Question Four: On the Cause of Matrimony, or On Consent

796. General principle. Consent of the parties, externally expressed unto matrimony concerning the present, is the efficient cause of matrimony itself and is so necessary that it could be supplied by no human power (can. 1081, § 1). - It is certain from the Council of Florence, from the epistle of Pius VI, July 11, 1789, and from the encyclical of Pius XI Casti connubii.

It is said: 1° consent of the parties externally expressed by words concerning the present, by which they mutually receive each other here and now as spouses: for consent concerning the future does not make matrimony, but only a promise of matrimony, or betrothals;

2° is the efficient cause of matrimony itself, namely, in fact, or of the conjugal bond, if nevertheless the consent is accompanied by the due conditions; but it is not the cause of matrimony in becoming, which formally is nothing except the consent of the parties externally expressed;

3° is necessary: for the conjugal bond does not arise except from a contract (n. 748), which is nothing except mutual consent;

4° so that it could be supplied by no human power: for no human authority has force to hand over dominion of the body of the man to the woman, or of the woman to the man, because it does not have direct power over the body and life of subjects.

It is proved: 1° From this, that in matrimony there is a mutual handing over of bodies: the things which belong to one person are not handed over to another without his own consent. Therefore matrimony, in which there is a handing over of bodies, does not exist without mutual consent.

And indeed: Matrimony, as contract and as sacrament, consists of matter and form, which consist in the mutual external handing over and acceptance of the right to the body, or in words or signs expressing consent with respect to that handing over and acceptance. Whence St. Thomas, q. 45, a. 1: "One person does not receive power over that which is freely another's except through his consent. But through matrimony each of the spouses receives power over the body of the other, as is clear from I Cor. VII, since before this each had free power over his own body. Therefore consent makes matrimony."

2° From this, that matrimony is constituted by contract: A contract without mutual consent cannot even be understood, for every contract is a certain mutual pact, or the consent of two or more persons in the same agreed thing. Since, therefore, matrimony is constituted by contract, consent is wholly necessary for constituting matrimony. But if other contracts are not made without mutual consent, therefore matrimony is so by parity.

3° From this, that matrimony is a sacrament, in which a spiritual conjunction is signified and obtained through the mediation of the material conjunction of the contract, as St. Thomas explains, q. 45, a. 1:

"In all the sacraments there is some spiritual operation, through the mediation of a material operation which signifies it; as through bodily washing in Baptism an interior spiritual washing is made. Whence, since in matrimony there is a certain spiritual conjunction, insofar as matrimony is a sacrament, and a certain material one, according as it is unto the office of nature and of civil life, it must be that the spiritual is made by divine power through the mediation of the material. Whence, since the conjunctions of material contracts are made by mutual consent, it must be that the matrimonial conjunction also be made in this way."

797. Matrimonial consent must be mutually furnished by an act of the will and be borne unto matrimony. Hence it can be defined: an act of the will between able persons, legitimately manifested (i.e., according to the manner prescribed for validity), by which each party hands over and accepts the right over the body, perpetual and exclusive, in order to acts of themselves apt for the generation of offspring (can. 1081, § 2).

Although the will of each is necessary, nevertheless there is not required in each party a twofold act formally distinct; but it can be done by one act, by which one indivisibly consents to his own obligation, which he offers to the other, and by which at the same time he virtually accepts the obligation of the other.

Therefore consent explicitly and formally is not borne unto carnal intercourse, but unto the right and power to intercourse; implicitly and virtually unto intercourse. For intercourse is not of the essence of matrimony, but its effect and operation: the essence is the mutual transference of mutual power over the other's body in order to intercourse of itself apt for the generation of offspring. Therefore consent explicitly and formally is not borne unto intercourse, but unto the power to it; and thus consequently, implicitly and virtually unto intercourse itself. Hence St. Thomas, q. 48, a. 1:

"The consent which makes matrimony is consent unto matrimony, because the proper effect of the will is the thing willed itself. Whence, just as carnal intercourse has itself toward matrimony, so the consent which causes matrimony is toward carnal intercourse. But matrimony... is not essentially carnal conjunction itself, but a certain association of man and wife in order to carnal intercourse... according as there is given to them power toward one another with respect to carnal intercourse... Whence they rightly said... that to consent unto matrimony is to consent unto carnal intercourse implicitly, not explicitly: for it must not be understood except as an effect is implicitly contained in its cause, because the power of carnal intercourse, to which consent is given, is the cause of carnal intercourse, as the power of using one's own thing is the cause of use."

For 1) consent unto some thing is explicitly borne only unto that which is of the essence, and only implicitly unto the effect to which it is ordered as to a cause.

Yet 2) one who consents to that which is essentially ordered to something consents implicitly to that thing; but one who consents unto matrimony consents to that which is essentially ordered to carnal intercourse; therefore he implicitly consents to intercourse. For the right and power to intercourse is essentially ordered to use, as potency to act and cause to effect.

Whence 3) the consent is null if, by the force or condition of the contract, they exclude intercourse.

These things are to be understood insofar as they are on the part of the contract, so that by force of the contract they consent implicitly to intercourse and in no way exclude it; - but not insofar as they are on the part of the contracting parties, who at the same time can, one or both, have an opposed intention, namely, of not exercising intercourse, or even enter another pact about this. As is clear from the matrimony of the Blessed Virgin and St. Joseph.

Once consent has been validly furnished, by that very fact matrimony is present.

798. Corollaries. - 1. Mutual consent is the efficient cause of matrimony in two ways:

a) of matrimony, as it is a contract and sacrament, in becoming. Thus consent, insofar as it is internal, is the cause of external consent, so that it is not only the efficient cause but also the intrinsic formal cause of the contract and sacrament: for intention is of the essence of the contract and sacrament;

b) of matrimony in fact, or of the conjunction of man and woman and of the sacred bond. Thus consent as expressed by words is the efficient and extrinsic cause of matrimony: it is not of its essence, but is necessary so that this cannot be without it.

Scotus teaches, in IV d. 27, q. 2, n. 2: "It must not be said that consent is the proper efficient cause of that bond. But it is a previous disposition, just as to be baptized and to be ordained is a previous disposition to the character." - On the contrary, consent truly effects the bond as principal cause; and that, moreover, the bond is sacred and confers grace, of this it is the instrumental cause, insofar as the contracting parties are ministers of Christ.

The Scholastics ask: whether consent can be supplied by another, for example by God, or whether there can be matrimony without the consent of the spouses? It is certain that consent cannot be supplied by the human power of parents, of the state, or of the Supreme Pontiff, as is expressly said by Pius VI, by Pius XI, and in can. 1081, § 1, both because no one has direct power over the bodies of subjects; - and because the right of disposing concerning one's own body in order to matrimony is a primary natural right, which precedes every society and human power; - and because this would harm the common good, since unions without consent and love have a most unfortunate outcome and necessarily tend toward ruin, whence the very ends of matrimony would be frustrated. - But the question is whether God can supply it, which question is reserved by the code, since it speaks only of human power. Now:

a) Certainly God could, by his efficacious motion, make those unwilling to be willing, and those not consenting freely consenting unto matrimony.

b) It is certain that God cannot supply matrimony in becoming, or in the character of a contract, so that matrimony would be contracted without the mutual consent of the spouses; because consent is of its intrinsic notion, and a contract essentially is mutual consent.

c) As to matrimony in fact, or as to the conjugal bond, it seems rather that it should be affirmed that God, without the mutual consent of the spouses, can effect such a bond. For since he is the supreme lord of bodies and souls, he can hand over to the man perpetual dominion over the body of the woman in order to generation, and conversely; from which handing over there results a bond of conjunction between both equivalent to the matrimonial bond. Whence Adam and Eve could have been created united by a matrimonial bond, even if they had not consented to it.¹

¹ Modern jurists are accustomed to deny this, but their arguments rather regard matrimony in becoming.

Nor does it stand in the way that God cannot establish a relation, such as that conjunction is, without a foundation. For in the case the foundation of this relation would be real, although diverse, namely, the efficacious will of God handing over the dominions of the bodies.

The conditions required for the validity of consent are the same as in other contracts. Therefore it is necessary to speak of the qualities required that this consent subsist, and of the vices which can impede or invalidate it.