143. On Betrothals

1. Severinus, in the presence of Amalia, asked Modestinus, the brother and tutor of Amalia, for his sister Amalia as his bride. Modestinus agreed, and then Severinus promised marriage by the solemn form of words, with an oath also added; which promise Modestinus accepted in the name of Amalia, who at the same time promised marriage back to Severinus with an equal solemnity of formulas. Amalia, hearing all these things, was silent because of shame and modesty; yet internally the matter greatly pleased her, and therefore she was consenting, and promising, and was also being bound by oath before God. But after a few days Severinus, seized by a sudden illness, dies; and then his brother Ioannes, who had heard Severinus often speaking of the virtues of Amalia, immediately, without previous betrothals, enters into marriage with Amalia in the place of his brother.

It is asked: What is to be said to the case?

R. Schmalz., l. 4, tit. 1, n. 66 seqq., reports the opinion of some who stand for the validity of these betrothals. Then, n. 67, 68, he says: "But Paludanus, etc., better defend the negative. The reason is that the contract of marriage and of betrothals, by natural and divine law, is so personal that no one, even a father, can by that law furnish consent for a son, unless he has a special mandate from him; therefore, when the consent of parents, joined with the silence of the child, makes presumed betrothals, this is had only from the disposition and presumption of positive law, through c. un. de Desp. imp. in 6°, which, since it is restrictive of natural law, ought not to be extended beyond the case expressed in law; but it would be extended if it also proceeded in brothers, relatives, tutors, because the cited chapter mentions only parents; therefore, etc.

"From this it follows that, although perhaps the pupil, or the sister, in reality has complacency and internal consent of contracting betrothals and of obligating himself or herself, while the tutor or brother contracts in his or her name, nevertheless no betrothal obligation arises from this either for the internal forum or for conscience. The reason is that from the disposition of law the words of parents alone, and not those of a tutor or of any other person joined in whatever way, signify internal consent into a betrothal obligation; therefore, even if the pupil or sister has been silent at the promise of the tutor or brother, he or she nevertheless will not be considered by this very fact to have promised marriage; or if he or she promised it internally, nevertheless this promise, because it was not expressed by a suitable sign by the promisor himself or herself, and therefore could not be accepted by the other party, will in no way be obligatory."

Therefore, since in the case there were no betrothals, there cannot be had from them the impediment of public honesty; and therefore Amalia's marriage is valid.

But here it must be noted that, if there is question not of other outsiders, or of other relatives, but of parents, the same positive disposition of law exists, whether it is the father or the mother who contracts betrothals for the children; whether he or she contracts for children who have reached puberty or for those who have not reached puberty: and "from them arises the justice of public honesty." C. un. cit., Schmalz. n. 62. - I. M. 919.

2. "A marriage was contracted in the city of Messana, after the publication of the Decrees of the Council of Trent, by words concerning the present and mutual consent, the publications not having been made, nor the parish priest being present, but only a notary and witnesses. It is requested to declare whether the aforesaid contract of marriage, since it was made against the form handed down by the decree of the same Council concerning contracting marriage, is so null that it does not even pass over into betrothals for the future.

"The S. C. C., in the year 1573, judged that it does not pass over." Benedict XIV, Not. 46, n. 24; I. M. 923.

3. "In the year 1697 Antonius Levame drew up two writings of betrothals toward Benedicta Gena, signed by both: one under the date of 9 Nov., in this tenor: I, the undersigned, say and promise not to marry any other girl except Signora Benedetta Gena, as she also promises not to marry any other young man except me. Antonio Levame, Benedetta Gena. But the other, under the day 12 of the same month, of this sort: I, the undersigned, say and promise not to marry any other girl except Signora Benedetta Gena, as she also promises and swears. Antonio Levame, Benedetta Gena.

"1. Whether there is certainty concerning the validity of the betrothals between Antonius Levame and Benedicta Gena? And, insofar as in the affirmative: - 2. Whether Antonius Levame is to be compelled, or can recede from them by contracting with another, in the case?

"The S. C. C., June 1, 1709, responded: To the 1st: from the things deduced so far, it is not established that there are absolute betrothals. - To the 2nd: As to coercion to contract with Gena, negatively. But whether he is able to contract with another, deferred. But when, on Sept. 28, 1709, to the question: Whether Antonius can contract with another woman in the case? it responded: Affirmatively." De Iust. de Dispens. matr. Cas. 13.

For indeed one promising that he will not take another as wife except such a woman does not absolutely promise that he will contract marriage with her; but he only obligates himself to take her as wife on the hypothesis that he wishes to choose the conjugal state. This is made clear by the example of him who promises that he will not sell a farm except to Titius; he certainly is not simply obligated to sell the farm to Titius, but only in the case in which he wishes to sell the farm. Benedict XIV, Quaest. Can. CCCCXXXIV; L. 842; G. 835; I. M. 919.

4. "Antonius de Cristophoro, after he had entered into betrothals for the future with Catharina Carusio, joined to him in the third and fourth degree of consanguinity, and had known her carnally and had begotten offspring, then entered into other betrothals for the future with Catharina Pascharelli; but at length, having changed his mind, he contracted marriage by words concerning the present with Catharina Carusio, having obtained an apostolic dispensation upon the impediment of consanguinity. But since the brother of the said Antonius intends to contract marriage with the other Catharina, it was doubted whether the impediment of public honesty stood in his way, arising from the betrothals previously entered into with the other brother, insofar as they are valid. Therefore the doubt is proposed: Whether there is certainty concerning the impediment of public honesty between Alexander and Catharina de Pascharello, so that they need a dispensation in the case?

"R. Affirmatively." S. C. C., March 31, 1708. De Iustis de Dispens. matr. Cas. 11, 12; I. M. 919.

5. Dominicus, after betrothals entered into with Agnes, thinks of abandoning her, in order that he may take another as wife. Therefore he asks his confessor whether he can licitly effect this. For he is prepared to provide Agnes sufficiently with a dowry, indeed even to establish a considerable dowry for her, so that she may easily marry another.

It is asked: What ought the confessor to respond?

R. He ought to respond that he cannot effect that. Since betrothals oblige under grave matter by reason of an onerous contract to marriage, and to nothing except marriage, Dominicus cannot abandon Agnes, she being unwilling, although he wishes abundantly to provide her with a dowry. For by deserting Agnes, even though he endows her, he no longer stands by his promises. Cf. Benedict XIV, Quaest. Can. CCLXXIX; I. M. 926.