Mistake in contracts

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

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

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

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

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

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

¹ Digest of English Civil Law, n. 198.

² ibid., n. 196.

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

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

I. Division. Error is distinguished:

1. Into substantial and accidental. Substantial error is had: 1° when the nature of the contract intended by one party is different from the nature of the contract which the other party intends, as if you accept something as a gift, when the other party intends to lend it for use; 2° when the object of consent, at least morally speaking, is different from the object of the present contract, that is, the object upon which the expression of consent is borne, as if you intend to buy a gem, and the expression of consent is borne upon glass; 3° error concerning the person with whom one contracts can be substantial only then when, as in matrimony, the person constitutes the object of the contract.

Others, however, speak thus with respect to error concerning the person: error concerning the person can be substantial or accidental. In matrimony it is always substantial, because the person itself is the object about which the contract is made. In other contracts error is substantial 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. Error is accidental 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 it also has place in gratuitous contracts, as if you give alms to Peter the poor man, thinking him to be Paul.

Outside the cases enumerated above, error is accidental.

2. Into error which gave cause to the contract, and such as did not give cause to it, according as the contract, with the error set aside, would not have been entered into, or nevertheless would have been entered into.

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.

775. • Error in contracts can be concerned: 1. with the substance of the thing, as if you buy copper for gold; 2. with the nature or species of the contract, e.g. if you take lease for sale; 3. with the quality or accidents of the thing, suppose if a horse is slow while it is reputed swift; 4. with the person, e.g. if someone were to give to Peter, wishing to give to Paul; 5. with the motive, e.g. if you were to give something to Caius on account of poverty or piety, while he is rich or impious.

Nevertheless, error concerning quality, although accidental, can be the cause of the contract.

776. Principles. - I. Every error concerning 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 a wholly diverse thing. - St. Lig., n. 714.

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

777. Questions. - It is asked, 1. Whether error concerning a quality giving cause to the contract invalidates a contract, whether onerous or gratuitous?

I reply, 1. More probably negatively as regards onerous contracts, because such error does not impede cognition, nor consent as regards the substance of the thing. Otherwise scarcely any contract would be valid, which would tend to the overturning of human commerce. Make exception if the quality is expressly intended as a condition without which not, because then it passes over into the substance of the thing.

I reply, 2. As regards gratuitous contracts, more probably affirmatively. The reason is that such contracts of their nature require a full voluntary and every sort of spontaneity; but this was plainly lacking when the cause moving one to give is supposed to be lacking. - Thus commonly, against some who, since they otherwise admit that these contracts are rescindable at the will of the donor thus deceived, scarcely differ in practice, one sentence from the other ¹. - See St. Alph., nn. 714, 715; Hom. apost., nn. 124, 125. It is asked, 2. Whether error concerning the person invalidates the contract?

¹ Nevertheless, between two sentences, of which one says that certain contracts are void of themselves, the other only rescindable, a difference of great moment can be present as regards effects. Thus, e.g., if the discussion is about betrothals, according to this diversity of sentences it will be defined whether from the contract the impediment of public honesty has been introduced or not.

Moreover, the same dissent of sentences, and the same character of difference between them, is to be seen among the Doctors also as regards onerous contracts to which, nevertheless, the fraud of one or the other contracting party has given cause; of one or the other contracting party, I say; for if fraud is employed by some third party, and the other party of the contracting persons is not a participant in the fraud, the contract is held valid without controversy, although an action is given to the deceived person against that third party who employed the fraud (see Molina, tract. 2, disp. 352, n. 7).

Therefore, when fraud giving cause to the contract is employed by the other of the contracting parties, or if it is employed by a third party, yet the other party is a participant in it, the Doctors agree that contracts of strict law are to be sustained as valid; but as regards contracts of good faith they differ among themselves. And Molina indeed (disp. cited, n. 2), with most of the older authors, contends that they are void; but more recent authors (see Lugo, disp. 22, n. 70) have more commonly held them as valid, although afterward they must be rescinded at the choice of the deceived person. But among the dissenting parties Cardinal De Lugo intervened as a sort of arbiter, about to reconcile them somewhat. "Each sentence," he says (disp. 22, n. 73), "can perhaps be reconciled, if we say that contracts of this kind are by natural law, and also by positive law, indeed partly valid, partly void, and altogether to be annulled at the will of him who suffered the fraud." The excellent theologian entered upon this way especially so that a reason could be given why it is in the free power of the deceived person to stand or not stand by the contract, while the deceiver is bound to stand by the contract according to the choice of the deceived person.

And indeed let it suffice to have indicated these opinions of the Doctors; for the brevity of a Note does not permit their force and reasons to be weighed. Nevertheless, we do not judge that the conclusions which pertain to practice are to be passed over, and this the more because all the sentences agree in them, however much each may perhaps differ somewhat according to its own principles in giving their reason. Therefore have these from Molina (l.c., n. 16):

Either someone is deceived while the other contracting party is ignorant of it; and then, if no inequality arises in the contract because no transgression of the limits of just value has been made, the contract in each forum is valid and firm, in which no change must be made. But if inequality arises, because either something was received beyond the strict just price, or something was given below the just and lowest price, then in the forum of conscience it must be reduced to equality only down to the limits of the just price, and also in the external forum if the transgression was within or beyond one half of the just price.

But if the deception is known indeed to the other contracting party, but without fraud, and without concealing things which he was bound to manifest, then altogether the same things must be said as we said just above, when someone was deceived while the other contracting party was ignorant.

But if lies and fraud have intervened, a distinction must be made. For either someone was induced to contract, or to increase the price or recompense, or not, because he did not give faith, knowing that this is the custom of those celebrating similar contracts; or, even if those lies had not been used, he would have contracted similarly: and then altogether the same thing must be said as in the two preceding events, because the fraud employed was neither the cause of the contract, nor of increasing the recompense or diminishing it. And hence often merchants who lie and affirm by oath either that the thing is worth more, or that they bought it more dearly, and who invent many other things, both so that they may sell or sell more dearly, and so that they may buy or buy more cheaply, will be excused both from the burden of rescinding contracts of this kind and also from restitution of part of that which they thus received.

When by lies or other frauds someone was induced to contract, or to increase the price or recompense, fraud is said to intervene in the contract in the sense in which thus far in this disputation we have been speaking. But if then the fraud gave cause to the contract, it is invalid in the forum of conscience if the deceived person so wills, and also in the external forum if the contract was of good faith, even though no inequality has arisen from it.

Observe nevertheless that, when there is no inequality, regularly it is not a mortal fault not to rescind that contract, or not to offer this to the deceived person; and, when the thing is no longer intact so that the contract can be dissolved, regularly no obligation arises of restoring something under mortal fault. And hence those who, lying that wine is of many years, or is of one place, sold it to him who, if he knew that it was not of so many years or not of that place, would by no means have bought it, or would not have bought it at so great a price, will be excused from mortal fault and from the burden of restoring under mortal fault, when the wine in itself, all circumstances being computed, was equally good and of equal value. And likewise when he would not have bought it for so much, and the increase of price was not so great as is required for mortal fault.

Nevertheless, while the matter is intact, then there is always an obligation under venial fault of rescinding the contract, or of offering this to the deceived person, or of restoring to him what he would have given less, at least when he would have bought from another at a lesser price, unless he had been deceived by this one in such a way, even though he bought from this one within the limits of the strict just price; for when from no other would he have bought better wine or at a cheaper price, then, although an injury had been done to him by selling to him in this way, nevertheless, because no damage, even of cessant gain, would have followed from it for him, no obligation of restoring would arise.

I said, regularly mortal fault does not intervene by not rescinding similar contracts or by not restoring; because if the thing were of great value, and especially if otherwise he was going to buy an equally good thing at a lesser price, so that this decrease in price would suffice for mortal fault, then indeed both to enter that contract with fraud intervening, and, while the thing is intact, not to rescind it, and finally, when the thing is now no longer intact, to omit restitution of the damage following from that contract to him thus deceived, would be a mortal fault.

I reply, 1. Negatively, speaking generally, as regards onerous contracts, because in these an error of this kind is merely accidental; and surely it is of little interest both to the seller to whom he sells the thing, provided he receives a fitting 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 the same time both the contracting party and the object of the contract itself.

I reply, 2. Affirmatively, for the most part, as regards gratuitous contracts, because in these the person of the donee is usually specially intended by the donor. Nevertheless, the circumstances of the things must be considered, from which the will of the benefactor can be better recognized.

778. • It is asked, 3. Whether error concerning the motive invalidates a contract?

I reply, 1. Affirmatively, if the error falls upon the final motive; e.g. if you were to give alms to Titius because you reputed him poor, when he is rich; for your consent is lacking as regards the very substance of the thing.

I reply, 2. Negatively, if the error falls only upon the impelling motive; e.g. if you were to give alms to poor Peter, whom you believe very upright, when he is less upright; for this error is merely accidental. - St. Lig., n. 737; Hom. apost., n. 137.

779. You will resolve. - 1. If a priest by night buys cloth for himself, thinking it to be black in 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 substance, and therefore the error becomes substantial.

2. If Burgundy wine is offered to you when you wish to buy Bordeaux wine, the contract is valid of itself, notwithstanding error or fraud, because the error is not substantial. But justice is injured accidentally if Bordeaux wine 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 in proportion to the excess, the seller will be immune from injustice, although not from the sin of lying. I said, of itself; because the error could easily be substantial, as, e.g., if the buyer had attached his intention by express words to Bordeaux wine on account of a certain end to which any other wine would not conduce. - Reuter, n. 113 and following.

3. He who buys a book at a bookseller's, which he judges good, and afterwards discovers it to be bad, nevertheless 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 was bad. But it is otherwise if a false title had been inscribed on the book, because then the title would have furnished the cause of a substantial error. - See Cases, n. 779 and following.

4. Fraud differs from simple error in this, that error proceeding from fraud has been produced by artifices employed for this end. Error which of itself would not be sufficient for invalidating a contract can give place to nullity if fraud has intervened on the part of the other contracting party.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Principle 1. Substantial error renders a contract invalid.

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

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

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

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

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

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

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.

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.

V. QUESTION II. Whether guile makes a contract void? ANSWER. Guile is taken for deceit, or for fraud, or for craft, by which one deceives another. Error, or guile, which precedes or accompanies a contract, if it be concerning the substance of the contract, makes it null and empty, because it takes away altogether the voluntary consent. When therefore guile, error, and craftiness are the cause of a contract, it is certain that it is null. On the contrary, if the guile or error be not against the substance, but against some accidental quality, it does not make void the contract, because it does not take away liberty as regards the substance of the contract. What if error or guile concerning a quality were the cause of contracting, so that if the guile or error were known by the deceived contracting party, he would in no way have entered upon the contract? In this case I judge that the contract is null. For although a quality in the physical order be accidental, yet while it gives cause to the contract, in the moral order it puts on the character of a principal cause. Nothing is more frequent in contracts of buying and selling than that the qualities of wares are the chief cause for carrying out the purchase; which cause being removed, voluntary consent fails. Hence it is that the civil laws in fact rescind contracts to whose entering upon guile or error gave cause. If losses follow, the party which circumvented the other contracting party is bound to make good the same. Whether therefore the contract be of strict right or of good faith, they are altogether null when guile or error is the chief cause of celebrating them. I do not deny, nevertheless, that in contracts of strict right one must adhere more severely to the formulas of words and expressions: for they are therefore called of strict right, because one must stand by the rigour of the words. But natural equity, which is the soul of every contract, ought always to be regarded.

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.