Article — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Article I. On the Nature of Betrothals
- Definition. - Betrothals are a deliberate promise (namely, with deliberation sufficient for mortal sin) 1, mutual 2, and expressed by a sensible sign 3, of future matrimony between capable persons.
1 Some affirm, and others deny, in Bonacina (On Matrimony, question 1, point 4, no. 4) and Sanchez (book 1, disputation 16, no. 15), that deliberation which suffices for sinning mortally is sufficient; and among the latter is St. Thomas (Supplement, question 43, article 2, reply to objection 2; or On the Fourth Book of the Sentences, distinction 27, question 2, article 2, reply to objection 2). You will reconcile both opinions without difficulty by the same reasoning by which the Doctors, who disagree only in appearance, are reconciled concerning whether deliberation which suffices for mortal sin is sufficient for the validity of a vow. Concerning this, see volume 1, no. 320, with the note.
2 If the promise is not mutual but belongs only to one party, there will not be a contract of betrothal, which is onerous and binds each side in justice, but a contract of simple promise, which is gratuitous and binds from mere fidelity if the other party accepts the promise. St. Antoninus (part 3, title 1, chapter 18, section 3) gives an example in one who says: I give my pledge... and I shall wait one or two months or years or for all time, prepared to marry you if you wish. But the other party can accept the promise and remain free in the meantime, so that, after taking counsel, the betrothal offered to him or her may either be admitted or rejected. I said the betrothal offered, for this is a certain promise of contracting betrothal. As Schmalzgrueber observes (book 4, title 1, no. 49), although it obliges one to contract betrothal and appears to be a promise of matrimony, at least mediately, nevertheless it does not merit the name of betrothal and therefore produces neither public decency nor the other effects proper to betrothal, just as a promise of sale is not a sale and does not transfer title to another. - See Sanchez, On Matrimony, book 1, disputation 5, no. 7 and following.
3 It is said, by a sensible sign, that is, by any exterior sign by which there is expressed that to which each of the contracting parties consents and what is accepted, and by which the mutual acceptance is made known to the other, so that the contract becomes absolute. Words, therefore, are not necessary, for they could neither be uttered by a mute person nor heard by a deaf person, between whom, nevertheless, both betrothal and matrimony can be contracted, as is established from chapter Cum apud 23 and chapter Tuae 25, On Betrothals. The contrary is to be said, as Sanchez notes (On Matrimony, book 1, disputation 8, no. 13), concerning one who is both deaf and blind from birth; for he can neither hear words, since he is deaf, nor perceive other signs, since he is blind, and therefore cannot be taught what matrimony is unless perhaps he can be instructed and taught by some new art.
It is not necessary, however, that consent be signified by the contracting party himself or in his presence, but a contract can be made between absent persons either through an intermediary, or by letter (law In sponsalibus 18, Digest, On Betrothals), or through a Procurator (chapter Procurator 9, On Procurators, in the Sixth Book). The Procurator, nevertheless: first, must have a special mandate for contracting betrothal, and indeed with a determinate person; second, must execute the mandate personally unless he has expressly received the faculty of substituting another for himself; third, at the time when the Procurator executes the mandate, it must not have been revoked by the Mandator, for otherwise (which is a prerogative proper to matrimonial contracts) he contracts invalidly, although neither he nor the other party is aware of the revocation.
Moreover, the expression of consent through some sign is so necessary that silence in the face of nuptials offered to oneself in no way suffices. For although matrimony is numbered among favorable causes, in which (rule of law 43, in the Sixth Book) he who is silent appears to consent, contracting with a certain person can be harmful. See Schmalzgrueber (book 4, title 1, no. 58) and Sanchez (On Matrimony, book 1, disputation 23, no. 7). - Except betrothals which parents contract for their children, whether the children are present or absent; for if, when the matter has become known, they do not contradict it, they are presumed by law to consent tacitly by their very silence. Thus expressly in the sole chapter, section 2, On the Betrothal of Minors, in the Sixth Book: From betrothals which parents very often contract for children who have reached puberty or are minors, the children themselves, if they have consented expressly or tacitly, as if they were present and did not contradict, are bound; from them arises the justice of public decency. And it is the same if the children were absent and even ignorant at the time of the betrothal, and afterward, having learned of it, ratified the same betrothal tacitly or expressly. Otherwise, from betrothals contracted by parents for their children, neither are the children themselves bound nor does the justice of public decency arise therefrom. Concerning these things, several observations are to be made.
First, according to the most common opinion (see Sanchez, book 1, disputation 23, no. 7, and St. Alphonsus, book 6, no. 839), under the name of parents come only the father and mother, not a tutor or curator or any other relative by blood or affinity. Schmalzgrueber (book 4, title 1, no. 67) rightly gives the reason, because by natural and divine law the contract of matrimony and betrothal is so personal that no one, not even a father, can stand for a son by that law unless he has a special mandate from him. And therefore, if the consent of the parents joined with the silence of the son makes a presumed betrothal, this is had from the provision and presumption of positive law alone. Moreover, since this provision of positive law restricts natural law, it ought not to be extended beyond the case expressed in the law; but it would be extended if this proceeded also in tutors, curators, brothers, relatives, etc. See also Diana, volume 2, treatise 6, resolution 32.
Second, it does not matter whether the children are legitimate or illegitimate or even emancipated. For a distinction of this kind is not made in the cited text; and although by civil law those who are born from condemned intercourse are not called children, nevertheless, in this matter consideration of nature is more powerful than civil law. But the reason drawn from nature has no less force for illegitimate and emancipated children, since great parental love is presumed even toward them.
Third, what is said in the text, that betrothals contracted by parents for children even when absent are valid if the latter afterward, knowing of them, ratify them expressly or tacitly (which tacit consent or ratification is sufficiently inferred if they did not contradict, as the same text previously says), is to be understood if they did not contradict when the parents themselves, either personally in their presence or through a messenger or letter, made the children more certain concerning the matter. For if others, apart from a mandate of the parents, report it to the children, there is no reason why, if perhaps they wish to object, they must express their dissent; for they are not bound to disclose their mind to everyone, and therefore silence then in no way indicates consent.
Fourth, finally, St. Alphonsus (book 6, no. 838) rightly warns that the silence of children in the aforesaid circumstances is equivalent to consent only as regards the external forum, since consent of this kind is merely presumed; but for betrothal there is required consent not merely presumed, but true and natural. Hence, if it in fact happens that the child is then silent either because of reverential fear or for some other cause, but inwardly dissents or even merely holds himself negatively, in the internal forum, in which one speaking both against himself and for himself is believed, the exterior presumption has no effect. Therefore the betrothal is null, and the Confessor can tell a penitent of this kind that he is in no way bound by that betrothal. Indeed, neither will it have force in the external forum if, for example, a girl proves her dissent; this can be done by other conjectures or presumptions or, in their absence, by an oath. See Schmalzgrueber (book 4, title 1, no. 63).
- As ecclesiastical or solemn, and private, according as they are celebrated in the presence of the Church, that is, before the Pastor 4 and witnesses, or are completed privately by the consent alone of the contracting parties, or before the parents in the midst of the family.
4 The Pastor is indeed accustomed, before proceeding to the proclamations, to investigate the will or consent of the contracting parties concerning the future matrimony. But he is accustomed prudently to take care that he question each of them separately, and he does not then customarily employ witnesses. The reason for this prudent precaution is lest, if the betrothed stand together before the Pastor, even with witnesses, what would otherwise be a betrothal concerning future matrimony should instead become a betrothal in the present.
- As absolute and conditional, according as they are made without any condition or with some condition attached.
- Principles. - I. For the validity of betrothals, all the conditions contained in the definition are required, so that if one of them is lacking, the betrothal contract is to be regarded as null 5. The reason is evident from what was said concerning the nature of a contract, volume 1, nos. 754 and 772.
5 Since the Author adds nothing concerning the last condition, which requires capable persons, it is useful to append some things concerning it.
Thus those persons are capable by law of betrothal who can contract matrimony both validly and licitly; and therefore, on the contrary, those will be called incapable who cannot contract either validly or at least licitly. This can be the case in two ways: either because they are generally incapable of a human act, or because they are incapable of this particular promise. The latter occurs when there intervenes either a diriment impediment or even a merely impeding one; these will be treated below in their place. But incapacity for a human act in general can arise either from defect of age or from want of judgment. Concerning these, some things are now to be said.
Since, therefore, for the validity of a contract it is necessary that each contracting party be master of himself and have the use of reason, if either is insane, the betrothal will be null. This is confirmed from chapter Dilectus 24, On Betrothals. Under the name of insane persons, however, there do not here come certain more stupid persons, nor certain half-witted persons in whom the right use of reason is lacking only as regards certain things but by no means as regards others. Namely, the general rule is to be applied: those are capable of this contract who have as much use of reason as suffices for sinning mortally. Compare Sanchez (On Matrimony, book 1, disputation 8, no. 15 and following), who in addition supplies a suitable reason for judging concerning those demented persons who have lucid intervals. What has been said concerning the insane has equal force concerning one who contracts while intoxicated, for an intoxicated person lacks free consent and due deliberation. Nor does it suffice that the intoxicated person previously had the will of contracting betrothal or matrimony while he was of sound mind. For the contract itself must be a human act; in addition, since the contracting parties are the ministers of the Sacrament of Matrimony, this requires the present use of reason.
As regards capacity by reason of age, the common opinion of the Theologians and Canonists is that, regularly and speaking per se, seven completed years are required and suffice for betrothal. For that perfect deliberation which an onerous contract of this kind requires is not ordinarily and regularly present before this time, but is usually present when seven years have been completed. This is confirmed from Canon law, chapter Litteras 4, chapter Accessit 5, chapter Ad dissolvendum 13, On the Betrothal of Minors, and the sole chapter under the same title in the Sixth Book.
It was said regularly and speaking per se, for according to the common opinion of the Theologians and Canonists (see Ferraris, Library, entry Betrothals, no. 15), betrothal will be contracted validly even before the age of seven if malice and prudence supply for age, namely, if a sufficient use of reason for deliberating is evident and at the same time the contracting parties sufficiently understand what is being done. See Sanchez (On Matrimony, book 1, disputation 16, no. 9 and following). On the contrary, even when the age of seven is completed, the betrothal will be invalid if due use of reason is not yet present. Hence St. Thomas (Supplement, question 43, article 2, reply to objection 7): It is better that it be determined according to the condition of the contracting parties, because in some the use of reason is accelerated more than in another. Therefore, the age of seven years is prescribed by the laws merely for prudently presuming from those things which commonly happen, so that, unless the contrary appears, betrothals contracted before the age of seven are not considered valid, nor those celebrated after the completion of seven years invalid. Therefore, betrothals before seven years are not to be held valid unless the contracting parties are proved capable of malice; but after seven years have been completed, they are to be held valid unless it is proved that they were not yet capable of malice. Accordingly, in doubt one must stand by what the law prescribes.
Nevertheless, although betrothals of children who have attained the perfect use of reason are held valid by the sacred Canons and therefore induce the impediment which is called the justice of public decency, nevertheless, in order that provision be made for the weakness of age, the Church specially decreed certain things concerning them (see chapter De illis 7, On the Betrothal of Minors), namely: first, if each contracting party is indeed older than seven but is a minor, neither can withdraw before puberty, but can object or dissent only after attaining puberty. This was most wisely provided. For, as Covarruvias observes (Epitome, book 3, Decretals, chapter 5, section 1, no. 1), minors, because of the fragile constancy of their age, would frequently contract and frequently dissent from contracts.... But from that inconstancy... the impediment of public decency would be multiplied without end according to the number of betrothals. Second, even if the contract was between one who had reached puberty and a minor, the latter, when he comes to puberty, can withdraw. Third, nevertheless, he who was already of puberty cannot withdraw. (This opinion of the Canonical text is rendered backwards by the one who inscribed the rubric upon the cited Chapter in these words: He who first reaches puberty shall await the other. This is false, for according to the common opinion, whichever contracting party first reaches puberty can object immediately and is not bound to await the puberty of the other. See Covarruvias, l.c.) Fourth, if the one who first reaches puberty does not object but awaits the other, the latter nevertheless, when he also reaches puberty, can object and dissent.
These provisions of Law have equal force whether they expressly wished to contract betrothal alone or contracted betrothal only virtually. Namely, by provision of Law (see chapter Tuae nobis, at the end, On the Betrothal of Minors, and the sole chapter, section 1, under the same title in the Sixth Book), when either two minors in whom malice does not supply for age, or a minor with one who has reached puberty, contract a betrothal not concerning the future but concerning the present, this contract has force not as matrimony, for which they are incapable, but, by interpretation of law, only as betrothal concerning the future (unless perhaps they expressly intended only to bind themselves by the bond of matrimony, as Sanchez observes, book 1, disputation 21, no. 3). Whatever things have been said concerning the right of withdrawing from express betrothals when puberty is reached have precisely the same force in this latter mode of betrothal also. And here take special notice that this ancient law concerning clandestine matrimony contracted by minors, according to which it passes over into betrothal, was not corrected or abrogated by the Tridentine decree concerning clandestine marriages. Concerning this, Sanchez (On Matrimony, book 1, disputation 21, no. 5) mentions a Declaration of the Cardinals from the report of Peter De Ledesma. Pignatelli (Consultations, volume 9, consultation 133, no. 46) reports it thus (unless perhaps it is another): It was asked whether a matrimony contracted clandestinely by words concerning the present between one who had reached puberty and a minor, the form handed down by the Council not having been observed, is resolved into betrothal; this pleased some Doctors consulted concerning the matter from the Response of Boniface VIII in the sole chapter, section 1, On the Betrothal of Minors, in the Sixth Book. The Sacred Congregation declared this opinion true, so that clandestinity does not prevent the matrimony contracted by words concerning the present between one who has reached puberty and a minor from having force. But because the law is interpretative, such matrimony contracted by words concerning the present is only betrothal by words concerning the future (the aforesaid section 1). Therefore, just as clandestinity would not harm the validity of betrothals contracted by persons who had reached puberty, as the Sacred Congregation has already declared, and there is no doubt concerning this, so neither will it prevent the validity of these betrothals contracted between one who has reached puberty and a minor.
II. Betrothals have force in the same manner whether they are solemn or ecclesiastical, or private or clandestine, because the consent of two persons suffices for a true contract; nor has the Church ever invalidated private betrothals. Indeed, now in most places solemn betrothals have fallen into desuetude.
III. Betrothals entered into under a condition concerning the present are valid here and now if the condition is verified; but if they are contracted under a condition concerning the future, they will have force as soon as the condition is fulfilled, without new consent of the contracting parties, provided neither has revoked the consent previously given. In the meantime, however, the contracting parties are bound to await the fulfillment of the condition if it is honorable.
IV. When words or signs are doubtful, in the forum of conscience one must stand by the intention of the contracting parties if it is established; but in the external forum, by the common understanding and sense of the words. - St. Ligorius, book 6, no. 840 6.
6 You have rules for determining the sense of words in Schmalzgrueber (book 4, title 1, no. 50). Moreover, when the words or signs still remain doubtful and equivocal, according to the common opinion of the Theologians even the betrothal must be held doubtful. In this case St. Alphonsus (book 6, no. 840), having cited the opinion of those who think one must incline in favor of matrimony, more probably judges with Viva that one must incline in favor of liberty. But in reality the Doctors here disagree only in appearance, for some speak of betrothal concerning the present, while others speak of betrothal concerning the future. Hence Diana (volume 2, treatise 6, resolution 135, no. 4) thus composes the matter according to the sense of each side: I would think that a distinction must be made between betrothal and matrimony, so that when in equal doubt they doubt whether matrimony was contracted, the contracting parties should be compelled in both forums, lest perhaps injury be done to the Sacrament through the dissolution of matrimony; but when it is doubted whether the betrothal is valid, they should be judged free in both forums, because if someone were then compelled against his will, injury would be done to him through the despoiling of the liberty which he possesses.
- Questions. - QUESTION 1. Are betrothals contracted from grave fear valid?
Reply. More probably, no. The reason is that matrimony contracted from grave fear is null, as is established from Canon law and will be explained below, no. 747. Therefore, by that very fact, betrothals entered into from such fear must also be null. - St. Ligorius, no. 844 7.
7 The question must be understood as asking whether these betrothals are valid by natural law. For the two opinions differ in this: one opinion (also certainly more probable to St. Alphonsus) says that the contract is invalid by natural law; but the other says that it is valid, though rescindable by him who suffered the fear. Therefore, this latter opinion must also necessarily admit that the impediment of public decency arises therefrom, which the former consequently more probably denies is incurred.
QUESTION 2. Are betrothals entered into from light fear valid?
Reply. Yes. The reason is that one who instills light fear is not considered to inflict a grave injury upon another, since the latter can easily despise such fear and consequently is considered to have willed voluntarily to suffer the injury. Recall what was said concerning Human Acts, volume 1, no. 10. - St. Ligorius, ibid. - Lacroix, no. 105, etc. Some nevertheless deny it, because no one is bound to suffer an injury and therefore cannot be obligated through an injury 8.
8 St. Alphonsus (book 6, no. 844, question 2) does not deny that this latter opinion also is probable; nor without merit will others hold it as more probable. For the matter always comes back to this: that the other is compelled through injury toward one of two alternatives, namely, either certainly to undergo some evil, whatever it may be, or to admit a contract which he otherwise would not wish to admit.
But this is repugnant to natural law, which requires both that the right of each person be preserved intact and that, if perhaps it has been injured, it be restored anew in its integrity. Nor is the reason of the opposite opinion firm; for it is false that an injury is voluntarily admitted when someone is unjustly compelled necessarily to undergo one or the other injury.
The reason by which St. Alphonsus (l.c., question 3), with the more common and more probable opinion of the Doctors, proves that even one who suffered light fear can rescind the contract supports the same opinion: namely, just as he (that is, the one instilling unjust fear) is bound to release the pledge unjustly extorted through such fear, so the one who suffered the fear can revoke the pledge given. And surely, unless we wish to abuse words, a contract which produces no obligation can never be called valid; but no obligation is in fact to be said to exist which someone, as in the present case, can cast off at will. Therefore, the contract is rightly to be called invalid by natural law itself.
Nor should it appear to anyone to be the same whether you call these betrothals invalid by the law itself or valid but rescindable at the judgment of the one who suffered the fear. For this distinction of the greatest importance intervenes: in the latter opinion the impediment of public decency arises from the contract, but in the former not at all. Since the latter cannot be denied its probability, it will therefore be altogether probable that no impediment arises from that contract and consequently that matrimony is validly and licitly contracted, according to the general rule which we shall see below to be handed down by the common opinion of the Doctors in a case of a doubtful impediment introduced by ecclesiastical law.
** The VV. object first against this Note (p. 792): Father Ballerini does not rightly assert that St. Alphonsus does not deny that this latter opinion is probable. Reply. Then let the VV. show, I ask, where the holy Doctor denies that it is probable.
The VV. reply (ibid.): St. Alphonsus reports authorities favoring this opinion without pronouncing any judgment concerning its probability. Reply 1. Let the antecedent pass; I deny the consequence. The reason is evident, because one who pronounces no judgment neither affirms nor denies. Therefore, it is most true that the holy Doctor does not deny it. But why the antecedent has been allowed to pass will be evident from the things to be said.
Second, against the argument of the Note that the other is compelled through injury toward one of two alternatives, the VV. (p. 791) object these things: Here you have a mere sophism. For where there is only light fear, there is not considered (as St. Alphonsus observes) to be a true injury. Reply. I certainly do not know how the VV. say that St. Alphonsus observed that there is no injury. For are not these the words of St. Alphonsus (book 6, no. 844, question 3), cited by the VV. themselves (p. 789): Just as he is bound to release the pledge UNJUSTLY extorted through such fear, so the one who suffered the fear can revoke the pledge given? But is not a pledge unjustly extorted a true injury? Indeed, do not the VV. themselves (ibid.) write a little below: He who suffered light fear... since he suffered an injury, although not a grave one, etc.?
Third, the VV. add (ibid.): Nor is the one who suffered fear properly said to be compelled, since he can easily repel fear of this kind. Reply. I distinguish. If by repel the VV. understand avoid, I concede it; but this is apart from, indeed contrary to, the present hypothesis, in which it is established that someone must necessarily undergo one or the other inconvenience; therefore, I deny the supposition. But if by repel they understand tolerate, I deny that he is not compelled; for he is truly compelled upon whom, though unwilling, the necessity of tolerating or suffering one or the other is imposed, no differently than the unavoidable necessity of suffering the loss either of money or of life is imposed by a robber upon a traveler.
Fourth, the VV. insist (ibid.): Father Ballerini supposes as undoubted and admitted by all precisely that which is denied, namely, that in the case THERE IS TRUE COACTION. Reply. Do the VV. here wish (indeed less opportunely) to play with words for a while? We shall put an end to the play with St. Thomas (On the Fourth Book of the Sentences, distinction 29, question 1, article 1). St. Thomas therefore says: Coaction is twofold. One which causes absolute necessity, and such a violent thing is called simply violent by the Philosopher, as when someone bodily drives another to motion. The other causes conditional necessity; and this the Philosopher calls mixed violence.... And because this coaction arises from the fact that some imminent danger is feared, therefore THIS FORCE IS THE SAME AS FEAR, which in some manner COMPELS the will. Moreover, since fear is in question in the case, it is certainly easily understood in what sense the word coaction is employed in the Note.
Fifth, against the other argument of the Note, the VV. (ibid.) write: Father Ballerini abuses words not slightly. For by the very fact that a contract is rescindable it is not invalid, since no one rescinds that which does not exist. Certainly, a contract which produces no obligation can never be called valid; but it cannot be said of a rescindable contract that it produces no obligation; rather, as is established from the things said above, it produces a true and natural obligation in each contracting party.
Reply. I would think there to be neither a slight nor a non-slight abuse of words in these things which De Lugo writes (On Justice and Right, disputation 22, no. 75): I suppose the definition of an onerous contract... which, namely, produces a mutual obligation on each side; but if it obliges only the one party, it already falls short on that side of the true nature of a contract and is valid on one side alone. For it is valid insofar as it obliges; therefore, if it does not oblige on both sides, it is not valid on both sides. Moreover, in the present matter there is no question whether he who extorted the pledge from the other through fear is obligated; for the Doctors agree that he is obligated. Thus collapses the reason of those who therefore contended that contracts extorted by fear are valid, lest he who had instilled the fear or deceived the other be free from obligation. The question, therefore, concerns him whose consent to the contract was extorted through fear. Is he obligated to contract matrimony in the case?
An obligation is a bond of law by which we are bound by necessity to discharge something. Thus the Institutes, book 3, title 14. Therefore, is he bound by necessity to contract matrimony? And if even St. Alphonsus, as the VV. themselves allege him, denies this, how do they themselves say that a contract of this kind produces a true and natural obligation in each contracting party? The VV. write: as is established from the things said above. But from the things said above the opposite is rather established. Moreover, as De Lugo says, a contract is valid insofar as it obliges.
Sixth, they say, By the very fact that a contract is rescindable, it is not invalid, since no one rescinds that which does not exist. Reply. Rescission of the contract in the case does not mean removal of an obligation which exists. For how could someone in the forum of conscience rescind a contract with a safe conscience if there existed some obligation by which he was bound? Therefore, rescission of the contract in the forum of conscience merely means a declaration of the will rejecting an obligation by which the natural law does not bind him by force of that contract.
And thus Molina rightly replies to the argument which those who defend the validity of these contracts employed, because, namely, the law prescribes that they are to be rescinded (On Justice and Right, tract 2, disputation 326, no. 14), that it is not necessary for the laws to be understood as speaking of rescinding a contract valid in itself, but rather as declaring their invalidity. And surely, as the same Molina observes, ownership is so little considered to have been transferred through a contract of this kind that in the law (law 9, section 5, Digest, What Is Done Because of Fear) it is expressly said that an action in rem is granted to the injured party and that the thing itself is among his goods, so that an action is granted against any persons whatsoever to whom that thing has come. See also Voet, book 4, title 2, no. 4. And indeed, when judges decree that a contract is to be rescinded, do they remove any obligation imposed by natural law, or do they not rather declare that no obligation of this kind exists?
Moreover, the reason why the laws speak in this way concerning these contracts, as though they are to be rescinded, is easily apparent. Namely, by a fiction of law, as the same Molina notes, ownership of a thing handed over by force of fear is considered transferred; or, to speak better, a contract is always presumed valid. Therefore, the burden of proving the fear instilled is cast upon him who suffered the fear, and deservedly indeed, because fear is not presumed. But a presumption concludes nothing of itself and in the end always yields to truth.
Seventh, the reason must now be given why at the beginning the response to the first difficulty of the VV. was, Let the antecedent pass. For it has already been said that rescission of a contract supposes that no obligation in fact arose by force of that contract in the one who suffered fear; and from this it must be repeated that he can rescind the contract at his judgment. Therefore one must conclude with De Lugo: Therefore, the contract is not valid. For a contract is valid insofar as it obliges.
Moreover, St. Alphonsus, asking (book 3, no. 718) whether a contract entered into from light fear is rescindable at the judgment of the one who suffered fear, expressly says (which part of the response the VV. do not rightly cut short) that the first opinion probably affirms it. Indeed, although in that place he follows as more probable the negative opinion, nevertheless, with the Salmanticenses he excepts the contract of betrothal. In addition, in book 6, no. 844, question 3, asking, Can one who contracted betrothal from light fear which gave cause to the contract rescind it in conscience?, he says that the affirmative opinion appears more probable to him. Therefore, according to the opinion approved by the holy Doctor, no obligation is supposed to have arisen on the part of the one who suffered fear. But if no obligation arises, the contract cannot be called valid on that side, because the whole validity or force of a contract resides in this: that it imposes a necessary bond upon the contracting party, or produces an obligation. Therefore, the opinion of St. Alphonsus ultimately leads to this, that these betrothals can be called invalid on the part of the one who suffered fear. Therefore, that Antecedent, where it was said that St. Alphonsus pronounces no judgment concerning that opinion, ought rather to have been allowed to pass than conceded.
Eighth, for a certain greater clarity of the matter, it will be useful to inspect the reasons which the holy Doctor employs to prove the greater probability of each of his aforesaid opinions. Thus, in order to demonstrate that betrothals can more probably be rescinded in conscience if someone contracted them from fear, he reasons thus (book 6, no. 844, question 3): The reason is that, since fear gave cause to the contract, so that otherwise it would not have been entered into, the one instilling the fear is bound to rescind the contract. Hence, just as he is bound to release the pledge unjustly extorted through such fear, so the one who suffered the fear can revoke the pledge given. These things indeed manifestly argue that the one who suffered fear contracted no obligation, that the contract has no force as regards him, and consequently is invalid; for we call invalid that which lacks the force of obliging.
But where he wishes to demonstrate that contracts entered into from light fear generally cannot more probably be rescinded at the judgment of the one who suffered fear, a conclusion which can appear opposed to the preceding, he reasons thus (book 3, no. 718): The reason is that he who knew the fear to be light is not presumed to have consented from fear, but truly voluntarily. Moreover, here the holy Doctor does not so much prove his thesis as deny the hypothesis, which, namely, supposes that fear in the case gave cause to the contract. For in that hypothesis, as we have just seen, he establishes by a most solid reason that one who in fact consented because of fear is bound by no obligation and therefore that the contract has no force. Nor, again, does a presumption, which here is not indeed a presumption iuris et de iure, furnish sufficient foundation for asserting this other thesis of St. Alphonsus, namely, that a contract entered into from light fear cannot be rescinded either in the external or the internal forum. Let it now pass that presumptions are in no way attended to in the internal forum of conscience, but only the truth, of which each person is certainly conscious within himself. But even if there is question of the external forum, in a case of this kind an action will indeed generally be denied by provision of positive law, especially if it is established that the fear appeared to the contracting party only as light; although St. Alphonsus, with the Salmanticenses, excepts the contract of betrothal from this general rule. Nevertheless, it must finally be admitted that presumptions of this kind can of themselves produce only this one effect: that, as Cuiacius writes (rubric of the Digest, On Proofs and Presumptions), they transfer the entire burden of proof to him against whom they operate; for otherwise proof of the truth is rightly opposed to a presumption. Therefore, this latter thesis is not in fact opposed to the former, and consequently the argument brought forward by St. Alphonsus for the former, where betrothals are treated, has the same force in any contract whatsoever, provided that the consent of either party was truly extorted through fear, even light fear.
Ninth, after the VV. persuaded themselves that they had now shown the first of the arguments brought forward in the Note to be a mere sophism, but the other to confound two altogether diverse things, and therefore those arguments to be of no force, they conclude (pp. 791-792) that the consequence deduced in the Note also collapses, namely, that it is probable that no impediment arises from these betrothals.
Not every uncertain probability or one asserted only by some is sufficient (they say); but it is required that an opinion of this kind be universally received by the Authors, or at least received as probable. They take these last words from St. Alphonsus (book 6, no. 901).
Reply 1. Unless the VV. bring forward something more solid, it is sufficiently evident from what has been said that nothing is detracted by their arguments from the most solid firmness of the reasons brought forward in the Note. Second, does not the holy Doctor Alphonsus regard as more probable the opinion which gives to the one who suffered fear the full faculty of rescinding betrothals of this kind in the forum of conscience? But this is the same, as we have seen, as declaring those betrothals invalid. Therefore, according to St. Alphonsus, it is more probable that those betrothals are not valid. Reply 3. For what the VV., after St. Alphonsus, require, namely, that the opinion for the absence of the impediment be universally received by the Authors, or at least as probable, the doctrine such as is exhibited by the Doctors cited there by St. Alphonsus can be sufficient for us. Suarez being omitted, therefore, who in part 3, On the Sacraments, question 67, article 8, final doubt (as St. Alphonsus cites him) has nothing which pertains to the matter, Sanchez (book 8, disputation 6, no. 18) writes thus: If the matter is altogether doubtful, whether an impediment intervenes or not, no dispensation is necessary.... When the matter is not truly doubtful, but there are opinions, some asserting that it is an impediment, while others deny it, if the negative opinion is truly probable, although the affirmative were more probable, one following the probable opinion could enter that matrimony without any dispensation.
And Palaus (treatise 28, point 4, section 9, no. 4): If you have an opinion or doubt that an impediment is present, and after diligence has been made for investigating the truth you cannot overcome the doubt, you are not impeded from contracting matrimony, because while it is not established for you that an impediment introduced by human law exists, you ought to regard yourself as free by reason of possession of innate liberty.
Likewise Viva (On Proposition 4 of Innocent XI, no. 20): If the probability concerns the law,
that is, when on each side the Doctors probably judge that something is or is not an impediment,... the custom and practice of the Church is that a matrimony thus contracted is regarded as valid; and therefore the Church does not wish it to be dissolved by an impediment which probably is not an impediment.
Finally, La Croix (book 6, part 1, no. 117): Whenever there is a probable opinion for the absence of an impediment, the most common opinion is... that the Church then also dispenses, when she can, if perhaps the impediment is present. But that probability of this kind is not lacking in the present question has been shown sufficiently and more than sufficiently.
- QUESTION 3. Are betrothals under the condition, if the Pope shall dispense, valid between those who have a diriment impediment?
Reply. According to St. Ligorius, no. 859, and not a few others, although the betrothal does not have force before the condition is fulfilled, nevertheless, the condition having been verified, they have force without new consent. But the negative opinion is to be held from a Decision of the Sacred Roman Rota in Clericati, On Matrimony, decision 17, no. 41, where he testifies that this was the perpetual opinion of the Sacred Rota. This is also established from a Declaration of the Sacred Congregation of the Council in a case from Genoa, December 12, 1733 9.
9 From this Declaration of the Sacred Congregation, nothing can in fact be concluded against the aforesaid doctrine of St. Alphonsus and of several very grave Theologians. For they contend that even without new consent these betrothals have force after the condition has already been fulfilled, that is, when the impediment has already been removed through dispensation. But in that Declaration, on the contrary, the Sacred Congregation defines that the betrothals do not subsist when, as is evident from the case proposed to the Sacred Congregation (Thesaurus of Resolutions, volume 6, p. 205), the condition had not yet been fulfilled and the impediment had not yet been removed through execution of the Apostolic Letters. In this case neither St. Alphonsus nor anyone else ever said that the betrothals have force or subsist. Since, therefore, an altogether diverse case is treated on each side, one opinion is wrongly objected against the other as though contrary. And precisely the same is to be said concerning the other Declarations of the Sacred Congregations which are brought forward with empty labor for the same purpose, as in the case from Brugneto, January 20, 1709; the case from Siponto, May 2, 1857; the case from Mileto, March 29, 1862; and the case from ..., February 22, 1862. (See Acta, etc., Rome, Press of the Propagation of the Faith, volume 1, pp. 79-81.) For these also certainly establish that betrothals contracted under the condition of seeking a dispensation from an impediment are not to be upheld; but they always pronounce judgment in favor of the one who withdrew from the contract before the condition was fulfilled. Hence whoever from a judgment of this kind contends to conclude also to the case of a condition already fulfilled, namely, that for valid betrothals to exist it is necessary that they be confirmed by the contracting parties even after the dispensation has been effectively obtained, by which the canonical impediment was actually removed, draws a conclusion by a logical fault which is broader than the premises.
Here we pass over certain little arguments which Jurists employ for the same conclusion, which indeed tend to this: that these persons are considered incapable even of contracting conditionally. For they are also commonly found dissolved among the Theologians (see also St. Alphonsus, book 3, no. 650), and, if pressed, they easily lead to absurd consequences repugnant to common sense. Nevertheless, I shall not pass over this one point, that some also urge this reason: that it appears ignominious to put into a pact that which depends upon the power of the Prince. In this you surely have an equivocation which I would almost call ignominious. Grant, indeed, that it is disgraceful to promise by pact that a dispensation is to be granted by the Prince. But do those who contract conditionally promise the condition itself (which now is the dispensation)? They promise, namely, the future matrimony and obligate themselves hypothetically to it, and so bind the obligation to the condition of dispensation that, if the latter fails, the obligation also fails. What ignominy is here? Unless perhaps, by parity, you think it ignominious also to promise by vow, under the same condition, your labor in caring for the spiritual salvation of the sick in hospitals, namely, if through dispensation it should fall to you to be initiated into sacred Orders.
Although they find ignominy in the case for another reason, namely, because a dispensation (as they say), as an alteration of law, always strikes at public law, by which society is governed. But where a condition cannot by law be fulfilled, the stipulation is of no moment, etc., as is contained in law 137, Digest, section 6, On Verbal Obligations. - But these things (besides the fact that they would prove, contrary to common sense, that every petition for dispensation is ignominious) savor of a complete forgetfulness of the purpose for which the power and use of dispensing flourishes in society. Let us recall, I ask, the first principle concerning this matter, which St. Thomas (I-II, question 96, article 6) thus declares: Because the legislator cannot consider all singular cases, he proposes a law according to those things which happen in the greater number of cases, directing his intention toward the common utility.... And if the legislator could (he continues there, reply to objection 3) consider all cases, it would not be necessary that he express all of them, in order to avoid confusion; but he ought to make the law according to those things which happen in the greater number of cases. But it happens (he adds there, question 97, article 4) that some precept which is advantageous to the multitude in the greater number of cases is not suitable to this person or in this case, because through this either a greater good would be impeded or some evil would even be introduced.... But it would be dangerous that this be committed to the judgment of anyone whatsoever, except perhaps because of an evident and sudden danger.... And therefore he who has the governance of the multitude has the power of dispensing in a human law which rests upon his authority, so that, namely, in persons or cases in which the law is deficient, he may grant permission that the precept of the law not be observed. From these things it is manifest that by the same natural law and order of things it is required both that society be governed by laws and that dispensation be made opportunely in laws; and consequently the use of dispensations, rather than striking public law, is indeed demanded by a certain higher law. But the cited law, which speaks concerning a stipulation under this condition: If Titius shall sell a sacred or religious thing, or a forum or basilica, and things of this kind which have been left perpetually for public uses, etc., as is evident, does not pertain to the matter.
QUESTION 4. Must promises which are customarily made concerning entering matrimony always be regarded as true betrothals?
Reply. It appears that it must be denied; for often those promises bear the appearance of a proposal rather than of a true promise. In practice, therefore, one must attend to the particular intention of those promising. - See Cases, no. 836 and following.