§ 1. On the Defect of Consent Through Error

741. Preliminary note. Error and the servile condition were enumerated by ancient authors as two distinct matrimonial impediments; but in reality they are only one impediment having a twofold material object. For error can concern the very person of the other party or a quality redounding upon the person, and then there is the impediment of error simply so called; or error concerns the servile condition of the other party, and then there is the impediment of servile condition. But since error is no longer enumerated in the Code of Canon Law among the impediments, but among those things which vitiate matrimonial consent, we too follow this method.

Notion. Error is a false judgment by which the will is moved. Error is indeed distinguished from ignorance, which is the lack of knowledge in a capable subject; "nevertheless, as regards that which is to impede the voluntary, it does not differ whether it is called ignorance or error, ... whence, if ignorance is present there, error must be present there. And therefore error is also posited as the proximate cause."⁵⁴⁶

⁵⁴⁶ St. Thomas, Suppl., q. 51, a. 1, ad 1.

742. Divisions. Error which can occur in matrimonial consent is customarily divided in several ways:

1. Vincible and invincible error.

The first can be overcome or expelled easily; the second, with difficulty or in no way.

2. Theoretical and practical error.

The first, which is also called concomitant or incidental, is indeed a false judgment concerning the nature of matrimony, but it does not so influence the will of the contracting party that, if it had been detected, it would have prevented the matrimony. Protestants, for example, are accustomed to labor under such an error, who think that matrimony is neither a sacrament nor indissoluble, but who nevertheless will to contract a true matrimony, as other good Christians do. - The second, which is also called antecedent, gives cause to the matrimonial contract and, if it had been detected before the matrimony, would have entirely avoided the contract.

3. Error of law and error of fact.

The first concerns the very nature of matrimony and the obligations flowing from this nature; or it can also be said: error of law concerns the three goods of matrimony, for example, the good of offspring, when either contracting party firmly thinks and wills that the generation of offspring is to be avoided; or the good of fidelity, when either contracting party firmly thinks and intends to enjoy so-called "free love"; or the good of the sacrament, when matrimony is contracted under an express intention of divorce. - The second error concerns some fact, either essential or accidental. An essential fact is again twofold: the very person of the other party and a quality of that person which redounds upon the person himself or herself. An example of essential error in the person of the other party is found in the matrimony of Jacob with Leah.⁵⁴⁷ For Jacob willed to contract matrimony with Rachel, for whom Leah was substituted by Laban. A quality redounding upon the person himself or herself is judged to be one which belongs to only one individual person; for example, someone expressly intends to contract with the firstborn daughter of a certain count, and in place of the firstborn daughter the second-born is handed over to him. This distinction of a quality redounding upon the person was first offered in express words by St. Thomas.⁵⁴⁸ - An accidental fact, or accidental error, concerns some quality of the other party which perhaps is of the greatest importance but nevertheless can belong to several persons, for example, nobility, virginity, wealth, and so forth.

4. Substantial and accidental error.

The first concerns either the essential obligations of matrimony (error of law), or the very person of the other party, or a quality redounding upon the person, and it is always practical error. The second is either merely theoretical or concerns accidental qualities of the other party. - This distinction is of great importance in the present matter.

⁵⁴⁷ Cf. Gen. 29:24.

⁵⁴⁸ Suppl., q. 51, a. 2, ad 5.

743. Principle 1. From natural law itself, substantial error alone invalidates every matrimony.

The reason is that substantial error takes away consent and therefore matrimony itself, which is caused by the consent of the contracting parties alone, as was proved above. St. Thomas⁵⁴⁹ writes to the point: "Whatever impedes a cause by its own nature similarly impedes the effect. But consent is the cause of matrimony, and therefore that which nullifies consent nullifies matrimony. But the consent of the will is an act which presupposes an act of the intellect. When the first is lacking, a defect must occur in the second. And therefore when error impedes knowledge, a defect also follows in consent itself, and consequently in matrimony. And thus error has it from natural law that it nullifies matrimony."⁵⁵⁰

Substantial error can concern three objects:

a) The three goods of matrimony. Error of this kind (which is error of law) invalidates matrimony only if it is truly antecedent and practical, but not if it is merely concomitant and theoretical.

Hence, if a virgin contracting matrimony knows nothing concerning the conjugal act, the matrimony is not yet invalid, unless, once the truth of the matter is known, she immediately declares that she would never have consented to this act. The reason is that such a virgin is judged to have contracted matrimony as other women are accustomed to do, and therefore this error is held as concomitant or merely incidental. Wherefore in practice nothing remains to be done except that the virgin now consent to the conjugal act, or seek a dispensation from ratified and non-consummated matrimony. This doctrine, which canonists and theologians very commonly hold,⁵⁵¹ is confirmed from the practice of the Sacred Congregation of the Council. Thus, for example, the following case was resolved: Antonius, twenty-five years of age, married Rosa, nineteen years of age, who was entirely ignorant of the matrimonial office. Rosa obstinately denies the conjugal debt to her husband for three years, saying that she would never have contracted matrimony if she had known herself to be obliged to so foul a thing. On December 18, 1869, the Sacred Congregation of the Council responded to the question: "Whether the Most Holy One is to be advised in favor of a dispensation from ratified and non-consummated matrimony in the case? - Affirmatively, with the woman forbidden to pass to other nuptials without consulting the Sacred Congregation." In other similar cases the Sacred Congregation was unwilling to dissolve the matrimony.⁵⁵² Observe that the matrimony was not declared null, but dispensed. The same holds of the matrimony of Protestants, which is judged valid even if the contracting parties think divorce as regards the bond to be lawful. Hence the Code of Canon Law, can. 1084, establishes: "Simple error concerning the unity or indissolubility of matrimony or its sacramental dignity, even if it gives cause to the contract, does not vitiate matrimonial consent";⁵⁵³ and can. 1085: "Knowledge or opinion of the nullity of the matrimony does not necessarily exclude matrimonial consent."

b) The very person of the other party.

For a contract between certain and entirely determinate persons pertains to the essence of matrimony. Such error of person can scarcely arise in our regions, since those about to marry have perfect mutual knowledge before the matrimony. It is otherwise among Mohammedans or pagans, who sometimes buy a bride whom they have never before seen, or if matrimony is contracted through a proxy.

c) A quality redounding upon the person.

In the external forum an error of this kind is never acknowledged as a diriment impediment of matrimony unless this quality was expressly stipulated, and indeed as a condition sine qua non. Hence those things said above, n. 737 ff., concerning conditional matrimony are to be applied. Certainly, theoretically speaking, every antecedent error giving cause to the matrimonial contract destroys true consent and therefore matrimony itself; but the Church does not acknowledge such error unless it is clearly proved in the external forum, which can scarcely be done unless the quality in question was expressly reduced to a pact. But in the internal forum the matter is otherwise, because true consent is lacking. Therefore, if someone led by antecedent error contracted matrimony, he must either give true consent or abstain from the conjugal act. - Behold a practical case of error concerning a quality which redounds upon the person: "The family of Count A. employs domestic statutes by which it is provided that the hereditary count take to himself a wife of equal condition. Count A., therefore, seeks a wife for himself with this open intention. At length he hears that the most noble family of Count B. exists at Florence and that Count B. has an only daughter. Hence Count A. sends to Florence letters by which he seeks the same daughter as wife for himself. Nevertheless, the chambermaid of this daughter, having fraudulently suppressed the letters, writes to Count A. and, upon receiving a response, sets out for Germany. Under the false name of Countess B. she contracts matrimony with Count A. Once the matrimony has already been consummated, she reveals the fraud. It is asked whether that matrimony is invalid on account of an error of quality redounding upon the person. We respond that there is no doubt that in this case the error of quality redounds upon the person."⁵⁵⁴ - On the contrary, in the following case the Sacred Congregation of the Council was unwilling to acknowledge an error redounding upon the person: Cassandra, thinking Vincentius to be wealthy and noble, married him after she had been confirmed in her error because Vincentius very cunningly assumed a fictitious name. When the error was discovered, Cassandra sought the dissolution of the matrimony on account of the impediment of error, but the Sacred Congregation of the Council refused on May 27, 1820. Likewise in this sad case: Jacob Teichert expressly said to his betrothed, Elisabeth: I shall never marry a girl who has already had carnal intercourse with another. After the matrimony had been contracted, Elisabeth disclosed that she not only had had carnal intercourse, but also was pregnant by another man. Although a most grave error was present, nevertheless the Sacred Roman Rota on January 2, 1913, responded that the nullity of the matrimony was not established.^554a The reason seems to be that there was indeed a very great error of quality, but this quality was not expressly stipulated.⁵⁵⁵

⁵⁴⁹ Suppl., q. 51, a. 1.

⁵⁵⁰ Freisen (Gesch. d. kan. Eherechtes, 302 ff.), adopting the division of error into proper and improper (echter und unechter Irrtum), first introduced by Savigny, does not admit that error even in the person invalidates matrimony by natural law, but only by ecclesiastical law. This singular opinion is deservedly rejected very commonly.

⁵⁵¹ Gasparri, De matr. II, n. 791; Wernz-Vidal, Ius can. V, n. 492; Lehmkuhl, Theol. mor. II, 934; Leitner, Lehrb. d. kirchl. Eherechtes, 106.

⁵⁵² Cf. Sacred Congregation of the Council, March 15, 1850.

⁵⁵³ "Whether a matrimony contracted between a Catholic and a heretic with the intention of violating or dissolving the matrimony is valid? - If these things have been reduced to a pact, or if the marriages have been contracted with this condition, they are null; but otherwise they are valid." Thus the Holy Office, October 2, 1680. The reason is that these spouses, as knowing Christ's doctrine concerning matrimony, are presumed principally to have intended a true Christian matrimony. The matter is otherwise if there is question of marriages of infidels, as is evident from the response of the Holy Office of May 19, 1892: "It is the custom of the Indians of this region [Sioux Falls] to contract marriages for the sake of testing the character and qualities of their wives, namely, whether they are good and prudent or not; and with the intention of dismissing them if they are foolish and wicked. Hence it is asked: Can faith be given to them if they affirm under oath that they never contracted matrimony with preceding wives by an indissoluble bond; and can they be permitted to join to themselves, according to the laws of holy Mother Church, the woman whom they now have? - Affirmatively, if there is question of infidels, after a diligent examination of all the circumstances concerning their credibility has been instituted, and no doubt or only a slight doubt remains concerning the truth of the assertion. Negatively, if there is question of the faithful, but legitimate proof is required" (Collect. de Prop. Fide, nn. 221 and 1796).

⁵⁵⁴ Cf. Gasparri, De matr. II, n. 787.

^554a Acta Ap. Sed. V, 45 f.

⁵⁵⁵ Gasparri, loc. cit., n. 790, adduces several other cases in which the Sacred Congregation of the Council was unwilling to acknowledge an error redounding upon the person.

744. Principle 2. By ecclesiastical law, error concerning servile condition is a diriment impediment of matrimony.⁵⁵⁶

Servile condition or servitude has three degrees. The first is when a slave is considered as a mere thing, over which the master has most perfect dominion and which he can therefore even destroy. Such servitude is contrary to natural law and once existed only in paganism, where a master could even kill his slaves. The second is when a slave must serve a master throughout his whole life without receiving any other recompense except food and clothing; but the master has no authority over the life of the slave, whom he is also bound to treat in a humane manner. Such servitude existed even among Christians and is still servitude properly so called. Here there is question of servitude in both degrees. The third degree is when a man is indeed bound to render some services to a master, but in other matters is entirely free. - The impediment of servile condition is present only when a freeborn or free person marries another party whom he falsely thinks to be free and not a slave. Therefore a matrimony is not invalid: a) which is contracted between two slaves; b) if a free person knowingly marries a slave; c) when a slave marries a female slave whom he falsely thinks to be free.⁵⁵⁷ - The impediment of servitude was fittingly introduced by the Church because a party restricted by servitude can neither freely render the conjugal debt nor suitably educate the offspring born; for that party always remains under the dominion of the master, who can impose burdens incompatible with conjugal obligations.⁵⁵⁸ But since unrecognized servitude is an impediment of matrimony by ecclesiastical law alone, it does not bind pagans. And since in present times servitude has been abolished almost everywhere in the Christian world, this impediment can scarcely occur any longer. Hence these things briefly said suffice. Whoever desires more should approach St. Thomas, who treats this matter throughout question 52 of the Supplement.

⁵⁵⁶ Innocent III already so established in c. 4, X 4, 9; this the Code of Canon Law, can. 1083, § 2, n. 2, confirmed: "Error concerning a quality of the person renders matrimony invalid if a free person contracts matrimony with a person whom he thinks to be free, when on the contrary that person is a slave, with servitude properly so called."

⁵⁵⁷ Code of Canon Law, loc. cit.; St. Alphonsus, Theol. mor., l. 6, n. 1918.

⁵⁵⁸ St. Thomas, Suppl., q. 52, a. 1.

745. A dispensation from the defect of substantial error, since it invalidates matrimony by natural law itself, cannot be granted by the Supreme Pontiff. Therefore a matrimony null because of substantial error cannot be convalidated except through the express or interpretative consent of the erring party (for example, through marital intercourse). But if the error was publicly known, the convalidation must be made before the parish priest and two witnesses according to the legal form, unless, however, the Supreme Pontiff has permitted another giving of consent. Cf. below, n. 875 f., concerning the convalidation of matrimony because of a defect of consent.