Catholic Encyclopedia (1913)/Fear (in Canon Law)

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(IN CANON LAW.)

A mental disturbance caused by the perception of instant or future danger. Since fear, in greater or less degree, diminishes freedom of action, contracts entered into through fear may be judged invalid; similarly fear sometimes excuses from the application of the law in a particular case; it also excuses from the penalty attached to an act contrary to the law. The cause of fear is found in oneself or in a natural cause (intrinsic fear) or it is found in another person (extrinsic fear). Fear may be grave, such for instance as would influence a steadfast man, or it may be slight, such as would affect a person of weak will. In order that fear may be considered grave certain conditions are requisite: the fear must be grave in itself, and not merely in the estimation of the person fearing; it must be based on a reasonable foundation; the threats must be possible of execution; the execution of the threats must be inevitable. Fear, again, is either just or unjust, according to the justness or otherwise of the reasons which lead to the use of fear as a compelling force. Reverential fear is that which may exist between Superiors and their subjects. Grave fear diminishes willpower but cannot be said to totally take it away, except in some very exceptional cases. Slight fear (metus levis) is not considered even to diminish the will power, hence the legal expression "Foolish fear is not a just excuse".

The following cases may be taken as examples to illustrate the manner in which fear affects contracts, marriage, vows, etc., made under its influence. Grave fear excuses from the law and the censure attached thereto, if the law is ecclesiastical and if its non-observance will not militate against the public good, the Faith, or the authority of the Church; but if there is question of the natural law, fear excuses only from the censure (Commentators on Decretals, tit. "De his quae vi metusve causâ fiunt"; Schmalzgrueber tit. "De sent. excomm." n. 79). Fear that is grave extrinsic, unjust, and inflicted with a view to forcing consent is nullifies a marriage contract, but not if the fear be only intrinsic. The burden of proof lies with the person who claims to have acted through fear. Reverential fear, if it be also extrinsic, i.e., accompanied by blows, threats, or strong entreaty, and aimed at extorting consent, will also invalidate marriage. Qualified as just stated, fear is a diriment impediment of marriage when coupled with violence or threats (vis et metus). For further details see any manual of Canon Law e.g. Santi-Leitner, "Praelect. Jur. Can." (Ratisbon, 1905) IV, 56-59; Heiner "Kathol. Eherecht" (Muster, 1905), 82-46; also Ploch, "De Matr. vi ac metu contracto" (1853). For the history of this impediment see Esmein "Le mariage en droit canonique" (Paris, 1891), I, 309; II, 252; also Freisen, "Gesch. des kanon. Eherechts etc." (Tübingen, 1888).

Resignation of office extorted by unjust fear is generally considered to be valid, but may be rescinded unless the resignation has been confirmed by oath. On the other hand, if fear has been justly brought to bear upon a person, the resignation holds good (S. Cong. Conc. 24 April, 1880). Ordination received under grave and unjust fear is valid, but the obligations of the order are not contracted unless there is subsequent spontaneous acceptance of the obligation (Sanchez, De matrim.", VII, Disp. xxix, n. 5). In each cases if freedom is desired the Holy See should be petitioned for a dispensation (S. Cong. Conc. 13 Aug., 1870). The same holds good with regard to the vows of religious profession, and all other vows made under the influence of fear which is grave, extrinsic, unjust or reverential (see Vow). In English law, on proof of force and fear, the law restores the parties to the contract to the position in which they were before it was entered into, and will find the constraining party able to damages as reparation for any injury done to the party constrained. The maxim of the common law that "What otherwise would be good and just, if sought by force or fraud becomes bad and unjust."

See CONSENT; CONTRACT; VIOLENCE.

David Dunford.