Article — Merkelbach, Summa Theologiae Moralis
Article II: On the Vices of Consent
S. Th., Suppl. q. 47, a. 1-4; q. 51 and 52.
802. The vices which impede consent are: fiction, ignorance and error, force and fear. Fiction is opposed to the intention of contracting matrimony; ignorance and error to perfect deliberation; force and fear to consent perfectly voluntary and free.
803. Fiction of matrimonial consent consists in this, that the contract of matrimony is entered without internal intention. It is present when one contracting party externally indeed duly pronounces words or other signs expressing consent, yet internally refuses to consent and has another intention; which can be threefold: of not contracting at all; of contracting but by no means obligating oneself; of contracting and obligating oneself, but not fulfilling. The first evidently invalidates matrimony, because it excludes consent; likewise the second, because the two intentions exclude each other and the intention of by no means obligating oneself destroys the intention of contracting; the third, although of itself it is gravely evil because unjustly deceptive of the co-party, nevertheless does not invalidate matrimony, because the mere intention of not fulfilling does not exclude consent, or the intention of contracting and obligating oneself, just as the will of assuming an obligation and of violating it do not exclude each other.
1° "The internal consent of the mind is always presumed to be conformable to the words or signs employed in celebrating matrimony." Whence in the external forum fiction is not judged to have been present, nor is the co-party held to admit it, unless it is proved by indubitable indications; as if there are simultaneously present: the spontaneous confession of the simulator, especially confirmed by oath and issued immediately after the contract, a manifest cause of simulation, and antecedent, concomitant, or subsequent circumstances which evince it.
2° "But if either or both parties by a positive act of the will exclude matrimony itself, or every right to the conjugal act, or some essential property of matrimony, they contract invalidly." For then there is present an intention of not contracting or of not obligating oneself.
It is illicit, when no reason compels, to contract fictitiously, because it is to inflict grave deception and grave injury on the co-party. Yet in certain circumstances it can be licit from a grave cause, as if someone is compelled by grave unjust fear to enter matrimony, or if he detects a diriment impediment from which a dispensation cannot here and now be obtained, and the matrimony cannot be deferred without scandal. In these cases there is not simulation of consent, but mere dissimulation of denied consent, since a matrimony extorted by fear or entered with a diriment impediment cannot be valid, and therefore the fiction or restriction can be understood from the circumstances: I consent insofar as I can. Whence neither is there simulation of the sacrament and sacrilege: that indeed would be present if matter and form were placed without intention; but in the case matter and form are not placed, because a true contract is not present nor can be present.
One who consents fictitiously: a) cannot seek or render the conjugal debt: for it would be shameless fornication; b) is held to repair the unjust damage which he inflicted on the co-party by unjustly deceiving her; c) indeed, he is regularly held for this reason to furnish true consent as soon as possible, especially if the damage cannot otherwise be repaired; unless, however, greater damages are feared from it, or the consort consents to separation.
804. Ignorance, under which name inadvertence and error also come (I, n. 80-83), impedes the deliberation required for valid consent if it is substantial, or turns upon a substantial element. Wherefore they can be distinguished:
1° Inadvertence, i.e., an actual defect of sufficient use of reason, which impedes a human act and consequently the due intention and free consent.
Hence consent furnished in insanity, by the perfectly drunk, by hypnotized or sleeping persons, by the furious or by the foolish, is invalid from the very nature of the thing.
2° Ignorance, i.e., a habitual defect of knowledge concerning the very substance or nature of matrimony: from natural law itself it invalidates consent, because nothing is willed unless first known.
Hence can. 1082: "§ 1. That matrimonial consent can be had, it is necessary that the contracting parties at least not be ignorant that matrimony is a permanent society between a man and a woman for procreating children.
"§ 2. This ignorance after puberty is not presumed."
Yet it is not required that the manner in which carnal intercourse is instituted or generation occurs be explicitly known; it suffices that it be known confusedly that this is done by some common work of the bodies, or that matrimony is ordered to having children from a spouse; this being known, if someone consents, by that very fact he implicitly consents to all things necessary or fitting for this.
3° Error, or false apprehension, which adds to ignorance a false judgment concerning the object of consent.
One error is of law, which turns upon matrimony itself, namely, its nature, or properties or obligations; another is of fact, concerning the person and his or her qualities; but each can be antecedent, which gives cause to the contract, so that otherwise it would not have been entered, or merely concomitant, which does not influence the contract, so that this would have been entered even without the error. Now:
A. in error of law: a) Error concerning the very substance or nature of matrimony, even merely concomitant, renders consent invalid (can. 1082, § 1).
Thus one who thinks that matrimony is not a stable society, but a merely friendly one, or some fornicarian or merely precarious conjunction, or the hiring of work in a family matter, or a society for educating children bought from another, contracts invalidly.
b) Error concerning only the properties or obligations of matrimony does not invalidate consent, because it is merely accidental error, even if it was antecedent and the contracting party, if he had known, would not have entered matrimony; - unless, however, the error was deduced into a pact, or was a condition to which consent is bound: for then it becomes substantial, because it concerns the object first intended.
Hence can. 1084: "Simple error concerning the unity or indissolubility or sacramental dignity of matrimony, even if it gives cause to the contract, does not vitiate matrimonial consent." Therefore one who falsely thinks matrimony is dissoluble or is not a sacrament contracts validly unless he intends: I do not contract unless it is dissoluble, or provided that it is not a sacrament.
B. in error of fact: a) Error concerning the person himself or herself, even merely concomitant, invalidates consent, because it is substantial, concerning the very essential object of the contract.
b) Error concerning only the qualities of the person (for example, that she is a virgin, or rich or noble) does not invalidate consent, because it is accidental, although it is antecedent and the contracting party, if he had known, would not have entered matrimony; - unless, however:
- the error redounds into substance or into error of person, as if someone wishes to marry the daughter of the king, or the firstborn daughter of a count;
- the quality is an express condition to which consent is bound, as if someone says: I do not wish to marry unless she is a virgin, noble, rich, because then the quality is principally intended and redounds into substance;
- or the error is concerning servile condition, in the case in which the free contracting party (not so the slave) is ignorant of the slavery of the other and thinks that person to be free: by law, namely, the quality of a free person is presumed to be a condition without which there is not consent, because a free person is presumed to be unwilling to enter matrimony except with a free person, and therefore generally the law invalidates such marriages.
"§ 2. Error concerning a quality of the person, even if it gives cause to the contract, invalidates matrimony only:
"1° If the error of quality redounds into error of person.
"2° If a free person contracts matrimony with a person whom he thinks free, while on the contrary that person is a slave, by servitude properly so called."
St. Thomas states the principle, q. 51, a. 2: "it is necessary that the error which impedes matrimony be concerning one of those things which are of the essence of matrimony. But matrimony itself includes two things, namely, the two persons who are conjoined, and mutual power over one another, in which matrimony consists." The first is taken away by error of person, the second by error concerning the nature of matrimony. And thus it is from natural law itself. Except, however, the case of unknown slavery, which seems to invalidate matrimony only from positive law, although this is urged by natural equity as fitting: for slavery does not wholly stand in the way of the primary end of matrimony, although in many ways it harms the individual society and cohabitation of spouses. Whence St. Thomas, q. 52, a. 1, ad 3: "by the determining positive law it has been made that unknown servitude impedes matrimony, lest someone be punished without fault: for it is a certain punishment of the wife that she have a slave as husband, and conversely." And therefore, since it is a disposition of ecclesiastical law, it does not directly affect unbelievers; moreover, it could be taken away by dispensation, but the Church in fact does not dispense.
805. Observation. - To bind consent to a condition and to deduce it into a pact: certain ones have understood this strictly of an external pact, as if an explicit condition had to be added to it and had to be placed in the contract itself. Yet it suffices that it be mentally in the intention of one contracting party, and that in the mind it be deduced into a pact as a condition to which consent is bound, or as principally intended, whether explicitly or implicitly; as is clear from the very nature of a contract and from the general laws which govern contracts. Nor is it required that it be explicitly enunciated or added to an external pact; although otherwise the means of proof can be lacking by which in the external forum it can be established, in which case the presumption of law is for the validity of the matrimony.
The aforesaid sense is clear from the declaration of the Holy Office, December 2, 1680, and April 6, 1843; and S. C. C., February 9, 1732. Whence also the Sacred Rota, which previously seemed to require an intention deduced into an external pact, no longer requires it: thus for example explicitly March 1, 1913, and February 9, 1915.
806. Force and fear impede the fully voluntary and perfectly free consent of the will. Force properly is physical coercion inflicted on one resisting, which indeed cannot be inflicted on the internal act of the will itself, but renders the external act wholly involuntary (I, n. 69-70). Fear, on the contrary, morally influences the internal act of the will itself, namely, by the apprehension of an imminent evil, to flee which it moves the will to willing that which otherwise it would not will. When inflicted by another, it is called force or moral violence, which diminishes the voluntary but does not take it away, except exceptionally if it takes away every use of reason (I, n. 71-73). Now:
1° Physical or absolute force, which cannot be resisted and which is inflicted on one wholly unwilling, invalidates matrimony, because internal consent is lacking: it compels to the external act with full dissent of the will; this very rarely happens in celebrating matrimony, but nevertheless it is possible.
2° Grave fear, if exceptionally it wholly takes away the use of reason, invalidates matrimony, because it impedes a human act and free consent.
3° Grave fear unjustly inflicted from outside invalidates consent, if someone, in order to free himself from it, is compelled to choose matrimony as the sole escape, whether the fear as to substance or as to mode was unjust, because consent is the fruit of injustice. - On the contrary, grave fear arising from within or from a natural cause, or justly inflicted, or unjust fear which can be avoided otherwise than by matrimony, does not invalidate matrimony, because the consent is simply voluntary and is not the effect of injustice; a fortiori light fear, such as reverential fear also is of itself, unless grave vexation is added.
Hence can. 1087: "§ 1. Matrimony entered by force or by grave fear inflicted from outside and unjustly, from which, in order that one may free himself, he is compelled to choose matrimony, is also invalid.
"§ 2. No other fear, even if it gives cause to the contract, brings with it the nullity of matrimony."
Before the code they said quite generally that matrimony is invalidated only when fear is unjustly inflicted for extorting consent. This now does not seem strictly necessary, so that fear, even inflicted for another end, invalidates the matrimony which someone is compelled to choose in order to free himself from fear; but the case will be rare, although not impossible.
Absolute force and fear taking away the use of reason invalidate matrimony from natural law; whether the same must be said of fear merely grave and unjust is disputed. Several, especially canonists, think it invalid from positive law alone; many others, such as St. Raymond of Penyafort and St. Thomas,1 derive the nullity from natural law. For since the matrimonial contract is indissoluble, unjustly inflicted fear, which renders other onerous contracts rescindable, ought to render the irrevocable contract of matrimony null, so that the full liberty of the contracting party, necessary in assuming a perpetual burden, may be preserved.
Hence the validity of a matrimony entered by an unbeliever from such fear is doubtful, unless civil law invalidated it. And the Church, by reason of her doubtful power, cannot dispense concerning force and fear, and in fact does not dispense; whence matrimony extorted by fear is not revalidated unless, once the fear has been removed, consent is renewed.
807. Corollary. - Therefore accidental error and fear that is not unjust, although they give cause to the contract, do not invalidate it, although the contracting party, if he had known or had not been moved by fear, would not have contracted. For the interpretative intention, namely, does not have force, but the existing intention; not what one would have willed or done, but what he willed and did.
These things are to be understood of a positive and probable doubt remaining after inquiry. In such a doubt matrimony is presumed valid until the contrary is proved; unless the good of faith stands in the way, which is more excellent. Whence, on account of the good of faith, a doubtful matrimony can be declared null, provided nevertheless that scandal is not to be feared, nor there be danger of injuring a ratified and consummated matrimony, which by divine law is wholly indissoluble and from which the Church cannot dispense: as in the case of a consummated matrimony between two doubtfully baptized persons (cf. Holy Office, May 5-June 10, 1937). And in individual cases recourse must be made to the Holy Office (ibid. and can. 247, § 3), or to someone to whom the faculty of dispensing has perhaps been delegated.