§ 2. On The Conditions Required For Valid Betrothals

In order that a betrothal promise may be valid, the following conditions are required:

708. 1. A free promise and therefore one immune both from substantial error and from fear and coercion.

a) Substantial error (or even accidental error which redounds upon the person) renders matrimony itself invalid, as will be said below. Therefore a fortiori it renders betrothals contracted with such an error invalid. A notable accidental error renders betrothals rescindable, because it is a notable change now known, on account of which it is lawful to dissolve the betrothals, as will be explained below, n. 718.

b) Grave fear inflicted by a natural cause or even by a free cause justly does not invalidate betrothals or render them rescindable.⁴²²

It is disputed whether grave fear unjustly inflicted renders betrothals invalid or only rescindable. All teach that betrothals can be rescinded on account of grave fear unjustly inflicted, because marriages ought to be especially free. But St. Alphonsus,⁴²³ Feije,⁴²⁴ Gasparri,⁴²⁵ Cappello,⁴²⁶ and others teach that betrothals entered into in this manner are in addition invalid. Billuart,^426a Santi,⁴²⁷ Scherer,⁴²⁸ Wernz-Vidal,⁴²⁹ Vogt,⁴³⁰ Noldin-Schmitt,⁴³¹ and others think that they are only rescindable. This latter opinion is truer, because no certain argument for the first opinion can be brought forward either from positive law or from natural law. For by natural law every contract entered into between capable persons with sufficient deliberation is valid, even if it was completed under fear. Positive law, however, has declared only a few contracts made under grave fear invalid, for example, matrimony and religious profession, but not betrothals.⁴³²

Slight fear unjustly inflicted renders betrothals rescindable, at least if it gave cause to the betrothal contract, but not if it is merely concomitant.⁴³³

⁴²² Cf. above, II, n. 258.

⁴²³ Theol. mor., l. 6, n. 844.

⁴²⁴ De imped. et dispens. matr., n. 390.

⁴²⁵ De matrim. I, n. 21.

⁴²⁶ De sacr. III, n. 98.

^426a De contract., diss. 1, a. 4.

⁴²⁷ Prael. iur. can., l. 1, tit. 40, n. 4.

⁴²⁸ Kirchenr., § 110, n. 10.

⁴²⁹ Ius can. V, n. 85.

⁴³⁰ Das kirchl. Eherecht, § 8.

⁴³¹ De sacr., n. 528.

⁴³² Cf. Code of Canon Law, c. 103, § 2.

⁴³³ Cf. St. Alphonsus, Theol. mor., l. 6, n. 844; Gasparri, De matr., n. 21.

709. Since marriages ought therefore to be free, the ancient canon law⁴³⁴ prohibited the stipulation of any conventional penalty to be paid by that party who withdraws from the betrothals. All indeed teach that a conventional penalty of this kind is illicit and invalid if it were imposed even upon one withdrawing justly; but if it is stipulated only against one withdrawing unjustly, several authors think it valid notwithstanding the cited chapter of canon law. In practice the condition of the possessor is better. That is, if the penalty has already been paid, the recipient can retain it; if it has not yet been paid, it cannot be exacted.⁴³⁵

From this conventional penalty are to be distinguished earnests (arrhae), which are things given, not promised, between the betrothed as a sign of the betrothals entered into and as a pledge of the matrimony to be contracted. These earnests, if the matrimony is contracted, can be reclaimed and ought to be restored; but if the matrimony has not followed, the party unjustly withdrawing loses his or her earnest, and if that party has received any, he or she ought not only to return it but also to return double. The party injured through the unjust dissolution of the betrothals can retain the earnest given by the other party.⁴³⁶ Earnests are licit in themselves, but in our regions they are no longer in use.

From an earnest, again, are to be distinguished betrothal gifts (betrothal largess, or even iocalia),^436a which are gifts or presents handed over between the betrothed as a sign of love, but not as a strict pledge of future matrimony. Gifts of this kind, if they are of small value (with regard had to the state of the betrothed), are considered to have been given absolutely, and therefore no obligation of justice to restore them is present, even when the betrothals have been dissolved. But if they are of great value, the things given are presumed to have been given in view of the future matrimony, or rather as earnests, and therefore are to be restored if the matrimony does not follow. In practice it is preferable to restore all betrothal gifts if the matrimony does not follow, and all the more if they are demanded back. The reason is that gifts of this kind not rarely recall painful and even dangerous matters to memory.

Note. Those things taught by the older authors concerning a conventional penalty, earnests, and betrothal gifts according to Roman law cannot always be reduced to practice today, because that law in many regions neither exists nor binds in conscience.⁴³⁷

⁴³⁴ C. 29, X 4, 1.

⁴³⁵ Cf. Aertnys, Theol. mor., l. 6, n. 430; Cuniliati, O.Pr., De matrim., § 1, 8-15.

⁴³⁶ Thus from ancient Roman law, L. 5, C. V, 1. Whether these statutes are valid also in our days is very doubtful.

^436a French joyau, German Juwel ("jewel").

⁴³⁷ Cf. Reiffenstuel, Ius can., l. 4, tit. 1, n. 176 ff.

710. 2. A deliberate promise.

For there is question of a matter of great moment, which cannot be treated without serious deliberation. The deliberation required and sufficient, however, is that which is necessary for constituting a mortal sin. Since today betrothals ought to be set down in writing, sufficient deliberation is almost always presumed to be present.

3. A mutual promise.

A unilateral promise of matrimony can indeed exist, but a true betrothal promise ought to be bilateral; for betrothals are a mutual and indeed an onerous contract. Hence for their validity a promise of matrimony given by one party and accepted by the other party does not suffice, but a reciprocal and explicit promise is required. In betrothals entered into according to the new law, this reciprocal promise is always presumed and is present.

711. 4. A promise between capable persons. There is a twofold incapacity: one natural, the other legal.

All those who lack sufficient use of reason for entering into an onerous contract of great moment labor under natural incapacity. Hence the insane, the perfectly intoxicated, the hypnotized, and so forth, are incapable. Infants before the completion of the first seven years are presumed to lack sufficient use of reason, and therefore their betrothals are invalid.⁴³⁸ If betrothals were entered into after the completion of seven years and sufficient use of reason was certainly not yet present, they are invalid; otherwise, however, they are presumed valid. Concerning betrothals contracted after the age of seven but before legal puberty, the following was established in the ancient law: They cannot be rescinded before the years of puberty; but after puberty has been attained, the faculty of rescinding the betrothals immediately, that is, within three days, is granted to each betrothed party,⁴³⁹ unless, however, carnal intercourse occurred between the betrothed,⁴⁴⁰ or the betrothals were confirmed by an oath.⁴⁴¹ These three days probably are not to be computed physically after legal puberty has been attained, but after knowledge of the privilege.⁴⁴² But one who, existing in puberty, enters into betrothals with a prepubescent person (for example, a young man eighteen years old and a girl eleven years old) cannot withdraw from the betrothal contract. The prepubescent person, however, can rescind these betrothals after attaining puberty. The reason is that canon law granted the faculty of dissolving only in favor of the prepubescent person. - Moreover (at least in our times and in our regions), betrothals of prepubescent persons are exceedingly rare, and the Code of Canon Law is silent concerning them; therefore they seem to be treated like other betrothals.

Those labor under legal incapacity: a) who do not observe the form prescribed by ecclesiastical law; b) who are bound by some prohibitive or diriment impediment of matrimony. This indeed is certain if that impediment is indispensable, or at least if a dispensation is not customarily granted. For betrothals in this case are a promise of an impossible or illicit thing and therefore are invalid by natural law. But if this impediment is easily dispensable, or if it ceases of itself with the passage of time, it is not so certain whether the betrothals are invalid if they are contracted conditionally, that is, for the time when the impediment shall have ceased. The older authors dispute at great length concerning betrothals thus entered into under condition. This dispute today has lost almost all practical utility, because among Catholics no betrothals other than public betrothals are now valid. But public betrothals are not customarily contracted under condition. If young persons approach the pastor to contract betrothals, it must first be investigated whether a diriment or prohibitive impediment stands in the way of the future matrimony. If this is so, the pastor will take care that a dispensation be obtained, and only then should he assist at the betrothals.

⁴³⁸ Cf. c. 4 § 13, X 4, 5; Code of Canon Law, c. 88, § 3; St. Thomas, Suppl., q. 42, a. 2.

⁴³⁹ Cc. 8 and 11, X 4, 2.

⁴⁴⁰ C. 8, ibid.

⁴⁴¹ C. 10, ibid.

⁴⁴² St. Alphonsus, Theol. mor., l. 6, n. 855.

712. A special difficulty is whether betrothals are valid if the contracting parties are of mixed religion. The following seems to be the true doctrine: If these betrothals were contracted after the due dispensation had been obtained, they are valid. For this dispensation is not granted unless the clauses which render such a matrimony licit have been promised. But if such a matrimony is licit, then the preceding betrothals are considered valid. Moreover, if betrothals of this kind were said to be invalid, then the pastor would have to avoid them according to his powers, even if perhaps he could no longer prevent the matrimony itself; for it is not lawful to concur in an invalid act of such great moment unless great necessity demands it. But such an obligation is not to be imposed upon pastors. - But if there is question of mixed betrothals contracted without the previous dispensation of the Church, they seem to be null, even if the legal form was observed. For such betrothals are almost always illicit.⁴⁴³ This holds a fortiori everywhere in the world concerning private mixed betrothals, as is self-evident. An Instruction of the Holy Office of December 12, 1888,⁴⁴⁴ expresses this entire doctrine in these words: "Betrothals between one Catholic party and another schismatic or heretical party are illicit and consequently invalid unless they are celebrated after a previous legitimate dispensation."

5. A promise legitimately manifested. This is treated immediately in the following paragraph.

⁴⁴³ Cf. Lehmkuhl, Theol. mor. II, n. 852; Noldin-Schmitt, De sacr.¹⁸ n. 534; Linneborn, Eherecht, § 6.

⁴⁴⁴ Collect. de Prop. Fide, n. 1696 (9).