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6. Of Consent in the Contract

CHAP. 6.

Of consent in the Contract.

6. Of Consent in the Contract

THe second thing required to the making of a contract, is the free and full consent of the parties, which is indeed the very soule and life of the contract. And this consent standeth in the approbation, or (as wee p. 69 commonly call it) the Sure-making of the parties contracted.

The second thing required to the making of a contract, is the free and full consent of the parties, which is indeed the very soul and life of the contract. And this consent standeth in the approbation, or (as we commonly call it) the Sure-making of the parties contracted.

Consent in this case is twofold, either of the man and the woman, or of their parents.

Touching the first; That the man and the woman may yeeld free consent each to other, it is necessarie that, in respect of vnderstanding, their iudgemēt should be sound; and in regard of will, their choice should be free. And here sundrie cases are to be resolued.

Touching the first; That the man and the woman may yield free consent each to other, it is necessary that, in respect of understanding, their judgement should be sound; and in regard of will, their choice should be free. And here sundry cases are to be resolved.

I. Case. When the contract flowes not from the wil and good liking of the parties, but is forced and compelled, what is then to be done?

I. Case. When the contract flows not from the will and good liking of the parties, but is forced and compelled, what is then to be done?

Ans. If the espousals haue bin made through force, or feare; I meane, such as may befall a constant, and resolute man, and which hath bin wrought, vpon good knowledge, and cōsideration; then are they of no moment, & in truth meere nullities; because there is wanting to them the free and voluntarie accord, and assent of both parties. Neuerthelesse, if afterward they shall grow to a new consent, or both yeeld to an after-acceptation p. 70 of that which was formerly made, the espousals shall then stand in force; without further exception, or contradiction.

Ans. If the espousals have been made through force, or fear; I mean, such as may befall a constant, and resolute man, and which hath been wrought, upon good knowledge, and consideration; then are they of no moment, & in truth mere nullities; because there is wanting to them the free and voluntary accord, and assent of both parties. Nevertheless, if afterward they shall grow to a new consent, or both yield to an after-acceptation of that which was formerly made, the espousals shall then stand in force; without further exception, or contradiction.

II. Case. But how if consent bee past, and in processe of time it appeares to the espoused persons, that they haue erred, either in choice, or consent, or both?

II. Case. But how if consent be past, and in process of time it appears to the espoused persons, that they have erred, either in choice, or consent, or both?

Answ. There is a three-fold error in consent; the one of the person, the other of the abilitie, or estate of the person; the third of the qualitie.

Answ. There is a three-fold error in consent; the one of the person, the other of the ability, or estate of the person; the third of the quality.

Error in respect of the person, is, whē one person is taken for another; or whē the contract is made betweene two, whereof the one was taken to be such a partie, as afterwards he proued not to be. Now where this error is committed, it is a plaine case, there was no consent; and therefore the contract, vpon certaine knowledge therof, is quite frustrate. For the knowledge of the partie is the ground of consent, and belongs consequently to the very substance of mariage.

Error in respect of the person, is, when one person is taken for another; or when the contract is made between two, whereof the one was taken to be such a party, as afterwards he proved not to be. Now where this error is committed, it is a plain case, there was no consent; and therefore the contract, upon certain knowledge thereof, is quite frustrate. For the knowledge of the party is the ground of consent, and belongs consequently to the very substance of marriage.

Neuerthelesse, if, the error being p. 71 once knowne, the parties haue had secret societie one with another; & haue either againe consented, or growen to an after-acceptation of the consent before made, the contract may and doth stand in full force. For example: Iacob, by the deceit of Laban, had taken Leah for Rachel, to his wife; so saith the text, When the euening was come, Laban tooke Leah his daughter, and brought her to him, and he went in vnto her, Gen. 29▪ 23. But when the morning was come, behold it was Leah, 25. Now by the iudgement of the best Diuines, Iacob might iustly haue renounced Leah, if he would, because Laban had giuen her vnto him for Rachel, and so deceiued him; yet hee would not vse extremitie, but kept her as his wife.

Nevertheless, if, the error being once known, the parties have had secret society one with another; & have either again consented, or grown to an after-acceptation of the consent before made, the contract may and doth stand in full force. For example: Jacob, by the deceit of Laban, had taken Leah for Rachel, to his wife; so saith the text, When the evening was come, Laban took Leah his daughter, and brought her to him, and he went in unto her, Gen‸ 29:‸23. But when the morning was come, behold it was Leah, 25. Now by the judgement of the best Divines, Jacob might justly have renounced Leah, if he would, because Laban had given her unto him for Rachel, and so deceived him; yet he would not use extremity, but kept her as his wife.

If it be said, there was an error in the person, therefore no consent, and so Leah was not his lawfull wife, but Rachel. I answere, that Iacob did renue his cōsent afterward, & that renued cōsent following vpon their knowing one of another, made her his wife, though in extremity & rigor she was not. Againe, p. 72 Rachel was indeed the partie to whom he was espoused, by the former cōtract; and therfore, vpon their mutuall agreement afterward, she also became his wife. So saith the holy Ghost, vers. 27. Fulfill seuen yeares for her, and we will also giue thee Rachel for thy seruice, &c. v. 28. Then Iacob did so, and Laban gaue him Rachel his daughter to be his wife.

If it be said, there was an error in the person, therefore no consent, and so Leah was not his lawful wife, but Rachel. I answer, that Jacob did renew his consent afterward, & that renewed consent following upon their knowing one of another, made her his wife, though in extremity & rigor she was not. Again, Rachel was indeed the party to whom he was espoused, by the former contract; and therefore, upon their mutual agreement afterward, she also became his wife. So saith the holy Ghost, v. 27. Fulfill seven years for her, and we will also give thee Rachel for thy service, etc‸. Verse 28. Then Jacob did so, and Laban gave him Rachel his daughter to be his wife.

Error of the ability or estate is, when one of the parties to whom cōsent was giuen by the other, being taken for rich and wealthie, in the issue proues to haue been very poore, and not sufficient to maintaine that state of life.

Error of the ability or estate is, when one of the parties to whom consent was given by the other, being taken for rich and wealthy, in the issue proves to have been very poor, and not sufficient to maintain that state of life.

Touching this error, it is to be considered, whether the cōtract was made absolute, for the time present, & so for euer afterward, or conditional for time to come only. If it were absolute, that is, conceiued in termes of the present time, then though the deceit bee verie offensiue to the partie deluded, and vpon his complaint ought in equitie to be punished by the Magistrate; yet it is not of force to breake off the contract; because the abilitie of either or both p. 73 parties belongs not to the essence of mariage. But if it were for time to come and conditionate, then he or she that made promise vpon this condition, is free and not bound in conscience to fulfill the promise; vnlesse the condition expressed aforehand be kept, and performed.

Touching this error, it is to be considered, whether the contract was made absolute, for the time present, & so for ever afterward, or conditional for time to come only. If it were absolute, that is, conceived in terms of the present time, then though the deceit be very offensive to the party deluded, and upon his complaint ought in equity to be punished by the Magistrate; yet it is not of force to break off the contract; because the ability of either or both parties belongs not to the essence of marriage. But if it were for time to come and conditionate, then he or she that made promise upon this condition, is free and not bound in conscience to fulfill the promise; unless the condition expressed aforehand be kept, and performed.

Error of the qualitie of the person, is, when she which was in the espousals taken to bee a virgin, is afterward found to be with child by another, before they come together. By this error the Couenant is made void, and becomes a meere nullitie; so as the man cannot be compelled, vpon true and certaine knowledge thereof, to marrie the woman; but may renounce her, vnlesse both parties come to a new agreement, or haue priuately knowne each other vpon mutuall consent. For first, God did in expresse tearmes command the Iewes, that such a woman should be stoned to death: Deut. 22. 20. If the maid (that was giuen to wife) be not found a virgin, vers. 21. then shall they bring the maid to the doore of her fathers house, and p. 74 the men of her citie shal stone her with stones to death, because she hath wrought folly in Israel, by playing the whore in her fathers house. Therefore it was not the will of God, that she should be retained as a wife, but vtterly reiected and forsaken. Againe, this was so vsual a practise in Israel vpon Gods commandement, that godly and righteous men, vpon the discouerie of this error, would not in conscience be perswaded, to marry thē to whom they had been betrothed, Matth. 1. 18. Ioseph her husband (hauing found, before Marie and he came together, that she was with child) being a iust man, and not willing to make her a publike example, was minded to put her away secretly.

Error of the quality of the person, is, when she which was in the espousals taken to be a virgin, is afterward found to be with child by another, before they come together. By this error the Covenant is made void, and becomes a mere nullity; so as the man cannot be compelled, upon true and certain knowledge thereof, to marry the woman; but may renounce her, unless both parties come to a new agreement, or have privately known each other upon mutual consent. For first, God did in express terms command the Jews, that such a woman should be stoned to death: Deut‸ 22:‸20. If the maid (that was given to wife) be not found a virgin, v. 21. then shall they bring the maid to the door of her father’s house, and the men of her city shall stone her with stones to death, because she hath wrought folly in Israel, by playing the whore in her father’s house. Therefore it was not the will of God, that she should be retained as a wife, but utterly rejected and forsaken. Again, this was so usual a practise in Israel upon God’s commandment, that godly and righteous men, upon the discovery of this error, would not in conscience be persuaded, to marry them to whom they had been betrothed, Matt 1:‸18. Joseph her husband (having found, before Mary and he came together, that she was with child) being a just man, and not willing to make her a public example, was minded to put her away secretly.

III. Case. What shall we thinke of the espousals of such, as are furious, and franticke?

III. Case. What shall we think of the espousals of such, as are furious, and frantic?

Answ. We must distinguish of these diseases. For Madnes is, either perpetuall, or by fits only with intermission.

Answ. We must distinguish of these diseases. For Madness is, either perpetual, or by fits only with intermission.

If it be perpetuall, the case is cleere, that whether one of the parties only, or both be franticke, the contract made p. 75 betweene them, is altogether vnprofitable & vaine. For such know not what they do whē they make a promise, and the consent which passeth betwixt thē cannot be free, full and perfect, but must needs be hindred and preiudiced by the heate and violence of their disease.

If it be perpetual, the case is clear, that whether one of the parties only, or both be frantic, the contract made between them, is altogether unprofitable & vain. For such know not what they do when they make a promise, and the consent which passeth betwixt them cannot be free, full and perfect, but must needs be hindered and prejudiced by the heat and violence of their disease.

Now although perpetuall madnesse be a iust impediment of mariage, and a sufficient cause to dissolue a contract, yet it is meet that there be a conuenient space of time agreed vpon, wherein all meanes may be vsed for the curing of this disease, to the end that Gods wil touching their amendment may be the more euidently knowne; and both the parties themselues, and their friends may giue testimonie to the world, that they haue had a carefull respect of the contract before made.

Now although perpetual madness be a just impediment of marriage, and a sufficient cause to dissolve a contract, yet it is meet that there be a convenient space of time agreed upon, wherein all means may be used for the curing of this disease, to the end that God’s will touching their amendment may be the more evidently known; and both the parties themselves, and their friends may give testimony to the world, that they have had a careful respect of the contract before made.

Againe, if it be not continuall, but by⁴⁷ fits, so as they haue some good daies, and quiet intermissiō, the case is otherwise. For the contract shall be ratified, and stand in force: prouided, that it was manifestly knowne, that the said parties p. 76 were both in their right wits, before they plight their troth each to other; and themselues be willing afterwards to confirme their promise formerly made, by renuing their consent.

47. Dilucida interualla.

Again, if it be not continual, but by⁴⁶ fits, so as they have some good days, and quiet intermission, the case is otherwise. For the contract shall be ratified, and stand in force: provided, that it was manifestly known, that the said parties were both in their right wits, before they plight their troth each to other; and themselves be willing afterwards to confirm their promise formerly made, by renewing their consent.

46. Dilucida interualla.

Consent of the Parents, is that act whereby they giue their word and promise, to bestow their children in mariage, and in regard of right, doe indeed presently bestow them.

Consent of the parents, is that act whereby they give their word and promise, to bestow their children in marriage, and in regard of right, do indeed presently bestow them.

Therefore priuate contracts, that are made without free and lawfull consent of parents, are not only vnprofitable and vnlawfull, but euen by the law of God meere nullities. Reasons. I. They are contrarie to the expresse will and commandement of God: Exod. 20. Honor thy father and thy mother. II. They are flat repugnant to naturall equitie; which teacheth, that he who hath not power, nor right ouer himselfe, cannot bind himselfe by promise to another. Now children haue not power ouer themselues,⁴⁸ but are vnder the gouernment, & at the disposition of their Parents; therefore the couenants which they make, are not made and appointed p. 77 of God, and those which God maketh not, are in deed and truth none at all.

48. Gal. 4. 1.

Therefore private contracts, that are made without free and lawful consent of parents, are not only unprofitable and unlawful, but even by the law of God mere nullities. Reasons. I. They are contrary to the express will and commandment of God: Exod‸ 20. Honor thy father and thy mother. II. They are flat repugnant to natural equity; which teacheth, that he who hath not power, nor right over himself, cannot bind himself by promise to another. Now children have not power over themselves,⁴⁷ but are under the government, & at the disposition of their parents; therefore the covenants which they make, are not made and appointed of God, and those which God maketh not, are in deed and truth none at all.

47. Gal‸ 4:‸1.