Article I. On the Nature of Betrothals

Betrothals are a fully deliberate, mutual promise, expressed by a sensible sign, of future Marriage between capable persons. - It is said 1°. fully deliberate, because a perfect and direct voluntary act is required, namely one proportioned to the grave obligation which is taken up; 2°. mutual, because the simple acceptance of a promise does not suffice, but a counter-promise is necessary; 3°. expressed by a sensible sign, because on the one hand no contract can be made without manifestation of consent, and on the other it is not required that this be manifested through words, since neither in the matrimonial contract itself is this necessary; 4°. of future Marriage, because this is the thing which is promised, but not perpetual love or another thing of this sort; 5°. between capable persons, namely those entangled by no diriment or impeding impediment. - Cf. Baller. note (a) and (b), p. 677; and note (a), p. 678.

§ 1. A promise of Marriage, whether unilateral or bilateral or sponsalitial, is invalid for each forum unless it has been made through writing signed by the parties and either by the pastor or the Ordinary of the place, or by at least two witnesses.

§ 2. If each party or either party does not know how or is unable to write, for validity this is to be noted in the writing itself, and another witness is to be added, who with the pastor or the Ordinary of the place, or the two witnesses concerning whom in § 1, signs the writing.

§ 3. But from a promise of marriage, although it is valid and no just cause excuses from fulfilling it, no action is given for seeking the celebration of marriage; yet one is given for the reparation of damages, if any is owed (Can. 1017).

I say 1°. (a) From these things it is clear that for making valid promises of marriage, whether unilateral or bilateral or betrothals, the formality of writing is required, namely in such a way that those promises alone are to be held as valid which are contracted through writing signed by the parties and either by the pastor or the Ordinary of the place or by two witnesses; or, when each party or either party does not know how or is unable to write, by the party knowing and able to write and by the pastor or Ordinary of the place and another special witness; or by the party able and knowing how to write and by two witnesses and another special witness. Besides, when each party or either party does not know how or is unable to write, for validity this fact must be noted.

(b) § 1. A pastor is a priest or moral person upon whom a parish has been conferred by title, with care of souls to be exercised under the authority of the Ordinary of the place.

§ 2. To pastors are equated, with all parochial rights and obligations, and they come in law under the name of pastors:

1°. Quasi-pastors, who rule quasi-parishes concerning which in Can. 216, § 3.

2°. Parochial vicars, if they have been endowed with full parochial power.

3°. Concerning chaplains of soldiers, whether major or minor, one must stand by the peculiar prescriptions of the Holy See (Can. 451).

(c) The Ordinary of the place is the Bishop of the diocese, the Vicar General, the Capitular Vicar, the Apostolic Vicar, the Apostolic Prefect, the Abbot Nullius, the Administrator, and, as is clear, he who is eminent over all these, the Roman Pontiff.

Therefore all these, pastors or Ordinaries, are authorizable witnesses of betrothals and marriages.

(d) From the declaration of the S. Congregation of the Council, 27 July 1908, for the validity of betrothals the date, or the inscription of the day, month, and year, must be placed in the writing.

(e) Witnesses can be whoever, having the use of reason, know how to write; and therefore whether Catholics or non-Catholics, whether men or women, whether blood relatives or strangers. In them nothing else is required except that by natural law they be suitable for making faith, and that they know how to write. But as regards liceity, heretics are not to be employed. (S. C. Inquis., 19 August 1891.)

Question 1. Are betrothals privately entered into without the prescribed form valid, at least in the internal forum?

Resp. Negatively, as is clearly established from Canon 1017, § 1: a promise is invalid for each forum, unless it has been made through writing signed, etc.

Question 2. Are private betrothals at least so confirmed by the addition of an oath that they are valid and cannot be rescinded without injury?

Resp. Negatively, because an oath cannot render valid contracts which positive law declares null and invalid on account of the common good. For those things which are invalidated in this manner are also deemed to be prohibited as contrary to good morals; therefore the oath would be contrary to the common good of society and an immoral bond, which God cannot sanction. But private betrothals are declared invalid on account of the common good. Cf. Ball.-Palm., vol. 2, n. 91; Gury, n. 791; Ojetti, loc. cit., n. 55. See Canon 1318, §§ 1, 2.

Question 3. Granted that private betrothals are invalid, is one who takes an oath bound to fulfill it?

Resp. Negatively, because a promissory oath follows the nature and conditions of the act to which it is added (Can. 1318, § 1). But private betrothals are of no value in either forum, and therefore are acts of no value. Therefore.

Question 4. "Whether betrothals can be celebrated only before the Ordinary or pastor of domicile or monthly residence, or also before any Ordinary or pastor?"

Resp. They can "be celebrated before any Ordinary or pastor, provided it is within the limits of the territory of the same Ordinary or pastor." Thus the Sacred Congregation of the Council, 28 March 1908. And therefore the qualified witness is the pastor or Ordinary of the place where the contract is entered; in other words, any pastor or Ordinary in whose territory the instrument is made can, by his signature, render authentic the instrument signed by the contracting parties. It is not required that betrothals be celebrated before the proper pastor or Ordinary; neither the one nor the other, signing outside his own territory, is a qualified witness of the betrothal contract, even of his subjects.

Question 5. "Whether betrothals, besides before the Ordinary or pastor, can validly be celebrated also before one delegated by either of them?"

Resp. "Negatively." Thus the Sacred Congregation of the Council, 28 March 1908. Therefore the Ordinary or pastor cannot delegate someone to this end, that he perform the office of an authorizable witness in betrothals. For in this new law the substantial form of the betrothal contract is determined, which must be observed exactly under pain of nullity. Indeed, the faculty of delegating has been granted for marriage; but in the canon on betrothals no mention of such a faculty has been made. Therefore, since the principle is: "The legislator expressed what he willed; what he did not will, he passed over in silence," delegation is permitted for nuptials because the legislator expressed it; it must be denied for betrothals because he passed over the same in silence. Then, the office of authorizable witness, whose signature alone suffices for making authentic faith of the instrument, is joined to the quality of pastor. But by delegation the quality of pastor is not communicated; therefore neither is the office of authorizable witness joined by the law itself to this quality. Moreover, there is no necessity for this faculty, because another witness can easily be found who may sign the document together with the priest, and therefore the betrothals will be valid. It is to be noted that the Ordinary and pastor are prohibited from granting a special delegation to a priest for betrothals alone. But what if there are some who have been delegated for the universality of causes, as, for example, the steward of a vacant parish and the temporary administrator in the absence of the pastor? Can such persons be authorizable witnesses of betrothals? Certainly, because these in fact preside over the parish, and therefore they are equated with pastors.

Question 6. Must the witnesses be present when the betrothed parties sign?

Resp. Affirmatively. For they must be witnesses of the betrothal contract. But this contract is made through writing. Therefore they must be present so that they can immediately attest the signature of the betrothed parties.

Question 7. "Whether, for validly entering into betrothals, the parties are bound to sign the writing in one and the same act together with the pastor or Ordinary, or with two witnesses; or whether rather it suffices that the writing, signed by one party together with the pastor or with two witnesses, be sent to the other party, who in turn signs it with the pastor or with two witnesses?"

Resp. "Affirmatively to the first part, negatively to the second." Thus the S. Congregation of the Council, 27 July 1908. Therefore, when the betrothal act is drawn up, each party must be present.

Question 8. Is it required that the whole formula be written by the hand of the betrothed parties?

Resp. Negatively: namely, it is required and suffices that the parties sign the document by hand; and although this be printed in type, by the signature of the parties and witnesses it becomes valid. Cf. Gennari, Il Mon. Eccles. Sec. Ser. vol. 10, p. 87.

Question 9. Can betrothals be contracted through a procurator?

Resp. Affirmatively, because a procurator is always admitted when he is not expressly excluded; and since marriage itself, in places subject to Tametsi, could be entered into through a procurator, and now also with the New Code in force the same is permitted, authors commonly adhere to this affirmative opinion. Cf. Gennari, loc. cit., p. 18; Vermeesch, loc. cit., n. 34; Ojetti, loc. cit., n. 44; Pezzani, loc. cit., n. 48. The conditions are: 1°. that he act himself in person; 2°. that he not be a procurator for the universality of causes; 3°. that he contract with a determinate person; 4°. that when he acts the mandate has not been revoked. But the witnesses must be present at the signing of the parties; otherwise they would not be witnesses of the contract, which for validity must be celebrated through writing.

Question 10. Does a promise of future marriage made by one party and accepted by the other without a counter-promise bind in conscience?

Resp. A promise of marriage, whether unilateral, or bilateral or sponsalitial, is invalid for each forum unless it has been made through signed writing, etc. Thus Canon 1017, § 3. Therefore, if it has been made in this manner through signed writing, it binds; otherwise, it does not.

Question 11. Are betrothals contracted from fear valid?

Resp. Negatively, more probably, if the fear is grave; and the reason is that Marriage contracted from such fear is null, as is established from canon law and will be explained below. Therefore by that very fact betrothals also ought to be null; otherwise these would oblige one to an act invalid of itself, which is absurd. But if the fear is slight, the betrothals will more probably be valid; for he who causes slight fear is not deemed to inflict grave injury upon another, since this other can easily disregard such fear, and therefore, even if he suffers some injury, he is deemed to have willed to suffer it spontaneously. Others, however, deny this, and, as it seems, probably, because even in the case of slight fear that absurd consequence would be verified, namely, that a right would arise from an injury. - Nor should you say that this controversy is useless, practically speaking, from the fact that all theologians hold that betrothals of this kind are rescindable; for the answer is that, in the ancient discipline, a diriment impediment would have arisen from these betrothals if it be admitted that they were only rescindable, but not if it be said that they were null from the beginning. - Cf. S. Alphonsus, n. 844; Baller. note (a), pp. 682 and following; Lehmkuhl, n. 658.

Question 12. Among those who have some impediment, are betrothals under the condition, if the Pope dispenses, valid?

Resp. Affirmatively, if the condition has been verified; nor then will it be necessary to renew consent. The reason is that then nothing is lacking from those things which by force of this contract are required. The negative opinion is probable: the S. C. C., 2 October 1857, responded: "that such betrothals are altogether null, even if it is a question of a violated blood-relative, to whom also a promise has been made of obtaining a dispensation, and therefore, once the dispensation has been obtained, a new consent is necessary, and meanwhile each contracting party is free to enter other betrothals, although it is not according to honor to fail in promises." D'Annibale, n. 508, note 26: "And in the forum this opinion has been more received." Wernz, n. 97.

You Will Resolve. - Betrothals are invalid:

1°. When they are not contracted through writing, although many witnesses of the mutual consent externally expressed are present;

2°. When the writing is not signed by the co-parties knowing how to write, or by the co-party knowing how to write in the case in which only one can write;

3°. When they are not contracted before the pastor (or Ordinary) or before at least two witnesses;

4°. When the writing is not signed either by the pastor or Ordinary of the place or by two witnesses;

5°. When the writing is signed by the pastor of the contracting parties but outside his territory;

6°. When the writing is signed by a pastor, but not by the pastor of the place in which it is contracted;

7°. When the signature of a special witness distinct from the others is not had in the case in which each party or either party does not know how to write;

8°. When each party or one party does not know how to write, if this fact is not noted;

9°. When the parties do not sign the writing in one and the same act together with the pastor or with two witnesses;

10°. When the date is not placed in the writing.

This Canon 1017 establishes the essential form of betrothals. And therefore, as regards the other things which were valid before it, the ancient discipline is in force. Although, therefore, it is very fitting that betrothals precede marriage, nevertheless no obligation is imposed. They can be dissolved.

I say 2°. Betrothals entered under a condition concerning the present are valid here and now, if the condition has been verified; but if they are contracted under a condition concerning the future, they will be valid as soon as the condition is fulfilled, without new consent of the contracting parties, provided neither party has revoked the consent previously given. Meanwhile, however, the contracting parties are bound to await the fulfillment of the condition for a reasonable space of time, if it is honorable.