Article Two. On Conditioned Consent.

634. On the Conditions Themselves. Neither the nature of the contract nor the nature of the sacrament per se prevents matrimony from being entered under a condition, unless the condition is repugnant to the substance of matrimony. Nevertheless, conditioned marriages are not admitted except from a most urgent cause. Concerning the conditions themselves, which could be placed privately by the contracting parties, these things must be noted:

1. A condition concerning the future that is necessary (if tomorrow the sun rises), or impossible (if you touch the sky with your finger), or base (if you kill your father), is held as not added: for it is presumed not to be taken seriously. Therefore matrimony entered under a condition of this sort is held valid in the external forum. But if it were certainly established that it was added seriously, a necessary and impossible condition indeed renders the matrimony null, but a base condition effects that the matrimony has force when the condition has been fulfilled, but is invalid when the condition has not been fulfilled: for presumption yields to truth.

The reason of this disposition of law, by force of which matrimony in this case is presumed valid rather than invalid, is that this disposition yields in favor of matrimony; for the danger is guarded against of dissolving a matrimony perhaps valid and of contracting another invalid one, if consent was present in reality.

2. A condition concerning the future against the substance of matrimony renders this invalid. Which conditions are against the substance of matrimony will soon be said.

3. A licit condition concerning the future (if your father consents) suspends the value of matrimony. If the condition is not fulfilled, it is null; but when the condition has been fulfilled, it is valid, whether the contracting parties know or do not know that the condition has been fulfilled. Meanwhile they are held to await the event of the condition, nor is it licit for one, with the other unwilling, to revoke consent.

a. When a condition concerning the future has been fulfilled, new consent is required if either party has in the meantime revoked consent. But if consent has not been revoked, the matrimony becomes valid when the condition has been fulfilled, without consent being renewed: for there is no reason to establish one thing concerning matrimony and another concerning other contracts, because Christ did not change the nature of the contract when he elevated it to the nature of a sacrament. Nevertheless, it can be advised that consent be renewed. Several moralists oppose this doctrine, while canonists generally concede it. But since no exception is established by law with regard to matrimony, one must hold that matrimony, equally as other contracts entered under a condition, is valid without new consent.

b. From old and recent law (Cn. 1100) the express license of the bishop is necessary so that matrimonial consent may be given under a condition.

c. The contracting parties must be certain concerning the existence of the condition before they use matrimony.

4. A condition concerning the past (if your father is dead) or concerning the present (if you are the daughter of Sempronius) renders matrimony valid or invalid according as the condition is verified or not.

¹ Cn. 1092.

635. On Conditions against the Substance of Matrimony. As there are three essential goods of matrimony, so likewise there are distinguished three essential obligations of it and three conditions which are opposed to the same obligations and therefore also to the substance of matrimony: a. if you avoid generation; b. if you hand yourself over to be adulterated; c. unless I find you richer.

1. Matrimony entered with a condition which is against an essential obligation of matrimony is invalid: for without essential obligations matrimony cannot exist.

a. One who contracts under a condition by which he obliges himself either not to use matrimony except in an onanistic manner, or to frustrate or impede generation, or to procure abortion, contracts invalidly, because the condition placed is contrary to the good of offspring.

Those who agree concerning partial frustration of generation, namely, once one or another child has been received, of coming together only onanistically, contract validly if by this condition they intend to exclude not the obligation itself of coming together rightly, but only the will of fulfilling the obligation undertaken. But if by this condition they intend to exclude the obligation itself of using matrimony rightly, they contract invalidly: for the perpetual obligation, not only the temporary one, of performing the conjugal act according to nature pertains to the essential object of the matrimonial contract. If the intention of the contracting parties were doubtful, in practice consent would have to be renewed.

Matrimony entered under the condition of educating children in heresy is not invalid: for this condition is indeed against the spiritual good, but not against the natural good of offspring. For only a condition which is against the natural good of offspring is opposed to the substance of matrimony, since this involves an obligation to acts by which offspring can be generated and physically, not piously and holily, educated.

b. One who contracts under a condition by which the right over the body of the other is excluded, likewise by which the right is granted or the obligation imposed on either or each of commingling with others, contracts invalidly, because the condition placed is against the good of fidelity.

It is asked whether matrimony entered under the express condition of preserving virginity or of never using matrimony is invalid. In this question, what is certain and admitted by all must be distinguished from what is controversial among doctors.

It is certain that matrimony is valid if it is contracted by those who have emitted a vow of preserving continence in matrimony or of not using matrimony once contracted: for in this case the condition concerning preserving continence is not deduced into an agreement by the spouses.

It is controversial whether matrimony has force if a condition concerning the present is placed by each party upon the matrimonial contract: I contract with you if you oblige yourself to preserving continence. Therefore by one and the same consent the right to the use of the body is handed over, and at the same time the obligation of not using the handed-over right is imposed. But even in this case the matrimony seems to be valid, because by this condition placed the contracting parties do not exclude the mutual right over the body, but, after this right has been handed over, they renounce the use of the same. And indeed one who contracts under the condition of preserving virginity acquires the right to copula, but at the same time takes on the obligation of not using this right, or of not demanding copula.¹

c. One who contracts under a condition of dissolving the matrimonial bond in some certain event, e.g., because of discord, etc., contracts invalidly, because the condition added is against the good of the sacrament.

From these things it does not follow that the matrimony of Greeks is invalid, who teach that matrimony is dissolved because of adultery, or of heretics and infidels, who think that matrimony is soluble in certain circumstances, and therefore contract with the intention of dissolving it in a certain event. For the condition of dissolving matrimony is not deduced into an agreement, nor is it externally manifested in any way. Namely, all these in contracting matrimony have two intentions, one of contracting true and valid matrimony, and the other of contracting soluble matrimony. But this second intention is destroyed by the former, as being prevailing, and therefore they contract validly. With this doctrine the practice of the Church agrees, which has never held the marriages of acatholics invalid and null because of an error of this sort.

2. In order that a matrimony entered under a condition repugnant to its substance be invalid, it is required that the condition be deduced into an agreement, or expressly placed on the matrimonial contract by each contracting party.

a. If a condition of this sort is placed by only one contracting party while the other contradicts it, and that one nevertheless contracts, by that very fact he or she is presumed to have withdrawn from the evil condition. If nevertheless in reality he or she had an intention excluding some essential obligation, the matrimony in the internal forum would be null, because the matrimonial contract cannot be made without true internal consent.

b. One who contracts with the intention of not preserving matrimonial obligations, therefore of not generating, of committing adultery, of denying the debt, etc., indeed contracts illicitly, but nevertheless validly, because he only has the purpose of not fulfilling the obligations undertaken. Likewise, if base conditions which are not opposed to the essence of matrimony are deduced into an agreement, the matrimony does not become invalid.

Note. The matrimony of St. Joseph (Iosephsehe), as it is called, is a matrimony entered after the example of the matrimony of St. Joseph and the Blessed Virgin Mary, namely with a vow of perpetual and perfect chastity. In order that a matrimony of this sort can be entered, these things are required: a. a vow of perpetual chastity emitted by mutual consent; b. an intention of mind of contracting true matrimony, that is, of acquiring all the rights of true marriage, especially the right of using the body of the other party; c. the will of yielding perpetually the use of the right over the body of the other acquired through matrimony; d. moral certainty that the danger of sinning is excluded.

Article Three.. On Defects of Consent.

Defect of consent can be twofold: a. on the part of the intellect, which errs concerning the contract, the person, or the qualities of the person; b. on the part of the will, which through force or fear is compelled to enter matrimony. Now it is asked whether and when error, or force or fear influencing the matrimonial contract, makes matrimony invalid. In the old law, error or force or fear under certain conditions are considered as diriment impediments of matrimony; but since they are not properly so-called impediments (namely incapacities of persons), in the new Code they are called essential defects of consent rather than impediments.

¹ Cf. Zeitschrift fur k. Theol. XXVII (1903), p. 719. With regard to the matrimony of the Blessed Virgin Mary with St. Joseph, it is certain that true matrimony intervened between them; likewise it seems certain that they had already before matrimony emitted the vow of perpetual virginity, and therefore contracted under the condition of preserving virginity. But since it is not certain that they deduced this condition into an agreement and expressly placed it on the matrimonial contract, no argument can be taken from their matrimony for confirming the doctrine set forth.