FRODE. - I. NOTION
The word f. (from fraus, deception, cunning, malice) generally means any artifice or trick capable of leading others into error.
Primitive Roman law, concerned only with the external fact, used this term simply to indicate a prejudice, wrong, or harm inflicted on another, regardless of the intention to cause harm (cf. Law of the Twelve Tables, VIII, 21). Later, account also began to be taken of the psychological element, so that the word f. came to denote every device employed to deceive others for one’s own advantage. Thus, in laws, decrees, glosses, and legal texts, f. and dolus (v.) became synonyms, with the sole difference that dolus is a general term signifying deception carried out either by words or by deeds, whereas f. is a specific term indicating deception by means of actions (Summa Theol., 2ᵃ-2ᵃc, q. 55, a. 5). In civil matters, on the other hand, dolus consists in deceiving the persons with whom one contracts, while f. consists in violating the laws by deceiving magistrates or third parties through the form of artifices (Italian Civil Code, arts. 1439, 1344). The ancient jurists distinguished between excusable f. and evil f. The former, called dolus bonus, or defensive f., consists in employing dexterity and skill against violence or injustice. This is a kind of legitimate self-defence and includes the so-called pious frauds, to which ecclesiastical institutions, deprived of juridical personality by the subversive laws, resorted before the Lateran Concordat. The latter, dolus malus, or offensive and unjust f., consists in resorting to means contrary to honesty in order to deceive others for one’s own profit or that of third parties. This is f. properly so called.
II. F. IN CONTRACTS. - According to natural law, f. affects contracts only insofar as it causes error; only then does it at least give rise to the obligation to repair the damage. Therefore, if the error caused by the f. of one of the two parties is substantial, the contract is invalid; if it is accidental and antecedent, the contract, provided that it is rescindable, may be rescinded by judicial sentence, at the request of the injured party; if the accidental and antecedent error was caused by the f. of an outsider, without the knowledge of either contracting party, the contract, since no injury has occurred by one party against the other, cannot be rescinded. In every case, the author of the f. bears the obligation to repair the damage caused unjustly to whichever of the contracting parties has suffered II. This follows from the principle already enunciated in the Decretals of Gregory IX: Fraus et dolus alicui patrocinari non debent (16, X, I, 3).
The CIC expressly declares certain acts and contracts of special importance null when determined by f., such as voting in elections (can. 169), resignation from ecclesiastical offices (can. 185), admission to the novitiate (can. 542, 1ᵒ), and religious profession (can. 572); against f. it admits an action or plea for: a) rescission against rescindable acts and contracts (cann. 103 § 2, 1684); b) nullity against null acts and contracts (cann. 169, 185, 542, 572, 1679); c) revocation of the unlawful alienation of ecclesiastical property (can. 1534).
III. F. IN MERCHANDISE. - This is the cunning of which the merchant is guilty when he infringes the rights of purchasers by supplying them with a smaller quantity of goods through false weights, or with goods of inferior quality, or by paying them with counterfeit money. In this sense f. theft (v.) properly
so called, and in this special form it is illicit because it combines the character of theft and of lying, from which it is difficult to protect oneself, since it is the weapon used by the crafty against the simple in the most common and necessary relations of social life.
IV. F. DURING WAR. - This consists in resorting to stratagems or false operations necessary or useful for victory. In a just war it is lawful to resort to such means, provided that they do not conflict with natural law, international agreements, or the law of nations. Consequently, everything foreseeable is considered permissible, such as a simulated retreat, a feigned attack, the use of false signals, discovering the enemy’s plans, etc.; treachery, violations of agreements, and, in general, f. in no way foreseeable are not permitted, such as bombing cities declared open, killing the innocent, extracting secrets by violent and unjust means, poisoning drinking water, etc.
V. LAW. - In addition to f. against persons and against justice, moralists, like the ancient jurists and the legal scholars of various modern nations, also consider the case of f. against the law. This occurs when actions are performed with the precise purpose either of evading the authority of the law or at least of placing oneself in a position where one cannot observe II. Thus, for example, one is said to act «in fraudem legis» who, having committed sins reserved in his diocese, goes elsewhere to escape the law of reservation; or who, in order to be able to declare himself dispensed from the law of fasting on a day when it is in force, undertakes without reason work which in itself suffices to cause exemption from fasting. In the first case there is nothing wrong, because the law binds one only so long as one remains subject to it, and, moreover, it does not prohibit withdrawing from its authority (can. 900, 3ᵃ). In the second case, however, a true transgression is committed, because the intention is explicitly to violate the law while remaining subject to II. It is one thing to act in order to cease being under the law, and another to place oneself deliberately in the impossibility of observing II.