Section — Merkelbach, Pastoral Questions
§ 2. Error
- I) Notion.
Error in general is a false judgment.
In matrimonial consent a manifold error can be found:
a) Error of law: it regards the nature, properties, and essential goods of matrimony.
Error of fact: it regards some fact.
b) Vincible error: i.e., one which can easily be removed.
Invincible error: i.e., one which in no way, or only with difficulty, can be removed.
c) Substantial error: i.e., one which regards the contracting person or the essentials of matrimony.
Accidental error: i.e., one which is borne toward the qualities of the person.
d) Antecedent error: i.e., one which is such that, once the truth was known, the contract would not have taken place.
Concomitant error: i.e., one which is such that, even once the truth was known, matrimony would likewise have been contracted.
II) What error renders matrimony invalid, and what error does not.
A. Error of fact.
The reason is that such an error is substantial and by the law of nature vitiates consent, which is borne toward a person plainly diverse from the one with whom the contract is made. It does not matter in the case whether the error is antecedent or merely concomitant.
- b) Error concerning a quality of the person, even if it gives cause to the contract, generally does not invalidate matrimony. (Can. 1083 § 2.)
The reason is that such invalidation is introduced neither by natural law nor by positive law. Not by natural law, because notwithstanding that error concerning accidental qualities, the substance of the contract nevertheless remains, namely the person himself or herself. Not by positive law, which, as is plain from the cited canon, expressly declares the contrary.
- c) Error concerning a quality, however, invalidates matrimony if it itself redounds into error of the person. (Can. 1083 § 2, 1°.)
The reason is that then the error becomes truly substantial, which invalidates matrimony by natural law itself.
But this is verified in a twofold case:
1°) if the quality is altogether proper and individual to some determinate person, e.g., if someone intends to enter matrimony with the firstborn daughter of the king.
2°) if someone intends any quality whatsoever, however accidental, as a condition without which not, or if the circumstances prove that his consent was at least implicitly conditioned.
- d) Matrimony is invalid "if a free person contracts matrimony with a person whom he thinks free, when she is a slave by servitude properly so called." (Can. 1083 § 2, 2°.)
Three things must concur in order that matrimony be invalidated under this head, and otherwise from ecclesiastical law alone:
1° servitude properly so called in the other party alone.
2° freedom of the other party.
3° ignorance, on the part of the free person, of the servitude of the co-party.
This impediment, as having been introduced by ecclesiastical law alone, does not bind unbelievers contracting among themselves, unless perhaps civil law has established a similar impediment. Indeed if a free unbelieving party takes in matrimony a believing party who is a slave, whose servitude he does not know, then the matrimony still seems to be valid. The reason is that the Church seems to invalidate the consent of the free party alone. But now, in the case, since the free party is an unbeliever, his consent escapes ecclesiastical law, and thus in no way, not even indirectly, is the unbelieving party held by that impediment.1
1 Thus Gasparri, De Matrimonio, n. 640, against Wernz, Jus Decretalium, IV, n. 242, note 27. - Cf. Vermeersch-Creusen, Epitome Juris Canonici, t. II, n. 370.
B. Error of law.
- a) Error concerning the very essential object of the matrimonial contract, i.e., concerning the mutual right over the body, invalidates consent and consequently matrimony.
The reason is that in the case error effects the same thing as ignorance. But now, as was said above in n. 32, ignorance concerning the essential object of matrimony renders matrimony void.
- b) "Simple error concerning the unity or indissolubility of matrimony or its sacramental dignity, even if it gives cause to the contract, does not vitiate matrimonial consent." (Can. 1084.)
Notice in this text the word "simple" error, i.e., an error resting in the intellect without there following a positive act of the will conformable to it. For such an error does not take away the will of contracting true matrimony.
- c) But if to such an error there is joined an express and positive intention of excluding something from the essential properties or goods of matrimony, the matrimony is invalid, at least if such an intention prevails over the intention of contracting matrimony.
The reason is that such an intention is exclusive of matrimony itself, because these things are inseparable from true matrimony.