Explication of the Judicial Laws of Moses, Part 1 · Chapter 19
CHAPTER XIX. An error perſonae irritat contractum?
IOSH. 8. 18. And the children of Iſrael ſmote them not, becauſe the Princes of the Congregation had ſworne unto them by the Lord God of Iſrael.
IT may ſeeme that Error perſonae irritat contractum, as if a man married one woman in ſtead of another, the marriage is nullified.
I… …he error of the perſon make the contract null, Object. … ſhall we thinke of Iſaacs bleſſing, who bleſſed Ia… in ſtead of Eſau? and yet the bleſſing was effectuall, … what ſhall we thinke of Ioſhua's Covenant made …e Gibeonites, whom he tooke to be ſtrangers? and yet the Covenant ſtood firme and ſure; and what ſhall we ſay of Iacobs marriage with Leah in ſtead of Rachel? Here the marriage was not irritat and made voide, although there was an errour in the perſon.
Firſt, for Iacobs marriage with Leah in ſtead of Rachel, Anſw. if Iacob had not afterwards approved this mariage,Of Iacobs marriage with Leah. and gone in unto her, and begotten children upon her, the marriage had beene voyde; but becauſe he went in unto her, and begot children upon her, this error was taken away.
Secondly, it may be anſwered for Iſaacs bleſſing, inOf Iſaacs bleſſing Iacob in ſtead of Eſau. bleſſing Iacob in ſtead of Eſau, & Ioſhua's Covenant made with the Gibeonites. There were three who concurred here. Firſt God; ſecondly, the perſons who craftily concurred here to deceiue; and thirdly, the perſons who were deceived. In Iſaacs bleſſing we hauehave to conſider; firſt God, who cannot deceiue, nor be deceived;In bleſſing of Iacob three perſons concurred. then Rebecca and Iacob, who craftily deceived; and thirdly, Iſaac, who was deceived. Now becauſe it was Gods intention to giuegive the bleſſing to Iacob, therefore neither Iacobs craft, nor Iſaacs error, could hinder the bleſſing; Iſaac giveth the bleſſing ignorantly, but becauſe it was according to Gods intention and revealed will, who was the principall giver of the bleſſing, therefore the bleſſing was effectuall. So in the CovenantI…ſhua's Covenant with the Gibeonites. with the Gibeonites, the Lord commanded to offer peace to the ſeven Nations if they would ſeek it, now in commeth the deceit of the Gibeonites, and errour of Ioſhua who is deceived, yet becauſe it was Gods chiefe intention, that thoſe of the ſeven Nations who ſought peace ſhould be ſaved; therefore the oath ſtood firme, and the errour in the perſon did not make it voyde; and the matter may be cleared thus: the Lord forbiddeth a brother to eate with a railer, a drunkard, or an extortioner. Simile. 1 Cor. 5. 11. but if a drunkard, or a railer, or an ex…ortioner ſhould come to the Table of the Lord, I am not to refuſe to eate at that Table, although the drunkard be there. The reaſon is, becauſe this is not my private Table, but the Lords banquet, and I expect the bleſſing onelyonly from him in it, and the ſinnes of the drunkard cannot hinder me; but if I ſhould bid ſuch a one to my houſe to eate with me, then I ſhould be guiltie of their ſinne. So the Covenant here is the Lords Covenant, and the deceiver is not able to make it of no effect. But where the principall intention of the contracter is deceit, and the perſon with whom the contract is made is deceived, then the contract is nullified; as if a manWhen the errour of the perſon maketh the contract of no effect. ſhould ignorantly buy a free man for a ſlaue, here the free man ſhould be releaſed, & error perſonae irritat contractum.
But yee will ſay, in all contracts God hath an hand, Object. and he is never deceived, therefore no ſuch contract ſhould be diſſolved, where there is error perſonae.
In the bleſſing betwixt Iſaac and Iacob; and the contract Anſw. betwixt Ioſhua and the Gibeonites, God had ſet downe his revealed will, what he was minded to doe in both of theſe; and therefore neither the error of Iſaac, God had revealed his will in the bleſſing of Iacob, and the ſparing of the Gibeonites.nor the deceit of Rebecca and Iacob made the bleſſing of no effect, ſo neither in the contract betwixt Ioſhua and the Gibeonites. But the Lord forbiddeth fraudulent contracts in his Word, neither is it his intention that ſuch contracts ſhould be made, therefore they are of no effect.