Article I: On the Qualities of Consent

S. Th., Suppl. q. 45, a. 2-4; q. 46; q. 47, a. 5.

799. Consent unto matrimony must be internal, externally manifested, and mutual. For thus it is essentially required for every contract (II, n. 456). It must be:

1° Internal, because it is an act of one's own will; but it is required that it be:

a) True, namely, elicited from the intention of entering matrimony, or of mutually handing over and accepting dominion over the body: for no one transfers dominion of a thing which he has, nor imposes a grave obligation on himself, unless he wills it, just as no one can validly minister a sacrament, or an adult receive it, unless he has intended it; whence a fictitious, simulated, jocose consent is not valid.

b) Perfectly deliberate: for no one is judged to assume a grave obligation except with perfect knowledge and full advertence; nor does unconscious consent suffice.

c) Perfectly voluntary and free: no one intends to undertake a grave obligation for the whole of life except by directly voluntary and fully free consent; therefore coerced and extorted consent does not suffice.

2° Externally manifested and intimated, both insofar as matrimony is a sacrament which ought to be a sensible sign, and insofar as it is a contract entered into among men, which cannot be made unless it is externally expressed by a human and sensible sign.

3° Mutual, namely, given and accepted by each party, and morally simultaneous, so that the consent of one not retracted is joined by the consent of the other; otherwise they would not consent unto one thing.

800. Consent regularly ought to be expressed by words and personally pronounced by the contracting parties themselves; yet it is valid per se if it is given by sign or nod or writing, by the aid of telegraph or telephone, or through a procurator or interpreter, unless positive law invalidates it.

For marriages in which at least one party is faithful, the prescriptions of canon law are valid.

1° "For contracting matrimony validly it is necessary that the contracting parties be present either by themselves or through a procurator," can. 1088, § 1; therefore it is not validly entered by letter or messenger between absent persons. The prescription of this canon is applied also to marriages of baptized non-Catholics (Resp. C. S. Officii, June 26, 1949).

2° "Matrimony can also be contracted through an interpreter" (can. 1090).

3° "With diocesan statutes superadded remaining firm, in order that matrimony be validly entered through a procurator, there is required a special mandate for contracting with a certain person, subscribed by the mandator and either by the parish priest or Ordinary of the place in which the mandate is made, or by a priest delegated by either of them, or by at least two witnesses. But if the mandator does not know how to write, let this be noted in the mandate itself, and let another witness be added who also signs the writing himself; otherwise the mandate is invalid. And if, before the procurator contracts in the name of the mandator, the latter has revoked the mandate or has fallen into insanity, the matrimony is invalid, although either the procurator or the other contracting party was ignorant of these things. But in order that the matrimony be valid, the procurator must discharge his office personally"¹ (can. 1089).

¹ Let it be noted in the case of a mandate: 1° the name and surname of the person with whom it is necessary to contract must be so determined that he or she cannot be confused with another person; 2° indications of day, month, and year seem to be required for the validity of the mandate (can. 1659, § 1 and 1894, 4°); 3° that the act of the mandatary be valid, it suffices that at the time when he contracts the will of the mandator be present, although previously it had not existed or had been secretly revoked.

According to the response of the Commission for the Interpretation of the Code, May 31, 1948, the mandator himself must designate the procurator individually, and it is not valid to commit the designation of the same to another.

1° "Let the spouses express matrimonial consent by words; nor is it lawful for them to employ equivalent signs if they are able to speak" (can. 1088, § 2).

2° "When matrimony is to be contracted through a procurator or through an interpreter, let the parish priest not assist unless there is a just cause and it is in no way lawful to doubt the authenticity of the mandate or the faith of the interpreter, after the license of the Ordinary has been obtained, if time allows" (can. 1091).

801. Consent can be conditioned, i.e., given under a suspensive condition on whose existence the contract depends and to which consent is bound, but not under a resolutory condition, since matrimony is indissoluble. Now, conformably to can. 1092:

A. Matrimony entered under a condition concerning the present or concerning the past is immediately valid if the condition is fulfilled, or invalid if it is not fulfilled.

B. Entered under a condition concerning the future:

1° If this is against the substance of matrimony, it is invalid.

2° If it is not against the substance of matrimony, but

a) is concerning something necessary, or impossible, or base, matrimony of itself is valid and the condition is judged not to have been added, because it is presumed not to have to be taken seriously; unless, however, someone intended to render the consent truly dependent on the condition, in which case, if this condition is impossible, the matrimony will never be valid; if it is necessary or base, it will not be valid except after fulfillment;

b) if the condition is concerning a licit contingent thing, matrimony is suspended until the fulfillment of the condition; but when this has been fulfilled, consent by that very fact passes into the absolute and becomes irrevocable. Whence at this moment the contracting parties ought to be in the state of grace; but they cannot use matrimony before it has been ascertained that the condition has been fulfilled.

A condition is against the substance of matrimony when it is contrary to the essential object of the matrimonial contract, or to the primary end of matrimony, or to its essential obligations or properties (cf. can. 1086, § 2): thus the condition of not handing over the right over one's own body, or of avoiding all offspring, of procuring sterility or impotence, or reserving the right of committing adultery, or of dissolving matrimony at will. But these are not against the substance: the will only of partially frustrating generation, of merely not fulfilling the obligations of matrimony, or of educating offspring in heresy or Judaism or unbelief, because this is not opposed to its natural good but only to its spiritual good, or only the purpose of renouncing the use of matrimony.