Article Two. On the Nature of the Promise of Matrimony.

527. On Its Nature Itself. 1. Any promise induces an obligation; whether grave or light, from fidelity or from justice, depends on the intention of the promisor. He who intends to oblige himself from justice is held under grave obligation in a grave matter to fulfill the promise. A promise which is made with some solemnity, e.g., in writing, before witnesses, with an oath, is judged to oblige from justice and under grave obligation in a matter of great moment.¹

2. The object of the betrothal contract is matrimony to be entered in its time, and indeed both valid and licit matrimony; for no one can oblige himself to invalid or illicit matrimony. Therefore those things which render matrimony invalid or illicit render betrothals invalid on the part of the object.

The difference between an illicit promise and the promise of an illicit thing must be noted; for the latter never obliges, since an obligation of furnishing an illicit thing cannot be given; but the former obliges if the thing illicitly promised can be furnished licitly. Hence if someone bound by a vow of chastity has promised matrimony, the promise is invalid; but if someone has promised matrimony without his parents' knowledge, he acted illicitly, but the promise is valid.

¹ Cf. De praeceptis12, n. 546 f.

528. Bilateral Promise. The conditions required for its validity are these: it must be true, deliberate, mutual, expressed by the sensible sign of writing, between persons capable of contracting.

1. True, that is, internal and serious, with the mind of obliging oneself and of fulfilling the obligation, not only external and fictitious.

Whether one must stand by a promise by which someone fictitiously promises matrimony.

a. In the external forum a promise is held true and valid unless it is proved fictitious; but in the internal forum, he who promises matrimony with the mind indeed of obliging himself, but not with the mind of fulfilling the promise, makes true betrothals, and therefore is held to stand by his promise.

b. He who outwardly indeed promises by words, but without the mind of obliging himself, does not make true betrothals; therefore by force of the betrothals he is not held to enter matrimony, even if he had added an oath to the fictitious promise. If, however, from the fictitious promise harm has arisen to the other party, the one fictitiously promising is held to repair this; but if it cannot be repaired in another way, he is held per se from justice to enter the promised matrimony, not indeed by force of the contract, which is null, but to repair the harm unjustly inflicted.

529. 2. Deliberate, that is, entered with full knowledge of the obligation which arises from the contract of betrothals, and with a perfect will of obliging oneself; for no one is judged to impose a grave obligation upon himself unless he exists as master of himself and with full consent.

a. Therefore, for validly contracting betrothals, per se the age of seven years suffices; before the seventh year has been completed they cannot be contracted validly; for by the new Code a human being before the completed seventh year is judged not to be master of himself, but after the seventh year has been completed is presumed to have the use of reason.¹

b. Betrothals which are contracted in the heat of passion, e.g., while anger or vehement love impels, are ordinarily valid, both because this heat of passion rarely removes the deliberation which is required for sinning gravely and therefore for contracting betrothals, and because betrothals entered from vehement passion are declared invalid by no law.

c. Error and fear stand most in the way of the freedom of betrothals, just as of other contracts. Error which makes the matrimonial contract invalid also invalidates betrothals;² but concerning betrothals entered from fear, these things must be noted.

¹ Cn. 88, 3.

² Cf. De praeceptis13, n. 536.

530. On Betrothals Entered from Unjust Fear. a. If the fear is grave, whether absolutely or only relatively, the betrothals are indeed valid both by natural law and by ecclesiastical law, which does not declare betrothals entered from grave and unjust fear invalid, provided it is established that the consent was true and internal; nevertheless they can be rescinded on the part of the one who suffered the fear.

b. If the fear is light, whether absolutely or relatively, the betrothals are certainly valid, but in like manner they can be rescinded on the part of the one who suffered the fear, provided the fear was the sole cause of the contract.

There are indeed those who teach that betrothals extorted unjustly by grave fear are invalid by each law, natural and positive; but the proposed opinion seems to be preferred. And indeed by natural law every contract which has been extorted by grave fear unjustly inflicted is judged valid, except matrimony and religious profession;¹ but there is no reason for excepting betrothals from other contracts, although matrimony is excepted.

¹ Cf. De praeceptis13, n. 537, where the reason for this assertion is explained.

531. 3. Mutual: for betrothals are a bilateral contract, by force of which the contracting parties are mutually obliged to one another. Therefore it does not suffice that one party promises and the other accepts the promise, but it is required that the other party promise back; for only if an accepted promise is confirmed by a reciprocal promise is there a mutual obligation of each party.

a. Before the reciprocal promise, the promisor is held to stand by the promises if he intends to promise absolutely and gratuitously, provided the other party has accepted the promise: a unilateral promise of matrimony. But ordinarily one who intends to contract betrothals is obliged to nothing before a reciprocal promise; for the words of the contracting parties must be understood according to the nature of the contract. But betrothals, a bilateral promise of matrimony, by their nature are a mutual contract, which does not contain a simple pledge but a conditional one: I promise, if you also promise. From this arose the adage used among canonists: betrothals do not limp, that is, they produce an obligation either in each betrothed or in neither.

b. Frequently in the acceptance of the promise the reciprocal promise is virtually contained. Thus an honorable woman who after acceptance of betrothals consents to fornication, or who accepts the promise after there has been discussion of contracting betrothals here and now, is judged virtually to promise back.¹

4. Expressed by a sensible sign, namely by writing; for neither the acceptance of the promise nor the reciprocal promise can be established unless external signs are used by each party. By natural law, indeed, those signs are required and suffice which either from themselves, from usage, or from circumstances signify a promise made to a determinate person, such as words, nods, letters, handing over of a ring, extension of the hand, etc.; but by recent positive law writing is altogether required.²

¹ Ballerini-Palmieri VI, n. 22.

² S. C. C., August 2, 1907, Ne temere. Cn. 1017.

532. 5. Between capable persons. Those are said to be capable of contracting betrothals who at some time can enter matrimony validly and licitly; therefore those who have the due age and are prohibited by no impediment, whether diriment or prohibiting. But those who cannot enter valid and licit matrimony with one another are incapable of contracting betrothals, because their betrothals, as concerning an impossible or illicit thing, are invalid.

For contracting betrothals it is not necessary that the contracting parties be able to enter matrimony with one another at the time at which they contract betrothals, but it suffices that they can enter it at some time, namely at that time for which the promise of matrimony was made. Therefore the following are incapable:

a. The demented, who are so captured in mind that they are not capable of grave sin, unless they have lucid intervals.

b. The drunk, who lack the use of reason; indeed even the half-drunk, as also the half-witted and half-asleep, are incapable.

c. The deaf, mute, and blind at the same time, from birth, are ordinarily incapable. Whether they are absolutely incapable or not, authors, Sanchez, Schmalzgrueber, Pirhing, disputed long ago. Absolute incapacity can be denied still more in our age, since now means are at hand for instructing even these human beings. But the deaf or the mute, indeed even the deaf and mute, are not incapable of contracting betrothals.

d. Infants and those below puberty, who do not yet have necessary knowledge of the matter, are incapable from the nature of the thing.

e. Those who are bound by a diriment or prohibiting impediment; concerning which matter below, n. 538.

533. The Form of Betrothals.¹ 1. Valid betrothals, which must be made in writing, with the placing of day, month, and year,² can be contracted in two ways: a. before the parish priest or ordinary, by a writing signed by the parish priest and the betrothed; b. before two witnesses, by a writing signed by the betrothed and witnesses.

Under the name of parish priest also comes a quasi-parish-priest and a parochial vicar.

The reason for establishing a new form in contracting betrothals is the evils and dangers which have often arisen from private betrothals, namely freer and sinful association between the betrothed with a view to future matrimony, betrothals rashly entered, doubts concerning betrothals truly entered, frauds by which especially incautious girls are deceived under promise of matrimony, suits and enmities arising because of rescinded betrothals between the betrothed and their families.

a. Any parish priest or ordinary, even if he is not the proper one of the betrothed or of either of them, can be present at the betrothals and sign the writing as a qualified witness, provided this is done in his own territory.³ But it is altogether to be advised that they be made before the proper parish priest. But if the betrothed dwell in different parishes, it is better that the betrothals be contracted before the parish priest who will take care of the necessary documents and proclamations.

b. The parish priest cannot substitute another priest for himself; therefore if a priest who is not the parish priest is present at the betrothals as witness, another witness must sign at the same time.⁴

c. All persons can be witnesses, men, women, acatholics, who can testify duly concerning the betrothals entered and sign the writing. Therefore it is necessary that the witnesses know how to write.

d. If each party or one party does not know how to write, or indeed knows how but now cannot, this must be noted in the writing itself, and another witness must be added, who besides the parish priest or local ordinary or the two witnesses signs the writing.

It is not established whether betrothals are invalid if another witness is not added to sign the writing in the case in which each or one of the betrothed does not know letters.

e. If an impediment stands in the way of matrimony, the betrothals must be contracted only after dispensation has been obtained, because diverse opinions of authors exist concerning the value of betrothals which are contracted by those who are bound by a diriment impediment.

f. In order that betrothals be valid, the betrothed must be present together and sign the writing together with the parish priest or two witnesses. Nor can a writing signed by one party and the parish priest or witnesses be sent to the other party, so that the other in turn signs with his or her parish priest or witnesses. Therefore if the betrothed remain in different places and cannot appear together before the parish priest or witnesses, the betrothals must be entered through a procurator.

2. Acatholics, even if among themselves or with Catholics, whether baptized or non-baptized, contract betrothals, unless for a particular place or region something else has been established by the Holy See.

a. Whether acatholics are held by force of the Code to observing this form is not established among authors. Those who affirm it say: baptized acatholics, who in the decree Ne temere are excepted from observing this form, are no longer excepted by the new Code, so that betrothals which are made by heretics or schismatics among themselves without observing the form are by strict law invalid.

b. In Spain, in all Latin America and the Philippine Islands, betrothals did not have force, either in the external or internal forum, unless they had been made by a public writing before a notary, not before a parish priest.⁵ This special law, however, has been abrogated by the decree Ne temere.⁶

3. A hidden promise of matrimony, whether unilateral or bilateral or betrothal, by the new Code is invalid by each law,⁷ and therefore produces neither moral effects of fidelity, nor canonical effects of betrothed faith.

Note. Who is to be understood under the name parish priest in the Code, and who are considered Catholics, will be said below, where there is discussion of clandestinity.

¹ Cn. 1017.

² S. C. C., July 27, 1908. The placing of day, month, and year, which from this decree was necessary for validity, is not required in the new Code; therefore now it is to be counseled, but is no longer necessary.

³ S. C. C., March 28, 1908.

⁴ S. C. C., March 28, 1908.

⁵ S. C. C., April 10, 1891; S. C. pro neg. eccl. extraord., November 5, 1901.

⁶ S. C. C., March 12, 1910.

⁷ Cn. 1017, 1.

534. Betrothals Are Divided: a. Into solemn, which are made with the intervention of public authority, namely the parish priest or ordinary; private, which are made without intervention of public authority, before private witnesses.

b. Public, which are made so manifestly, through a writing before the ordinary, parish priest, or witnesses, that they can be established in the external forum; hidden or clandestine, which are made secretly, so that they cannot be proved in the external forum.

From the old law betrothals, whether public or clandestine, were equally valid, because the consent of two persons sufficed for valid betrothals; but now the Church declares clandestine or hidden betrothals invalid by an invalidating law.

c. Into simple and penal, in which a penalty is agreed upon if either party withdraws from the betrothals without a legitimate cause.

d. Into absolute and conditional, according as they are entered with some condition or without it.

In betrothals not only a suspensive condition but also a resolutory one can licitly be placed; but in the celebration of matrimony, although a suspensive condition can be placed for a grave cause and with the license of the bishop acceding, nevertheless a resolutory condition cannot be placed, unless it is a resolutory condition which inheres in the matrimonial contract from the disposition of law, unless the supreme pontiff shall have dispensed, unless I shall have chosen religion, because the matrimonial contract by its nature is irresoluble.

535. Note. a. From the penalty added to betrothals must be distinguished the arrha, earnest-money (Angeld), which is everything which the betrothed mutually hand over to each other as a sign of betrothals entered and as a pledge of matrimony to be contracted. He who withdraws from the betrothals loses those things which he gave and must return those things accepted; but once matrimony has been contracted, the betrothed recover the arrha which they had given. Arrhae are not illicit.

b. Again from arrhae must be distinguished gifts or presents, which frequently are customarily handed over by the bridegroom to the bride. Presents of this kind, if according to the condition of the betrothed they are of small value, are judged absolutely donated, and therefore are not to be restored if matrimony does not follow. But if they are of great value, they are judged donated with a view to the future matrimony, and therefore must be restored if matrimony does not follow. Nevertheless, according to a probable opinion, they can be retained if the betrothals are dissolved by fault of the bridegroom.

536. On Betrothals Entered Through a Procurator. Betrothals under certain conditions can be entered both validly and licitly through a procurator: for matrimony and other contracts can be entered through a procurator; therefore also betrothals.

The required conditions are: a. that the procurator have a special mandate of contracting betrothals with a determinate person; b. that he execute the mandate himself personally and not through another, unless he has power of substituting another for himself; c. that the mandate has not been revoked, even if the revocation has become known neither to the procurator nor to the other party with whom he contracts betrothals.¹ The mandate does not need the conditions which from Cn. 1089 are required for a mandate for matrimony.

¹ Nothing prevents a woman from acting as procurator; for it is not necessary that he who acts as procurator himself be capable of that right which is acquired for the mandator. Hence it can happen that two men or two women, fulfilling the office of procurators, contract betrothals for absent betrothed persons. Cf. Sanchez, l. 2, disp. 11, n. 15.

537. On Betrothals Entered Without the Parents' Knowledge or Against Their Will. a. Betrothals entered without the consent of parents are per se valid even where the matrimony itself is not illicit: for the consent of parents is required neither by natural law nor by positive law for valid betrothals. For although minors are subject to the power of parents in the exercise of their rights,¹ nevertheless as regards matrimony they are of their own right and can make promises of matrimony. Therefore even if betrothals entered without the knowledge and against the will of parents are per se valid, nevertheless children are held to seek the counsel of parents.²

b. But per accidens it can happen that not indeed the matrimony but the betrothals which are made against the will of parents are invalid. Namely, if the parents have a just reason for dissenting, the betrothals are invalid, not because of the dissent of the parents, but because matrimony in this case is illicit; but there is no obligation to an illicit thing. Hence if parents dissent without a just reason, the betrothals are not only valid but also licit, provided their counsel has been duly sought.

All agree that parents justly dissent if the matrimony redounds to the dishonor of the family or if grave scandals or dissensions are foreseen to arise from it; for children are held to guard against dishonor of the family from justice, and against scandals and dissensions from charity; whence their matrimony in this case would be illicit. Whether parents justly dissent because of a notable disparity of condition of each betrothed, whether it arises from nobility or from riches, or whether the betrothed in this case are held to stand by the promises, authors do not equally agree. It must be noted that the question supposes that the betrothed at the time of the betrothals were conscious of the disparity existing between them; for if they had been ignorant of it, the betrothals would be either invalid or at least rescindable. Therefore: a. if the matrimony, because of disparity of condition of each betrothed, brings either dishonor of the family or scandals or hatreds and dissensions of relatives, the betrothals are invalid because of these effects of the future matrimony. But if b. none of these things is to be feared from the future matrimony, the betrothals must be judged valid; and indeed it is not illicit that a noble marry a commoner, or a rich person a poor person.

¹ Cn. 89.

² Cn. 1034.

538. On Betrothals Between Incapable Persons, or between those who labor under some impediment, whether diriment or prohibiting.

1. Betrothals between persons laboring under an indispensable impediment are invalid; for since matrimony, because of the impediment, can never be entered validly, those promising oblige themselves to an illicit and impossible thing; but there is no obligation to an illicit or impossible thing.

An impediment is called indispensable in which the Church either cannot dispense, or is never accustomed to dispense, or indeed is accustomed to dispense but in a particular case the causes which suffice for obtaining dispensation are lacking.

2. The same must be said about betrothals entered absolutely between persons laboring under a dispensable impediment: for as long as the impediment exists, they cannot contract licitly; therefore neither can they oblige themselves absolutely to contracting.

Besides, if two who are bound by a dispensable impediment enter betrothals, the condition of seeking dispensation, if the pope shall have dispensed, is always understood as tacitly placed.¹

3. Betrothals entered conditionally:

a. They are certainly valid if the impediment ceases either of itself or from the will of the contracting parties, and the betrothals are made under an express or tacit condition of celebrating matrimony when the impediment shall have ceased.

Hence one who is bound by a temporary vow of chastity contracts betrothals validly and licitly, to be fulfilled when the vow has ceased. The Catholic party contracts betrothals validly and licitly with an acatholic party, to be fulfilled after the conversion of the acatholic party. By force of these betrothals the acatholic party is held to conversion, which was implicitly promised with matrimony.

b. If the impediment ceases only through dispensation, and the betrothals are made under the express or tacit condition, if the pope or bishop shall have dispensed, they also are valid from the nature of the thing; for they are a contract entered under a possible and honorable condition, which, once the condition has been verified, becomes valid of itself.²

And although there are some more recent authors, Feije, De Becker, etc., who say that betrothals of this kind are simply invalid, both because those incapable of entering matrimony are also judged incapable of contracting betrothals whether absolutely or conditionally, and because various decisions of the Roman congregations declare them invalid, nevertheless the opinion concerning the value of these betrothals cannot be effectively attacked by arguments taken from the nature of the thing. As regards the decrees of the Roman congregations, first it must be conceded that the Church can establish by positive law that persons laboring under an impediment, even a dispensable one, are incapable of validly contracting betrothals, or at least that dispensation from the impediment in question is granted only on the condition that the betrothed, after dispensation has been obtained, renew consent. Although neither has hitherto been established by a general decree, nevertheless several particular decrees exist from which it seems possible to gather that the Holy See considers these betrothals as invalid and requires of the betrothed that, after dispensation has been obtained, new consent be placed.³

Betrothals entered with an acatholic person, if they are made under the condition of obtaining dispensation, are valid once this has been obtained and accepted, at least after consent has been renewed; but for the Catholic party, before matrimony has been entered, the faculty of withdrawing from the betrothals remains, unless matrimony is the necessary means of repairing an injury. For since mixed matrimony is rarely plainly licit, and the Church always dissuades it, there is a sufficient reason for dissolving the betrothals.

¹ St. Alphonsus, l. 8, n. 650, with Lugo cited there.

² Cf. Schmalzgrueber. Among more recent authors Ballerini-Palmieri VI, n. 57, Gasparri, De Angelis, Rosset, etc., uphold this opinion.

³ Cf. Wernz IV, n. 95 f.