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Conferences on the Virtues

By Fr. Bruno Cocuzzi, ocd

 

Number 54

 

Contracts entered into with Fear…

 

In the last conference we were speaking of the qualities of the consent required to make a contract valid and binding in conscience.  We stated, among other things that the consent had to be deliberate and free.  We saw that error and fraud keep the consent from being truly deliberate.  Now we continue by considering what keeps the consent from being truly free.  The factors that destroy that freedom are Violence and fear.

 

Violence that is physical and actual, that is, which literally forces a party to subscribe to a contract against his will, clearly makes the signing involuntary, and thus renders the contract null and void.

 

There can be instances, however, when force is not physical and actual, but is nevertheless real enough to violate the free will of a subscriber to a contract, and cause the signing to be truly “involuntary”.  This kind of violence is given the name moral force, and the most common type is called fear.

 

Fear is that trepidation of mind that is brought about by the danger of future, but imminent, harm.

 

Ordinarily, fear seldom is so great that it takes away the use of reason, although that can sometimes happen.

 

Thus, fear is grave when the imminent harm threatening is grave, whether or not the harm is absolutely grave or only relatively grave, that is “relative” to the person who experiences it.

 

Fear is slight when either the harm that is imminent is slight, or when the threatened harm is grave, but not imminent.

 

Fear can be engendered by natural causes or by free causes.  In regard to the latter, the fear may be either justly or unjustly inflicted.

 

Fear is inflicted unjustly whenever its purpose is to extort either consent to a contract or refusal to consent.  Nor does it make a difference whether the threat of harm is directed to the one who would be a party to a contract or to a person closely conjoined to that party.

 

Principles concerning Contracts entered into with Fear…

 

1.       A fear great enough to impede the clear use of reason (the kind that excuses from serious sin), renders a contract invalid because it destroys free consent.

 

2.       A fear that IS NOT unjustly caused does not render a contract invalid or rescindable UNLESS it completely takes away the use of reason.

 

As an example of this, my author cites the case of one who is in great fear of losing his life in a fire or a shipwreck, and under the influence of this fear offers to another a large sum of money to induce a rescuer to save his life.  If the offer is accepted and His life is saved, he cannot then claim that the contract (offer accepted) is void because of fear.  The fear in this case is not unjust because it is a natural fear.

 

3.       Grave fear that is unjustly inflicted (whether by a third party or by the other party to a contract) for the purpose of extorting consent suffices to render a gratuitous contract invalid because a more perfect freedom is required in this kind of contract.

 

The example of this given by my author is that of a grown son who threatens bodily harm to his father to induce the father to write him a check for a large sum of money.  The father’s mere tendering of the check to the son would constitute the offer of a gratuitous contract.  Because the threat of harm to the father renders the offer (and thus the acceptance) invalid, he could thereafter justly stop payment on the check.

 

4.       Grave fear that does not completely take away free consent (whether inflicted by a third party or by the other party to the contract for the purpose of inducing consent) does not invalidate an onerous contract, but it does render the contract rescindable.  That is because such a “consent” is the “fruit” of an unjust act.

 

Thus a “contract” to pay money to a “blackmailer” would be valid, but “rescindable” by lawful public authority.

 

However, when this kind of fear induces a party to enter a contract that is by its nature “indissoluble” (as in the case of a Sacramental Marriage), the contract would, indeed, be null and void.

 

5.       If (objectively speaking) the fear inflicted to induce consent to a contract is slight, the contract, whether gratuitous or onerous, remains valid.  But if (subjectively speaking) the fear is experienced as grave, AND the fear is the ONLY reason why the consent is given, then very likely it suffices to render gratuitous contracts invalid and onerous ones rescindable.

 

Question 3 –

 

The Object or the Matter of Contracts

 

The Matter of a Contract is generally an object of rights.  This would include anything that one could acquire a right IN or a right TO, namely some thing, some action or some omission.  However, the matter that is given, done or omitted is subject to certain conditions.  They must possess the following attributes:  1.  Possible; 2. Existing; 3. Have determinable monetary value; 4. Be in the “stream” of commerce; 5.  Determinate [specifiable and measurable]; 6.  Belong (or pertain) to one of the parties; 7.  Free of the interests or rights of others; and 8.  Decent (Latin: honestus) and licit (lawful).

1.       Possible – Because no one can be bound in conscience to give or do what is impossible, either absolutely (transcends all native human power) or relatively (transcends the native power of a given person).

(I find it somewhat amusing that my textbook cites, as an example of something that is absolutely impossible, the crossing over to the moon).

           

2.       Existing – this means either actually in hope.  With regard to the latter, as in the case of business dealings in “futures”, to exist in hope means that there is every reasonable expectation that the items or items in question will come into being, or at least “ripen” into being within the foreseeable future.

 

3.      Capable of being Priced – The price of course is determined by how useful it is to people, and therefore based upon how great a demand there is for it.

 

Therefore, what is of no value cannot become the object or the matter of a contract.  Contracts about things that have no value, whether gratuitous or onerous are thus null and void.

 

Similarly, if something exceeds all estimable temporal value, as do spiritual “things” and benefits, then contracts about these would also be null and void.

 

We are all familiar with the example of Simon the Magician whom we meet in the Acts of the Apostles.  He wanted to buy with money the spiritual power to work miracles and confer the Holy Spirit possessed by St. Peter.  The Prince of Apostles vigorously denounced him.  Thus, actually to attempt to buy or sell spiritual blessings, powers or graces is thus called the Sin of Simony.

 

There is nothing wrong, however, with giving spiritual blessings (e.g., a spiritual bouquet) to another as a gift, nor with exchanging gifts of spiritual blessings.  The latter happens in the case of Mass Stipends.  The one who requests that a Mass be offered for his intention makes a free gift of a certain sum of money.  The priest then, as a free gift, offers Mass for the intention of the donor.

 

4.       Placed in the stream of commerce – This means that it is capable of being owned, and for which there is always a demand for it, and, also, that someone can always be found who is willing to sell or trade it.

 

My author excludes from under this heading roads and parks and other things in the public domain.  He also excludes “air” and the ocean.

 

But there are such things as the “air rights” over a specific plot of ground, and “rights” to grow and harvest in certain tracts of the ocean bed.

 

So what this means is that no one can “possess and control” the atmosphere, nor can one “possess and control an entire ocean.

 

5.       Determinate (specifiable and measurable) – By specifiable is meant “identifiable”, since no one can buy or sell what cannot be specifically designated.  “Measurable” would be a sub-class of “specifiable”.  Contracts about those things that can neither be identified nor quantified would be illusory for being uncertain.

 

Some things, though mathematically immeasurable (practically impossible to estimate or calculate the quantity – to distinguish it from immeasurable or infinite), are nevertheless morally measurable, such as this particular pile of wood or all the apples in this orchard.

 

6.       Belongs or pertains to one of the parties – Since contracts are concerned with transferring “rights in” and “rights to”, rights over the objects and matter of the contract must be invested in one of the parties.  In other words, I cannot sell what is not mine, like the Brooklyn Bridge, nor can I buy it from somebody else.

 

7.      Free of any Rights or Interests of Others – For example, one of the joint owners of property cannot sell it by himself alone.  The other joint owner(s) must join in the deed.  Included under this heading is the situation where goods or services are already “owed” to a specific person:  A merchant cannot sell to B the goods that A has already paid for.  Included also are the performance of duties and functions “owed” in virtue of an office held:  A Judge, for example, cannot enter into a contract to hand down, for a sum certain, a just judgment or sentence.

 

8.      Decent and lawful – This means, of course, that no one can enter into a contract to do or give something that is sinful or illegal for a sum of money, nor contract with another to do or provide, for money, what is sinful or illegal.

 

It seems to me that such contracts occur quite often in human society (e.g., a contract to provide illegal substances, or to buy and sell contraband, or a contract made with a “hit-man”).  Because they are null and void, they are “rescindable” in a court of law before fulfillment, and punishable in Criminal Court after the fact.

 

 

 

 

 

 

 

 

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