§ 2. On the Defect of Consent Through Force and Fear

746. Notions. Force can be defined: "the (external) onset of a greater force which cannot be repelled," or also: "a motion whose principle is outside, while the one who suffers the force strives to the contrary."⁵⁵⁹ Fear, however, is defined: "trepidation of mind on account of an imminent or future danger."

If force or fear is so grave that the use of reason is disturbed, it is evident of itself that a matrimony thus entered is then invalid by natural law itself, since consent, which is the essential cause of matrimony, is entirely lacking. - Force taken in the strict sense is something physical which entirely takes away consent and therefore also annuls matrimony. This likewise by natural law.

The diverse divisions of fear were already given above, I, n. 68. The Instruction of the Holy Office of June 20, 1883, nn. 35 f., indicates these norms for discerning the gravity of fear: "The gravity of fear arises from the nature of the threats, from the quality both of those from whom they proceed and of those who are said to have suffered them." Hence fear will more easily be grave: a) if the superior inflicting the fear is prone to anger and violence, and of so hard and obstinate a mind that he suffers himself to be contradicted by no one; b) if the person suffering the fear is timid and depends totally upon the will of the superior; and so forth.

Reverential fear is judged light per se, unless, however, it is qualified, that is, unless beatings, threats, or importunate or unjust entreaties are joined to it by the superior,⁵⁶⁰ which render it grave.

⁵⁵⁹ L. 1, 2, Dig. IV, 2.

⁵⁶⁰ Cf. Acta Ap. Sed. IV (1912), 647, 671, 709; XI (1919), 195.

747. Principle. A matrimony entered on account of force or fear is invalid when the fear is: a) grave (absolutely or relatively); b) unjustly inflicted by a free extrinsic cause; c) deliberate, that is, inflicted in order to extort matrimony; and persevering at the time of the celebration of the matrimony. Thus by ecclesiastical law,⁵⁶¹ and more probably also by natural law. But no other fear, even if it gives cause to the contract, carries with it the nullity of the matrimony.

Explanation. What grave, unjust fear inflicted from without is was already said in I, n. 68.

Deliberate fear, or fear inflicted in order to extort matrimonial consent, is present when the fear is inflicted for the precise end that matrimony be contracted with a determinate person, or at least with a person to be chosen; or, as the Code of Canon Law, can. 1087, § 1, says, it is fear "from which, in order that someone free himself, he is compelled to choose matrimony." This condition seems necessary for invalidating matrimony; for if fear was inflicted for another reason, for example, to obtain money, to satisfy lust, and so forth, and matrimony afterward follows accidentally, the impediment is not present. Such is the far more common and truer opinion, and the opinion more conformable to the decisions of the Sacred Congregation.⁵⁶²

No other fear (for example, just fear, or fear inflicted from within) carries with it the nullity of matrimony (can. 1087, § 2).

The following solutions more fully explain the proposed principle concerning unjust fear:

a) A man living in concubinage who is in danger of death, for example, because of grave illness, an impending shipwreck, and so forth, contracts matrimony with his concubine because he gravely fears hell after death. - The matrimony is valid because the grave fear was not inflicted by a free extrinsic cause.

b) A father finds a young man acting shamefully with his daughter and threatens him with accusation before a tribunal unless he marries her. - The matrimony is valid because the fear was indeed inflicted by an extrinsic cause, but justly. For in these circumstances the father has the right of accusing. The matter is otherwise if the father threatens the young ravisher with death; for no private man can (except in legitimate defense) justly threaten or inflict death upon another. In this case the matrimony is null.⁵⁶³

c) Peter is oppressed by very great debts contracted with a wealthy Jew. The Jew demands the money lent. Peter, seeing no other escape from his straits, at length proposes to take the Jew's daughter as wife; this is done and the debts are extinguished. The matrimony is valid because the fear was not deliberate, that is, inflicted in order that matrimony be contracted.

Proof. From ecclesiastical law, that fear furnished with the conditions adduced invalidates matrimony is evident both from the texts of the law and from the constant practice of the Church.⁵⁶⁴ Thus Alexander III already says: "Since consent has no place where fear or coercion intervenes, it is necessary that where the assent of anyone is required, the occasion of coercion be repelled. But matrimony is contracted by consent alone, and when inquiry is made concerning that consent, the one whose mind is to be investigated ought to enjoy full security, lest through fear he say that what he hates is pleasing to him, and the outcome which is accustomed to proceed from unwilling nuptials follow."⁵⁶⁵ The Code of Canon Law, can. 1087, establishes the same. - Just as consent given without the form prescribed by law cannot produce true matrimony between Christians, so likewise the Church establishes that no consent, however true, given under grave and unjust fear can cause true Christian matrimony.

⁵⁶¹ Cf. Code of Canon Law, can. 1087.

⁵⁶² Feije, De imped. et dispens. matrim., n. 134; Gasparri, De matrim. II, n. 821; Aichner, Comp. iur. eccl., § 168; Wernz-Vidal, Ius can. V, n. 501; De Smet, loc. cit., n. 537; and many others hold this opinion. The Sacred Congregation of the Council on May 10, 1890, favors this opinion so openly that the opposite opinion of Lugo, Schmalzgrueber, and others has now become little probable.

⁵⁶³ Cf. the causa Benvenuti-Tazioli, resolved by the Sacred Roman Rota on January 28, 1918 (Acta Ap. Sed. XI, 22 ff.).

⁵⁶⁴ cc. 13, 14, 15, 28, X 4, 1; Code of Canon Law, can. 1087; Sacred Congregation of the Inquisition, February 15, 1901; Sacred Roman Rota, July 10, 1910, and innumerable Roman decisions.

⁵⁶⁵ c. 14, X 4, 1.

748. The more common and truer opinion teaches that fear invalidates matrimony also by natural law. Thus, for example, St. Raymond of Penafort⁵⁶⁶ says: "Concerning the impediment of violence or fear it is to be noted that by its own nature, even without a constitution of the Church, it excludes matrimonial consent; for where fear or coercion intervenes, consent can have no place, and consequently neither can matrimony, which is contracted by consent alone." The authority of St. Raymond, who by command of Gregory IX collected and arranged the books of the Decretals, is certainly very great, since he knew the mind of the legislator thoroughly. St. Thomas,⁵⁶⁷ Reiffenstuel,⁵⁶⁸ Ballerini,⁵⁶⁹ Aichner,⁵⁷⁰ Scherer,⁵⁷¹ Wernz-Vidal,⁵⁷² Linneborn,⁵⁷³ and very many others agree with St. Raymond. Sanchez, Lugo, Billuart, van de Burgt-Schaepman,⁵⁷⁴ Gasparri,⁵⁷⁵ and especially Feije⁵⁷⁶ hold the contrary.

This controversy is not merely theoretical, but can have practical utility. For if grave fear invalidates matrimony by natural law, it also affects the marriages of pagans, which are not rarely entered under fear, and which therefore would all be invalid. But if it is only of ecclesiastical law, the marriages of two pagans are not touched by it.

The principal argument for the opinion teaching that fear invalidates matrimony by ecclesiastical law alone is proposed in this manner: If it were by natural law, nullity would arise either: a) from a defect of consent; b) from a defect of liberty in the consent; or c) from the injury inflicted. But first, natural law does not establish nullity in that case on account of a defect of consent, because fear does not take away consent but only diminishes it. Fear justly and unjustly inflicted equally produces this diminution of consent. Nevertheless, as all admit, fear justly inflicted or produced by a necessary cause does not invalidate matrimony. Therefore no fear by natural law itself invalidates consent and consequently matrimony. - Nor does natural law establish nullity on account of a defect of liberty in the consent; for liberty is not taken away but diminished through fear; therefore, if that were the reason, fear inflicted by a necessary cause or from within, or by a free cause but justly, would suffice, which nevertheless the adversaries deny. - Nor, finally, is nullity established by natural law on account of injury; otherwise all onerous contracts entered under the influence of grave fear unjustly inflicted ought by that very fact to be null, which nevertheless is not commonly admitted.

To this argument it is responded that matrimony is not to be judged like any other arbitrary contract. For matrimony is a contract sui generis, entirely singular and indissoluble. Therefore the rules concerning other arbitrary contracts cannot be applied indiscriminately to the matrimonial contract. For from the very nature of the matrimonial contract there follows the most intimate and indissoluble union of minds and bodies, which certainly requires complete freedom from all fear, at least fear extrinsically and unjustly inflicted. - The Angelic Doctor writes to the point: "The bond of matrimony is perpetual. Hence that which is repugnant to perpetuity takes away matrimony. But fear which befalls a constant man takes away the perpetuity of a contract, because restitutio in integrum can be sought. And therefore this coercion of fear which befalls a constant man takes away matrimony, and not another [namely, light fear]."⁵⁷⁷ - The opinion of St. Raymond and St. Thomas and of other grave authors is confirmed from the practice of the Roman Curia, which never dispenses from the impediment of grave fear unjustly inflicted from without in order that matrimony be contracted. The Congregation of the Holy Office, sending on February 15, 1901, an Instruction to the bishops of Albania concerning the impediment of abduction, teaches: "For the most part, a twofold impediment is to be distinguished in violent abductions of women of this kind: the one, namely, by reason of force and fear, which in fact affects consent and which therefore has its foundation in natural law itself; the other from the positive Tridentine law, or abduction simply, which invalidates matrimony both from the presumption of non-consent and in hatred of so great a crime."⁵⁷⁸

⁵⁶⁶ Summa, l. 4, tit. 10.

⁵⁶⁷ Suppl., q. 47, a. 3.

⁵⁶⁸ In tit. 40, n. 47 ff.

⁵⁶⁹ In notes to Gury II, 832.

⁵⁷⁰ Comp. iur. eccl., § 168.

⁵⁷¹ Kirchenr. II, 174, note 45.

⁵⁷² Ius can. V, n. 502.

⁵⁷³ Grundriss d. Eherechtes, § 39 (IV).

⁵⁷⁴ Tract. de matrim., n. 101.

⁵⁷⁵ De matrim. II, n. 811.

⁵⁷⁶ De imped. et dispens. matrim., n. 138.

⁵⁷⁷ Suppl., q. 47, a. 3.

⁵⁷⁸ Collect. de Prop. Fide II, n. 2101.

749. Note. A matrimony which was contracted under grave unjust fear remains invalid as long as the fear endures and the spouse who suffered the fear has not given free consent in the due form. Hence the right of seeking a declaration of the nullity of this matrimony is never lost by the party upon whom the injury was inflicted; that party can therefore vindicate his or her right even after several years and after offspring have been generated,⁵⁷⁹ provided that through trustworthy witnesses⁵⁸⁰ or certain documents the party can prove that at the time of the celebration of the matrimony he or she truly suffered grave, unjust fear directed toward contracting the matrimony. But if the grave fear was inflicted not by the other party but by a third person, for example, by the parents, not only the party who suffered the fear, but also the other party can protest against the matrimony entered.⁵⁸¹ A petition for nullity of matrimony on account of fear inflicted is to be directed to the proper diocesan bishop of the petitioner.

⁵⁷⁹ See several cases decided by the Sacred Congregation of the Council or by the Sacred Roman Rota in Analect. eccl. IV (1896), 114; V (1897), 242; VII (1899), 16; VIII (1900), 55, 379, 383; and in Acta Ap. Sed. II (1910), 886 ff.; IV (1912), 474; VIII (1916), 45 ff., 109 ff., 184 ff., 487 ff. - St. Raymond of Penafort (Summa, l. 4, § 4) writes: "Likewise it is to be noted that whatever the fear or violence may be in contracting matrimony, if the woman who alleges fear has remained with her husband for a year and a half, or has consented to carnal intercourse, she ought not afterward to be heard if she alleges fear or violence." - These things are drawn from c. 21, X 4, 1, which chapter indeed is explained in diverse ways by canonists; but it is certain that, according to modern discipline, the right of seeking the nullity of a matrimony contracted because of grave fear is never lost, unless, however, it is established that the true and free consent of the injured party afterward supervened, and indeed in the due form, that is, ordinarily before the parish priest and two witnesses. Hence, on June 2, 1911, the Sacred Roman Rota dissolved, because of the impediment of fear, a matrimony (Andrassy-Szechenyi) which had endured for twenty years and in which several children had been generated. Cf. Acta Ap. Sed. IV, 108 ff.

⁵⁸⁰ Concerning the deposition of witnesses, the following rule is to be noted: "More faith is to be given to two witnesses testifying concerning fear than to a thousand denying it or asserting spontaneous will; ... for those testifying concerning spontaneous will, so to speak, testify concerning a mental and invisible act which is known to God alone; but the others, testifying concerning fear, attest to threats and torments and similar things which are perceived by bodily sense" (Acta Ap. Sed. IV, 117, and VIII, 205).

⁵⁸¹ Cf. Wernz-Vidal, Ius can. V, n. 505.

750. Cessation of force and fear. Although the Supreme Pontiff perhaps can dispense, nevertheless in fact he never dispenses, since this impediment is more probably of natural law and since great harms arise from marriages coercively entered and continuing under fear.

If the matrimony was duly entered according to the statutes of ecclesiastical law and the fear remained occult, that is, when its existence cannot be proved at least by two witnesses, then it is required and suffices that the party who suffered the fear freely but secretly give matrimonial consent by some external sign, while in the meantime the consent of the other party perseveres at least virtually. This giving of consent can be made either by express words or by conclusive signs, for example, by carnal intercourse had with matrimonial affection.

But if the fear was public, so that it can easily be proved in the external forum, then the party who suffered the fear, once liberty has been obtained, must give consent before the parish priest and two witnesses.⁵⁸²

⁵⁸² Cf. Feije, De imped. et dispensa. matrim., n. 762 f. Benedict XIV (Inst. eccl. 87, n. 62) writes: "If the matrimony was publicly entered before the parish priest and two witnesses and the impediment [of fear] also became publicly known, the same matrimony cannot duly be confirmed unless consent is given again before the parish priest and two witnesses."

751. You will resolve. From what has thus far been said follows the solution of the following difficult case:

A woman is compelled by grave fear to matrimony, and therefore her matrimony is null. How ought the confessor whose counsel is sought to conduct himself? It is responded:

a) If the woman is in good faith, thinking that in these circumstances she can permit carnal intercourse, she is to be left in this good faith until the matrimony is convalidated or dissolved. The reason is that it is better to permit material sins than to place someone in the proximate danger of committing formal sins. Nevertheless, since material sins too are to be avoided insofar as possible, the woman must prudently be induced to abstain from carnal intercourse insofar as is possible; and this all the more because children could easily be born from carnal intercourse who, in the case of the dissolution of the matrimony, would lack a father directing their education.

b) If the woman knows her matrimony to be null, she cannot consent to carnal intercourse before the matrimony is duly convalidated. The reason is that intercourse of this kind is fornication and intrinsically evil. Therefore the woman must conduct herself like a virgin oppressed by force, that is, resist with all her strength. Nevertheless, if the fear is occult and no other impediment stands in the way of the validity of the matrimony, the woman could first give matrimonial consent and, with the matrimony thus convalidated, consummate carnal intercourse. But if the fear is public, the woman can no longer convalidate the matrimony by her own matrimonial consent privately given, as was said above, but convalidation in the public forum is required.

In practice, however, one can proceed in this manner: When a matrimony was contracted from grave fear before the parish priest and two witnesses, or in another legitimate manner, then (whether the fear is public or occult) this matrimony is not only presumed true, but is also probably licit until its nullity is authentically and juridically established. But in a matrimony probably true and licit, carnal intercourse can be permitted for a most grave cause, because this intercourse is not certainly fornication. Therefore the woman is not to be disturbed if for most grave reasons she permits intercourse until the Church has rendered a judgment concerning the validity of the matrimony. Certainly it is better if intercourse is avoided.⁵⁸³

⁵⁸³ Cf. Lehmkuhl, Cas. consc. II, n. 937 ff.

752. The penalties against violators of matrimonial liberty enacted by the Council of Trent⁵⁸⁴ have been abrogated, since no mention of them is made in the Code of Canon Law.⁵⁸⁵ But by particular law penalties of this kind could be established.

⁵⁸⁴ Sess. 24, c. 9, de reform. matrim.

⁵⁸⁵ Code of Canon Law, can. 6, n. 5.