§ 2. On Conditional Consent

737. A suspensive condition is one which suspends the validity of a contract until it has been fulfilled; for example: I contract matrimony with you if your maternal uncle will give you a dowry.

A resolutory condition is called one which, when it supervenes, dissolves the contract entered; for example: I sell you this house until the death of my father. After the death of the father the contract of sale is dissolved by that very fact. Because of the indissolubility of matrimony a resolutory condition is impossible in the matrimonial contract.

An interpretative condition is called one which is indeed judged to have been implicitly present, but was not explicitly placed; for example, if the bridegroom had known the poverty of the bride, he would never have married her. These interpretative conditions produce no effect, unless, however, they constitute substantial error or error redounding upon the person, as will be said below concerning the impediment of error.⁵³³

Rule I. A matrimony entered under a condition concerning the present or the past is valid or invalid according as the condition is or is not fulfilled. Thus the Code of Canon Law, can. 1092, n. 4.

For example, Caius contracted matrimony with Tullia under the express condition that Tullia had preserved her virginity inviolate. If the matter is so, the matrimony is valid; otherwise it is null.⁵³⁴

⁵³³ N. 788.

⁵³⁴ Cf. Causa Versaliens., Acta Ap. Sed. X (1918), 388 ff.

738. Rule II. A matrimony contracted under an honorable contingent condition concerning the future is suspended until the condition has been fulfilled; but when the condition has been fulfilled the matrimony becomes valid by that very fact, nor is a renewal of consent (per se) necessary.

Such is the common opinion of authors, which rests upon c. 5, X 4, 5;⁵³⁵ for example, Caius contracts matrimony with Laetitia under the condition that her father is to give consent. This matrimony is suspended until the father actually gives consent; when this has been given, the matrimony becomes valid without a renewal of consent. Moreover, those things which hold concerning the fulfillment of a condition hold likewise concerning the renunciation of a condition placed. If Caius in the example adduced were to say to Laetitia: I renounce the condition placed, the matrimony would immediately become valid, provided that the matrimonial consent previously given had persevered. Indeed, an express renunciation is not required, but an implicit renunciation suffices, such as can be had through carnal intercourse freely exercised between the contracting parties. Hence some authors teach that in this case there is still in our days the so-called presumed matrimony, which was otherwise abolished by Leo XIII in the Constitution Consensus mutuus (1892).⁵³⁶ - If a matrimony was contracted under the condition: "if the Pope shall have dispensed," then, once the pontifical dispensation has been obtained, consent is to be renewed in the form prescribed by the laws. Thus from positive law and, more probably, also from natural law.⁵³⁷ The reason is that before the pontifical dispensation was obtained the contracting parties were incapable of giving efficacious consent. - Moreover, in practice it is much better that a renewal of consent always be required when there is question of a matrimony previously contracted under a condition which, once the condition has been fulfilled, has become absolute. If a matrimony has been contracted under a condition, before the fulfillment of the condition either contracting party can indeed validly withdraw from the contract entered; nevertheless, that party is accustomed to act illicitly unless the other party freely consents to the dissolution of the contract. This is evident of itself, because one who thus withdraws breaks the faith given.

⁵³⁵ Cf. Gasparri, loc. cit., n. 849; De Smet, loc. cit., n. 87.

⁵³⁶ Cf. De Smet, De sponsal. et matrim., n. 87; Vogt, Das kirchliche Eherecht, § 31.

⁵³⁷ Cf. Gasparri, loc. cit. II, 994; Feije, De imped. et dispens. matrim., n. 648; De Smet, loc. cit., 994. Cappello, De matr., n. 640, asserts that from natural law there is no obligation of renewing consent.

739. Rule III. A matrimony contracted under a condition concerning a future dishonorable, necessary, or impossible contingency, which nevertheless is not contrary to the substance of matrimony, is valid.

For such conditions are judged as not added.⁵³⁸ Hence, for example, a matrimony is valid which was contracted under the condition that the woman must steal a large sum of money from her father. Another and indeed celebrated example of such a dishonorable condition is a stipulation concerning the education of offspring in heresy or infidelity. Although some authors⁵³⁹ wish this condition to be placed as directly contrary to the substance of matrimony (at least if it has been reduced to a pact), since it is contrary to the spiritual good of the offspring, nevertheless the more common and truer opinion teaches that those who make a pact in this manner indeed sin most gravely, but contract validly unless another diriment impediment stands in the way. The reason is that this condition is commonly held not as a condition sine qua non, but as a pure mode added to the matrimonial contract. Then, even if the education of the offspring in heresy has been truly and expressly stipulated, this condition indeed most gravely violates the spiritual good of the offspring, but not its natural good. But only conditions destroying the natural good of the offspring seem to invalidate the matrimony to be contracted.⁵⁴⁰ This opinion indeed is confirmed from the constant practice of the Church, which has always indeed reproved these pacts concerning the total or partial education of the offspring in heresy or infidelity, but nowhere has established that marriages thereby become invalid.

⁵³⁸ "Conditions placed in matrimony, if they are dishonorable or impossible, must on account of its favor be held as not added" (c. 7, X 4, 5). Thus also the Code of Canon Law, can. 1092, n. 1.

⁵³⁹ Weber, Ehehindernisse, § 3; Lehmkuhl, Theol. mor. II, 880 note; Haine, Elem. Theol. mor. IV, q. 46.

⁵⁴⁰ Cf. Wernz-Vidal, Ius can. V, n. 518; Noldin-Schmitt, De sacr.¹⁹, n. 631.

740. Rule IV. A matrimony contracted with a condition which is contrary to the substance of matrimony is null.⁵⁴¹

The reason is that consent of this kind involves a contradiction. For such a contracting party indeed wills matrimony, but by the condition placed immediately destroys it. But the substance of matrimony consists in three goods, namely, offspring, fidelity, and sacrament, concerning which there was discussion above.⁵⁴² Hence, for example, marriages which are contracted under a condition of avoiding generation, or of not begetting more than two children and thereafter abusing matrimony, or of obtaining a divorce if one pleases, are invalid. Certainly it must be established that such a truly suspensive condition was explicitly placed before the matrimony is declared null on account of this defect. For as long as any doubt remains, one must stand for the validity of the matrimony, since it enjoys the favor of law.⁵⁴³ In the external forum a matrimony is not accustomed to be declared invalid on account of these conditions placed unless it is established that they were expressly reduced to a pact. Hence the marriages of heretics who think divorce lawful are nevertheless judged valid, because a condition of divorce is not accustomed to be expressly reduced to a pact. On October 2, 1680, to the question, "Whether a matrimony contracted between a Catholic woman and a schismatic heretic, with a condition of violating or dissolving the matrimony, is valid?" the Holy Office responded: "If these things have been reduced to a pact, ... the marriages are null; but otherwise, they are valid."

Authors are also accustomed here to raise the question whether a matrimony entered under a condition of observing continence, or even with a vow of chastity, is valid. The more probable opinion teaches that such marriages are valid, provided that the right to intercourse is not excluded. The reason is that in marriages of this kind the contracting parties grant to one another the full right to the use of matrimony; but the essence of matrimony consists in such consent. But that which they then promise to one another, that they will never use the right granted, is accidental and does not take away the essence of matrimony. If both contracting parties promise one another from the beginning that they will never use the matrimonial right, and a fortiori if they emit a perfect vow of chastity, they are said to enter a Josephine marriage,⁵⁴⁴ because such a matrimony is judged to have existed between St. Joseph and the Blessed Virgin.⁵⁴⁵ But such spouses, if they used the matrimony, would indeed sin against the vow, but not against chastity.

⁵⁴¹ Thus c. 7, X 4, 5, and Code of Canon Law, can. 1092, n. 2.

⁵⁴² N. 684 ff.

⁵⁴³ Code of Canon Law, can. 1014. Pius VI wrote excellently concerning this matter in letters given July 11, 1789, to the Archbishop of Prague.

⁵⁴⁴ Josephsehe.

⁵⁴⁵ Cf. P. Rett, Die Josephsehe in ihrem Original und ihrer Nachahmung (Innsbrucker Zeitschrift f. kathol. Theol., 1909, 590 ff.); Wernz, loc. cit., n. 302, note 41; De Smet, loc. cit., n. 89.