Article III. On the Dissolution of Betrothals

According to the opinion of all, betrothals can be dissolved for just causes. The principal causes are: mutual consent; a supervening impediment ¹; the choice of a more perfect state, for example, religious profession, etc.; a grave crime of the other party, for example, fornication; a notable change of status, namely, a circumstance which, had it been known or foreseen, would, in the judgment of prudent persons, have deterred one from the betrothal; ². Betrothals can also be dissolved through an excessive delay of matrimony, especially if a time for contracting matrimony had been determined.

¹ Understand a diriment impediment, and indeed one by natural law. For if the impediment is diriment only by ecclesiastical law, although the obligation ceases on the part of the innocent party, it does not likewise cease on the part of the one who by his own fault placed the cause of the impediment, but is only suspended; so that the latter (unless he would thereby incur harm much graver than the injured party would incur from omission of the nuptials) is bound to seek a dispensation from the impediment and, when it has been removed, if the injured party still wishes, to fulfill the pledge given to that party. Nor do the Doctors in fact disagree concerning this matter. For the discrepancy which someone might suspect from those things which St. Alphonsus (book 6, nos. 857-858) reports is owed entirely to the drowsiness and negligence of the Salmanticenses (On Matrimony, chapter 2, from no. 70) in describing the opinions of the Doctors.

** The VV. turn the excuse of St. Alphonsus which the final words of this brief Note present into a reproach against me, and therefore do not hesitate to write these things (p. 794): The reproach of inexcusable drowsiness and negligence redounds upon Father Ballerini rather than upon the Salmanticenses; in reviewing the cited texts he appears not only to have dozed but to have slept. Since, therefore, as is evident, no texts are cited in the Note except those of St. Alphonsus and the Salmanticenses, let us inquire concerning these.

St. Alphonsus (book 6, no. 857) has these things: It is doubtful whether the betrothals are then dissolved on the part of the guilty party. Dicastillus affirms it, and the Salmanticenses think it probable, because, such an impediment being supposed, matrimony has now been rendered impossible. But Sanchez and Palaus, with Coninck and Guttierez, more commonly and more probably deny it; they say that the obligation of the betrothal is then suspended until the impediment is removed, because it is not equitable that the delinquent should derive advantage from his crime. In these words, as is manifest, the more common opinion of Sanchez with others is opposed by St. Alphonsus to the assertion of Dicastillus. Let us therefore inquire whether the assertion of Dicastillus truly disagrees with the more common opinion of the others there expounded, or whether, as is said in the Note, they can be reconciled; and thence it will be evident whether a discrepancy of this kind must be derived from elsewhere than from opinions of the Doctors not rightly described.

The text of Dicastillus (On the Sacraments, treatise 10, disputation 1, no. 554), cited by the Salmanticenses, has thus: It can be proved by a general reason that neither of them (namely, the contracting parties), once an impediment has been introduced either culpably or inculpably, remains obligated IMMEDIATELY AND PROXIMATELY to matrimony; for no one can be obligated to that which cannot be done. Thus the VV. also report the text of Dicastillus (p. 794).

And here indeed it could be asked how it can be called merely probable that, after a diriment impediment has been introduced, the contracting parties are not proximately and immediately obligated to matrimony, when to contract it is then unlawful for them and, in addition, matrimony entered into with a diriment impediment would now be invalid. Is not a matter of this kind rather evident and clear in itself? Nevertheless, St. Alphonsus, as is evident from his words cited above, writes: Dicastillus affirms it, and the Salmanticenses think it PROBABLE, and adds the same reason as Dicastillus: because, such an impediment being supposed, matrimony has now been rendered impossible. And in fact the Salmanticenses also have it thus, adding the same reason (On Matrimony, chapter 2, no. 70): Dicastillus PROBABLY adds.... And the reason is that no one is bound to that which he cannot do, and, such an impediment being supposed, matrimony has now been rendered impossible on the part of each!

But this being omitted, let us now ask whether anyone rightly opposes Sanchez, Palaus, etc., and the more common opinion to the cited assertion of Dicastillus. For there is reason to doubt, because Sanchez also (book 1, disputation 56, no. 1), to the Question, Are betrothals dissolved because of a supervening impediment of law?, replies no differently from Dicastillus: When the impediment is diriment, ALL ADMIT that the betrothals are dissolved..., because matrimony can no longer subsist between them. Since, therefore, according to Sanchez, all Theologians unanimously profess this doctrine, and indeed for the same reason, that matrimony is then impossible, why is it that St. Alphonsus presents Sanchez, Palaus..., and the more common opinion as opposed to Dicastillus and at the same time to Sanchez and the unanimous opinion of the Doctors? Whence this, unless from the opinion of Dicastillus having been wrongly described or proposed by the Salmanticenses?

But again, Sanchez, although with Dicastillus, indeed with all Theologians, he established that in the case betrothals are dissolved because matrimony has now been rendered impossible, nevertheless (l.c., no. 4) adds the question: Is he through whose fault the diriment impediment is contracted bound to obtain a dispensation in order that he may fulfill the betrothal? And then he resolves this question, establishing when he is to be said to be bound to this and when not. Therefore, unless someone wishes gratuitously to contend that Sanchez speaks contradictory things, it must be concluded that that suspension of the betrothals for which St. Alphonsus, as we saw above, cites Sanchez is in no way repugnant to the general doctrine both of Sanchez, Dicastillus, and all Theologians, namely, that because of the induced diriment impediment the betrothals are dissolved, or, as Dicastillus says, neither contracting party remains immediately and proximately obligated to matrimony. It must therefore be said again that the discrepancy which is imagined between the two doctrines is due solely to an inexact exposition of the opinions.

But neither is this enough. For Dicastillus himself (l.c., no. 555), in support of his opinion which we presented above, cites Sanchez, Guttierez, and, besides others, even Coninck, namely, those whom St. Alphonsus, as we have seen, opposes to him as adversaries. Whence is this, unless from the opinions of the Doctors having been proposed less exactly? For we have already seen that Sanchez agrees with Dicastillus in that general assertion.

But again, Dicastillus (l.c., no. 556) adds: I said that he does not remain immediately and proximately obligated; for, as regards the obligation of asking for or procuring a dispensation from the impediment, there is controversy among the Authors whether at least he who gave cause to the impediment is bound to ask for and procure the dispensation. He himself also resolves this question by determining when the man is bound to this and when not. Therefore Dicastillus, no differently from Sanchez, so holds that the obligation of betrothal is dissolved by the introduced impediment that, nevertheless, the obligation of procuring a dispensation remains for him who placed the cause of the impediment. But this is what St. Alphonsus, citing Sanchez, calls the obligation of betrothal being suspended. What, then, causes the Holy Doctor to oppose to Dicastillus Sanchez, Palaus, and Coninck, who with the more common opinion say that the obligation of betrothal is suspended, unless the opinions of the Doctors are not presented exactly?

The VV. object (p. 795): Dicastillus derives the obligation of sometimes asking for a dispensation, not from the betrothals, whose obligation he considers entirely extinguished on both sides, but solely from the harm inflicted.

Reply. The VV. do not report the opinion of Dicastillus here with sufficient exactness, or certainly not with sufficient clarity. The words of Dicastillus (l.c., no. 559) are these: He is not bound FORMALLY from the betrothal promise, but from the harm inflicted, or arising from the impediment freely placed. Attention, therefore, must be given to that word, FORMALLY; but Dicastillus himself had already sufficiently explained what a betrothal promise formally imports according to him when he said (ibid., no. 554) that neither remains obligated IMMEDIATELY AND PROXIMATELY to matrimony. And since the terms mediately and remotely correspond on the opposite side to the terms immediately and proximately, by that very fact they do not exclude that someone may remain obligated to matrimony mediately and remotely by force of the promise, that is, to remove (unless something prevents it) the impediment which he freely placed against the matrimony. Therefore, this obligation of asking for a dispensation indeed arises proximately from the harm unjustly inflicted; but why is the harm held to have been inflicted unjustly? Because the harm arises, namely, from the violation of a right acquired by the other through the former promise. Therefore, that promise is ultimately the root of why he is bound to repair the harm and, consequently, unless something prevents it, to procure the dispensation.

Otherwise, do others give a reason for this obligation different from that of Dicastillus? Behold Sanchez giving the same reason (l.c., no. 4) thus: The bridegroom who has unjustly created the impediment is bound in justice to remove the impediment in a manner possible to him. And Palaus (treatise 28, disputation 1, point 26, no. 4): He who voluntarily places an impediment against contracting matrimony violates the right of the other party; therefore he is bound to repair it. But no other mode of reparation is more apt than that he remove the impediment; therefore he is bound to remove it if he can. Indeed, see in Palaus (ibid., no. 5) the opinion of Dicastillus repeated nearly word for word. I reply (he says) that by the law of betrothals no one is obligated to procure a dispensation from a diriment impediment; nevertheless, he is so obligated from the unjust and inequitable placement of the impediment against the other party, for whom a dispensation is not an extraordinary means, but one ordinary and required per se. Therefore, since even those Authors whom St. Alphonsus opposes to Dicastillus give the same reason for the obligation as he does, the VV. here too seek in vain a discrepancy between the opinions of those whom the Holy Doctor presents as disagreeing.

Again the VV. object (p. 795) that Dicastillus, if the harm can be sufficiently compensated in another way, exempts the bridegroom from asking for a dispensation; by this they wish to confirm that Dicastillus derives the obligation of asking for a dispensation solely from the harm inflicted.

Reply. Herincx explains the opinion of Dicastillus better; the VV. themselves (l.c.) report his words thus: It can nevertheless happen that one who deliberately placed an impediment of this kind is obligated to ask for a dispensation or otherwise to repair the harm inflicted upon the bride. See Dicastillus.

Moreover, in order that the reason for this doctrine may be understood, it must be carefully observed that those Authors whom St. Alphonsus adduces for his opinion also do not always and in every case obligate the bridegroom to ask for a dispensation from an impediment introduced by him. Hence, in the texts just cited Sanchez and Palaus add a limitation: the former, in a manner possible to him; the latter, if he can. Hence Sanchez (l.c.) exempts him from an obligation of this kind if (in the absence of some graver reason) the dispensation requires great expense and a long delay; for a promise is understood while things remain in the same state. Indeed, St. Alphonsus (book 6, no. 858) writes: Others say more probably that he is indeed bound (to ask for a dispensation), even apart from harm inflicted, if the dispensation could easily be obtained; otherwise, if great expenses and a long delay were required for it, because the obligation arising from the betrothals urges the bridegroom to employ only ordinary and easy means, not difficult and extraordinary ones. Sporer, however, with Tamburini, excepts the case in which harm from the loss of virginity or of reputation must be repaired, as above; because then he would be bound even to expend a great sum, but not so great that he would be compelled to fall from his state.

Again, it must be observed that St. Alphonsus (book 6, no. 857), with all Theologians, writes thus concerning the innocent party: If the impediment is diriment, it is certain among all that (the betrothals) are dissolved on the part of the innocent party, so that the latter is not bound to admit the dispensation.

From this, however, another question arises: whether in such a case the injured bride is given the choice that, if she does not wish to use or admit the dispensation, she may choose to be compensated in another way. This question also has its place in the preceding hypothesis, namely, when either the dispensation can in no way be obtained, or at least its procurement would impose upon the bridegroom an inconvenience or harm much graver than that which the bride would suffer from the want of the nuptials. Therefore, there was a proper and grave reason why Dicastillus should treat this further question, concerning which he writes (l.c., no. 561): I do not remember having read anything in the Authors. And since he determines that the bridegroom does not remain exempt from every obligation, both when the dispensation cannot be obtained, when its procurement would impose a graver burden upon him, and when the bride is unwilling to admit the offered dispensation, he consequently concludes with reason (l.c., no. 559) that the aforesaid bridegroom is bound either to ask for a dispensation or otherwise to compensate for the harm.

Dicastillus himself applies this conclusion to a twofold hypothesis, namely: 1. when the harm inflicted is nothing other than the harm of the impediment culpably introduced, and consequently of the promise not faithfully kept, by which he was obligated to fulfill it and therefore not to place an impediment; 2. when the bride suffers some other grave harm in addition.

And concerning the first hypothesis he writes (l.c., no. 561): He will then be bound to compensate or satisfy the bride only to the extent to which, in the judgment of a prudent person,

it was in her interest that the betrothals should have continued in their rigor and should have been fulfilled at the proper time; if this compensation CAN BE MADE APART FROM MATRIMONY, the bridegroom cannot be compelled to matrimony. This conclusion discloses the meaning of the words which thus precede it: Nor is the bridegroom himself bound by the obligation of betrothal..., and therefore he cannot be compelled by it PRECISELY because of that obligation, but he will only be bound to repair the harm inflicted. For the condition is then added, IF the compensation CAN BE MADE APART FROM MATRIMONY. Therefore, the matter is not left to the free choice of the bridegroom, but the question remains to be decided from the general principles commonly handed down concerning restitution for harm inflicted.

Concerning the other hypothesis, however, Dicastillus holds (l.c., no. 562): If the bride suffers grave harm which can be repaired in two ways, namely, either by marrying her or by satisfying her in another way, the bridegroom must satisfy her in another way if she so wishes.... Wherefore, if the harm which she would suffer to her own reputation or in contracting another SIMILAR matrimony can be repaired by the bridegroom through the establishment of a fitting dowry, AND SHE HAS CHOSEN THIS, it appears that she can compel the bridegroom to this and reject those nuptials; for it is not equitable that, in order to repair the harm received, she should be compelled to unite herself to and marry the man from whom she received so great a harm of disgrace and infamy, if not now inflicted upon herself (for this is compensated through matrimony), at least upon her sister and family, and by participation also upon herself in her sister.

Therefore the doctrine of Dicastillus is by no means singular or repugnant to the common doctrine of the others. But if other authors in this place scarcely, or scarcely at all, touch upon this latter question, namely, concerning satisfaction or reparation of harm to be made otherwise when the dispensation from the impediment appears to be set aside, either because a burden graver than is equitable would thus be imposed upon the bridegroom, or because the bride has just cause for refusing the dispensation and the nuptials, and they leave the solution of this question to be sought from the general principles handed down in the Treatise on Restitution, this by no means brings about a discrepancy or disagreement among the Doctors.

Moreover, the merely apparent discrepancy among the Doctors, concerning which the Note speaks, does not concern merely the opinion of Dicastillus. But since the VV. raised difficulties concerning this one point alone, we too refrain from speaking of the others.

² St. Alphonsus (book 6, no. 865) explains this rule, thus divided into two parts: For supervening causes, that one suffices which, if it had been foreseen, would have prevented the betrothals from being contracted.... But for prior yet unknown causes, that one suffices which, if it supervened, would already suffice for rescinding the betrothals, or even one which would have deterred from contracting if it had previously been known. And indeed, according to Sanchez (On Matrimony, book 1, disputation 62, no. 6), Pirhing (book 4, title 1, no. 63), and Schmalzgrueber (same title, no. 188), one who asserts that he would not have contracted betrothals if such a circumstance had existed from the beginning or had been known must be believed not only in the forum of conscience but also in the external forum, if, in the judgment of prudent persons and after the circumstances have been considered, it appears likely that he would by no means have made the promise had he forethought that cause. The reason is that things which consist in the mind, such as ignorance, knowledge, intention, etc., since they cannot become known to men, cannot be proved by witnesses, and therefore one must stand by each person's oath if nothing to the contrary can be proved from elsewhere.

731. Questions. - QUESTION 1. Is the arrival of a rich inheritance to the bridegroom a sufficient cause for dissolving betrothals?

Reply. It is disputed ³. Some deny it, because absolutely nothing on the part of the bride has changed. Others, however, affirm it, because between the two betrothed persons there no longer exists the same condition of things; and if the bridegroom had foreseen this change of fortune, he would in no way have wished to contract with such a person. This opinion St. Ligorius, no. 876, appears sufficiently to approve.

³ Since this opinion is sufficiently probable, as even those who prefer the opposite opinion concede, the Confessor therefore cannot obligate the man to matrimony. It seems that it must be attributed to a typographical error that in St. Alphonsus (book 6, no. 876) the first opinion is called the most common, since several can be adduced also for the second.

** These four lines furnished the VV. an argument for writing eight columns (pp. 798-800)! Behold their first objection (pp. 799-800): Even if the affirmative opinion, that the betrothals can be dissolved, is truly probable, nevertheless, if a cause of this kind were treated in the external forum, could the judge pronounce in favor of the bridegroom, who has a doubtful right? The Holy Doctor, book 1, no. 47, writes: The judge is bound to judge according to the more probable opinion.... Therefore, if the judge cannot pronounce judgment in favor of the bridegroom, how could the Confessor do so in the internal forum? Is he not himself also a judge?

Reply. St. Alphonsus (book 6, no. 604) had already replied to this difficulty. For he writes thus: You will say: A judge of the external forum ought to judge according to the more probable opinion of one party, although the other party has a probable opinion in his favor; therefore the Confessor cannot absolve a penitent who wishes to follow a probable opinion against his own more probable opinion. Is this not the objection of the VV.? The Holy Doctor then continues: Reply. The reasoning of the external and sacramental forum is far different; for in the external forum, since the truth of the matter is treated, namely, whether the field belongs to one party or the other, the judge, who is bound to render to each his right, ought indeed to adjudge the thing to the one who has the more probable right, and certainly cannot adjudge it to the other, who has the less probable opinion in his favor; for the probability of the latter cannot make the thing not more probably belong to him who has the more probable right, and consequently the judge would act unjustly if he did not adjudge the thing to him. But the Confessor, WHENEVER HIS OPINION IS NOT EVIDENTLY CERTAIN, cannot obligate the penitent to follow it; hence he then not only can, but is bound to absolve him, PERMITTING HIM TO FOLLOW HIS OWN OPINION. Therefore, if the Confessor must permit the penitent to follow a probable opinion, even according to St. Alphonsus in the present case he cannot (as is said in the Note) obligate him to matrimony.

The VV. press the point by asking: Is not he (the Confessor) also a judge? Behold the reply of St. Alphonsus (l.c.) to a question of this kind: Reply. The Confessor is not the judge of the opinions which the penitent is bound to follow, but only of the disposition of his penitent.... As regards other opinions which concern the obligation of the penitent, namely, those things which the penitent must do or avoid, the Confessor is not a judge, nor can he obligate a penitent who wishes to follow the contrary opinion to follow his own.... Hence, when... the Confessor does not have evident certainty of the falsity of that (opinion), he can, indeed is bound, to permit the penitent to follow his own opinion..., because the Confessor is not the judge of controversies. Therefore, since the Confessor is bound to permit the penitent to follow a probable opinion in things to be done or avoided, and since it is probable that in the present case the bridegroom can withdraw from the betrothals, it is manifest, also from the doctrine of St. Alphonsus, that the Confessor cannot obligate the penitent to matrimony.

2. The VV. object (p. 800): From a special Declaration of the Sacred Penitentiary, all Confessors in the practice of the sacred tribunal of Penance can safely follow all the opinions of St. Alphonsus without having to weigh the grounds and reasons upon which the various opinions rest. Therefore, this opinion (namely, what is said in the Note, that the Confessor cannot in the case obligate the man to matrimony) must be altogether rejected; for by force of the cited Declaration the Confessor can follow the opposite opinion of St. Alphonsus, who holds that the bridegroom

cannot in the case withdraw from the betrothals and therefore can be obligated to matrimony.

Reply. St. Alphonsus, as is evident from the words cited above, expressly affirms that the Confessor is bound to permit the penitent to follow his own opinion. Therefore, according to St. Alphonsus, in the present case the Confessor cannot obligate the man to matrimony. How, then, because of the Declaration of the Sacred Penitentiary, will the Confessor be able with St. Alphonsus to obligate him to matrimony, if according to St. Alphonsus himself he is bound not to obligate him?

Again, the Sacred Penitentiary adds in the Declaration itself: Without, however, those being considered reprehensible who follow opinions handed down by other approved Authors. Therefore, from the Declaration of the Sacred Penitentiary, one may follow approved Authors who teach that in the present case the bridegroom is not obligated to matrimony. And if this is permitted by the Declaration of the Sacred Penitentiary, how do the VV. contend that this opinion must be altogether rejected by force of this Declaration? Moreover, when the Confessor knows that the penitent may licitly use an opinion which exempts him from an obligation, according to the opinion of all, including St. Alphonsus, he cannot impose the obligation. Therefore, even according to the Declaration of the Sacred Penitentiary, the Confessor cannot in the present case obligate the man to matrimony. Again, therefore, one may ask: how, by force of the Declaration of the Sacred Penitentiary, as the VV. contend, can the Confessor in the present case obligate the man to matrimony with St. Alphonsus?

Therefore, in order to avoid consequences of this kind which conflict with one another, one must keep wholly before one's eyes those things which are learnedly noted concerning these judgments of the Apostolic Penitentiary in the Acts Extracted from Those Things Which Are Done at the Holy See, etc., volume 1, appendix 17, pp. 497-501. Some appear to attribute to this judgment of the Holy See (thus there, p. 498) much more than the judgment itself bears. For they appear to think that the Holy See judged all the opinions of St. Alphonsus to be true, or they even appear to infer from the judgment of the Holy See that anyone acts prudently if he accommodates himself to any opinion of St. Alphonsus whatsoever, even if he knows, whether from his own knowledge or from competent authority, that the opinion which he follows is evidently false.

The learned Author of the Appendix then speaks thus concerning these things (p. 500): This judgment in no way concerns opinions which enjoy some probability and which are disputed, or can be disputed, among the Doctors. Hence he infers: What can be inferred from this judgment of the Holy See is this, namely, that every Catholic WHO IS UNABLE TO INQUIRE FURTHER INTO THE TRUTH OF THE OPINIONS can prudently follow that master and doctor who wrote nothing worthy of that censure which would have stood in the way of the Acts of Canonization. And below (p. 501): From the response by which St. Alphonsus was declared to be one of the approved Authors, whose opinions one who follows acts SAFELY, one would not rightly infer from the particle SAFELY expressed in the proposed doubt that all the opinions and judgments of the Holy Prelate were declared true; this is recognized from the other part of the Response, according to which those who follow opinions handed down by other approved Authors are not to be reprehended. For no one is ignorant that Authors approved in the Church and received by usage sometimes hand down diverse and contrary opinions, which, since they enjoy probability, no one who follows them is worthy of reproach.

And below: The Response of the Sacred Penitentiary does not rest upon a principle of knowledge, as though whatever St. Alphonsus taught were true; but it rests upon other extrinsic prudential reasons, because of which one who follows his opinions acts prudently, and therefore safely. These reasons are those which we indicated shortly above and which are substituted in the absence of knowledge; namely, anyone acts prudently, and therefore safely, if he makes his own a doctrine received by usage in the Church which a learned and prudent man, especially if he is recent and resplendent in sanctity, has taught. But since this principle of prudence

is substituted for the absence of knowledge, it must be said to admit an exception whenever it is evidently established for us that some opinion of the author whom we follow is false and enjoys no probability.

Therefore, to conclude: since it is a common principle, and one also handed down as certain by the Holy Doctor Alphonsus, that a Confessor cannot impose an obligation upon a penitent when, according to the opinion of approved Doctors, it is probable that such an obligation does not exist; and since in the present case it is probable that the bridegroom is not obligated to matrimony; it plainly follows that the opinion of St. Alphonsus, where he denies that the bridegroom can withdraw in the present case, is indeed among those opinions which one who follows in the absence of knowledge and relying merely upon the aforesaid judgment of prudence cannot be reproached for following; but by no means can it be inferred from the Declaration of the Sacred Penitentiary that this opinion can safely be employed in practice by a Confessor endowed with some knowledge who sufficiently recognizes those two premises, namely, both that it is probable that the bridegroom can in the case withdraw from the betrothals, and that the Confessor cannot licitly impose an obligation when it is probable that the obligation does not exist.

3. But the VV. (p. 799) appear also to have wished to cast doubt upon whether it is truly probable that the bridegroom can withdraw in the present case. For they write: From the foregoing it is evident that this probability rests upon only a weaker foundation.

Reply. If by this obscure phrase the VV. wish merely to signify that, in their judgment, this opinion possesses less probability than the opposite, which they consider more probable, someone will reply: Let the Antecedent pass; and I deny the Consequent. For even lesser probability (as St. Alphonsus says) serves to show... that the law in that case, since it is doubtful, does not bind. (See several texts of the Holy Doctor Alphonsus on this matter in volume 1, pp. 60 and 65.) It therefore remains that in the present case the Confessor cannot obligate the bridegroom to matrimony.

But if by that phrase they wish to infer that the probability of this opinion is doubtful, I indeed do not see what they have brought forward in the foregoing (as they say) from which this is evident. And first, among the foregoing things I find no reason adduced by them for the thesis of St. Alphonsus, just as the Holy Doctor (book 6, no. 876) had adduced no reason. Did they themselves perhaps perceive that the reasons which patrons of that opinion are accustomed to advance are such that it is especially useful for their cause to suppress them altogether in silence? They indeed employed in what followed those two reasons related above, the one drawn from the office of the Confessor as judge, the other from the Declaration of the Sacred Penitentiary. But we have already sufficiently seen whether these have any force.

4. Therefore, in the foregoing the VV. merely heap up many names of Authors; by this heap they endeavor at the same time to prove that St. Alphonsus rightly called his opinion the most common. Nevertheless, let that now have force which they themselves observe (p. 798), that Authors are to be weighed rather than counted; and we shall add that weighing must also, and indeed especially, be employed concerning the arguments which perhaps are adduced by them for the thesis.

This opinion (says Diana, volume 2, treatise 6, resolution 18, no. 3) previously had Sanchez alone as its author. But I ask: what reason did Sanchez (book 1, disputation 39, no. 7) adduce? Because, he says, the other has not been rendered of a worse condition, just as if I promised to sell a horse at a price which was then just, the greatly increased value at the time of delivery will cause no difficulty. But this reasoning is neither always firm, nor does the alleged parity have any force. First, the reasoning is not generally firm, because if, for example, the bridegroom should afterward lose his office or for some other cause become unequal to bearing the burdens of matrimony, he can withdraw from the betrothals even though the condition of the bride has not been made worse. A promise of matrimony, says Palaus (On Betrothals, disputation 1, point 28, no. 3), is implicitly made under that state of riches; hence, if he falls from it, the obligation

ceases. Second, the alleged parity has no force and, moreover, labors under an equivocation. For those words of Sanchez, If I promised to sell, signify either a mere promise to sell or a completed sale. If it was a mere promise to sell, even at some fixed price, it is denied that the promisor is bound to that price if the prior state of things is changed into another far different one; for, as the same Sanchez says (ibid., no. 4), a promise is understood while things remain in the same state. Accordingly, if that promise, for example, concerned grapes to be sold at a fixed price at a time when the vineyards promised a most abundant vintage, and hail afterward dreadfully devastated all the vineyards of the province, surely the promisor would not be bound to sell the grapes at that price. But if the discussion concerns a sale and not merely a promise to sell, the parity, as is evident, must altogether be denied; for the conditions inherent in a contract of promise cannot be transferred to a contract of sale. Do the other Authors, then, adduce any arguments besides these petty reasons of Sanchez, which are truly of no weight?

5. But let us consider further what can be concluded from the heap of names which the VV., as we have said, collected.

Sporer, as the VV. (p. 799) acknowledge, repeats in as many words (On Matrimony, no. 282) what Tamburini (book 8, chapter 5, section 8, no. 15) had copied literally from Gobat (treatise 10, no. 340), namely: Concerning these opinions, let one wiser than I interpose his judgment. Therefore, if the judgment of these three is considered, the Confessor cannot obligate the man to matrimony, for they leave the obligation uncertain. But an uncertain obligation is not an obligation and cannot be prescribed by the Confessor as a true obligation. Therefore. And here one is moved to ask: why do the VV. (p. 798) reckon Sporer among those who with St. Alphonsus deny that the bridegroom can withdraw?

6. The VV. mention (p. 799) how Sporer (l.c.) reports, while Ferraris (entry Betrothals, no. 117) praises, the distinction of Martin Perez, who says (Ferraris says) that one can withdraw if, in entering the betrothals, he had regard to the equality of riches or goods (read better, honors); and, on the contrary, that he cannot withdraw if he contracted without regard to the aforesaid because of another cause which persists, for example, because of special beauty. Therefore Ferraris, however less exactly he may report the opinion of Perez, nevertheless denies that the bridegroom is bound to matrimony unless perhaps he contracted the betrothals merely because of the beauty of the bride. Moreover, by this very thing he overthrows both the thesis and the petty reasons of Sanchez. Why, therefore, do the VV. (p. 798) number him also among those who defend the doctrine of Sanchez and St. Alphonsus?

I said that Ferraris reports the opinion of Perez less exactly. For the latter (On Betrothals, disputation 9, section 11, nos. 10-11) has it thus: Sanchez... and others hold that a very rich man is bound to stand by the betrothals, because he himself has not been rendered of a worse condition, nor is he said to have been deceived concerning the condition of the bride or to have erred concerning the condition of the bride, but concerning his own condition, toward which consent is not directed. Thus Perez, who in these words actually proposes all the petty reasons of this opinion. He then continues thus: I prove the opposite more with Hurtado, because that change thus made is notably graver, so that if it had been foreseen at the time of the betrothals by him who became richer, he would not have contracted them; this is the principal and efficacious reason for which betrothals can be dissolved in the other aforesaid cases. Since Perez therefore manifestly departs from the opinion of Sanchez, why do the VV. (p. 798) sell this man also as a patron of that same opinion of Sanchez?

Perez then resolves the petty reasons of the opposite opinion thus (ibid., no. 11): To the opposite argument I say that the other has been rendered of a worse condition as related to the present state of this one, just as if the latter had ascended to a higher grade of dignity, that of Count, Marquis, or Duke. Oberrauch (treatise 20, no. 2373) expresses this reply more clearly thus: I judge that it pertains here

(namely, that the betrothals can be dissolved) if the condition of one party is greatly increased by nobility or wealth; for the other party is rendered much worse, not indeed in herself, but with respect to the fortunate bridegroom, and the matter is brought to that case in which the betrothals would never have been entered. Does not that petty reason, that the bride was not rendered of an inferior condition, fall by these words?

Behold, finally, the words of Perez (l.c.) from which Ferraris and Sporer argued that Perez speaks with a distinction: I understand the aforesaid doctrine morally and regularly speaking; for if someone had contracted betrothals ON ACCOUNT OF NOBILITY OR BEAUTY ALONE, a vast abundance of riches would not make their fulfillment notably graver for him after he had become richer, nor would it, had it existed from the beginning, have deterred him from the betrothals in that event. Perez therefore merely excepts the case in which a foreseen increase of fortune would not have deterred one from contracting those betrothals. But this exception of a singular case can in no way be drawn into a general rule.

7. But let us return to the names heaped up by the VV. in favor of the opinion of St. Alphonsus. Therefore, besides Sporer, Ferraris, and Perez, vainly cited by them, there occur there the names of Struggl, Leonardelli, Schmalzgrueber, and the Salmanticenses. Moreover, the VV. themselves (p. 799) acknowledge that these authors, either in express words or equivalently, also admit the opposite opinion as probable. But if this is so, these authors can certainly be cited effectively for denying the obligation, but by no means for urging the obligation in practice. And the reason is manifest, because, from the principle so greatly inculcated by the Holy Doctor Alphonsus, the probability of the negative opinion suffices for denying the obligation, while the probability of the affirmative opinion does not suffice for producing an obligation, which is none if it is uncertain. Therefore these too must be said to stand rather against the conclusion of St. Alphonsus. Why, then, do the VV. thrust in those authors also, from whom the opposite is concluded, in order to increase the number of names?

8. The VV. add (l.c.) that the opinion rejected by the Holy Doctor is also held probable by Concina. Therefore, even according to Concina, otherwise a rigorist, the bridegroom cannot be obligated to matrimony by the Confessor, although St. Alphonsus cites him on his own behalf.

And the VV. would surely have deserved more abundant praise for fidelity if they had added that Escobar also, whom the Holy Doctor adduces for himself, called the opposite opinion probable. Therefore, he too could deservedly have seemed fit to be deleted from that catalogue of names, since he already overthrows the conclusion of the Holy Doctor.

But, further, the same fidelity demanded of the VV. that, since they were expounding the state of the question solely by the support of authority, they should not have suppressed in silence that Leander also (treatise 9, disputation 2, question 47), in the Salmanticenses (treatise 9, chapter 2, no. 77), called the negative opinion probable. With Leander could be associated Giribaldi (treatise 10, chapter 2, no. 78), Voit (volume 2, no. 1166), Croix (book 6, part 3, no. 173), and Maschat (book 4, title 1, no. 29), who report the same opinion in such a way that they at least by no means reject it.

To these must be added Baumgartner, who writes (book 4, title 1, conclusion 14): Whether one party can withdraw if, for example, he has become notably richer from an unexpected inheritance, the Authors dispute probably on both sides.

Likewise Scarpazza (Decisions of Cases of Conscience, Betrothals, case 14, volume 9, p. 50): Between the two opposite opinions, the one affirmative and the other negative, it appears to me that, speaking generally, the negative should be preferred as more probable. By these words he surely admits both to be probable.

9. Therefore we now have eighteen Authors from whose suffrage the Confessor cannot obligate the bridegroom to matrimony. But others must be added to these; for, as Voit says (l.c.), many hold that a party who has become notably richer or more noble can licitly withdraw from the other party, who is now unequal.

Therefore, to indicate some who have come to our attention, besides Ochagavia and Trullench, whom all, and even St. Alphonsus, cite for this opinion, and besides Oberrauch, related above, already in Schmalzgrueber (book 4, title 1, no. 192) Schmier and Wes hold this opinion.

Likewise Anthony of St. Joseph (treatise 34, no. 42) teaches that betrothals can be dissolved if one of the betrothed, together with riches, should unexpectedly be elevated to a higher state or rank.

To this pertains what Wagemann has thus (part 3, treatise 3, no. 123): Between the two opinions I use a distinction: if the riches and nobility should introduce an enormous disparity between the betrothed persons, they dissolve the betrothals; otherwise not. Hence all the petty reasons are exploded which, after Sanchez, are customarily brought forward to the contrary.

And Viva (On Matrimony, question 2, article 6, no. 2): If very great riches should come to one party after the betrothals, I also judge with Hurtado, against Sanchez and Bonacina, that he can likewise withdraw; since this is a notable change, which, had it been foreseen, would have prevented him from consenting, even though it be true that he was not deceived concerning the condition of the other party. These last words set forth the petty reason employed by most of the adversaries.

And in fact Hurtado speaks thus (disputation 2, On Matrimony, disputation 14, no. 25): We consider the opinion of Sanchez and Coninck difficult, because the aforesaid change is so notable that of itself it renders fulfillment notably burdensome after the bridegroom has become richer, and, had it existed from the beginning, it would also have deterred a prudent man from the betrothals.

To these must be added Babenstuber, who writes thus concerning this controversy (treatise 8, part 7, disputation 1, article 4, no. 37): The affirmative opinion (that the bridegroom can withdraw from the betrothals) pleases me, which Illsung and the great Schmier hold.... The reason is that, in the judgment of prudent persons, the bridegroom not only could but also would have provided for himself a far more excellent matrimony if he had foreseen this change of his state. Although the bride... is not made worse, nevertheless she is rendered of a notably inferior condition, and consequently worse; by which the argument for the opposite is resolved.

And on the same matter Illsung, cited by Babenstuber, reasons well thus (treatise 6, disputation 9, question 1, no. 29): A contract so difficult, namely, of entering a matrimony which can never again be dissolved, according to the common rule reported in Palaus, by its nature excepts all notably prejudicial changes upon knowledge of which the betrothals would not have been contracted. Hence Amicus, disputation 32, from no. 66, also infers that not only is a right of renouncing the betrothals given from a supervening... deterioration of the other contracting party, but by equal reasoning he can withdraw to whom, from supervening nobility or great riches, for example, a rich inheritance, a notably better state has come, so that, in the judgment of prudent persons, he would be considered able and willing to enter a far more excellent matrimony if he had foreseen that state; and thus the other contracting party, through the elevation of the one, is rendered notably inferior and comparatively worse.

Dicastillus also touches this question excellently thus (treatise 10, disputation 1, no. 599): This doctrine (of Sanchez, Reginald, etc.) appears to me not a little difficult. For that change on the part of him who has become rich appears sufficient to render the contract of matrimony far more difficult on his part; because by the very fact that he has greatly increased in riches, the considerable proportion between the two contracting parties, who previously contracted with each other after account had been taken of the goods and condition of each, is removed. But by the very fact that there is so great an excess on the part of one, the proportion which was previously considered is removed; and therefore, although no change has been made on the part of the other, the alteration of the goods on the part of one suffices for that notable excess

to introduce a change of proportion; if he who became rich had known this, he would not at the beginning have contracted with a woman whose dowry is not proportionate to him. From this doctrine the foundation of the opposite opinion collapses, and she is of a worse condition, not by a change of herself, but of the other. Hurtado also approves this, and Perez after him.

No less clear are the things by which Francis Amicus (On Matrimony, disputation 32, section 11, nos. 66-67) confirms the same doctrine. When things have been notably changed, the betrothed persons are not bound to fulfill the betrothals; nor understand this only of a change of the other betrothed person for the worse, but also of one's own change to a notably better condition: both because the Doctors pronounce it without limitation, and although they give examples concerning a change of the other to a worse state, they do so because this is regular and examples are customarily given only concerning cases which regularly occur; and because that same notable change for the better on the part of one places the other in a state of notably worse condition with respect to the former, for the more the state of one is elevated, the more the state of the other is comparatively lowered in relation to him; for these things are correlative, one of which is varied without a change of itself through the change of the other alone; and from that common rule: Whenever some new cause emerges after betrothals have been contracted which, if it had been present from the beginning, would have prevented the betrothals from being contracted, it furnishes a just occasion for dissolving the betrothals. But who will deny that if from the beginning there had been so great an abundance of riches that through it his state would have been elevated so notably that he could have entered another far more noble marriage, he would not have contracted these betrothals which he in fact contracted? Finally, if the bridegroom or bride were asked what he or she would have done in that case, who will deny that the answer would be that he or she would have contracted other betrothals than those in fact contracted, by which his or her state would have been elevated? But Sanchez says, disputation 62, no. 6, that a bridegroom or bride asserting that he or she would by no means have promised if such a cause had been present from the beginning must be believed in both forums if, in the judgment of a prudent person and after the circumstances have been weighed, it is likely that the person would not have promised. The reason: since in this contract, which is special above the rest, regard is had not so much to the utility of the contracting parties as to the indissoluble union of their minds, any cause whatsoever which can notably change the minds of the contracting parties in regard to contracting matrimony suffices for dissolving the betrothals, lest the matrimony have an unhappy outcome.

10. Let the conclusion therefore be this: even if the matter is to be decided by considering only the weight of authority, nevertheless, since we have nearly thirty Authors from whose suffrage the obligation of standing by the betrothals must be called uncertain, and since it is a certain principle to be held by all that an obligation cannot be imposed by a Confessor where it is uncertain, it is manifest that in the present case the Confessor cannot obligate the man to matrimony.

But this is much more evident if the intrinsic reasons are weighed. For Amicus spoke most truly in the text cited, that IT IS A COMMON RULE: whenever some new cause emerges which, if it had been present from the beginning, would have prevented the betrothals from being contracted, it furnishes a just occasion for dissolving the betrothals.

Let Laymann be heard in place of all (book 5, treatise 10, part 1, chapter 2, no. 18): Betrothals are dissolved if a notable change occurs, or if some grave thing supervenes which, had it existed from the beginning, would deservedly have deterred one from the contract of betrothal, as Abbas, Angelus, Sylvester, Navarrus, etc., commonly teach, and as is gathered from chapter Quemadmodum, On Oaths. The reason is that the intention of the one promising is not presumed to have extended itself to such a very difficult case, which would have deterred any prudent man from a promise of matrimony. Moreover, to know whether the intention of the one promising, at least virtually, extended itself to such a case or not, the bridegroom must be examined,

for example, whether, if at the time when he had promised the bride someone had proposed to him: But what if such a thing should afterward happen? he would have replied that it was not his mind to extend his obligation to this case. His assertion must be believed even in the external forum, especially if sworn, if, after the circumstances and the principal nature of the thing promised have been considered, probable credibility can be given to him, as Navarrus, Sanchez, etc., teach. What force, then, can the petty reasons of the opposite opinion now have against this principle received by all, which are ultimately reduced to these: 1. that the bride has not been rendered of a worse condition; 2. that the bridegroom was not deceived concerning the condition of the bride in giving consent?

11. Finally, I shall not omit that it is by no means certain concerning the opinion of the Holy Doctor Alphonsus whether in fact he fully adhered to that opinion which denies that the betrothals can be dissolved in the present case. Indeed, he calls this opinion the most common; in what sense this can be accepted may be gathered from the foregoing; nevertheless, he in fact interposes no judgment of his own.

Moreover, he himself also adopts the common rule which we have stated thus (Apostolic Man, treatise 18, chapter 1, no. 19): In order to judge what cause avails to dissolve betrothals, these two rules must be considered. The first is that, for causes supervening upon the betrothals, that one suffices which, if it had been foreseen, would certainly have prevented them from being contracted; hence the party immune from such a defect then remains free, who is presumed always to have contracted under the condition that there should not be such a change of things which, had it been foreseen, would have removed that party from contracting. The second rule is this, etc.

On the other hand, the Holy Doctor does not appear to have attributed very much to the reasons customarily brought forward for that opinion which he called the most common. He himself (l.c.) sets forth the question thus: It is asked whether, when a rich inheritance supervenes to either of the betrothed persons, that person can withdraw from the betrothals. Hurtado, Trullench, Leander, etc., affirm it, saying that then the condition of the betrothed persons is notably changed. But others most commonly... deny it, because that person is then not deceived concerning the condition of the other party, in which no change has occurred.

What he himself thinks concerning this argument is gathered without difficulty from the special question which he adds. For he writes (both l.c. and book 3, no. 876): According to this opinion Croix says that if someone contracted with one woman and afterward a marriage with another richer woman is offered to him, he cannot leave the first, because no change has then been made in her. But what does the Holy Doctor say to these things? Behold his judgment: If the quality of the second bride were exceedingly better, I would not dare altogether to condemn the bridegroom if he wished to contract with her. But (I say) this man was not deceived concerning the condition of the first bride, nor did any change occur in her; and this is the very argument which the Holy Doctor himself reports for the most common opinion, as he says. Therefore the Holy Doctor manifestly sets little value upon this argument.

And the things which the Holy Doctor soon adds thus confirm this: For although in this case the state of the bride, or of the betrothals, is not changed, nevertheless, as the Doctors commonly say, betrothals do not bind unless things remain in the same state; hence, just as the bridegroom would not be bound to fulfill them with great harm to himself, so it could appear to someone that he is not bound with the loss of great gain; for such a loss is equated with grave harm from the sole law, Code, On a Judgment Rendered for Him, etc., according to what was said in book 3, no. 301. In these words you may see that argument rejected for the same reason used by the Authors whom we have seen not acquiescing in that opinion.

But it is also plainly worthy of notice that by this judgment the Holy Doctor shows not only that the reason upon which the opinion of Sanchez rests appeared plainly weak to him, but he also overthrows another argument by which others endeavored to confirm the same opinion. There were some, namely, who, in order to prove that someone cannot withdraw from betrothals even if a notable change of status has supervened for him, draw an argument from the fact that someone cannot do so in the hypothesis of a far richer marriage offered to him. And indeed Schmalzgrueber (book 4, title 1, no. 192), against those asserting that betrothals can be dissolved if unexpected riches, nobility, dignity, etc., should supervene to one party, urges this reason also: because otherwise, whenever richer betrothals were offered, less rich betrothals could be dissolved, which must not be said. Likewise Catalani (part 3, question 10, chapter 7, no. 14): Otherwise, when richer betrothals were obtained, a broad faculty of withdrawing from less rich ones already celebrated would be given, which is absurd. And, to omit others, Reiffenstuel also (Canon Law, book 4, title 1, no. 262) reasons in the same manner thus: Nor is a suddenly supervening fortune an obstacle; both because otherwise someone could also dissolve betrothals because another far more beautiful or richer woman wished to marry him, which is against the most common opinion of the Doctors. Therefore St. Alphonsus, when he says concerning this hypothesis, I would not dare to condemn the bridegroom, etc., already destroys this argument of theirs also. Moreover, since an argument of this kind appears to be drawn a fortiori rather than from parity, because he who does not yet have a better state and seeks it by breaking the betrothals appears altogether to have less cause for withdrawing from the prior betrothals than one who, through an unexpected fortune acquired, has already attained a far better state and therefore seeks, as by a certain right of his own, betrothals more fitting to himself and his new state, it is now sufficiently evident that the Holy Doctor Alphonsus, who does not dare to condemn a bridegroom because he withdraws from the betrothals if marriage with a richer woman is offered to him, a fortiori does not condemn him who, since he has already changed his state, seeks another matrimony fitting for himself.

And indeed the Holy Doctor (book 6, no. 876) concludes: And thus I find in the Life of St. John of Capistrano that several Theologians thought in a case of this kind (namely, of a richer marriage offered), although St. John himself was of the contrary opinion, from which I truly would not dare to depart nor ever to counsel departure. But here the matter concerns mere counsel; and the Holy Doctor omits these words in his other work (Apostolic Man, l.c.) and merely writes: And thus I find that many Theologians said in the Life of St. John of Capistrano. And let these things suffice concerning this special question; from them the VV. could also gather why Father Gury wrote: St. Alphonsus appears sufficiently to approve this opinion, namely, that betrothals can be dissolved if an unexpected inheritance comes to the bridegroom.

QUESTION 2. Are betrothals dissolved by a vow of chastity or a vow of receiving sacred Orders?

Reply 1. If the vow precedes the betrothals, it is certain that they are invalid. The reason is that the promise of matrimony concerns an illicit thing and therefore does not bind. - Thus commonly.

Reply 2. If the vow follows the betrothals, the betrothals are likewise more probably dissolved. The reason is that the promise of betrothal is always considered to have been made under the tacit condition, unless a better state is chosen. - St. Ligorius, no. 873 ⁴.

⁴ A judge is accustomed to compel one who withdraws from betrothals because of a vow of chastity made either to keep faith with the betrothal or to enter some Religion. For since the internal will of the one vowing is not known to the judge, while the obligation of the betrothal is otherwise certainly known, he does not unjustly require this sign of a more perfect choice, all the more because it can deservedly appear necessary for preventing the frauds of those who, in order to exempt themselves from an inconvenient obligation of betrothal, could easily feign these vows.

732. • QUESTION 3. Is the dissent of parents a sufficient cause for withdrawing from betrothals ⁵?

⁵ Take care not to confuse this question, with some persons (see the Salmanticenses, On Matrimony, chapter 6, no. 19 and following, and St. Alphonsus, book 6, no. 849), with the other question whether children who contract without the knowledge of their parents sin. For although children may thus offend their parents more or less gravely according to varying circumstances and according to the varying manner of conducting the matter, nevertheless this of itself does not necessarily infer that the contract is also of such a kind in its substance that the parents can rightly oppose it, and consequently that the promise is invalid. And indeed, in general it must be determined with the common opinion that for the validity of betrothals not only the consent, but not even the knowledge, of the parents is necessary per se.

Reply. No, if the parents dissent unjustly, because the right of the children would be injured ⁶. But it is otherwise if the dissent of the parents is just, for example, if the other party is not fitting for the family by reason of condition, honor, etc. - St. Ligorius, no. 877.

⁶ Sometimes, however, even the unjust dissent of the parents can furnish a sufficient cause for withdrawing from the betrothals, not because the child then sins by not obeying the unjust will of the parents, but because this dissent for many causes can carry with it such grave consequences, inconveniences, and troubles that they deservedly excuse from fulfilling the obligation.

QUESTION 4. Is a party laboring under a hidden defect bound to disclose it before the betrothals, or, after they have been contracted, before matrimony?

Reply 1. Yes, if that defect would be pernicious or injurious to the other party; for example, if the girl is pregnant, if the bridegroom labors under venereal disease, or is burdened by debt, etc. The reason is that, just as one sins against justice who sells harmful goods to one who believes that he is buying good goods, so a fortiori does one who wishes to contract matrimony with a pernicious defect. Therefore, if he is unwilling to disclose the defect, he must abstain from contracting. - St. Ligorius, no. 864.

Reply 2. No, however, if the defect does not render the nuptials harmful but only less desirable; for example, if a girl who is believed to be a virgin has been corrupted. The reason is that it has been received by custom that no one is bound to manifest defects of this kind to the other party. Furthermore, no one is bound to manifest his own defect with his own infamy when the defect does not injure a grave right of the other. - St. Ligorius, ibid., and others commonly.

733. • QUESTION 5. Are betrothals dissolved by a subsequent matrimony, so that when the matrimony has been dissolved they do not revive?

Reply. No, with the more common opinion. - St. Ligorius, no. 875. The reason is that it is proved by no law that betrothals are altogether dissolved by a subsequent matrimony; hence only the obligation of the betrothals appears to be suspended during such matrimony, as happens in one who contracts matrimony with a vow of chastity. Several nevertheless contradict this, relying upon reasons not to be despised ⁷. Moreover, in practice the bridegroom unjustly deserted will rarely seek such an unfaithful person, nor could a happy outcome of a matrimony of this kind be expected.

⁷ In this question both Theologians and Canonists, even of great name, both older and more recent, disagree; and each party, as is easily understood, holds its own opinion and calls it more probable, while many also concede that the opposite is probable. See Sanchez (book 1, disputation 48, no. 2) and the Salmanticenses (On Matrimony, chapter 2, no. 38). Therefore, the Confessor can neither compel the widower to fulfill that former promise nor prevent the other party from pursuing and urging his or her right before a judge, whose judgment each will be bound to accept.

As regards the force of the reasons, it is easily evident that the example of one contracting with a vow of chastity is not to the point; and, on the contrary, there can be urged the example of one vowing religion or chastity, whom the Doctors so release from the obligation of preceding betrothals that they deny it revives even if the one who vowed afterward obtains a dispensation from the vow, as may be seen in St. Alphonsus (book 6, no. 873, at the end). This resolution is altogether consonant with the general principle which Cujacius, with others, derives from law Si stipulantem 83, section 5, Digest, On Verbal Obligations (commentary on this law), namely, that when a thing previously subject to servitude or obligation passes into another state which does not have an excuse from accidental impossibility but by its own nature is repugnant to that obligation or servitude, the latter is not suspended but altogether extinguished. It must be denied (says Cujacius) that the obligation (for example, a usufruct) is extinguished when a ship is taken apart with the intention that it be repaired; it ceases rather than is extinguished, because the same ship can be restored with the same timbers and does not appear to have altogether perished.... If, however, the ship is taken apart with the intention that it be converted to other uses, it appears to have been extinguished; and therefore, even if it is afterward put together from the same timbers, it appears to be another ship, and an obligation once extinguished is not restored.... The obligation from a promise is extinguished in perpetuity when a slave has been manumitted, because he is manumitted with the intention that he be free perpetually.... This is the sum: the obligation is extinguished when the thing is consecrated or made public, or the slave manumitted, or the ship taken apart, provided it was taken apart with the intention that it be converted to other uses. Moreover, the reasoning of matrimony is altogether the same; for the contract is indissoluble by its nature, and through it a spouse hands himself or herself over in perpetuity to the power of the other. Therefore, just as a slave who has obtained liberty is not subjected to an obligation which bound him in servitude (because, for example, he had been promised by his master to someone), even if he falls back into servitude, nor is a ship bound by its former obligation, for example, of usufruct, if it was destroyed with the intention that it not be repaired, even if afterward it happens to be restored per accidens; so too must it be determined concerning the accidental liberty which a spouse acquires through the death of the other spouse.

** The VV. object to two things here (p. 946, note 3). First, against the former part of the Note they write: From the diversity of opinions Father Ballerini infers that there is no obligation by which a widower must return to the prior betrothals. But from the rules of probabilism the contrary conclusion should rather be drawn. For here an obligation was certainly contracted which was only doubtfully extinguished. Therefore it always urges.

Reply. I deny the Minor and the proof added to it. The reason is that, as St. Alphonsus says (book 3, no. 112), here we are not dealing with a doubt but with a probable opinion. Cardinal De Lugo writes aptly concerning that maxim, IN DOUBT THE CONDITION OF THE POSSESSOR IS BETTER (On Justice and Right, disputation 23, no. 110): The Doctors rightly observe that this proceeds when there is a merely negative doubt; for if there were a positive doubt and probable reasons for each side, then the rules which are commonly given concerning a probable conscience would have to be observed, and regularly the debtor can embrace the probable judgment. St. Alphonsus on the same matter (l.c.): When it is probable that... the law has been abrogated, then the presumption in favor of the law ceases and liberty possesses. Therefore, the Consequent also is denied, namely, that the obligation still urges in the present case; for an uncertain obligation, which it is probable does not exist, cannot urge.

The VV. then attack the argument which in the Note is drawn both from the example of vows, either of religion or of chastity, by which betrothals are dissolved in perpetuity, and from the nature of matrimony, which is a contract indissoluble by its nature and through which a spouse hands himself or herself over in perpetuity to the power of the other; and they rejoin: These things do not pertain to the matter. For matrimony is not a bond of itself perpetual, as is a vow of religion or of perpetual chastity, but it is essentially temporal according to that saying of the Apostle: A woman is bound to the law as long as her husband lives.

Reply. The force of the argument does not reside in this, that the bond of matrimony is so perpetual that it cannot cease per accidens, namely, by the death of the other spouse; but in this, that since through a contract indissoluble by its own nature a spouse hands himself or herself over, so far as concerns the spouse, perpetually to the power of the other, from which it is not in the spouse's power to exempt himself or herself, by that very fact the spouse passes into a state which is repugnant, not from accidental impossibility but by its nature, to that obligation and servitude to which the spouse was previously subject. But the Note concludes through the citation of the law, to which the VV. reply nothing, that then the obligation is not merely suspended but altogether extinguished.

For the law cited in the Note speaks thus: I stipulate uselessly for a sacred or religious thing, or a thing left IN PERPETUITY for public uses, such as a forum or basilica, or a free man, although a sacred thing can be made profane, and things left for public uses can revert to private uses, and from a free man a slave can be made. Behold, then, first, in what sense a certain thing is said to be obligated in perpetuity, namely, from the nature of its state, although per accidens it can pass into another state. But from the fact that someone stipulates for it uselessly, this consequence is there deduced: For even when someone has promised to give a profane thing or Stichus, HE IS FREED if, without his act, the thing begins to be sacred or Stichus attains liberty. What force the word is freed has is manifest from the things which follow: Nor are they recalled into obligation if by some law the sacred thing again begins to be profane and Stichus, from being free, is made a slave. But why are they not recalled into obligation unless because the obligation contracted by the former promise had not merely been suspended but altogether extinguished? But why had it been extinguished unless because the thing had passed into that state to which the former servitude or obligation is repugnant, not from accidental impossibility but from its nature? And again, why is this state by its nature repugnant to servitude or an obligation of this kind, unless because, as is premised there, I stipulate uselessly for a thing existing in that state? Cujacius (l.c. in the Note) therefore rightly refers to this that rule: Those things which stood at the beginning are afterward extinguished if they fall into that case from which they could not have begun.

And indeed, the same law most clearly excludes from this the hypothesis of accidental impossibility, because of which an obligation remains suspended but is not extinguished and consequently revives and urges when the ability returns; it rejects this as absurd, namely, as though one and the same cause both freed and obligated, namely, that a thing either cannot be given or can be given.

And from these things a reason is aptly given why a vow either of chastity or of Religion, made after betrothals, so extinguishes the obligation of those betrothals that, although the obligation of the vow afterward ceases through dispensation, the obligation of those betrothals nevertheless does not revive. The reason is that through a vow of this kind the one vowing transfers himself into a state which by its own nature is repugnant to the obligation and servitude of the betrothals. And again, a reason is given why matrimony contracted after a vow of chastity has been made suspends the obligation of that same vow but does not altogether extinguish it. The reason is that the state of matrimony is not so repugnant to the obligation of preserving chastity that it altogether destroys it, although it impedes it to some extent.

From the things said thus far it is also gathered what must be replied to the following words of St. Alphonsus (book 6, no. 875, at the end), which the VV. object: Only the condition of the subsequent bond must be considered (says the Holy Doctor): if it is perpetual, the first obligation is certainly extinguished; but if it is temporal, the first obligation is suspended until it can be fulfilled when the bond ceases, just as if someone sold a horse to one person and afterward sold and delivered it to another, in the event that the horse returned into his ownership, he would certainly be bound to deliver it to the first buyer, as is gathered from law 15, Code, On Vindication of a Thing. We shall add this one thing here: from the cited law of the Code it is indeed gathered that the horse remains the property of him who through delivery

possesses the horse; but it is by no means gathered that the horse must be delivered to the first buyer if it falls back into the ownership of the seller, for not even a word concerning this is found in that text. Behold the words of the cited law (Code, book 3, title 32, law 15): Whenever an estate is lawfully sold in its entirety to two persons, it is manifest law that he to whom it was first delivered is stronger in retaining ownership. Therefore, if you prove before the Governor of the Province that at an earlier time you bought the possession and paid the price, he will not permit you to be expelled from the possession on the pretext that the instruments were not given. It will indeed be within your choice to recover the price which you gave, with interest, yet so that account be taken of fruits received and expenses; since even if each of you claims ownership of the thing by reason of donation, it is fitting that he to whom sole possession was first delivered be held the stronger.

QUESTION 6. Can the bridegroom withdraw if the bride was forcibly violated after the betrothals?

Reply. Yes, with the common opinion. The reason is that the bride, through such oppression, although without her fault, is rendered notably less worthy; hence the condition of things is notably changed ⁸. - St. Ligorius, no. 861, etc. - The same must be said even if she was deflowered by force before the betrothals and only afterward was that defect discovered. - Thus commonly. - See Cases, no. 859.

⁸ A fortiori, this must be said concerning the fornication of the bride, whether it preceded the betrothals or followed them; in the latter case the bride sins doubly, namely, by the added injustice by which she so corrupts a thing promised to another that she unjustly compels the bridegroom either to omit the matrimony promised to him or to receive a notably corrupted thing. But, from the common opinion, it must be determined otherwise concerning the fornication of the bridegroom. For although this, if it follows the betrothals, furnishes a just cause for the bride to withdraw, it does not do so if it preceded them. The reason is that through this the bridegroom is not rendered notably less worthy in the common estimation, nor is the bride affected by any grave stain because she marries him. Except, with the Doctors (see St. Alphonsus, book 6, no. 861): 1. if the fornication was frequent, so that the bride deservedly doubts the inclination of the bridegroom toward other women and his future inconstancy in preserving the fidelity of the marriage bed; 2. if the bridegroom has begotten offspring from the preceding fornication, for this also is deservedly accustomed to be both a disgrace and a grief to the bride; 3. some also except the case in which the bride, who is a virgin of great honor, would never have consented if she had known the bridegroom to be a fornicator. In this case the Confessor appears unable to obligate her, if she refuses, to the nuptials. See Schmalzgrueber (book 4, title 1, no. 176).