153. The Impediment of Error and Abduction

1. Antonius, the father of a family, greatly desired that his son Ioannes should marry a certain Ioanna, daughter of Antoninus, who was living in another city, and whose old and very useful friendship to himself he wished to preserve and strengthen. Therefore Antonius proposed the matter to his son; but he, who did not know Antoninus nor Ioanna, responded to his father: Allow me to think over and weigh this business well. But when the son Ioannes was weaving delays and meanwhile gave no response to his father, the father, insisting on the same matter, said to the son that there was in that city, which he named, a certain Ioanna, very rich and beautiful, indeed more beautiful than all the other girls of that city. Then the son consented to the marriage, and immediately, permission having been obtained, the marriage was celebrated by proxy in the city of Ioanna. After a few days the bride, with great solemnity, was led into the house of Antonius to her bridegroom Ioannes. But he, seeing her and finding that, although she was in reality very rich, nevertheless she was notably deformed, immediately fled from the paternal home and married another girl.

It is asked: 1. What concerning consent and concerning error as regards marriage? - 2. What is to be said to the case?

R. To the 1st. Consent to marriage is essentially required; so that without consent there is no marriage. The reason is that marriage is a contract; and without consent a contract cannot be had.

But, excepting error of servile condition by reason of the diriment impediment positively established by the Church, no error invalidates marriage unless it is substantial. The reason is the very firmness of this state, which both the private good and the public good altogether require. Hence, according to the opinion which St. Alphonsus, l. 6, n. 1012, calls common and more true, not even error concerning a quality giving cause to the marriage invalidates marriage: here also this error is accidental, not substantial, since it neither removes consent nor removes the object of this contract.

Therefore, in order that error of quality invalidate marriage, it is necessary that it be a substantial error. This is verified 1. when the quality is a condition without which there is no consent; for then, the condition not having been verified, consent is not had, which is altogether substantial in marriage, as in any other contract. It is verified 2. when the quality is determinative of the person; for then another person is had, which is altogether substantial in marriage, as its proper object. St. Alphonsus, l. c., n. 1016, adds another third case, namely when the quality is principally intended and the person secondarily. But this third case practically induces great confusion, and speculatively is not true, or it falls back into the preceding two enumerated cases. For first, in marriage, as in any other contract, its object is always that which is principally intended in it; any other intention added over and above is extrinsic to that contract, and neither removes consent nor removes the object; and therefore the marriage is valid. Besides, that principally intended quality is either principally intended because it gives cause to the contract, or it is principally intended because it is the condition of consent, or it is principally intended because it falls back into the object or person, insofar namely as it is determinative of the person; for otherwise it cannot fall back into the person. The first is to be excluded, because, as has already been said, error of a quality giving cause to the contract does not invalidate marriage. Therefore only the second and third remain, and thus we fall back into the two cases already proposed.

To the 2nd. In order that the case may be resolved, it is necessary to see how the father proposed that bride to his son the second time. If this second time the father was proposing to his son a certain girl of that town, by the name Ioanna, the richest and most beautiful of all the girls of that town, the marriage was evidently null, because those accidental qualities determining the individual person induced substantial error, namely concerning the person itself. But if the father, the second time, was proposing to his son that same Ioanna whom he proposed the first time, namely he proposed Ioanna the daughter of Antonius, the only daughter of Antonius, or the firstborn, or the secondborn, etc., the most beautiful and richest of all the other girls of that town, then the marriage is valid. For then the error certainly is not substantial; since that accidental quality of beauty remains accidental in the case. For a person is an individual substance of rational nature: this individual substance is altogether designated by that expression, Ioanna, firstborn daughter, for example, of Antonius. Now from the whole tenor of the case it must be concluded that the father proposed the marriage to his son in this second way. But if in a practical case there were doubt, Antonius and his son would have to be carefully questioned concerning the manner in which that person was proposed to him in marriage, when finally the son furnished his consent to his marriage.

2. Pantaleo entered betrothals in Spain with Leocadia, she herself and her parents consenting. But when afterward Leocadia's parents opposed the marriage, Pantaleo abducted Leocadia by night, led her into England, and there contracted marriage with her.

It is asked: Was the impediment of abduction present in the case?

R. The resolution of the case depends on the question whether he incurs the impediment of abduction who abducts a girl previously duly betrothed to himself. It seems that one must respond: 1. Affirmatively, if the bride has a just cause for receding from the betrothals. For in such a case a true injury is done to the bride, and it is the same as if betrothals had not preceded. - 2. But if the bride has no just cause for receding from the betrothals, there is controversy. Sanchez, de Matr., l. 7, d. 13, n. 15, and others affirm from c. pen. de Rapt., where it is said: "That man ought not to be called an abductor, since he had the consent of the woman; and he betrothed her before he knew her, although the parents protested." Therefore "the marriage is null if the woman is taken away unwilling, otherwise if willing, even if the parents are unwilling; and in the beginning of the text it is not said that abduction does not intervene because betrothals preceded, but because the woman consenting was abducted." St. Alphonsus, l. 6, n. 1109. - La-Croix, l. 6, p. 2, n. 636, and others deny it, because the bride is compelled to this which she was bound to do; and thus it is said in cited c. 6, de Raptoribus: "That man ought not to be called an abductor, since he had the consent of the woman, and he had betrothed her before." - Schmalzgr., l. 5, tit. 17, § 1, n. 37 seqq.; Lessius, de Iust. et Iur., l. 4, c. 3, dub. 8. - But as regards excommunication, cf. here the treatise de Censur.

3. Celerinus abducted Laura, and led her by force into the house of Paternus. After Laura remained in that house for a long time, and she herself now consents spontaneously to the marriage, both Celerinus and Paternus wish to marry her.

It is asked: Who in the case can marry Laura?

R. If Celerinus, by his own will, with no mandate received, abducted Laura so that she might marry Paternus, each of the two can marry her, although she is in the power of each. For Paternus then did not abduct her, and Celerinus did not abduct her for the sake of contracting marriage with her. But if Celerinus abducted her for this end, of contracting marriage with her, he cannot marry her so long as she remains in his power, even if Laura now of her own accord and most freely enters marriage. In order that Celerinus may be able to marry her, it is necessary that she first be restored to a safe place, outside his power. Finally, if Celerinus abducted Laura by the mandate of Paternus, then the latter is understood as the abductor, and consequently cannot marry Laura in the case. For what one does through another is reckoned as done through oneself. But then Celerinus can marry Laura. For the impediment of abduction is not had between the abducted woman and an abductor who abducts the woman for another, not for himself, so that namely she may be joined in marriage with another, not with the abductor himself. The reason is "because the penalty of that Decree is that between the abductor and the abducted woman marriage cannot stand so long as the abducted woman is under the power of the abductor; and therefore it supposes that the abduction is destined to this, that the abductor may marry the abducted woman; therefore there will be no place for those penalties when the abduction is done for the sake of entering marriage with another." Sanchez, de Matr., l. 7, d. 13, n. 6; I. M. 1024.