FEAR. - From the Latin timor, it is the trepidation or disturbance of the mind because of an impending danger or an imminent evil.
It can be considered either as a passion or movement of the sensitive part, with some organic commotion (and then it is more properly called timor, fear), or as a movement that influences the deliberative process of the will, independently of passionate perturbation (metus, fear). It is in this latter sense that fear is taken by theologians and canonists, who, as regards its effects in the sensitive part, refer to the treatment of the passions (v.).
I. DIVISION
1) Considering whether or not the motion of apprehension is prior in relation to the act, fear is antecedent, if it precedes and generates the act, or concomitant, if it merely accompanies it; in the first case the act is performed because of the fear, in the second, instead, with the fear. 2) Considering the intensity of the influence, one speaks of grave fear, when, given the magnitude of the harm that is feared or may come, the mind of the one acting is strongly disturbed; and of light fear, when the disturbance is of slight magnitude, whether because the evil that is feared is not grave, or because the danger is not imminent. The gravity of the fear can be absolute or relative. It is absolute, when the fear is such as to take hold ordinarily on everyone (cadit in virum constantem), because the evil that is feared is grave (imprisonment, exile, loss of a great part of one's goods, death, mutilation, etc.), and at the same time because it will come about with near certainty or with great probability. The gravity is relative, if the commotion it produces is not so much attributable to the nature of the object or of the evil that is feared, as to the age, the temperament or the condition of the person himself who fears. To light fear is reduced reverential fear, with which a subject fears the displeasure, the offense or the indignation of parents, of a superior or of those in general to whom respect is owed. This fear is generally light; if, however, the offense and the indignation feared are grave in themselves or because of the circumstances that accompany it (quarrels, reproaches, importunate entreaties and arguments), this fear too is held to be grave. If, then, a grave harm is feared, such as the loss of an inheritance, expulsion from the family, blows, etc., the fear is simply grave. In the external forum, however, reverential fear is presumed to be light; but this presumption can be overcome by the reality of the facts. 3) Considering the source or the cause of the fear, a distinction is made between fear proceeding from a necessary cause, whether intrinsic (for example, illness) or extrinsic (shipwreck, fire), and that proceeding instead from a free created cause (man). The latter is subdivided into just and unjust. The injustice can proceed from the fact that the one who threatens has no right to do so (unjust quoad substantiam) or from the fact that, although he has a right to resent and to threaten, he exceeds in the manner of doing so (unjust quoad modum).
II. INFLUENCE OF FEAR ON THE FREE ACT AND ON THE MORALITY OF THE ACT
1) On t. as a passion (fear), what has been said when speaking of the passions holds (v.). To sum up briefly, t. as a passion diminishes the freedom of acts, and therefore their morality. Indeed, sometimes, though rarely, it can remove both entirely (panic). 2) In t. as a spiritual movement, a distinction must be made: a) in one who acts with t. (concomitant t.), the act is more voluntary, because it demonstrates a will so strong as to conquer and overcome even the t. This act, because it has greater voluntariness, also has greater morality. b) In one who acts out of t. (antecedent t.), the act is for the most part not purely voluntary, but mixed of voluntary and involuntary: the will, indeed, driven by t., after having considered all the circumstances, effectively wills the act (act simpliciter voluntary), but at the same time retains some repugnance to the act, which otherwise would not be willed (involuntary secundum quid); consequently the morality of the act is diminished.
III. FEAR AND THE JURIDICAL VALUE OF ACTS
As a general principle, acts performed under the goad of fear are still willed and therefore voidable, but not null.
1) In canon law. - Acts performed through grave fear unjustly inflicted or through deceit are valid, unless the law provides otherwise, but in accordance with cann. 1684-89 they can be declared rescinded by a sentence of the judge, brought about by an action of a party or ex officio (can. 103 § 2). However, certain acts that require particular consideration, acts that give rise to a stable commitment, perhaps lasting for a whole lifetime, cannot be sufficiently protected by mere rescindability (which at times is not even possible), and therefore in canon law they are guaranteed by the absolute nullity of the act, established by positive law, setting aside therefore the validity or otherwise that the act may have in pure natural law.
The following are considered entirely invalid: the resignation of an office or benefice made through grave and unjust fear (can. 185), marriage contracted through grave fear, inflicted from outside and unjustly (can. 1087 § 1, v. below), a vow made under grave and unjust fear (can. 1307 § 3), admission to the novitiate and any religious profession vitiated by grave fear (can. 542, n. 1, 572 § 1), the assistance at marriage of the Ordinary or the parish priest, compelled by grave fear (can. 1095 § 1, n. 3), the remission of a penalty extorted by grave fear (can. 2238), suffrage in an election, if the elector has been compelled by grave fear. Sacred ordination, received with fear, is to be considered valid, but if it is afterwards not ratified, the ordained man contracts no obligation of celibacy and of the canonical hours, and he can be reduced to the lay state by the judge (can. 214 § 1; v. ORDER).
2) In Italian law. - Rather than fear, violence (v.) is considered as a defect of consent, meaning however not absolute physical violence, but moral violence that disturbs the formative process of the will and that is the cause of absolutely grave fear (mere reverential fear has no relevance: art. 1437).
Violence is always a cause of annulment (not of nullity) in contracts, provided that the conditions required by law exist (art. 1434). It is necessary first of all that there exist an active subject (who need not necessarily be the other party, but can also be a third party: art. 1434), who exercises a threat with a precise purpose. The threat must be of such a nature as to make an impression upon a sensible person and to make that person fear to expose himself and his own to an unjust and notable evil (art. 1435).
The harm, in order to be unjust, must injure a right (the threat of the exercise of a right can be unjust only if directed at obtaining unjust effects: art. 1438); in order to be notable, it must be more grave than that which one would incur through the act to which one is driven. The gravity of the evil must however be assessed according to two elements: an objective element (the harm in itself) and a subjective element (the assessment that is made of the harm by the suffering subject). Hence the necessity of taking into account the age, sex, etc. of the individual (art. 1435). The threatened evil is relevant whether it is directed against the person whom one wishes to compel, and his goods, or whether it is directed against the spouse, an ascendant or descendant and their goods (art. 1436). If it is directed at other persons, it is for the judge to assess the circumstances. Parallel to the voidability of contracts through violence is the challenge of the acceptance of an inheritance (art. 482), of the renunciation of the same (art. 526), of a testamentary disposition (art. 624), of the division of an inheritance (art. 761, 768), when they are the effect of violence.
IV. FEAR AS A DEFECT OF CONSENT IN MARRIAGE
Fear as a defect of consent in marriage deserves particular mention because of the multiplicity of problems it has raised in the dogmatics of law and in jurisprudence.
1) In canon law. — "A marriage contracted under the influence of violence or grave fear, induced from outside, unjustly, such that to be freed from it the contracting party is compelled to choose marriage, is also invalid. No other fear, even if it causes the contract, entails the nullity of the marriage" (can. 1087).
From the preceding canon it is deduced that for the nullification of matrimonial consent on account of fear four conditions are required: a) The fear must be grave. Here too the two elements to be taken into consideration are: the notable harm and its imminence. In the external forum, in order to admit as proven the nullity of a marriage on account of fear, the subjective dispositions of the person who suffered the fear must be observed, but nevertheless consideration of the objective gravity of the threatened evil is also required. In order for the gravity to be established, the judge must look to the person who threatens (whether irascible, violent, of great authority, etc.), to the person who suffers it (whether timid, weak, docile, etc.), and to the threats or to the harm itself that is feared. In doubt, moreover, in the external forum, one must stand for the validity of the marriage, which enjoys the favor of the law (can. 1014). Reverential fear is also invalidating when it is qualified. b) The fear must be induced from outside. That fear is called external which comes from a free cause, that is, from a human person, whether this be the other contracting party or a third party. c) The fear must be inflicted unjustly. This occurs whenever either the one who suffers the fear has no obligation to marry, or the one who inspires the fear has no right to inflict the evil he threatens. d) The fear must be such that, to be freed from it, the threatened person is compelled to choose marriage. The more common opinion holds that it is required that the fear be directly inflicted in order to extort consent. This opinion is supported by jurisprudence and today also by the norm expressly introduced into the Eastern Code (can. 78 § 1). If the four conditions are lacking, what the same can. 1087 § 2 prescribes holds: "No other fear, even if it is the cause of the contract, entails the nullity of the marriage. A marriage null on account of fear can be impugned not only by the one who suffered it, but also by the other spouse."
Investigating the foundation of the nullification of matrimonial consent on account of fear, it is debated whether fear dissolves a marriage only by ecclesiastical law (Feye, Gasparri) or also by natural law (St. Thomas, St. Raymond of Peñafort, Cappello, Vidal, Prümmer). It is clear to all, however, that if by fear the deliberation and the essential freedom of the moral act are exceptionally taken away, the marriage is nullified by the law of nature, because consent is lacking.
The question is not purely speculative, but also has its practical consequences. Thus, given the controversy, the validity of a marriage contracted under the influence of fear by unbelievers is to be considered doubtful, whenever no invalidating civil impediment exists. Naturally, in individual cases the principle must be applied that one must stand for the validity of the act (can. 1014), save for the privilege of the faith (can. 1127), until the existence of invalidating fear is demonstrated. In a marriage between a believer and an unbeliever, the marriage is always invalid, whether the victim of the fear is the believer, or the unbeliever has suffered the fear. In the first case, in fact, the Church renders the consent of the believer null, and in the second case she renders the believer incapable of contracting such a marriage for the protection of liberty. Moreover, given always the doubt concerning the source of the impediment, the Church never dispenses from the defect of consent on account of fear, because her power is doubtful.
2) In Italian law. — Italian civil law, reducing the category of matrimonial invalidity (for so-called civil marriage, not for concordat marriage, which is governed by canon law) to the general distinctions of the juridical act, considers moral violence as a cause of annulment, when the usual presuppositions exist. The action is exclusive in favor of the spouse whose consent was extorted by violence, and it can no longer be brought after one month of cohabitation from the cessation of the influence of the violence (art. 122). In the French Civil Code the marriage is invalid and can be impugned within 6 months (art. 180-81); in the German Civil Code (§ 1333) the marriage is voidable, but the judge's sentence has retroactive force.
V. FEAR AS A DEFECT OF CONSENT IN BETROTHALS
In relation to betrothals (v.) — always in canon law (Italian law does not deal with them) — grave fear (absolute or relative), unjustly inflicted in order to extort consent, is held by some to be only a ground for rescission, in accordance with can. 103 § 2. But the opinion that holds it to be a ground of nullity comes closer to the truth, arguing a maiori ad minus from the invalidity of matrimonial consent for the same cause. If the fear is slight, but unjust and dare causam contractui, the betrothals are valid, but rescindable by the party who suffered the fear. If the fear, though grave, is ab intrinseco or even ab extrinseco, but justly inflicted, the betrothals are valid.
If the fear is unjust, but not directed at extorting consent, even then the betrothals should be considered null: they are certainly rescindable.
VI. FEAR AS AN EXCUSING CAUSE FROM OBSERVANCE OF THE LAWS
Positive laws, whether divine or human, generally do not oblige under grave fear, that is, with grave inconvenience, since it is presumed that in such circumstances the legislator does not wish to exact the observance of his law. When, however, a positive law sanctions a prescription of natural law, or when the violation of the law would bring a graver harm than the inconvenience caused by its observance, the obligation remains. In canon law these principles find their application also in the external forum, especially in matters of crime and penalties. Grave fear, even only relatively grave, necessity, and grave inconvenience for the most part remove the crime altogether, if the matter concerns purely ecclesiastical laws (can. 2203 § 2). If, however, the act is intrinsically evil or resolves into contempt for the faith or for ecclesiastical authority or into harm to souls, the causes mentioned above diminish but do not remove the imputability of the crime (ibid. § 3).
It is in relation to penalties: "If the law has the words: praesumpserit, ausus fuerit, scienter, studiose, temerarie, consulto egerit and the like, which require full knowledge and deliberation, any diminution of imputability whether on the part of the intellect or of the will (and therefore also fear) exempts from latae sententiae penalties" (can. 2220 § 2). For ferendae sententiae penalties it is for the one who must apply them to regulate himself accordingly. "If the law does not have those words... grave fear does not at all exempt from latae sententiae penalties, if the crime resolves into contempt for the faith and for ecclesiastical authority or into public harm to souls" (ibid. § 3, n. 3; v. CENSURA).
In the Italian Penal Code, fear is not given particular consideration and falls among the generic attenuating circumstances (art. 62).