The Qualities of Consent

530. In order that a contract be valid by natural law, consent must be:

True, or internal, not only external or fictitious; for the transfer of right, which is made through a contract, and the obligation which follows from it, proceed from the will of the contracting party; therefore when this is lacking there can be no contract.

a. Fictitious consent is had when someone indeed contracts externally, yet interiorly lacks the mind of contracting, or, what comes to the same thing, the mind of obligating himself: for the mind of obligating oneself coheres by necessary nexus with the will of contracting. The will of fulfilling the contract is to be distinguished from the will of contracting and obligating oneself.

b. He who fictitiously consents, or who contracts without the mind of obligating himself, enters no contract; therefore by reason of the contract he is bound to nothing. But if one feigning consent and deceiving another by it has inflicted damage on him, he is bound to repair this damage, and if he cannot repair it otherwise, he is bound to fulfill what he fictitiously promised.

c. He who enters a contract with the will of contracting, but with the will of not fulfilling the contract, contracts validly and therefore takes on a true obligation and is bound by force of the contract to fulfill it.

d. Fiction in contracting is not presumed, but must be proved. Yet if fiction happens in those circumstances in which it could easily be detected by the other contracting party, in each forum the other is presumed to have sufficiently detected the fiction, and therefore he who fictitiously consents cannot be obligated to compensation: for no injury is done to one knowing and willing.

531. Free and deliberate, that is, furnished with that advertence, deliberation, and liberty which are required for a perfectly human act, whether the contract concerns grave matter or light matter: for the contracting party imposes on himself a true and perfect obligation of justice; but this can proceed only from a perfectly human act.

Therefore a contract entered with half-deliberate consent, even of only one contracting party, is null. And this is the reason why the half-witted, half-drunk, half-asleep, etc., cannot enter a valid contract, in the same way as the same persons cannot emit a valid vow, even one obliging only under light obligation.

532. Mutual, that is, furnished by each contracting party concerning the same object: for one cannot by his own will acquire a right for another and obligate him to himself unless he himself wishes and consents. Therefore a unilateral contract is not perfected unless the other accepts the offered right; but a bilateral contract is not perfected unless each accepts the offered right.

a. It is not required that the consent of each contracting party be elicited and expressed at the same time, but it suffices that the consent of one has not been revoked, but virtually or morally still endures when the other elicits and expresses his consent. Wherefore that the consent of contracting parties must be simultaneous signifies nothing else than that the consent of one must be furnished as long as the consent of the other endures.

b. He who offers a contract to another can by natural law also determine the time within which the other must consent to the contract, and therefore can determine how long his consent virtually endures. Wherefore if the other consents within this time, the contract is valid; but if he consents after this time, the contract has no force because of the defect of mutual consent. Likewise he who offered a contract to another can by natural law withdraw from his offer as long as the other has not yet given consent. But to exclude disputes which could arise from this source concerning the value of contracts, positive laws are accustomed to establish how long the consent of him who offers a contract to another is considered to endure, and how long the one offering a contract can withdraw from his offer. Therefore civil codes must be consulted concerning this matter.¹

c. If a contract is made through a procurator, the contract is essentially perfected when the procurator consents, even if the contracting party himself has not yet consented: for the consent of the procurator is morally considered to be the consent of the contracting party himself.

¹ C.A. Section 862; Commercial Code 318-322; C.G. Sections 147, 149.

533. Manifested by a sensible sign, so that it can be perceived and accepted by the other: for acts which pertain to the mutual commerce of men must be manifested by external signs. Hence if someone offers a contract to another, it is not perfected when the other internally consents, but when his consent is externally manifested.

a. By natural law, for the value of a contract, words are not required, whether spoken by mouth or written, but any external sign which is apt for expressing consent suffices; yet positive laws, to forestall disputes, sometimes command that contracts be perfected by words or writing, so that contracts entered without these signs are either invalid or at least do not produce a civil obligation.

b. Whether the silence of him to whom a contract is offered is a sufficient sign of consent. alpha. Silence is held as consent if the contract is favorable to the one silent, as in a promise or donation: for acceptance of a favor is deservedly presumed and, when even a very slight sign accedes, becomes certain. beta. Silence is held as consent also in onerous contracts if the one silent can easily contradict and, if he does not consent, must manifest dissent. gamma. But silence in onerous contracts is not held as consent if the one silent either cannot easily contradict or is not bound to express dissent.

At what moment of time contracts among the absent are perfected; in other words: whether for the value of a contract it is required that the consent of the one accepting be intimated to the one offering, or whether the contract is perfected at the time at which the one accepting externally manifests his consent by a sign, before this manifestation becomes known to the one offering.

a. In unilateral contracts it is not required that acceptance be manifested to the one offering; therefore a promise or donation has force when the other has accepted it, even if the acceptance has not yet become known to the one promising or giving: for besides acceptance of the offered right, nothing else is required by natural law for perfecting these contracts. Yet positive laws sometimes demand that acceptance must be intimated to the other party.

b. In bilateral contracts it is more probable that it is necessary that the acceptance of the other become known to the one offering: for just as the consent of the one offering does not oblige him unless it has been manifested to the other contracting party, so of itself the consent of the one accepting does not oblige him unless it is known to the one offering, because in bilateral contracts the one accepting also offers something on his part. Therefore the contract is perfected at that moment when the acceptance of the other becomes known to the one offering. Hence if a contract is made among the absent by letters, the contract is more probably perfected when the consent of the one accepting becomes known to the one offering from the letters of reply. Yet the contracting parties can establish that the contract have force when the one accepting consents, before the consent becomes known to the one offering.¹ Positive laws likewise sometimes establish that a contract is already perfected by acceptance alone.

¹ Cf. Lugo, disp. 22, n. 26 ss.; Marres l. 3, n. 53; Vermeersch n. 316 ss.

Consent must be internal, fully deliberated, external and intimated to the other party, and indeed by the contracting party or in his name, and finally simultaneous. It is said:

I. Internal. If it is not internal, consent or volition is lacking in reality. Therefore a fictitious contract is invalid, that is, one entered into externally but without the mind of contracting (St. Alphonsus, III, 709; VI, 832). One who by contracting fictitiously has inflicted damage on the other party is bound to repair it, even, if it cannot otherwise be repaired, by now truly contracting (St. Alphonsus, III, 709; VI, 832, 833).

Corollary I. One who wills to contract as others are accustomed to do truly contracts, even if he merely does not know that an obligation arises, because he implicitly wills the obligation. The same seems to have to be said of him who wills to contract as others are accustomed to do, although he judges that an obligation does not arise, because by willing the contract he also seems implicitly to will the obligation, which he does not explicitly exclude.

Corollary II. One who wills to contract, but has the mind of not obliging himself, seems not to contract, because he excludes that without which a contract cannot exist; hence those two volitions destroy each other. Indeed even the other volition, as more particular, seems to prevail over the former (St. Alphonsus, III, 201).

Corollary III. One who wills to contract validly contracts, even if he has the mind of not fulfilling the obligation; for the said volitions, as regarding diverse and separable objects, do not exclude each other.

II. Fully deliberated; for only an act of this kind can beget obligation and the acquisition of a right.

III. External; namely insofar as it must be intimated to the other party.

IV. Intimated to the other party, as follows:

1. The consent of the one offering the contract must be intimated to the other party. For the offerer cannot be bound with respect to the other party unless he has offered to the other party that by which he binds himself, that is, his own consent. But consent is offered to the other party through intimation.

2. The consent of the one accepting the contract must be intimated to the other party, as will be explained:

a) If there is question of an onerous contract, the answer is affirmative. For the acceptor, equally as the offerer, cannot be bound with respect to the other party unless he himself has offered to the other party that by which he binds himself, that is, his own consent; but consent is offered through intimation.

b) If there is question of a gratuitous contract, the answer is negative, because in the case the acceptor, with respect to the other party, is not bound or burdened by any obligation, so that the reason set forth above does not hold in the case.

Corollary. The offerer and the acceptor of a contract, for example of buying-selling, per se can revoke consent - for example consent given by letters - by a telegraphic message, as long as the consent has not yet become known to the counterparty. I said per se; for law, custom, or the manifest will of the offerer can bring it about that the offerer can no longer revoke consent without injury after it has become known to the counterparty; for example, if someone offers and transmits to another a sum of money for buying a thing, he sufficiently indicates that he renounces the right of revoking consent.

V. Intimated to the other party by the contracting party or in his name; namely insofar as it must be intimated. The reason is that only the author of the consent can offer to the other party that by which he binds himself, that is, consent.

VI. Simultaneous with the other, because otherwise they do not truly come together into one. Nevertheless it suffices that one consents while the consent of the other endures.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It is asked: Is the aforesaid marriage valid?

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

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

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

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

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

772. • Consent must be external, internal, mutual, free, and deliberate.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

³⁸ Theol. mor. l. 3, n. 710.

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

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

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

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

c) coerced consent, extorted by force or fear.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

S. Th., Suppl. q. 45, a. 2-4; q. 46; q. 47, a. 5.

799. Consent unto matrimony must be internal, externally manifested, and mutual. For thus it is essentially required for every contract (II, n. 456). It must be:

1° Internal, because it is an act of one's own will; but it is required that it be:

a) True, namely, elicited from the intention of entering matrimony, or of mutually handing over and accepting dominion over the body: for no one transfers dominion of a thing which he has, nor imposes a grave obligation on himself, unless he wills it, just as no one can validly minister a sacrament, or an adult receive it, unless he has intended it; whence a fictitious, simulated, jocose consent is not valid.

b) Perfectly deliberate: for no one is judged to assume a grave obligation except with perfect knowledge and full advertence; nor does unconscious consent suffice.

c) Perfectly voluntary and free: no one intends to undertake a grave obligation for the whole of life except by directly voluntary and fully free consent; therefore coerced and extorted consent does not suffice.

2° Externally manifested and intimated, both insofar as matrimony is a sacrament which ought to be a sensible sign, and insofar as it is a contract entered into among men, which cannot be made unless it is externally expressed by a human and sensible sign.

3° Mutual, namely, given and accepted by each party, and morally simultaneous, so that the consent of one not retracted is joined by the consent of the other; otherwise they would not consent unto one thing.

800. Consent regularly ought to be expressed by words and personally pronounced by the contracting parties themselves; yet it is valid per se if it is given by sign or nod or writing, by the aid of telegraph or telephone, or through a procurator or interpreter, unless positive law invalidates it.

For marriages in which at least one party is faithful, the prescriptions of canon law are valid.

1° "For contracting matrimony validly it is necessary that the contracting parties be present either by themselves or through a procurator," can. 1088, § 1; therefore it is not validly entered by letter or messenger between absent persons. The prescription of this canon is applied also to marriages of baptized non-Catholics (Resp. C. S. Officii, June 26, 1949).

2° "Matrimony can also be contracted through an interpreter" (can. 1090).

3° "With diocesan statutes superadded remaining firm, in order that matrimony be validly entered through a procurator, there is required a special mandate for contracting with a certain person, subscribed by the mandator and either by the parish priest or Ordinary of the place in which the mandate is made, or by a priest delegated by either of them, or by at least two witnesses. But if the mandator does not know how to write, let this be noted in the mandate itself, and let another witness be added who also signs the writing himself; otherwise the mandate is invalid. And if, before the procurator contracts in the name of the mandator, the latter has revoked the mandate or has fallen into insanity, the matrimony is invalid, although either the procurator or the other contracting party was ignorant of these things. But in order that the matrimony be valid, the procurator must discharge his office personally"¹ (can. 1089).

¹ Let it be noted in the case of a mandate: 1° the name and surname of the person with whom it is necessary to contract must be so determined that he or she cannot be confused with another person; 2° indications of day, month, and year seem to be required for the validity of the mandate (can. 1659, § 1 and 1894, 4°); 3° that the act of the mandatary be valid, it suffices that at the time when he contracts the will of the mandator be present, although previously it had not existed or had been secretly revoked.

According to the response of the Commission for the Interpretation of the Code, May 31, 1948, the mandator himself must designate the procurator individually, and it is not valid to commit the designation of the same to another.

1° "Let the spouses express matrimonial consent by words; nor is it lawful for them to employ equivalent signs if they are able to speak" (can. 1088, § 2).

2° "When matrimony is to be contracted through a procurator or through an interpreter, let the parish priest not assist unless there is a just cause and it is in no way lawful to doubt the authenticity of the mandate or the faith of the interpreter, after the license of the Ordinary has been obtained, if time allows" (can. 1091).

801. Consent can be conditioned, i.e., given under a suspensive condition on whose existence the contract depends and to which consent is bound, but not under a resolutory condition, since matrimony is indissoluble. Now, conformably to can. 1092:

A. Matrimony entered under a condition concerning the present or concerning the past is immediately valid if the condition is fulfilled, or invalid if it is not fulfilled.

B. Entered under a condition concerning the future:

1° If this is against the substance of matrimony, it is invalid.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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