Article — Koch–Preuss
Article 2: The Duty of Restitution Arising From Broken Matrimonial Engagements
Under the new Code of Canon Law a promise of marriage, made by one party or by both, is valid in the court of conscience as well as in the external forum only if made in writing and signed by the parties themselves and by the parish priest, the Ordinary of the diocese, or at least two witnesses.1
1 C. I. C., can. 1017, §1.
Such a promise (sponsalia), if mutual, imposes on both parties the grave obligation of mutual fidelity and eventual marriage. The time for the latter is left to their own prudent judgment, but it should not be unreasonably protracted.2
2 P. Chas. Augustine, O. S. B., A Commentary on the New Code of Canon Law, Vol. V, p. 43, St. Louis 1920.
If one of the betrothed parties has carnal intercourse with a third person during the engagement, this act, according to some moralists, involves a sin against justice and therefore entails the duty of restitution. However, not a few contradict this statement.3
3 Ibid.
§ 3 of Canon 1017 provides that from a promise of marriage, even though it be canonically valid and no just reason excuses, no action is admissible to compel the celebration of marriage, but an action to recover damages is permitted. This means that if actual damage was done, e. g., if the bride became pregnant, or if expensive preparations were made for the marriage, the party guilty of the breach of promise is liable for an amount sufficient to cover the damage inflicted or the expenses incurred.4
4 Ibid., p. 44.
These effects follow only such betrothals as are made in the form prescribed by the Code. “No other form of engagement, no matter how pompously celebrated, produces any of these effects, either before the tribunal of the ecclesiastical judge or in the court of conscience. Hence confessors have no right to oblige anyone to any restitution arising from a broken informal engagement, though it goes without saying that a young man who has injured a woman’s reputation by undue familiarity is bound in conscience to make restitution, or if no remedy can heal the damage, marry her. This obligation arises not from the betrothal but from the natural law.”5
5 Ibid., pp. 44 sq.
A matrimonial engagement may be justly cancelled for valid personal reasons, for instance, (a) if one of the parties absents himself from the other for a long time without giving notice; (b) if the moral character of one of the parties has considerably deteriorated, e. g., if the man has become a spendthrift or a roué, or has to face an accusation in a criminal court; (c) if a notable physical or mental change has taken place in either or both of the parties, such as mental derangement; (d) if a change of fortune or social condition has occurred on one side. This would be a reason for breaking the engagement by either, but an indemnity should be paid where an engagement is broken on account of an unexpected social or financial rise. Finally, (e) family reasons may render the dissolution of an engagement advisable, e. g., if serious enmity, hatred, dissension, or aversion are apt to result from the contemplated marriage, or there is strong parental opposition and danger of being disinherited.6
6 Ibid., pp. 48 sq.
Justice obliges each party to a marriage engagement to acquaint the other with any defects which would probably prove very injurious in case the marriage took place, for instance, pregnancy, contagious disease, etc.7
7 Ibid., p. 49.
He who breaks a marriage engagement contracted in canonical form, or conceals a valid reason militating against the marriage, or creates such through his own fault, is bound to repair the injury thereby inflicted upon the innocent party.
Full reparation of such an injury comprises both positive and negative indemnification. The former consists in paying the expenses incurred in preparing for the contemplated marriage, the latter in repairing any damage arising to the woman, e. g., because of pregnancy or inability to find another husband. If the bride withdraws from the engagement, it is ordinarily sufficient that the groom be indemnified for any positive losses he may have sustained, because a man can nearly always find another partner. If the groom withdraws, he will in many cases be able to make full reparation of the damage done to the bride by bestowing a dowry upon her.8
8 H. Noldin, S. J., Summa Theol. Mor., Vol. III, p. 606.
Even when there is no canonically binding engagement, the betrayed party has a claim to indemnification for the damage sustained. If the woman has been seduced to a gross sin of unchastity under promise of marriage, and was not able to perceive the fraudulent character of the promise, the seducer is in justice bound to marry her, and if he cannot do so, must repair the damage in such a way that she can marry another.9 wholly grave reasons against the marriage are present. . . . But other reparation is not thereby excluded merely because the obligation or ability to enter marriage is absent.”
9 St. Thomas, Summa Theol., 3a, Suppl., qu. 46, art. 2, ad 4.—St. Alphonsus, Theol. Mor., l. III, n. 642 sqq. (ed. Gaudé, II, 119 sqq.).—Gury, Comp. Theol. Mor., Vol. I, n. 700: “If, however, the girl had become pregnant through fornication, the seducer should be pressed to marry her, unless too great a disparity between the condition of the two intervened or some other very grave disadvantage stood in the way.”—Lehmkuhl, Theol. Mor., Vol. I, n. 997: “If a girl has been induced to sin under a promise of marriage, whether genuine or feigned, the very common doctrine holds that the young man is obliged to marry the girl, not only when she has become pregnant, but even if she has not conceived; otherwise there is an unjust deception, which is repaired only by entering into marriage. Yet this obligation ceases if