Question One: On Espousals

St. Th., Suppl., q. 43.

830. Espousals according to the name are so called from spondere, i.e., to promise spontaneously, because in antiquity a girl was promised or pledged as wife to a man by those under whose power she was. Whence she who was promised was called sponsa, he to whom she was promised, sponsus, he who promised, sponsor, and the contract of this promise, sponsalia. Therefore it is a bilateral contract concerning matrimony to be entered later, or a mutual promise of future matrimony. 2

It is therefore a promise:

1. of future matrimony, and therefore it is distinguished from valid matrimony not consummated, which sometimes improperly was called espousals, in which sense Blessed Joseph is usually named the spouse of the Blessed Virgin: matrimony in the case was called espousals de praesenti ("I take you"), and differs from true espousals de futuro ("I will take you");

2. mutual, not merely unilateral, made by one and accepted by the other but without a reciprocal promise. And although the new canonical legislation is the same concerning both (can. 1017), nevertheless in order to matrimony the bilateral or espousal promise rather comes to be considered, because this, not the unilateral one, is usually antecedent to matrimony and is its fitting preparation, although nevertheless it is in no way of precept.

Moreover, espousals are usually premised: a) so that matrimony may be entered with more mature counsel and with a better disposition; b) so that in this intermediate time one may better experience the disposition and morals of the other, and it can be detected whether nothing stands in the way of matrimony; c) so that the friendship of the betrothed and desire of the union may grow, as Augustine says, Conf. VIII, 3: that a husband may not hold as cheap the woman given, whom he did not sigh for as loved.

1. This second section of the treatise, like also the third, is canonical for a great part. We wish to warn that our mind is in no way to treat juridical questions more fully and perfectly, or to compose a canonical treatise on matrimony, but only briefly, in order, and succinctly to hand on those things which are necessary for a priest in the ministry of souls.

2. There can be consulted: Wouters, De Forma promissionis et celebrationis matrimonii; and Darmanin, De Promissione matrimoniali, in Angelicum 1931.

831. Definition of espousals. - Espousals are usually defined: A mutual promise of future nuptials between two determinate persons capable by law. It is said:

1° Of future nuptials, which are the proper object itself of espousals;

2° Promise, and not mere intention, desire, or simple purpose even expressed in words, because this does not include the intention of obliging oneself, which is the essential element of a promise;

3° Mutual, i.e., reciprocal, or given and accepted on both sides: thus it is distinguished from a unilateral promise also accepted by the other, which also can be made, although no one is presumed to wish to oblige himself to matrimony except under the condition that the other also obliges himself. And so espousals are, as it were, matrimony begun, and just as there is no matrimony without the mutual handing over of bodies, so neither are there espousals without the mutual pledging of this future handing over; whence espousals, just as matrimony, cannot limp.

4° Between two determinate persons capable by law, for just as matrimony cannot be entered except between two determinate persons capable by law, so neither can espousals, which are the preamble of matrimony, exist except between two determinate persons, who now are capable by law for promising and at least at some time will be capable for contracting matrimony validly and licitly: for a promise concerning an impossible or illicit thing is null.

Hence a) espousals entered with an impediment of matrimony are invalid, when that impediment cannot be removed by dispensation, or in the case is not usually so removed;

b) likewise those entered with an unknown impediment;

c) on the contrary, those entered knowingly with an impediment are valid, but for the time when, with the cessation of the impediment or with dispensation, matrimony will be licit;

d) those entered between two persons of mixed religion after a dispensation already obtained are valid;

e) on the contrary, if they have been entered when a dispensation has not yet been obtained, ordinarily they will be invalid, because mixed matrimony is more often illicit, unless it is intended as a means of repairing an injury.

The conditions required for espousals are the general conditions of every contract: namely, there must be a personal promise, true and not fictitious, fully deliberate, free, and expressed by sensible signs. Whence the general rules concerning vices of consent which invalidate a contract, or permit it to be rescinded, here simply come to be applied.

832. The legal form required by canon law for the validity of espousals, indeed of any promise of matrimony whatever, is indicated in can. 1017:

"§ 1. A promise of matrimony, whether unilateral or bilateral or espousal, is invalid for both forums, unless it has been made by a writing signed by the parties and either by the pastor or local Ordinary, or by at least two witnesses.

"§ 2. If both or either party does not know how to write or cannot write, for validity this is to be noted in the writing itself and another witness is to be added who, with the pastor or local Ordinary or the two witnesses of whom in § 1, signs the writing."

Since private promises gave occasion to many dangers and evils, many of which were doubtful or entered rashly or lightly, from which many lawsuits and enmities had their origin, most wisely this invalidating law was established for every promise which is not publicly contracted in writing. But three conditions are required for validity:

1° That the promise be made by writing or in written form.

2° That it be entered before the pastor or local Ordinary or two witnesses.

3° That the writing be signed by the contracting parties and by the pastor or local Ordinary or two witnesses.

And so:

1° The promise must be made in writing; nevertheless it need not be written by the very hand of the contracting parties, but it is sufficient if it has been written by another, or with the aid of a machine, or printed by type. But the date, or inscription of day, month, and year, must be placed (S. C. C., July 27, 1908, together with can. 6), not the place; the date can be indicated expressly or equivalently, e.g., by naming the day of a feast; but an error in the date, even an involuntary one, invalidates the act.

2° Before the pastor or local Ordinary or two witnesses: The qualified witness, namely, the Ordinary and the pastor, under whose name also come those who by law are in the place of the pastor, is understood to be the one within the limits of whose territory the act is made (S. C. C., March 30, 1908), who nevertheless cannot substitute another for himself, nor one delegated to the universality of matrimonial causes; and one suspended from office or excommunicated as vitandus would exercise the function invalidly after a declaratory or condemnatory sentence (can. 2279, § 1; 2284; 2266). Whence if the promise is entered before an assistant vicar, or before the Ordinary or pastor himself but outside his own territory, in addition another witness is required. But witnesses need not have special qualities; it is sufficient that they be capable of witnessing.

3° The writing must be signed by all, and indeed at the same time and in one context, the contracting parties and the pastor or Ordinary or witnesses being gathered together at the same time (S. C. C., July 27, 1908). The signing must be done personally and by one's own hand, but not be impressed by an instrument, by aid of a machine, or by type; whence a promise made through a proxy is invalid. But if someone signed with his hand guided by another, he would contract validly provided that he remained the principal cause and also could sign by himself, although with more difficulty; but in practice the matter will easily be doubtful.

When both or either party, because of ignorance, does not know how, or because of infirmity or sickness cannot write, this must be noted, and in place of that party another witness must be employed, who signs with the other witnesses or with the pastor or Ordinary.

If the aforesaid conditions are omitted, the promise will be invalid even in conscience, yet not illicit. So it is for all Catholics of the Latin rite, and also for non-Catholic baptized persons, but not for Orientals or unbelievers while they contract among themselves.

833. The effect of espousals consequent from the nature of the thing is a grave obligation in conscience of entering matrimony at the due time, and indeed from justice, because espousals are a bilateral and onerous promise, which connaturally is a true bilateral contract, and one obliging under grave matter, since it treats of a thing of great moment. Although it does not seem altogether impossible that two might exceptionally intend to oblige themselves only from fidelity, nevertheless it is not usually understood and done so; whence this is not to be presumed, but would have to be proved (II, 478).

Whence:

1° The betrothed are bound under grave matter to avoid all things which can impede matrimony.

2° A betrothed man who without sufficient cause withdraws from a valid espousal contract, or unduly delays matrimony, against the will of the betrothed woman, sins gravely against justice, and is bound to restitution if from this a real damage has arisen for the betrothed woman.

3° Nor is it sufficient to endow the betrothed woman, if she does not consent to this, because the obligation of espousals is not alternative, namely, of taking in matrimony or of endowing, but one obligation is principal, i.e., of entering matrimony, and the other subsidiary, if the prior one is not fulfilled, namely, of repairing damage.

4° Nevertheless "from the promise of matrimony, although it be valid and no just cause excuses from fulfilling it, there is not given an action for seeking the celebration of matrimony" (can. 1017, § 3), namely, in the external forum, whether judicial or administrative; because, as St. Thomas notes: "forced marriages have been accustomed to have bad outcomes" (a. 1, ad 2).

5° "Nevertheless an action is given for the reparation of damages, if any is owed" (can. 1017, § 3); which action indeed is of mixed forum and can be instituted before the civil or ecclesiastical forum, but it does not suspend the celebration of matrimony (com. interpr., June 2, 1918).

Let it be noted:

a) From invalid espousals no obligation arises by reason of the promise, since it is invalid; nevertheless one can arise per accidens on the occasion of the promise made, e.g., for repairing damage inflicted, and especially if someone by promising invalidly deceitfully deceived the other party (II, n. 384).

b) From valid espousals by natural law it is gravely illicit to enter matrimony with a third person; this, however, is not an impediment of matrimony properly so called or canonical, because properly it is not an incapacity of the person, nor is it recognized by canonical law.

c) From valid espousals it is also illicit that matrimony be promised to a third person; indeed this second promise would be invalid, as concerning an illicit thing.

d) He who has promised matrimony to two persons is bound to marry the first, unless she freely renounces her right, as is not rarely expedient; in this case he is not bound to marry the other by reason of the promise, which is invalid, but if damage must be repaired because, on account of the hope of future matrimony, a virgin consented to copulation, or even from this became pregnant, yet not if she herself, in having copulation, knew of the prior espousals (II, n. 384).

e) From a valid unilateral promise there also arises in the promisor an obligation of contracting matrimony, but of itself from fidelity only and under light matter; unless, however, someone intended to oblige himself from justice and therefore under grave matter.

834. Dissolution of espousals. - Espousals can be dissolved or dirimently ended from a just cause, because they do not induce an indissoluble bond. Various causes are numbered, some of which absolutely, by full right and by the fact itself, dissolve espousals; others only give the faculty of withdrawing from them, either to one or to both parties. Besides fraud and fear, which can permit rescission for the injured party, all the causes can be reduced to six.

1° Mutual consent freely given, and not extorted by fraud, force, or fear. For since the contract is by its nature soluble, just as it is entered by mutual consent, so also it is dissolved.

To this is reduced the fulfillment of a resolutory condition, if the espousals were entered under it.

2° The breaking of espousal faith by subsequent fornication with a third person, or by attempted espousals, or by courting, matrimony entered, or undue delay of matrimony. For to one breaking faith, faith should be broken to the same.

Thence there belongs to the injured party the right of dissolving the espousals, not to the party breaking faith. Whence during matrimony the obligation arising from espousals is suspended, and when it is dissolved it revives; although in practice it is not to be urged too much. Acts gravely immodest voluntarily admitted or exercised with a third person are equivalent to fornication, if it has frequently happened, so that from this someone becomes gravely suspect of not preserving conjugal fidelity. If fornication has been had by both, the right of dissolving the espousals arises for both, because each becomes suspect.

3° The choice of a more perfect state, because in every promise of matrimony there is implicitly included the condition: unless I shall have chosen a more perfect state, just as each one has the right.

The perfect state is the religious and clerical state, or also, probably, a private vow of perfect chastity or of virginity, provided it is seriously emitted and without deceit or fraud toward the other party or irreparable damage to that party. Espousals are dissolved by religious profession itself or by the reception of sacred Order, which of themselves bring a perpetual impediment; but by entrance into religion or a seminary they are only suspended, so that their obligation revives if the one entering does not persevere and the other party has waited and has not renounced his or her right: yet this party can dissolve the espousals by right.

4° A supervening impediment of matrimony, whether diriment or impeding, because it renders it invalid or at least illicit.

If, however, it was placed by the fault of one, and can be removed by dispensation, it must be removed, if the other party demands it, provided it can be done without a graver inconvenience proportionate to the damage of the other party.

5° A notable change of things which, after espousals have been contracted, supervenes or becomes known, and which, if previously known, would prudently withdraw one from them and impede the contract. For no one is judged to promise beyond his intention; whence in every promise there is implicitly included the condition: things remaining in the same state, or unless a notable change should supervene.

A notable change can be either in goods of the body, such as grave infirmity, incurable disease, great deformity, violation of a betrothed virgin; or in goods of fortune, as a notable loss of goods, defect of dowry, notable elevation to a higher state; or in goods of soul, as heresy, the vice of drunkenness, apostasy, crime, infamy; or in external circumstances, such as grave enmities arising between the families, discord of souls, and whatever renders the union unhappy, departure into a distant region without sufficient reason and without hope of a shorter return.

Hence there is an obligation of manifesting to the other party hidden defects, both those which are substantial or whose absence is intended by the other party as a condition sine qua non, and accidental ones which inflict damage on the other and render the matrimony disgraceful, but not those which only render it less desirable.

6° Pontifical dispensation from a just and urgent cause. For it can dissolve a non-consummated matrimony; a fortiori espousals. Namely, the right arising from espousals is subordinated to the public good of the Church, and therefore can be dissolved for avoiding the greater evils of the Church arising from forced unions.

The Supreme Pontiff alone can dispense, not the bishop; nevertheless the bishop can judge whether there is a sufficient cause for dissolving the espousals.

Moreover, they seem able to be dissolved by private proper authority, if the cause is evident. Yet three cases are excepted: a) if by the particular law of some diocese it is otherwise established; b) if scandal would arise from private dissolution; c) if there is doubt concerning the sufficiency of the cause, or dispensation is required. Then public ecclesiastical authority should be invoked.

835. Notices. - 1. The new dispositions of canon law do not have retroactive effect, and therefore espousals validly entered before remain valid; but an action is no longer given for them for seeking the celebration of matrimony (com. int., June 2, 1918). Nor is an action given concerning a just cause for dissolving espousals (ibid.).

2. Espousals can be entered under a condition to be expressed in the contract, likewise with the attachment of a conventional penalty to be paid by the party who would unjustly withdraw, and also under earnest-gifts. Earnest-gifts are mutually handed over as a sign of espousals and as a pledge of matrimony to be contracted, under this law, that they can be sought back after matrimony has been contracted, unless there is another custom, and must be restored if the espousals are justly withdrawn from; on the contrary, the one unjustly withdrawing loses what he gave and is bound to return what he received.

Gifts and presents which the betrothed mutually hand over to each other differ from earnest-gifts. If these are of relatively lesser value, they are judged to have been given absolutely; otherwise, if they are of great value, they are regularly to be returned when matrimony does not follow, as having been given under condition and in view of matrimony; but if one unjustly withdraws, they can probably be kept by the faithful other party as compensation for faith not preserved, although this is to be dissuaded.

3. Espousals entered without the knowledge of parents or with parents opposing are regularly illicit, because from piety and reverence children are bound to seek counsel from parents in a matter of such great moment; nevertheless they are not of themselves invalid, because not concerning an illicit thing; - unless, however, the parents are reasonably unwilling toward the matrimony, and the matrimony, all things considered, is illicit: then the espousals are invalid, as concerning an illicit thing, as if the matrimony would be to the disgrace of the family, or scandal or dissensions would arise from it, or it is foreseen that it will be unhappy, yet not on account of mere disparity of condition known to the betrothed.

4. He who without just cause withdraws from espousals, or has concealed or by his own fault brought on the cause for withdrawing from them, is bound to repair the damage which is inflicted on the other party withdrawing: both positive damage from expenses made and debts contracted in view of future matrimony, and privative damage from the fact that the other party can enter matrimony with more difficulty, which easily happens to the betrothed woman and sometimes is not fully compensated unless she is suitably endowed.

5. Practically, concerning visits of the betrothed and courtships of lovers, these pertain more to pastoral theology. Concerning this, see our little work De Variis Poenitentium Categoriis, p. 2, c. 3.