Section II. On the Form of Betrothals

The legitimate form of betrothals, likewise of a unilateral promise, is set forth in these words: A promise of matrimony, whether unilateral or bilateral or betrothal, is invalid for both forums unless it has been made by a writing signed by the parties and either by the pastor or the local Ordinary, or by at least two witnesses (canon 1017, § 1). If both parties or either party does not know how or cannot write, for validity this is to be noted in the writing itself and another witness is to be added, who signs the writing with the pastor or local Ordinary, or with the two witnesses of whom in § 1 (canon 1017, § 2).

I. Explanation of the legitimate form. For the legitimate form of betrothals it is required: 1° that it be contracted by writing; 2° that the day, month, and year of the contract entered be affixed; 3° that the writing be duly signed.

1. That it be contracted by writing, in other words, either one or both parties must promise matrimony to the other in writing. But if the promise is made under a condition, likewise if a time is added for ending the obligation, these seem necessarily to have to be expressed; for they so alter the promise that, if they are omitted, it is not designated according to its substantial elements. Other stipulations of some moment also are usefully expressed. Moreover, it is not required that the parties themselves draw up the writing; nor does anything prohibit a determined formula from being printed, or made lithographically or in another way, for the common use of contracting parties. The signature, however, is to be made as will soon be explained.

2. The day, month, and year on which the betrothals are entered are to be affixed. The affixing of a false date stands in the way of the value of the contract; since in that case the date is not in reality affixed. Some, however, relying on the analogy of civil law, judge that betrothals are valid if the inscription of the false date arose from an involuntary error, and the true date can be drawn from the context.

It is doubted whether or not the affixing also of the place in which the promise is made is required for validity. For the affirmative opinion there militates first, that custom interprets the signing of the date in such a way that the place also is affixed. Next, where there is question of betrothals signed by the pastor or by the Ordinary, the affixing of the place is very greatly conducive to a document which can firmly prove the validity of the betrothals, since for the aforesaid persons to sign validly it is required that they perform this within the place of their territory. That the Sacred Congregation of the Council, when it responded that the date had to be added, was silent about the affixing of the place is perhaps explained by the fact that it was not asked about it. Since the matter is doubtful, the affixing of the place should not in practice be omitted.¹

3. That the writing be duly signed. On this point observe:

a) The writing of itself must be signed either by the parties together with the pastor or local Ordinary, or by the parties together with two witnesses. If both parties or either party does not know how or cannot write, for validity this is to be noted in the writing itself and another witness is to be employed, who is joined either as a second witness to the pastor or Ordinary, or as a third witness to the other witnesses. It is not required and it does not suffice that the party who does not know how or cannot write affix a mark in place of name and surname. It suffices that one witness be added, whether both parties or either party does not know how or cannot write, since the law speaks only of another witness to be added. The party who alone can write seems not to be bound to sign. For the obvious sense of the law sufficiently insinuates that the signature of the pastor, or of two witnesses, and of the added witness suffices. Nevertheless, on account of some doubt, it is expedient to follow the safer course.

One does not know how to write who is ignorant of letters; one cannot write who is physically impeded from writing. One who affixes his name while guided by the hand of another seems to sign validly if he is only helped, so that he himself exists as the principal cause. But if someone is like a mere instrument, for example because he has in no way been taught the method of writing or has a hand suffering from perfect paralysis, he affixes his name invalidly. Likewise one who uses a typewriter signs invalidly; for he must be said to print rather than to write. In addition, that manner of signing is destitute of every sign of authenticity. For the same reasons one signs invalidly who employs an instrument which reproduces the name in the likeness of an engraved character.

Who come under the name of pastor and local Ordinary, see n. 734. Now the pastor seems to sign validly even if he has not yet obtained possession of the benefice, since the law, where it speaks of the promise of matrimony, does not speak of a requirement of this kind, and requires only that one be pastor. For the same reason, the same seems to have to be said of a pastor excommunicated by sentence, or interdicted, or suspended from office, or declared such. But the pastor and local Ordinary cannot grant to another, for example to a vicar or secretary, the faculty of signing the promise of matrimony as an authorizing witness.²

As witnesses there can be employed any who, with the law of nature considered, are capable of giving testimony.³ Hence infidels, heretics, women, and those under puberty are not excepted, although, where Catholics can be had, it is not fitting that heretics or infidels be employed. It is clear that even the pastor and Ordinary can be taken as common witnesses.

b) The pastor or local Ordinary taken as an authorizing witness is bound to sign the writing within his own territory. But this also suffices. Therefore it is not required that the pastor or Ordinary who is employed be proper to either contracting party, for example by reason of domicile; but it is required and suffices, both for validity and for liceity, that he be the pastor or Ordinary of the place in which he signs the contract.⁴

c) The parties are bound to sign the writing in one context with the pastor or Ordinary, or with the two witnesses;⁵ in other words, it is required that each be present to all the others as they sign.

¹ Sacred Congregation of the Council, July 27, 1908, to II. This and similar responses were mere explanations of law previously existing and inserted into the Code; hence we judge that they persist, with canon 6, 2°, and canon 23 considered.

² Sacred Congregation of the Council, March 30, 1908, to VI.

³ Cf. Sacred Congregation of the Sacraments, March 12, 1910, to IV.

⁴ Sacred Congregation of the Council, March 30, 1908, to VII.

⁵ Sacred Congregation of the Council, July 27, 1908, to I.

As custom has it in civil contracts, so also it is expedient that the betrothal contract be read aloud before it is signed. Likewise it is useful that the document which contains the contract be preserved with the pastor or Ordinary of the place who signed it, while a copy is nevertheless handed to each party.

Corollary. Since the parties are bound to sign the writing in one context with the pastor or local Ordinary, or with two witnesses, betrothals cannot be contracted between absent persons except through a procurator. That they can be entered through a procurator follows from the fact that otherwise provision would not have been made for contracting betrothals by those who cannot meet with one another. Next, unless the contrary is established, it must be judged that with regard to contracts the faculty persists of doing through another what one can do through oneself. As to the manner of employing a procurator, however, it is expedient to observe what canon 1089 establishes concerning marriages to be contracted through a procurator.¹

¹ As matrimony, so says the cited canon, is validly entered through a procurator, there is required a special mandate to contract with a certain person, signed by the mandator and either by the pastor or Ordinary of the place in which the mandate is made, or by a priest delegated by either, or by at least two witnesses. If the mandator does not know how to write, this is to be noted in the mandate itself and another witness is to be added who also signs the writing; otherwise the mandate is invalid. If, before the procurator has contracted in the name of the mandator, the latter has revoked the mandate or fallen into insanity, the matrimony is invalid, although either the procurator or the other contracting party may have been ignorant of these things. For matrimony to be valid, the procurator must perform his office personally.

II. Necessity of the legitimate form. a) A promise of matrimony, whether bilateral or betrothal, or unilateral, made without the statutory form, is void or invalid for both forums (canon 1017, § 1).

Therefore informal promises made after the statutory form, as being wholly void, of themselves induce no obligation either of justice or of fidelity. I said of themselves; for it cannot be denied that, accidentally, an obligation can arise from an informal promise. Thus, for example, one would be bound to restore damage who deceitfully entered betrothals with a person ignorant of the invalidating law, and by acting thus was the cause why the other party suffered damage. Likewise one would be bound by the obligation of restitution who deceitfully had intercourse with a betrothed woman who judged that the private betrothals entered by her were valid. Finally, one who after informal betrothals had been entered no longer wished to enter matrimony would be bound to warn the other party, who would be foreseen as about to make expenses for the future matrimony, etc.

Question. Whether an informal promise of betrothals is also invalid?

Response. We judge that this must be denied, because the law speaks only of a promise of matrimony; the force of this argument is increased by the fact that an invalidating law is to be interpreted strictly (cf. canon 19).

b) Although an informal promise of matrimony is invalid, nevertheless it does not seem illicit. For the end of the legislator is sufficiently obtained by the mere invalidation of the informal promise, without a prohibition being added. Add that a law which not only invalidated but also prohibited informal promises would provide occasion for innumerable and continual transgressions, and therefore would not be conducive to the common good.

III. Subjects of the legitimate form. The following are subject to the form of betrothals:

1. Catholics of the Latin rite, not of the Oriental rite (canon 1), as is clear.

2. Baptized non-Catholics. It is indeed true that heretics and schismatics were immune from the Pian law, even insofar as it regarded betrothals; but the Code repeats that immunity only with respect to marriages. It is also true that heretics and schismatics, according to many, are not held by many ecclesiastical laws;¹ but they extend this immunity only to laws which more nearly regard the sanctification of souls rather than public order. Finally, the special reason which holds for exemption from the form of celebration of matrimony, namely the preventing of concubinage, cannot be urged here.

Corollary. Catholics of the Latin rite are subject to the form whether they enter betrothals among themselves, or with a Catholic of the Oriental rite, or with a non-Catholic, baptized or not baptized. Baptized non-Catholics are subject to the form whether they contract betrothals among themselves, or with a Catholic, or with a non-Catholic, baptized or not baptized. The non-baptized are not subject to the form if they enter betrothals among themselves; but they are subject to it if they do so with a baptized person.

¹ We abstract from the question whether or not this opinion is sufficiently founded (cf. vol. I, n. 129).

Forms of Betrothals

I.

Betrothals signed by the contracting parties and the pastor.

James.......... son of.......... and.......... born on the day.......... of the month.......... of the year.......... and living in.......... and Anna.......... daughter of.......... and.......... born on the day.......... of the month.......... of the year.......... and living in.......... by these letters contract betrothals.

At Rome, on the day.......... of the month.......... of the year............

Signature of the bridegroom

Signature of the bride

Signature of the pastor

II.

Betrothals signed by the contracting parties and two witnesses.

James.......... son of.......... and.......... born on the day.......... of the month.......... of the year.......... and living in.......... and Anna.......... daughter of.......... and.......... born on the day.......... of the month.......... of the year.......... and living in.......... by these letters contract betrothals.

At Rome, on the day.......... of the month.......... of the year............

Signature of the bridegroom

Signature of the bride

Signature of the first witness.

Signature of the other witness.

III.

Betrothals signed by the pastor and a witness.

James.......... son of.......... and.......... born on the day.......... of the month.......... of the year.......... and living in.......... and Anna.......... daughter of.......... and.......... born on the day.......... of the month.......... of the year.......... and living in.......... by these letters contract betrothals. The contracting parties, or one of the contracting parties, N.N., cannot write. Hence N.N., son of.........., has been taken as witness.

At Rome, on the day.......... of the month.......... of the year............

(Signature of the party who can write.)

Signature of the pastor

Signature of the witness taken.

IV.

Betrothals signed by three witnesses.

James.......... son of.......... and.......... born on the day.......... of the month.......... of the year.......... and living in.......... and Anna.......... daughter of.......... and.......... born on the day.......... of the month.......... of the year.......... and living in.......... by these letters contract betrothals. The contracting parties, or one of the contracting parties, N.N., cannot write. Hence N.N., son of.........., has been taken as third witness.

At Rome, on the day.......... of the month.......... of the year............

(Signature of the party who can write.)

Signature of the first witness

Signature of the second witness

Signature of the third witness.