Fraud and duress

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

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,

VI. Opposed Vices. Vices opposed to prudence are some by defect, others by excess.

1. Vices by defect are called by the common name of imprudence, and they are four: precipitation, inconsideration, inconstancy, and negligence.

a) Precipitation is directly opposed to eubulia, and by it man is borne to acting by an impulse of will or passion, sufficient counsel of reason being omitted (cf. St. Thomas, II-II, q. 53, a. 3).

b) Inconsideration is a vice by which man is inclined to contemning or neglecting those things from which right judgment proceeds; and therefore synesis and gnome are opposed to it (cf. St. Thomas, II-II, q. 53, a. 4).

c) Inconstancy is a vice inclining one to withdraw from a defined good proposal; by it reason fails in commanding those things which right counsel and right judgment dictate must be commanded. Hence it is directly opposed to prudence (St. Thomas, II-II, q. 53, a. 5).

d) Negligence is a vice by which man is inclined to neglecting right command, through a defect of solicitude and promptness of will; for this reason it too is directly opposed to prudence (St. Thomas, II-II, q. 54, a. 2, corpus and ad 3; ibid., a. 1).

From these points it is clear that imprudence has under itself as many species as there are potential parts of the virtue of prudence (St. Thomas, II-II, q. 53, a. 2). St. Thomas alleges lust as the origin of these vices (II-II, q. 53, a. 6). But imprudence considered in this way constitutes a special sin, because it is contrarily opposed to the virtue of prudence; and just as prudence is a special virtue, so also its contrary is a special sin. But if by the name of imprudence there is indicated not so much the contrary as the lack of prudence, imprudence does not constitute a special sin, but rather a general one, insofar, namely, as it participates in the nature of the sin which is committed against that virtue for whose exercise the act of prudence was being commanded. "For just as prudence is in some way participated in all virtues, insofar as it directs them, so also imprudence is in all vices and sins; for no sin can happen unless there is a defect in some act of reason directing, which pertains to imprudence" (St. Thomas, II-II, q. 53, a. 2).

2. Vices by excess have some likeness with prudence itself, but they apply its offices to an undue object, namely to a dishonorable matter; hence they bear before themselves a false species of prudence. These vices are: prudence of the flesh or of the world, craftiness, guile, fraud, excessive solicitude for temporal things, and excessive solicitude for future things.

a) Prudence of the flesh or of the world is a vice "according as someone has the goods of the flesh as the ultimate end of his life" (St. Thomas, II-II, q. 55, a. 1); and it obtained this name because "prudence is concerned with those things which are toward the end of the whole of life" (St. Thomas, II-II, q. 55, a. 2).

b) Craftiness is a vice by which someone, "for attaining some end, whether good or evil, uses not true ways, but simulated and apparent ones" (St. Thomas, II-II, q. 55, a. 3).

c) Guile is the execution of those things which craftiness thinks out, whether it is done by words or by deeds; and therefore it pertains to craftiness (cf. St. Thomas, II-II, q. 55, aa. 4 and 5).

d) Fraud differs from guile in this, "that guile pertains universally to the execution of craftiness, whether it is done by words or by deeds; but fraud more properly pertains to the execution of craftiness insofar as it is done by deeds" (St. Thomas, II-II, q. 55, a. 5).

e) Excessive solicitude for temporal things is had either by seeking temporal things as an end, the spiritual end being excluded; or when superfluous effort is applied to procuring them, "on account of which man is drawn back from spiritual things, which he ought principally to serve" (St. Thomas, II-II, q. 55, a. 6); or when "someone fears that, by doing what he ought, necessary things will fail him" (St. Thomas, II-II, q. 55, a. 6).

f) Excessive solicitude for future things is had when someone is solicitous about future things before the opportune time (St. Thomas, II-II, q. 55, a. 7).

St. Thomas assigns avarice as the principal source of these vices (St. Thomas, II-II, q. 55, a. 8).

II. Consequences of incapacity. Contracts entered into by one civilly incapable are commonly made void in this sense, that they can be rescinded by the judge in a case in which rescission is legitimately sought. Civil law should teach who can seek rescission.

Corollary I. Incapable persons - and others who can seek rescission - if they have acted in good faith, licitly seek rescission of the contract. Nevertheless, it is not equitable that rescission of the contract be sought if there is question of contracts which commonly are entered into with an incapable person even by prudent and upright persons. The aforesaid can likewise use an exception, that is, deny execution of the contract; nor does the natural validity of the contract stand against this assertion, because no one is bound to furnish what he can immediately recover by petitioning the judge for rescission of the contract. If they have acted in bad faith - for example if the incapable person pretended himself capable, or contracted with the intention of later seeking rescission of the contract with damage to the other - they are bound at least to repair the injury inflicted on the other.

Corollary II. One who has contracted with an incapable person can stand by the contract until the right of the incapable person is legitimately urged.

II. Influence upon the contract. Error concerning the nature of the contract, as is clear, makes the contract void. Hence now let us speak about error which concerns the object of the contract. Now then:

1. Substantial error makes the contract void. For it brings it about that consent is borne upon an object different from the object of the present contract, that is, from the object upon which the expression of consent is borne. Therefore consent is lacking with respect to the object of this contract (St. Alphonsus, III, 714; cf. can. 104).

2. Accidental error effects these things:

a) It makes the contract void if the contracting party attaches his consent to the accident in such a way that it falls back into a condition sine qua non (cf. can. 104). Otherwise it does not make the contract void, because it does not prevent consent from being borne upon the object of the present contract. But the case of nullification occurs especially in error concerning the person, and indeed, that we may apply what others according to the things said in n. 836 hold as substantial error, if the person is intended per se and principally, as commonly happens in gratuitous contracts; for example, if you give alms to Peter, thinking him to be poor, when he is rich. Otherwise it must be said if the person is something secondary, which most often has place in onerous contracts, for example if you buy something from Paul the heretic, thinking him to be Catholic; sometimes also in gratuitous contracts, as if you give alms to Peter the poor man, erroneously thinking him to be a religious (St. Alphonsus, III, 737).

b) It renders the contract rescindable if the error was induced by fraud, and indeed by the other contracting party, and gave cause to the contract. Otherwise it does not render the contract even rescindable.

The reason for the former is that a contract induced by the fraud of the other contracting party involves an injury inflicted by the other contracting party; and this injury must be repaired by him. It is repaired by the fact that the contract involving the injury is removed, in other words rescinded. Therefore it must be rescinded, or at least rescission of it must be offered, by him who inflicted the injury; corresponding to this obligation is the right of rescinding in him who has suffered the injury. If the contract has already been given to execution, the injury is repaired by the fact that the deceived person is restored to his former state with respect to his things (St. Alphonsus, III, 715).

The latter involves three things, namely:

a) Accidental error does not render the contract rescindable if it was not induced by fraud, but, for example, inculpably or fortuitously, or by a non-free cause; because an injury, at least a formal one, to be repaired is lacking.

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

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

Nevertheless, observe that if the due equality between wage and price has been injured because of error, it must be repaired; and if fraud has been added, the deceiver is bound to repair also other damages, if perhaps they have followed from the fraud (St. Alphonsus, III, 714 and 715).

Note 1. With respect to ecclesiastical matter, observe these words of can. 104: "In contracts error can give place to a rescissory action according to the norm of law"; likewise these words of can. 1684, § 1: "If someone ... circumvented by fraud ... has entered into a contract which is not null by the law itself, he can, ... once the fraud has been proved, obtain ... the rescission of the contract by the action which is called rescissory."

Note 2. What civil law establishes concerning error, see in the law of one's country.

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

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

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

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

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

2. Into fear justly and unjustly instilled.

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

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

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

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

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

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

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

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

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

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

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

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

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

The latter involves three things, namely:

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

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

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

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

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

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

I. Notion. Lesion consists in this, that the equality which is required in onerous contracts is not preserved.

II. Influence upon the contract. Lesion, with natural law considered, per se neither makes the contract void nor renders it rescindable, but brings with it the obligation of restoring equality. I said per se, because at the same time there can occur error or fraud, which renders the contract invalid or rescindable.

With respect to ecclesiastical matter, observe can. 1684, § 2: "One who has suffered grave lesion beyond half from error in a contract can, within two years, obtain rescission of the contract by the action which is called rescissory."

What civil law establishes concerning lesion, see in the civil Code.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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).

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).

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).

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.

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.

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.

3. 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.

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.

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.

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.

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.

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.

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.

5. 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:

1. That they have canonically begun the novitiate or probation.

2. 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.

3. 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.

4. 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.

5. 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.

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.

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.

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.

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.

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.

2. 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.

3. 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.

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.

630. 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.

631. 2. 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.

632. 3. 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.

633. 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.

634. 2. 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.

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.

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.

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.

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.

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

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.

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.

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.

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

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

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.

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

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

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

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.

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.

458. Error and deceit are opposed to deliberation of the intellect. - Error is a false judgment; speculatively it differs from ignorance, which is the mere lack of due knowledge, but practically in the present question they are equivalent, for as to effect in contracts the same thing must be said concerning each. Error is distinguished in many ways:

A. One is antecedent, if it is the cause of the contract; another is merely concomitant or incidental, which is not the cause of the contract.

B. It is substantial, or accidental:

1. Substantial error turns about the substance of the contract, i.e., about that to which consent is principally borne, whether a) about the nature or species of contract, for example, if you take letting or commodatum for sale; or b) about the substance of the thing or object, for example, gold for copper, a gem for glass, a horse for an ox, wine for oil; or c) about the primary final motive, which is principally intended; or d) about a substantial quality (which redounds into the substance), to which consent is bound, so that it is a condition without which not and limiting the consent, for example, if someone buys new wine for old, an aged mare in place of a younger one for breeding, and intends: I buy if it is so, and I do not buy unless it is old, or younger.

2. Accidental error turns about the accessories of the contract, namely a) about the secondary or impelling motive, or b) about an accidental quality to which consent is not bound. Yet this can be the motive of the contract, if it is entered into because of that quality, without that quality itself being a condition without which not of the consent; and then it is the cause of the contract, i.e., it moves to the contract, but is not principally intended, but secondarily: for example, if someone buys a horse because he thinks it is white, or wine because he judges it to be Bordeaux, without saying: I do not buy unless it is white or Bordeaux. Then the error is antecedent; but if in no way it is the cause of the contract, it is merely concomitant.

C. It is proper to the one erring and caused by no one else, and then it is simply error; or induced by another, and then it is called deceit.

459. Principles concerning a contract entered into with error. -

1. Substantial error, even merely concomitant, renders a contract invalid, because in the case the one erring does not furnish consent concerning the thing about which the contract is (a. 1110). Whence if you buy oil for wine, the contract does not have force, even if, knowing that it was oil, you would have bought it.

2. Accidental error which is not the cause of the contract, or is merely concomitant, does not render it invalid, because it has no influence on the contract.

3. Antecedent accidental error, i.e., one which in fact gives cause to the contract, renders at least in the forum of conscience a gratuitous contract invalid: for this demands a greater fullness of the voluntary, and the common good does not prevent it from being easily rescinded. Thus, for example, a donation made to someone because he is thought to be poor, or a blood relative.

Yet in practice attention must also be given to the disposition of the contracting party; for example, someone bestows a small alms on a poor man because he thinks him sober and pious and otherwise would not bestow it; yet after the fact, generally, he does not wish the donation to be void, even if the poor man is impious and drunken.

4. Accidental error which gives cause to a contract does not invalidate an onerous contract. The reason is that in an onerous contract, since favors and burdens are mutual, because of the accidental error of one, the other ought not to suffer damage; - and besides, the common good demands this, the security of commerce: for since these contracts are most frequent, if because of accidental error they could be rescinded, the whole order would be overturned and lawsuits would be multiplied unto infinity.

Many add, however: for the forum of conscience, if the matter is still intact, the deceived party is not bound to fulfill the contract, provided he renders the other party unharmed, because the tacit mind of the contracting parties is not to oblige themselves to execute the contract if they have been deceived. But this reason does not hold, because contracting parties, on account of the necessity of the common good and the security of commerce, are judged to will to consent and to renounce rescission of the contract, if only accidental errors are present, which all cannot be attended to. Besides, so it is in the external forum.

Hence: a) Error concerning quality of itself is accidental, unless the quality is intended as a condition without which not, to which consent is bound.

He who buys a red horse because he thinks it white buys validly, unless he has said: I do not buy unless it is white; conversely, a priest buying blue cloth for a cassock, which he thinks black, makes the purchase null.

b) Error concerning person of itself is substantial in gratuitous contracts, in which principally the person is attended to upon whom the benefice is conferred, and besides a greater liberty is required.

I say: of itself, because in fact the will of the one gratuitously conferring must also be attended to, especially in things of lesser moment, in small alms, in which often they intend to give absolutely, or at least do not wish restitution to be made. Conversely, in onerous contracts error concerning the person is generally accidental, for example, if you buy a book from Peter thinking it is from Paul: for then principally one's own advantage to be received from the contract is attended to; unless the person is a substantial quality, as in the purchase of a painting made by a famous painter. A fortiori the error will be substantial in matrimony, in which the person is the very matter of the contract (a. 1110).

c) Error concerning the impelling motive of the contract is accidental; conversely, if it is about the final motive, it is substantial.

Thus if someone buys a horse, falsely thinking that his own has died, the contract has force; conversely if he buys under the condition that it has died.

460. Principles concerning a contract entered into with deceit. - Deceit is a saying or deed employed to deceive another, which can be done by craftiness, frauds, machinations, fallacies, whether positively by lying, or negatively by being silent or concealing a hidden defect which ought to be revealed. Whence it is an action or omission posited so that the other may be induced into error. And therefore it includes error, and adds the injury of deception which lessens liberty; for if the other, detecting the fallacy, is not deceived, and nevertheless contracts, consent is in no way vitiated. Now:

1° Substantial deceit in the same way as error invalidates the contract, and moreover obliges one to repair the damage unjustly inflicted on the deceived party, for example, one selling worn garments as new.

2° Accidental deceit which is not the cause of the contract does not render it invalid.

3° Accidental deceit which is the cause of a gratuitous contract invalidates it.

4° Accidental deceit which is the cause of a dissoluble onerous contract, and is employed by the other contracting party, does not render the contract invalid, because it does not take away voluntary consent; but it makes it rescindable at the will of the deceived party (a. 1116-1117), because fraud ought to patronize no one.

5° Accidental deceit employed by a third party does not make the contract rescindable, unless the contracting party was a participant in the deceit; nevertheless the deceiver is obliged to repair the damage unjustly caused.

461. Violence and fear are opposed to liberty. - Physical and absolute violence, which the subject is compelled to undergo and which he wholly resists, since it renders the act altogether involuntary, renders the contract null; but it is a quasi-metaphysical case, that someone's hand be physically forced to sign a contract against his will. But if the violence is not absolute and perfect, then it is reduced to fear or moral violence. Now fear is a trepidation of mind by reason of an impending or future evil or danger. Rarely and per accidens does it so disturb the mind that it removes the use of reason; but of itself and ordinarily it does not impede.

Fear a) can be grave, absolutely or relatively, if grave damage (absolutely or relatively) and imminent is feared; or light, if only light damage is feared, or grave but not imminent;

b) can be from a necessary natural cause; or from a free cause, and then it is either justly inflicted, or on the contrary unjustly inflicted; moreover it is inflicted to extort consent or not to extort it, whether by the other party or by a third party. It makes no difference whether he who inflicts fear threatens evil to the contracting party himself or to a person closely joined to the contracting party (a. 1113).

462. Principles concerning a contract entered into with fear. -

1. Any fear whatever so disturbing the use of reason that it excuses from grave fault invalidates the contract, because it destroys consent.

2. Fear that is not unjust renders the contract neither invalid nor rescindable, unless it takes away the use of reason. A donation of money made in a fire or shipwreck to another so that he may free the donor from danger has force, or one made from fear of penalty lest the other bring the offense before a judge.

3. Grave fear unjustly inflicted, whether by a third party to extort consent or by the other contracting party for any reason, invalidates gratuitous contracts, because more perfect liberty is required for them. Thus if a son threatens his father so that he may give money.

4. Grave fear unjustly inflicted, whether by the other contracting party, or by a third party but to extort consent, does not render an onerous contract invalid, because consent remains free, but it renders it rescindable, because the consent is the fruit of injustice (a. 1109, 1111, and 1117); yet from the law of nature it seems to invalidate an indissoluble contract which binds one's whole life, such as matrimony and solemn religious profession.

Hence the purchase of a sword from fear of an enemy has force, and a promise of money made with a view to protection against an enemy; conversely, the sale of a horse from a threat of death, or a promise made to a calumniator so that he may abstain from defamation, can be rescinded.

5. Light fear in the external forum does not rescind a contract, because it is not judged to have been the cause of the contract (a. 1114); but in the internal forum, if light fear unjustly inflicted to extort consent was the sole cause of the contract, it probably renders gratuitous contracts invalid, onerous ones rescindable.

463. Observations. - 1° In civil law error, deceit, and fear must be strictly proved before a contract is annulled. Whence they give place only to rescission (a. 1117).

2° From positive law certain acts or contracts which from natural law are valid or rescindable can be invalid.

3° Briefly, the Code of Law, can. 104: "Error renders an act invalid if it turns about that which constitutes the substance of the act, or falls upon a condition without which not; otherwise it has force 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. 103: "1. Acts which a person, whether physical or moral, posits from extrinsic force which he cannot resist, are held as not done.

2. Acts posited from grave and unjustly inflicted fear, or from deceit, have force, unless something else is provided by law; but they can... be rescinded by the sentence of a judge, whether at the petition of the injured party or ex officio" (cf. can. 1684-1689).

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.

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.

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.

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.

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.

It is proved thirdly from the Saintly Doctor. No less involuntary is what is done through violence than what is done through error. And it is confirmed from cause 29, question 1, where it is defined.

It is confirmed by the Saintly Doctor in the body of the text, with the same arguments, adding the authority of Cardinal Augustine, book 2 of the Trinity, chapter 1, and tractate 96 on John, where he says: We can love what we see: what we do not know, by no means.

This assertion is received with great applause by St. Thomas, II II, question 77, article 3, Molina, tractate 2 on justice, disputation 259, and the Thomists there, Lessius, volume 1, book 2, chapter 17, doubt 5, number 27, Sanchez, book 7 on marriage, disputation 18, number 12, Bonacina on contracts in general, disputation 3, question 1, point 2, § 1, and others among these; and Tanner says, disputation 4, question 7, doubt 1, number 11, that it is the opinion of all.

Fagundez nevertheless adds, number 6, with Sálaza on sales, doubt 35, that there can be error concerning the substance, and yet the contract still hold, as if alchemic gold were of the same perfection as gold taken from veins, and that were given to you for this; or if one slave girl were bought and given for another of the same quality, or from an apothecary one medicine of equal virtue in place of the one ordered by the physician. But these either do not vary the substance, and if they do, they break the contract; as if I wished that particular slave girl by number, and would not buy another, or that medicine. In the matter of marriage, however, it is certain, as these very men concede, that it is invalid.

I assert secondly, with Cardinal Bonaventure, whom Fagundez follows, number 9, Suárez, tractate 1 on laws, book 1, chapter 11, number 6, Sanchez, book 1 on marriage, disputation 64, Molina, tractate 2, disputation 272, Navarre, Latin Summa, chapter 2, number 27, and commonly, that if the error concerns accidents which gravely alter the judgment of the thing, and which can be reduced, by the judgment of the prudent, to the substance of the thing, the contract is null.

The reason is, because the consent necessary is supposed absent, as above.

Hence I conclude, with St. Bonaventure, book 4, distinction 30, doubt 6, that if the error concerns virtue and morals, for instance if she be dishonest whom I judged honest, these are circumstances greatly to be weighed, and Sanchez says they can break betrothals.

I assert thirdly: if the error concerns circumstances of lesser moment, in the judgment of the prudent, then even if he would not contract if he knew, it is probable that it does not void the contract by natural law. So Molina, tractate 2, disputation 352, Rebello, book 1, question 6, section 2, number 11, and book 9, question 1, Bonacina on contracts, disputation 3, article 1, point 2, Mantica on ambiguous agreements, book 1, title 9, Aegidius Lusitanus on the law "ex hoc iure," chapter 8, number 95.

Therefore if you contracted with her whom you thought rich, noble, beautiful, and you found her ignoble, poor, bleary-eyed; the contract stands, because these do not greatly vary in this contract.

The reason is also, because that error, or deceit, is indeed a cause of the contract; yet it still has its own object, on which it falls, that is, the substance of the thing, as Pontius says, book 4 on marriage, chapter 21.

In another way Casas defines it, tractate 19, disputation 1, section 3, number 35, with Castro Palau, volume 3, tractate 14, disputation 2, point 5. Whenever error, or deceit, is only a causative cause, but not the object of the contract, it will not be null by natural law; but if it is an object expressly declared, such a contract will be null, but not if only implicitly; because then the error, or deceit, is held to be accidental, since there is still supposed an object sufficient for the being of the contract.

The Seraphic Doctor, distinction 30, doubt 3, distinguishes error concerning accidents thus, for instance concerning goods of fortune, in marriage: it can be an impulsive cause in estimation only, and in hope, in such a way that the consent falls upon the person still precisely determined, as upon the object of consent; or it can be such that consent is suspended upon the person, and under this condition it falls: I accept the person, if she is rich, and not otherwise. In the first way the Saintly Doctor says the contract is valid, because consent still has a sufficient object upon which to fall; but in the other way, since consent is absent but reserved, it will not be valid.

He ADDS, however, at question 1, error concerning accidentals in marriage, concerning condition, or servitude, because it prejudices the great good of liberty; but this is a deposit of positive law, as he explains at distinction 36, question 2.

IN the response indeed to the last, he distinguishes thus: error concerning goods of fortune, for instance concerning nobility, dignity, and other accidentals, can be twofold. First, if one errs concerning the subject of the person. Second, if concerning the properties.

Error occurs CONCERNING the subject, when the girl, knowing and recognizing the person, for instance the son of the King of England, by sight or by hearing, consents to him and not to another, and then there will be a substantial error voiding the contract of marriage. But if she does not recognize the person of the son of the King of England, but only believes that this one whom she sees has that dignity, then since she consents only to this one, the consent will be valid, even if he is not endowed with that dignity.

I ASSERT fourthly; if we speak of positive law, the most received opinion is the one teaching: if the error concerns the substance of the thing, and the accidents and substantial qualities which greatly vary the judgment, and the contract itself is made in good faith on one part, and through deceit on the other, so that the deceit gives cause to the contract, the contract is null by positive law. So Vasquez on the law of Emphyteusis, question 5, number 9, Lusitanus on the law "ex hoc iure," Digest on justice and law, chapter 8, from number 93, Bonacina on contracts, disputation 3, question 1, point 3, § 2, Gómez, volume 2, varieties, chapter 2, number 48, Fagundez, book 1, chapter 3, Bassaeus V. Contractus, Tanner, disputation 4, question 7, doubt 1. It is clear from Law 1, and from the law "sciendum," § last, Digest on the aedilitian edict, and from Law 65, title 5, Partidas 5.

It is PROVED by Cardinal Bonaventure, in the question lately adduced, from the matter of marriage, from cause 29, question 1, and from the reasons adduced for the first assertion. For what is invalid by natural law cannot be validated by positive law; otherwise positive law would be against natural law.

WHAT we have said of antecedent error, some apply also to concomitant error, not only in the contract of marriage, as when you contract with Bertha, thinking her Titia, but yet you would contract more gladly with Titia if you recognized her; but also in other contracts, as if you buy crystal, judging it a gem, but yet you would buy even if you knew it to be crystal. So Fagundez, number 7, adducing St. Thomas, I II, question 6, article 8, Bonacina on contracts, disputation 3, question 1, point 2, § 1, and on marriage, question 3, point 2, number 3.

HENCE you observe, it is disputed: whether a contract excused from deceit can be validated, the option being given by natural law to the deceived party, to stand by the contract or not, if it is reduced to equality; and both opinions are probable: I judge that it can, because by natural law the deceived party can repair the injury.

BUT by natural law the deceiver is held to stand by the contract; if the deceived party so wills, but this after the judge's sentence.

It is PROVED by Cardinal Bonaventure, book 4, distinction 17, article 2, question 2, ad 4, from cause 30, question 1, also in every forum, whether judicial, civil, or Canonical: indeed even in the forum of conscience, where it is defined that fraud and deceit ought not to avail the defrauder, law "Quoties," § "qui dolo," Digest on proofs, from the chapter "sedes Apostolica," on rescripts, the chapter "ex tenore" of the same, and the chapter "ex literis," on deceit and contempt, and finally the final law, title 2, Partidas 4, which defines, that the option must always be given to the deceived party, whether he wills or does not will to stand by the contract, which by natural law was void, in punishment of the deceit, lest he obtain advantage from his own deceit; for the whole law always resists deceit and fraud, as Fagundez notes, number 18.

There is given also to the deceived party an action against the third party who committed the deceit, law 2, Digest on proceeds and rights introduced, and every deceiver is held in conscience to restitution of damages before the judge's sentence; for deceit and fraud are of the genus of mortal sin, as Reginald shows in practice, book 25, number 125, Bonacina on contracts, disputation 3, question 1, point 2, § 2, Fagundez, number 23, from Cardinal Bonaventure in the Mirror of the Soul, chapter 2, § the second branch, and the following.

The holy Doctor PREFACES in dist. 29, question 1, that fear is twofold. One is grave, which is also called just, and falling upon a constant man; the other light, which is also called falling upon an inconstant man, L. metu, ff. de eo, quod metus causa, cap. consultationi, cap. veniens, 2. de sponsal. cap. Cum dilectus, de his quae vi. Grave fear is fear of some great evil considered absolutely and in itself, which we fear is about to befall us or ours; such is inflicted fear of death, mutilation, atrocious torture, violation, servitude, loss of goods, of status, of honor, of great gain, of infamy, of unjust excommunication, etc. as Sanchez proves lib. 4. de matrim. disp. 5.

Whether indeed these evils threaten us or ours, they instill grave fear. So Menochius tract. 1. lib. 2. de arbitr. centur. 2. casu 136. Azor p. p. lib. 2. cap. 17. dub. 6. Sanchez lib. 4. de matrim. disput. 1.

IN SONS, as Leg. Isti quidem, §. fine, ff. de eo, quod metus causa, proves; for children are part of the father, as Aristotle teaches in the Ethics.

IN WIVES, AND HUSBANDS, because they are one. So D. Thom. in 4. dist. 29. quaest. unic. art. 2. ad 3. D. Bonavent. same dist. and others teaches.

IN FATHERS, BROTHERS, AND SISTERS leg. ult. Cod. de impub. et aliis substit. §. hi, qui, Instit. de inut. stipul. and the Doctors commonly; and concerning all connected in the first degree the Praep. teaches cap. cum locum de sponsal. num. 10. Cucus lib. 5. inst. Maior tit. 22. num. 156.

IN OTHER KINDRED, AND AFFINES, because, as is said in cap. non existimemus, 13. quaest. 2., they are one flesh. It is also proved by cap. sciant cuncti de elect. in 6., which text Iason calls notable, leg. de pupillo, §. si quis ipsi, num. 12. ff. de oper. nov. nunciat.

IN FRIENDS JOINED BY THE TIGHTEST BOND IT IS PROVED, because a friend is another self, as the Philosopher says, 6. Eth. cap. 4. and D. Augustine lib. 4. confess. cap. 6. Hence grave fear of an evil, whether ours or our dear ones', is said to be inflicted, and it invalidates the contract, if the evil truly impends.

LIGHT fear is reverential fear, on account of the presence of some grave person; yet this fear, if threats, harsh words, etc. are added, can become grave. Therefore one must note that fear is called grave and light respectively; for what is light fear for someone, say a man, will be grave for a girl, as Sanchez shows, citing some fifty Doctors, and it is proved ex Leg. 3. ff. ex quibus causis.

FIVE conditions, however, are required for fear to be grave.

FIRST, that the evil feared be grave leg metum, ff. de eo quod metus causa; there Labeo says fear is to be understood not as any fear whatever, but of a greater evil, that is, a great evil, as the Gloss explains.

SECOND is, that it be feared rationally, not for a light cause: it is clear ex Leg. metum cit. ibi, "fear, however, not of a vain man, but of one who fears deservedly," and Leg. Nec timorem, §. proinde, ff. eodem. Whence Eccl. 19: He who quickly believes is light of heart. So D. Thom. 4. dist. 29. quaest unic. art. 2. D. Bonavent. same dist. quaest. 1. in the body, and others. And indeed true infliction of punishments is not required, but a probable and not vain fear, as S. Bonavent. and others prove, as cited by Sanchez lib. 4. de matrim. disp. 1. num. 16.

THIRD condition is, that the one instilling fear be able to carry out his threats. So D. Bonavent. loco cit. It is clear ex Leg. famosi, ff. ad legem Iulia maiest. and Sanchez proves cit. num. 19.