§ 1. On Diriment Impediments On Account Of Defect Of Valid Consent

FOUR impediments are opposed to the validity of consent: on the part of the intellect, error and unknown servile condition; on the part of the will, force and abduction.

1999. A twofold ERROR is distinguished: substantial, which is concerned with the contracting person, or the nature of matrimony; and accidental, which is concerned with the qualities of the person.

Principles. I. Error CONCERNING THE PERSON invalidates matrimony by the law of nature; whether the error is antecedent, or giving cause to the contract, or merely concomitant, and this even if it is vincible and very crass. - The reason is that, since the persons of the contracting parties are the substantial object of matrimony, if the person is varied, there is error concerning the very substance of the contract. Nor does it matter that matrimony would have been contracted even after the error was known; since not even in this case does the one erring consent into the present person, but into the one whom he judged the person to be.¹⁴

II. Error CONCERNING THE NATURE OF MATRIMONY, e.g. concerning the mutual right in the body, concerning perpetuity, etc., sometimes invalidates, sometimes does not invalidate matrimony. It INVALIDATES, if the one erring positively intends to contract according to his erroneous concept, e.g. not to confer a right in the body, to reserve to himself the faculty of repudiation; for consent to true matrimony is lacking.¹⁵ It DOES NOT INVALIDATE matrimony, if that positive intention is lacking, since the one erring in such a case, by a certain general will, desires matrimony such as it has been instituted by Christ or ordered by divine law: wherefore this general will, as Benedict XIV says,¹⁶ in some way absorbs the private error. And this is the constant tradition of the Roman Congregations in judging causes of this sort.¹⁷

2000. III. Error CONCERNING THE QUALITIES or FORTUNE of the person does not invalidate matrimony, unless it is concerning a quality which redounds into the substance or into the person. - And this must be held, according to the common and truer opinion, even if the error gave cause to the contract. "The reason: both because then there is already simply voluntary consent concerning the substance of matrimony, namely concerning the person, although voluntary consent in a certain respect is lacking concerning the accidents, which are the qualities of the person; and because otherwise innumerable marriages would become doubtful and exposed to lawsuits."¹⁸

We said: unless the error is concerning a quality which redounds into the substance; because then, as the Doctors commonly and rightly teach, true consent is lacking, and therefore the matrimony is invalid.¹⁹ - But that it may become known when a quality passes into the substance, the following RULES are handed down:

A quality passes into the substance - 1): If someone actually intends not to contract, or if previously, his will not afterward having been changed, he had intended not to contract, except under the condition of that quality. - 2) If the quality is proper and individual to some determinate person, e.g. that she is the firstborn daughter of the king; but otherwise, if he intended to contract with one of the daughters of the king: because then the quality is not individual, but common to several; in which case, however, the following rule must also be kept before the eyes. - 3) If the contracting party principally intends the quality and less principally the person, for example if he wishes to contract with a noble woman, such as he judges Julia to be; otherwise, if he intended to contract with Julia, whom he believes to be noble.²⁰

Note. In the external forum, it does not suffice if the contracting party affirms that he has erred; due proof of the matter is required before a judge (cf. n. 2081).

2001. By the name of condition here is understood servitude strictly so called.

SERVILE CONDITION invalidates matrimony, if these two things are present at the same time: 1. if the other party is free; 2. if that party is ignorant of the servile condition of the counterpart.²¹

It is an impediment of ecclesiastical law introduced for this end, that the free party should not ignorantly enter a marriage in which, on account of the very disparity of conditions, innumerable inconveniences would be had.²² - But there is no reason that we should speak more fully of this argument, since slavery properly so called prevails today in very few regions, e.g. in the Turkish empire.

2002. By FORCE here is signified not absolute coercion, which altogether removes the voluntary; but fear, which does not remove it, but diminishes it. - Coercion can be inflicted only on external acts, and renders matrimony null on account of defect of consent; but fear affects the will, and vitiates consent really given.

Principles. I. FORCE, or GRAVE FEAR, invalidates matrimony. - That it invalidates it by ecclesiastical law, all acknowledge, and it is clear from the most open definition of law.¹ But whether it invalidates it also by natural law is disputed. Some deny it, because consent remains voluntary, nor are other contracts entered into from fear held invalid. Others, however, no less probably and perhaps more probably, affirm it, and bring forward the following reasons: 1. The law of nature ought to furnish a remedy against injury inflicted through fear: in other contracts, that remedy consists in the faculty of rescinding; but matrimony once valid cannot be rescinded. Therefore another remedy is required, namely that it be invalid from the beginning; otherwise the innocent person would often be compelled to lead a hard life, and the guilty person would report advantage from his iniquity: which things are not consonant with natural reason. - 2. Matrimony is a perpetual bond of mutual love between spouses; but mutual love cannot stand with force and fear, since no one is accustomed to adhere to a thing which he holds unwillingly; therefore matrimony which is contracted on account of fear must be null of itself.²

It was said: GRAVE FEAR, namely such as is described in the Treatise on Human Acts (cf. n. 285). For "matrimony entered from LIGHT FEAR is null neither by natural law nor by positive law. - Not by natural law, because he who contracted from light fear, which he could easily repel, is not judged to have contracted unwillingly. - Nor by positive law, for by this only marriages entered from grave fear are declared invalid, and deservedly: for otherwise, if they were rendered null even from light fear, innumerable marriages would be dissolved."³ As regards reverential fear, this itself does not invalidate matrimony unless it has conjoined with itself danger of grave evil.⁴

2003. II. That fear may invalidate matrimony, it is REQUIRED that it be inflicted FROM WITHOUT and UNJUSTLY, for EXTORTING matrimony. - Thus commonly, and it will be clear from what is to be said concerning each condition.

1. It is required that it be from without, i.e. inflicted by man; whence fear inflicted from within, or from a natural cause, does not invalidate matrimony. Nor does it matter for the thing whether it was inflicted by the counterpart herself, or by some third party.⁵

2. It is required that it be unjustly inflicted: for if it is justly inflicted, the one who suffered fear himself gave the cause, nor can he complain that another vindicates his right for himself. But fear must be called justly inflicted when he who inflicted it has a right both of demanding matrimony, and of threatening, and of executing what he threatens: on the contrary, it is inflicted unjustly whenever one of the said things is lacking.⁶

3. It is required that it be inflicted for extorting matrimony; for otherwise "matrimony is not so much contracted through fear, as a means is chosen for evading danger, and matrimony is simply voluntary."⁷ - Hence, if a father should find the violator of his daughter and should inflict threats of death on him for extorting matrimony, this indeed would be null, because the violator is not bound absolutely to marry the corrupted woman, but either to marry or to furnish a dowry. But the matrimony would be valid, if the father threatened death for avenging the injury, and the other entered nuptials in order to free himself.⁸

IT IS ASKED. Whether the COUNTERPART who induced the other party to matrimony by fear CAN WITHDRAW from that matrimony?

Resp. Negatively, from the more probable opinion, because no one ought to report advantage from his own crime. And this especially holds, "if fear cannot be proved; because then, since the Church compels the one who suffered fear to cohabit, such a most grave inconvenience is not reparable except through true matrimony; and so much the more, if the party who suffered fear was a woman, who otherwise, the matrimony being dissolved, would always remain marked with some infamy."⁹

Note. The penalty of excommunication was laid by Trent on lords and civil magistrates violating the liberty of matrimony (cf. n. 1358).

2004. ABDUCTION, insofar as it is a diriment impediment of matrimony, is defined: the abduction of an unwilling woman for the sake of entering matrimony. - It is an impediment of ecclesiastical law, introduced by Trent, for protecting the liberty of matrimony.¹⁰

Principles. I. ABDUCTION invalidates matrimony, provided that it truly is a violent abduction of a woman for the sake of entering matrimony. - Therefore it is REQUIRED: 1. that it be the abduction of a woman, not of a man; but it is all the same what kind of woman she is, honorable or corrupted, virgin, widow, or even the bride of the abductor. - 2. Abduction: under which name properly comes the deed which places the woman in a separated place under the power of the man; wherefore it also comprehends detention, namely if the woman of her own accord received herself into a place from which she is not permitted to depart. Nor does it matter whether the abductor perpetrated the crime by himself or through others; for he who acts through others is judged to act by himself. - 3. Violent abduction, i.e. which was done while the woman was resisting, whether through absolute coercion or grave fear, or through deceit by which she is retained in the place to which she has been enticed; for in this case deceit is equated with force.¹¹ But if the abducted woman consented to the abduction, with parents or tutor contradicting, it is ABDUCTION OF SEDUCTION, which, although it induces other penalties established against abductors of this sort, nevertheless does not induce, according to the more probable and common opinion, a diriment impediment¹² (cf. n. 780). - 4. For the sake of entering matrimony: whence, if the abducted woman is abducted for another cause, even for the end of fulfilling lust, the impediment is not incurred, since Trent intended by this impediment nothing other than to favor the liberty of matrimony.¹³

2005. II. Abduction invalidates matrimony between the ABDUCTOR and the ABDUCTED WOMAN, as long as she HAS REMAINED in the power of the abductor. - Nor does it suffice if the abducted woman, from unwilling, has become willing; but it is altogether required that she be constituted outside the power of the abductor, because otherwise it would not be sufficiently clear concerning consent free from every side. "But if the abducted woman, separated from the abductor and constituted in a safe and free place, shall have consented to have him as husband, let the abductor have her as wife."¹⁴

IT IS ASKED. What are the PENALTIES established against abductors?

Resp. "Let the abductor himself, and all those furnishing counsel, help, and favor to him, be by the law itself excommunicated, and perpetually infamous, and incapable of all dignities; and, if they are Clerics, let them fall from their own grade. Moreover let the abductor be bound decently to endow the abducted woman, whether he has married her or has not married her, according to the judgment of the judge." Thus the Council of Trent.¹⁵ The excommunication is incurred by the very fact (cf. n. 1357); the other penalties only after the sentence of the judge.¹⁶