FEAR. – From the Latin timor, it is the trepidation or disturbance of the mind caused by an impending danger or imminent evil.
It can be considered both as a passion or movement of the sensitive part, with some organic commotion (and in this case it is more properly called fear, timor), and as a movement that influences the deliberative process of the will, independently of the passionate disturbance (metus, q.v.). In this latter sense, theologians and canonists take fear, referring, as regards its effects on the sensitive part, to the treatment of the passions (q.v.).
I. DIVISION.
1) Looking at the priority or otherwise of the apprehensive movement 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 fear, in the second case with fear.
2) Looking at the intensity of its influence, one speaks of grave fear when, given the gravity of the harm feared or likely to befall, the mind of the agent is strongly disturbed; and of light fear when the disturbance is slight, either because the harm feared is not serious, or because the danger is not imminent.
The gravity of fear can be absolute or relative. It is absolute when fear is such as ordinarily to take hold of everyone (cadit in virum constantem), because the harm feared is serious (imprisonment, exile, loss of a large part of one’s goods, death, mutilation, etc.), and also because it is likely to occur with almost certainty or with high probability. Gravity is relative when the disturbance it produces is not so much proportionate to the nature of the object or harm feared as to the age, disposition, or condition of the person who fears. Light fear includes reverential fear, by which a subject fears the displeasure, offence, or indignation of parents, superiors, or those in general to whom respect is owed. This fear is generally light; if, however, the offence and indignation feared are serious in themselves or in the circumstances that accompany them (quarrels, reproaches, importunate pleas, and disputes), even this fear is considered grave. If, moreover, a serious harm is feared, such as loss of an inheritance, expulsion from the family, beatings, etc., the fear is simply grave. In the external forum, however, reverential fear is presumed to be light; but this presumption can be overturned by the facts.
3) Looking at 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 from a freely created cause (a person). The latter is subdivided into just or unjust. Unjust fear can arise either from the fact that the one threatening has no right to do so (unjust quoad substantiam) or from the fact that, although having a right to be offended and to threaten, he exceeds the manner in which he does so (unjust quoad modum).
II. INFLUENCE OF FEAR ON THE FREE ACT AND ON THE MORALITY OF THE ACT.
1) As regards fear as a passion (fear), what has been said in treating of the passions (q.v.) applies. Briefly summarising, fear as a passion diminishes the freedom of acts, and therefore their morality. Indeed, on rare occasions, it can remove both freedom and morality altogether (panic).
2) As regards fear as a spiritual movement, a distinction must be made:
a) In the case of one who acts with fear (concomitant fear), the act is more voluntary, because it shows a will so strong as to overcome and surpass fear. Since this act has greater voluntariness, it also has greater morality.
b) In the case of one who acts from fear (antecedent fear), the act is usually not purely voluntary, but mixed of voluntary and involuntary elements: the will, driven by fear, after considering all the circumstances, effectively wills the act (simpliciter voluntary act), but retains some repugnance towards the act, which otherwise would not be willed (involuntary secundum quid); consequently, the morality of the act is diminished.
III. FEAR AND THE LEGAL VALIDITY OF ACTS.
As a general principle, acts performed under the pressure of fear are always willed and therefore voidable, but 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 can be declared rescinded by a judge’s sentence, either at the instance of a party or ex officio (can. 103 § 2). However, certain acts that require particular consideration, acts that give rise to a stable, perhaps lifelong, commitment, cannot be adequately safeguarded by mere rescindability (which is sometimes even impossible), and so in canon law they are protected by the absolute nullity of the act, established by positive law, irrespective therefore of the validity or otherwise that the act may have in pure natural law.
The following are considered entirely invalid: renunciation of office or a benefice made under grave and unjust fear (can. 185), marriage contracted under grave fear unjustly inflicted from without (can. 1087 § 1, q.V. below), a vow made under grave and unjust fear (can. 1307 § 3), admission to 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 by grave fear (can. 2238), suffrage in an election if the elector was constrained by grave fear. Holy orders received under fear are to be considered valid, but if not ratified, the ordained incurs no obligation of celibacy or of the canonical hours, and may be reduced to the lay state by the judge (can. 214 § 1; q.V. ORDO).
2) In Italian law. – Instead of fear, violence (q.v.) is considered as a vice of consent, though this is understood not as absolute physical violence but as moral violence that disturbs the process of forming the will and is the cause of absolutely grave fear (simple reverential fear has no relevance: art. 1437).
Violence is always a ground for annulment (not for nullity) of contracts, provided the conditions laid down by law are met (art. 1434). First, there must exist an active subject (who need not necessarily be the other party, but may be a third party: art. 1434), who exerts a threat with a precise aim. The threat must be of such a nature as to impress a reasonable person and cause him to fear exposing himself and his own to an unjust and considerable harm (art. 1435).
In order to be unjust, the harm must violate a right (a threat to exercise a right can be unjust only if directed to obtaining unjust effects: art. 1438); in order to be considerable, it must be more serious than that to which one would be exposed by performing the act to which one is driven. The gravity of the harm, however, is to be assessed according to two elements: an objective element (the harm in itself) and a subjective element (the assessment of the harm made by the sufferer). Hence the need to take into account the age, sex, etc., of the individual (art. 1435). The threatened harm is relevant whether directed against the person to be constrained and his goods, or against his spouse, an ascendant or descendant and their goods (art. 1436). If directed against other persons, it is for the judge to assess the circumstances. Parallel to the voidability of contracts for violence is the impugning of acceptance of an inheritance (art. 482), renunciation of the same (art. 526), testamentary disposition (art. 624), and division of an inheritance (art. 761, 768), when these are the effect of violence.
IV. FEAR AS A VICE OF CONSENT IN MARRIAGE.
Fear as a vice of consent in marriage deserves special 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 through violence or grave fear, unjustly induced from without, from which the contracting party cannot free himself except by choosing marriage, is also invalid. No other fear, even if it causes the contract, invalidates the marriage” (can. 1087).
From the foregoing canon it follows that four conditions are required for the invalidation of matrimonial consent through fear:
a) The fear must be grave. Here again two elements must be considered: the notable harm threatened and its imminence. In the external forum, to admit the nullity of the marriage for fear, the subjective disposition of the person who suffered the fear must be observed; yet the objective gravity of the threatened evil must also be weighed. To determine the gravity, the judge must consider the person who threatens (whether irascible, violent, of great authority, etc.), the person who suffers it (whether timid, weak, docile, etc.), and the threats or the harm itself that is feared. In case of doubt in the external forum, the presumption must favor the validity of the marriage, which enjoys the favor of the law (can. 1014). Fear that is merely reputational is also invalidating if it is qualified.
b) The fear must be induced from without. Fear is said to be external when it comes from a free cause, i.e., from a human person, whether this be the other contracting party or a third party.
c) The fear must be unjustly inflicted. This occurs whenever either the one suffering the fear is not obliged to marry, or the one inflicting the fear has no right to threaten the harm he threatens.
d) The fear must be such that, to free himself from it, the threatened party is compelled to choose marriage. The more common opinion holds that the fear must be directly inflicted to extort consent. This opinion is supported by jurisprudence and now also by the norm expressly introduced in the Eastern Code (can. 78 § 1). If any of the four conditions is lacking, the same canon 1087 § 2 applies: “No other fear, even if it causes the contract, invalidates the marriage. A marriage null because of fear can be impugned not only by the party who suffered it, but also by the other spouse.”
In investigating the foundation for the invalidation of matrimonial consent through fear, there is discussion whether fear invalidates marriage only by ecclesiastical law (Feye, Gasparri) or also by natural law (St. Thomas Aquinas, St. Raymond of Peñafort, Cappello, Vidal, Prümmer). Yet it is clear to all that if fear exceptionally removes the deliberation and essential freedom of the moral act, the marriage is invalidated by natural law, because consent is lacking.
The question is not merely speculative but has practical consequences. Thus, given the controversy, a marriage contracted under the influence of fear by non-believers is to be considered doubtful in validity if there is no civil impediment rendering it invalid. Naturally, in individual cases the principle must be applied that the validity of the act is to be upheld (can. 1014), except for the privilege of the faith (can. 1127), until the existence of invalidating fear is proven. In a marriage between a believer and a non-believer, the marriage is always invalid, whether the victim of the fear is the believer or the non-believer. In the first case, indeed, the Church renders the consent of the believer null; in the second, it renders the believer unable to contract such a marriage for the protection of freedom. Moreover, given the continuing doubt about the source of the impediment, the Church never dispenses from the defect of consent through fear, because its power to do so is doubtful.
### 2) In Italian Law
Italian civil law, by reducing the category of matrimonial invalidity (for the so-called civil marriage, not for concordatory marriage, which is governed by canon law) to the general distinctions of juridical acts, regards moral violence as a ground for annulment when the usual presuppositions exist. The action is exclusive to the spouse whose consent was extorted by violence and cannot 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 may be impugned within six months (arts. 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 (q.v.) in canon law (Italian law does not treat of them), grave fear (absolutely or relatively), unjustly inflicted to extort consent, is by some held to be only a ground for rescission under can. 103 § 2. But the more accurate opinion holds it to be a ground for nullity, arguing a fortiori from the invalidity of matrimonial consent for the same cause. If the fear is slight but unjust and a cause of the contract, the betrothal is valid but rescindible by the party who suffered the fear. If the fear, although grave, arises from within or even from without but is justly inflicted, the betrothal is valid.
If the fear is unjust but not directed to extorting consent, the betrothal should likewise be considered null; at least it is rescindible.
VI. FEAR AS AN EXCUSING CAUSE FROM OBSERVANCE OF LAWS — Positive laws, whether divine or human, generally do not bind under grave fear, i.e., with grave inconvenience, it being presumed that in such circumstances the legislator does not intend to require observance of his law. When, however, the positive law sanctions a precept of natural law, or when violation of the law would bring a greater harm than the inconvenience caused by its observance, the obligation remains. These principles in canon law find application even in the external forum, especially in matters of delict and penalties. Grave fear, even only relatively grave, necessity, and grave inconvenience generally remove delict altogether if the laws are purely ecclesiastical (can. 2205 § 2). If, however, the act is intrinsically evil or results in contempt of the faith or ecclesiastical authority or in harm to souls, the above causes diminish but do not remove the imputability of the delict (ibid. § 3).
And in relation to penalties: “If the law contains the words praesumpserit, 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 the will (and thus also fear), excuses from latae sententiae penalties” (can. 2229 § 2). For ferendae sententiae penalties, it is for the judge to regulate himself accordingly. “If the law does not contain those words… grave fear does not excuse at all from latae sententiae penalties if the delict results in contempt of the faith or ecclesiastical authority or in public harm to souls” (ibid. § 3, n. 3; q.V. CENSURE).
In the Italian Penal Code, fear is not specifically considered but falls among the generic extenuating circumstances (art. 62).