Title V: On Conditions Appended in Betrothal or in Other Contracts

Latin source headnote: The failure of a shameful condition appended in the contract of marriage does not vitiate the marriage, but the condition is vitiated.

From the African Council.

Whoever shall have betrothed a woman under the name of a condition, and shall afterward have wished to leave her, we say that the condition is to be broken and the betrothal is to be held irrefragably.

Latin source headnote: A slave manumitted upon this condition, that he become a monk and serve a monastery, otherwise returning into servitude, is compelled, if, having accepted this, he became a monk, to observe the will of the manumitter.

Gregory, to the Bishop of Spoleto.

Since it is proper—(And below:) [But] if perchance someone complains that he was unjustly excommunicated, [let your fraternity] ascertain it by subtle investigation; and, once the truth is known, so dispose the case that [neither may injustice long prevail unto the affliction of an innocent person,] nor may the vigor of discipline [either] be broken, or [by an indiscreet presumption be able to be] dissolved. (And below:) The priest H. complained [to us] that a certain deacon had manumitted two bondservants [of his right] upon this condition, that they become monks and remain in the monastery in which he himself had been, adding that, if either acted contrary to it, he should again [in every respect] be subjected to servitude; and that one of them, having despised this condition, had deserted the monastery [with rash audacity] and joined himself among the clerics. You, therefore, if you find it to be so, conduct yourself in such a way that neither may he have the faculty of deserting the monastery, nor may the will of the manumitter, being nevertheless preserved, be able to be passed over.

Latin source headnote: He who swore to take a woman as wife if she gave him one hundred is not bound, if the one hundred are not given, to take her, unless afterward he consented purely or knew her.

Alexander III, to the Archbishop of Palermo.

Concerning those—(And below:) [Compare chapter 5, On Betrothals, IV. 1.] But if someone shall have furnished an oath to a woman under words of this kind: “I shall take you as wife if you give me so much,” he will not be held guilty of perjury if he does not take as wife the woman who is unwilling to pay him what he asked to be given to him under oath, unless consent of the present or carnal commingling has afterward intervened between them.

Latin source headnote: A thing donated to a church under a mode immediately belongs to the church, nor is it revoked when the mode is not observed, unless this is expressed in the contract. This the chapter says according to the truer understanding, and it is a very notable and highly citable text. Abbas.

The same.

But when any possession is donated to a church with a condition interposed, the gift cannot afterward be revoked by the donor, unless perhaps it was conferred upon such a condition that, when it ceases, the possession ought to be revoked.

Latin source headnote: One contracting marriage under a condition that is not disapproved is not compelled to consummate the marriage before the condition occurs.

Urban III.

But concerning that which you similarly asked of us, whether he who consented to a certain woman if her father namely furnished his assent is to be compelled to consummate the marriage, we nevertheless respond that, since consent which is reserved in another’s judgment cannot be said to be free, and canonical institutions do not disapprove the condition itself, which is consonant with honorable conduct, unless the will of the father afterward intervenes, he is by no means to be compelled to contract the marriage. For although of happy memory Pope Alexander, our predecessor, in his consultations, responded that betrothals contracted with a condition interposed, if consent of the present intervenes or carnal union follows, ought not to be dissolved, even though the condition itself was not fulfilled, but ought firmly to be observed, this is by no means adverse to our determination, since consent of this kind is not to be held as consent of the present, although it is expressed more evidently through words of the present, because it consists in another’s judgment, not already had but to be had.

Latin source headnote: He who contracts betrothals under an honorable condition and knows the betrothed woman before the condition occurs withdraws from the condition.

Innocent III, to the Bishop of Masicano.

Through your letters you intimated to us that, when in your presence a certain woman named P. claimed as husband a certain man named N., asserting that mutual consent of the present had intervened between them and that carnal union had followed, the man himself, although he did not deny the contracted betrothals and the carnal union, nevertheless asserted that he was not bound to take her as wife, because the betrothals between them had been contracted under this condition, if namely his father and paternal uncle consented to the betrothals, but, as soon as they learned of them, they contradicted both the bridegroom and the bride, which the same man endeavored to prove by suitable witnesses. But the woman replied that, although faith had been pledged by each under the aforesaid condition, nevertheless no contradiction had ever been made to her by the man’s father or paternal uncle, and she said that both before the time of the contradiction expressed by the witnesses and after it, carnal union had intervened between them. She added, moreover, that, although in the beginning they had contracted conditionally, nevertheless in the course of time they consented purely to marriage without the addition of a condition, and she asserted that she would prove this by witnesses. Therefore, after the witnesses of each party had been received, when you caused the attestations of the woman to be published before you in the presence of two examiners, the witnesses whose statements were being read immediately cried out that they had not said the things that were being read and that the things they had deposed were not written. But one of the examiners then strongly opposed them. And because of this the woman petitioned that the same witnesses or others be heard again upon the same articles. But you, moved by this novelty, fixed the following day for the parties; when they had been constituted in your presence, you ordered all the examiners to be summoned, adjuring them under threat of anathema to say whether those were the true attestations which the witnesses had opposed; and they immediately produced other attestations in their midst. When these had been objected to through the man’s advocate, just as the former ones had been opposed by the witnesses, after manifold allegations the second attestations were admitted by the parties, and the attestations of the man were afterward published. Moreover, the woman insisted chiefly upon this article, that both before and after the renunciation of the betrothals the same man had known her carnally and had begotten a daughter from her; this she endeavored to demonstrate by her own oath. But because upon these matters you received not only various but contrary opinions, recurring to the teaching authority of the Apostolic See, you humbly asked to be instructed as to what is to be thought in such matters. But we, having inspected the attestations admitted by the parties, which you sent to us enclosed in your letters, respond to your consultation in this manner: since it is manifestly established through the confession of both the man and the woman that, after the betrothals were contracted, carnal union followed between them, there is indeed a strong presumption in favor of marriage, because he appears to have withdrawn from the appended condition. For even if each point is proved by witnesses, that, after the father and paternal uncle of the man contradicted the betrothals, the same man knew that woman by carnal union, nevertheless it is in no way proved that, before he himself knew her, his father and paternal uncle had taken care to contradict. [Given at Ferentino, on the second day before the Ides of July. 1203.]

Latin source headnote: If a shameful or impossible condition is appended in a contract of marriage, it is held as not added, unless it is contrary to the substance of marriage, because then it vitiates the contract. This the chapter says; it is notable and highly citable.

Gregory IX. If conditions contrary to the substance of marriage are inserted, as, for example, if one says to the other, “I contract with you if you avoid the generation of offspring,” or, “until I find another more worthy in honor or resources,” or, “if for gain you hand yourself over to be adulterously used,” the matrimonial contract, however favorable it may be, lacks effect; although other conditions appended in marriage, if they are shameful or impossible, ought, because of the favor shown to it, to be held as not added.