Fear

TIMORE.—From the Latin timor, it is the trepidation or disturbance of the mind caused by an impending danger or imminent evil.

It may be understood either as a passion or movement of the sensitive part, accompanied by some organic agitation (and is then more properly called timor, fear), or as a movement that influences the deliberative process of the will, independently of passionate disturbance (metus, t.). It is in this latter sense that t. is understood by theologians and canonists, who, with regard to its effects in the sensitive part, refer to the treatment of the passions (v.).

I. DIVISION

1) With regard to the priority or otherwise of the apprehensive movement in relation to the act, fear is antecedent when it precedes and generates the act, or concomitant when it merely accompanies it; in the first case the act is performed because of fear, whereas in the second it is performed with fear. 2) With regard to the intensity of its influence, one speaks of grave fear when, given the extent of the harm that is feared or may occur, the mind of the person acting is greatly disturbed; and of slight fear when the disturbance is minor, either because the evil feared is not grave or because the danger is not imminent. The gravity of fear may be absolute or relative. It is absolute when the fear is such as ordinarily to affect everyone (cadit in virum constantem), because the evil feared is grave (imprisonment, exile, the loss of a large part of one’s goods, death, mutilation, etc.), and at the same time because it will occur with near certainty or great probability. The gravity is relative if the emotion it produces is attributable less to the nature of the object or of the evil feared than to the age, character, or condition of the person who is afraid. Reverential fear falls under slight fear; by this a subject fears the displeasure, offense, or indignation of parents, a superior, or those in general to whom respect is owed. This fear is generally slight;

if, however, the offense and indignation feared are grave in themselves or because of the circumstances accompanying them (quarrels, reproaches, importunate pleas, and discussions), this fear too is held to be grave. If, moreover, a grave harm is feared, such as the loss of an inheritance, expulsion from the family, beatings, etc., the fear is simply grave. In the external forum, reverential fear is nevertheless presumed to be slight; but this presumption may be overcome by the facts. 3) With regard to the source or cause of fear, a distinction is made between fear arising from a necessary cause, whether intrinsic (e.g., illness) or extrinsic (shipwreck, fire), and fear arising instead from a created free cause (a human being). The latter is divided into just and unjust. The injustice may arise from the fact that the person making the threat has no right to do so (unjust quoad substantiam), or from the fact that, although having the right to take offense and make threats, etc., that person exceeds the proper measure in doing so (unjust quoad modum).

II. INFLUENCE OF FEAR ON THE FREE ACT AND ON THE MORALITY OF THE ACT

1) Regarding fear as a passion (fear), what was said in speaking of the passions (v.) applies. To summarize briefly, fear as a passion diminishes the freedom of acts and consequently their morality. Indeed, on occasion, although rarely, it can remove both entirely (panic). 2) In fear as a spiritual movement, a distinction is necessary: a) in one who acts with fear (concomitant fear), the act is more voluntary, because it demonstrates a will so strong as to conquer and overcome even fear. Since this act has greater voluntariness, it also has greater morality. b) In one who acts out of fear (antecedent fear), the act is for the most part not purely voluntary, but a mixture of the voluntary and involuntary: the will, driven by fear, after considering all the circumstances, effectively wills the act (an act simpliciter voluntary), but at the same time retains some repugnance toward the act, which otherwise would not be willed (involuntary secundum quid); consequently, the morality of the act is diminished.

III. FEAR AND THE LEGAL VALUE OF ACTS

As a general principle, acts performed under the pressure of fear are nevertheless voluntary and therefore subject to annulment, but are not null.

1) In canon law. — Acts performed under grave fear unjustly inflicted or through deceit are valid, unless the law provides otherwise; but, in accordance with cann. 1684–89, they may be declared rescinded by judgment of the court, following an action brought by a party or ex officio (can. 103 § 2). However, certain acts requiring particular consideration—acts that give rise to a stable commitment, perhaps lasting throughout one’s life—cannot be adequately protected by mere rescindability (which is sometimes not even possible); consequently, in canon law they are safeguarded by the absolute nullity of the act, established by positive law, irrespective therefore of whether the act might be valid or not under pure natural law.

The following are considered entirely invalid: renunciation of an office or benefice made under grave and unjust fear (can. 185); marriage contracted under 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); assistance at a marriage by the Ordinary or parish priest when compelled by grave fear (can. 1095 § 1, n. 3); remission of a penalty extorted through grave fear (can. 2238); a vote in an election, if the elector was compelled by grave fear. Sacred ordination received under fear is to be regarded as valid; but if it is not subsequently ratified, the ordained person incurs no obligation of celibacy or canonical hours, and may be reduced by the judge to the lay state (can. 214 § 1; V. ORDINE).

2) In Italian law. — Rather than fear, violence (v.) is considered as a defect of consent, though this means not absolute physical violence, but moral violence that disturbs the formative process of the will and causes absolutely grave fear (mere reverential fear has no legal relevance: art. 1437).

Violence is always grounds for annulment (not nullity) in contracts, provided that the conditions required by law exist (art. 1434). First of all, there must be an active agent (who need not necessarily be the other party, but may also be a third party: art. 1434) who issues a threat for a specific purpose. The threat must be of such a nature as to make an impression on a reasonable person and cause that person to fear exposing himself or his family to a serious and unjust harm (art. 1435).

For the harm to be unjust, it must infringe a right (the threat to exercise a right may be unjust only if directed toward obtaining unjust effects: art. 1438); for it to be serious, it must be graver than the harm that would be faced by the act to which the person is driven. The gravity of the harm must nevertheless be assessed according to two elements: the objective element (the harm in itself) and the subjective element (the assessment of the harm made by the person subjected to it). Hence the need to take into account the individual’s age, sex, etc. (art. 1435). The threatened harm is relevant whether it is directed against the person whom one seeks to compel and that person’s property, or against the spouse, an ascendant or descendant, and their property (art. 1436). If it is directed against other persons, it is for the judge to assess the circumstances. Parallel to the annulment of contracts on grounds of violence are the challenges to acceptance of an inheritance (art. 482), renunciation of the same (art. 526), a testamentary disposition (art. 624), and partition of the inheritance (art. 761, 768), when these are the effect of violence.

IV. FEAR AS A DEFECT OF CONSENT IN MARRIAGE

Special mention must be made of fear as a defect of consent in marriage, on account of the multiplicity of problems raised in legal theory and jurisprudence.

1) In canon law. — “A marriage contracted under the influence of violence or grave fear, induced from without and unjustly, is also invalid, when the person contracting it is compelled to choose marriage in order to escape from II. No other fear, even if it causes the contract, renders the marriage null” (can. 1087).

It follows from the preceding canon that four conditions are required for the invalidation of matrimonial consent on account of fear: a) The fear must be grave. Here too, the two elements to be taken into consideration are the considerable 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; nevertheless, consideration must also be given to the objective gravity of the threatened evil. In order to establish its gravity, the judge must consider the person who threatens (whether irascible, violent, of great authority, etc.), the person who suffers the threat (whether timid, weak, docile, etc.), and the threats or the harm itself that is feared. In case of doubt, moreover, in the external forum, one must uphold the validity of the marriage, which enjoys the favor of the law (can. 1014). Reverential fear is likewise invalidating when it is qualified. b) The fear must be induced from without. Fear is called external when it proceeds from a free cause, that is, from a human person, whether the other contracting party or a third party. c) The fear must be inflicted unjustly. This is the case whenever either the person suffering the fear has no obligation to marry, or the person who inspires fear has no right to inflict the threatened harm. d) The fear must be such that, in order to escape it, the threatened person is compelled to choose marriage. The more common opinion holds that the fear must be directly inflicted in order to extort consent. This opinion is supported by jurisprudence and today also by the provision expressly introduced into the Oriental Code (can. 78 § 1). When the four conditions are absent, what the same can. 1087 § 2 prescribes applies. “No other fear, even if it is the cause of the contract, renders the marriage null. A marriage null on account of fear may be challenged not only by the person who suffered it, but also by the other spouse.”

In investigating the basis for the invalidation of matrimonial consent on account of fear, it is debated whether fear dissolves the marriage only by ecclesiastical law (Feye, Gasparri) or also by natural law (s. Tommaso, s. Raimondo di Pelfaort, Cappello, Vidal, Prümmer). It is clear to all, however, that if fear exceptionally removes deliberation and the essential freedom of the moral act, the marriage is invalidated by natural law, because consent is lacking.

The question is not purely speculative, but also has practical consequences. Thus, in view of the controversy, the validity of a marriage contracted under the influence of fear by infidels must be regarded as doubtful, where no civil invalidating impediment exists. Naturally, in individual cases the principle that the validity of the act is to be upheld must be applied (can. 1014), subject to the privilege of the faith (can. 1127), until the existence of invalidating fear has been demonstrated. In a marriage between a member of the faithful and an infidel, the marriage is always invalid, whether the victim of the fear is the member of the faithful or the infidel has suffered the fear. In the first case, in fact, the Church renders the consent of the member of the faithful null; in the second, it renders the member of the faithful incapable of contracting such a marriage, for the protection of freedom. Moreover, since there is always doubt concerning the source of the impediment, the Church never dispenses from the defect of consent caused by fear, because its power to do so is doubtful.

2) In Italian law. — Italian civil law, by relating the category of matrimonial invalidity (in the case of so-called civil marriage, not concordatary marriage, which is governed by canon law) to the general distinctions of the juridical transaction, regards moral coercion as a ground for annulment, when the usual conditions exist. The action belongs exclusively to the spouse whose consent was extorted by coercion, and it may no longer be brought after one month of cohabitation following the cessation of the influence of the coercion (art. 122). Under the French Civil Code, the marriage is invalid and may be challenged within six months (arts. 180–181); under the German Civil Code (§ 1333), the marriage is annullable, but the judge’s judgment has retroactive effect.

V. FEAR AS A DEFECT OF CONSENT IN BETROTHAL

betrothal (v.) likewise in canon law (Italian law does not deal with it), grave fear (absolutely or relatively), unjustly inflicted in order to extort consent, is held by some to be merely a ground for rescission, in accordance with can. 103 § 2. But the opinion that regards it as a ground of nullity is closer to the truth, arguing a maiori ad minus from the invalidity of matrimonial consent for the same reason. If the fear is slight, but unjust and dare causam contractui, the betrothal is valid, but may be rescinded by the person who suffered the fear. If the fear, although grave, is ab intrinseco or even ab extrinseco, but justly inflicted, the betrothal is valid.

If the fear is unjust but is not intended to extort consent, then too the betrothal should be considered null: they are certainly rescindable.

VI. FEAR AS AN EXCUSING CAUSE FROM THE OBSERVANCE OF LAWS

Positive laws, whether divine or human, generally do not bind under grave fear, that is, with serious inconvenience, since it is presumed that in such circumstances the legislator does not wish to demand observance of his law. When, however, positive law sanctions a precept of natural law, or when violation of the law would cause harm more serious 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 delict and penalties. Grave fear, even merely relative fear, necessity, and serious inconvenience generally remove the delict altogether when the laws in question are purely ecclesiastical (can. 2203 § 2). If, however, the act is intrinsically evil, or amounts to contempt for the faith or ecclesiastical authority, or causes harm to souls, the causes mentioned above diminish but do not remove imputability for the delict (ibid. § 3).

With regard to penalties: «If the law has the words: praesumparit, ausus fuerit, scienter, studiose, temerarie, consulto egerit and similar expressions that 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). With regard to ferendae sententiae penalties, the person responsible for applying them must act accordingly. «If the law does not have those words... grave fear does not at all exempt from latae sententiae penalties if the delict amounts to contempt for the faith and ecclesiastical authority or to 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 general mitigating circumstances (art. 62).