnished if it had been known that this quality was lacking; thus, e.g., he who buys a gilded chain as a gold one; he who procures new wine as old.

On the contrary, error is reputed accidental which concerns less principal qualities of the thing, to which the contracting parties do not attach their consent. - Yet it can happen that someone in fact, because of a special motive, attaches consent to an accidental quality; then it is called accidental error giving cause to the contract.

n. 626.

1. Principles. (A) By natural law, substantial error renders a contract invalid. For he who errs concerning the substance of the thing, or the very nature of the contract, or a substantial quality to which he attaches consent, does not furnish true consent concerning the matter about which the contract is concerned.²

² By French law, error concerning a substantial quality makes a contract rescindable, but not null. Cf. Planiol, II, n. 1053.

n. 627.

(B) Accidental error of itself does not render a contract invalid; for, for the value of a contract, consent in the substance of the contract suffices; but this can consist with accidental error, which, as was said, does not fall upon the substance of the act, but only upon accessories.

I said: of itself; for it can happen that someone in fact attached his consent to some quality or accidental circumstance; then the error, although accidental, truly gives cause to the contract, and, in the internal forum, the consent is null. - But in the external forum, the contract is held as valid, unless from circumstances or explicit declaration this can be proved; for the security of commerce demands this; for if it were permitted to each one to rescind a contract by asserting, without any proof, that he had attached consent to such or such an accidental quality, scarcely any contract would exist whose validity was certain.

Hence if a priest buys blue cloth, thinking it to be black, for making a cassock, the purchase is null, because from the circumstances he attached his consent to the black color. But if someone, in buying a horse, erred about the color, without having manifested anything about his intention, the contract is valid, because from the circumstances one could not suspect that he wished to buy a horse of white color rather than red.

n. 628.

Corollaries. (A) Error concerning the person does not invalidate a contract, unless the consent of at least one of the contracting parties was attached to such a person, because of his special qualities or reasons; this is clear from what has already been said.

Thus if I buy a book from Victor, thinking him to be Jacob, the contract has force, because, as is supposed, the principal intention is to buy the book, by whomsoever it is sold; - but if I wished to have a painted picture from such a celebrated painter, error concerning the person invalidates the contract: in which case, however, the painter who in good faith began or completed the work must be furnished unharmed; - in gratuitous contracts, error concerning the person invalidates the donation, as often as this is made with regard to the person, so that someone wishes to give only to this person; otherwise, if the prevailing intention is to give something to the poor.

n. 629.

(B) Error concerning the extrinsic motive of the contract does not invalidate it, unless the pact was entered conditionally.

The matter is explained by example. Titius buys a horse, because he falsely thinks that his own horse has perished; but he is altogether silent about this motive: certainly the contract has force, because otherwise the security of commerce would perish; - he manifested the motive to the other contracting party, without however adding any condition to the purchase: more probably the contract has force, at least in the external forum, because a sufficient reason of paying the price subsists, namely the value of the horse; - but if he bought under the condition that the horse which he already has is dead, the contract is invalid, because the condition was not fulfilled.

n. 630.

II. On Fraud.

1. Notion. When the error of one contracting party is induced by the frauds or fallacies of another, fraud is present. Therefore here we suppose that fraud is joined with error; for if the contracting party detects the fallacy and nevertheless contracts, consent is not vitiated. - But fraud can be substantial or accidental, as was said concerning error.

n. 631.

1. Principles. (A) Substantial fraud renders a contract null by natural law; for it destroys consent. Besides, the deceiver is bound to repair the damage unjustly inflicted upon the deceived, from what was said above, n. 466 sq.

(B) Accidental fraud giving cause to the contract, that is, truly moving the other to contract, by natural law makes the contract not invalid, but rescindable, at the option of the deceived person. For, on the one hand, accidental fraud does not remove consent; but on the other, it unjustly injures the freedom of making a pact, and therefore the deceiver must repair this injury; but this can be done in no more efficacious mode than by making for the deceived party the faculty of seeking the rescission of the contract and compensation of the damage inflicted from this.

(C) Accidental fraud which in fact does not have influence upon the contract does not stand in the way of its validity, because it neither removes consent nor efficaciously injures freedom.

n. 632.

1. Corollary. If a contracting party has been deceived by a third person, without the cooperation of the other contracting party, the contract will indeed be null by natural law, if the error was substantial; otherwise, it will be valid; - but in either case, the damage inflicted upon the deceived person must be repaired by the deceiver, not by the innocent contracting party. The former is clear from what was said concerning error, n. 626; the latter, from what was said concerning the damager, n. 466.

n. 633.

III. On Force and Fear.

1. Notion and species. (A) Force, or violence, is sometimes physical and absolute, when someone, e.g., is physically compelled to sign a contract against his own will: then by natural law there is altogether no contract. - But more often force is only moral and is produced by threats; it is usually defined: a motion brought from an extrinsic principle against the inclination of the will. In this sense, it does not substantially differ from fear, which from Roman law is described as: trembling of mind on account of some impending evil; - namely force is as it were the cause of fear: for when moral violence urges, the mind begins to tremble, or to fear.

(B) Fear is grave or light, according as the trembling of mind disturbs the mind more or less; hence subjectively, and in the internal forum, the gravity of fear depends on the trembling of mind itself; but objectively, and in the external forum, its gravity depends on the gravity of the evil itself which threatens.

Hence fear can be absolutely and relatively grave: absolutely, when the evil which is feared is so grave, certain, and impending that it can disturb a steadfast man; - relatively grave, when the evil of itself does not suffice for moving a man, but in fact seriously disturbs the contracting party, account being had of that person's age, sex, or condition.

But fear is light when the evil which is feared is light, or indeed grave, but not certainly or immediately impending, so that it does not seriously move the mind.

n. 634.

1. Principles. (A) Extreme fear, which altogether disturbs the use of reason, by natural law invalidates a contract, since it removes the freedom necessary for contracting.

n. 635.

(B) Fear, even grave, arising from a natural cause, or justly impressed, does not invalidate a contract, provided it does not impede the use of reason. For, even if the consent is not perfectly free, but given with some repugnance, nevertheless it is furnished voluntarily and prudently; moreover no injury is done to the contracting party; therefore the contract is neither invalid nor rescindable.

Thus the contract has force of him who, in a fire or shipwreck, seized by fear, offers to another a sum of money so that he may be snatched from danger, provided the promised price is proportioned to the work furnished; or of him who offends another, and, from fear of penalty, promises money lest the matter be brought to the judge.

n. 636.

(C) Grave fear, unjustly impressed for extorting consent, by natural law invalidates gratuitous contracts, - but makes onerous contracts rescindable, at the option of him who suffered the fear. (a) It invalidates gratuitous contracts; for for the value of a gratuitous contract altogether free consent is required, since the cause of this contract is the liberality of the giver; but grave fear, by which consent is unjustly extorted, destroys this perfect freedom. (b) It makes onerous contracts rescindable; for for the value of these pacts that freedom suffices which is required for undertaking a grave obligation; but such freedom can consist even with grave fear unjustly impressed; for although the mind is disturbed in some way, it can sufficiently apprehend the nature of the obligation which it undertakes, and freely embrace it. - Yet since injury is inflicted upon him who suffers grave fear, he can seek the reparation of damage by demanding the rescission of the contract.

We suppose in this case that consent was truly furnished; for if he upon whom fear is impressed furnishes only external assent, in order to avoid grave damage, the contract is null; thus, e.g., if a traveler promises money to a robber, in order to avoid death.

Besides, by positive law contracts entered with grave fear can be invalidated; thus by canon law religious profession, vows, or marriages entered from grave fear are invalidated.

n. 637.

(D) Grave fear unjustly impressed, not indeed for extorting consent, but for another end, makes a contract rescindable if it is impressed by the other contracting party, because this party is bound to repair the damage which he himself inflicted; thus if someone promised money to a calumniator so that he would abstain from defamation, he can rescind the contract. - But if grave fear of this kind was impressed by a third person, the contract is valid, because the contracting party himself inflicts no injury; thus if someone, attacked and terrified by a robber, promises money to a traveler coming by, so that he may be freed from this danger, he is bound to give the promised price.

n. 638.

(E) Light fear is not considered in the external forum; but in the internal forum it more probably invalidates gratuitous contracts, for which perfect liberty is required; and, according to some, makes onerous contracts rescindable when it truly was the cause why these were entered; but it by no means stands in the way of their validity if it did not give cause to them.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 5 passages

n. ¶45.

The consent of the contracting parties is truly the soul of the contract, because when legitimate consent is lacking, the contract is dead.

We shall treat the qualities and defects of consent.

n. 255.

255. A. Qualities of consent. Consent must be: 1. true or internal; 2. free and deliberate; 3. externally manifested; 4. mutual.

True or internal, not merely external or feigned. Hence consent in external words alone does not suffice for the validity of a contract in the forum of conscience. Thus the common opinion against a few older authors.³⁷

The reason is that a contract gives rise to a truly human obligation, i.e., one morally affecting not only the body but also the soul. I say, however: in the forum of conscience, because in the external forum (especially the civil forum), where interior things are judged by exterior things, a contract entered even with feigned consent is regarded as valid. Therefore, one who feigns consent, i.e., without the intention of contracting, is not bound in conscience by reason of the contract, since it is null; nevertheless, he is bound to indemnify the other who suffered damage from this deception. Indeed, if no other means of repairing the damage is available, the one feigning consent is bound to furnish true and valid consent. This can especially happen in matrimonial consent feignedly furnished. - But what is to be said if a contracting party indeed had the will to contract but by no means wished to oblige himself? St. Alphonsus thinks more probable the opinion which affirms that even in this case the contract is invalid, because that will existing from the beginning is contrary to the substance of the contract and consequently invalidates it.³⁸ But if someone has the will indeed to oblige himself, but not to stand by the promise, then the contract is valid, because the will to oblige oneself suffices for the essence of a contract. It is evident, however, that a contracting party of this kind sins on account of the deception caused to the other contracting party.

Free and deliberate, i.e., furnished with that advertence and freedom which are required for a perfectly human act.

Complete freedom from every fear is not always required for the validity of a contract, as will be evident below. Since a contract is a human act inducing a moral obligation, it is manifestly evident that it requires sufficient deliberation. Hence the insane, infants, etc., lacking sufficient deliberation, cannot enter a contract.

Externally manifested, so that it can be clearly perceived by the other.

For since contracts are entered between men who do not know the secrets of hearts, merely internal consent does not suffice for a valid contract. Hence consent offered to another does not perfect the contract at the time when the latter consents, but when the offerer clearly perceives and accepts the other's consent. The manner in which consent must be manifested is wont to be determined by positive laws: whether by orally pronounced words, or in writing, or before witnesses, etc.

Silence is generally not held for consent unless this is evident from the circumstances. But this is presumed to be evident: a) if the contract is favorable to the one remaining silent, as in a donation; b) if the contracting party could very easily contradict it and does not do so. - Nevertheless, even in these cases silence furnishes nothing except a presumption, which must sometimes yield to the opposite truth. Hence, e.g., if publishers of newspapers or books send their works and declare that those who do not return them are considered subscribers, silence can by no means be held as consent, at least where civil law establishes nothing concerning this matter. But a civil law establishing the contrary seems burdensome and ought to be abolished.

Mutual, i.e., furnished by both contracting parties concerning the same object.

This holds even in gratuitous contracts. For although someone can by his own will alone cast off dominion over some thing, he nevertheless cannot bring that same thing under the dominion of another unless the latter consents. But it is not required that the consent of both contracting parties be elicited at the same time; it suffices that the internal and manifested consent of one virtually persevere when the other elicits and first manifests his consent. One who offers a contract can also determine the time within which his consent virtually endures and the other must furnish consent. If the other has consented within this time and has expressed this, the contract is valid; but once this time has elapsed, new consent of both is required. As is evident, many disputes can easily arise from this source; hence positive laws are wont to establish when a contract is perfected, especially if it was offered between absent persons by letters or by procurators. These statutes indeed are to be observed even in conscience. Hence the commercial codes of the various regions are to be consulted.

³⁷ Cf. Billuart, De contract. diss. 2, a. 2.

³⁸ Theol. mor. l. 3, n. 710.

n. 256.

256. B. Defects of consent are said to be those impediments which either remove or diminish the consent of the contracting parties and consequently either invalidate the contract itself or render it rescindable. They are commonly enumerated as: a) error and fraud, by which the intellect is deceived; b) force and fear, by which the freedom of the will is injured. We shall speak of error together with fraud, and of force together with fear.

n. 257.

257. a) On error and fraud. Error is a judgment discordant with objective truth. Error which has place in contracts can be either substantial or accidental, according as it concerns either the very substance of the contract or only its accessories. Moreover, the substance of the contract is that which the contracting party intends primarily or at least as a condition without which not. It can be either the substance itself or a quality of the thing or both together; e.g., substantial error is present if someone wishes to buy wine from grapes and wine from apples is sold to him. - On the contrary, an error is regarded as accidental when it concerns qualities which do not redound to the substance and consequently are not primarily willed; e.g., if someone thinks he is buying pure milk, but in fact receives milk to which a very small part of water has been added. In practice it is not always easy to distinguish between accidental and substantial error. Therefore attention must be paid both to the intention of the contracting parties and to the individual species of contracts.

When the error of one contracting party is caused by the frauds or fallacies of the other or of a third person, there is malicious fraud (arglistige Täuschung). Therefore fraud is often the cause of error, although error can be present without fraud. When fraud is on the part of one and error on the part of the other contracting party, the following principles hold a fortiori, although they are also verified concerning error alone without malicious fraud.

Principle 1. Substantial error renders a contract invalid.

Thus all systems of law establish.³⁹ The reason is that one who errs concerning the very substance does not give true consent. But without true consent no contract exists. Hence, e.g., if someone wishes to buy wine from grapes and receives wine from apples, the contract is invalid; or if someone wishes to buy a painting of Raphael and receives a painting of another painter, the purchase is invalid. - In the external forum, substantial error must be strictly proved before the contract is invalidated.

Principle 2. Accidental error does not of itself render a contract invalid; nevertheless, it often renders it rescindable.

The reason for the first part is that consent to the substance suffices for the validity of a contract. But accidental error does not necessarily destroy this consent to the substance.⁴⁰ - The reason for the second part is that it greatly concerns the common good that contracts be free in every respect. But even accidental error in some manner renders a contract not free. Hence in several cases positive laws permit rescission of a contract when it can be proved that accidental error or fraud intervened. - By natural law, however, there is considered rescindable on account of accidental error: 1. a gratuitous contract which was made for the utility of one who caused the accidental error. E.g., a donation made to a poor man who pretends to be upright but in fact is wicked is indeed valid, but can be invalidated by the donor. 2. An onerous contract which was caused by the fraud of the other contracting party, or when enormous injury was deceitfully caused to one of the contracting parties, e.g., by a truly excessive price or by corrupted or damaged merchandise. In practice the statutes of positive law are to be followed, since many cases are insoluble from natural law alone.⁴¹ Concerning error in a contract of espousals and matrimony, cf. below in the tract on matrimony.

³⁹ Cf. Code of Canon Law, c. 104; German Civil Code § 119; French Civil Code art. 1109ff.; Swiss Code of Obligations, art. 23ff.

⁴⁰ Cf. St. Alphonsus, Theol. mor. l. 3, n. 715.

⁴¹ Cf. Billuart, De contract. diss. 1, a. 3; German Civil Code § 123; Swiss Code of Obligations, art. 28. Ecclesiastical law establishes that one who, from error in a contract, has suffered grave injury, i.e., beyond one half, can seek rescission of the contract within two years. Code of Canon Law, c. 1684, § 2.

n. 258.

258. b) On force and fear. Force or violence proceeds absolutely from an extrinsic principle, so that the one suffering force wholly resists but is overcome by the greater power of the one inflicting force. Since force or violence entirely removes voluntariness, as is evident from what was said above, I, n. 65, concerning human acts, it also removes consent and consequently invalidates every contract.⁴² Sometimes, however, force or violence is not so absolute that the one suffering force cannot resist in any way, and then the same is to be said of it as holds concerning fear. Since enough has already been said above, I, n. 67ff., concerning the notion and division of fear, the following propositions are briefly set down here in the matter of contracts:

Fear so grave that it disturbs the use of reason invalidates every contract.

This is evident of itself, because it totally removes consent.

Grave fear inflicted by a natural cause, or even justly inflicted by a free cause, neither invalidates nor renders a contract rescindable.

The reason is that such fear neither removes consent nor inflicts any injury upon the contracting party. Hence, e.g., one who, from grave fear lest he be defamed, marries a girl deflowered by him validly effects the matrimonial contract; or one who enters religion on account of grave fear of hell emits a valid religious profession.

Slight fear unjustly inflicted by a free cause is not regarded in the external forum, but in the internal forum: a) more probably invalidates gratuitous contracts (because the greatest freedom is required for them); and b) probably renders onerous contracts rescindable.

For the rest, authors are by no means in agreement in this matter.⁴³ In practice attention must be paid to the matters concerning which the contract was entered. Thus, e.g., espousals entered on account of slight fear can more probably be rescinded.⁴⁴

Grave fear unjustly inflicted by a free cause in order to extort consent ordinarily does not indeed invalidate a contract, but renders it rescindable.⁴⁵

I say: ordinarily does not invalidate, because there are several cases in which contracts of this kind are invalid by positive law, as was said above, I, n. 71. The far more common and more probable opinion teaches that contracts entered from such fear are not invalid by natural law itself. The reason is that this fear removes neither voluntariness nor consent, and consequently the essence of the contract remains intact. Certainly, if a contracting party under the influence of grave fear unjustly inflicted furnishes external consent only, but internally dissents, then the contract is invalid. - Billuart⁴⁶ thinks that, by natural law itself, a contract is invalid whose object is liberation alone from grave and unjust harassment. For this liberation, or cessation from such unjust harassment, is not salable, because it is already owed from justice itself. For everyone has a strict right not to be harassed by unjust fear, and the one harassing is bound from justice to cease from harassment. Therefore, just as a judge cannot validly contract concerning the pronouncement of a just sentence, to which he is already bound by force of his office, so such an unjust harasser cannot validly contract concerning cessation from that harassment. This opinion indeed seems to be subtle rather than true. For in every contract entered on account of unjust fear, the contracting party intends to free himself from unjust harassment. Therefore it would have to be said that all such contracts are invalid, which nevertheless Billuart himself does not admit. - Some theologians teach that all gratuitous contracts entered from grave fear unjustly inflicted are altogether invalid.⁴⁷

Authors teach most commonly that contracts entered from grave fear can be rescinded. The reason is that "things which are done by fear and force ought by law to be called into nullity."⁴⁸ For one who has suffered grave fear unjustly can petition a competent judge⁴⁹ that the injury inflicted upon him be repaired; but this cannot be done sufficiently unless he is held harmless, or unless the contract entered is rescinded. Whether this rescission can be made even by one's own authority is disputed. St. Alphonsus^49a calls the affirmative opinion more common and to be held, but the negative opinion is more conformable to the Code of Canon Law, c. 103, § 2, and also safer for avoiding illusions. The permission of the confessor suffices, however, for the internal forum.

For the rest, the whole controversy concerning contracts entered under grave fear unjustly inflicted is not of such great moment for practice; for whether these contracts are called invalid or rescindable, their effect can always be forestalled by rescission. Nor is there any further difficulty concerning a contract of espousals, of which there will be discussion elsewhere.⁵⁰

⁴² Code of Canon Law, c. 103, § 1.

⁴³ Cf. St. Alphonsus, l.c., n. 718.

⁴⁴ Ibid., l. 6, n. 844.

⁴⁵ Code of Canon Law, c. 103, § 2.

⁴⁶ L.c., a. 4.

⁴⁷ Cf. Marc, Instit. mor. I, n. 1051, and Tanquerey, De iust. n. 636.

⁴⁸ c. 2, X 1, 40; Code of Canon Law, cc. 103 and 1684.

⁴⁹ Cf. Code of Canon Law, l.c., and c. 1688, § 2. Civil codes are wont to determine one year for this action.

^49a Theol. mor. l. 3, n. 712.

⁵⁰ Cf. below, III, n. 719.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 14 passages

Vol. I, TREATISE ON CONTRACTS, FIRST PART: ON CONTRACTS I…, Ch. I, ARTICLE III: ON THE CONSENT REQUIRED · Vol. I, TREATISE ON CONTRACTS, FIRST PART: ON CONTRACTS I…, Ch. I, Art. III, § I. On the Qualities of Legitimate Consent · Vol. I, TREATISE ON CONTRACTS, FIRST PART: ON CONTRACTS I…, Ch. I, Art. III, § II. On Defects Opposed to Consent

The consent of contracting parties is the soul of the contract. We shall treat of it on a twofold point, by establishing: 1. what are the qualities of legitimate consent; - 2. what vices are opposed to it.

n. ¶2.

1. On the Qualities of Legitimate Consent

n. ¶1044.

PRINCIPLE. The consent of contracting parties must be: 1. internal; - 2. mutual; - 3. externally manifested; - 4. free and deliberate.

Internal; because the obligation of contract arises from the will alone of the contracting parties, whether explicit or implicit. Thus commonly, against Vasquez and some others. Cf. Lehmkuhl, I, n. 1256.

Hence: if someone fictitiously consents, that is, without the mind of contracting, he is not held in conscience by reason of the contract, which is null; but by reason of deception he is held to make the other unharmed, and if another means of repairing the injury does not offer itself, he must give true consent and stand by the contract. The same must more probably be said if someone, knowing the obligation of contract, indeed consents with the mind of contracting, but without the mind of binding himself. The reason is that the condition appended, contrary to the substance of the contract, invalidates the contract. But a contract does not become invalid if it is entered upon without the mind of fulfilling it (III, 172, 709, 710; VI, 833; H. Ap., X, 122).

In the external forum, true consent is always supposed until the contrary has been certainly proved; because that which ought to have been done by right is presumed to have been done. Likewise, no one is held to believe him who asserts that he did not consent interiorly, unless it is evident, for example from circumstances, that the consent was jocular.

Mutual, even in a gratuitous contract. For, as Lugo says (disp. 23, n. 39): "although someone by his will alone can lose ownership or possession of his own thing, nevertheless by his will alone he cannot make his thing belong to another; for to this is also required the internal consent of him to whom it ought to belong," according to that saying of Law: A benefit is not given to one unwilling (l. 69, ff., de Reg. Jur.).
Externally manifested, namely in such a way that the consent of one can be known and accepted by the other, and the acceptance, on the part of the second, can become known; for it is an act of human commerce, which cannot be such unless it is externally manifested. Hence, if I offer to you a thing for sale for one hundred lire, and you accept, the contract is perfected, not when you consent internally, but when your acceptance comes forth externally through some sign.

On these things let the following be noted: a) Silence is reputed as consent if the circumstances are such as to admit no reasonable doubt (cf. Austrian Code, 863). This regularly happens if the matter is favorable to the silent person, for example in donation; for then the Rule of Law has force: "He who is silent seems to consent."

b) In a bilateral contract it is not enough if the consent of one becomes known to the other in any manner whatever, but it is required that the offering of consent be manifested by way of denunciation, that is, that it be intimated from the intention and will of the one placing it; otherwise it is considered a mere internal purpose (Vermeersch, n. 316). - Yet it is not required that the consent of both contracting parties be emitted at the same time; but it suffices that the consent of one given is not revoked before the consent of the other is joined to it.

c) If a contract is made through a procurator, the contract is perfected as soon as the procurator accepts, even though the one in whose name he acts has not yet accepted; because the acceptance of the procurator is morally the acceptance of the contracting party.

d) With respect to contracts carried out by letters, it is disputed at what precise time they are perfected, whether namely at that moment at which the other, for example by writing a response or letter, accepts the proposition of the other offering, or rather at that moment at which the offerer knows the other's acceptance. - Considering the law of nature alone, the contract seems to be perfected as soon as the other accepts, unless law or custom, or the express will of the one proposing, has disposed otherwise. For then the consent of two persons into the same agreed thing is present (Lehmkuhl, I, n. 1258; Carriere, I, 34, 4; Crolly, II, 104). Yet the other opinion is more conformable to more recent jurisprudence, especially in FRANCE and in ITALY. Cf. Camillo Re, Tratt. sulla compra e vendita, n. 10. In AUSTRIA (n. 862), in SPAIN (n. 1262), in GERMANY (n. 147-156 and Commercial Code, 321), and in several regions, practical rules concerning this matter are had in the Code itself.

Free and fully deliberate, in such a way that the contracting party, even if it is a question of light matter, not only is master of himself, but acts with that advertence which is required for grave sin. Otherwise it would be only an imperfect will and therefore an imperfect act, which could not produce a perfect obligation. Hence the half-drunk, the half-foolish do not enter a valid contract, so much less because here it is a question of a burden to be imposed on himself. See what we said about vow n. 625.

n. ¶3.

2. On Vices Opposed to Consent

n. ¶1045.

The vices opposed to consent are: 1. error and deceit; - 2. force and fear. We shall speak of deceit together with error, and of force with fear.

n. ¶4.

1. On Error and Deceit

Things to be noted beforehand. Error and ignorance here are equated (cf. the things said n. 287).

ERROR is substantial or accidental, according as it is concerned with the substance of the contract or something accidental to it. The substance of a contract is that about which the intention of the contracting party is concerned primarily and principally, and it can be either the very substance of the thing, for example donation or sale, or also its quality, for example if you buy a thing precisely because it was in the use of some celebrated man, or also both at once. Likewise, the person of the contracting party can pertain to the substance of the contract, if consideration of him is the principal motive of your consent, as generally happens in gratuitous contracts (Crolly, II, 121).

DECEIT, in the present matter, is a machination or cunning employed by one contracting party to deceive the other (l. 1, ff., de Dolo malo).

n. ¶1046.

PRINCIPLES. I. Error concerning the substance of a contract irritates the contract by the law of nature. And this, even if the error did not give cause to the contract, that is, even if, when the error had been made manifest, the party would still have contracted. It is the common opinion. The reason is that, when cognition of the object is lacking, the required consent is lacking (III, 714; cf. Lugo, disp. 23, s. 6; Spanish Code, 1266).

Hence: 1. A contract is null if you have erred concerning the nature of the agreement, for example if you enter upon a contract which you think is a loan for use, when it is a lease; or concerning the substance of the thing, for example if you sell vinegar for wine, glass for a gem.

A contract is null if the error is concerning a quality which redounds into substance, either because you intended that quality solely or primarily, for example if you buy a painting because you judge it the work of a most celebrated painter; or because you openly consented under the condition "if such a circumstance is present"; for, when the appended condition is lacking, the contract does not subsist. But it must be noted that such a condition, which is called sine qua non, does not necessarily have to be expressed in a contract of good faith; it is discerned as placed implicitly, either from the disposition of laws, or from the usage of places, or from the estimation of men, or from the nature of the contract, or from the end to which the thing or action about which the contract is made is manifestly deputed, for example if you say that you want wine for a sick person, for the sacrifice of Mass, cloth for a priestly vestment, etc. (Gousset, I, 735).
A contract is null if you have erred concerning the person with a view to whom you principally acted. Hence a donation is null which you made to Paul from error, intending to make it to Peter; or which you made to John because you erroneously believed that he was joined to you by consanguinity; or which you made to rich Titus, whom you thought poor. Likewise, a sale is void which you made to Caius, expressly intending to make it to Sylvius, and to him alone (III, 734, 736; cf. Austrian Code, 872, 873; German, 119, 120).

n. ¶1047.

II. Accidental error irritates no contract, but renders a gratuitous contract rescindable if it was its cause; and similarly an onerous contract of which it was the cause, if it was caused by the deceit of the other party, or if it gave occasion to enormous lesion. This assertion must be explained by parts.

Accidental error irritates no contract: because a contract entered upon from such error is not invalid, neither by Positive Law, which does not admit this cause of nullity, nor by Natural Law, since for validating the contract a voluntary mind with respect to the substance suffices, although it is involuntary with respect to the accidents. Wherefore, if you buy wine which you estimate to be four years old, while it is two years old, the contract is valid; yet, if the wine is not of the same value, the contract must be reduced to equality.
It renders a gratuitous contract rescindable if it was its CAUSE. For this contract requires greater spontaneity; indeed there are Doctors who hold such a contract to be altogether void. - Hence, a donation made to a poor man because he is reputed very upright is valid, although it can be irritated by the donor (III, 737; Lehmkuhl, I, n. 1262; Gopfert, I, n. 95, 3).
It renders an onerous contract, of which it was the cause, rescindable if it was caused BY THE DECEIT OF THE OTHER contracting party: because the deceiver is held to remove the deceit, and insofar as he can, to replace the deceived person in that state in which he would be if he had not been deceived. But this demands that the deceived person can, if he wishes, rescind the contract (cf. Spanish Code, 1270). But if the error was caused by the deceit of some third party, the contract does not become rescindable for that reason. Except if the contracting party himself was participant in this third party's deceit (III, 715).
It renders an onerous contract rescindable if it gave occasion TO ENORMOUS LESION. Positive Law commonly admits this cause of rescission,⁰¹ provided the lesion is beyond half the value of the thing. But since the law in some places favors the seller, and in other places the buyer, one must stand by the dispositions of Law.⁰² But if the lesion was not so great as to grant the faculty of rescinding, the contract must be reduced to equality. See Lehmkuhl, l. c.

n. ¶5.

2. On Force and Fear

n. ¶1048.

Absolute force takes away every voluntary, and therefore absolutely irritates a contract (cf. n. 286). Force that is not absolute is not distinguished from fear. Hence, only fear must be treated.

FEAR is: 1. grave or light; - 2. induced by an intrinsic or extrinsic cause, necessary or free, just or unjust; - 3. instilled to extort consent, or for other ends (cf. n. 285).

From Natural Law it is plainly the same whether either the one who has suffered fear, or another person most closely joined to him, ought to be affected by the evil with which the one instilling fear threatens.

From Positive Law, this has force only concerning descendants, ascendants, and spouses, who are equated with blood relatives.⁰³

n. ¶1049.

PRINCIPLES. I. Fear justly instilled does not invalidate a contract nor render it rescindable. It does not invalidate, because fear not taking away reason, as is supposed here, does not take away but only diminishes the voluntary; it does not render rescindable, because no injury is inflicted on the contracting party. - Hence, he who, from fear lest a crime be brought before the judge, marries the girl whom he deflowered under promise of marriage, contracts validly.

n. ¶1050.

- II. Light fear never invalidates a contract, nor, more probably, renders an onerous contract rescindable, excepting nevertheless betrothals. The reason for the first: such fear does not impede true and free consent into the contract. The reason for the second: relatively light fear is presumed to have given occasion rather than cause to the contract, since the contracting party was only lightly unwilling (III, 718; H. Ap., X, 125). Hence a civil action is never conceded to such a contracting party, according to that saying of Law: "There is no just excuse of vain fear" (l. 184, ff., de Reg. Jur.).

It is said 1. It does not render an onerous contract rescindable; for according to the more common opinion it renders a gratuitous contract rescindable, on account of the greatest spontaneity which such a contract requires. - 2. Excepting betrothals, which can be rescinded even when contracted through light fear, from the greatest liberty which betrothals demand for themselves (cf. what must be said n. 1950).

There are nevertheless authors who probably affirm that all contracts, except marriage and religious profession, entered upon from light fear are rescindable at the will of the one who suffered fear (III, 718).

n. ¶1051.

III. Grave fear, unjustly instilled by the other party, does not invalidate a contract, but renders it rescindable at the will of the vexed person. Thus the very common and more probable opinion.

It is said 1. Grave fear, unjustly instilled by the other party, and indeed even if it was not instilled in order to extort consent (Lugo, disp. 22, n. 177).

It does not irritate the contract, since this does not obtain either by Natural Law or by Positive Law. "Not by Natural Law, because fear does not simply take away the voluntary; not by Positive Law, since in civil Law judges are commanded to rescind such contracts; therefore, of itself, the law holds them as valid" (III, 716).⁰⁴

There are excepted some contracts, or acts, which CANON Law declares void by the fact itself if they are made from grave fear. Such are: marriage, and probably also betrothals; religious profession; vow; election of a prelate; promise or handing over of ecclesiastical things; absolution from censures; renunciation of benefices (III, l. c., Quaer. 1). - Also excepted is a gratuitous contract, if fear takes away every liberality, and consent is furnished only for avoiding unjust vexation. In which case, there is had rather an unnamed contract, I give that you may do, which is, of itself, void on account of defect of just matter.

It renders the contract rescindable. The reason: the one instilling fear is held to repair the injury done to the other; and this cannot be done unless the one who suffered fear is replaced in the former state of liberty. - Hence it is said in Canon Law: "the things which are done by fear and force must be recalled into voidness," and in Roman Law: "sales, donations, which have been extorted by power, we command to be weakened" (l. ult., c. 2, de his quae vi).

But rescission can be made by private authority; and this even if the thing has come to a third possessor of good faith. But if the other refuses, the one who suffered fear can secretly compensate himself (III, 717, 719).

Note. A contract entered upon from grave unjust fear is very often invalid from the beginning; because in the one who suffers fear, internal consent is lacking. But if that internal consent was present, let the conclusion which we have stated stand.

n. ¶1052.

IT IS ASKED. What if the fear was instilled not by the other party, but BY A THIRD PARTY?

Resp. If it was not instilled in order to extort consent, the contract is altogether firm; because then fear must be called the occasion rather than the cause of the contract. Wherefore, he who, attacked by a robber, calls others to his aid, is held to pay the promises made to those assisting. If nevertheless the sum were enormous, it would have to be diminished according to the judgment of a prudent man.

But if it was instilled to extort consent, there is controversy. - The first probable opinion holds that the contract is rescindable; because by reason of fear, even that instilled by a third party, perfectly free consent, which is required for firmly contracting, is lacking. Thus various Codes decree.⁰⁵ The second opinion, also probable, denies it, because since neither party has made an injury, there is, from the nature of the thing, no reason why the contract be void, and why it can be rescinded at the will of one, with the other unwilling.⁰⁶ In practice, favor must be given to the possessor, until the sentence of a judge decrees.

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 17 passages

1° its qualities; 2° the opposed defects.

n. ¶845.

- Consent ought to be external, internal, mutual, free and deliberate.

1° External, that is, manifested, because it ought to be made known to the co-party; but it cannot be made known to the other party unless it comes forth exteriorly by some visible sign.

2° Internal, because the obligation of a contract arises from the will alone of the contracting party. - Thus commonly.

3° Mutual, because a contract is an agreement of two or several; hence, if it is onerous, cession and acceptance are required on both sides. If it is gratuitous, cession is required on one side and acceptance on the other.

4° Free and deliberate, so that the contracting party is not only master of himself, but also acts with that deliberation which is required for grave sin; otherwise the will would be imperfect, and therefore the act imperfect, which could not produce a perfect obligation.

n. ¶846.

Questions. - Query 1° Is a contract valid which has been entered without the mind of obligating oneself, or without the mind of fulfilling it?

Resp. to the 1st. More probably it is not valid, because the condition appended is contrary to the substance of the contract.¹

Resp. to the 2nd. The contract is valid. The reason is that the will not to fulfill can stand together with the will to obligate oneself.²

Query 2° Must the consent of each party be elicited simultaneously?

Resp. Negatively, because the consent of one once given, and not revoked, morally perseveres, so that, when the consent of the other accedes, the contract is at once perfected.

n. ¶847.

Resolutions. - 1° He who fictitiously consents to a contract is bound in the forum of conscience to render the deceived party unharmed, and, if no other means of repairing the injury is available, to furnish internal consent and to stand by the contract.³

But if the contract fictitiously entered has been committed to execution, no dominion has in fact been transferred. "Whence, by reason of the thing accepted, the deceived party must be held as a possessor of good faith, but the deceiver as a possessor of bad faith."

2° If I offer you my house for sale for $100, and you accept, the contract is perfected, not when you internally consent, but when your acceptance comes forth externally to me through some sign. But my consent is sufficiently intimated to you by the fact that I offer you my house for the stated price.

3° If you contract with me through a procurator, the contract is perfected when your procurator accepts, even though you have not yet accepted, because the acceptance of your procurator is morally yours.

4° Silence is regularly regarded as consent if the matter is favorable to the one silent. Hence Rule of Law 43 in the Sixth: He who is silent seems to consent.

5° If Paul says before John: I give $100 to Peter; and if John, unbidden, reports this to Peter, and the latter says: I accept; Paul is not judged obligated; because the intimation of the promise was not made to Peter by Paul's mandate, who moreover showed nothing else by the reported words except the mere purpose of giving.

The principal are error, fraud, force, and fear.

n. ¶2.

Point I. On Error and Fraud.

n. ¶848.

- Error in contracts can turn 1° about the substance of the thing, as if you buy copper for gold; 2° about the nature or species of the contract, for example, if you take a lease for a sale; 3° about the quality or accidents of the thing, as if a horse is slow while it is reputed swift; 4° about the person, for example, if someone should give to Peter, wishing to give to Paul; 5° about the motive, for example, if you should give something to Caius on account of poverty or piety, while he is rich or impious.

Yet error about quality, although accidental, can be the cause of the contract.

n. ¶849.

Principles. - I. Every error about the substance of the thing or the nature of the contract renders the contract null. The reason is that then there is no consent, which regards an altogether diverse thing.¹

II. Error about quality alone does not of itself invalidate a contract, at least if, with the error known, the contract nevertheless would have been entered. For consent wholly voluntary about the principal object of the agreement is had. But if, with the error known, the contract would not have been entered, it is controverted, as we shall say at once.

n. ¶850.

Questions. - Query 1° Does error about quality giving cause to the contract void the contract, whether onerous or gratuitous?

Resp. 1° More probably negatively as to onerous contracts, because such an error impedes neither knowledge nor consent as to the substance of the thing. But otherwise scarcely any contract would be valid, which would cede to the subversion of human commerce. Except, 1° if the quality is expressly intended as a condition without which not, because then it passes into the substance of the thing; 2° if the error was invincible and the thing is still intact; but if the thing is no longer intact, or has already been fulfilled by the other party, you can rescind the contract in conscience, if the matter is of great moment, even though the other party was not conscious of the error.²

Resp. 2° As to gratuitous contracts, more probably affirmatively. The reason is that such contracts by their nature require a full voluntary and complete spontaneity; but this was plainly lacking when the cause moving to donate is supposed to be absent. - Thus commonly against some, who moreover admit that contracts of this kind are rescindible at the will of the donor thus deceived. See St. Alphonsus.¹

Query 2° Does error about the person invalidate a contract?

Resp. 1° Negatively, speaking generally, as to onerous contracts, because in these an error of this kind is merely accidental; and it is indeed of little interest both to the seller to whom he sells the thing, provided he receives a suitable price, and to the buyer from whom he buys, if the thing is suitable to him. The contract of marriage must be excepted, in which the consent affects the very person, who becomes at once both the contracting party and the object of the contract itself.

Resp. 2° Affirmatively, for the most part, as to gratuitous contracts, because in these the person of the donee is usually specially intended by the donor. Yet the circumstances of things must be considered, from which the will of the benefactor can better be known.

n. ¶851.

- Query 3° Does error about the motive invalidate a contract?

Resp. 1° Affirmatively, if the error falls upon the final motive: for example, if you should give alms to Titius because you judge him poor, when he is rich; for your consent as to the very substance of the thing is lacking.

Resp. 2° Negatively, if the error falls only upon an impelling motive; for example, if you should give alms to Peter, a poor man whom you believe very upright, when he is less upright; for this error is merely accidental.²

n. ¶852.

Resolutions. - 1° If a priest at night buys cloth for himself, thinking it to be of black color, while it is green or violet, the contract is not valid, if he expressly declared that he wanted cloth of black color; for although color in itself is a mere quality, in this case it passes into substance, and therefore the error becomes substantial.

2° If, when you wish to buy Catawba wine, California wine is offered, the contract is valid of itself, notwithstanding error or fraud, because the error is not substantial. But justice is injured accidentally if Catawba is dearer; and therefore the seller will be liable to restitution. But if the price of each wine is equal, or if the price is diminished according to the proportion of the excess, the seller will be immune from injustice, although not from the sin of lying. I have said: of itself; because the error could easily be substantial, as for example if the buyer by express words had bound his intention to Catawba wine for a certain end, to which any other wine would not conduce.

3° Fraud differs from simple error in this, that the error arising from fraud was produced by devices applied to this end. Error which of itself would not be sufficient to void a contract can give place to nullity, if fraud has intervened on the part of the other contracting party, who besides is bound to damages arising from the fraud.²

n. ¶3.

Point II. On Fear.

Fear is 1° either grave or light; 2° induced by an intrinsic or extrinsic cause, necessary or free, just or unjust; 3° struck in order to contracting, or to another end. - Recall what was said in n. 15 and following.

n. ¶853.

Principles. - I. Any fear whatever so disturbing the use of reason that it excuses from grave fault utterly voids by every right the contract which follows from it. The reason is that then the consent required for contracting is lacking, whether fear altogether takes away the use of reason, or so impedes it that the consent cannot be called full and perfect.

II. No contract from fear arising from an intrinsic cause, or from a necessary or natural cause, is invalid, unless perhaps he who contracts from fear was not master of himself. The reason is that no injury is inflicted on the contracting party, and from elsewhere he preserves sufficient liberty. The same must be said if fear has been struck by a free cause, or by a man, from a just cause; hence a seducer, driven by grave but just fear to marry the girl whom he seduced, contracts validly.

III. Betrothals excepted, which on account of the greatest liberty that they require from their nature are rescindible, more probably no contract entered from light fear is rescindible. The reason is that light fear from whatever source is reputed as nothing in law, since it can easily be contemned. - Otherwise very grave inconveniences would follow in human commerce, since light fear is most frequent. Lugo contradicts, however, with others, whose opinion is not called improbable by St. Alphonsus.¹ Yet except marriage and religious profession, which, in the opinion of all, are not invalidated by light fear.²

n. ¶854.

Questions. - Query 1° Does grave fear unjustly struck by the co-party in order to contracting void the contract, if it does not at all disturb reason?

Resp. 1° In the opinion of all, and also by our law,³ contracts of this kind are rescindible, whether they are gratuitous or onerous. (x) p. 476.

Resp. 2° Whether they are void by natural right, there is given a threefold probable opinion. According to St. Alphonsus, the very common and more probable opinion is negative, since fear does not simply take away the voluntary.

By Law, however, acts elicited from grave fear are invalid where it is a question 1° of Marriage, and more probably also of betrothals; 2° of handing over goods of the Church and renunciation of a benefice; 3° of a vow and religious profession; 4° of ecclesiastical jurisdiction and absolution from censures; 5° of election of a Prelate.⁴

n. ¶855.

- Query 2° Is a contract entered on account of reverential fear rescindible?

Resp. More probably negatively, because it does not seem of itself a sufficient cause of rescinding a contract, unless at the same time it includes grave fear, for example of long-lasting indignation, etc. ... Likewise not even most importunate entreaties constitute grave fear, unless perhaps they are joined with reverential fear toward a Superior.⁵ Sanchez, Salmanticenses, and others commonly.

Query 3° Is a contract void, or rescindible by private authority, if grave and unjust fear is struck by a third party alone for extorting consent, so that the other party is not participant in the injury?

Resp. It is controverted. The 1st Opinion affirms, because by reason of the injury, even inflicted by a third party, the thing remains obligated to the prior owner, and consequently passes with that burden to any persons whatever. - Billuart, and, as it seems, St. Alphonsus, L. IV. 719, who besides adheres to this opinion if it is a question of Marriage. L. VI. 1045 sq.

The 2nd Opinion denies, because, since neither party has inflicted injury, no reason of natural right is present why the contract should be void and why it could be rescinded at the will of one, the other being unwilling. - Lugo.¹

n. ¶856.

- Query 4° What if grave fear was indeed unjustly struck, but not for extorting consent?

Resp. It is controverted, but it seems it must be distinguished thus: 1° If the fear was struck by the other of the contracting parties, the contract is not valid, or at least is rescindible, because one striking fear is bound to remove all inconveniences which arise from the injury.² Except Marriage. 2° Otherwise, if fear comes from a third party, because none of the contracting parties inflicted injury; but the third party who inflicts fear cannot take away the obligation of the contract by consenting to its rescission, since the contract was not entered with him: nevertheless he is bound to induce to rescission, so that he may avert injury from the innocent party, if this one wishes. Hence the purchase of a sword made from fear of your enemy is valid. Lugo³ excepts marriage, which nevertheless according to the principles of St. Alphonsus⁴ is not to be admitted. Others also except gratuitous contracts, because thus better provision is made for the innocent party, and the other cannot complain, since he is deprived of profit alone, and remains in the state in which he was before; and just as he himself would not wish to be obligated in those circumstances, so neither ought he to obligate the other.

n. ¶857.

Resolutions. - 1° If you threaten someone caught in theft that you will denounce him to the injured master, or to the guard, or to the judge, unless he promises a certain gift to you, the promise holds, and you are not bound to return the gift accepted, unless perhaps by the judgment of a prudent man it seems excessive. This is also true even if you had not had the intention of denouncing him, but only of frightening him, because you would cede from your right of doing this; which is estimable by price.

2° If Titius struck fear into you, so that you might hand over some thing to Caius, the contract is at least rescindible. For if Caius, at the time when he accepts the thing from you, knows the injury inflicted upon you, he is judged to strike fear through Titius. But if he knows it afterward (according to the 1st opinion, n. 855, q. 3°), he would be assimilated to a possessor of good faith, who is bound to restore as soon as he discovers that he has another's thing.

3° If someone prepares damage for you from mere malevolence, and therefore asks nothing from you; but you spontaneously promise money, that you may escape unharmed, you are not bound to hand it over; because, although fear was not struck in order to contracting, nevertheless the contract has as its object only the cessation of unjust vexation; but the vexer cannot sell this cessation: therefore whatever he thus acquires, he receives as a possessor of bad faith, and therefore ought to restore it.

4° If a traveler oppressed by a robber has called a man passing by to aid, promising him money, the promise is valid; because fear is not its cause, but only the occasion; and from elsewhere the aid furnished by the passerby is estimable by price. Yet if the sum was enormous, it would have to be diminished.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 20 passages

456. The conditions required on the part of consent for contract are three, namely that consent be internal, externally manifested, and mutual:

1° Internal, namely true, deliberate, and free, because consent is an act of deliberate will, i.e., posited with that advertence of intellect and liberty of will which are required for a perfectly human act (as mortal sin is), with the intention of obligating oneself. Therefore there is excluded:

a) fictitious consent, which in reality is null; likewise consent given jokingly, or merely presumed;

b) indeliberate consent, which is not a truly human act, for example, consent given by a madman, a drunk man, one hypnotized, or a half-wit;

c) coerced consent, extorted by force or fear.

For contract is a consent of wills by which a moral obligation is undertaken and a right is transferred. But no consent of the will is given if it is not internal: for a moral obligation cannot be undertaken nor a right transferred except by a free intention or human act.

Hence 1) he who fictitiously consents, although externally he may seem seriously to pronounce words, in the external forum is presumed to have truly consented; but in reality he does not perfect a contract nor contract an obligation. Nevertheless he is bound from justice to repair the injustice inflicted on another, and if it cannot be repaired otherwise, he is even bound to fulfill what he fictitiously promised;

he who enters a contract with the intention of obligating himself contracts validly and is obligated, even if he has a positive will of not fulfilling, because between the two intentions there does not exist a contradiction; unless, however, he externally manifested the intention of not fulfilling, for example, "I promise the watch, but you will never have it": for this would be a sign that he does not wish to contract seriously;

but he who has two truly contradictory intentions, for example, of contracting and yet of not obligating himself, makes no contract;

yet he who intends to enter a contract as it is usually done, without having distinct knowledge of the obligation, contracts validly, because he implicitly consents to the obligation.

2° External, i.e., manifested to the other by a sign by which the internal consent becomes known to him; otherwise he is not able to know the consent. Therefore there is required a) consent expressed by sensible signs, b) communicated to the other party by at least one, so that it is manifested from the will of one for this purpose, that it may become known to the other; otherwise the consent will be held as a mere intention. Whence the manifestation of consent must be made to the other party either by the contracting party himself, or by another deputed for this; therefore it would not suffice that Peter told Paul that he wished to sell a horse to John, although John, warned by Paul, accepted the sale.

For expressing consent any external sign suitable for this suffices, by which the mind is clearly manifested; nor are words necessarily required for this; indeed silence can suffice, if from the adjuncts assent is sufficiently evident, which easily happens in gratuitous contracts as in donation, because in favorable matters silence can be held as acceptance; not so in onerous ones.

3° Mutual or reciprocal, rendered by each contracting party concerning the same object, i.e., given by one and at least implicitly accepted by the other. Namely, it is necessary that one consent to the obligation, and the other accept the consent, because before acceptance there is not had an agreement of several into the same thing. For one cannot by his own will acquire a right for another and oblige him to himself, unless he himself wills and consents.

Hence consent in some way must be simultaneous, not indeed elicited simultaneously at the same time, but existing together, insofar as the consent of one virtually or morally perseveres, not revoked, when the other expresses his consent. Whence a contract between absent persons can be perfected through a procurator or letters, or by the help of telegraph and telephone.

457. Corollaries. - From this it is easily understood:

That he who has offered a thing can withdraw from the offer, so long as it has not been accepted by the other; for a mere offer does not bind, except after it has been accepted;

likewise, that he can determine the time within which the other must consent (for example, by letter), so that, the time elapsed, the consent is withdrawn, since he now wills that it not persevere;

that consent, if no time has been fixed beforehand, is judged to persevere until it is revoked, or according to what law or custom shall have established;

that a unilateral contract of itself is perfected as soon as acceptance is manifested by an external sign, even if it has not yet been communicated and made known to the one offering, because now the consent of wills is had; - unless per accidens from positive law the communicated acceptance is required, as in solemn donation;

Vol. I, Tr. IX, Pt. I, Ch. II, Art. III, § I. On the Qualities of Legitimate Consent · Vol. I, Tr. IX, Pt. I, Ch. II, Art. III, § II. On Those Things which Can Vitiate Consent

conversely, in a bilateral contract, connaturally and of itself, there is required mutual consent mutually communicated: for an obligation is not contracted nor a right yielded unless it is communicated to another; therefore where the obligation is mutual it must mutually be communicated and become known. For just as the consent of the one offering does not oblige him unless it becomes known to the other contracting party, so the consent of the one accepting does not oblige him unless it is known to the one offering; because in a bilateral contract the one accepting also offers. Whence so long as the one offering has not known the consent, he can still withdraw the offer; yet per accidens it can be established by law or by the will of the contracting parties that the contract has force from the moment of acceptance.

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 6 passages (filed under the subtopics)

n. 489.

I say. Consent in completing a contract must be: 1st, external, that is, manifested by some sensible sign, because it must become known to the other party; 2nd, internal, because obligation arises from the will alone of the contracting party; 3rd, mutual, because a contract is an agreement of two or more persons, and therefore agreement of will is required on each side; 4th, perfectly deliberated, because it is a question of an obligation to be undertaken.

n. 490.

You Will Resolve. - 1st. Probably a contract entered into with the intention of not obliging oneself is not valid, because the condition placed destroys its very substance. Nevertheless something else must be said of a contract entered into with the intention of not fulfilling the obligation. - Cf. St. Alphonsus, n. 710. - Ballerini, note (b), p. 648.

2nd. It is not required that the consent of each party be elicited at the same time, because once given it perseveres, unless it is revoked.

3rd. He who fictitiously consents to a contract is held in the forum of conscience to make the deceived party indemnified; and if no other means of repairing the injury is at hand, to furnish internal consent and stand by the contract. But if the contract fictitiously entered into has been put into execution, no dominion has in fact been transferred. Whence, by reason of the thing received, the deceived person is to be held as a possessor in good faith, but the deceiver as a possessor in bad faith. - Cf. St. Alphonsus, Hom. Ap. n. 93.

4th. Silence regularly is equivalent to consent, if the matter is favorable to the one silent, according to the Rule of Law: He who is silent seems to consent.

Tr. II, Disputation I: On Contract…, Question II: Whether for the validity of a contract the intention of contracting, and of binding oneself, is required · Tr. II, Disputation I: On Contract…, Question III: How error, or fraud, vitiates a contract

Three things can vitiate the consent of some contracting party, namely error, deceit, and fear. Concerning fear, what it is and of how many kinds it is has been said in n. 16. But error and deceit differ in this, that the former is deception proceeding from ignorance, and the latter from artful frauds; for deceit, viewed in itself, is a contrivance employed for deceiving another.

n. 491.

I say, 1st. Every deception, whether it proceeds from ignorance or from deceit, renders a contract null if it affects either the substance of the thing, for example, if you buy copper for gold, or the nature of the contract, for example, if you take leasing for sale; but not if it affects only an accidental quality of the thing, at least if without the deception the contract nevertheless would have been entered into. The reason for the first is that then the consent would be only external but not internal; and the reason for the second, that deception concerning accidents does not destroy the efficacy and substantial force of consent. Nevertheless, except if the quality is expressly intended as a condition without which not, because then it passes into the substance of the thing.

Error renders an act void if it turns upon that which constitutes the substance of the act or falls into a condition without which not; otherwise the act is valid, unless something else is provided by law; but in contracts error can give place to a rescissory action according to the norm of law (Can. 104).

I say, 2nd. No contract from fear from within, or from a necessary or natural cause, is invalid or rescindable, unless perhaps he who contracts from fear was not master of himself. The reason is that no injury is inflicted on the contracting party, and moreover he preserves sufficient liberty. The same must be said if fear from a free cause has been inflicted for a just cause. The reason is that not only is such a contract voluntary simply, but also the danger in which the contracting party is placed is voluntary to him in its cause, nor can he complain of it as of an injury. Indeed even grave fear inflicted unjustly by a free cause does not impede of itself that the contract be voluntary simply, and therefore valid. Therefore by reason only of the injury which fear contains, it can sometimes harm the value, or at least the firmness, of the contract.

n. 492.

You Will Resolve. - 1st. If a priest at night buys cloth for himself, thinking it is of black color, while it is green or violet, the contract is not valid if he expressly declared that he wished cloth of black color; for although color in itself is a mere quality, in this case it passes into the substance, and therefore the error becomes substantial.

2nd. If, when you wish to buy Bordeaux wine, California wine is offered, the contract is valid in itself, notwithstanding error or deceit, because the error is not substantial. But justice is injured accidentally if the Bordeaux is more expensive; and therefore the seller will be liable to restitution. But if the price of each wine is equal, or if the price is diminished according to the proportion of the excess, the seller will be immune from injustice, although not from the sin of lying. - I said in itself, because the error could easily be substantial, as, for example, if the buyer had bound his intention by express words to Bordeaux wine on account of a certain end to which any other would not conduce.

3rd. He who buys from a bookseller a book which he judges good and afterwards discovers to be bad, nevertheless has contracted validly, because he wished to buy this present book absolutely and without restriction, although certainly he would not have bought it if he had known it to be bad. But otherwise, if a false title of the book had been inscribed, because then the title would have furnished the cause of substantial error.

4th. Unjust but light fear is not considered, unless it gives cause to the contract; but then, if it is a question of a gratuitous contract, it more probably invalidates it; but if of an onerous contract, more probably it neither invalidates it nor makes it rescindable.

5th. § 1. If someone, moved by grave fear unjustly inflicted, or circumvented by deceit, has placed an act or entered into a contract which is not null by the law itself, he will be able, once fear or deceit has been proved, to obtain rescission of the act or contract by an action which is called rescissory (Can. 1684). Cf. St. Alphonsus, nn. 716 and 717; and Hom. Ap. n. 125. - Lugo, disp. 22, nn. 115 and following. - Reuter, nn. 126 and 127.

6th. Error falling upon the final motive invalidates. If, for example, a book to be bought by me is proposed to me because it rightly explains the truths of faith, vindicates her rights to the Church, and does not spread prejudices against her, and I, wishing to have such a book precisely because of those reasons authoritatively proposed to me, buy it; but afterwards I find that the book contains great prejudices against the Church, certain things also scandalous, false, blasphemous; certainly I am not held by such a contract, for it is null - for we contracting parties did not consent to the same thing.

n. 493.

Question. Does error or deceit concerning a quality indeed, but which nevertheless gives cause to the contract, invalidate this contract?

Resp. Affirmatively, more probably, if it is a question of a gratuitous contract, because such a contract from its nature requires a full voluntary and every kind of spontaneity. But negatively if it is a question of onerous contracts; thus Can. 103, §2: Acts placed . . . by deceit are valid unless something else is provided by law, but they can be rescinded by sentence of the judge. - Cf. St. Alphonsus, nn. 714 and 715; and Hom. Ap. nn. 124 and 125. - Lugo, disp. 12, n. 84.

Concina, Compendium

Daniele Concina, O.P. — 5 passages

Diss. III, Chapter III — On those who can enter upon contracts validly and lawfully; on the solemnity of law that is necessary; what firmness an oath adds to a contract; to whom restitution in integrum belongs

n. I.

I. QUESTION I. Who can enter upon a contract? ANSWER. All who are endowed with the use of reason, and have the free administration of their own goods. Hence infants lacking the use of reason, madmen, the demented, the drunken, the sleeping, prodigals, wards before the fourteenth year, and minors before the twenty-fifth, cannot enter upon contracts without the assent of curators and guardians. Prodigals, nevertheless, must have been declared unfit for contracting by a judge. He is called a ward who has not attained the year of puberty. This year in males is the fourteenth, in females the twelfth. The age next to puberty is in males the tenth year up to the fourteenth; in females the ninth and a half up to the twelfth. They are called minors who have not completed the twenty-fifth year: after it they are called majors. Wards and minors, when they are capable of guile, can enter upon contracts concerning goods of which they themselves have the free administration, such as are goods which are conferred upon them either by parents, or by guardians, or by friends, that they may use them at liberty. These commonly require, even for this disposition of goods, the age next to puberty; which opinion I approve: because before this age they do not so possess the use of reason that they can enter upon contracts with astute and crafty men. But immovable goods, or movable goods which by keeping can be kept, wards and minors cannot alienate without the faculty of a judge, which cannot be granted without just cause, because the laws so dispose. A minor can contract concerning movable goods, if he lack a curator, and can use the benefit of restitution in integrum, if he be injured; otherwise a ward, to whom administration is forbidden. But the faculty of a curator or guardian being had, both a minor and a ward can contract concerning movable goods which by keeping cannot be kept, and can undergo an obligation both natural and civil. Those movable goods are said to be able to be kept by keeping which can be kept beyond three years, as gold, gems, and the rest of that kind. Those which do not last beyond three years are said to be unable to be kept by keeping. If wards and minors, without the licence of guardians and curators, enter upon contracts concerning those goods of which with the faculty of the same they can dispose, the contracts are null in each forum, the civil and that of conscience.

n. II.

II. QUESTION II. What solemnity of law is required for the validity of a contract? ANSWER. Solemnity is twofold: one accidental, the other substantial. That which regards the substance of the contract, it being lacking, there is no contract; but if the former solemnity be lacking, it does not destroy the contract made. Whence is this diversity of accidental and substantial solemnity to be gathered? From the diversity of laws. One law forbids a contract without this or that formula, yet does not annul it. This is called accidental, and does not dissolve the contract: whence comes that proverb: Many things done hold good which are forbidden to be done. Another law, which not only forbids but also annuls a contract made without this or that formula, is substantial, and makes the contract null, if the prescribed rite be lacking.

n. III.

III. Authors dispute whether a contract destitute of substantial solemnity is valid at least in the forum of conscience. All confess that contracts of matrimony and of monastic profession are null in each forum, if the prescribed solemnities be lacking. But they disagree concerning other contracts. Many affirm that contracts destitute of substantial solemnity, which in the exterior forum are null, are valid in the forum of conscience. To me it is more probable that they are null in each forum: since all the goods of subjects are subject to the government and direction of the supreme powers, regard being had to the order of carrying out public commerce. Therefore subjects are bound in each forum to observe the forms and rites prescribed by the supreme powers, by which human society is governed and public commerce is directed to the public good. Unless all things deceive me, it is a manifest error, hostile to human society and to public commerce, to assert that subjects are not bound in the forum of conscience to the observance of those laws. For the Apostle says, Romans 13: Let every soul be subject to higher powers. For there is no power but from God. Many other things I pass over for brevity's sake.

n. IV.

IV. QUESTION III. How does an oath confirm contracts void by natural or by positive law? ANSWER. It is certain that an oath does not confirm a contract null by natural law, because an oath cannot change the nature and essence of contracts. As regards contracts voidable by positive law, when the law annuls or declares the contract rescindable in hatred of the creditor, then it is certain that the contract is not confirmed by the oath: because then the law deprives the creditor of any action whatsoever against the swearer. Thus he who swears to a robber, a usurer, or others, out of grave fear, that he will pay a hundred, this promise is not ratified by the oath, nor valid; and robbers or usurers acquire no right against such a promiser who swears; the oath nevertheless, on account of the majesty of the divine name and the reverence due to it, is to be observed. When a contract is decreed rescindable by law on account of the public good and the common utility, likewise it is not confirmed by an oath: because then the contract is unlawful and null. But an oath is not the bond of an unlawful and depraved thing.

n. V.

V. QUESTION IV. To whom does the benefit of restitution in integrum belong? ANSWER. Restitution in integrum is the reintegration of the former state made by the judge's authority: which benefit has been instituted chiefly in favour of minors, and has place when the contract, the form of law being regarded, was valid and ratified; but a minor was injured in it before the completed twenty-fifth year, and therefore by the judge's authority he is recalled to his former state. This recalling to the former state is made either by rescinding the contract, or by increasing the price in which the minor was injured. A notable injury is nevertheless required, that this benefit may be sought. This restitution in integrum has place in the contract of sale, if the minor was injured, either because he sold for less than the just price, or because he sold a thing which he ought not to have sold. Again, if a minor receive money on loan, and squander it, he is not bound to restore save that in which he has been made richer. But if the contract be according to the formulas of law and the rules of equity, restitution in integrum has no place.

Bontempi, Palladium Theologicum V

Gaudentius Bontempi of Brescia, O.F.M. Cap. — 117 passages (filed under the subtopics)

Tr. II, Disputation I: On Contract…, Question II: Whether for the validity of a contract the intention of contracting, and of binding oneself, is required

ST. BONAVENTURE DISTINGUISHES, in 4. dist. 27. art. 2. quaest. 2., validity in the Forum of conscience and in the External forum.

THEREFORE in the forum of conscience, if you had no intention of contracting — indeed you intended not to contract — the contract does not subsist in the forum of conscience. Nevertheless you will be bound in the same forum for all the damages proceeding from your fraud to the one contracting in good faith, and in the external forum you will be forced to stand to the contract, because the external forum judges only what is external, not hidden intentions. So Sanchez, Lib. 1. de matrim. disput. 9., Tanner., disp. 4. quaest. 6. 329., Fagundez, lib. 1. de contract. cap. 2. num. 3., who say the same much more of vows and other quasi-contracts, which regard the forum of conscience more, because God, who is the searcher of hearts, regards the will more than external acts, cap. si quandoquidem, 15. quaest. 6.; nevertheless you are bound for the damages, as I said, and to stand to the contract in the external forum, cap. cum Apostolica, de rescrip. cap. ex tenore, eodem titulo, ad finem, cap. ex litteris de constitut. Leg. quoties, §. qui dolo, ff. de probat. et 30. quaest. 1. cap. Dictum: Fraus, et dolus nemini debent patrocinari, as the Holy Doctor argues, in the place cited.

BUT IF you wished to contract, yet not to bind yourself, many affirm that you are bound. So concerning the contract of matrimony, and any other contract whatever, teach Peter Ledesma, de matrim. quaest. 43. art. 1. dub. 2.

BUT SPEAKING of contracts and of a vow, hold Soto, lib. 7. de iust. quaest. 1. art. 2., Gutierrez, lib. 2. canon. qq. cap. 22. num. 31., Aragon., 1. 2. quaest. 88. art. 1., Ludov. Lopez, p. p. Instruct. cap. 92., Suarez, lib. 2. de iuram. cap. 7. et lib. 1. de voto, cap. 3., fighting most keenly.

THE SECOND opinion is that such a one is not bound. So Fagundez, lib. 1. de contract. cap. 2., Henriquez, lib. 11. de matrim. cap. 13. num. 2., speaking of the contract of matrimony; but of a vow, Lessius, lib. 3. de voto, cap. 40. dub. 1., Azor, p. p. lib. 2. cap. 17. quaestio 9., Valentia, disp. 6. quaest. 6. puncto 1., Navar., summa, cap. 12. num. 38., Sanchez, tom. 1. de matrim. lib. 1. disp. 9., where he adduces twelve Doctors on this. This is the opinion of St. Bonaventure, in the place cited, and in the preceding quaest.

I ASSERT, with this opinion, that one contracting with the intention of not binding oneself is truly not bound.

IT IS PROVED from St. Bonaventure first, quaest. 1., because a contract binds of itself from within; and indeed obligation arises from the will of binding oneself; but this man did not will to bind himself; therefore he did not will the contract. And so it implies willing the contract and not willing to bind oneself; but the negative, since it is destructive and poisoned, takes away even the positive will of contracting, as the Seraphic Doctor teaches everywhere.

n. 8.

IT IS CONFIRMED, for the obligation resulting from the will of contracting does not result naturally; but it is a moral effect hanging upon the liberty of the will.

n. 9.

IT IS PROVED secondly from St. Bonaventure, quaest. 2., from Innocent III, and it is found de sponsalibus, where he decrees that, the intention of binding oneself failing, matrimony is not valid.

n. 10.

IT IS PROVED thirdly from the Holy Doctor. Where the formal reason fails, and therefore the form, the quiddity of the thing fails, and consequently the thing itself; but consent is the form of the words which make matrimony; therefore, the intention of binding oneself failing, there is no contract. The minor is proved, for a contract is an obligation from one side and the other, arising from the will and agreement of the parties, as I said at the beginning of the disputation, and the acts of agents do not obligate beyond their intention. The same the Holy Doctor argues of baptism, 4. dist. 6. art. 2. quaest. 1.; but by God's law we bind ourselves in that.

n. 11.

IT IS PROVED fourthly from St. Bonaventure, dist. 28. quaest. 3., that a condition contrary to the substance of matrimony annuls it, ex cap. finali de condit. appositis; for although the one contracting have the intention of contracting under a condition, that matrimony, for example, be for a time and not perpetual, he does not contract, because matrimony, if it is, is perpetual and indissoluble, as the Holy Doctor proves, dist. 28. art. 2. quaest. 1.; therefore, since to bind oneself is of its intrinsic reason, he who contracts under the condition of not binding himself does not contract. The Authors of this opinion use these arguments.

n. 12.

THE FOUNDATIONS of the opposite opinion are undermined by these foundations, nail against nail as it were. But indeed, if you had the intention of contracting and of binding yourself, you are bound, even if you had not the intention of executing. So commonly the Doctors, cited in Fagundez, num. 9.

n. 13.

THE REASON is, because he who wills the antecedent wills also the consequent, lib. 1. §. 1. ff. si usufrust. pet., when the consequent will infallibly follow upon it, as the Holy Doctor argues, in 2. dist. 32. art. 3. quaest. 2. ad 2., and in other places, where he brings the example of one who wills to be Abbot of monks; consequently he ought also to will to be a monk; otherwise he is a fool.

Tr. II, Disputation I: On Contract…, Question III: How error, or fraud, vitiates a contract

It is to be noted from St. Bonaventure, book 4, distinction 30, question 1, and doubt 3, that error concerning a contract can be twofold.

The first concerns the substance of the thing; the second, its accidents. Error concerning the substance of the thing arises, for example, when you wish to buy, and you ask for a gold necklace, and you receive one of brass; or if you ask for a diamond, and you are given a piece of crystal. Error concerning accidents occurs if you wish and ask for gilded copper, and it is given to you, but spotted; or if you ask for a horse, and you are given a defective one.

Yet the Saintly Doctor admonishes on these points at article 4, that if you ask for a necklace in general, and name it gold, while not knowing the price of gold, nor what gold is, and copper is given to you at a fitting price, there will be no substantial error, because your intention is only about a metal necklace, but you name it gold, speaking like a magpie. Say the same also of error through deceit.

I assert first that error, or deceit, concerning the substance of the thing contracted about renders the contract null by natural law, if it is a preceding error, or deceit, giving cause to the contract, which being removed the contract would not have been made.

It is proved first by Cardinal Bonaventure, in the place cited, on the first foundation: consent being taken away, the contract is taken away. It is confirmed by the Saintly Doctor; for we are not held to will what we do not know, and much less something different from what we do know; as if we want gold, and copper is given. Fagundez uses this argument, chapter 3.

It is proved secondly from the Saintly Doctor. The voluntary is that whose moving principle is within, in the one willing, knowing the particulars: Therefore the involuntary is what comes to us from without against our knowledge, through error.