Article — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Article II. On the Obligation and Effects of Betrothals
- Principles. - I. Betrothals bind in justice under grave sin to enter matrimony at the determinate time, if one has been determined; but if no time has been fixed, as soon as one party reasonably requires it. The reason is that where there are true betrothals, there is a true contract in a grave matter, and thence a grave obligation follows 1. - St. Ligorius, no. 845.
1 This obligation urges both in the forum of conscience and in the external forum. Therefore, one who withdraws can be compelled by the judge to matrimony, even through censures (chapter Ex litteris 10, On Betrothals); although exhortations and admonitions must first precede (chapter Requisivit 17, under the same title), and coercion must also be abstained from if at any time, after inspecting the circumstances, the judge prudently judges that grave evils and scandals are to be feared from unwilling nuptials, for example, perpetual quarrels, the departure of the husband from the wife, or even conjugal murder. For it is expedient that the lesser evil be permitted in order to guard against a graver one, and thus favor is also bestowed upon the Plaintiff by the judge. See Sanchez (book 1, disputation 23, no. 4) and Schmalzgrueber (book 4, title 1, nos. 94-95).
II. Betrothals induce an impeding impediment to matrimony, or one prohibiting matrimony from being licitly contracted with another person unless the prior betrothals have been legitimately dissolved. The reason is that, from what has been said, betrothals produce an obligation of justice. - See what is to be said below, no. 778.
III. Betrothals also induce the impediment which in law is called public decency, by which, namely, one of the betrothed becomes incapable of contracting matrimony with blood relatives of the other in the first degree. - See what is to be said below, no. 815.
- Questions. - QUESTION 1. If someone contracted betrothals with two women and sinned with the second, which one must he marry?
Reply 1. Matrimony is certainly to be contracted with the first if, when he was contracting with the second, she was aware of the prior betrothal. The reason is that then the second was not deceived but wished to be deceived.
Reply 2. More probably, matrimony is also to be contracted with the first even if the second was not aware of the promise made to the other. The reason is that the promise made to the second is always null, as being concerning an illicit matter, nor does an injury inflicted upon the other take away the right of the first; and this has force even if the second promise was confirmed by an oath. - St. Ligorius, no. 848.
QUESTION 2. Must the first betrothed woman then yield her right if the other would suffer grave harm from the loss of virginity?
Reply. Probably no. The reason is that the second betrothed woman must impute harm of this kind to her own weakness. - St. Ligorius, ibid. Nevertheless, the first should be persuaded to renounce her right voluntarily unless perhaps she also would incur notable harm therefrom. - St. Ligorius, ibid.
- QUESTION 3. Are earnest pledges licit in betrothals?
Reply. Yes. The reason is that they are neither prohibited by Canon law nor opposed to natural law. - St. Ligorius, no. 852.
QUESTION 4. Must the bride return gifts 2 received from the bridegroom if matrimony does not follow?
2 Betrothal gifts or donations differ from earnest pledges because the latter are given as a pledge or security for fulfilling the thing promised; and therefore he who has given them recovers them when that concerning which agreement had been made is fulfilled. On the contrary, whatever is given by way of betrothal largesse cannot be reclaimed once the nuptials have followed, but ownership of it passes fully to the person to whom it was given, or rather the donation is confirmed and becomes absolute.
Reply 1. No, if the betrothal is dissolved through the fault of the bridegroom, because he, by culpably withdrawing from the promise, is deservedly considered to accept the loss of these gifts. Thus common practice.
Reply 2. Yes, speaking per se, if the betrothal is dissolved without the fault of the bridegroom, and a fortiori if through the fault of the bride; for the bride cannot retain them without injustice, since they were bestowed only in view of matrimony. The same would have to be said if one of the betrothed who received gifts or earnest pledges from the other were overtaken by death before the matrimony was entered; for according to what has just been said, the parents of the deceased are bound to restore everything to the surviving betrothed.
I said speaking per se, because if, considering the condition of the bridegroom, the gifts are of small importance and he does not object, he is considered to remit them.
- QUESTION 5. Must one who promised matrimony to a girl on the condition that he sin with her marry her?
Reply. Yes, with the common opinion, according to what was said concerning Justice, volume 1, nos. 729 and 760 3. - See St. Ligorius, book 3, no. 642, where he says that this opinion must altogether be held.
3 In the notes which you will find appended to these places, it was shown that the opposite opinion is strengthened merely by the deceptive coloring of fallacious citations.
- QUESTION 6. Can a merely civil marriage, as it is made in France before a magistrate, be regarded as equivalent to betrothal?
Reply 1. It appears that it must be affirmed if the contracting parties have the intention of afterward having recourse to the Church and contracting before the Pastor, and manifest this intention by an external sign 4. The reason is that then they do not contract matrimony but only satisfy the prescription of civil law and at the same time bind themselves, at least implicitly, to contract true matrimony before the Church.
4 This question ought to appear nearly useless. For it must not be thought that those who approach the magistrate for this reason had not previously agreed among themselves concerning the matrimony to be contracted or had not expressly given mutual pledges. It must therefore be supposed that true betrothals have already preceded. As regards the obligation of betrothal and the consequent impediment of public decency arising therefrom, it appears useless to inquire whether a ceremony of this kind before the civil magistrate contributes anything to these.
Reply 2. If they do not have such an intention, the civil contract cannot be regarded as a betrothal contract. The reason is that there is no promise of matrimony 5, but only a clandestine matrimony here and now, which in no way has the force of betrothal, as the Sacred Congregation of the Council of Trent declared 6. - Carriere, no. 565. - See Cases, no. 847.
5 Where the intention of celebrating matrimony before the Church is absent, not only in this civil contract (if it merits the name of contract), but not even in the preceding pledge concerning future nuptials, which must be supposed to have been mutually given, will there be any true promise of matrimony or any nature of true betrothal. The reason is evident, because if that intention is absent, matrimony, which does not exist among Christians apart from the Sacrament of Matrimony, is no longer promised; but under the name of matrimony a merely concubinous union is promised.
6 That a clandestine matrimony, even with intercourse subsequently occurring, is not resolved into betrothal concerning the future is reported in a twofold declaration by Benedict XIV (Canonical Questions 291, near the end), and you also have it in the Thesaurus of Resolutions of the Congregation of the Council (volume 2, pp. 239-244). Therefore, Cabassutius (Theory of Canon Law, etc., book 3, chapter 24), Coninck (On the Sacraments, disputation 32, no. 78), De Rhodes (Scholastic Theology, Treatise on the Last Five Sacraments, section 5, section 7), Schram (Institutions of Theology, On Matrimony, no. 1230), and any others who, for precisely this reason, taught that the impediment of public decency arises therefrom only to the first degree, are not to be heard. Nevertheless, an exception must be made with Sanchez (book 2, disputation 20, no. 6) unless those contracting the clandestine matrimony had the intention of binding themselves in the manner in which they could; for since they could bind themselves through betrothal, they will remain thus bound, not indeed by force of the contract concerning the present, which is null, but from betrothals contained implicitly in the same contract according to their intention.
A graver question is debated whether that impediment of public decency arises from a clandestine matrimony, not insofar as it passes over into betrothal, but insofar as, according to the ancient Law (which St. Pius V, in the Constitution Ad Romanum, July 1, 1568, declared to be in no way changed as regards this), an impediment of this kind, and indeed to the fourth degree, arises from any ratified matrimony, even invalid, provided it was not invalid because of defect of consent. This question can indeed also regard those who perhaps had the intention of contracting betrothal concerning the present before a civil magistrate.
Moreover, several, and indeed grave Authors, taught that the impediment is incurred, such as Gonzalez, Pontius, Wiestner, Guttierez, Laurenius, Fagnanus, etc. They appear to have been led chiefly to this opinion by certain Declarations of the Sacred Congregation of the Council which were circulated, the principal and better known of which can be seen in this same place in the preceding edition of this work. Nevertheless, others, neither fewer in number nor less venerable in authority, such as Navarrus, Sanchez, Lessius, Tanner, Pirhing, Engel, Barbosa, Cardinal De Laurea, Emmanuel Sa, etc., went over to the opposite opinion and therefore deny that any impediment follows from a matrimony invalid because of the defect of clandestinity. They dispose without difficulty of the Declarations which the patrons of the first opinion allege, and show that some are apocryphal and others do not pertain to the matter. In this diversity of opinions, therefore, there remains place for that general canon which will be stated below for cases of a doubtful ecclesiastical impediment.