Betrothal and Banns

THE seventh sacrament of the Christian Church is Marriage, and because it is usually preceded by an engagement to marry, we will first treat of betrothal. Betrothal may be defined as a mutual promise of future marriage between persons who may marry lawfully.

It is a mutual promise or a bilateral contract between a man and a woman, and the conditions which are required for the validity of any bilateral contract are requisite for betrothal. There must be a serious, voluntary, and deliberate intention to enter into the agreement: Mere unmeaning flirtation, or the expression of a wish by the man that he could make the woman his wife, does not make a betrothal. Anything which destroys the voluntariness of the act will prevent it from being a valid contract. Substantial mistake about its nature or about the identity of the other party to the contract, and probably even mistake about some unessential quality in the other party, if it were the motive for entering into the contract, would make it null and void. As grave and unjustly caused fear is a diriment impediment to marriage, so, too, it prevents a valid engagement to marry.

The promise must be deliberate, made with full knowledge and advertence to the serious step which is being taken. There must be, as divines say, the deliberateness about the act which is necessary to commit a grave sin. The mutual consent of the parties must be expressed by words, writing, or other suitable sign. The acceptance by a woman of a ring from a man who has asked her to be his wife is a sufficient expression of consent and concludes the contract.

For many years past a special law has existed in Spain by virtue of which no betrothal is valid unless attested by a formal document in writing. In the year 1900 this law was extended to the whole of Spanish America, and by the decree of the Sacred Congregation of the Council, August 2, 1907, no betrothal between Catholics or in which one of the parties is a Catholic is valid in conscience or in law or has any canonical effects unless it is contracted in writing and is signed by the parties, and also signed either by the parish priest, or by the local ordinary, or at least by two witnesses. If either of the parties or both of them are unable to write, the fact should be noted in the document, and another witness must be added who will sign the document together with the priest, or the local ordinary, or the two witnesses mentioned above. This decree binds all Catholics of the Latin rite throughout the world, and takes effect from Easter Sunday, April 19, 1908 (Can. 1017).

The term parish priest in this decree is used to designate not only him who is lawfully placed in charge of a canonically erected parish, but in countries where there are no canonically erected parishes the priest to whom the cure of souls in a definite district is lawfully entrusted, and who is equivalent to a parish priest, and in missions where as yet the districts are not definitely marked out all priests who in any place have the general cure of souls assigned them by the superior of the mission.

The parties must be capable of entering into a lawful marriage at any rate at the time contemplated when the engagement is made. For a promise to do something which is impossible or unlawful has no binding force, and so if at the time contemplated there will still be some diriment or prohibitory impediment between the parties, an engagement to marry is void.

A valid contract to marry at a future time when the parties will be free to do so may be entered into by those who are now hindered by some impediment. And so children under age, though incapable of marrying, may enter into a valid betrothal. According to the old canon law, even their parents might make a valid engagement for them, if they were present and did not express dissent; or, if absent, afterward ratified the contract. The decree of August 2, 1907, abolishes this rule, as also the presumption of law by which marriage attempted by children under age was presumed to be a valid engagement to marry.

Some authors applied that presumption to the case of clandestine civil marriages contracted in places subject to the decree Tametsi of the Council of Trent. They held that although such a marriage was null and void, yet it had the effects of a betrothal, as in the case of those under age. Leo XIII, however, by a decree dated March 17, 1879, decided that a clandestine marriage has not the effects of a betrothal even if the parties intended that it should have.

Betrothal of children under seven is presumed to be amend for want of the use of reason, but if it is proved that the parties to the contract had sufficient use of reason in spite of their tender age, the engagement will be valid; malice is then said to supply for the want of age.

Betrothal under condition, as, “I will marry you if I can earn £200 a year,” is lawful, and follows per se the ordinary rules of conditional contracts. Such a betrothal will impose on the party who enters into it an obligation to do what he can to fulfil the condition, and when the condition is fulfilled the engagement will become valid and binding without any renewal of consent. Similarly, an engagement in this form, “1 will marry you if I reach the age of twenty-one,” will become a binding engagement on attaining that age. On the contrary, an engagement under an impossible condition is null and void from the commencement. And so, if two parties between whom there is a diriment impediment, which either cannot be dispensed or for which a dispensation is not usually given, enter into an engagement under the form, “I will marry you if we can get a dispensation,”’ there will be no valid contract. It is much controverted among canonists and divines whether the same is to be said when the impediment is one for which a dispensation can be, and usually is, granted. If cousins, for example, entered into an engagement under the form, “‘ I will marry you if I can get a dispensation,” what would be the effect of such an engagement? ‘There would, of course, be an obligation to ask for a dispensation; but if it were got, would there be a valid betrothal by virtue of the conditional engagement, or would the parties have to renew their consent ? Many authors maintain that in this case there is no valid betrothal without a renewal of consent. For proof of their view they point out that the parties were not free to enter on an engagement to marry on account of the diriment impediment between them; that it is unbecoming to contract on condition that the superior grant a dispensation from the law which should be observed by all; and that when the question has been submitted to Rome the decision has uniformly been in favour of this view. On the other hand, many good authors hold that there is nothing in these reasons to prohibit us from applying to such cases the ordinary doctrine concerning conditional contracts, and so the general question remains undecided and uncertain. Both opinions are theologically probable.

Vol. II, Bk. IX, Chapter II. The Effects of Betrothal

As betrothal is a contract Of Betrothal and the matter is serious, the betrothed are under a grave obligation in justice to fulfil their engagement. If a special time was agreed upon, they must keep to the appointed time, otherwise they must marry at a reasonable time after the engagement has been concluded. As grave inconveniences are likely to arise from a too prolonged betrothal, it is the duty of those who have the cure of souls to admonish those engaged that they should marry if without just cause they defer doing so too long. A delay of over a year without good reason seems excessive.

After betrothal the parties are under a special obligation to live chastely, and if either commit a sin of impurity with a third person the sin has a special malice on account of his violation of the fidelity which he owes to his betrothed. It is a disputed point whether the circumstance of betrothal changes the species of the sin so that mention of it must be made in confession, or whether it merely aggravates its malice, It is probable that it does not change the species of the sin, for betrothal does not, like marriage, give one party a right in the other, but gives only a right to have the other when the engagement is executed.

Betrothal to one prevents valid betrothal to another as long as the former tie lasts, for a promise to do what is unlawful has no binding force. If, however, in spite of betrothal to one the party marries someone else, the marriage will be valid but illicit, just as the sale of a house to one person is valid in spite of a previous promise to sell it to someone else. Betrothal, in other words, is a prohibitory, not a diriment impediment of marriage with third persons,

The consent of the parents of the parties is certainly not necessary for the validity of marriage. The Council of Trent teaches this¹ Nor is it necessary per se for the lawfulness and the validity of betrothal, because in the choice of a state of life every man is his own master. It does not follow, however, from this doctrine, that children need not consult their parents about marriage and about a partner for life. In a matter of such importance for the future happiness of the child, and because the marriage of a member of the family concerns not merely the individual, but the whole family, and especially the head of it, a dutiful child will ordinarily consult his parents before entering on an engagement to marry. If a child wishes to contract an unsuitable marriage, as if the heir of an honoured house wishes to marry an actress of doubtful reputation, the parents have a right to object to such a marriage; and if they forbid it, the son is bound to obey, and he commits sin if he goes against his parents’ commands. An engagement contrary to the reasonable commands of one’s parents is unlawful and therefore invalid. Mere inequality of rank between the parties of itself is not a sufficient reason why parents should forbid a marriage, but a difficulty arises when inequality of rank will be the cause of dissension and ill-feeling in the family. Even in this case a son who wishes to marry someone of inferior rank is not always bound in conscience to submit to the wishes of his parents. If he is satisfied that the woman he loves will make him a good wife, and he is not prepared to take anybody else, he is not bound to sacrifice his own happiness in deference to the wishes of his parents, especially when these originate in social prejudice rather than in a desire for the welfare of their child.

English civil law requires the consent of the father or guardian for the lawfulness of the marriage of a minor. In most of the United States of America the law is similar.

Canon 1034 bids parish priests seriously to warn minors against contracting marriage without their parents’ knowledge and consent. If minors insist on doing this, parish priests should not assist at the marriage without consulting the Ordinary.

¹ Sess. xxiv, c. 1, de ref. Matr.

Vol. II, Bk. IX, Chapter III. Dissolution of Betrothal

Betrothal, like other contracts, can be dissolved in various ways. The parties may both agree to release each other and then they will be free, for by a rule of law all things are dissolved by the same causes which gave them birth. If children under age have been betrothed, they cannot release the contract even by mutual consent until the age of puberty, and then within three days either may resile from the contract without waiting for the consent of the other party; but if they do not use this privilege granted by canon law they are presumed to ratify the contract.

One of the betrothed may resile if a circumstance of importance be detected or happen which if it had been known before would have prevented the contract being entered into, This rule is commonly admitted by divines, who explain it by saying that betrothal is of its nature conditional, and has such a condition as the above annexed to it. If, then, one of the parties finds that the other has an ungovernable temper, or great debts, or is given to drink, or if the other becomes afflicted with a disease like consumption or paralysis, he will be free to rescind the contract. The innocent party may resile if the other commit fornication with someone else, and certainly the man is free if he find out that the woman was corrupted even . before betrothal. The same rule may be applied in favour of the woman when she finds out that the man committed fornication before betrothal, at least if in the particular case it is a sign of inconstancy or is very much resented.

Betrothal is annulled if an impediment of marriage come to exist between the parties unless it had its origin in the culpable fraud of one of them, for then he must do what he can to obtain a dispensation or at least compensate the other, as no one should reap advantage from his own fraud.

One who is betrothed may resile in order to enter a religious order, or to take sacred orders, or even with a view of living in the world under a perpetual vow of chastity, for in all these cases a higher life is embraced, and betrothal has also the condition annexed, “ Unless afterward I am called to a higher life.”

The Pope may for a just cause grant a dispensation from betrothal. Some authors maintained that the Pope had not the power to grant such a dispensation, inasmuch as it would violate the rights of the other party. However, if an individual is unreasonably obstinate in the maintenance of his rights, the head of the society to which he belongs should have the power of granting relief to others whom that obstinacy places in difficulties. This is what the Pope sometimes does; when a civil marriage contracted in violation of betrothal to another, though null and void in the eyes of the Church, makes it impossible for the married party to return to his former betrothed, the Pope will grant a dispensation even if the other party refuses to forego his rights.

When one of the parties labours under a secret defect which, if known, would furnish sufficient ground for resiling from the engagement, there is no strict obligation to make . it known to the other party, unless it will be to his detriment. Past sin, then, need not be declared, but if the woman has undergone an operation which makes her incapable of bearing children, she should not contract marriage with a man who is ignorant of the defect and hopes to have children.

Whether marriage with a woman contracted in violation of a promise of marriage made to another annuls the former betrothal altogether, or whether the obligation to marry the first is only suspended and revives again if the wife die before the husband, is a disputed question among divines. Of course, such a breach of faith makes the other party free to marry someone else if she choose, and the opinion is at least probable that by such a radical change in circumstances as marriage with another the former engagement is altogether dissolved and cannot revive. There is something incongruous in the idea of a person who is married to one, being nevertheless still under the obligation to marry someone else.

n. 6.

If a man after betrothal without the knowledge or consent of his betrothed goes to live elsewhere at a distance so that personal intercourse between them is impossible, the woman may consider herself free to break off the engagement. A short absence makes no difference in the mutual obligations of the parties. If it is uncertain with what intention and for how long a time a betrothed person has absented himself, information as to his intentions should be sought by letter before breaking off the engagement. If a time was fixed for the marriage, the obligation is not extinguished by failure to keep to the time, unless it is certain that the intention of the parties was to break off the engagement if the marriage were not contracted at the appointed time. Presents made to the betrothed in view of marriage are forfeited if the engagement is broken off through the fault of him who made the presents, otherwise, if the fault is on the other side.

If it is certain that there is good cause for breaking off an engagement, this may be done by private authority; it will only be necessary to have recourse to the ecclesiastical judge when the cause is doubtful, or when scandal would arise if the engagement were broken off by private authority on account of the cause being unknown.

When valid betrothal has been broken off by one of the parties without good reason, the other has no right of action in the ecclesiastical court to compel the defaulting party to fulfil the contract, he has only a right to an action for damages (Can. 1017, sec. 3). This action is mixti fori (A.A.S., xx, 345).

n. 7.

People who are only engaged to be married have not the rights of married people, and if they attempt to use them they are guilty of sin against the sixth commandment. It is, however, as a rule, morally necessary for them to become acquainted with each other, and they are justified in showing to each other those marks of affection which are not wrong in themselves and which are usual in the circumstances, It is to be desired that they should not be much together alone, especially at night, and if they are left alone they should not show greater familiarity toward each other than they do when a mother or sister is with them.

Vol. II, Bk. IX, Chapter IV. Banns of Marriage

Before publishing the banns of marriage the priest who has the cure of souls must have at least a general knowledge of those who wish to marry. The Ritual prescribes that he should inquire whether there is between them any impediment of kindred or affinity, or any other; whether they wish to marry freely and of their own accord; whether they be of age, and know the rudiments of the Faith so as to be able to teach it to their children (Can. 1020).

With regard to people with no fixed abode, strangers, the wives of soldiers, sailors, and others, who are said to have died in foreign parts, the Ritual admonishes the priest not to admit them readily to marriage before making all needful inquiries about them, and referring their case to the bishop, so as to have his leave for the marriage. Canon 1021¹ prescribes that the parish priest demand the certificate of baptism of the parties unless they were baptized in his parish, and their reception of Confirmation, as far as possible.

¹ Sess. xxiv, c. 1, de ref. Matr.; can. 1024.

If no impediment has been discovered by examining the parties, the priest publishes the banns in accordance with the decree of the Council of Trent.1 “ It ordains that for the future before a marriage is contracted the proper parish priest of the contracting parties shall three times announce publicly in the Church, during the solemnization of Mass, on three continuous festival days, between whom marriage is to be celebrated; after which publication of banns, if there be no lawful impediment opposed, the marriage shall be proceeded with, in the face of the Church.”

The reasons for this law are: the avoidance of clandestine marriages, so that it being known who are married, there may be less danger of bigamous marriages; the discovery of impediments of marriage; and the protection of the rights of others arising from former betrothal. The banns must be published by the parish priest in the church of the parish or district where the parties have their domicile or quasi-domicile, If they live in different parishes, the banns must be published in both; and if either or both have lived six months in another place after the age of puberty, the parish priest should inform the bishop, who will prescribe what is to be done (Can. 1023). They must be published during the principal Mass on three successive days of obligation; but if the publication has been omitted at Mass, the omission may be made good in the evening if there be a considerable concourse of people at the evening service.

The very form which is commonly made use of in publishing banns shows that by them the Church intends to impose a serious obligation on all who know of any impediment between the parties who wish to marry to communicate their knowledge to the parish priest. This precept of the Church will bind even when the impediment is matter of a natural or promised secret, for such a secret cannot avail against the just commands of a superior. A professional secret binds more strictly, but it does not excuse one who knows it from doing what he can without betraying the secret to procure the removal of the impediment.

Vol. II, Bk. III, Tr. VIII, Diss. I, Part I. On Betrothals · Vol. II, Bk. III, Tr. VIII, Diss. I, Pt. I, Sect. I, Division, Fittingness, and Governance of Betrothals · Vol. II, Bk. III, Tr. VIII, Diss. I, Pt. I, Section II. On the Form of Betrothals · Vol. II, Bk. III, Tr. VIII, Diss. I, Pt. I, Sect. III, Chapter I. On Absolute Betrothals · Vol. II, Bk. III, Tr. VIII, Diss. I, Pt. I, Sect. III, Chapter II. On Conditional Betrothals · Vol. II, Bk. III, Tr. VIII, Diss. I, Pt. I, Sect. III, Ch. II, Scholion. On Accidental Elements of Betrothals · Vol. II, Bk. III, Tr. VIII, Diss. I, Pt. I, Section IV. On the Dissolution of Betrothals

The obligation of publishing banns is a serious one, but for good reason the bishop or his Vicar-General may dispense with them either wholly or in part. According to approved theologians, the bishop is even obliged sometimes to dispense with banns, when charity toward his flock requires it. Thus a dispensation should be given when it is probable that otherwise the marriage will be maliciously prevented, when it is a necessary means to preserve the reputation of the parties who. are thought to be man and wife already, and when the parties are obliged to depart at once to foreign countries. For lighter reasons the bishop may dispense, but he is not obliged to do so.

A parish priest has no jurisdiction in the external forum, and so he cannot dispense of his own authority from banns. In some special case, however, it might be necessary to marry the parties without delay, and then if there were no time to have recourse to the bishop, a simple priest might declare that under the circumstances the law with regard to banns ceased to be of obligation.

Sec. 1. According to Canon 1031, when a doubt has arisen about the existence of an impediment between the parties— (1) The parish priest should investigate the matter more carefully, interrogating at least two witnesses under oath, who are worthy of credence, provided that there is no question of an impediment from the knowledge of which the reputation of the parties will suffer, and interrogating also the parties themselves if it be necessary.

(2) Let him proceed with or finish the publication of the banns if the doubt arose before they were begun or before they were finished.

(3) Let him not assist at the marriage without consulting the Ordinary if he prudently judge that the doubt still remains.

Sec. ii. When a certain impediment has been discovered— (1) If the impediment be secret, let the parish priest proceed with and finish the banns, and without mentioning names let him report the matter to the local Ordinary or to the Sacred Penitentiary.

(2) If it is public and is discovered before the publication of the banns is begun, let the parish priest not proceed further until the impediment is removed, although he may know that a dispensation has been obtained only for the forum of conscience; if it is discovered after the first or second publication of banns, let the parish priest finish the banns and report the matter to the Ordinary.

Sec. iii. Finally, if no impediment, doubtful or certain, has been discovered, let the parish priest, after the banns are published, admit the parties to the celebration of marriage.

Canon 1030 lays it down that this should not be done until the parish priest has received all the necessary documents and three days have elapsed after the last publication of the banns, unless there be some good reason to the contrary.

Canon 1026 forbids banns to be published of a marriage which is contracted by dispensation from the impediment of mixed religion or difference of worship, unless the local Ordinary deems it proper to permit them with prudence and the removal of scandal, provided that the apostolic dispensation has been granted and no mention be made of the religion of the non-Catholic party.

The Ritual prescribes that the parties should be diligently instructed how they should live in a pious and Christian way in the state of wedlock. This is done partly in the confessional, partly outside. The parish priest may make a brief discourse to them at the end of the ceremony, or if he prefer he may read to them the instruction which is inserted in the Ritual for the purpose (Can. 1033).

Canon 1034 bids parish priests seriously to warn minors not to contract marriage without the knowledge of their parents or against their reasonable wish. In case of disobedience parish priests should not assist at the marriage without consulting the local Ordinary.

Wouters, Manual of Moral Theology

Ludovicus Wouters, C.SS.R. — 22 passages

Vol. II, Bk. III, Tr. VIII, Diss. I, Part I. On Betrothals

Vol. II, Pt. II, Q. III, Art. 2. Duties of Members …, The Obligation of Marrying · Vol. II, Pt. II, Q. III, Art. 2. Duties of Members …, The Duties of Engaged Persons

We shall treat first of the notion, division, fittingness, and governance of betrothals, then of their form, then of their effects, and finally of the dissolution of betrothals.

Vol. II, Bk. III, Tr. VIII, Diss. I, Pt. I, Sect. I, Division, Fittingness, and Governance of Betrothals

n. 659.

I. The notion of betrothals. Betrothals¹ are the mutual promise of matrimony between one man and one woman who are capable. It is said:

A promise. Therefore a desire, a mere purpose, or a simple negotiation about entering matrimony does not suffice.
Mutual. Therefore it is not sufficient that only one party promise, even if the other accepts the promise; but a counter-promise also is required (canon 1017, § 1). As is clear from what has been said, betrothals constitute a contract, and indeed an onerous one; hence for them, as for every contract of this kind, consent is required:

a) Internal. If it is not internal, consent or volition is lacking in reality. Therefore a fictitious promise does not suffice, that is, one made externally but without the mind of promising. One who wishes to enter betrothals, but has the mind of not binding himself, seems not to enter betrothals, because he excludes that without which the contract cannot exist (cf. vol. I, n. 834). But one who wishes to enter betrothals acts validly, even if he has the mind of not fulfilling the obligation (cf. ibid.). In addition, one who has promised fictitiously is guilty of fraud, and therefore is bound to prevent or compensate the damage; even, if this cannot be done in another way, by now promising truly (St. Alphonsus VI, 832, 833).

b) Fully deliberate; for only an act of this kind can produce an obligation and the acquisition of a right. Hence betrothals entered, for example, in drunkenness, by one half-insane, are invalid; likewise betrothals made from a sudden movement of passion can be invalid (St. Alphonsus VI, 831).

c) Sufficiently free from error; wherefore it is enough to note:

α) Error concerning the person with whom betrothals are entered renders these betrothals invalid. The reason is that in betrothals the person constitutes the object of the contract. But error concerning the object of a contract invalidates the contract (vol. I, n. 836).

β) For the same reason, error concerning a quality or circumstances of the person with whom betrothals are entered renders these betrothals invalid if the error redounds into error concerning the person. Otherwise it does not invalidate them, because consent to the object of the contract is not lacking; nevertheless it renders them rescindable if, had the error not existed, the betrothals would not have been entered; practically, if the error concerns a notable defect. These things indeed do not of themselves hold for all onerous contracts, but with regard to betrothals they are admitted in law, as will be explained later (St. Alphonsus, Homo Apostolicus, tr. 18, n. 2).

d) Sufficiently free from fear. Fear which so disturbs the use of reason that the act is not fully deliberate invalidates betrothals (vol. I, n. 840). These things set aside:

α) Fear, whether arising from within, or from a necessary cause, or inflicted justly or unjustly by a free cause, does not invalidate betrothals. The reason is that fear does not prevent the contracting party from furnishing perfect consent. But every contract is intrinsically constituted by perfect consent (St. Alphonsus VI, 844; cf. vol. I, n. 840).

Objection. Grave fear, inflicted unjustly and for extorting consent, invalidates betrothals at least by canon law, just as it invalidates matrimony (canon 1087, § 1), according to that rule: connected things ought to have the same reckoning.

Response. The assertion seems to have to be denied; for since the application of the assigned rule is in itself rather difficult, the Code certainly, if it had wished the rule to be applied, would have stated that betrothals are invalidated by the said fear in the same way as matrimony.

β) Fear renders betrothals rescindable if it has been inflicted both unjustly and by the other contracting party, and has given cause to the contract. If one of the assigned conditions is lacking, fear does not render betrothals rescindable (vol. I, n. 840).

e) External, namely insofar as it must be made known to the other party. Of itself, however, it is indifferent whether it is manifested by words, in writing, or by a sign, for example by a nod. But, with positive law considered, it is required that the legitimate form, to be explained later, be observed (St. Alphonsus VI, 838).

f) Made known to the other party, as was explained in vol. I, n. 834.

g) Made known by the promisor or in his name (vol. I, ibid.).

h) Simultaneous, the one with the other, because otherwise they do not truly agree into one. Of itself, however, it suffices that one consent while the consent previously given by the other persists (vol. I, n. 834).

Of matrimony; others say of future matrimony, so that betrothals may be more expressly distinguished from matrimony not yet consummated, which formerly came under the name of betrothals concerning the present, while betrothals properly so called were called betrothals concerning the future.
Between one man and one woman. Hence there would not be betrothals if someone promised matrimony to two at the same time.
Capable, that is, it is required that the promisors be both actually capable of promising matrimony and at least later capable of contracting it; these things, however, need explanation, which we shall add in the corollaries.

¹ Betrothals are so called from promising, namely from the practice of the Romans, by which one who wished to take a girl as wife addressed her father or guardian with the solemn formula: "Do you promise?" and he responded: "I promise." She who was promised was the bride, that is, the promised one; he to whom she was promised was the bridegroom; he who promised was the sponsor; the whole contract was betrothals; the day on which it was entered was called sponsal.

n. 660.

Corollary I. Betrothals entered by those who are held by a diriment or prohibitive impediment are to be judged thus:

If they are entered absolutely, they are invalid; for then matrimony is not reached insofar as it is valid and licit. The same must be said if they are referred to a time at which the impediment has not yet ceased.
If they are referred to the time at which the impediment has ceased:

a) They are valid if they are entered under the condition of an impediment removed without dispensation. Hence if someone says: "I shall contract with you if you have been converted to the Catholic faith," he is bound to wait for a reasonable time; and if the other is converted to the faith, the betrothals become absolute. Yet it is especially disputed whether these things also hold for the impediment of bond, namely when a married person promises matrimony to someone under the condition of the matrimonial bond being dissolved by death. Many judge that betrothals of this kind are invalid, because just as a subsequent matrimony extinguishes betrothals entered with a third person, so an antecedent matrimony ought to prevent valid betrothals from being entered with a third person. But the antecedent seems to have to be rejected, as we shall say in n. 677.

b) If they are entered under the condition of an impediment removed by dispensation, for example if someone says: "I shall contract with you if the Church dispenses," it is more disputed whether they are valid and consequently, when the dispensation has been obtained, become absolute by that very fact. Now then:

α) It seems that an affirmative answer is to be given if the dispensation can reasonably be expected, and it is a question of a matrimony which neither under a moral respect is dangerous, nor of itself injurious to the sacrament; for example, if someone should enter betrothals with his niece. The reason is that the promise regards matrimony insofar as it is valid and honorable in the full sense. The positive law, which, with certain declarations considered, formerly seems to have stood in the way, no longer seems to have to be urged, since the Code is silent.

β) It seems that a negative answer is to be given if it is a question of a matrimony which remains full of danger and of itself inflicts injury upon the sacrament; for example, if someone should enter betrothals with a heretic. The reason is that, as it seems, an obligation to enter such a matrimony cannot arise.¹

Corollary II. Betrothals entered by children without the knowledge of their parents are of themselves contracted illicitly; nevertheless they are valid, unless the matrimony itself is illicit for them. Likewise betrothals contracted against the will of parents are valid or invalid according as the matrimony itself which is promised must be held licit or illicit (St. Thomas II-II, q. 104, a. 5; Supplement, q. 47, a. 6; St. Alphonsus VI, 849, 851).

Corollary III. Betrothals, just like other contracts, can also be entered through a procurator (n. 666); likewise by letters, if only the law of nature is considered, but not if canon law is considered (n. 666).

¹ The Holy Office, December 12, 1888, responded: "Betrothals between one Catholic party and the other schismatic or heretical party are illicit and therefore invalid, unless they are celebrated after previous legitimate dispensation" (Collectanea, n. 1696).

n. 661.

II. Division of betrothals. Betrothals are distinguished into:

Solemn and non-solemn, according as the legitimate form is or is not observed.
Absolute and conditional, according as they are neither suspended by a condition concerning the future nor made less firm by a resolutory condition; or are entered under some one of the aforesaid conditions.
Confirmed and bare or simple, according as an oath or earnest money or other stipulations, for example penalties against those withdrawing, are or are not added.

n. 662.

III. Fittingness of betrothals. Betrothals indeed are not prescribed; nevertheless the contract of betrothals is "decent and fitting before the celebration of matrimony. For in this way the betrothed obtain the opportunity of examining their morals and character. For since it is a question of entering matrimony, which induces a perpetual and indissoluble bond, the greatest circumspection and mature deliberation are needed, lest, if persons unequal in morals are joined to one another in perpetuity, marriages should obtain unhappy outcomes. Moreover, it is necessary that certain preparations precede the celebration of nuptials; and lest the delay thence arising render uncertain the hope of future matrimony, the betrothal pledge is aptly interposed. Furthermore, when betrothals are arranged, there is an easy occasion for the consent of parents, or of those who have authority over the betrothed, to intervene. Although that consent is not necessary at least for validity, nevertheless it is useful in the highest degree, and clandestine betrothals or inconsiderate negotiations are already wont of themselves to offend parents (cf. the cited c. 1.3. CXXX. q. 5). Finally, when betrothals have been publicly celebrated a just time before matrimony, impediments which perhaps stand in the way of matrimony are more easily detected."¹

¹ Wernz-Vidal, Ius canonicum, t. V, n. 81.

n. 663.

IV. Governance of betrothals. Since betrothals by their nature are ordered to matrimony, their governance belongs to the same persons to whom the governance of matrimony belongs, that is, if it is a question of baptized persons, to the Church (n. 718). Now only the Supreme Pontiff enjoys legislative power in it, so that Bishops cannot, for example, establish impediments of betrothals. Nevertheless judicial power belongs to them, or the power of judging betrothal cases. What belongs to the pastor is explained in n. 670.¹

¹ Cf. n. 670.

Vol. II, Bk. III, Tr. VIII, Diss. I, Pt. I, Section II. On the Form of Betrothals

n. 664.

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).

n. 667.

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.

n. 668.

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

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

n. 669.

Forms of Betrothals

Betrothals signed by the contracting parties and the pastor.

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.

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.

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.

Vol. II, Bk. III, Tr. VIII, Diss. I, Pt. I, Sect. III, Chapter I. On Absolute Betrothals

n. 670.

The effects of betrothals are distinguished into natural and canonical. The natural effects are: 1° the obligation of entering matrimony; 2° incapacity validly to contract betrothals with a third person; 3° incapacity licitly to contract matrimony with a third person; 4° the obligation of carrying on betrothal conversation with the bride or bridegroom; 5° the obligation of avoiding betrothal conversation, and still more lustful acts, with another. There is added 6° a canonical effect situated in this, that an action is given, not indeed for seeking the celebration of matrimony, but for the reparation of damages, if any are owed (canon 1017, § 3).

I. The obligation of entering matrimony; and indeed an obligation of commutative justice, and a grave one. The obligation must be fulfilled: if the time for fulfilling has been prefixed, at this time; if it has not been prefixed, at the time when the other party reasonably asks for matrimony. If the other party through shame or fear does not ask, it is not licit to wait beyond a reasonable time (St. Alphonsus VI, 845). Thus the matter stands of itself; for by reason of a just cause it is licit to defer nuptials. Moreover, commonly it is to be advised that the betrothed enter matrimony as soon as it can conveniently be done, lest namely they remain longer in danger of sin.

What if one party refuses to enter matrimony, but the other urges the betrothals?

Response 1. The confessor, if the refusing party truly brings forward a just cause, can pronounce that he or she can withdraw from the betrothals. If the party brings forward a more or less doubtful cause, or, to take the matter practically, if he or she brings forward changed affection as the cause, there will be added a founded fear lest the matrimony have a bad outcome; this fear constitutes a cause for withdrawing from betrothals (n. 680). If a cause for withdrawing is in reality lacking, the confessor should proceed by advising rather than by commanding; at times also a dispensation can be obtained from the Holy See (n. 681).

Response 2. The pastor should furthermore keep before his eyes these words of canon 1017, § 3: "From a promise, although it is valid and no just cause excuses from fulfilling it, no action is given for seeking the celebration of matrimony; nevertheless one is given for the reparation of damages, if any are owed." This action, however, is of mixed forum and does not suspend the celebration of matrimony with another.¹

II. Incapacity validly to contract betrothals with another person. Therefore betrothals of this kind are not only illicit, but also destitute of every value, unless they are contracted under the condition: "If the prior betrothals are dissolved." The reason is that no one can confer on someone a right in a thing after he has already granted a right in it to another. But if intercourse has followed upon betrothals entered with another, the prior bride does not lose her right. Nevertheless she should be advised to yield her right spontaneously, unless she herself would suffer notable damage from it, or regard the very matrimony not contracted as a grave damage (St. Alphonsus VI, 848).

III. Incapacity licitly to contract matrimony with another; which is clear.

IV. The obligation of carrying on betrothal conversation with the bride or bridegroom, namely according to the circumstances and honest morals of the region; which likewise is clear.

V. The obligation of avoiding betrothal conversation, and still more acts of lust, for example fornication, with another. Here, however, it is disputed whether fornication with a third person of itself takes on the nature of injustice, and of grave injustice. Now with St. Alphonsus (VI, 847) the nature of grave injustice is denied with sufficient probability, because the arguments of the adversaries prove the matter in no way, as will be clear from the objections to be discussed.

Objection 1. Fornication renders the promised thing, that is, the body in order to matrimony, notably worse.

Response. First, what the adversaries suppose is deservedly called into doubt, namely that by betrothals there is induced an obligation of justice of handing over the body such as it was at the time of the promise. If it is a question of another promise, this will sometimes be clear from the circumstances; but in the case at hand the matter seems doubtful. Next, it is by no means clear that the body is rendered notably worse in order to matrimony by fornication.

Objection 2. Fornication is at least implicitly excluded by the betrothal contract, so that fornication is opposed to the contract and therefore to justice.

Response. It is not clear that fornication is excluded by the betrothal contract itself. In addition, if the assertion is admitted, the same seems to have to be said about immodest touches committed with another person, so that these too would be opposed to justice.

Note 1. As was said above, from betrothals, even if they are valid and here and now bind, no action is given for seeking the celebration of matrimony, but one is indeed given for the reparation of damages, if any are owed (canon 1017, § 3; p. 508).

Note 2. Effect of a unilateral promise. A unilateral promise of matrimony is presumed to have induced a grave obligation of justice. For an obligation of this kind is judged to have been undertaken if, as we suppose to have taken place, witnesses or a public writing are added to the promise. As to an action arising from a unilateral promise, however, the things said under the note concerning an action arising from betrothals hold, as is clear from the documents cited there.

¹ Pontifical Commission, June 2-3, 1918 (A.A.S. 1918, p. 345).

Vol. II, Bk. III, Tr. VIII, Diss. I, Pt. I, Sect. III, Chapter II. On Conditional Betrothals

n. 671.

I. Betrothals under a condition concerning the past or the present are valid or not valid according as the condition has been fulfilled or has not been fulfilled. Those who doubt about the fulfillment are bound to inquire into the truth, and meanwhile to abstain from betrothals and matrimony with a third person.

II. Betrothals under a condition concerning the future are to be judged thus:

If the condition is resolutory,¹ the betrothals are valid from the beginning, but, when the condition has been fulfilled, they are dissolved by that very fact.
If the condition is suspensive and honorable,² the following must be said:

a) While the condition has neither been fulfilled nor definitively failed, the betrothals remain in suspense. Nevertheless the parties are bound to wait and not maliciously to impede, indeed honestly to procure, the event of the condition. Betrothals entered with a third person would be invalid, unless they were made under the condition: "if the prior conditional betrothals definitively fail." The reason is that betrothals of this kind would regard an illicit thing.

b) When the condition has been fulfilled, the betrothals by that very fact become absolute, without prejudice, however, to what was said concerning the condition: "If ecclesiastical authority dispenses" (n. 660). Except the case in which either party legitimately revoked consent before the condition was fulfilled. But what if consent was illegitimately revoked before the condition was fulfilled? In the case, the obligation of entering matrimony certainly remains, not however by force of the betrothals, which cannot be perfected when the will has ceased, but by force of the obligation of repairing the injury (vol. I, n. 848).

c) When the condition has definitively failed, the betrothals fall. Yet one who maliciously impeded the fulfillment of the condition is bound to repair the right of the injured party; and the injured party has a right to true consent.

If the condition is suspensive and base,³ these things hold:

a) While the condition has not yet been fulfilled, the betrothals more probably remain in suspense. Nevertheless each party can and must revoke consent; and when consent has been revoked by either party, the contract altogether vanishes.

b) When the condition has been fulfilled, and consent has not been revoked, the betrothals more probably become absolute (vol. I, n. 849, compared with n. 833).

¹ "I promise you matrimony, but if that matter does not succeed, I shall be free."

² "I promise you matrimony if the parents consent."

³ "I promise you matrimony if you admit intercourse."

Vol. II, Bk. III, Tr. VIII, Diss. I, Pt. I, Sect. III, Ch. II, Scholion. On Accidental Elements of Betrothals

n. 672.

I. A penalty is added to betrothals if the parties agree that something is to be paid by the one withdrawing. A stipulation of a penalty to be paid by one withdrawing justly is illicit and invalid, as being injurious to the freedom of matrimony. But a penalty established against one withdrawing unjustly is valid and licit (St. Alphonsus VI, 853, q. 1). Appeal can no longer be made to positive law, from which many, while others contradicted, were drawing the contrary, since the Code is silent about it.

II. A mode is a burden added by one party to a perfected betrothal contract and accepted by the other.¹ A mode differs from a suspensive condition. For the latter brings it about that the contract is not perfected before the condition has been fulfilled, while an added mode supposes a perfected contract. Nevertheless the added mode can be intended in such a way that, if the other party does not fulfill it, neither is the prior party bound to sustain the betrothals.

III. Earnest money is a thing given to the other party in pledge of future matrimony. When matrimony follows, the earnest money can be reclaimed, unless the mind of the betrothed was contrary. If matrimony does not follow, it must be restored by the one withdrawing unjustly, but can be kept by the other party. If one withdraws justly from the betrothals, custom has it that each party restore the earnest money received (St. Alphonsus VI, 852).

IV. Iocalia are gifts given to the other party, not as a pledge of future matrimony, but as a sign of love and under the hope of nuptials. When matrimony follows, they can be retained. If matrimony does not follow, they must be restored by the one by whose fault the matrimony is not contracted, except if they are small and are not reclaimed by the other party; but they can be retained by the other party. If through the fault of no one matrimony is omitted, custom has it that each party restore the iocalia received, perhaps excepting smaller ones.

V. An oath added to valid betrothals, or to a valid unilateral promise, adds to the obligation of justice an obligation of religion. When the betrothals fall, the obligation of the oath falls (canon 1318, § 1).

An oath added to invalid betrothals, or to an invalid unilateral promise, for example from defect of legitimate form, is invalid, because the accessory follows the principal (canon 1318, § 1).

¹ "I promise you matrimony; you, however, must do this or that."

Vol. II, Bk. III, Tr. VIII, Diss. I, Pt. I, Section IV. On the Dissolution of Betrothals

n. 673.

I. Mutual consent, sufficiently free from error, fraud, and fear (St. Alphonsus VI, 855, 856).

n. 674.

II. A notable defect pre-existing the betrothals and afterwards detected; likewise a notable change supervening upon the betrothals, which render matrimony more burdensome, and, if they had been known or foreseen, would have deterred from the betrothals. The reason is drawn from this, that betrothals, as ordered to matrimony, which carries with it a perpetual society of life, are judged to have been contracted under the condition: "provided the matter is as it appears, and is not changed for the worse"; or at least with the right retained of dissolving them if the aforesaid condition is not fulfilled (St. Thomas, Supplement, q. 43, a. 3, ad 3; St. Alphonsus VI, 86). Indeed, even a prudent and persistent suspicion of a notable defect or change suffices, because it is a grave inconvenience to contract with such a suspicion.

In the cases set forth, the dissolution of betrothals can be made by one party or by both, according as one or both would suffer inconvenience if, notwithstanding the change, matrimony were contracted. Commonly, however, the inconvenience will not follow for the party who has suffered the change, but for the other alone.

The defect and change can concern goods: 1° of the body, as if there is detected or supervenes a grave and incurable disease, or stinking breath, notable deformity, loss of sight or hearing, etc.; 2° of the soul, as if the bridegroom is detected to be, or becomes, irreligious, drunken, a gambler, prodigal, harsh in morals, etc.; 3° of fortune, as if the bridegroom or bride is detected to be, or becomes, poor, or is frustrated of a great inheritance or expected lucrative office, etc. And these things indeed are admitted by all, because in the cases set forth the detected defect and the supervening change render matrimony more burdensome. But:

It is disputed whether a notable supervening change furnishes the right of withdrawing when, if it had been foreseen, it indeed would have impeded the betrothals, but nevertheless does not render matrimony more burdensome; for example, if an unexpected and rich inheritance comes to someone. Now a sufficiently probable opinion affirms, because each person is presumed to have contracted betrothals under the condition: "provided no notable change supervenes." Add that, according to common estimation, the neglect of great gain is equated with grave damage; and this being posited, from the acceptance of men the change of which we speak is morally the same as that which renders matrimony more difficult. Finally, in the case in which a rich inheritance comes to someone, there enters a disparity of condition, which, as will be said under III, involves a cause for dissolving betrothals. St. Alphonsus would not indeed praise, but neither would he condemn, the one who, when marriage with an exceedingly better bride has been offered, should choose this bride (VI, 876).

Note. A party laboring under an occult defect is bound to manifest this to the other party before the betrothals or, once the betrothals have been contracted, before the nuptials, as follows: 1° "If the defect would render the nuptials pernicious, as if it were infamy, leprosy, the French disease, or another contagious disease, he is bound to manifest it or to withdraw from the nuptials, unless the other party labors under the same defect. The reason is that, just as one sins against justice who sells harmful merchandise to another who believes it good, so a fortiori one does who wishes to contract matrimony with a pernicious defect. 2° But if the defect would not render the nuptials harmful, but only less desirable, namely if the bride were poor though she is thought rich, ignoble though noble, deformed though beautiful, corrupted though a virgin, then, although she herself cannot deceive the man by pretending that she is immune from such a defect, nevertheless she is not bound to manifest the defect; but even when questioned she can dissemble by answering equivocally" (St. Alphonsus VI, 864-865). Thus custom has it. If, however, there is grave danger that the defect may afterwards be detected and provoke grave discords, it is to be advised that it be manifested (St. Alphonsus, ibid.).

Disparity of condition and the dissent of parents are partly referred to the cause set forth.

n. 675.

III. Disparity of condition, whether arising from disparity of status, or from nobility, or from disparity of fortune:

a) If it is so great that the matrimony is illicit because of dishonor to the family, the betrothals are null from the beginning.

b) If it is not so great, but nevertheless notable, the betrothals are valid and of themselves irrescindable, if the parties contracted them with knowledge of the disparity. If it is afterwards detected, or supervenes after the betrothals have been contracted, these can commonly be rescinded.

n. 676.

IV. The dissent of parents operates thus:

Due dissent, namely because the matrimony is illicit, argues that the betrothals were null from the beginning (St. Alphonsus III, 644; VI, 851, 877).

Here it is customary to ask whether a prodigal promise of matrimony as such, that is, one made to a bridegroom or bride of much inferior condition or fortune, but without dishonor to the family, is illicit and invalid, as being about an illicit thing. To this question we respond with St. Alphonsus (VI, 851): If no reason honors a promise of this kind, it regards a venially evil thing, and therefore is null. "Nevertheless, since the fault of prodigality is not more than venial, any middling just cause can remove the vice of prodigality. Hence the bridegroom who marries an unequal woman will be sufficiently excused if he knows in her some special prerogative, namely of providence, devotion, great honesty, or even of some natural endowment, on account of which the bridegroom judges that he will lead a quiet life with her. Hence it is inferred that scarcely can a case occur in which the bridegroom would not be bound to marry her, because very rarely will there be lacking some one of these causes which will excuse the fault of prodigality."

Reasonable dissent, although not due, will often be a reason why it is licit to rescind betrothals. Almost the same must be said about less reasonable and continuing dissent, so that hope of removing it is lacking; in which case children often will be able, especially if the dissent was not foreseen, to withdraw from the betrothals, namely on account of the inconveniences joined to their execution and the evils to be feared. Nevertheless, commonly they are not bound to this, the more so because, once matrimony has been contracted, the inconveniences not so rarely vanish.

n. 677.

V. Violation of fidelity furnishes to the innocent party the right of withdrawing, while the guilty party remains bound until the innocent party has used his or her right. To this are referred:

Courtship with a third person, or frequenting with a view to matrimony. A fortiori:
Betrothals attempted with a third person, or even a gratuitous promise of matrimony made to a third person.
Matrimony entered with a third person. Here, however, it is disputed whether by matrimony of this kind the betrothal obligation is extinguished on both sides, or whether for the unfaithful betrothed the obligation is only suspended, namely during the matrimony. Now with St. Alphonsus (VI, 875) and others, against many, it seems that one must say that for the unfaithful party the obligation is only suspended. The reason is that an obligation contracted, if an impediment is placed illegitimately, is not extinguished except by an impediment which by its nature is simply indissoluble. But matrimony is not by its nature simply indissoluble. Indeed, by its proper nature it cannot be dissolved by the authority of the spouses, but it can be dissolved in another way, for example by the death of a spouse. This is confirmed from the fact that matrimony does not extinguish, but only suspends, the obligation of a vow of religion, so that the one vowing, when the spouse has died, is bound to fulfill the vow (St. Alphonsus, ibid.).

Objection. In the case of a vow, the supervening bond is of a different nature, while the bond of matrimony is of the same nature as the bond of betrothals.

Response. This seems to make no difference; in other words, only this must be considered, whether or not the subsequent bond is by its nature simply indissoluble; because the nature of an obligation as such carries with it that it must always be fulfilled as long as it can be fulfilled. Hence if the subsequent bond is temporal, the obligation is only suspended.

Fornication; concerning which several things must be noted.

a) Antecedent fornication of the bride, afterwards detected, gives to the bridegroom the right of withdrawing; and this holds even if the bride was oppressed by force, because according to common estimation she is of less worth than she was thought to be. Antecedent fornication of the bridegroom, detected after the betrothals, confers on the bride the right of withdrawing: 1° if the bridegroom is detected to have acted thus frequently; 2° if he has received offspring from another; 3° if it is hard for the particular bride to marry a man who has fornicated even once (St. Alphonsus VI, 861). I said "for the particular bride"; namely, it must be considered in what manner the bride is to be judged to have contracted the betrothals. Now a bride to whom it matters little whether or not the bridegroom had previously fornicated is not judged to have entered betrothals under the condition: "provided the bridegroom is not detected to have committed fornication."

b) Subsequent fornication of either party gives to the other party the right of withdrawing. This holds even if the bride was oppressed by force, since according to common estimation she has been made of less worth, so that a notable change has supervened which renders matrimony more burdensome. If both parties have fornicated, the bridegroom, as is now commonly admitted, can withdraw. But it is disputed whether of itself the same is licit for the bride. Most of the older authors deny, relying on this reason: the fornication of the bride is judged both far more shameful and consequently also a graver delict than the fornication of the bridegroom, so that an uncompensated excess favors only the bridegroom. There are, however, those who judge that in many regions, according to common estimation, the bridegroom is rendered almost as contemptible by fornication as the bride, perhaps the lowest common populace excepted; and if this is admitted, the subsequent fornication of both also furnishes to the bride the right of withdrawing.

Corollary. The things said about fornication hold almost also for immodest touches with a third person, especially if they are more frequent or are done with several persons. Indeed, familiarity with a third person can be such that it furnishes to the other party the right of withdrawing, the more so because in this whole matter attention must also be given to a founded fear that fidelity may afterwards be violated. Finally, the aforesaid things are also to be applied to other graver crimes perpetrated by the bridegroom or bride, for example homicide, bestiality, heresy (St. Thomas, Supplement, q. 43, a. 3, ad 6; St. Alphonsus VI, 860).

The departure of either party into a distant region, from which return cannot be hoped for soon, if it happens while the other party is unaware or unwilling, gives to this party the right of marrying another. The reason is that the long expectation of some good involves a notable diminution of happiness (St. Alphonsus VI, 860).
Delay of matrimony produces these effects:

a) If the term is prefixed solely for urging the obligation, the party prepared can withdraw: 1° if the other party delays matrimony without a just cause, because by acting thus he or she violates fidelity; 2° if he or she delays justly, but with grave inconvenience to the prepared party, which can be prevented by withdrawing.

b) If the term is prefixed for ending the obligation: 1° if both parties have been at fault, each party is free, both because of the stipulation added to the contract and because each party seems to have yielded his or her right; 2° if neither party has been at fault, each seems free, namely with the stipulation added to the contract considered; 3° if one party has been at fault, certainly the other party is freed; but it is disputed whether the prior party also is free if the other urges matrimony. Now commonly it seems to have to be denied, because no one is judged to have bound himself in such a way that the obligation ceases even if he himself is the cause why it was not fulfilled (St. Alphonsus VI, 867, 868).

The term is commonly prefixed for urging the obligation; yet sometimes the contrary can be drawn from the tenor or from the circumstances.

n. 678.

VI. Election of a more perfect state; concerning which both the liceity of choosing a more perfect state and the effect of the election made must be explained.

Liceity of choosing a more perfect state. Notwithstanding betrothals, it is licit to choose a more perfect state, as follows:

a) It is licit to choose the religious state. The reason is drawn from the fact that in betrothals there is a tacit condition: "Unless I shall have chosen the religious state"¹ (St. Alphonsus VI, 870, dub. 1). Likewise it is licit to emit a vow of choosing the religious state; for it is licit to vow what it is licit to perform.

b) It is disputed whether it is licit: 1° to choose the clerical state; 2° to emit a private vow of perpetual chastity. It is affirmed with sufficient probability, because there is probably in betrothals the tacit condition: "Unless I shall have chosen a more perfect state" (St. Alphonsus VI, 873). It is illicit to choose mere celibacy without a vow of perpetual chastity; for one who has promised matrimony is not judged to have retained the right of not marrying.

Furthermore, the election, of itself licit, of a more perfect state is illicit: 1° if someone obtained intercourse under the promise of matrimony; 2° if someone is bound to repair damage which can be repaired by matrimony alone; 3° if someone does not proceed sincerely, namely from desire of a more perfect state, but fraudulently, for example so that he or she may be freed from the betrothals and, after obtaining a dispensation, may marry another (St. Alphonsus VI, 873; III, 649).

Effects of the election made. a) The election of any more perfect state, even of mere celibacy, frees the other party; both because the one choosing the more perfect state renounces the betrothals, and because, when one party withdraws voluntarily, the other party by that very fact recovers liberty (St. Alphonsus VI, 873).

b) Religious profession itself and the reception itself of major Order extinguish the betrothals, or free both parties. The reason is that they constitute a state which cannot be composed with the execution of the betrothals and is of itself perpetual. It is disputed whether the same effects are produced, or whether for the receding party they only suspend the obligation, by: 1° the emission of a vow of chastity to be observed perpetually in the world; 2° mere entrance into Religion; 3° mere entrance into a seminary; 4° reception of minor Order; 5° vows alone of entering Religion, or of embracing major Order, or of emitting a private vow of perpetual chastity. Nevertheless it seems one must say that at least entrance into Religion or a seminary, likewise the reception of minor Order and vows alone of entering Religion, of receiving Sacred Orders, or of emitting a vow of chastity, only suspend the betrothals for the one entering or vowing, because through those things a state of itself perpetual is not yet undertaken (St. Alphonsus VI, 870-873).

¹ Cf. chapters 2 and 7, De conversione coniugatorum.

n. 679.

VII. A supervening diriment impediment. 1. If an indispensable and perpetual impediment supervenes, that is, one in which a dispensation cannot be given or hoped for, for example impotence, the betrothals fall for both parties. Nevertheless the party who, conscious that the impediment would arise, caused it, must compensate the damage that will follow for the other party.

If an impediment supervenes which indeed is indispensable but temporal, namely the impediment of bond, the betrothals are dissolved for the party to whom fidelity has been violated; for the other party they are more probably only suspended, as was said in n. 677. Meanwhile this party is bound to reparation of the damage inflicted on the other party.
If a dispensable impediment supervenes, the party who did not induce the impediment is freed. The party who gave cause to the impediment, if indeed he or she acted conscious that the impediment would arise, must procure a dispensation, even with grave inconvenience; but if he or she was ignorant of the impediment, after the manner of an inculpable debtor from contract, more probably he or she is bound to ask for a dispensation if it can conveniently be obtained; indeed even with grave inconvenience, if the damage of defloration must be repaired or infamy prevented (St. Alphonsus VI, 857, 858).

Concerning a supervening prohibitive impediment, for example a vow, etc., enough has been said in n. 678.

n. 680.

VIII. Founded fear that the matrimony will be unhappy. For no one is judged to have bound himself to a burden of this kind.¹

¹ Austrian Instruction, February 2, 1856.

n. 681.

IX. Dispensation can be granted by the Supreme Pontiff, as is clear both from the fact that he can dissolve the firmer bond of ratified matrimony (canon 1119), and from the practice of the Holy See. Inferior Prelates lack this power; nevertheless, when the cause has been examined and is manifest, they can declare or judge that betrothals are invalid, dissolved, or rescindable. For dispensation a just cause is required; and in general this can be said to be present if from the dispensation greater goods are foreseen than from the execution of the betrothals.

Note. One who without a just cause withdraws, or unjustly has introduced a cause for withdrawing, is bound to compensate damage arising from his or her unjust action; but not the gain to which the other party would have acquired a right only after the nuptials had been contracted.

McHugh–Callan, Moral Theology

John A. McHugh, O.P., and Charles J. Callan, O.P. — 3 passages

Vol. II, Pt. II, Q. III, Art. 2. Duties of Members …, The Obligation of Marrying

n. 2627.

The Duties of Persons Engaged to Marry

The Duties of Persons Engaged to Marry.—We shall speak first of the duty of entering into a nuptial engagement, and next of the duties which engagement imposes.

(a) Per se, there is no obligation for an individual to marry, for the need of marriage is not a personal but a social one, and social duties do not all fall upon each particular person. Each person must take necessary food, for without it the individual perishes, and eating is thus an individual duty; but each person need not be a soldier, or farmer, or builder, or merchant, or married; for it suffices that these offices be fulfilled, one by one individual, another by another. Indeed, if marriage is an impediment to a more urgent good of the common welfare (e.g., perilous public service incompatible with married life), or of private good (e.g., the duty of maintaining parents, the wish to remain single because one feels oneself unsuited for marriage or called to continence), marriage should not be chosen.

(b) Per accidens, there is sometimes a duty of marrying on account of public or private necessity. Thus, if the community is depopulated by race-suicide, the public good should move suitable persons to marry in order to assist the birth rate; for, if those are considered slackers who refuse their service or money in war time when the nation is threatened with death from without, are not those also culpable who will not assist a community threatened with extinction from within? Marriage is also obligatory on those who feel that they are unable to live continently, and will be lost unless they marry (I Cor., vii. 9). In case of seduction, marriage is a form of restitution to the injured girl, but since forced marriages are usually unhappy, the injury should be atoned for in some other way if the seducer does not care for the girl or is not desirable himself (see 1803).

Vol. II, Pt. II, Q. III, Art. 2. Duties of Members …, The Duties of Engaged Persons

n. 2628.

The Duties Imposed by Engagement to Marry

The Duties Imposed by Engagement to Marry.—(a) Before Engagement.—Courtship is lawful for those who intend to marry, for without it the mutual knowledge which is requisite for a prudent choice is impossible. But courtship should be employed, not as a period of pleasure and extravagance, but as an opportunity for learning the suitability of the parties, one for the other, and their desirability in virtue, religion, sanity, intelligence, health, wealth, position, love of children, sobriety, steadiness, etc. Visits are lawful during courtship, but not the same familiarity as is permissible after engagement. The time of wooing should not be protracted, and as a rule after a year the parties should either become engaged or decide they are not well matched.

(b) At the Time of the Engagement.—The parties are gravely bound to make known to each other all personal defects which cannot be concealed without serious injustice, such as the lack of virginity or other quality which one party makes a conditio sine qua non, or the presence of a diriment impediment or of a very harmful or displeasing characteristic (such as venereal disease, sterility, disgrace, race, the fact that one is a widow, etc.). There is no duty of justice to manifest defects whose concealment will not be detrimental (such as poverty, lowly origin), but there may be a duty of charity to reveal them, as when their concealment now will lead to an unhappy marriage. As to fornication, the man is not obliged to confess it, unless perhaps when he has an illegitimate child; nor the woman, unless she is actually pregnant, or cannot keep the matter hidden afterwards and can make it known without serious harm to herself (see Self-defamation, 1577; cfr. 1978, 2132). But those who have been guilty of these mistakes should undergo a test on the question of physical health.

(c) During the Engagement.—Fidelity requires that an engaged person be true to the other party, avoid paying court to a third person (see 2526), and give the signs of affection that are usual between engaged persons. The relationship between the engaged parties does not give them the right to what is intrinsically evil (e.g., voluntary pollution, proximate danger of consent to sin, continuance in a familiarity which is a proximate occasion of sin), or to what is lawful only to married persons (e.g., intercourse and the liberties pertinent to it). But it does give them the right to manifest their affection by acts indifferent in themselves (e.g., visits which are not private, too frequent, or too prolonged; the decent kisses usual between betrothed lovers on meeting and parting), even though unintentionally pollution may follow (2538). Persons who intend to marry soon should acquaint themselves before marriage and from reliable sources with the fundamental physiological facts of sex, so as to avoid the mistakes which often wreck conjugal happiness, beginning with the honeymoon itself; they should have some money or the prospect of being able to support themselves, and the woman should know how to take care of a home.

(d) At the End of the Engagement.—A formal promise to marry (Canon 1017) imposes the duty of marriage within a reasonable time (i.e., at the appointed date, or, if no date was fixed, at the time when one of the parties reasonably requests it), unless the engagement be broken (e.g., by mutual consent, by a circumstance that makes marriage impossible, such as marriage to a third party or choice of the clerical state; or unnecessary, such as the fulfillment of a resolutory condition, supervening impediment, Papal dispensation given for a just cause); or unless one of the parties has a right not to keep the engagement on account of a notable change in the circumstances, or a breach of faith, or opposition of parents that will make the marriage inadvisable, etc. The obligation to marry is one of justice, and is grave when the contract was bilateral; it is one of fidelity or justice, and grave or light according to the intention of the promisor, when the contract was unilateral (see 1888). There is no action to enforce an engagement, for forced marriages are unwise (Canon 1017, n. 3); and in practice confessors and pastors should not insist on fulfillment of the promise. But damages can be sued for, and the confessor should deny absolution to one who refuses to make just restitution in a case of breach of promise (see 1803). An informal promise to marry (i.e., one invalid naturally or positively) produces no obligation to marry in either forum (see 454); but it does produce a duty of restitution in breach of promise, if there was force, fraud, or deceit.

n. 2629.

Conditions for the Signs of Affection between Engaged Persons

Conditions for the Signs of Affection between Engaged Persons.—(a) Objectively, these signs must be suited to the condition of merely engaged, not of married persons. Brief and modest kisses are proper for lovers, but greater intimacy, such as long and lone conversations in secluded spots, are wrong.

The chaster the relations between the betrothed, the less occasion for future regrets and recriminations. “Petting” purchases a cheap physical thrill or excitement at the cost of present moral danger for two persons, of the degradation of love to its lowest expression, and of loss of self-respect, with the probable risk of a future ill-fated marital career ending speedily in disillusionment and divorce. It is essentially selfish and unwise.

(b) Subjectively, the signs of affection must not be a proximate occasion of sin; nor may they be accompanied by consent to sin, or be used for the sake of venereal pleasure. Joy at the thought of future marriage intercourse and sensual pleasure in present kisses (2514) are in themselves not sinful, but in practice they are as a rule gravely dangerous. Motiones carnales, quales sunt erectiones, signa sunt delectationis venereae quando conjuguntur eum pollutione vel proxime praeviis ad eam; sunt signa delectationis mere sensualis, quando amorem sensibilem sequuntur ex motu sanguinis, quin in resolutionem seminis ex se tendant (2497 b).

Bucceroni, Commentaries (1910)

Gennaro Bucceroni, S.J. — 8 passages

Ch. I, Article VIII: On Kisses and Embraces with Respect to Betrothed Persons

n. 24.

1. Kisses, embraces, and other base or less honorable touches are illicit for betrothed persons in exactly the same way as for others. The reason is that betrothal gives them no special right to intercourse and venereal delectation; and therefore neither to those acts which contain a more or less proximate danger of venereal delectation. Billuart, l. c.; L. l. 6, n. 854.

n. 24.

Kisses, embraces, and other honorable touches, from their object and from the manner of performing them, are permitted to betrothed persons. The reason is that those acts are lawful in themselves, and therefore, as they are permitted to other unmarried persons, so also they are permitted to betrothed persons. But the question is moved specially concerning betrothed persons rather than concerning others, because in reality those acts can more easily be permitted to them on account of a special reason which has force for them, namely for mutually fostering benevolence, which is altogether necessary for them so that the future marriage may be completed. But as it is lawful to act with sensible delectation, but illicit to act on account of the same, by stopping in it, so it is altogether lawful for betrothed persons, as also for any others, to take sensible pleasure in these acts.

Hence there arises a threefold question that is altogether practical. The first question is: What is to be thought of those acts of betrothed persons, if they contribute to exciting venereal acts? - R. Here the general rule has force: these acts are culpable only when either the cause is bad, or there is present the proximate danger of consent.

The second question is: What if it is established for the betrothed man or woman that the other sins in these acts because of a depraved affection? - R. 1. If those touches are made before others, the other can lawfully permit those touches, lest he or she be defamed, or bring suspicion upon himself or herself, and lest others be scandalized. - 2. If those touches are made secretly, and it is certain that they are being made maliciously, when there is question of others and of betrothed persons, the doctors commonly teach that one is bound to repel those touches. But if there is question of betrothed persons, for whom often there could be a notable inconvenience in this matter, because the other will certainly withdraw from marriage, the general rule concerning scandal received seems to have to be applied, namely that this can be permitted if it cannot be impeded without grave inconvenience; but it must be impeded if this can be done without notable inconvenience.

Finally, the third question is: What is to be thought concerning these same acts when, from the frequency of lapses, the danger of consenting to the subsequent venereal delectation must be held as a proximate occasion of sinning? - And this question, as the preceding ones, can also be made concerning the looks and conversations themselves, which have a most just cause; whence parents can altogether lawfully permit such looks and conversations, although great caution and prudence must always be used in these matters.

Vol. IV, On Marriage, I. On Betrothals and on the Banns · Vol. IV, On Marriage, III. On the Impediments of Marriage

R. Here the general rule concerning a necessary proximate occasion has force; for it is morally impossible that a betrothed man, seriously thinking of entering marriage, should not visit, look at, and speak to his betrothed woman, and according to custom exhibit to her other signs of benevolence which manifest his mutual love. Therefore the confessor will suggest remedies not only general, but also special, so that due moderation may be preserved and necessity may not be exceeded in exhibiting those signs; and then, so that he never act alone with her alone, care must also be taken that the marriage not be long deferred. But if those and other remedies do not obtain fruit, this one thing remains: that they be dealt with no otherwise than with recidivists. G. Ballerini, n. 413; Gury-Dumas, Cas., v. 2, n. 695; Reuter, Neo-conf., n. 112.

n. 26.

Another related question can be raised here: namely, whether it is lawful "for a marriageable girl to encourage several suitors to this end, that from them she may finally choose someone to whom she may be joined in marriage?"

n. 26.

R. 1. Negatively, "if, honesty being neglected, and not solicitous for modesty, they themselves both love and endeavor to be loved back." The reason is clear. - 2. Affirmatively, if it is done "with the greatest honesty on their part, and without any stain of modesty." The reason is that if "girls conduct themselves in this most honorable way, it makes no difference if at times they are loved basely by some one of the suitors, as can easily happen. For provided they are led not by this base end, but by an honorable desire of marriage, sin ought not to be imputed to the girls attracting suitors, but to him who takes the occasion to his own ruin, which honorable girls do not give him, while they use the right which they have to employ a means not evil of itself for the most honorable end of marriage. Therefore access is barred to all those dangerous familiarities, clandestine conversations, and unspeakable exchanges of letters; and if these are warded off by girls proceeding elegantly but modestly, no ground remains" whence the matter should be forbidden, though it must altogether be forbidden if otherwise, as often happens. Therefore as regards practice, since the matter is full of danger, great caution and prudence are needed. Ithurriaga, Cas. 14, n. 3 seqq. And here it must be noted that a girl per se sins who accepts gifts from a lover, if they come from base love, for they foster that base love; otherwise, however, as is clear, if they proceed only from honorable benevolence and friendship. G., v. 1, n. 240; L., l. 2, n. 76; La-Croix, l. 2, n. 264.

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 41 passages

Vol. IV, On Marriage, I. On Betrothals and on the Banns

What are betrothals? Betrothals are a voluntary, deliberate, and mutual promise, expressed by a sensible sign, of future marriage between persons capable by law. A promise: true, not feigned; not a purpose, for this induces no obligation. Voluntary and deliberate, namely, with will and deliberation sufficient for grave sin, since betrothals bind under grave obligation. Mutual, for betrothals are an onerous contract, involving the condition: if you shall promise in return. Nevertheless, if the one promising should voluntarily wish to bind himself independently of the promise of the other, and this is certain, betrothals would not be had, nor consequently the impediment of public honesty, but a mere gratuitous promise binding only one party, by force of mere fidelity. It is said, and this is certain, because regularly spouses never intend to bind themselves gratuitously without the condition that the other also bind himself. But acceptance of a promise does not of itself include a promise in return; because anyone can accept the obligation of another without binding himself. Expressed by a sensible sign, for in any contract internal consent does not suffice, but consent externally expressed either by words or signs is required. Hence silence does not suffice for betrothals.

Nevertheless, per se, betrothals would be valid if parents contracted them in the presence of a son who is silent, provided the son internally and positively consents. For since parents, on account of their great love toward their children, are presumed to consult well for them, children are rightly judged to consent to their promise, and thus to express their own consent through the promise of the parents. But if the son internally dissents, "he is certainly not bound to those betrothals contracted by the parents. And I think exactly the same must be said if the son had himself negatively, neither dissenting nor consenting." L. 838. And the same must be said if parents contract betrothals for absent children, and those children, having been informed of the betrothals by the parents, do not contradict, namely, if they truly ratify the betrothals tacitly. Parents, not others; betrothals, not also marriage. Since in this matter the law is special, it is not to be extended. C. Si infantes, un., de Desp. imp. in 6; R. I. 28 in 6. But these things no longer have force after the Decree Ne temere, concerning which we must speak here at the end. Schmalz., 61 ff.; St. Thomas, IV, D. 27, q. 2, a. 2, ad 1; Suppl., q. 43, a. 2, ad 1; L. 831, 836-839.

Between capable persons, that is, those who are prohibited from marriage by no impediment. Therefore betrothals will be null if some impediment obstructs marriage. For when a diriment impediment stands, the thing promised either does not subsist, or is not in one's own power, and therefore there can be no promise of it. But when an impedient impediment stands, the thing promised is illicit, and there can be no promise of an evil thing. Except, unless the promise is not absolute but conditioned, namely, if dispensation is obtained, or is referred to a future time when the impediment ceases, as in betrothals of the prepubescent, or betrothals against the will of parents, where their dissent ceases. Moreover, no solemnity of law was commonly required for their validity, and neither the civil power nor local Ordinaries can attach it. S. C. C., July 8, 1865; March 23, 1878. Commonly. For in order that betrothals be valid in Spain and in Latin America, they had to be contracted by public writing. S. C. C., Jan. 31, 1880; S. C. Neg. Eccl. Extr., Jan. 1, 1900. Of future marriage; therefore, where the Decree of Trent was in force concerning marriage to be contracted before the pastor and witnesses, a contract in the present was neither marriage, because the Tridentine form was lacking, nor did it constitute betrothals, because a promise of future marriage was then not had, per se, nor virtually. As marriage contracted by proxy and by letters is valid, so also, per se, betrothals are valid. L. In sponsalibus 18, ff. de Sponsal.; St. Thomas, Suppl., q. 43, a. 1, 2, q. 55, a. 4; Schmalz., l. 4, tit. 1, n. 73-77, 247; E. M. Cf. 923.

But from the Decree Ne temere of the S. C. C., they must be made by public writing, in order that they be valid, signed by the parties and either by the Ordinary of the place, or by the pastor, or by two witnesses. But if both parties or either party does not know how to write, this is to be noted in the writing itself; and another witness is to be added, who, together with the Pastor or local Ordinary, or with the two said witnesses, signs the writing. For validly entering into betrothals, the parties are bound to sign the writing in one context with the pastor or Ordinary, or with the two witnesses; and it does not suffice that the writing, signed by one party with the pastor or with two witnesses, be sent to the other party, who in turn signs with the pastor or with two witnesses; and the date is also to be added, that is, the notation of the day, month, and year.

Here and in marriage, the pastor is the one who legitimately presides over the parish, or to whom in some defined territory the care of souls is primarily committed, or to whom in mission territory the care of souls is universally committed. The special law of Spain extended to Latin America remains abrogated, by force of which a public writing signed by a notary was required for the validity of betrothals. Indeed betrothals are invalid, if the aforesaid form is not observed, both for the external forum and for the internal forum, even if they are confirmed by oath, since the aforesaid form was prescribed for the common good. L. 1, 3, n. 177. But a simple promise of marriage without a promise in return remains valid. For the Decree Ne temere regards only betrothals. Betrothals cannot be contracted except before the local Ordinary or pastor, and not also before one delegated by either. They can, however, be celebrated before any local Ordinary or pastor whatever, provided this is within the limits of his territory, that is, in the proper territory, S. C. C., March 28, 1908, of the same Ordinary or pastor. All Catholics are bound by these decrees, whether they contract among themselves or with non-Catholics. Non-Catholics contracting among themselves are not bound by the aforesaid decrees. Therefore Catholics contracting otherwise contract invalidly, unless something else has been established by the Holy See for some place; but non-Catholics contract validly.

n. 920.

Is one who feignedly promised betrothals to another truly promising in return bound to contract marriage? Resp. In the negative. For 1. since the promise was feigned, he cannot be bound by force of the promise, even if it was confirmed by oath. St. Thomas, III, D. 39, q. 1, a. 3, q. 3. 2. "Granted that the one feignedly promising sinned against justice by deceiving the other party, nevertheless he was not bound from justice to put forth true consent, since there was no obligation upon him to enter into the contract, and, on the other hand, the other acquired no right over him from his own consent; therefore afterward he is indeed bound by reason of the deception to repair damages, but he is not bound by reason of the promise to put forth true consent and to contract marriage.

But it must be said otherwise if defloration intervened, because then the one deflowering is altogether bound to marriage, since he cannot then by another way repair the damage sufficiently equivalently." L. 833, 847, l. 3, n. 642. Hence, if a man induces a woman to sin under this condition, that he is going to take her in marriage if she agrees to his desires, then, after the crime has been committed, if not by force of contract, at least by force of unjust damage, according to the very common opinion, he is bound to take her if he can; otherwise it will suffice if he provides for her marriage.

The reason is, "because otherwise, if the deflowerer does not marry the deceived virgin, he will never render her an equivalent, nor repair the damage to be equaled." L. 1, 3, n. 642. And this holds even if the man vowed religion, orders, or chastity, and afterward knew the woman under a true or feigned promise of marriage. For the vow does not oblige, since a wholly notable change has been made, and a very grave obligation of justice has supervened. L. 1, 6, n. 833, 874. Nevertheless the Holy Doctor and others commonly except: 1. If from the marriage a very bad outcome is feared, such as discords, quarrels, scandals, etc. 2. If the man knew the woman, thinking her to be a virgin, but found her corrupted; or if she afterward had relations with another; for if this suffices in marriage so that separation is made, much more does it suffice when marriage has not been contracted. Sporer, 538 ff. 3. If there will be disgrace to the family. L. 849, 851. 4. If the man notably surpasses the condition of the woman, on account of the same reason of family disgrace. L. 1, 3, n. 642-650, l. 6, n. 851; St. Thomas, Suppl., q. 46, a. 2, ad 4; C. B. 1300. Cf. 928.

n. 921.

Are betrothals contracted through deceit giving cause to the contract void, even if the deceit is about a quality, for example riches, qualities of body or soul? This is disputed. The first opinion, sufficiently probable, affirms. For this is proper to betrothals, because marriages must be entered into voluntarily by mutual benevolence. The second opinion, more probable, denies. For this is common to any contract, that it is not void except by defect of consent or of object. "But then the deceived party has an action for voiding the contract on account of injury and defect of consent, and this holds even if the deception came from some third party, with the party ignorant." L. 835. "Lessius, etc., probably say that if the matter is intact, as happens in simple betrothals, and the error is invincible in conscience, the deceived party is not bound to stand by the contract, not even after the sentence of a judge." L., H. A., tr. 18, n. 2.

n. 922.

Are betrothals entered into through fear invalid by the law itself? If the fear is grave, this is disputed. The first opinion affirms, if the fear is extrinsic and unjust; for they would be valid if the fear were intrinsic, for example if someone promised, fearing lest he be compelled to pay a debt; or just, for then the contracting party would be unwilling irrationally. The reason is that fear dirimently impedes marriage, and betrothals are the way to marriage. The second opinion denies; nevertheless it adds that they can be rescinded by the one who suffered the fear; but if an oath was present, it must be observed until it is relaxed. The reason is that they are not invalid by positive law, which has nothing concerning betrothals; nor invalid by natural law, for fear of itself does not remove consent. "Each opinion is probable, but the first seems to me more probable..., because no one can be obliged to execute an act null in itself, and against which the law resists, such as marriage contracted while such fear endures would be... From these things it is inferred that from betrothals of this sort the impediment of public honesty by no means arises." L. 844.

If the fear is light and gave cause to the contract, the first opinion affirms, which Ballerini calls much more probable; but the second, more common and more probable to St. Alphonsus, denies. The reason is that the other is not judged to have inflicted a true injury, since light fear can easily be repelled. But whether in such a case the one who suffered the fear can rescind the betrothals in conscience, the first opinion, sufficiently probable, denies, on account of the reason just brought forward; but the second opinion, more common and more probable, affirms. "The reason is that since fear gave cause to the contract, so that otherwise it would not have been entered into, the one instilling fear is bound to rescind the contract; hence, just as he is bound to relax the pledge unjustly extorted by such fear, so the one who suffered the fear can revoke the pledge given." L. 844. Sanchez, l. 1, d. 14; l. 4, d. 16.

n. 923.

Do words in the present tense among prepubescents, apt for marriage, since this is null by positive law, have the force of betrothals? Resp. Affirmatively, from C. Si infantes, un., de Desp. imp. in 6, C. Tuae nobis, fin., e.t. The reason is that, when acts do not have force in the manner in which they are made, from the interpretative will of those contracting they have force in the better way in which they can, unless someone expressly dissents. But betrothals are contained interpretatively in marriage, unless in reality only the bond of marriage is expressly intended for binding oneself. For betrothals are not had except by a mere presumption of law. Sanchez, l. 1, d. 21, n. 3, 5; Schmalz., l. 4, tit. 2, n. 63; Pignatelli, Cons., tom. 9, C. 133, n. 46. Hence many said the same if adults contracted marriage clandestinely, that is, without the pastor and witnesses, in a place where Trent has been promulgated. But this must be denied altogether. S. C. C., June 8, 1595; Ferraris, v. Matrimonium, art. 2, n. 2; Benedict XIV, Quaest. can. 291, par. Ultimum. "The reason is that when an act is null not now on the part of those contracting, but on the part of itself, because it is against good morals and the law resists it, Trent, sess. 24, C. 1, then such an act produces no obligation." L. 841. Except, on the contrary, unless those contracting clandestinely expressly intend to bind themselves in the way in which they could. Sanchez, loc. cit., n. 6. But if there is question of civil marriage, from the Declaration of Leo XIII, March 17, 1879, where the Decree of Trent, sess. 24, C. 1, de Ref., has been promulgated, whether marriage is intended in the present or in the future, "the impediment of the justice of public honesty is not produced"; and therefore neither is had. E. M.

But after the Decree Ne temere it must be denied altogether that marriage in the present is converted into betrothals for the future. For they are two altogether distinct and quite different contracts. And they remain thoroughly distinct and different from the praised Decree, as is clear from its whole tenor. Indeed, for the validity of each contract, quite different formalities are required. Marriage cannot be contracted validly unless before the pastor or the local Ordinary or a priest delegated by either, and at least two witnesses. Betrothals cannot be contracted except by writing, signed by the parties and either by the pastor, or the local Ordinary, or at least by two witnesses.

n. 924.

Are betrothals valid which are entered into before the seventh year by malice, that is, by advertence of reason supplying for age? Resp. Affirmatively, "because, namely, the laws prescribing the seventh year are founded strictly on the presumption that the light of reason does not dawn except when the seventh year has been completed... C. Si infantes, un., de Despons. impub. in 6." Ithur., Cas. 30, n. 25. Therefore all who can licitly enter marriage among themselves can licitly enter betrothals, and prepubescents besides. C. A nobis 8, de Despons. impub.; St. Thomas, Suppl., q. 43, a. 2; Ferraris, v. Sponsalia, n. 15; C. Litteras, de Desp. imp.; C. Ad dissolvendum 13, e.t.; C. Accessit 5, e.t.; L. 14, ff. de Sponsal.

n. 925.

Are betrothals contracted between those having a diriment impediment under the express condition "if the Pope shall dispense," once the condition has been fulfilled, valid without new consent? Resp. Affirmatively. For consent perseveres per se until the fulfillment of the condition. Moreover, such consent is in itself honest and licit. Therefore there is no reason why consent must be renewed. L. 843, 859, l. 3, n. 650. But before the condition is fulfilled, they are neither betrothals, nor do they induce the impediment of public honesty. Nevertheless they oblige one to seek dispensation, if the Pope is accustomed to dispense in such an impediment. Therefore the bridegroom would sin if he contracted marriage with the sister of the bride without awaiting the event of the condition. But betrothals contracted with the same woman would be null, since it would be an illicit promise concerning an unjust thing, which does not oblige. If the Roman Pontiff is not accustomed to dispense, the betrothals would be altogether illicit and therefore of no moment, and they would induce no obligation. L. 11, cc.

Nevertheless, in the present, there are several who hold that the aforesaid betrothals are altogether void; and therefore there is no obligation of seeking dispensation. They rely on various Decisions of the Holy See.

Cf. A. S. S., vol. 1, p. 79 ff., 121.

St. Thomas says these things generally concerning betrothals under condition: "But if the said promise is made under condition, it must be distinguished; because either the condition is honorable, as when it is said: I will take you, if it pleases my parents, and then, while the condition stands, the promise stands, and when it does not stand, it does not stand; or it is dishonorable, and this in two ways; because either it is contrary to the goods of marriage, as if I should say: I will take you, if you procure poisons of sterility, and then betrothals are not contracted; or it is not contrary to the goods of marriage, as if I should say: I will take you, if you consent to my thefts, and then the promise stands, but the condition must be removed." Suppl., q. 43, a. 1.

But since, for betrothals to be validly contracted now, it is necessary that they have been contracted by a written act, it is necessary that the aforesaid condition was expressed in the same written act; otherwise the betrothals are altogether null.

n. 926.

What and how great is the obligation of betrothals? Betrothals oblige one to enter marriage under mortal sin. For they are an onerous contract in a grave matter. If a term has not been fixed, it will suffice if the one promising fulfills them according to the custom of the region, or when he is required by the promisee. Here it is to be noted that "if the other party, from forgetfulness, fear, shame, or a similar cause, should not ask, as especially happens in women, then the bridegroom is bound of himself, without petition, to contract marriage when he conveniently can... But if the other party, when she can conveniently ask, is silent, then she seems to assent to the delay." L. 845. Therefore one withdrawing can be compelled to marriage, even by a judge through censures; this, however, is rarely expedient because of the danger of an unhappy outcome. C. Requisivit 17, de Sponsal.; L. 846; St. Thomas, Suppl., q. 43, a. 1, ad 2.

Nothing concerning betrothals is had in C. G. But C. I. 53, 54; C. H. 43, 44; C. A. 45, 46; C. B. 1297 deny to betrothals a legal obligation of contracting marriage. Nevertheless, if the promise is duly established, the one withdrawing without just cause is bound to compensate the other for damage, from C. A. and from C. B. 1298; from C. I. and C. H., for expenses which he made on account of the promised marriage. But from C. I. and C. H., compensation must be sought within a year from the day on which the promise was to be fulfilled. By Roman law, one who is bound by betrothals is permitted to renounce the condition or pact, and afterward contract with another. L. Alii 1, C. h.t. But if, without previous renunciation, either the bridegroom or the bride marries another, he is marked with infamy. L. Quid ergo § 3, de His qui notantur infamia. By canon law, there is an obligation not only from fidelity, but also from justice, of contracting marriage, and there is an impediment, impeding marriage with another, and dirimently impeding marriage with blood relatives in the first degree. E. M.

n. 927.

Are later betrothals, entered into against a prior pledge, valid, and are they to be fulfilled before the prior ones? "It is certain that if the second bride was conscious of the prior betrothals, marriage must be contracted with the first." If she was ignorant, "the first opinion says that the bridegroom is bound to contract with the second, if he had copula with her..., but the second opinion, more common and more probable, says that the bridegroom is bound to contract with the first, even if copula with the second was present... The reason is that the promise made to the second bride is always null, as being about an illicit thing, since it had been promised to the prior bride; nor does an injury inflicted on another take away the right of this one. And this holds even if the second promise was confirmed by oath." L. 848. Nor indeed is the prior bride bound to yield her right, even if the other would suffer grave damage from defloration, because this woman must impute it to her own crime that she suffers such damage. It is indeed a grave sin, after betrothals have been entered into, to attempt other betrothals, which, as illicit, are also void; for there can be no force of an illicit promise, although both oath and copula intervene. For the oath cannot be a bond of iniquity. Copula cannot take away a right acquired by another. But one entering betrothals with another woman or another man falls from his own right as regards the prior betrothals. And the same judgment is to be made if he makes to another even a mere promise of future marriage. L. ibid.; Sporer, 237; Benedict XIV, Notif. 46.

n. 928.

Do sons subject to family authority sin by contracting betrothals and marriage without parental consent; and are these valid in such a case? As regards validity, it is certain that marriage is altogether valid, even without parental consent, and even if they altogether dissent. Trent, sess. 24, C. 1, de Ref. Matr. But as regards betrothals, when parents are unaware and even unwilling, they are never invalid for that cause alone; since from this it is not generally and necessarily had that they are illicit. For the consent of parents is not necessary per se, that is, from the nature of the thing, nor from positive law. The first reason is that every man, in choosing a state and an individual society of life, is of his own right and liberty. The second reason is that from Trent, loc. cit., marriage is valid without the consent of parents. But the same reason holds for betrothals, which are the way to marriage, because, namely, a man in this matter is of his own right. St. Thomas, II-II, q. 104, a. 5; St. Bonaventure, IV, d. 29, a. 1, q. 3. For that cause alone; for from another cause, even by reason of parents, betrothals can be entered into illicitly, if the parents are unwilling reasonably, for example, if the bride or bridegroom is imbued with bad morals, if such a marriage would redound to disgrace of the family, or if grave scandals or dissensions would arise from it. "But in the case in which the son could not enter such a marriage without sin, the authors say that he is not bound to it, even if he had contracted betrothals with an oath; because since this promise would be about an illicit thing, an oath cannot be a bond of iniquity... The authors commonly think the same must be said, namely, that the bridegroom is not bound to fulfill betrothals of this sort with grave injury to his parents, even if he deflowered a virgin, but that it suffices that he dower her... The reason is that the virtue of justice cannot oblige one to an act which cannot be fulfilled without sin... The authors agree, however, that children are excused at least from mortal sin if they contract marriage without the consent of parents from just causes... If a father impedes his son from some marriage without a just cause, then the son is not bound to obey, and the father sins gravely by impeding." L. 849.

The principal difficulty on account of which parents often are unwilling, and there is doubt both whether the parents dissent justly and whether the spouses themselves, after the promise has been made, are obliged, in practice arises from disparity of condition between the two contracting parties. "It is certain that if those contracting, at the time of the betrothals, were not conscious of the disparity, the betrothals are null, provided the ignorance was antecedent; nevertheless they are valid if it was concomitant... If they were already conscious, the authors commonly say that they are bound to marriage." L. 851. And betrothals of a noble man with an ignoble but honorable girl were declared valid. S. C. C., Aug. 28, 1751.

Except 1. if by reason of disparity in nobility disgrace to the family would come from that marriage. "The reason is that the promise is null, since it is about a gravely illicit thing, as something which cannot be fulfilled except with great detriment to the family." L. 851. Surely justice obliges that this detriment not be inflicted on the family. But not just any disparity suffices, "but a notable one is required, for example if a noble man betrothed the daughter of an artisan, mechanic, or farmer." L. 851.

Except 2. if by reason of disparity in wealth scandal is probably feared, for example, hatreds of relatives, etc., "because in that case the bridegroom would sin gravely against charity, and therefore, since to contract that marriage would then be an illicit thing, the promise made cannot oblige to it. And for the same reason Sanchez says, etc., that this must be said even if the bride suffered defloration. And even if, as Sanchez adds, ... there is no disparity between those contracting. I confess indeed that this is the common opinion, and, speaking per se, true, when the son could conveniently avoid scandals of this sort; but if he could not do so without grave inconvenience to himself, it seems to stand in the way of the reason adduced that charity does not oblige with grave inconvenience... Does not the bridegroom perhaps seem about to undergo grave inconvenience if he is forced to omit marriage with the girl with whom he believes he will lead a quiet life, on account of the vehement passion of love by which he feels himself affected toward her? All those authors, etc., indeed judge this to be a grave inconvenience... All the more because scandals of this sort..., once marriage has been entered into, easily vanish, and minds are reconciled." L. 851.

But if no scandals are feared by reason of notable disparity in wealth, nevertheless, because a promise of this sort is prodigal, St. Alphonsus, loc. cit., still thinks that the bridegroom is not bound to marriage. But from the common sense of men, it is certainly not illicit that a rich man contract marriage with a poor woman. Salm., c. 1, n. 82; Sanchez, l. 1, d. 14, n. 2. "Nevertheless," the same Holy Doctor adds, "since the fault of prodigality is not more than venial, any moderate just cause can remove the vice of prodigality." Hence St. Alphonsus adds, "the case can scarcely occur in which the bridegroom is not bound to take her, because some one of these causes will very rarely be lacking."

From C. I. 63; C. G. 148, children cannot contract marriage without the consent of parents before the twenty-fifth year has been completed, if they are males; the twenty-first year, if they are females. From C. H. 45-47, 320, marriage is prohibited to a minor, namely, before the twenty-third year of age, without the consent of the father, or, in his defect, of the mother; but to one of age, without the counsel of the father, or, in his defect, of the mother. From C. A. 49, minors and also those of age who cannot validly oblige themselves by themselves, also cannot validly contract marriage without the consent of the father, or, if he is lacking, of the tutor, or curator and judge. From C. B. 1304, 1305, 1331, he who has restricted capacity for contracting needs the consent of his legal representative; a son before the twenty-first year needs the consent of the father. In place of the father the mother succeeds, but a son declared legitimate does not need her consent. From the defect of consent of this sort, annulment of the marriage can be sought. But where there is truly question of the validity of the marriage itself, all contrary dispositions of civil law are of no force as regards the validity of the marriage itself, if otherwise it is valid by natural and canon law. Trent, sess. 24, C. 1, de Ref. Matr.; L. 849, 859, 851, 877, l. 3, n. 335; St. Thomas, Suppl., q. 47, a. 6; Ithur., Cas. 14, n. 7 ff.; E. M.

n. 929.

How are betrothals dissolved? Betrothals are dissolved by mutual consent, just as any contract whose obligation, as regards its stability, does not depend on another law, namely divine or human, as, for example, in marriage and religious profession. L. 854; St. Thomas, Suppl., q. 43, a. 3, ad 5. "Between adults, betrothals are dissolved by mutual consent, even if confirmed by oath, not only validly, but also licitly, if there is a reasonable cause; for otherwise it would be at least venial..., because an oath in favor of a third party, although principally made in honor of God, always includes the condition, if the other accepts, or if he does not remit." L. 855. "But between prepubescents, betrothals are not dissolved unless they themselves become adults, from C. De illis 7, de Despons. impub.... Sanchez, etc., say, moreover, that if one of the spouses dissented before puberty, and persevered in such dissent, the betrothals are dissolved when he comes to puberty. Nevertheless, if he dissented only internally, Sanchez, etc., judge that he can also withdraw in conscience; but Coninck, etc., more probably deny this, both because this benefit of withdrawing is not granted by law except to those objecting, which is certainly understood externally, and because, just as internal consent alone does not suffice for entering into a contract, so also internal dissent alone does not suffice for dissolving a contract." L. 856; Schmalz., l. 4, tit. 2, n. 32, 40-43. "Moreover, it is certain that he is an adult who by the habit of the body shows puberty, and can now generate." C. Puberes 3, de Despons. impub.

Betrothals are likewise dissolved if a notable change occurs or is discovered which, if it had been foreseen, the betrothals would not have been contracted, or which, if it supervened, would now be sufficient for rescinding them. The reason is that spouses are judged to be obliged under this understood condition. A change of this sort would be had if a diriment impediment is discovered; if grave enmity or hatred should supervene or be discovered between the spouses themselves, or the parents or blood relatives; grave infirmity, for example leprosy, consumption, syphilis, etc.; great debts or grave danger of fortune, reputation, etc. L. 863, 865; St. Thomas, Suppl., q. 43, a. 3, ad 3.

Betrothals are likewise dissolved if one party preferred to enter a more perfect state of life. St. Thomas, loc. cit. For they are judged to have been contracted also under this tacit condition. But if religious profession dissolves even ratified marriage itself, much more betrothals. Finally, betrothals are dissolved by the authority of the Supreme Pontiff, when a just cause intervenes, as is clear from the practice itself of the Church. A. S. S., vol. 15, p. 587.

n. 930.

Is a party laboring under a hidden defect sufficient for dissolving betrothals bound to manifest it before betrothals, or, once they have been contracted, before marriage? If the defect would render the nuptials pernicious, as infamy, leprosy, syphilis, etc. would be, he is bound to manifest it or to desist from the nuptials.

And the same must be said if the bride, from intercourse had with another, is pregnant, because then there is present the danger of damage to the bridegroom, namely, that he might have to support another's offspring, and that offspring might be counted among his own heirs.

But if the defect would only render the nuptials less desirable, as, for example, that the bride is not a virgin but corrupted, then, granted that she cannot deceive the man by pretending that she is immune from such a defect, if the man shows that otherwise he would not wish to take her; nevertheless otherwise, even if questioned, she can dissemble by answering equivocally. The first reason is that it is against justice. The second reason is that no one is bound to make known his own defect with his own infamy, if he does not injure the right of another. L. 863-865; La-Croix, l. 6, p. 3, n. 183.

n. 931.

Are betrothals dissolved by the crime of the other? By an atrocious crime of the other spouse, betrothals are dissolved on the part of the innocent one. Heresy, grave theft, homicide, or something similar is judged an atrocious crime, which produces grave damage or infamy. The reason is that a notable change of affairs is altogether present. On the part of the innocent one; for no one ought to gain advantage from his own delict. L. 860; C. B. 1299.

n. 932.

Is fornication a sufficient cause for dissolving betrothals? "If the fornication was before the betrothals, it is certain among all that the man, after the betrothals, once the fornication of the bride is known, can leave her. Conversely, the woman cannot rescind the betrothals on account of fornication of the bridegroom had before with another..., unless the man also had offspring from another, or unless he is known to have been given to this vice by mixing himself with many women." L. 861. The reason for the assertion is that the bride is thereby rendered notably less valuable, but not likewise the bridegroom. But the reason for the exception is that then it can rightly be feared that the bridegroom will not keep faith with the bride. Nevertheless St. Thomas says absolutely: "although those contracting betrothals have not yet given each other power over the body, nevertheless from this they become mutually suspect of not preserving fidelity in the future; and therefore one can provide for himself against the other by dissolving the betrothals." Suppl., q. 43, a. 3, ad 6. Add that the bride can also withdraw if, at the time of the betrothals, she would not have given consent if she had known that the bridegroom was a fornicator; for then there would be an error giving cause to the contract, and therefore consent would be lacking. And, if the bride is truly an honorable virgin, she by no means intends equally to marry an impure man as a chaste one. "But if the fornication was after the betrothals, it is certain that the bridegroom can leave the woman if she fornicated voluntarily... If the bride suffered fornication violently..., the more common and truer opinion affirms." L. loc. cit. But if the bridegroom fornicated after the betrothals, the authors more commonly and more probably say that the bride cannot withdraw, and much less if the man was compelled by fear. The reason is the same as that which is adduced for the preceding case. But as regards preserving the faith given, either the man or the woman is judged by equal right. Therefore, if the other party voluntarily fornicates, it seems more truly that the other can withdraw. Moreover, although the fall of the bride is held to be more shameful than that of the bridegroom, nevertheless the fall of the bridegroom produces a notable change of status. What fidelity can the bride henceforth hope for from such a bridegroom?

If both spouses fornicated, the first opinion holds that each is permitted to withdraw, because each is judged by the same right in preserving fidelity; the second opinion, that this is permitted to neither, because equal delicts are removed by mutual compensation; "the third opinion, more probable and common..., teaches that the bridegroom can well withdraw, but not the bride. The reason is that in this there would not be equal compensation, since the fornication of the bride is far more shameful than that of the bridegroom." L. 861, 862; H. A., tr. 18, n. 18; Diana, tom. 2, tr. 6, r. 14.

n. 933.

Are betrothals dissolved by a supervening impediment? "If the impediment is impedient, the authors very commonly and more probably... deny that the betrothals are dissolved, unless the impediment comes from a vow of religion, and very probably also of chastity... The reason is that other impediments do not have force today." "But if the impediment is diriment, it is certain among all that they are dissolved on the part of the innocent one... The mere reputation of such an impediment suffices, when there is an opinion of the impediment among the greater part of the neighborhood... Whether then they are dissolved also on the part of the guilty one, Dic. affirms, and Salm. think it probable, because, with such an impediment supposed, marriage has now become impossible. But Sanchez, etc., more commonly and more probably deny it, and say that then the obligation of betrothals is suspended until the impediment is removed; because it is not equitable that the delinquent gain advantage from his own crime." L. 857; St. Thomas, Suppl., q. 43, a. 3, ad 4.

n. 934.

Is he who has placed the impediment bound to obtain a dispensation, or to accept it when offered? "Some, as Filliucci, etc., say that he is not bound, even if the betrothals were sworn, unless he is obliged to this by reason of damage inflicted, namely defloration, or reputation defiled, because the promise is understood to have been made, things remaining in the same state.... Others, as Roncaglia, etc., say that he is bound, even apart from damage inflicted, to procure the dispensation together with the expenses..., even if they should be great. The reason is that each one is bound, in the way in which he can, to repair the right of another which he himself unjustly injured.... Finally others, more probably, as Sanchez, etc., say that he is indeed bound, even with damage inflicted excluded, if the dispensation can easily be obtained; otherwise, if great expenses and a long delay would be required for it; because the obligation arising from betrothals urges the spouse to employ only ordinary and easy means, not difficult and extraordinary means. Sporer, etc., nevertheless except the case in which the damage of defloration or of reputation must be repaired: because then he would be bound even to expend a great amount, but not so much that he would be forced to fall from his own state." L. 858.

n. 935.

Does the obligation of betrothals cease through a subsequent marriage only while the marriage lasts, as is certain; or are they also entirely dissolved, so that, when the spouse has died, the obligation of the prior betrothals no longer urges? The first opinion affirms, because an obligation once extinguished never revives. Moreover, when a thing previously subject to servitude or obligation passes into another state which does not bring an excuse from that obligation from accidental impotence, but of its own nature is repugnant to that obligation or servitude, then this is not only suspended, but entirely extinguished. But marriage of its own nature is indissoluble, and through it the spouse hands himself over perpetually into the power of the other. Therefore. The second opinion, which St. Alphonsus 875 says is absolutely more probable for himself, denies; because neither by positive law nor by natural law is it certain that betrothals are entirely annulled by a subsequent marriage, "as is clear in him who, after a vow of religion, should consummate marriage; for he, when the spouse had died, would indeed be bound to fulfill the vow."

n. 936.

Are betrothals dissolved by the reception of orders? - "By the reception of sacred orders it is certain that betrothals are also dissolved, but not ratified marriage. Thus all... and it is clear from the Extravagant Antiquae, on Vow." L. 871. But does he sin who receives sacred orders without the bride knowing or against her will? "The first opinion affirms that he sins gravely, and Sanchez, Palaus, etc., hold this. The reason is that by no law has it been granted to sacred order to dissolve betrothals, as has been given to the religious state.... But the second opinion, not less probable, denies, and Pontas, Navarrus, etc., hold it. The reason is that in the promise of betrothals there is always imbibed the condition: unless a better state is chosen." L. 871. - Whether betrothals are also dissolved by the reception of minor orders? "The first opinion affirms... because there is such a change of the bridegroom... that the bride is deservedly judged not to have wished to oblige herself to contract nuptials with him.... The second opinion, more common and truer, denies.... The reason is that in reality the state of minor orders is not of itself incompatible with marriage... as is clear from C. 1 and 2, de Cler. coniug." L. 872. But this proves that betrothals are not dissolved on the part of the one initiated into minor orders; it by no means proves that they are not dissolved on the part of the bride, to whom marriage with such a man could deservedly be grave.

n. 937.

Are betrothals contracted before profession dissolved by the entrance of one spouse into religion? - There are three opinions. The first asserts that they are dissolved on neither side. Of it St. Alphonsus says: "It does not seem sufficiently probable." The second, which Busembaum, Sanchez, and others hold, says that they are dissolved on the part of both. The holy Doctor shows that this is not sufficiently persuasive. The third, which "seems absolutely more probable" to St. Alphonsus, says that they are dissolved only on the part of the one remaining in the world, because on his or her part there then occurs a notable change, since it is deemed disgraceful to marry one who has deserted religion. But the other, by entrance, does not become incapable of contracting marriage, and therefore, if he goes out, he must stand by his promises. "The bridegroom would be bound before entrance to celebrate the nuptials, if this were necessary to legitimate offspring, to repair scandal, or to provide for the honor of the bride, if it could not be met in another way. And in this case it is not even permitted to the bridegroom after the celebration of marriage to enter religion and leave it unconsummated; for he cannot then desert the wife, who because of infamy could not find other nuptials." L. 870.

n. 938.

What as regards a vow of entering religion, or of receiving sacred orders, or of preserving chastity? - "It is certain, 1., that one vowing to enter religion vows licitly and ought to enter, nor is he bound to stand by the betrothals, if he truly wishes to become religious.... It is certain, 2., that by these three vows betrothals are dissolved on the part of the one not vowing, since by them the one vowing is deservedly judged to renounce the betrothals. It is certain, 3., that if someone after betrothals emits a vow not only of entering, but also of professing religion, then the betrothals are dissolved on the part of both; because the one vowing then becomes altogether incapable of contracting marriage." L. 873.

n. 939.

Are betrothals dissolved also on the part of the one vowing by a vow of preserving chastity, or of receiving sacred orders? - "If the vow precedes the betrothals, it is certain that they are invalid, because their promise, since it is about an illicit thing, does not oblige." - If it follows, the first opinion denies, and many grave theologians hold it. "The reason is that God does not accept the promise of a thing promised to another and accepted by him, nor is it held by any law that betrothals are dissolved by these vows ." But the second opinion affirms, and very many grave doctors hold it in St. Alphonsus and Sanchez, "who calls it most probable, and Salmanticenses, etc., commonly call it probable and safe, and St. Thomas teaches it absolutely, Suppl. q. 52, a. 1, ad 1....

The reason, which they more commonly hand down, is that the promise of betrothals is always judged to have been made under the condition: unless a better state is chosen. And they say that this holds even if the betrothals were sworn, because an oath follows the nature of the act." L. 873. It is confirmed by the Decision of the S. C. C., March 15, 1705, where it was said: a vow of chastity or of receiving sacred orders, through the election of a better state, annuls betrothals, even those confirmed by oath. But except "if the bridegroom were to make the vow in order to elude the bride.... Likewise more probably... even if the bridegroom vowed chastity without the intention of eluding, if afterward he obtains dispensation from the vow, he will not be able to marry another.... But not altogether improbably Bonacina and Sanchez deny this." L. ib. - De Angelis, Praelect. iur. can., l. 4, t. 6, n. 6.

n. 940.

Is the dissent of parents a cause for dissolving betrothals? - "I think it must be said," says St. Alphonsus 877, "that, if the father unjustly dissents from such a marriage, the son cannot withdraw from the betrothals, and both he himself and the father would sin if they wished to dissolve them. But otherwise, if the father justly contradicts, namely if the marriage would turn to the disgrace of the family; for then those betrothals do not oblige, since no one can be obliged to execute an unjust thing." And Laymann and Sanchez say the same, "with others commonly, if from such a marriage great scandals would arise among relatives." And hence it is clear that the dissent of parents is not a true impedient impediment of marriage. For the question is only of the honor and deference owed to parents. Hence some fault would not be lacking, grave or light according to the various circumstances, by contracting marriage, without the parents' knowledge, when no urgent cause exists. L. ib.

n. 941.

Can a bridegroom rescind betrothals if a rich inheritance comes to him? The doctors most commonly deny it, because the bridegroom "has not been deceived in the condition of the bride, in whom no change has been made." A change has indeed been made in the bridegroom, but in a thing extrinsic to this contract. But several probably affirm it, "because in such a case there now comes a notable change of things." The same consequently would seem to have to be said if someone contracted betrothals with one woman and afterward marriage with another of an exceedingly better condition is offered to him. This "I would not dare," says St. Alphonsus 876, "altogether to condemn"; nevertheless he adds: "I would never dare to depart from the contrary opinion, nor ever to advise it."

n. 942.

Can a bride withdraw from betrothals if the bridegroom departs elsewhere? - "It is certain that if the bridegroom transfers his domicile elsewhere, or if he goes away to a distant region, even with the intention of returning, the bride can at once pass to other nuptials; this is expressed in C. De illis 5, de Sponsal.... - But if the bridegroom has departed to a nearby place..., one must wait until he returns; or the bridegroom must be required to come within a fixed time to contract marriage; but if he, having been required, should delay his return for a just cause, either one must wait according to the judgment of a prudent man... or, what is safer, the cause is to be remitted to the judgment of the judge....

These things proceed, however, if in the betrothals no time was fixed for entering the nuptials.... When a term is attached to betrothals, one must look at whether it is attached to urge, or not to delay, the obligation of contracting marriage, or whether it is to end the obligation. It is attached to urge when the parties therefore fix the term so that neither party before it can compel the other to fulfill the contract. But it is to end when the term is attached so that, when it has elapsed, no obligation remains.... - Whether, when the term has elapsed by the defect, for example, of the bridegroom, the bride can withdraw, if he inculpably omitted entering the nuptials, detained by a just impediment? The first opinion denies.... The reason is that it is not equitable that one be deprived of his right who is impeded by a just cause from fulfilling his promises.... The second opinion, more common and more probable, affirms.... The reason is that the term is attached for this, lest the party who is ready remain for a long time without nuptials; otherwise a time would be fixed in vain. Moreover, this opinion is clearly proved from C. Sicut 22, de Sponsal.... Whether, when the term has elapsed, the party also remains free who culpably caused the delay? The first opinion, more common, denies.... The reason is that no one ought to draw advantage from his own crime.... The second opinion affirms..., and St. Thomas also expressly holds this in 4, d. 27, q. 2, a. 3, ad 2....

The reason seems to be that since the term was attached to end the obligation, when it has elapsed, the obligation ceases.... The first opinion is indeed far more common, and to me far more probable; but the second does not lack its probability." L. 866, 868. - S. C. de P. F., September 26, 1840, Collect. n. 1216; St. Thomas, Suppl. q. 43, a. 3, ad 2; L. 17, de Sponsal., ff.; L. 2, e. t., C.

n. 943.

Is one withdrawing from betrothals bound to restore the earnest money? That betrothals can be contracted with earnest money given, there is no doubt. For earnest money is a pledge given of fulfilling the thing promised. If the thing promised, as here, is licit, a pledge is licitly given for fulfilling it. - One who culpably withdraws from betrothals loses his own earnest money, and is bound to return that of the other party, and to restitution of as much as it was in that party's interest that such a contract be fulfilled. Cf. 926. - L. 852; Sanchez, l. 1, d. 30, 35; Schmalzgrueber, l. 4, t. 1, n. 126 ff.; L. 5, de Sponsal., C.; C. B. 1301.

n. 944.

Is one justly withdrawing from betrothals bound to pay the promised penalty? "If the penalty is generally attached against him who withdraws justly, it is certain among all that the promise of the penalty does not oblige." L. 853. For it is against the liberty of marriage. - If it is added against one withdrawing unjustly, "the first opinion, sufficiently probable, denies..., because liberty would still be injured...; but the second opinion, more probable, affirms.... The reason is that such addition of a penalty is contrary neither to natural law nor to positive law." L. 853, l. 3, n. 949. - From C. B. 1297, a promise of a penalty, if marriage is not contracted, is null. - St. Thomas, Suppl. q. 43, a. 1, ad 4; Sanchez, l. 1, d. 30 ff.; L. Titia 134, C. de Verborum obligationibus; C. Gemma 29, de Sponsal. et Matr., C. Requisivit 17, e. t.; S. C. de P. F., November 22, 1790, Collect. n. 603, v. 1.

n. 945.

Is the authority of a judge required for dissolving betrothals? "In the aforesaid causes, when they are manifest, the authority of a judge is not required for dissolving betrothals; otherwise it is required. But if the bridegroom, after his right of withdrawing has become known, nevertheless carnally knows the bride, he is judged tacitly to have renounced his right and to have ratified the betrothals.... Laymann and Palaus say that, when there stands a probable fear of an unhappy outcome, a man can licitly withdraw from betrothals." L. 878. But after the Decree Ne temere something else must be said for Catholics. Since betrothals are contracted by a public act, for their dissolution it is necessary that the public authority of the Church intervene.

n. 946.

What concerning kisses and embraces of betrothed persons among themselves? Kisses, embraces, and other similar acts which are shameful or less honorable are illicit to the betrothed in entirely the same way as to others. The reason is that betrothals confer on the betrothed no special right to intercourse and venereal pleasure, and therefore neither to those acts which contain a danger more or less proximate of venereal pleasure. - Kisses, embraces, and other acts honorable from their object and from the manner of performing them are permitted to the betrothed. The reason is that those acts are licit in themselves, and therefore, as they are permitted to others who are free, so also they are permitted to the betrothed. But the question is moved especially about the betrothed rather than about others, both because on the one hand these acts can more easily be permitted to them because of the special reason which has force for them, namely for mutually fostering benevolence, which is entirely necessary to them for future marriage, and because on the other hand there is also present a special danger of sin; whence counsel should generally be given to them that they abstain even from these acts, as far as can be done. - Billuart, diss. 6, art. 16; L. 950.

n. 947.

What must be thought of those acts of the betrothed which otherwise in themselves are honorable and licit, if they contribute to arousing venereal acts? Here the general rule holds: these acts are culpable only when either the cause is evil, or there is a proximate danger of consent. What if it is clear to the bridegroom or bride that the other sins in these acts because of a depraved affection? If those acts are done before others, the other can licitly permit those acts, lest he or she be defamed, or introduce suspicion of himself or herself, and lest others be scandalized. If those acts are done secretly, and it is certain that they are done maliciously, where the question concerns others and not betrothed persons, the doctors commonly teach that one is bound to repel those acts. But if the question concerns betrothed persons, for whom often in this matter a notable inconvenience could be present, because the other will certainly withdraw from the marriage, the general rule concerning scandal received seems to have to be applied, namely that this can be permitted if it cannot be impeded without grave inconvenience; but it must be impeded if this can be done without notable inconvenience.

What must be thought of these same acts when, from frequency of falls, the danger of consenting to subsequent venereal pleasure must be held as a proximate occasion of sin? - This question, like the preceding ones, can be raised even about looks and conversations themselves, which have a most just cause, as is clear of itself; whence parents can altogether licitly permit such looks and conversations, although great caution and prudence must always be applied in these things. But here the general rule concerning a necessary proximate occasion holds; for it is morally impossible that a bridegroom seriously thinking of entering marriage should not visit, look upon, speak to the bride, and according to custom show her other signs of benevolence which manifest his mutual love. Therefore the confessor should suggest not only general but also special means: that due moderation be preserved, and that necessity not be exceeded in showing these signs; and then that he never deal alone with her alone. Care is likewise to be taken that the marriage not be long delayed. But if these and other remedies do not obtain fruit, this one thing remains: that they be dealt with no otherwise than with other persons in occasions of sin and recidivists. Reuter, Neo-confess. 112.

n. 948.

Is intercourse had with one betrothed by words about the future adultery? - "More probably it is denied with Sanchez, de Matr., l. 1, d.

2, n. 2, Salmanticenses, Roncaglia. But Roncaglia and Salmanticenses judge that if one of the betrothed fornicates with another person, he must disclose in Confession the circumstance of the betrothals, as changing the species by reason of the injury inflicted on the other. But it is sufficiently probable with Trullench, Pontas, Diana, Covarruvias, Lugo, Sanchez, and Laymann that it is only an aggravating circumstance, since the bridegroom by betrothals acquires no right over the body of the other." L. l. 3, n. 447; l. 6, n. 647; Billuart, diss. 6, app. 1, question 3; Ithur., Cas. 6, n. 16; Lugo, de Poenit., d. 16, n. 177, 178.

n. 949.

Must banns be sent before marriage? - Marriage cannot be contracted licitly, although validly, without previous proclamations of the same, and the obligation is grave. Trent, sess. 24, C. 1, 5, de R. M.; C. Cum inhibitio 3, section 1, de Clandest. desp. - All who are to contract are subject to the law of proclamation. From usage, however, Princes are excepted, because their lineage is sufficiently known, and ordinarily their marriages are sufficiently public. The case of urgent necessity is also excepted, for example, if someone near death should wish to marry a concubine to legitimate offspring, and there would be danger in delay. - A parish priest omitting the denunciations, even if he knows that no impediment is present, sins gravely.

For the law obliges, although in the particular case its reason may cease; and a very grave danger is always present if this matter is left to the judgment of parish priests. But does a parish priest sin gravely if he omits only one proclamation without dispensation? It is controverted. Some affirm, because one proclamation out of three must be held a grave part of the whole precept. Others probably deny, because of the opposite reason. But to omit two denunciations is more probably grave. L. 991. - From a just cause the Bishop and his vicar general can dispense from the law of banns, more easily from one or another denunciation than from all. Trent, sess. 24, C. 1, de R. M. But dispensation must be obtained from both Bishops if the spouses belong to different dioceses.

For if impediments are not detected on one side and in one place, it does not follow that they cannot be detected on the other side and in another place. Yet there are not lacking authors who say that the Ordinary of either side can dispense with both, because of the unity of the act of both, and St. Alphonsus 1006 seems to approve. - The doctors commonly teach that the Bishop not only can, but also sometimes is bound to dispense, namely to avoid grave common or private damage, spiritual or temporal; indeed even because of a notable spiritual or temporal good of the community or of another private person. - L. 389-391, 1005-1007; C. I. 70 ff.; C. B. 1316; E. M.

n. 950.

Note: If for a grave cause the denunciations were omitted before marriage, lest, for example, it be maliciously impeded, "then before its consummation let denunciations be made in the Church, so that if any impediments underlie it they may more easily be detected." Trent, sess. 24, C. 1, de R. M. Therefore, if it is clear that there is no impediment, the spouses will not sin gravely against the Decree by consummating. Indeed Trent immediately adds that the denunciations can be remitted by the prudence and judgment of the Bishop. The parish priest cannot undertake to make the proclamations unless it is first clear to him concerning the free consent of both contracting parties. He must also inquire whether they are affected by any impediment, and whether they know the rudiments of faith, which they must afterward teach their children. Roman Ritual, de Sacr. matr.

Free state: It must be clear before the reception of Orders and before entering marriage. It can be proved by the sworn testimony of two persons. A process is of itself to be instituted, and the norms handed down in the Instruction of the Holy Office, August 21, 1670, with the attached declarations, August 29, 1890 and 1868, are to be observed as regards proving the death of a spouse. But if the aforesaid free state cannot be legitimately proved, then recourse must be made, after the faculty has first been obtained, to a supplementary oath. Holy Office, February 1, 1865.

n. 951.

In what place must denunciations be made? - "It is certain that they must be made in the parish of each contracting party..., because custom so bears. Laymann, etc., except, unless the parishes are very near.... If one of the spouses stays in some place briefly, Pontas thinks it suffices if they are made in the place where he actually lives. But far more probably Sanchez, etc., from the declaration of the S. C., say that they must altogether be made in the parish from which he departed, because denunciations are made for this, that impediments may be manifested, and therefore they must be made where the spouses have lived for a longer time. And here it must be noted that if one of the spouses is external, the parish priest must not make the denunciations unless after he has proved the free state before the Ordinary by an authentic document, as is had from the Instruction of the S. C. of the Holy Office.... But as regards vagi, Trent, sess. 24, C. 7, de R. M., commands parish priests not to assist at their marriages unless after diligent inquiry has been applied, and unless first they have obtained from the Ordinary license to assist. Hence Roncaglia rightly says that a parish priest would sin gravely if he did not observe such a precept." L. 991. - They are to be made in the parish church of the domicile or quasi-domicile of the spouses, or of simple residence and the immediately previous domicile, unless the spouses have left it for six months.

Nevertheless, monthly residence is now to be attended to only for marriage, and not also quasi-domicile. Hence if the spouses, where they now are, have come there for six months or at least for a month, there the denunciations are to be made; otherwise also in the place from which they departed. "For generally satisfaction is made to the Tridentine Decree if marriages are denounced where those intending to contract marriage are parishioners at the time of the denunciations." Schmalzgrueber, l. 4, t. 3, n. 14. But as regards place of origin and previous domicile, or where they lived longer, it is enough to seek testimony of free state through the documents of their Ordinaries, and through examination of witnesses, according to the cited Instruction of the Holy Office, August 21, 1620, confirmed by Clement X, or at least, by special indult, through the supplementary oath of those wishing to contract. But if one or both spouses have equal domicile in two places, or domicile in one place and quasi-domicile or monthly habitation in another, the banns must be proclaimed in both. - Many doctors say, moreover, that proclamations can be made outside the church in a place of great gathering, because thus the end of the Council is obtained. - L. 991; E. M.

It has been granted to the Archdiocese of Paris that written notices exhibiting future marriages be affixed in a conspicuous place of the church for three continuous Sundays or feast days, and that they remain affixed throughout the whole day from the first morning Mass to the last evening liturgical office. S. C. C., March 28, 1908.

At Rome, "from those who have stayed for six continuous months after attaining puberty in another diocese, a Document of free state is required, given by the Ordinary of the place. Those from outside the diocese shall exhibit a Document of origin, baptism, confirmation, and free state.... Once the publications have been carried out in the parishes of the contracting parties, and also in the parishes where the contracting parties have equal domicile or quasi-domicile..., the parish priest will be able to proceed to the celebration of marriage." Instruction of His Eminence the Cardinal Vicar of the City, April 5, 1902, A. S. S., v. 37, p. 223 ff. Cf. the more recent Instruction in M. E., v. 23, p. 28-34.

For proving free state, witnesses are to be duly examined according to the Instruction of the Holy Office, August 21, 1670, Collect. S. C. de P. F., v. 1, n. 192; Decree of the Holy Office, February 24, 1847, Collect. cit. n. 1011. Cf. also Decree of the Holy Office, January 13, 1869, Collect. cit., ed. 2, 1907, n. 1342.

When certain documents concerning the death of a spouse are not had, the response given by the Holy Office on July 20, 1898 concerning men who were present at the battle of Adua is to be applied to other similar cases. S. C. of Sacraments, December 16, 1910. Cf. Enchiridion, num. 996.

When must proclamations be made? - They must be made on feast days of precept, continuously, during the solemnities of Masses. Trent, sess. 24, C. 1, de R. M. On feast days of precept, at least in the place of the proclamations. On feast days. Several teach that they can also be made on a weekday if for some cause there is a great gathering of people at the church. Schmalzgrueber, l. 4, t. 1, n. 24. Continuously, i.e. with no feast day omitted from the first proclamation to the third. St. Alphonsus 992 thinks it probable that there is no grave sin if the feast days are not continuous, one or another having intervened, especially if the question concerns feasts other than Sunday. For there is slight danger that the people will forget. But can proclamations be made on feast days immediately succeeding each other, if they occur? It is controverted, and there is a twofold probable opinion. During the solemnities of Masses, i.e. in the parochial or conventual Mass. The doctors add probably that, from a just cause, they can be made in a sermon, or on the occasion of a procession, when the people are gathered. They cannot be made in private Masses, nor at Vespers. If, however, the parish priest has forgotten to make the last proclamation at Mass, and the nuptials are urgent, he can supply it at Vespers. Once the proclamations have been made, it is licit to contract at once even on the same day. But if, once the proclamations have been made, marriage does not follow within two months, more probably the proclamations must be repeated, unless it seems otherwise to the Bishop. Roman Ritual. And after three months have elapsed, there is also need of a new testimony of free state, unless again it seems otherwise to the Bishop. S. I. C., February 24, 1847, ad 4. - L. 991, 992, 993; E. M.

The S. C. C. in Pineroli, April 7, 1862, rescripted that "denunciations can be made on the aforesaid suppressed feast days, i.e. according to the Decree of Pius IX to the Subalpines; care is nevertheless to be taken that these be fulfilled at the time of the divine office when the greater number of the faithful is usually present in the church." But the authors add: with the permission of the Ordinary.

n. 953.

Must known impediments of marriage be revealed? - There is of itself a grave obligation of revealing impediments of marriage. The reason is drawn from the motive of religion and charity, and from the very precept of banns. - This obligation pertains to all, of whatever sex, age, parish, diocese, even friends and blood relatives; and it must be fulfilled as soon as morally possible, lest perhaps, once dispensation has been obtained from one or another proclamation, marriage immediately follow. But once marriage has followed, the positive law indeed ceases; but the natural law, according to circumstances, can require revelation. - The aforesaid obligation is present however hidden the impediments are, and even if someone knows them under a natural secret, even one simply committed or promised, even sworn. For a secret of this sort does not oblige when grave damage threatens the community or a particular person. But more probably there is no obligation of revelation if it is a secret committed for the sake of seeking counsel, for example to an advocate, physician, parish priest, etc. The common good seems to require this. But those who know impediments of marriage in this way must at least admonish the spouses to desist from the marriage. C. Praeterea 12, de Spons.

One is bound to reveal impediments, although he alone knows them and cannot prove them, since here the testimony of one suffices. One can, absolutely speaking, reveal an impediment if damage threatens an innocent person, or public damage would follow. Cf. V. 1, n. 1542. And the contracting parties themselves are bound to reveal it, since the question is not of undergoing a penalty, but of avoiding sin and scandal. - But one is not bound to reveal it with grave damage to himself, if grave scandal of others would follow from it, if the revelation would be useless or rather would harm those contracting in good faith, if dispensation had already been obtained, etc. - L. 994-1002.

n. 954.

Can a parish priest sometimes dispense in denunciations? - R. In the negative, because he has no jurisdiction in the external forum. "Nevertheless Sanchez, Laymann, etc., say very probably that in cases in which the Bishop is bound to dispense, and cannot be approached, and there is danger in delay, he can declare that the precept of proclamations does not oblige, provided he is certain that no impediment is present. Indeed in cases of this sort Busembaum, Pontas, etc., judge that the spouses themselves, if they are certain that they are not impeded, can enter nuptials without denunciations." L. 1007.

n. 955.

What is the parish priest to do if the spouses are already in the Church to contract marriage, and he detects that a hidden impediment is present? - If the nuptials cannot be delayed without danger of infamy or other very grave inconveniences, and the penitent is in invincible ignorance of the impediment, the admonition is to be omitted, and the celebration of marriage is to be permitted until dispensation is obtained. If the penitent is in vincible ignorance, or if he openly knows the impediment, and the marriage cannot be delayed without infamy or scandal, not even to obtain dispensation from the Bishop, then the difficulty is very great. According to St. Liguori and others, the confessor could declare the law of the Church concerning impediments not to oblige in such straits of infamy and scandal, and proceed to the celebration of marriage. Certainly every power has been given unto edification, not unto destruction. Nevertheless, as soon as possible, at least for caution, he ought to request dispensation. According to others, simulation of the contract of marriage could be permitted with the purpose of seeking dispensation from the impediment as soon as possible. But, they say, an impediment cannot cease naturally; for an invalidating law never ceases on account of a particular inconvenience, whatever it may be. But whenever the Bishop can be approached, he must be approached, because, according to the common opinion, in that case he can dispense from ecclesiastical impediments.

C. Ubi 2, de Desp. impub.; L. 613, 1122; Monit. Eccles., v. 12, p. 16 ff.

Nor are there lacking those who likewise hold that, at the article of death, when grave danger would be present for the eternal salvation of the sick person, the ecclesiastical law of impediments ceases by force of the more urgent natural law, namely of charity, and that at least then there is room for legitimate epikeia. M. E., v. 20, p. 177, 474.

But in the present matter almost every difficulty vanishes. For Bishops, in the aforesaid case, have among the quinquennial faculties the faculty "of dispensing over the impediments of adultery and affinity from illicit intercourse, even in marriages to be contracted, and of subdelegating, as regards the aforesaid impediment of affinity, the faculty of dispensing, even habitually, to parish priests of their own diocese." Form of Faculties, May 5, 1896. To parish priests, and also to rectors, so called, who exercise the care of souls in some district, although they are not parish priests in the strict sense; and also to those priests who, during the vacancy of a parish, or on the occasion of sickness or absence of the parish priest, are deputed as administrators of the parish. S. Poenitentiaria, July 17, 1901. Cf. 1044; E. M. de Leg., n. 264, and here 955.

Vol. IV, On Marriage, III. On the Impediments of Marriage

n. 989.

What are betrothals? Any betrothals, whether ecclesiastical or private, seriously contracted, unless they have been legitimately dissolved either by mutual consent of those contracting or by another just cause, are an impediment impeding marriage. This is clear from natural law; for there exists a grave obligation of justice to preserve a pact from an onerous contract. But if someone, notwithstanding that impediment, contracts nuptials, the marriage will indeed be valid, since this impediment is only impedient, yet it will not be licit. C. Duobus 1, de sponsa duor.

n. 991.

Who can dispense in impedient impediments? - No one can dispense, except the Supreme Pontiff and from a just cause, from an impediment arising from valid betrothals, since in this matter there is question of a strict debt of justice, which no one besides the supreme Prince can take away. The same must be said concerning the necessity of the consent of parents, which is to be referred back to natural law; nevertheless this naturally ceases if the parents dissent unjustly. - Bishops, or Ordinaries, Pastors of souls, enjoying full jurisdiction in the external forum, can dispense 1. in the obligation of banns; 2. as regards the contract during forbidden time, where custom also interdicts this; 3. in a vow of temporary chastity, and of virginity or of not marrying. - But they cannot dispense 1. as regards a vow of perpetual chastity; 2. as regards a vow of entering Religion; 3. as regards the impediment of disparity of worship between Catholics and heretics; 4. as regards clandestinity, or marriage to be contracted in the face of the Church; 5. as regards the solemnities of nuptials, S. R. C., August 14, 1858, Mont. Alb., ad 2; 6. as regards proof of free state. For these impediments are reserved to the Pope. - Regulars by their privileges are able to dispense merely for the internal forum in a vow of virginity, or of not marrying; for they have the same power of dispensing from vows in the internal forum which belongs to Bishops by ordinary right, according to the common opinion of the doctors. L. 987, 1119, 1128; Benedict XIV, Instr. 80, n. 15; Sanchez, l. 1, d. 61.

n. 1014.

What is public honesty? Public honesty is a certain quasi-affinity from the union of minds. It arises: 1. from valid and certain betrothals, but by no means from invalid and uncertain ones, C. un., de Spons., in VI; Trent, sess. 24, chap. 3, de R. M., although occult, Holy Office, August 11, 1852; Sacred Penitentiary, September 10, 1834; A.S.S., vol. 2, p. 381; Schmalzgrueber, book 4, tit. 1, n. 108. Although occult; but now, after the decree Ne temere, occult betrothals can no longer exist by law, but only in fact. If betrothals were entered under a resolutive condition, since they are immediately valid, the impediment of public honesty arises and perseveres, although they are dissolved. But if they were entered under a suspensive condition, while that condition is pending there are neither betrothals nor an impediment; but when it has been fulfilled, if consent has not been revoked, they are valid without new consent and produce the impediment. But if marriage is contracted in the meantime, and then the condition is verified, they can neither dissolve the marriage nor impede its use. It is contracted between the betrothed man and the blood relatives of the betrothed woman, and between the betrothed woman and the blood relatives of the betrothed man, whether legitimate or illegitimate, C. 8, de Spons. et matr., only in the first degree of both the direct and the oblique line, Trent, ibid.

It arises: 2. from ratified marriage, even invalid marriage, namely because of some diriment impediment, e.g., impotence, kinship, disparity of cult, crime, ligamen, provided that it was not invalid from defect of consent, from error, from fear, from simulated consent, although the defect is occult; nor from the prior impediment of public honesty from betrothals validly contracted to the prejudice of prior betrothals; and therefore the impediment is in force if those betrothals had been dissolved before the marriage. There is no explicit text of law, but it is deduced a fortiori; for the bond of ratified marriage is stronger than that which arises from betrothals. C. un., de Spons., in VI; St. Pius V, Const. Ad Romanum Pontificem, sec. 35, July 1, 1568; Schmalzgrueber, l.c., nn. 101, 104-106. Hence if Titius, for example, after entering betrothal with Bertha, leaves her and marries her sister, he can and must return to the first, and he does not need dispensation unless he has consummated the marriage. Ratified; for when it has been consummated, it passes into perfect affinity and produces no other impediment. For public honesty is a certain inchoate affinity. Benedict XIV, de Syn., book 9, chap. 13, n. 3. From ratified marriage, not from civil marriage, in places where the decree of Trent concerning contracting marriage before the pastor and witnesses has been promulgated. Leo XIII, March 17, 1879. And much less now, after the decree Ne temere, is the impediment contracted from merely civil marriage. Is it also not contracted from clandestine marriages, namely those contracted without pastor and witnesses? Sanchez, book 7, disp. 70, n. 13, thought so; Pontius, book 7, chap. 35, n. 5, held the contrary. Many indeed supported Sanchez, far more Pontius. Nevertheless, after the cited Decree of Leo XIII, the opinion of Sanchez consequently must be altogether preferred. And the reason for each is that civil marriage, where Trent has been promulgated, and now after the decree Ne temere has been promulgated, and clandestine marriage, do not have the form of marriage; and form gives being to the thing. Hence they are altogether nothing in the being of marriage, and therefore from them, as from an invalid marriage, the impediment of public honesty cannot arise. Cf. 919, 923. If a marriage is null from defect of age, since by interpretation of law it passes into betrothals, the impediment must be considered as from betrothals, not from marriage. Cf. n. 923. But again, now after the decree Ne temere, the aforesaid marriage in no way passes into betrothals.

This impediment, arising from marriage whether ratified or invalid, advances up to the fourth degree of the direct and collateral line. C. un., de Spons., in VI; L. 1061. And this impediment of public honesty, once contracted, is perpetual and endures after betrothals and marriage have been dissolved. It has no natural bond for its foundation, no natural kinship, from betrothals or from ratified marriage, whether invalid or valid. Therefore unbelievers converted to the faith are not bound by it. L. 1061-1064; Mansella, de Impedim., etc., p. 66; E.M.

…and 1 more passage — all of them are listed on the topic page.

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 17 passages

143. On Betrothals

Severinus, in the presence of Amalia, asked Modestinus, the brother and tutor of Amalia, for his sister Amalia as his bride. Modestinus agreed, and then Severinus promised marriage by the solemn form of words, with an oath also added; which promise Modestinus accepted in the name of Amalia, who at the same time promised marriage back to Severinus with an equal solemnity of formulas. Amalia, hearing all these things, was silent because of shame and modesty; yet internally the matter greatly pleased her, and therefore she was consenting, and promising, and was also being bound by oath before God. But after a few days Severinus, seized by a sudden illness, dies; and then his brother Ioannes, who had heard Severinus often speaking of the virtues of Amalia, immediately, without previous betrothals, enters into marriage with Amalia in the place of his brother.

It is asked: What is to be said to the case?

R. Schmalz., l. 4, tit. 1, n. 66 seqq., reports the opinion of some who stand for the validity of these betrothals. Then, n. 67, 68, he says: "But Paludanus, etc., better defend the negative. The reason is that the contract of marriage and of betrothals, by natural and divine law, is so personal that no one, even a father, can by that law furnish consent for a son, unless he has a special mandate from him; therefore, when the consent of parents, joined with the silence of the child, makes presumed betrothals, this is had only from the disposition and presumption of positive law, through c. un. de Desp. imp. in 6°, which, since it is restrictive of natural law, ought not to be extended beyond the case expressed in law; but it would be extended if it also proceeded in brothers, relatives, tutors, because the cited chapter mentions only parents; therefore, etc.

"From this it follows that, although perhaps the pupil, or the sister, in reality has complacency and internal consent of contracting betrothals and of obligating himself or herself, while the tutor or brother contracts in his or her name, nevertheless no betrothal obligation arises from this either for the internal forum or for conscience. The reason is that from the disposition of law the words of parents alone, and not those of a tutor or of any other person joined in whatever way, signify internal consent into a betrothal obligation; therefore, even if the pupil or sister has been silent at the promise of the tutor or brother, he or she nevertheless will not be considered by this very fact to have promised marriage; or if he or she promised it internally, nevertheless this promise, because it was not expressed by a suitable sign by the promisor himself or herself, and therefore could not be accepted by the other party, will in no way be obligatory."

Therefore, since in the case there were no betrothals, there cannot be had from them the impediment of public honesty; and therefore Amalia's marriage is valid.

But here it must be noted that, if there is question not of other outsiders, or of other relatives, but of parents, the same positive disposition of law exists, whether it is the father or the mother who contracts betrothals for the children; whether he or she contracts for children who have reached puberty or for those who have not reached puberty: and "from them arises the justice of public honesty." C. un. cit., Schmalz. n. 62. - I. M. 919.

"A marriage was contracted in the city of Messana, after the publication of the Decrees of the Council of Trent, by words concerning the present and mutual consent, the publications not having been made, nor the parish priest being present, but only a notary and witnesses. It is requested to declare whether the aforesaid contract of marriage, since it was made against the form handed down by the decree of the same Council concerning contracting marriage, is so null that it does not even pass over into betrothals for the future.

"The S. C. C., in the year 1573, judged that it does not pass over." Benedict XIV, Not. 46, n. 24; I. M. 923.

"In the year 1697 Antonius Levame drew up two writings of betrothals toward Benedicta Gena, signed by both: one under the date of 9 Nov., in this tenor: I, the undersigned, say and promise not to marry any other girl except Signora Benedetta Gena, as she also promises not to marry any other young man except me. Antonio Levame, Benedetta Gena. But the other, under the day 12 of the same month, of this sort: I, the undersigned, say and promise not to marry any other girl except Signora Benedetta Gena, as she also promises and swears. Antonio Levame, Benedetta Gena.

"1. Whether there is certainty concerning the validity of the betrothals between Antonius Levame and Benedicta Gena? And, insofar as in the affirmative: - 2. Whether Antonius Levame is to be compelled, or can recede from them by contracting with another, in the case?

"The S. C. C., June 1, 1709, responded: To the 1st: from the things deduced so far, it is not established that there are absolute betrothals. - To the 2nd: As to coercion to contract with Gena, negatively. But whether he is able to contract with another, deferred. But when, on Sept. 28, 1709, to the question: Whether Antonius can contract with another woman in the case? it responded: Affirmatively." De Iust. de Dispens. matr. Cas. 13.

For indeed one promising that he will not take another as wife except such a woman does not absolutely promise that he will contract marriage with her; but he only obligates himself to take her as wife on the hypothesis that he wishes to choose the conjugal state. This is made clear by the example of him who promises that he will not sell a farm except to Titius; he certainly is not simply obligated to sell the farm to Titius, but only in the case in which he wishes to sell the farm. Benedict XIV, Quaest. Can. CCCCXXXIV; L. 842; G. 835; I. M. 919.

"Antonius de Cristophoro, after he had entered into betrothals for the future with Catharina Carusio, joined to him in the third and fourth degree of consanguinity, and had known her carnally and had begotten offspring, then entered into other betrothals for the future with Catharina Pascharelli; but at length, having changed his mind, he contracted marriage by words concerning the present with Catharina Carusio, having obtained an apostolic dispensation upon the impediment of consanguinity. But since the brother of the said Antonius intends to contract marriage with the other Catharina, it was doubted whether the impediment of public honesty stood in his way, arising from the betrothals previously entered into with the other brother, insofar as they are valid. Therefore the doubt is proposed: Whether there is certainty concerning the impediment of public honesty between Alexander and Catharina de Pascharello, so that they need a dispensation in the case?

"R. Affirmatively." S. C. C., March 31, 1708. De Iustis de Dispens. matr. Cas. 11, 12; I. M. 919.

Dominicus, after betrothals entered into with Agnes, thinks of abandoning her, in order that he may take another as wife. Therefore he asks his confessor whether he can licitly effect this. For he is prepared to provide Agnes sufficiently with a dowry, indeed even to establish a considerable dowry for her, so that she may easily marry another.

It is asked: What ought the confessor to respond?

R. He ought to respond that he cannot effect that. Since betrothals oblige under grave matter by reason of an onerous contract to marriage, and to nothing except marriage, Dominicus cannot abandon Agnes, she being unwilling, although he wishes abundantly to provide her with a dowry. For by deserting Agnes, even though he endows her, he no longer stands by his promises. Cf. Benedict XIV, Quaest. Can. CCLXXIX; I. M. 926.

Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 1 passage

Vol. II, Treatise on Matrimony, Chapter I. On Betrothals

First, on the nature of betrothals; second, on their effects; third, on their dissolution.

Bucceroni, Moral Enchiridion (4th ed., 1905)

Gennaro Bucceroni, S.J. — 7 passages (filed under the subtopics)

Bucceroni, Moral Enchiridion (4th ed., 1905), On Matrimony

On Betrothals of Infants and Those below Puberty, and on Mixed Betrothals

“Betrothals contracted by infants, or by one of age with an infant, are null by the law itself and cannot engender the impediment of public propriety.... If it has been established that the betrothals were entered into while still of infant age, it will have to be investigated whether they were renewed after the seventh year or at least ratified. But if, as has sometimes happened, the betrothals were contracted by the parents ... if the children were still of infant age, it is certain that the contract was invalid; but if they were of age, the contract would be valid only if the children consented expressly, or at least tacitly, or afterwards ratified the betrothals entered into by the parents in their name.” Instruction of the Holy Office, 20 June 1883, nos. 33, 34; Instruction of the Sacred Congregation for the Propagation of the Faith, 1883, no. 35; A. S. S., vol. 18, p. 355 ff.

“We hold it established, especially by canon law, that betrothals contracted either between infants or by one of age with an infant are to be regarded as not having been made, so that they do not even produce the impediment of public propriety. But those very betrothals which are celebrated between those below puberty, although canon law provides that they are valid and induce an obligation, nevertheless by the same law it is established, on account of weakness of judgment, that it is lawful to withdraw after puberty; nor is the one who first arrives at puberty bound to await the other, but he can, and indeed ought, to withdraw immediately if he does not wish to approve the betrothals, lest otherwise he should not be heard afterwards.” Holy Office, February 1779.

“Betrothals between one Catholic party and another schismatic or heretical party are unlawful and indeed invalid unless celebrated after a lawful dispensation has first been obtained.” Instruction of the Holy Office, 12 December 1888; M. E., vol. 6, part 2, p. 100 ff.

n. 949.

On the Banns

“The burden has likewise been enjoined upon the proper parish priest that, before the announcements of a Matrimony to be entered into are made publicly in the church during the solemnities of Masses, he should take care cautiously to examine both the bridegroom and the bride separately and, as it is said, in the ear, whether by their will, spontaneously and freely, and truly with the consent of the soul, they are mutually joined in Matrimony.” Apostolic Letter of Benedict XIV, 28 May 1743.

On the Time of the Banns

“Can the Ordinary, for a cause, dispense so that the banns may be made while Vespers are being sung, provided that it is on feast days?—Response. He can so dispense for a cause.” Sacred Congregation of the Council, 25 October 1586.

“Can the banns of Marriages be made, in the case, on abrogated feast days?—Response. Negative, unless with the permission of the bishop, with the conditions according to the form of the decision of Brno, 5 July 1780, after consultation with His Holiness.” In the case of Todi, Banns of Matrimony, 19 April 1823. Moreover, the form of the decision of Brno, in addition to a grave cause, requires that “on those days which are not feast days, a frequent concourse of the people to the Church still continues.”

“Whether and at what time must the banns and the explanation of the Gospel be made in the case?—Response. Affirmative; as regards the explanation of the Gospel, in the parish Mass; and as regards the banns, in the same Mass or at another hour more frequented by the people.” Sacred Congregation of the Council, 20 September 1828.

Tanquerey

Adolphe Tanquerey, S.S. — 5 passages

Vol. I, Matrimony, and Holy Orders, On Marriage (Volume I), Chapter II: On Marriage as Sacrament

n. 845.

IV. On the Manner of Acting of Pastors and Confessors Concerning Espousals

1° As to the dissolution of espousals. (A) If the cause of dissolution is certain and evident, the injured party regularly can enter new espousals or marriage with a third person, without recourse to the ecclesiastical judge: for neither by the law of nature, nor by the common canonical law, is it prescribed that in this case recourse be had to the authority of the judge.

It was said regularly; for an exception is given: (a) by the law of nature, if recourse to the judge is necessary for avoiding scandal, for example when the espousals are publicly known and the cause of dissolution is unknown; (b) by positive particular law, where diocesan Statutes prescribe this.

n. 846.

(B) But if there is some doubt and a complaint is made from one or the other side, the sentence of the Bishop is to be awaited. Now a threefold case can occur:

(a) If each party admits that the espousals were null, or at least dissolved, although the parents contradict, the betrothed are free from every obligation, because in a matter of this kind they are to be believed more than the parents.

(b) If each party confesses that the espousals were valid, and have not been dissolved, these things are to be established: if the betrothed man does not stand by the promises and the betrothed woman does not complain before the pastor or Ordinary, she is judged to renounce her right; - if she complains and demands that the promise be fulfilled, the pastor ought to admonish the betrothed man concerning his obligation: if this does not suffice, he will remit the case to the Ordinary, who likewise will admonish the betrothed man and set a time limit; when this has elapsed uselessly, the betrothed woman will be free; nevertheless he will not coerce him to the nuptials by censures, according to the new discipline, as was said above, n. 835, (b).

n. 847.

(C) He who without just cause withdraws from espousals, or by his own fault furnishes a cause for withdrawing, is held to repair the damage thence brought upon the other: whether positive, namely the expenses made in view of the future marriage; or negative, from the fact that, for example, the betrothed woman cannot so easily find another man.

n. 848.

2° As to the visits of the betrothed.¹ Pastors and confessors ought to take care that the visits of the betrothed and of those in love not become a proximate occasion of sin. Visits of this kind are not per se illicit; for no one is held to marry an unknown person, but can and generally ought for some time to try what character, what morals, and what qualities he or she is endowed with; otherwise, once marriage has been entered, dissensions, quarrels, and divorces could arise. But since those frequent visits and conversations easily are an occasion of sins, whether internal or external, because of the innate frailty of man, certain cautions are to be suggested to penitents.

¹ Sanchez, lib. IX, disp. 46; St. Alphonsus, n. 452, and Praxis, n. 65; Konings, n. 1454; Aertnys, l. VI, n. 340-344; Ciolli, I, n. 95; Berardi, De occasionariis, n. 244-261; St. Francis de Sales, Introduction, IIIrd Part, ch. 17-22; Wood-Allen, What a Young Woman ought to know, Philadelphia, 1898, p. 247-257.

(a) Visits of this kind, especially frequent ones, are licit only for those who can and wish to enter marriage within a reasonable time, namely within a year; for since they are made in view of marriage, and are not without danger, they cannot be permitted unless there is a founded hope of celebrating the nuptials shortly.

Hence generally they are not licit when they take place between persons wholly unequal, since there is no hope of marriage; or between those who can marry only after a long time; or when already from the beginning the young man solicits the girl to sin, because he seems to be impelled by lust rather than by the hope of an honorable marriage.

(b) Let the visits not be too frequent or too prolonged; especially let not a man alone with a woman alone remain for a long time, in places removed from the sight of others, at night: for such a manner of acting, as experience proves, often excites lust, induces excessive familiarities, stimulates depraved motions of the flesh, and also foul thoughts and desires. - Hence, if at some time they are alone together, let no more signs of benevolence be shown than are usually offered before parents.

Wherefore parents themselves are to be admonished not to leave the betrothed for a long time; and deservedly on this matter Ballerini says:¹ "Therefore with parents and especially with mothers one must deal most severely, and the grave obligation of this watchful custody and caution must be urged; to this there ought to impel not only conscience, but also the fear lest daughters, once corrupted, dishonored in the paternal home, grow old."

¹ Gury-Ballerini, n. 413, note near the end.

n. 849.

(c) Embraces and kisses had as a sign of benevolence, in an honorable manner, according to the custom of the country, for conciliating and fostering mutual love in order to marriage, are per se licit; for the end is honorable, and besides these are honorable signs of love.

But pressed kisses and kisses rather often repeated are not without danger; and immodest touches are not more licit for the betrothed than for the unmarried. Therefore concerning this, younger persons are to be cautiously admonished, especially girls, who because of the innate sense of modesty more easily shrink from these familiarities, that they carefully ward off whatever passes beyond the limits of decency; and all the more because they are shortly despised by their betrothed if they show themselves too easy in this matter.

(d) In order that these dangers may be removed more efficaciously, the betrothed are to be gently induced to the frequent reception of the sacraments: for strengthened by sacramental grace and the admonitions of the confessor, they will more easily flee the danger of sinning; and if, because of human frailty, they shall have sinned, they will immediately rise, and by using the means which a wise confessor will suggest, they will avoid worse delicts.

Koch–Preuss

Antony Koch; adapted and edited by Arthur Preuss — 11 passages

Vol. V, Pt. I, Ch. V, Sect. 10, B. Restitution in Particular, Article 2: The Duty of Restitution Arising From Broken Matrimonial Engagements

Under the new Code of Canon Law a promise of marriage, made by one party or by both, is valid in the court of conscience as well as in the external forum only if made in writing and signed by the parties themselves and by the parish priest, the Ordinary of the diocese, or at least two witnesses.¹

¹ C. I. C., can. 1017, §1.

Such a promise (sponsalia), if mutual, imposes on both parties the grave obligation of mutual fidelity and eventual marriage. The time for the latter is left to their own prudent judgment, but it should not be unreasonably protracted.²

² P. Chas. Augustine, O. S. B., A Commentary on the New Code of Canon Law, Vol. V, p. 43, St. Louis 1920.

If one of the betrothed parties has carnal intercourse with a third person during the engagement, this act, according to some moralists, involves a sin against justice and therefore entails the duty of restitution. However, not a few contradict this statement.³

³ Ibid.

§ 3 of Canon 1017 provides that from a promise of marriage, even though it be canonically valid and no just reason excuses, no action is admissible to compel the celebration of marriage, but an action to recover damages is permitted. This means that if actual damage was done, e. g., if the bride became pregnant, or if expensive preparations were made for the marriage, the party guilty of the breach of promise is liable for an amount sufficient to cover the damage inflicted or the expenses incurred.⁴

⁴ Ibid., p. 44.

These effects follow only such betrothals as are made in the form prescribed by the Code. “No other form of engagement, no matter how pompously celebrated, produces any of these effects, either before the tribunal of the ecclesiastical judge or in the court of conscience. Hence confessors have no right to oblige anyone to any restitution arising from a broken informal engagement, though it goes without saying that a young man who has injured a woman’s reputation by undue familiarity is bound in conscience to make restitution, or if no remedy can heal the damage, marry her. This obligation arises not from the betrothal but from the natural law.”⁵

⁵ Ibid., pp. 44 sq.

A matrimonial engagement may be justly cancelled for valid personal reasons, for instance, (a) if one of the parties absents himself from the other for a long time without giving notice; (b) if the moral character of one of the parties has considerably deteriorated, e. g., if the man has become a spendthrift or a roué, or has to face an accusation in a criminal court; (c) if a notable physical or mental change has taken place in either or both of the parties, such as mental derangement; (d) if a change of fortune or social condition has occurred on one side. This would be a reason for breaking the engagement by either, but an indemnity should be paid where an engagement is broken on account of an unexpected social or financial rise. Finally, (e) family reasons may render the dissolution of an engagement advisable, e. g., if serious enmity, hatred, dissension, or aversion are apt to result from the contemplated marriage, or there is strong parental opposition and danger of being disinherited.⁶

⁶ Ibid., pp. 48 sq.

Justice obliges each party to a marriage engagement to acquaint the other with any defects which would probably prove very injurious in case the marriage took place, for instance, pregnancy, contagious disease, etc.⁷

⁷ Ibid., p. 49.

He who breaks a marriage engagement contracted in canonical form, or conceals a valid reason militating against the marriage, or creates such through his own fault, is bound to repair the injury thereby inflicted upon the innocent party.

Full reparation of such an injury comprises both positive and negative indemnification. The former consists in paying the expenses incurred in preparing for the contemplated marriage, the latter in repairing any damage arising to the woman, e. g., because of pregnancy or inability to find another husband. If the bride withdraws from the engagement, it is ordinarily sufficient that the groom be indemnified for any positive losses he may have sustained, because a man can nearly always find another partner. If the groom withdraws, he will in many cases be able to make full reparation of the damage done to the bride by bestowing a dowry upon her.⁸

⁸ H. Noldin, S. J., Summa Theol. Mor., Vol. III, p. 606.

Even when there is no canonically binding engagement, the betrayed party has a claim to indemnification for the damage sustained. If the woman has been seduced to a gross sin of unchastity under promise of marriage, and was not able to perceive the fraudulent character of the promise, the seducer is in justice bound to marry her, and if he cannot do so, must repair the damage in such a way that she can marry another.⁹ wholly grave reasons against the marriage are present. . . . But other reparation is not thereby excluded merely because the obligation or ability to enter marriage is absent.”

⁹ St. Thomas, Summa Theol., 3a, Suppl., qu. 46, art. 2, ad 4.—St. Alphonsus, Theol. Mor., l. III, n. 642 sqq. (ed. Gaudé, II, 119 sqq.).—Gury, Comp. Theol. Mor., Vol. I, n. 700: “If, however, the girl had become pregnant through fornication, the seducer should be pressed to marry her, unless too great a disparity between the condition of the two intervened or some other very grave disadvantage stood in the way.”—Lehmkuhl, Theol. Mor., Vol. I, n. 997: “If a girl has been induced to sin under a promise of marriage, whether genuine or feigned, the very common doctrine holds that the young man is obliged to marry the girl, not only when she has become pregnant, but even if she has not conceived; otherwise there is an unjust deception, which is repaired only by entering into marriage. Yet this obligation ceases if

Readings.—Chas. Augustine, O. S. B., A Commentary on the New Code of Canon Law, Vol. III, pp. 36 sqq.—H. Noldin, S. J., Summa Theol. Mor., Vol. III, 12th ed., pp. 597 sqq.—Sporer-Bierbaum, Theol. Mor., Vol. III, 2nd ed., 858 sqq.—F. A. Göpfert, Moraltheologie, Vol. II, 7th ed., pp. 306 sqq.

Vermeersch, On Chastity

Arthur Vermeersch, S.J. — 36 passages

Vermeersch, On Chastity, Part Two: Casuistry, Section Two: On the Mutual Familiar Intercourse of Those Betrothed for the Future

n. 290.

Who are to be understood as betrothed persons.

290. - We call those persons betrothed (for the future) who, whether from a betrothal agreement properly so called or from the equivalent introduction of one into the house of the other, have a certain and mutual hope of marriage.

n. ¶1531.

Sanchez ¹ indeed seems to consider only those betrothed persons between whom betrothals for the future have been contracted absolutely. But many theologians who treat what is lawful and unlawful between betrothed persons are not accustomed to define accurately whom they address by the name of betrothed persons. Yet all persons who have attained a certain hope of marriage, whether they are bound by a formal agreement or are content with a mutual firm resolution, seem to be situated in a similar condition and are commonly called betrothed persons (fiancés); so that the rules to be handed down seem to apply to both.

¹ De matrimonio, book 9, disputation 46, no. 47.

n. ¶1532.

Nevertheless, a prudent application of these rules demands that, even among those who are formally betrothed, the distance by which they are separated from marriage not be neglected; but those between whom marriage negotiations have begun are already to be regarded as approaching the condition of betrothed persons.

n. 291.

The usefulness of betrothals.

291. - Now it is conducive to the mutual happiness of spouses that, before they contract an indissoluble covenant, they should be able to make a mutual trial of qualities, affections, and inclinations; or rather, for thus we will reply more according to what commonly happens, that if through mutual conversation they learn that they had falsely judged one another's character and inclinations to be such as promise a happy and fruitful marriage, an honorable manner of renouncing the nuptials should remain.

n. ¶1533.

But for the dignity of conjugal life, and especially for the honor to be rendered to the wife, it is expedient that mutual esteem and a love nobler and firmer than that which arises from carnal concupiscence should found the nuptial covenant. This love, as we saw (no. 178), can sometimes become a protection of an inviolate life for a young person.

n. ¶1534.

Which demonstrations of love are honorable.

Moreover, love inclines toward external signs and is itself promoted by them. Wherefore, "embraces and kisses had between those betrothed for the future, as a sign of benevolence and for acquiring and fostering mutual love in order to contract marriage, are altogether lawful because the end is honorable." (Sanchez, De matrimonio, book 9, disputation 46, no. 50. Cf. also no. 53.)

n. 292.

Immodest demonstrations are rejected.

292. - Immodest signs by means of touches, less honorable looks, etc., are in no way lawful for those betrothed for the future; indeed, because of the danger of a graver abuse and for the very happiness of the future marriage, they are more strongly to be avoided and restrained from the beginning. For no less than others who are not married, betrothed persons must abstain from carnal commerce, of which these things are the beginnings; but they rather place the happiness and dignity of marriage in danger than assist them. For with what reverence, civility, and moderation will a betrothed man who acts insolently toward a girl not yet his own conduct himself toward a wife subject to him? And the more carnal lust is fostered before the nuptials, the less they will be joined on account of a nobler affection. Cf. Sanchez, De matrimonio, book 9, disputation 46, no. 51.

n. 293.

What enjoyment may be permitted.

293. - Sensible enjoyment taken from honorable demonstrations seems lawful. For the rule of St. Thomas recurs: the pleasure of a good operation is good.

n. ¶1535.

But can betrothed persons seek or admit by consent a pleasure not only more generally sensible ², but also venereal, which easily accompanies or follows the former? With the danger of pollution or of consent to it excluded, Sanchez ³, with Cajetan ⁴, Navarre ⁵, and certain others, seems to judge that this is not gravely blameworthy.

² Cf. no. 24.

³ Nevertheless, he himself does not explain very perspicuously what he understands by the name of sensible pleasure not gravely prohibited to betrothed persons, so that his meaning is doubtful.

⁴ Summula, s.v. "Betrothals"; and on II-II, question 154, article 4, in the response to objection 2, at the end.

⁵ Manuale, chapter 14, no. 18; and chapter 16, no. 12, at the end.

n. ¶1536.

The more benign opinion of many.

For Sanchez has this: "Betrothals excuse from mortal sin this pleasure, which is a beginning of copulation and which in altogether unattached persons would be a mortal fault ⁶." And afterward: "Nevertheless, it will be venial, as idle and as lacking necessity and piety ⁷." But Cajetan, treating the same kisses which he declares to be mortal in unattached persons, and distinguishing them from kisses and embraces which he pronounces plainly lawful as signs of benevolence and familiarity between those betrothed for the future, judges those kisses between those betrothed for the future, just as between spouses of the present, to be only venial, and for this reason: because a betrothal is the beginning of marriage. Finally, Navarre, loc. cit., adheres to Cajetan; and he permits to betrothed persons what he forbids to others, that is, to enjoy the pleasure which arises from kisses, without employing any distinction.

⁶ De matrimonio, disputation 47, no. 6.

⁷ [No corresponding footnote is printed in the source.]

n. ¶1537.

It is rejected.

But today, with most authors, this is more rightly rejected. For betrothed persons, as far as copulation is concerned, differ in nothing from persons who are altogether unattached. Consequently, the beginning of copulation, or of a prohibited thing, is prohibited to them no less than to the latter. No handing over of bodies has been made; therefore no use of bodies is lawful; therefore no pleasure which pertains to imperfect use can be excused from grave sin.

n. ¶1538.

For the fact that a special pleasure of venereal sensation also easily arises from an honorable kiss flows from the rebellion of the flesh because of the affinity of the things; but no venereal pleasure pertains of itself to an honorable kiss, which proceeds from an affection nobler than venereal lust. Wherefore this does not hold here: "The pleasure of a good work is good." Rather, it is something disordered and prohibited equally to betrothed and unattached persons. Thus the chief argument which the adversaries used is snatched away from them.

n. ¶1539.

Nor can they say: betrothal is the beginning of marriage; therefore the beginning of copulation is permitted to them. For it is a beginning not properly so called, which would give all the rights of marriage in an inchoate manner, but one improperly so called, or a preparation through a union of souls, not of bodies. Moreover, as St. Alphonsus admonishes ⁸, betrothal is a promise. But a promise to hand over a thing does not yet permit the use of the thing.

⁸ Book 6, no. 854.

n. 294.

Kisses given for the sake of pleasure.

294. - Those who give these honorable kisses or engage in conversations in order to take pleasure (not venereal pleasure), with the danger of consent to mortal sin excluded, sin venially, not indeed because of the end itself, taken as such, but because of the danger which is not excused by the honorable end ⁹. But they must resist the carnal movement when it arises and positively renounce it. Wherefore, they are to be dissuaded from seeking kisses expressly and deliberately on account of sensible pleasure. Cf. Lessius, book 4, chapter 3, nos. 58 and 59.

⁹ Sanchez, De matrimonio, book 9, disputation 46, no. 50.

n. 295.

Counsels to be given to betrothed persons.

295. - Since betrothed persons are very prone to excesses, they are to be admonished that they engage in tender conversations temperately and rather sparingly, and that in their demonstrations they not exceed the custom of upright persons in their country. Above all, let them beware of more frequent kisses, kisses given on the mouth rather than on the cheeks, and lingering embraces: these are accustomed to move the flesh gravely.

n. ¶1540.

Nevertheless, some excess is not immediately to be condemned as mortal.

n. ¶1541.

But betrothed persons are formally to repudiate venereal pleasure. Then, if any involuntary pleasure arises, they will be excused by a just cause. For a testimony of love is a just cause for them.

n. ¶1542.

Therefore, if this is reasonable, it gives place to the principle of double effect. Nevertheless, a betrothed person who senses a more imminent pollution in these demonstrations ought, in order to act sincerely, then gently to interrupt the demonstration, if he can conveniently do so.

n. ¶1543.

The betrothed woman especially is to be exhorted not to permit anything which is reserved to spouses. This is wicked and very dangerous to her present reputation: once she has permitted it, even before the time she is already so placed in the power of the man that she no longer has the option of breaking the betrothal, while she has rendered the nuptials less lovable to the man who, outside the nuptials, and consequently without their burden, has obtained what he could ask only in the conjugal state. And even if he remains constant, it is harmful to the happiness of the marriage that the betrothed woman should in some manner satiate the betrothed man before the marriage has been celebrated. For provident God wisely established that the new burdens of marriage should be relieved by new joys.

n. ¶1544.

Let her also know that more things can be performed by her without carnal commotion more easily than by a young man. Wherefore, let her not admit too many signs of love, much less solicit them. Nor should she in any way fear on that account for the perseverance of the betrothed man. On the contrary, while she provides for her dignity, she increases his esteem; but disgust is generated by excessive familiarity. This is especially to be noted where the nuptials must be deferred for a long time.

n. ¶1545.

The counsel of moderation, therefore, will be opportune in every respect, provided that they are not regarded as uncivil or austere. Let this brief rule be established: let them perform no more, even if it is permitted to them, than what can be performed in this matter before others, for example, their parents.

n. ¶1546.

But a moral excuse will more easily be present in the one rendering than in the one requesting.

n. ¶1547.

Wherefore, a betrothed woman who admits a kiss of her betrothed which, in its external appearance, is honorable and customary does not sin of herself, although she suspects or holds for certain a less good affection or intention. For she consents only to the exterior act, which is good; this does not remove the guilt of the other's evil affection or intention, so that her slight cooperation has an easy excuse from the circumstances. Cf. Cajetan, on II-II, question 154, article 4, at the end.

n. ¶1548.

Nevertheless, a betrothed woman who by a gentle admonition of displeasure leads the betrothed man toward better things will be greatly praised. And she is to be exhorted to act thus when she can.

n. 296.

The grave obligation of parents.

296. - Since betrothed persons are accustomed to be sufficiently exposed to temptations to evil, a grave sin is committed by parents who have no care for the familiar intercourse of the betrothed persons or who imprudently permit them to be alone ¹⁰. A scruple, therefore, is to be instilled in them.

¹⁰ Sanchez, De matrimonio, book 9, disputation 46, no. 52.

n. 297.

Excessive rigor must also be avoided.

297. - St. Alphonsus ¹¹, led by the danger of consent to pollution or to venereal movement, seems to have written severely concerning this argument.

¹¹ Book 6, no. 854.

n. ¶1549.

He merely tolerates kisses and embraces where the custom prevails, even if they are done in passing; nor does he regard as practically probable the opinion which grants sensible pleasure (not carnal pleasure) to betrothed persons.

n. ¶1550.

These are indeed holy admonitions. Nevertheless, care must also be taken lest upright betrothed persons be tormented by scruples and, because of the excessive rigor of a counselor, begin to have a constrained, fearful, and impeded manner of acting which renders them ridiculous, not without danger to their own religion, and more certainly turns and deters others who are less pious from piety and religion. Let us preach conduct that is sincerely honorable but not timid. It is greatly to be desired that the manner of acting of the good should be as easy and human as it is honorable and dignified.

n. 298.

The mutual obligation of fidelity.

298. - True betrothals or promises having been made, betrothed persons are bound by a certain mutual obligation to abstain from every other carnal commerce, so that those who sin lustfully with others are to be regarded as unjust in some manner. Common sense itself teaches this. Wherefore, even those parents who are accustomed to indulge many sins in young persons sharply censure the sins of a betrothed person with outsiders, so that there seems to them to be a cause for breaking the betrothal. Indeed, most theologians think that the fornication of a betrothed woman with another, because in the common estimation it makes the nuptials notably less desirable, adds to the sin a grave species to be accused in confession. Nevertheless, the matter is disputed, so that the confessor is not compelled to be solicitous about that accusation. Yet he will be able usefully to inculcate upon them their mutual right and duty. Cf. Ballerini-Palmieri, vol. 6, treatise 10, nos. 75-82; and Palmieri, in the theological part of the same work, vol. 2, no. 1007.

n. 299.

What if the betrothed frequently sin?

299. - You will ask how one must act with betrothed persons who frequently fall into mortal sins.

n. ¶1551.

We suppose that there is question of those who would avoid these sins if they were free from the betrothal.

n. ¶1552.

Therefore, if the marriage is sufficiently near, the occasion is regularly to be regarded as necessary. By suitable means, caution, and the use of the sacraments, it is to be converted into a remote occasion.

n. ¶1553.

But if the marriage is remotely distant and cannot take place soon, the case becomes very complicated.

n. ¶1554.

Even then the occasion must not rarely be regarded as more or less necessary, either because the danger does not arise from the special circumstances of this familiar intercourse, so that, if it were removed, another equally dangerous occasion would then succeed it, or because the opportunity of marriage is of singular value and will with difficulty be present again. Where a rationale of this kind is present, one must act in almost the same manner as in the former hypothesis.

n. ¶1555.

If an excuse of this kind is lacking, a proximate occasion which cannot easily be converted into a remote one is of itself to be abandoned.

n. ¶1556.

But if, as not rarely happens, it cannot be obtained that the betrothed persons either marry soon or break off or suspend their commerce, let the visits at least become less frequent, with cautions employed; and, especially from the girls, let assiduous access to the sacraments and the use of a stable confessor be required.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 1 passage

Vol. III, Tomus IV: On Chastity and …, Treatise II: On the Duties and Chastity of Betrothed Persons De Futuro

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Chapter I: On The Preparation Of Matrimony Or On Betrothals · Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. I, Article I: On The Nature Of Betrothals · Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. I, Article II: On The Effects And On The Obligation Of Betrothals · Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. I, Article III: On The Dissolution Of Betrothals

Usefulness. Moral doubts by no means slight are begotten by matrimonial promises; moreover, in directing betrothed persons the confessor not rarely hesitates, doubtful of counsel. These things reveal the usefulness of the present treatment.

Order of speaking. The Treatise consists of two articles. In the former, there will be treatment of matrimonial promises themselves; in the latter, of the chastity or intercourse of betrothed persons.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 1 passage

Vol. III, Pt. II, Tr. X, Ch. VI, That Is, On Betrothals, The Examination Of The Par…, And The Banns, Article I. On Betrothals

n. ¶96.

We divide this article into five paragraphs: 1. on the essence of betrothals; 2. on the conditions required for valid betrothals; 3. on the celebration of betrothals; 4. on their effects; 5. on their dissolution.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 13 passages

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Chapter I: On The Preparation Of Matrimony Or On Betrothals

n. ¶1949.

BETROTHALS are commonly premised to matrimony chiefly for three reasons, namely: 1. that matrimony can be entered more maturely; 2. that the spouses may dispose themselves more aptly and perfectly for the grace of the Sacrament; 3. that it can be known more safely whether some impediment is present.

It comes to be said: 1. of the nature of betrothals; 2. of their effects and obligation; 3. of their dissolution.

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. I, Article I: On The Nature Of Betrothals

n. ¶1950.

DEFINITION. "Betrothals are a voluntary, deliberate, and mutual promise, expressed by a sensible sign, of future matrimony between persons capable by law."³

It is said 1. A PROMISE, that is, not only a simple desire and purpose, although externally manifested, but an act of the will, by which someone sincerely, and with internal consent of the mind, obliges himself to future matrimony. - Hence he is not obliged who promises without the mind of contracting, or without the mind of obliging himself, although he knows the obligation. The reason is, because since obligation arises from one's own will, when the act of the will is lacking, the obligation also is lacking; and this, although the promise is confirmed by oath; for an oath follows the nature of the promise (cf. n. 615). - Therefore one promising fictitiously "is indeed bound by reason of deception to repair damages, but he is not bound by reason of the promise to put true consent and contract matrimony."⁴ But it must be said otherwise if defloration intervened; because then the deflowerer is altogether bound to matrimony, since he cannot repair the damage by another way sufficiently equivalently,⁵ as was said n. 959.

It is said 2. VOLUNTARY AND DELIBERATE, i.e., made with that knowledge, advertence, and liberty which is required for mortal sin; namely, that the one promising attend both to what he is doing and to what he is binding himself, and add consent with due liberty. For to induce a grave obligation, such as is the obligation of betrothals, full deliberation and free consent are required.⁶

Hence Betrothals are invalid: 1. Contracted by those who either habitually, or at least while they contract, do not have perfect USE OF REASON, such as children, the insane, the drunk, the mentally seized. But disturbance of reason arising from concupiscence commonly does not impede the validity of betrothals, because, although it is opposed to prudence and counsel, nevertheless it does not exclude deliberation of mind. 2. Contracted FROM ERROR concerning the substance, or concerning a substantial condition, e.g., if someone should promise expressly under such a particular condition; but if the error concerns an accidental condition, the betrothals are valid, but sometimes they can be dissolved, according to what is to be said below (n. 1960).⁷ - 3. Contracted THROUGH FEAR unjust, grave, and inflicted from without; for betrothals follow the nature of matrimony, which contracted by fear is certainly null. - It was said 1) through unjust fear; because if it were just, they would be valid no less than matrimony itself; 2) through grave fear; for if it were light, likewise they would be valid, according to the more probable and more common opinion, because he is judged to contract spontaneously who, when he could repel light fear, does not repel it: nevertheless in this case betrothals can be rescinded by sentence of the judge, on account of the greatest liberty which they require; 3) inflicted from without; for if fear arose from within, e.g., if someone promised in order to decline payment of debt, the promise would be valid.⁸

It is said 3. MUTUAL, i.e., made and accepted in turn by a man and a woman: whence, a promise of matrimony, even confirmed by oath, does not oblige as long as a return promise has not been made by the other party. But the acceptance of the promise and the return promise must be made immediately, and therefore, if the return promise has not been made, the one promising is not bound; nor can the promisee accept the promise alone and deliberate concerning making the return promise; because the promise is judged to have been made under the condition: if the promisee accepts it and returns the promise immediately; unless the contrary is expressly signified, e.g., if the one promising grants delay for acceptance and return promise, or at least for the return promise. If the promisee accepts a gratuitous and liberal promise, and does not yet return the promise, betrothals are not had; but only a promise which obliges, only under light fault, by reason of fidelity, unless the one promising wished to oblige himself under grave fault. If the promisee is silent while the promise is made, she is indeed judged to accept, because it is a question of a favor; nevertheless, her silence does not suffice for a return promise, because a return promise is a burden, and in onerous matters the axiom does not avail: "He who is silent seems to consent." But commonly a promise of matrimony is not judged to have been made gratis and liberally, but under the condition: if the other party also binds herself in turn. And this intention, in doubt, must be presumed.⁹

It is said 4. EXPRESSED BY A SENSIBLE SIGN; because a contract among men is made only by an external sign. - Hence, in betrothals, consent must be expressed:

a) Either BY WORDS, which, if they are doubtful, are to be interpreted according to the obvious sense and the custom of places, or also from the intention of the contracting parties. Certain words are these: I promise matrimony to you..., under my faith I will marry you, etc. But these are null, or very doubtful: "You will be mine..., to you I promise love, fidelity, etc...." He who should say: "I will marry no other than you," would indeed not be bound to marry her, but to marry no other, unless from the circumstances it is gathered that such a one truly wished to contract betrothals.¹⁰

b) Or BY SIGNS, e.g., by the extension of the right hand, namely when the circumstances are such that there can be no doubt concerning the value of the sign. But if there is doubt concerning this, liberty is to be favored;¹¹ nevertheless if copulation freely follows (not if it preceded), one must conclude in favor of betrothals. The mere handing over and acceptance of a ring is not a sufficient sign, unless such a custom is given somewhere. Betrothals can also, like matrimony itself, be contracted through a procurator, or through letters (cf. n. 1973).

c) Or BY THE WORK OF PARENTS, namely if a father or mother promised for a present and silent son or daughter: as is had from the law, saying thus: "Moreover, from betrothals, which parents commonly contract for their children whether pubescent or impubescent, the children themselves, if they expressly consented, or tacitly, or were present and did not contradict, are obliged."¹² - Yet it must be adverted: 1. that this is valid for the external forum; for, for the internal forum, the son is not bound, if he does not assent internally, or if he only has himself negatively: because positive consent is required for contracting some obligation; 2. that this proceeds only in the case in which the parents themselves promise; but not others, although they are guardians or curators, unless perhaps somewhere, as among the Indians, a custom is in force that consent is expressed through others; 3. that betrothals contracted by parents for an absent son are valid, if he, made more certain concerning the matter, ratifies them either expressly or tacitly.¹³

It is said 5. OF FUTURE MATRIMONY, namely to be entered in its own time. Therefore consent expressed through words concerning the present (since, the law standing in the way, it is not valid for matrimony) induces no obligation. Except the consent of impubescents, among whom words concerning the present have the force of betrothals: for in their case the rule is admitted, that an act which is not valid in the mode in which it is made, is nevertheless valid in the mode in which it could be made.¹⁴

It is said 6. BETWEEN PERSONS CAPABLE, namely between such as at some time are able validly and licitly to enter matrimony, since the promise of an illicit, or impossible, thing is of itself void. But if betrothals are contracted while some impediment stands in the way, it is to be distinguished thus: 1. If the impediment is perpetual and of such nature that it can be removed by no reason, the betrothals are invalid; 2. if it is temporary, e.g., a temporary vow of chastity, or if it can be removed by the industry of the contracting parties, e.g., if the non-Catholic party promises conversion, they are valid, and therefore matrimony, when now it can be contracted licitly, is to be contracted.¹⁵

n. ¶1951.

Questions. Q. 1. Whether children under parental power need the CONSENT OF PARENTS for contracting betrothals?

Resp. 1. For contracting validly their consent is not required, since this is prescribed by no law. - Nevertheless, if the parents justly contradict, e.g., on account of dishonor or scandal of the family to arise from such a marriage, the son by not obeying and by contracting betrothals would sin gravely; and therefore the betrothals, although confirmed by oath, would not oblige, because the promise would be concerning an illicit thing, and an oath cannot be the bond of iniquity.

Resp. 2. For contracting licitly the consent of parents is ordinarily required. For the reverence by which they are to be pursued demands for itself that, in a matter of such moment, their counsel be sought. Therefore children, contracting while parents are ignorant or unwilling, sin more or less gravely, according to the diversity of circumstances. - It is said consent is ordinarily required; for a son is not bound to obey parents, if they contradict irrationally, e.g., if they prohibit marriage, or if they prescribe it with an unworthy person.¹⁶ Consent reasonably presumed also suffices, e.g., if the father is so distant that he cannot conveniently be made more certain concerning the betrothals to be contracted, which are judged to have been going to have his approval.

Q. 2. Whether CLANDESTINE betrothals are valid?

Resp. Affirm.; for "the S. C. OF THE COUNCIL has often declared that the Council prescribed no form for contracting betrothals through words concerning the future, and therefore that they can be contracted in that mode in which they could be before the Council itself."¹⁷ Now, before Trent betrothals of this sort were certainly valid, therefore they are also valid at present. - Therefore generally no determined form is required for contracting them, although it is to be advised that they never be contracted without a witness, so that thus, when circumstances demand it, they can also be proved in the external forum.¹⁸ We said generally; for in Spain they are not valid if they are contracted without a public writing, on account of the Caroline Pragmatic, which, by legitimate customary law, has obtained for itself the authority of canonical discipline and the force of an ecclesiastical sanction. Thus from the decision of the S. C. C., January 31, 1880.¹⁹

Q. 3. Whether betrothals contracted between the ABDUCTED WOMAN and the ABDUCTOR are valid, at that time at which the woman was in the power of the abductor?

Resp. Affirm., according to the more probable opinion, provided that fear did not intervene, nor another impediment. For the disposition of law, by which matrimony is invalidated as long as the abducted woman remains under the power of the abductor, is not valid for betrothals, which, as rescindable, require lesser liberty.²⁰

Q. 4. What concerning betrothals entered UNDER CONDITION?

Resp. That betrothals, like any other contract, can be made under condition is certain. Nevertheless, concerning the diverse conditions which can be added, one must speak diversely, according to their variety, and indeed: 1. If the condition is concerning the present, the betrothals are immediately either valid or invalid, according as the condition is verified or is not verified. 2. If the condition is concerning the impossible, the betrothals are null, because the addition of an impossible condition naturally denotes dissent rather than consent, nor is there had the favor of positive law, as happens for matrimony. 3. If the condition is concerning a future necessary thing, it is held for completed, and therefore the betrothals are immediately valid and obtain their effects. 4. If the condition is concerning a future contingent and honorable thing, the betrothals become absolute when the condition has been fulfilled, and new consent is not required; for the consent which was given from the beginning suffices, provided it has remained. But from betrothals of this sort there arises an obligation of attending to the fulfillment of the condition; and indeed this obligation presses so much that any later betrothals, the prior ones not yet dissolved, are rendered invalid. The added condition is judged to have been renounced if the spouses, while it is still pending, have come together in venereal congress.¹ 5. If the condition concerning a future contingent thing is dishonorable, there does not arise from it an obligation of awaiting the event, since it induces to sin; but indeed, when the condition has been fulfilled, the betrothals are valid² (cf. n. 1057, 5).

Q. 5. Whether, some impediment standing in the way, betrothals contracted under the condition, IF THE POPE SHALL HAVE DISPENSED, are valid?

Resp. Dist. 1. If the impediment is such that the Pope never or rarely is accustomed to dispense in it, or if a just cause for obtaining the dispensation is lacking, the betrothals are not valid; because they are concerning an impossible thing. 2. But if it is a question of an impediment in which the Pontiff can and is accustomed to dispense, and at the same time sufficient reasons are had for seeking and obtaining the dispensation, the betrothals are valid, as we said concerning betrothals entered under a possible and honorable condition. Whence, although they are not absolute, nevertheless they induce an absolute obligation of seeking the dispensation and awaiting it; but when this has been obtained and signified to the parties, the betrothals are confirmed without new consent, provided the consent furnished from the beginning still perseveres.

But if the other party, before the verification of the condition, should enter new betrothals, these would be invalid, since it would be a promise concerning an unjust thing, which does not oblige. Thus the more common and truer opinion.³ - Nor do the laws and decisions of the S. C. C. which the opposite opinion alleges seem to stand in the way of this opinion; because, as will easily be clear to the reader, they are to be understood of the case in which either the Pope is not accustomed to dispense, or a cause for dispensing is not present, or other special circumstances of things occur, which weaken that promise.⁴

Note. - Very often, promises of future matrimony, which are customarily made among adolescents mutually loving each other, are not true betrothals, since they bear before themselves the conditions of a purpose rather than of an onerous contract. And thus it is especially in those regions where it is placed in custom that betrothals be entered with some solemnity. In practice, let attention be given especially to the intention of those promising.

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. I, Article II: On The Effects And On The Obligation Of Betrothals

n. ¶1952.

Principles. I. Betrothals OBLIGE under grave fault and from justice, to contracting matrimony either at the predefined time, or as soon as the other party shall reasonably have sought it. It is established from the nature of an onerous contract, which in a grave matter obliges under grave fault and from justice (cf. n. 1056 sq.). "But it must be noted, that if the other party from forgetfulness, fear, shame, or similar cause did not seek it, as chiefly happens in women: then the bridegroom is bound of himself, without petition, to contract matrimony, when he can conveniently do so. Conversely, if the other party, when she can conveniently seek, is silent, then she seems to consent to the delay.⁵ One receding can be compelled to matrimony, even by a judge through censures: which nevertheless is rarely expedient, on account of danger of an unhappy outcome.⁶" Recall what was said nn. 959-960.

n. ¶1953.

II. Betrothals induce a PROHIBITING impediment of matrimony with any other person, unless the prior betrothals have been legitimately dissolved. But later betrothals, although sworn, are altogether invalid; for a thing owed to one cannot licitly be handed over to another.⁷

n. ¶1954.

III. Betrothals induce the DIRIMENT impediment called of public honesty, which endures even when the betrothals have been dissolved. Concerning this, more below (nn. 2032-2034).

But whether betrothals sometimes pass over into matrimony, see n. 1972 at the end.

n. ¶1955.

Questions. Q. 1. If the bridegroom, against the fidelity of the prior betrothals, has CONTRACTED NEW ones, and copulation has followed these, with which of the two brides is he bound to contract?

Resp. 1. "If the second bride was conscious of the prior betrothals, matrimony (certainly) must be contracted with the first; because then the second was not deceived, but she herself wished to be deceived. Thus commonly."

Resp. 2. If she was not conscious of the prior betrothals, IT IS CONTROVERTED; but "the more common and more probable opinion says, the bridegroom is bound to contract with the first, even if copulation was present with the second." The reason is, because the promise made to the second was null, as concerning an illicit thing, nor does an injury inflicted on her take away the right of the first. But whether the first ought to yield to her right, lest the other undergo a most grave damage? Some affirm that she is bound from charity; but others, and not improbably, deny this: because the second must impute it to her own crime that she suffers such damage.⁸

Q. 2. What is to be judged concerning BETROTHAL EARNESTS, and also concerning the addition of PENALTIES?

Resp. 1. By the name of EARNESTS come the things which one of the spouses, or each, hands over to the other as a token of the contracted betrothals and as a pledge of entering matrimony.⁹ - The handing over of them is prohibited by no law. But when betrothals have been justly dissolved, they must be restored. But if the other party culpably recedes from the fidelity given, that party not only loses his or her own earnests, but is always bound to restore those accepted, and to repair all damages which arise from this receding.¹⁰

Resp. 2. A CONVENTIONAL PENALTY is an agreement added to betrothals, by which the spouses bind themselves mutually to a penalty, or to a certain sum of money to be paid, if they have not stood by their promises. It differs from an earnest in this, that the latter is actually handed over, and the penalty is promised; and that commonly an earnest is constituted in a small quantity, but a penalty in a greater, since each one is readier to promise than to hand over.¹¹ Now then: 1. The addition of a penalty to be paid by one receding, whether he recedes justly or unjustly, is altogether ILLICIT and INVALID, since such a stipulation injures the liberty of matrimony, and therefore is reproved by law. "And so, in such a case, he who recedes justly is not bound to the payment of the aforesaid penalty, although he had confirmed the promise by oath. And if the penalty has ever been paid, he who exacted it is bound to restore, as the more probable opinion holds; because for him there is no title by which he may retain it for himself, while the law altogether irritates such a promise." 2. But the promise of a penalty to be paid by one receding unjustly, according to the more probable opinion, is LICIT, since it is prohibited neither by natural law nor by positive law. It is not prohibited by natural law, "since it is equitable that he who recedes unjustly be subjected to penalty; but the liberty which is required in matrimony is rational liberty, not irrational; otherwise a judge could never compel spouses to contracting by censures or prison." Nor is it prohibited by positive law; for the disposition of law must be understood of a just receding, but not of an unjust one.¹² But indeed since the opposite opinion is sufficiently probable, one receding unjustly cannot be compelled to the payment of the penalty; but when payment has been made, it is licit for the innocent party to retain the money received.

NB. Concerning the PREPARATION of spouses for matrimony, recall what was said nn. 827 and 1850.

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. I, Article III: On The Dissolution Of Betrothals

n. ¶1956.

Betrothals, which consist in a contract soluble by its nature, are dissolved not only by the death of the other party, as matrimony is, but by various other causes.

Principles. I. Betrothals are dissolved among the pubescent BY MUTUAL CONSENT. - For with no law standing in the way, the parties can mutually remit to each other the reciprocal obligation by which they are held. But the same consent which was required for contracting is required for dissolving: namely voluntary and free consent, such that it is extorted neither by fraud, nor force, nor fear. If this has been given on both sides, the betrothals are immediately dissolved, although they had been confirmed by oath; and this not only validly, but also licitly, if a reasonable cause is present; otherwise it would be at least venial. Thus commonly.¹³

It is said among the pubescent; for as to impubescents there is present a special disposition of law,¹⁴ by which the dissolution of their betrothals is forbidden before they have arrived at the years of puberty, namely lest on account of unstable judgment, they easily and often rashly contract betrothals, and again dissolve them. But once the age of puberty has been reached, either spouse will be able, without waiting for the other, to recede from the betrothals, provided he protests before a judge or witnesses within three days, which begin not indeed from the time puberty is reached, but from the day when knowledge was obtained of the privilege of receding. But if the spouse dissents already before puberty, and perseveres in the manifested dissent, the betrothals are dissolved as soon as he arrives at the years of puberty.¹⁵

But mutual consent of receding is had: either 1. because a change of wills has intervened; or 2. because the betrothals had been entered under some resolutory condition, which was then verified; or 3. because they had been entered with the condition of contracting matrimony at a determined time, which has now elapsed. - But concerning this last cause of receding, some things are to be NOTED.

A term is added to betrothals either to urge the obligation of contracting matrimony, or to end it. "Then it is added to urge, when the parties therefore set a term, so that neither before it can compel the other to fulfill the contract. But then to end, when the term is added so that, when it has elapsed, no obligation remains."¹⁶ Hence, if the term added for ending the obligation has elapsed by the fault of both or of neither, the betrothals are dissolved on both sides; if by the fault of either, the innocent party remains free; but not the other party, who was in cause why the matrimony was not contracted.¹⁷

n. ¶1957.

II. Betrothals are dissolved BY ELECTION of a more perfect state. The reason is, because betrothals are judged to have been entered under the tacit condition: unless a more perfect state is chosen.¹⁸ Wherefore one party can also choose this without the consent of the other.

But concerning this it must be NOTED: 1. Through religious profession or reception of sacred Order the obligation of betrothals is so totally extinguished that it no longer revives.¹⁹

2. Through entrance into Religion, likewise through a vow, and even through a simple purpose, but duly manifested, of entering Religion or receiving sacred Order, the obligation of betrothals is similarly extinguished, but only for the party dismissed. But for the other party, the obligation remains only suspended, until the more perfect state has been immutably entered. Whence, if he recedes from the purpose, the obligation so revives, that he is bound to stand by the betrothals, if the dismissed party demands this.²⁰

3. Through reception of minor Orders, according to the more common and truer opinion, betrothals are not dissolved; "because in truth the state of minor Orders is not incompossible with matrimony, since someone can well become a married cleric."²¹ Nevertheless, if the reception is made with the will of progressing further, the bride is freed; indeed it can happen that she is freed on account of only the minor Orders received by the bridegroom, namely if she were so averse to matrimony with a cleric that, the change of state having been foreseen, she never would have contracted.

4. Through a vow of chastity made by one party, the other party is released from every obligation; because the one vowing chastity yields his right. But the obligation of the one vowing is not altogether extinguished, but only suspended, as long as he remains bound by his vow. Wherefore, if he afterwards obtains dispensation of the vow, and no other cause of dissolution is present, the betrothals revive.²²

n. ¶1958.

III. Betrothals are dissolved THROUGH ANY IMPEDIMENT WHATEVER by which the promised matrimony is rendered ILLICIT or INVALID.¹

For no obligation to contracting such a matrimony can be given. - Now, besides election of the more perfect state, concerning which we have already treated, FOUR impediments of this sort are commonly enumerated, namely: perpetual impotence, matrimony validly although illicitly contracted, affinity from illicit copulation, and dissent of parents.

1. Through perpetual impotence, which supervenes in either of the spouses, betrothals are altogether dissolved, since the promised matrimony becomes absolutely impossible.

2. Through a valid matrimony contracted by the other party, betrothals are dissolved as to the innocent party. But as to the guilty party, the opinion (St. Alphonsus judging) absolutely more probable teaches that the obligation is not extinguished, if the other party waits; but is only suspended, so that, when the marriage has been dissolved, he is bound to fulfill the prior betrothals. "The reason is, because it is proved by no law that betrothals are altogether irritated through a subsequent marriage: not by positive law, because this is nowhere had; not by natural law, because this only demands that while the marriage endures, the prior obligation does not bind."²

3. Through affinity from illicit copulation (concerning this impediment cf. below n. 2027) betrothals are dissolved on the part of the INNOCENT party, so that he or she is not bound to admit dispensation. But the mere fame of an impediment of this sort suffices, i.e., an opinion among the greater part of the neighborhood. But on the part of the GUILTY party, the more common and more probable opinion holds that the obligation of betrothals is not removed, but only suspended, until the impediment is removed; because it is not equitable that the delinquent derive advantage from his crime. Wherefore, he who placed the impediment is also bound, even setting aside the damage inflicted, to obtain dispensation, if this namely can easily be obtained; "otherwise, if great expenses and long delay would be required for it; because the obligation arising from betrothals presses the spouse to apply only ordinary and easy means, but not difficult and extraordinary means. Except nevertheless, unless damage of defloration or fame had to be repaired; because then he would be bound even to expend a great expense."³

4. Through the dissent of parents betrothals are sometimes dissolved, namely as often as they dissent justly: e.g., because the matrimony would verge to the dishonor of the family, since no one can be obliged to execute an unjust thing. - Indeed, they are dissolved through their unjust dissent, if a grave evil, e.g., disinheritance, were to be feared: "because all betrothals are understood to be contracted under this condition: if such a change does not occur, whence it is grave to contract matrimony. - Except, unless this disinheritance had already been foreseen; because then the one contracting is rightly judged to have yielded to his right."⁴

n. ¶1959.

IV. Betrothals are dissolved on the part of the innocent one, through any act whatever by which the other party is judged to have BROKEN betrothal FIDELITY.⁵ For fidelity must not be kept for one breaking fidelity. - Therefore the innocent party is altogether freed: 1. if the other party contracts new betrothals, although invalid (or civil marriage with another); 2. if he delays the celebration of marriage too much, e.g., for three years, or contrary to the judgment of a prudent man; 3. if he transfers his domicile elsewhere: for such things are opposed to betrothal fidelity.⁶

n. ¶1960.

V. Betrothals are dissolved through a NOTABLE CHANGE which supervenes when they have already been contracted, and which would have deterred from contracting them if it had been foreseen from the beginning. And the same must be said, IF THE STATE OF THINGS is found DIFFERENT from that which had been known. The universal reason is, because, as is handed down in law,⁷ the promise of betrothals is understood to have been made while things remain in the same state; and this, as St. Thomas teaches,⁸ lest conjugal union beget perpetual displeasure between the contracting parties, or obtain an unhappy outcome. But if ignorance of the change or defect was merely concomitant, and therefore not the cause of the contract, the betrothals are not dissolved. - But in doubt whether the defect (if it had been known) would have impeded the betrothals, it is presumed that it would have impeded them, if in reality, i.e., in the judgment of prudent men, it is grave in itself and notable.

Moreover, a notable CHANGE from which betrothals can licitly be dissolved can happen in a THREEFOLD way, namely:

1. In GOODS OF SOUL, e.g., when the spouse is discovered to be a drunkard, gambler, blasphemer, impious, a man harsh and hard in morals or savage; when he has committed an atrocious delict, e.g., homicide, grave theft, has fallen into heresy, etc. For the things which commonly suffice so that a marriage already contracted may be dissolved as to cohabitation, much more suffice so that it not be contracted; "for a guest is cast out more shamefully than he is not admitted."

But concerning supervening FORNICATION, or fornication newly detected, these things are to be noted. - If fornication follows betrothals, it effects two things: it breaks the fidelity given, and renders the party who has polluted himself or herself with it more base; if it preceded the betrothals, it produces only the latter effect. Commonly, this crime affects the bride with much greater baseness than the bridegroom. Wherefore it must be said: 1) on account of ANTECEDENT fornication the bridegroom can dismiss the bride; but not vice versa, unless perhaps the bridegroom has had offspring from another, or unless, on account of the frequency of the crime, he is known to be given over to this vice. - 2) On account of SUBSEQUENT fornication the innocent party (whether the bridegroom or bride) can similarly dismiss the guilty party, on account of betrothal fidelity not preserved. If each, by fornicating, has broken fidelity to the other, there is had compensation of delict, and neither can on that account recede. But the bridegroom (not the bride) can step back by another title, namely from this, that the bride has been rendered notably more base from fornication, and this even if she had been oppressed by force, or induced to consent from most grave fear. Likewise the bride can be dismissed who has permitted herself to be touched immodestly by another; but the bridegroom cannot on account of similar things, unless it can rightly be feared that he will not preserve fidelity to the bride.⁹

2. In GOODS OF BODY, e.g., if grave deformity, blindness, cutting off of a member, habitual and contagious disease supervenes on either party; provided at least a prudent suspicion concerning these is had.

3. In GOODS OF FORTUNE, e.g., if it is discovered that the bride does not have a dowry; if the bridegroom has made a loss of goods, or of the office by which he was sustained; if either tends toward want, or is disinherited by parents: provided at least a prudent suspicion concerning these and similar things is had.

Therefore on account of a notable change of this sort in one party, the other party can recede; but if he does not wish to recede, neither is it licit for the party who has suffered the change to depart, unless perhaps the change would render the burden of matrimony notably more grave.¹⁰

These things concerning a change for the worse. - But if the CHANGE had been made FOR THE BETTER, for example if an abundant inheritance unexpectedly comes to either, the very common opinion teaches that this change precisely in itself is not a sufficient cause why the fortunate party may recede from the betrothals, since that party was not deceived in the condition of the other party. - Nevertheless, if a far better marriage, on account of the change made, is offered, the party who has obtained the change does not seem altogether to be condemned, if, the first betrothals being set aside, he should enter new ones; for just as he would not be bound to stand by the betrothals with great damage to himself, so neither does he seem to be bound with the loss of great gain; for such a loss is equated with grave damage.¹¹

And generally it must be NOTED, that the obligation of betrothals CEASES when there is present a probable fear of an unhappy outcome. If the cause of fearing has arisen by the fault of one party, this party is bound to repair the damage inflicted on the other, e.g., on account of expenses already made.

IT IS ASKED. Whether the party laboring under an OCCULT DEFECT, sufficient for dissolving betrothals, is bound to MANIFEST it before betrothals, or when they have already been contracted, before matrimony?

Resp. Dist. 1. If the defect is pernicious, rendering matrimony odious and damaging to the other, such as a contagious, venereal disease, or infamy from delict, if e.g., the bride is pregnant from intercourse with another, if the bridegroom is burdened by debt: it must altogether be manifested, unless the other party also labors under the same defect. "The reason is, because just as he sins against justice who sells noxious wares to another believing them good, so a fortiori does he who wishes to contract matrimony with a pernicious defect." If therefore he does not wish to manifest the defect, he must abstain from contracting.¹²

2. If the defect does not render the nuptials noxious, but only less desirable, e.g., if the bride is falsely thought to be a virgin, rich, beautiful, it is indeed not licit for the bride to pretend that she is immune from defect, but neither is she bound to manifest it. "The reason is, both because it has already been received by custom, that there is no obligation of manifesting such defects to the other; and because no one is bound to reveal his own defect with his own infamy, if he does not injure the right of another." Thus commonly.¹³

Nevertheless St. Alphonsus adverts that the dissimulation of a defect, although it is not illicit, is not expedient, if it is prudently to be feared that after the marriage has been contracted it may be detected, and become a cause of discords.

n. ¶1961.

VI. Betrothals are dissolved THROUGH PONTIFICAL DISPENSATION. - For although through betrothals a strict right has been made for the other party, nevertheless the Supreme Pontiff can, on account of most grave reasons, prejudice this right. - Dispensation is customarily granted through the S. Congregation of the Council, after information has been received from the Ordinary, who, in this matter, from common law, possesses no authority.¹⁴

It must be noted: 1. The faculty of receding, concerning which we spoke, is to be taken in such a way that either spouse is able to renounce this right; wherefore, if the innocent party, having known his right, nonetheless ratifies the betrothals by words or deeds, and especially by carnal copulation, he cannot recede any more, because he is to be judged to have renounced his right. - 2. If the cause of receding is altogether certain, each can recede by his own right; but if a doubt either of law or of fact intervenes, the cause is to be referred to the ecclesiastical judge, i.e., to the Bishop.¹⁵

N. B. Concerning those things which regard the external forum, see the Canonists.¹⁶

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 9 passages

Vol. II, Treatise on Matrimony, Chapter I. On Betrothals · Vol. II, Treatise on Matrimony, Ch. I, Article I. On the Nature of Betrothals · Vol. II, Treatise on Matrimony, Ch. I, Article II. On the Obligation and Effects of Betrothals · Vol. II, Treatise on Matrimony, Ch. I, Article III. On the Dissolution of Betrothals

Vol. II, Treatise on Matrimony, Chapter I. On Betrothals

Ch. I, Question I: Concerning Spouses · Ch. III, Article I: Concerning Betrothals

1° Of the nature; 2° of the effects; 3° of the dissolution of betrothals.

Vol. II, Treatise on Matrimony, Ch. I, Article I. On the Nature of Betrothals

n. ¶1525.

1525. - Definition. Betrothals are a deliberate, mutual promise, expressed by a sensible sign, of future Matrimony between capable persons.

It is said: 1° deliberate, namely with the deliberation required for a vow (see n. 379).

It is said: 2° mutual. Hence, if one only of the contracting parties promises, the other simply accepting but not promising in return, there will be no betrothals. - Nevertheless acceptance is equivalent to a return-promise if a woman, who is honorable, is led into so great a dishonor to herself that after acceptance of the promise she suffers defloration, at least if it is not clear that she acted thus merely for the sake of fulfilling lust.¹

It is said: 3° expressed by a sensible sign. Hence there is no need of words; but tacit consent, not expressed by a suitable sign, does not suffice, unless, as Canon Law² disposes for the external forum, parents (i.e. father or mother) contract for children present and not contradicting, although they could easily contradict. - I said: a) for the EXTERNAL forum; for for the internal forum betrothals cannot be valid unless the children positively (i.e. not only by conducting themselves negatively) and internally consent. - I said: b) father OR mother; for the value of the betrothals, or the consent of the children, is presumed in Law, not from paternal power, by which children cannot be compelled to these things (see n. 425), but from parental affection, which is equally in the mother and in the father, and whose dispositions, as having been made in their favor, children are judged to admit. - I said: c) for children PRESENT; for although to St. Alphonsus the more probable opinion is that which affirms that parents can also contract for absent children (to be made more certain by themselves, or by letter or messenger), nevertheless he also holds the negative as probable. - I said: d) not contradicting, ALTHOUGH THEY COULD EASILY CONTRADICT; for betrothals would not be valid if there were a reason why they do not contradict, e.g. fear.³

It is said: 4° of future Matrimony. Hence betrothals would not be valid if the parties pledged only that they would never enter Matrimony with some other person, unless from the circumstances it is clear that such persons truly wished to contract betrothals, as if the words are of the present, namely: I want no one but you.¹

It is said: 5° between capable persons, i.e. persons prohibited by no impediment, whether diriment or impedient. Hence they are not valid if they are made between a Catholic and a non-Catholic, unless their execution has been remitted to the time at which this latter will have received the Catholic Faith.

n. ¶1526.

1526. - Division. They are: 1° Ecclesiastical or solemn, and private, according as they are celebrated either in the face of the Church, i.e. before the Pastor and witnesses; or are perfected privately by the consent alone of the contracting parties, or before parents in the midst of the family. 2° Absolute and conditioned, according as they are made without any condition, or with some condition added.

n. ¶1527.

1527. Principles. - I. For the validity of betrothals all the conditions contained in the definition are required, so that, if one of them is lacking, the betrothal contract must be held as null. The reason is clear from what was said concerning the nature of a contract, n. 828, 845.

II. Betrothals are valid in the same way, whether they are solemn or ecclesiastical, or private or clandestine, because the consent of two suffices for a true contract; nor has the Church ever invalidated private betrothals. Indeed now in most places solemn betrothals have gone into desuetude, nor are they ever contracted among us.²

III. Betrothals entered under a condition concerning the present are valid here and now, if the condition is verified; but if they are contracted under a condition concerning the future, they will be valid as soon as the condition is fulfilled, without a new consent of the contracting parties, provided neither has revoked the consent previously given. Meanwhile the contracting parties are held to await the fulfillment of the condition, if it is honorable and possible, and does not oppose the nature of this contract or of future Matrimony.

IV. When the words or signs are doubtful, in the forum of conscience one must stand by the intention of the contracting parties, if it is clear; but in the external forum, by the common understanding and sense of the words. But if doubt remains, one must incline in favor of liberty.¹

n. ¶1528.

1528. Questions. - Quaer. 1° Are betrothals contracted from grave fear valid?

Resp. Negatively, more probably, provided the fear is from without, unjustly, and inflicted in order to contracting. The reason is because Matrimony contracted from such fear is null, as is clear from Canon Law, and will be explained below. Therefore by that very fact betrothals entered from such fear also ought to be null. Cf. n. 854.

Quaer. 2° Are betrothals entered from light fear valid?

Resp. See n. 853. III.³

Quaer. 3° Among those having a diriment impediment, without new consent, are betrothals valid under the express condition: if the Pope shall have dispensed?

Resp. Affirmatively, once the condition has been fulfilled and the dispensation committed to execution. The reason is because the consent perseveres until the fulfillment of the condition.⁴

Quaer. 4° Are fictitious betrothals valid?

Resp. The question is to be resolved in almost the same way as the question concerning a fictitious oath (see n. 367. 1°. 2°). Therefore they are valid if someone had the intention of celebrating betrothals and binding himself, but not of satisfying the obligation. But otherwise, if internally he did not wish either to contract betrothals or to bind himself. Nevertheless through a fiction of this kind he sins gravely, and is bound to repair damages, indeed also to celebrate Matrimony if damages cannot otherwise be repaired.⁵ See nevertheless what was said n. 810.

Quaer. 5° Are betrothals valid: 1) of those not of puberty; 2) of those not seven years old?

Resp. to the 1st. Affirmatively in itself, because even in the betrothals of those not of puberty all essentials (n. 1525) can be present.

Resp. to the 2nd. Affirmatively, more probably, by natural law, if the one promising has the perfect use of reason and in some way comprehends the burdens of the conjugal state.⁶

Quaer. 6° Are they valid between absentees through an intermediary, letters, or procurator?

Resp. Affirmatively, provided, if there is question of a procurator, he 1) has a special mandate; 2) the mandate is concerning contracting with a determinate person; 3) the procurator contracts by himself; 4) the mandate has not been revoked by the mandator before the betrothals were contracted, whether mentally or tacitly, e.g. by celebrating betrothals with another; 5) the procurator does not exceed the limits of the mandate.¹

Quaer. 7° Must promises which are customarily made concerning entering Matrimony always be held as true betrothals?

Resp. It seems they must be denied; for often those promises bear the appearance rather of intention than of true promise. Therefore in practice attention must be paid to the particular intention of the promisors.²

Vol. II, Treatise on Matrimony, Ch. I, Article II. On the Obligation and Effects of Betrothals

n. ¶1529.

1529. Principles. - I. Betrothals oblige from justice, under grave obligation, to enter Matrimony, at the determined time, if any has been determined; but if no time has been fixed, as soon as one party reasonably demands. The reason is because, where there are true betrothals, there is a true contract in a grave matter, and thence follows a grave obligation. But this obligation presses both in the forum of conscience and in the external forum. Therefore the one withdrawing can be compelled by the judge to Matrimony, even by censures,³ although exhortations and admonitions ought first to precede,⁴ and coercion also must be abstained from if, the circumstances having been inspected, the judge prudently judges that from unwilling nuptials grave evils and scandals are to be feared, e.g. perpetual quarrels, the departure of the man from the wife, or even the murder of the spouse; for it is expedient that a lesser evil be permitted in order to guard against a graver one, and thus favor is also bestowed by the judge upon the Plaintiff.⁵

II. Betrothals induce an impedient impediment of Matrimony, or one prohibiting lest Matrimony be contracted licitly with another person, unless the prior betrothals have been legitimately dissolved. The reason is because, from what has been said, betrothals beget an obligation of justice.

III. Betrothals induce also an impediment which in law is called public honesty, by which, namely, one of the betrothed persons is rendered incapable of contracting Matrimony with the blood relatives of the other in the first degree.

IV. Betrothals, in places where the decree of Trent concerning the form of Matrimony does not have force, when carnal copula follows, become betrothals of the present or presumed Matrimony, concerning which below more fully.

Note. From betrothals among us there is no action in the civil forum, except for the reparation of damage coming to the innocent party from their dissolution.¹

n. ¶1530.

1530. Questions. - Quaer. 1° If someone has contracted betrothals with two women, and has sinned with the second, which one ought he to marry?

Resp. 1° Certainly Matrimony is to be contracted with the first, if, when the second was contracting, she was conscious of the prior betrothals. The reason is because then the second was not deceived, but wished to be deceived.

Resp. 2° More probably Matrimony is also to be contracted with the first, although the second was not conscious of the promise made to the other. The reason is because the promise made to the second is always null, as being concerning an illicit thing; nor does an injury inflicted upon another take away the right of the first; and this is valid even if the second promise was confirmed by oath.²

Quaer. 2° Must the prior betrothed woman then yield her right, if the other is going to suffer grave damage from defloration?

Resp. Negatively, not improbably. Namely, the second betrothed woman ought to impute damage of this kind to her own weakness. Nevertheless it would be advisable to the first that she renounce her right spontaneously, unless perhaps she herself would incur notable damage from this.³

Quaer. 3° Are earnest-gifts licit in betrothals?

Resp. Affirmatively. The reason is because they are neither prohibited by Canon Law, nor opposed to natural law.⁴

Quaer. 4° Must a penalty attached to betrothals be paid by one withdrawing, and can it, having been paid, be retained?

Resp. to the 1st. Affirmatively, more probably, if there is question of one withdrawing unjustly, since the attaching of a penalty against one unjustly withdrawing is prohibited by no law. Nevertheless the opinion of St. Alphonsus¹ denying is sufficiently probable, because even by the just attaching of a penalty the liberty of Matrimony suffers some lesion. - But negatively, if there is question of one withdrawing justly.

Resp. to the 2nd. Negatively, more probably, if there is question of a penalty paid by one justly withdrawing; because no title legitimizes retention of this kind.²

Quaer. 5° Must a betrothed woman return gifts accepted from the betrothed man, if Matrimony does not follow?

Resp. 1° Negatively, if the betrothals are dissolved from the fault of the betrothed man; because he, by culpably withdrawing from the promise, is deservedly judged to make the loss of these gifts. Thus common practice.

Resp. 2° Affirmatively, speaking in itself, if the betrothals are dissolved without fault of the betrothed man, and, a fortiori, if from the fault of the betrothed woman; for the betrothed woman cannot retain them without injustice, since they were conferred only in view of Matrimony. The same would have to be said if one of the betrothed persons, who accepted gifts or earnest-gifts from the other, is overtaken by death before Matrimony is entered; for according to what has just been said, the parents of the deceased are held to restore all things to the surviving betrothed person.

I said: speaking in itself; because, if, in view of the condition of the betrothed man, the gifts are of little moment, and he does not reclaim them, he is judged to remit them.

Quaer. 6° Must he who promised Matrimony to a girl, on the condition that he sin with her, marry her?

Resp. See n. 810.

Vol. II, Treatise on Matrimony, Ch. I, Article III. On the Dissolution of Betrothals

n. ¶1531.

1531. - Betrothals, according to the opinion of all, can be dissolved for just causes. But the principal causes are:

1° Mutual consent, freely emitted (without grave fear and deceit [see n. 1528. q. 1°. 2°]) between persons of puberty. I say: between persons of puberty; for the betrothals of those not of puberty, when puberty has been reached and either one only reclaims within three days before a judge or witnesses, are dissolved, namely from the privilege conceded by Law.¹ But that triduum begins to run from the time not now of puberty, but of the acquired knowledge of the privilege.²

2° A supervening impediment, namely a diriment one, and indeed one diriment by divine law, as e.g. a valid Matrimony contracted with another, at least while it lasts. I say: by divine law; for, if the impediment is diriment only by ecclesiastical law, the obligation indeed ceases on the part of the innocent party, even by the mere report of the impediment; nevertheless it does not cease on the part of him who induced the impediment by his own fault, but is only suspended; so that he, even excluding the damage of the innocent party (cf. n. 810), is held, if the injured party still wishes, to seek dispensation of the impediment, if it can be obtained easily and shortly, and once this has been removed, to fulfill the faith given to her.³

3° The choice of a more perfect state, e.g. religious Profession, reception of Sacred Order, a vow of Religion, and, probably, even of chastity or of receiving Orders. But by the mere entrance into Religion before Profession, betrothals, according to the opinion which St. Alphonsus calls the more common and to which he adheres, are dissolved only on the part of the one remaining in the world.⁴

4° A grave crime of the other, e.g. grave theft, homicide, or the like, which begets grave damage or infamy; likewise fornication of the betrothed woman, whether it preceded the betrothals (provided it was then unknown to the betrothed man, or even known, but the report was afterwards spread), or followed them; whether it was voluntary, or (according to the common and truer opinion) involuntary. I said: of the betrothed woman; for fornication of the betrothed man, even after the betrothals, according to the more common and more probable opinion, does not give the betrothed woman a right of withdrawing. The reason of each is that fornication renders the betrothed woman, but not likewise the betrothed man, more base according to the common estimation of men. - What was said concerning the betrothed woman who committed fornication, say the same of her who after the betrothals so conducts herself that she makes doubtful faith concerning her virtue, permitting herself to be touched immodestly by others, or otherwise acting less cautiously. - For the same reason the betrothed woman can withdraw if, after the betrothals have been celebrated, she learns that the betrothed man "has had offspring from another woman, or has frequently fallen" into fornication, "by having intercourse with many"; or even if, after betrothals, kisses or touches have intervened so frequently between the betrothed man and another "that they indicate a mind of the betrothed man very inclined toward the other," and "it can deservedly be feared that he will not keep faith with the betrothed woman."¹

5° A notable change of state, namely a circumstance which, if it had been known or foreseen, would have deterred from the betrothals.² For the external forum this can be determined by the judgment of prudent persons, or, if that cannot be had, by oath.³ But if ignorance did not give cause to the contract, i.e. if the betrothed man would have contracted even if the cause had been known beforehand, it would by no means be lawful to withdraw from the betrothals.⁴

6° An excessive delay of Matrimony. But delay is made either with a time for celebrating Matrimony having been attached to the betrothals, or without such a time having been attached; and, if a time is attached, it is attached either to end the obligation of the betrothals, or only to urge it.

If: a) to end the obligation, once the term has elapsed through the fault of one, certainly the other party is liberated;⁵ indeed, according to the more common and more probable opinion, even if the term has elapsed without fault of the betrothed man, suppose because he was detained by a just impediment. The reason is because the term is attached precisely for this, lest the party prepared remain long without nuptials. I said: the other party is liberated; for, according to the opinion which St. Alphonsus calls by far the more common and, with attention to the intrinsic reason, by far the more probable (although the opposite, as he says, "is not lacking in its probability, especially from the authority of St. Thomas"), the party who culpably placed the delay does not remain free. The reason is because no one ought to derive advantage from his own fault.

If: b) a time has been added to the betrothals only for urging the obligation, once the term has elapsed the betrothals still oblige. But when, in the case of further delay by one party, it is lawful for the other to withdraw, seems to have to be decided especially from the circumstances.

If: c) no time has been established, and the nuptials are delayed excessively, nor can dissolution of the betrothals by mutual counsel be obtained, the cause will better be remitted to the ecclesiastical judge, so that he may establish the things which he judges suitable.⁷

Note. - If the Confessor sees that Matrimony has been deliberately delayed without sufficient cause, let him not importunately exact the fulfillment of the faith given, but sometimes according to the circumstances let him rather advise reparation of damage or a free composition, since an unsuccessful Matrimony is to be feared.¹

7° The departure of the betrothed man to a far country, without the other having been consulted; for he who so departs is judged to yield to his right. But if he has gone to a nearby country, a distinction must be made. For either he has thus gone without the intention of returning, or with it. In the former case, it is to be resolved as concerning him who has gone to a far country; but in the latter, either his return must be awaited for a time to be determined by the judgment of a prudent man (or, if it can be done, of a judge), or he is to be admonished, and a certain time, as above, is to be fixed beforehand, within which he should return, and, once it has elapsed, the betrothed woman is liberated.²

n. ¶1532.

1532. Questions. - Quaer. 1° Is it a sufficient cause of dissolving betrothals if a rich inheritance comes to the betrothed man?

Resp. Some affirm; others most commonly deny, because the betrothed man has not been deceived in the condition of the betrothed woman, in which no change has occurred. But in the case in which a marriage with another richer woman is afterwards offered to the betrothed man, St. Alphonsus would not dare wholly to condemn the betrothed man, if the quality of the other betrothed woman were exceedingly better; but nevertheless he concludes that he would never dare to advise departing from the contrary opinion.³

Quaer. 2° Are betrothals dissolved by a vow of chastity, or a vow of receiving Sacred Orders?

Resp. 1° If the vow precedes the betrothals, it is certain that they are invalid. The reason is because the promise of Matrimony is concerning an illicit thing, and therefore does not oblige. - Thus commonly.

Resp. 2° If the vow follows, likewise the betrothals are probably dissolved. The reason is because the promise of betrothals is always judged to have been made under the tacit condition, unless a better state is chosen. But certainly they are dissolved on the part of the one not vowing.¹

Quaer. 3° Is dissent of parents a sufficient cause of withdrawing from betrothals?

Resp. Negatively, if the parents dissent unjustly, because the right of the children would be injured. But otherwise, if the dissent of the parents is just, e.g. if the other party does not befit the family by reason of condition, honor, etc.²

For our provinces, nevertheless, Kenrick³ notes the following: "Betrothals are for the most part made without the parents knowing, whose rights, according to our customs, can scarcely be said to be gravely infringed; and therefore those promising are excused from grave sin, although not from every fault, if nothing else occurs that is to be reprehended."

But as regards the dissent of parents on account of disparity of condition, the same author remarks:⁴ "In this region indeed, where no noble stock is acknowledged, all are judged to be of the same grade, although in reality they are very much distinguished among themselves either by birth, or by wealth, or by public office. The diversity of conditions having been neglected, for the most part it will be lawful to fulfill betrothals; for the objections of parents and relatives ought not" (here) "easily to obtain force against a certain right arising from betrothals; nevertheless sometimes they will have to be rescinded."

Quaer. 4° Is a party laboring under an occult defect held to disclose it before betrothals, or, these having been contracted, before Matrimony?

Resp. 1° Affirmatively, if that defect would be harmful or injurious to the other party, e.g. if the girl is pregnant, if the betrothed man labors under venereal disease, or is burdened with debt, etc. The reason is because, just as he sins against justice who, to one believing himself to be buying good wares, sells harmful ones, so a fortiori does he who with a harmful defect wishes to contract Matrimony. Therefore if he does not wish to disclose the defect, he ought to abstain from contracting. Except, unless the other party labors under the same defect.⁵

Resp. 2° But negatively, if the defect does not render the nuptials harmful, but only less desirable, e.g. if a girl who is thought to be a virgin is corrupted. The reason is because it has been received by custom that no one is held to manifest defects of this kind to the other. Besides, no one is held to manifest his own defect with his own infamy, when the defect does not injure the grave right of the other.¹ Nevertheless the other party, once the defect is known, has the right of withdrawing.²

Quaer. 5° Are betrothals dissolved by a subsequent Matrimony, so that, once the Matrimony is dissolved, they do not revive?

Resp. Negatively, with the opinion which St. Alphonsus thinks absolutely more probable.³ - The reason is because it is proved by no law that betrothals are altogether dissolved by a subsequent Matrimony; whence only the obligation of the betrothals is suspended while such Matrimony lasts, as happens in one who contracts Matrimony with a vow of chastity. Moreover in practice the betrothed person unjustly abandoned will rarely seek such an unfaithful one, nor would a happy outcome of a Matrimony of this kind be hoped for.

Concerning the judge in a cause of betrothals, see L. VI. 878.

Merkelbach, Pastoral Questions

Benedict H. Merkelbach, O.P. — 78 passages

Ch. I, Question I: Concerning Spouses

n. ¶4207.

VII. Observation concerning betrothed persons. - Just as spouses, so betrothed persons are to be instructed concerning their present and future obligations. Generally they are to be admonished to celebrate marriage as soon as possible: thus very many sins are prevented; but as to the preliminary intimacies of preparation for marriage, we spoke in the work Questions concerning Various Categories of Penitents, c. 2, q. 3, n. VI.

n. ¶4208.

Let the confessor especially see whether there is any prohibiting or diriment impediment, ecclesiastical or civil, so that it may be opportunely removed if this can be done; otherwise marriage and keeping company must be renounced.

n. ¶4209.

When occasion is given, let him explain the true nature of Christian marriage and its dignity and sanctity, and let him inculcate that civil marriage is nothing but a mere formality, necessary for obtaining civil effects.

n. ¶4210.

Let him use every zeal so that betrothed persons prepare themselves for the great sacrament of marriage by prayer, the practice of virtues, and the reception of the sacraments, or at least, purified by confession, receive it well; hence if a betrothed man, making confession in order to contract marriage, is doubtfully disposed, he is to be absolved conditionally; if he is indisposed, he cannot be absolved, but according to opportunity he can be admonished concerning the obligation of disposing himself for the sacrament through perfect contrition.

n. ¶4211.

Let him admonish concerning the most grave end of marriage and concerning the obligations of spouses and parents. Nevertheless let him speak with great prudence concerning the use of marriage; and indeed:

n. ¶4212.

a) let him send a girl who labors under ignorance to her mother or another pious woman, and exhort her, once marriage has been contracted, to have recourse to him in doubts;

n. ¶4213.

b) but let him instruct one corrupted or one who knows, in an honorable manner.³

³ Good counsels are found in St. Francis de Sales, Introduction a la vie devote, III, c. 38-39; Ciolli, Direttorio, nn. 94-96; Stohr, Pastoralmedizin, and others. For the instruction of spouses and betrothed persons, innumerable little works have been published in the vernacular language. It is enough to indicate certain ones: Joseff, Conseils pour la preparation au Mariage; Nysten, Ce que les fiances et les epoux doivent savoir; Instructions familieres sur le Mariage; De Smet, Het christelijk Huwelijk (French: Le Mariage chretien); Voor de Trouwers; Mervillie, Trouwersboekske; Aertnijs, Bruidsexamen en Bruidsonderricht (in N. K. St. 1906); Appelman, Voor en in het Huwelijk; V. d. Burg, Ouderzorg en Ouderweelde; for the educated: Schim Van der Loef, Het voortplantingsleven van den Mensch; together with W. J. Duynstee, De Leer der Kuischheid; Ehrler, Gluckliches Eheleben; Ehelehre; Holler, Ehekatechismus; Baur, Gluckliches Eheleben; under the title Brautsunterricht various authors have written: Glockes, Rist, Sommer, Krick; also Wilhelm, Das Eheleben, or the anonymous writing: Die Ehe (translated into Dutch: Het Huwelijk), published in Donauworth, but these last two seem to be commended only with some discretion.

n. ¶4214.

As to precautions to be used in the confession of betrothed persons, so that it may be made with perfect sincerity, it will not be unwelcome to report what the Mechlin Theology, de Poen. (4), n. 97, q. 2, has:

n. ¶4215.

"As to the confession of a sin committed by mutual consent between betrothed accomplices, that they may be brought to confess their offenses integrally, certain precautions are indicated by theologians, which are usefully employed.

n. ¶4216.

"The first is that confessors should set for themselves a rule of always questioning those about to marry concerning sins which are opposed to the sixth and ninth precepts of the Decalogue; this can be done in about this way. 'For the greater disposition and tranquility of conscience of those who are to be joined in marriage, I am accustomed to propose certain questions to them: I ask that you answer them sincerely and with confidence, and that you do not fear, even if you have sinned gravely, that absolution is to be refused to you. On the occasion of your approaching marriage, have there not arisen in you immodest thoughts? have illicit familiarities not occurred? God has seen all things, and to Him alone do you confess here,' etc.

n. ¶4217.

"The second precaution consists in this, that the one should be heard first who is believed likely to confess more confidently and more integrally, either because he blushes less, which is proper to men, or because she is more fearful, as women are wont to be, or because he or she is accustomed to confess candidly to this confessor.

n. ¶4218.

"The third precaution is indicated by some, namely, that the one who has confessed first be induced to say to the other, before this other approaches, that he or she has openly confessed that sin, and that therefore it is also to be declared confidently by the other.

n. ¶4219.

"The fourth precaution seems to some to be that the confessor should ask, from the one who first confesses the sin, permission to question the other concerning it. This, however, could seem odious to many penitents; hence it is not to be used if it is to be feared that the penitent would bear it badly, or if this penitent is foreseen to be about to confess candidly of himself or herself.

n. ¶4220.

"But when permission of this kind has been given altogether spontaneously and with the other conditions recounted above, let the confessor use it prudently and kindly, so that the accomplice may draw consolation from this in confession rather than any burden."

n. ¶4221.

The author adds: "A similar difficulty can arise for the confessor of two spouses or of others who have together committed a grave sin of incontinence, injustice, etc.; and the same principles must be applied to them."

n. ¶4222.

These things indeed are not always to be employed, nor toward everyone, which would not be equitable, but according to opportunity.

Ch. III, Article I: Concerning Betrothals

n. 57.

- I. Notion.

n. ¶5734.

Betrothals are the mutual promise of future matrimony, legitimately given between capable persons.

n. 58.

- II. Conditions of a valid betrothal contract.

n. ¶5736.

Four conditions are required:

n. ¶5737.

a) A promise, and indeed a true, deliberate one, not extorted by force or by unjust and grave fear.

n. ¶5738.

b) A mutual promise: otherwise there is had not a betrothal contract, which necessarily is bilateral, but a simple promise of matrimony.

n. ¶5739.

c) Capability of the contracting parties: they must be such as at some time can validly and licitly enter matrimony between themselves. For every promise of an impossible or illicit thing is plainly invalid.

n. ¶5740.

d) A written promise.

n. ¶5741.

Before the decree Ne temere, promulgated by the S. C. C. on 2 Aug. 1905 and in force for the whole Latin Church from 19 Apr. 1908, betrothals were valid in whatever way they had been sufficiently manifested from natural law.

n. ¶5742.

But that decree introduced a new discipline, by force of which betrothals are valid in neither forum unless they are: 1. made in writing; 2. with the apposition of the date; 3. duly signed.

n. ¶5743.

The writing can be drawn up by anyone whatsoever, or even printed with type. An appended condition or a time added for ending the obligation, if the contract is entered with such clauses, must necessarily be expressed in the writing itself.

n. ¶5744.

The date, or apposition of the day, month, and year, should be indicated of necessity; but the place in which the betrothals are entered should suitably be indicated.¹

¹ S. C. C., 27 Jul. 1908, ad 2.

n. ¶5745.

The writing must be signed both by each party who contracts the betrothals, and by the pastor or Ordinary of the place, or by two witnesses.

n. ¶5746.

If one or both contracting parties does not know how to write or cannot write, this is to be recorded in the writing, and then another witness must be added, who with the others indicated above signs the writing.

n. ¶5747.

All who must sign the writing must be assembled together when they fulfill that office.

n. ¶5748.

Nothing prevents betrothals from being contracted by a procurator, since this is prohibited by no law.

n. 59.

- III. Who are comprehended under the name of Ordinary of the place and pastor.

n. ¶5750.

The Ordinary of the place and the pastor, as we have said, are privileged witnesses in a betrothal contract. For the Ordinary of the place or the pastor alone suffices to sign the writing with the contracting parties, while, if they are absent, two signing witnesses are required.

n. ¶5751.

a) Under the name of Ordinary of the place there come, besides the Roman Pontiff, each for his own territory: the residential Bishop, Abbot or Prelate nullius, Vicar General, Administrator, Vicar or Prefect Apostolic, and all who, when the aforesaid are lacking, exercise their office ad interim, e.g., the Capitular Vicar, when the Bishop is dead or removed.

n. ¶5752.

b) Under the name of pastor there come:

n. ¶5753.

The pastor properly so called.

n. ¶5754.

The quasi-pastor, i.e., one who governs a quasi-parish or a part of an apostolic Vicariate or Prefecture.

n. ¶5755.

The vicar curate, i.e., a pastor in a parish whose habitual care pertains to a chapter or monastery.

n. ¶5756.

The vicar oeconomus, who undertakes the governance of a vacant parish.

…and 38 more passages — all of them are listed on the topic page.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 32 passages

Vol. III, Special Moral Theology: On…, Treatise: On Matrimony, Second Part: On the Celebr…, Question One: On Espousals

St. Th., Suppl., q. 43.

830. Espousals according to the name are so called from spondere, i.e., to promise spontaneously, because in antiquity a girl was promised or pledged as wife to a man by those under whose power she was. Whence she who was promised was called sponsa, he to whom she was promised, sponsus, he who promised, sponsor, and the contract of this promise, sponsalia. Therefore it is a bilateral contract concerning matrimony to be entered later, or a mutual promise of future matrimony. 2

It is therefore a promise:

of future matrimony, and therefore it is distinguished from valid matrimony not consummated, which sometimes improperly was called espousals, in which sense Blessed Joseph is usually named the spouse of the Blessed Virgin: matrimony in the case was called espousals de praesenti ("I take you"), and differs from true espousals de futuro ("I will take you");

mutual, not merely unilateral, made by one and accepted by the other but without a reciprocal promise. And although the new canonical legislation is the same concerning both (can. 1017), nevertheless in order to matrimony the bilateral or espousal promise rather comes to be considered, because this, not the unilateral one, is usually antecedent to matrimony and is its fitting preparation, although nevertheless it is in no way of precept.

Moreover, espousals are usually premised: a) so that matrimony may be entered with more mature counsel and with a better disposition; b) so that in this intermediate time one may better experience the disposition and morals of the other, and it can be detected whether nothing stands in the way of matrimony; c) so that the friendship of the betrothed and desire of the union may grow, as Augustine says, Conf. VIII, 3: that a husband may not hold as cheap the woman given, whom he did not sigh for as loved.

This second section of the treatise, like also the third, is canonical for a great part. We wish to warn that our mind is in no way to treat juridical questions more fully and perfectly, or to compose a canonical treatise on matrimony, but only briefly, in order, and succinctly to hand on those things which are necessary for a priest in the ministry of souls.

There can be consulted: Wouters, De Forma promissionis et celebrationis matrimonii; and Darmanin, De Promissione matrimoniali, in Angelicum 1931.

831. Definition of espousals. - Espousals are usually defined: A mutual promise of future nuptials between two determinate persons capable by law. It is said:

1° Of future nuptials, which are the proper object itself of espousals;

2° Promise, and not mere intention, desire, or simple purpose even expressed in words, because this does not include the intention of obliging oneself, which is the essential element of a promise;

3° Mutual, i.e., reciprocal, or given and accepted on both sides: thus it is distinguished from a unilateral promise also accepted by the other, which also can be made, although no one is presumed to wish to oblige himself to matrimony except under the condition that the other also obliges himself. And so espousals are, as it were, matrimony begun, and just as there is no matrimony without the mutual handing over of bodies, so neither are there espousals without the mutual pledging of this future handing over; whence espousals, just as matrimony, cannot limp.

4° Between two determinate persons capable by law, for just as matrimony cannot be entered except between two determinate persons capable by law, so neither can espousals, which are the preamble of matrimony, exist except between two determinate persons, who now are capable by law for promising and at least at some time will be capable for contracting matrimony validly and licitly: for a promise concerning an impossible or illicit thing is null.

Hence a) espousals entered with an impediment of matrimony are invalid, when that impediment cannot be removed by dispensation, or in the case is not usually so removed;

b) likewise those entered with an unknown impediment;

c) on the contrary, those entered knowingly with an impediment are valid, but for the time when, with the cessation of the impediment or with dispensation, matrimony will be licit;

d) those entered between two persons of mixed religion after a dispensation already obtained are valid;

e) on the contrary, if they have been entered when a dispensation has not yet been obtained, ordinarily they will be invalid, because mixed matrimony is more often illicit, unless it is intended as a means of repairing an injury.

The conditions required for espousals are the general conditions of every contract: namely, there must be a personal promise, true and not fictitious, fully deliberate, free, and expressed by sensible signs. Whence the general rules concerning vices of consent which invalidate a contract, or permit it to be rescinded, here simply come to be applied.

832. The legal form required by canon law for the validity of espousals, indeed of any promise of matrimony whatever, is indicated in can. 1017:

"§ 1. A promise of matrimony, whether unilateral or bilateral or espousal, is invalid for both forums, unless it has been made by a writing signed by the parties and either by the pastor or local Ordinary, or by at least two witnesses.

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

Since private promises gave occasion to many dangers and evils, many of which were doubtful or entered rashly or lightly, from which many lawsuits and enmities had their origin, most wisely this invalidating law was established for every promise which is not publicly contracted in writing. But three conditions are required for validity:

1° That the promise be made by writing or in written form.

2° That it be entered before the pastor or local Ordinary or two witnesses.

3° That the writing be signed by the contracting parties and by the pastor or local Ordinary or two witnesses.

And so:

1° The promise must be made in writing; nevertheless it need not be written by the very hand of the contracting parties, but it is sufficient if it has been written by another, or with the aid of a machine, or printed by type. But the date, or inscription of day, month, and year, must be placed (S. C. C., July 27, 1908, together with can. 6), not the place; the date can be indicated expressly or equivalently, e.g., by naming the day of a feast; but an error in the date, even an involuntary one, invalidates the act.

2° Before the pastor or local Ordinary or two witnesses: The qualified witness, namely, the Ordinary and the pastor, under whose name also come those who by law are in the place of the pastor, is understood to be the one within the limits of whose territory the act is made (S. C. C., March 30, 1908), who nevertheless cannot substitute another for himself, nor one delegated to the universality of matrimonial causes; and one suspended from office or excommunicated as vitandus would exercise the function invalidly after a declaratory or condemnatory sentence (can. 2279, § 1; 2284; 2266). Whence if the promise is entered before an assistant vicar, or before the Ordinary or pastor himself but outside his own territory, in addition another witness is required. But witnesses need not have special qualities; it is sufficient that they be capable of witnessing.

3° The writing must be signed by all, and indeed at the same time and in one context, the contracting parties and the pastor or Ordinary or witnesses being gathered together at the same time (S. C. C., July 27, 1908). The signing must be done personally and by one's own hand, but not be impressed by an instrument, by aid of a machine, or by type; whence a promise made through a proxy is invalid. But if someone signed with his hand guided by another, he would contract validly provided that he remained the principal cause and also could sign by himself, although with more difficulty; but in practice the matter will easily be doubtful.

When both or either party, because of ignorance, does not know how, or because of infirmity or sickness cannot write, this must be noted, and in place of that party another witness must be employed, who signs with the other witnesses or with the pastor or Ordinary.

Vol. II, Tr. XVIII, Ch. I, Article I. On the Nature of Betrothals · Vol. II, Tr. XVIII, Ch. I, Article II. On the Obligation and Effects of Betrothals · Vol. II, Tr. XVIII, Ch. I, Article III. On the Dissolution of Betrothals · Vol. II, Tr. XVIII, Ch. II, Article I. On the Necessity of the Banns · Vol. II, Tr. XVIII, Ch. II, Article II. On the Circumstances of the Banns · Vol. II, Tr. XVIII, Ch. II, Article IV. On the Revelation of Impediments · Vol. II, Tr. XVIII, Ch. II, Article V. On Certain Other Things to be Premised to the Celebration of Wedlock

If the aforesaid conditions are omitted, the promise will be invalid even in conscience, yet not illicit. So it is for all Catholics of the Latin rite, and also for non-Catholic baptized persons, but not for Orientals or unbelievers while they contract among themselves.

Palmieri, On Christian Marriage

Dominic Palmieri, S.J. — 29 passages

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Council of Elvira…, A.D. 305

n. ¶851.

Canon LIV. If any parents have broken the faith of espousals, let them abstain from communion for the space of three years. Yet if the same bridegroom or bride have been detected in that grave crime (that is, if they alone, without the parents' consenting), the parents will be excused. But if they have been in the same vice (the parents) and have polluted themselves by consenting (to the children), let the preceding sentence be observed.

n. ¶852.

Cf. Alex. Syrus. Mazocchi's Diatribe on this canon. There exists, published by the same man, the posthumous work of J. M. Muscettula, On the Espousals and Marriages of Sons under Paternal Power, etc.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Council of Ancyra, A.D. 314

n. ¶874.

Canon XI. Girls betrothed to some men and afterwards carried off by others, it seemed good that they be restored to those to whom they had been betrothed, even if they suffered force.

n. ¶879.

Canon XXIV. A certain man, having a betrothed woman, violated her sister and rendered her pregnant; afterwards he married as wife the one betrothed to him. But she who had been corrupted destroyed herself with a noose. Those who were conscious of it were ordered to be received after ten years of penance, according to the established grades of penance.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Canons of St. Bas…, A.D. 374-75

n. ¶929.

Canon XXII. Those who have women by abduction, if indeed they have carried off women already betrothed to others, are not to be admitted before they have been taken away from them and restored to the power of those to whom they had been betrothed from the beginning, whether they wish to receive them or desist. But if someone has taken one who is free, it is necessary indeed to take her away and restore her to her own people and permit it to their will ... and if they wish to hand her over to him (that is, to the abductor), it is necessary to establish the marriage; but if they hold her back, by no means to inflict force.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Decretal Letter o…, A.D. 384

n. ¶973.

Decree IV. But concerning conjugal violation you asked whether another can receive in marriage a girl betrothed to someone else. We inhibit by all means that this be done, because that blessing which the priest imposes on the woman about to be married is, among the faithful, in the likeness of a certain sacrilege if it is violated by any transgression.

n. ¶974.

Espousals also were sanctified by priestly blessing, which the faithful judged it impious to violate. Although these things are said concerning espousals, nevertheless mediately they show the persuasion of the faithful concerning the sanctity also of nuptials, of which espousals are the preparation. Therefore we cited these words. Thesis VII, IV, 6.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Council of Auvergne, A.D. 535

n. ¶1147.

Canon XII. If anyone has believed that the widow of his brother, the sister of his wife, his stepdaughter, his female cousin or cousin's daughter, or the widow of his paternal or maternal uncle, is to be violated by the consortship of carnal contagion, and with sacrilegious daring has broken through the authority of the divine law and the rights of nature, and to her to whom he ought to have shown the consolations of charity and pious affection, has attempted to bring force, as an enemy of his own and an assailant of chastity, let him be struck by the sentence of the apostolic constitution. And so long as he is engaged in so great a crime, let him be deprived of the Christian assembly and banquet, and at the same time of the communion of Mother Church.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Roman Council of …, A.D. 721

n. ¶1262.

Canon XI. If anyone has abducted or stolen as wife a virgin whom he has not betrothed to himself (other reading: unless he has betrothed her), or consenting to him, let him be anathema.

n. ¶1263.

Marriage with the abducted woman is permitted to the abductor if betrothal preceded, which Justinian had denied. Cf. what was said at the canons of the Council of Meaux, A.D. 845.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Council of Leptin…, Legates of the Apostolic S…, A.D. 745

n. ¶1321.

Canon VII. If a man is not able to render the conjugal debt to a woman betrothed, dowered, and led in public nuptials, according to the Apostle, and this has been made manifest either by the confession of both or by any certain proof, let them be separated; and let the woman, if she cannot contain herself, lawfully marry another man (from Epistle 22 of Hincmar of Reims to Hrodulf).

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Council of Compie…, A.D. 756

n. ¶1397.

Canon X. If a father has violated the betrothed of his son, and afterward the son has accepted her, his father shall afterward not have a wife, and that woman shall not have a husband, because he did not say that his father had remained with her. But that son, who did this unknowingly, may accept a legitimate woman.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Epistle of Stephe…, Otherwise III, to Charles …, Kings, A.D. 770

n. ¶1416.

But Charles the Great did not comply with the Pontiff and accepted as wife the daughter of Desiderius, whom nevertheless after a year he repudiated, "it being uncertain for what cause," says Eginhard; because she was unfit, that is, impotent, says the Monk of St. Gall. There are those who think that the marriage had already been entered before the letters of the Pontiff had been received, and, when these were received, was dissolved by Charles; and for that reason, since those letters were not known to all, Eginhard said: "it being uncertain for what cause." In the same epistle the Pontiff adds other things by which he may deter the Franks from accepting wives from the most base nation of the Lombards. But he seems always to speak on the hypothesis that they were already coupled to another spouse. Read Balan, History of Italy, Book 13, n. 37 and following. Those who defend the cause of Charles in this marriage with the daughter of Desiderius say that he had not yet been coupled to another wife, but only that, from the counsel of his father, another from the nation of the Franks had already been destined, or even betrothed, to him, as also to his brother; and this indeed does not cohere sufficiently with the quoted words of Stephen. It coheres, however, to speak the truth, with the words of Eginhard, who would not have said that it was uncertain for what cause Charles repudiated the daughter of Desiderius, if he had brought her in over a former wife while she was living. Cf. Baronius and Pagi at A.D. 771.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Council of Verneuil, A.D. 844

n. ¶1466.

Canon VI. But a girl betrothed by one man and abducted by another, according to the statutes of the Council of Ancyra, is to be returned to him by whom she had been betrothed, even if she has suffered violence from the abductor. But concerning abductors, this seems best to us: that, since they make little of ecclesiastical excommunication, they be terrified by the authority of secular laws.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Council of Meaux …, A.D. 845-46

n. ¶1467.

Canon LXIV. Abductors of virgins and widows, who afterward also, with the will of the parents, as if betrothing them under the name of dowry, have led them into marriage, are to be subjected to public penance; and after public penance has been completed, as the Bishop shall have foreseen, lest they fall into worse things, coming together again, let them take care henceforth to be devoted to alms and to whatever other works of religious and salvific conversation, until by consent they are able to abstain from the conjugal work. But sons from a blameworthy conjunction of this sort, procreated even less laudably before marriage, shall in no way be promoted to ecclesiastical dignity; nor shall those generated from such a marriage be applied to ecclesiastical orders, unless perhaps either the greatest utility or necessity of the Church demands them, or an evident prerogative of merits commends them.

n. ¶1468.

Canon LXV. But those who have not yet taken into marriage, with the will of the parents, under the aforesaid name of betrothal or dowry, those whom they had abducted, when this constitution has been promulgated into the ears of all (those, namely, who did that before this constitution was known; see the following canon), are to be separated from their conjunction and subjected to public penance; but the abducted women are to be restored legally to their parents. But after public penance has been completed, if age and incontinence have demanded it, let them be associated in a legitimate marriage pleasing to both parties. For in these things we do not constitute a rule, but, to use the words of great Leo, we judge what is more tolerable. But if one of the married persons has died, the one who did public penance and has survived shall not presume to repeat marriage, unless perhaps the bishop shall have foreseen that some indulgence should be conceded, so that he can remove a graver offense.

n. ¶1470.

Justinian, Code, Book IX, Title XII, prohibited that a marriage should ever stand between the abductor and the abducted woman, whether she had been betrothed before the abduction or otherwise, with the faculty denied to the abducted virgin or widow of demanding her own abductor as husband for herself. The Church did not approve this law under this universality. Cf. Canon XI of Gregory II in the Roman Council, above, which is not well cited by these Fathers; and the canon of Lucius III, Cum causam, De raptoribus, which agrees with Gregory; and Innocent III, canon Accedens, in the same place; then the decree of the Synod of Trent, Session XXIV, chapter VI. These Fathers seem to have wished to walk in a certain middle way.

n. ¶1471.

Canon LXVIII. Concerning those who abduct the betrothed women of others, or accept them with the consent of the parents, let the ancient and synodal sentence be observed (cf. Canon XI of the Council of Ancyra). And even if perhaps such an outcome is known to be found in the Church, that, for the competence of salvation and religion, the Pontiffs ought to treat some matter more humanely ... by no means, so that we may descend to the greatest indulgence, shall the acceptor of another's betrothed woman pass without public penance, and let him legally pay a fine to the betrothed man.

Bk. III, Capitulum 463, Has Thus

n. ¶1479.

It has been decreed that a wife be legitimately joined to a man. For otherwise, as we have received from the fathers and find handed down from the holy apostles and their successors, marriage does not become legitimate unless the wife is sought from those who seem to have dominion over that woman herself and by whom she is guarded, and is betrothed by the nearer parents, and endowed by laws (legitimately), and in her own time, priestly, as is the custom, with prayers and oblations, is blessed by the priest, and guarded by bridesmen, as custom teaches, and associated by relatives, and sought at the fitting time, is given by laws and solemnly accepted. And for two or three days let them have leisure for prayers and keep chastity, so that good offspring may be generated and may please the Lord in their acts. For thus they will both please the Lord and generate sons not spurious but legitimate and inheritable.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Council of Pavia, A.D. 850

n. ¶1491.

Canon X. But concerning abductors, following the statutes of the ancient Fathers, we judge that this is to be held: that if they abducted those who, together with the betrothed man, have been initiated by the priestly blessing, even though they have corrupted the same women, nevertheless they are to be drawn away from these men and restored to their proper betrothed men. But those who either are widows or have not yet been betrothed and are abducted without their own will and that of their parents, nevertheless are to be restored to their parents or relatives, and, if they wish, they may marry others; for they can by no means thereafter be legitimate wives to those by whom they were abducted. But although the ancient canons command that the abductors themselves and those furnishing help to them be anathematized, nevertheless we do not deny that, when they are placed at the last moment, if they devoutly ask, the viaticum of sacred communion is to be given for mercy.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Assembly of Mainz, Of Several Bishops, Rabanus Presiding, Under Louis, King of Germany, A.D. 851

n. ¶1495.

Capitulum XII. If anyone has had a concubine who was not legitimately betrothed, and afterward has led a girl duly betrothed, after the concubine has been cast aside, let him have her whom he legitimately betrothed. Concerning this Pope Leo defined thus in his decrees, saying: "There is no doubt that that woman does not pertain to matrimony," etc.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Epistle of Nichol…, Archbishop of Vienne, A.D. 862

n. ¶1502.

Response I. You ask whether, after a wife has been dismissed whom someone had led after legitimate betrothal, because afterward he imposed an evil name on her, it is lawful for him, without a decree of a general synod, either to accept another against the evangelical authority, or, while she survives, to have a concubine in place of a wife. To these things, supported by apostolic authority, we resist altogether according to the evangelical sanction, and we neither concede the coupling of another wife to those who do such things while the one dismissed survives, nor do we grant license of having a concubine.

n. ¶1504.

Response II. Concerning this: if a betrothed woman, with the betrothed man not knowing, is corrupted, and afterward, a dowry having been made, that same betrothed man has lain with the same woman in marital fashion: whether, after no time has been intercepted (other reading: interposed), it is lawful for him to dismiss her as corrupted by another and thus lead another, as if that woman had not been a wife, or to hold a concubine in place of her. We do not consent to this either, that those who are joined by the legitimate covenant of nuptials and are made one body through some space of time should make a divorce. But what before, at the beginning of the conjunction, they voluntarily kept silent by receiving the corrupted woman, afterward, with time intercepted, by enduring it, even if not voluntarily, let them unwillingly preserve; also let them in every way abstain from concubines.

n. ¶1505.

The other part of the response ("but what before they kept silent") is a little obscure. Nicholas seems to suppose that the betrothed man from the beginning, before the marital union had been performed with marital affection (through which espousals then passed into marriage), knew the corruption of the betrothed woman and voluntarily kept silent; yet this seems to be alien to the species of the case. But in reality it is not alien; for nothing contrary to this hypothesis occurs in the statement of the case. Nor ought it to be a wonder that the betrothed man at first, because of affection toward the betrothed woman, considered that defect of small account; but afterward, with affection cooling, objected to the crime of the betrothed woman, and wished from it to seize a cause of dissolving the marriage. Therefore Nicholas wishes to say that it was indeed lawful for the betrothed man before marital congress to dismiss the betrothed woman and refuse her nuptials because of that crime or defect, but once the marriage had been completed, this was no longer lawful.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Epistle of Gregor…, Turin, and Acqui, A.D. 1079

n. ¶1616.

It has come to us that Boniface, marquis, brother of Manfred and Anselm, recently killed, is attempting to couple to himself in marriage the betrothed of the same Anselm. No one who knows the sacred canons can doubt how full of disgrace this is, how alien from the laws of the Christian religion.

n. ¶1617.

Civil law had established or advised the impediment of public honesty from espousals. Institutes, Book I, Title X, §9: "It is established that neither is the son's betrothed a daughter-in-law, nor the father's betrothed a stepmother; nevertheless those who have abstained from nuptials of this sort will act more rightly and lawfully." The Church received and amplified this impediment. Therefore Gregory cites the sacred canons. Yet this impediment from espousals a certain Pope Benedict did not acknowledge, whose response is brought forward in the Collection of Canons, which is an Appendix to the Third Lateran Council (see below), if nevertheless that response is authentic.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Council of London…, A.D. 1102

n. ¶1632.

If the matter concerns the faith of espousals, the invalidation seems reasonable; if concerning the faith of a marriage secretly entered, the decree will have force in the external forum, not in the forum of conscience before God, if the denial of either one is false.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Title On Betrothals and Marriage

n. ¶1659.

Chapter III. (The same, to the Bishop of Vigilia). If someone has betrothed a girl below the twelfth year, before both have arrived at years apt for marriage, they cannot withdraw from the nuptial pact and fly to another marriage.

n. ¶1660.

Chapter IV. (The same, ibid.). No blood-relative of another can ever unite in marriage the other's betrothed, if she is near marriageable age.

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 42 passages (filed under the subtopics)

Vol. II, Tr. XVIII, Ch. I, Article I. On the Nature of Betrothals

n. 836.

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.

n. 836.

On the Essential Form of Betrothals

§ 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).

n. 837.

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.)

n. 838.

Questions

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.

n. 838, Q. 2.

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.

n. 838, Q. 3.

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.

n. 838, Q. 4.

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.

n. 838, Q. 5.

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.

n. 838, Q. 6.

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.

n. 838, Q. 7.

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.

n. 838, Q. 8.

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.

n. 838, Q. 9.

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.

n. 838, Q. 10.

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.

n. 838, Q. 11.

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.

n. 838, Q. 12.

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.

Vol. II, Tr. XVIII, Ch. I, Article II. On the Obligation and Effects of Betrothals

n. 839.

I say 1°. Betrothals introduce a grave obligation from justice to enter Marriage at the determined time, if any has been determined; but if no time has been fixed beforehand, as soon as one party reasonably demands it. The reason is that betrothals are a true bilateral contract concerning matter certainly grave. Cf. S. Alphonsus, n. 845.

I say 2°. Betrothals introduce no impediment. Indeed, by a promise of marriage, although it is valid and no just cause excuses from fulfilling the same, 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, § 3). The reason is lest perhaps something worse happen from this, namely that someone marry such a one whom he holds in hatred; therefore the betrothed are to be admonished and led by all means to observe the faith given, but they are not to be compelled, because compulsions are accustomed to have difficult outcomes. But if they have suffered damages, an action is given to them for reparation, but not for seeking the celebration of marriage. This canon protects the due liberty of wedlock and, at the same time, the party faithful to the promise. Therefore, when a valid promise is had, the betrothed are indeed bound in the internal forum to stand by the promises, but no impediment any longer exists, whether impeding or diriment.

n. 840.

Questions

Question 1. If someone has contracted betrothals with two women and has sinned with the second, which one ought he to marry?

Resp. Certainly he ought to marry the first, if the second, when she contracted, was conscious of the prior betrothals, because then she could not give true consent; but if she was not conscious, then some theologians only probably say that Marriage must be contracted with the second, on account of the damage which otherwise would come to her. But this reason makes only some probability; and therefore, just as the first betrothed woman is to be induced, but not obliged, to yield concerning her right if the other is going to suffer grave damage from defloration, so the betrothed man who altogether wished to marry the second, when she was not conscious of the prior promise, could not certainly be obliged to marry the first. - Cf. S. Alphonsus, n. 848.

n. 840, Q. 2.

Question 2. Ought a betrothed woman to return gifts accepted from the betrothed man, if Marriage does not follow?

Resp. Negatively, if the gifts were given absolutely, for example, to conciliate benevolence or something else of this kind, because then their ownership was irrevocably transferred by the betrothed man. But if the gifts were accepted only conditionally, that is, in view of Marriage, then again one must answer negatively if the betrothals are dissolved through the fault of the betrothed man; but affirmatively, speaking of itself, if they are dissolved without his fault. The reason for the negation is that the betrothed man, by culpably withdrawing from the promise, is deservedly deemed to incur the loss of these gifts. But the reason for the affirmation is that, the condition not having been verified, the title by which those gifts can be retained fails. - I said speaking of itself, because if, considering the condition of the betrothed man, the gifts are of small importance, and he does not reclaim them, he is deemed to remit them. Gifts given in view of Marriage differ from earnest-money, insofar as these are a pledge of fulfilling the promised thing, but the former are conditional largesses; and therefore, once Marriage has followed, the earnest-money must indeed be restored, but not the gifts. - Cf. Baller. note (a), p. 689.

n. 840, Q. 3.

Question 3. Is the placement of some penalty by way of a fine against one withdrawing from betrothals licit and valid?

Resp. Negatively, if a penalty of this kind is placed against one withdrawing justly, because then it would of itself diminish the liberty of future Marriage, and therefore would be against natural right. But if this penalty is placed against one withdrawing unjustly, it is disputed among theologians. It is also disputed whether, if the penalty added has already been paid, the one who received the payment of the money is bound to restitution. - Cf. S. Alphonsus, n. 853.

Vol. II, Tr. XVIII, Ch. I, Article III. On the Dissolution of Betrothals

n. 841.

I say. Betrothals, by the opinion of all, can be dissolved on account of just causes. But the principal causes are the following: 1°. mutual consent freely given; 2°. a supervening diriment impediment concerning which a dispensation cannot be given or in fact is never given, for otherwise, even if the innocent party is freed from the obligation of the betrothals, the party who induced the impediment is nevertheless bound to seek the dispensation; 3°. election of a more perfect state, for example, religious profession, reception of sacred Order, a vow of entering Religion, etc.; 4°. grave crime of the other, for example, theft, homicide, fornication, especially if this is done by the woman; 5°. excessive delay of Marriage, especially if the time for contracting was determined: to this cause is added the departure of the betrothed man to a distant land, the betrothed woman not having been consulted; 6°. notable change of state, namely a circumstance which, if it had been known or foreseen, in the judgment of prudent persons would have deterred from the betrothals. Cf. S. Alphonsus, nn. 846 and following; Kenrick, nn. 17 and following; Baller. note (a), p. 691, and note (a), p. 708; Konings, n. 1531.

n. 842.

You Will Resolve. 1°. According to the common opinion, the betrothed man can withdraw if the betrothed woman has been violated by force after the betrothals. The reason is that the betrothed woman, through such violation, although without her own fault, is rendered notably lower in worth, and therefore the condition of things is notably changed. The same must be said even if she was deflowered by force before the betrothals, and only afterward that defect was detected. - Note, however, that the betrothed woman is not bound to manifest a defect of this kind before the betrothals, nor, once they have been contracted, before Marriage, because it is not substantial; but it would be a substantial defect, and therefore necessarily to be disclosed, if from the defloration she had become pregnant. - Cf. S. Alphonsus, nn. 861 and 864.

2°. The dissent of parents is also certainly a sufficient cause of withdrawing from betrothals, if it is just, for example, because the other party does not suit the family by reason of condition, honor, etc. But if it is unjust, then of itself it does not suffice, because otherwise the right of children would be injured. - I said of itself; for since often, even when parents dissent unjustly, great inconveniences would arise if Marriage were made, even unjust dissent could per accidens be a sufficient cause of withdrawing. - Cf. S. Alphonsus, n. 877; Kenrick, nn. 6 and 11.

3°. Probably betrothals are dissolved through subsequent Marriage, so that, once this has been dissolved, or the co-party has died, the betrothed man is not bound to marry her with whom he had first contracted. The reason is that, since Marriage is of itself something stable and affecting the whole life, by this very fact it annuls the preceding obligation made incompossible. Moreover, in practice the party unjustly abandoned will rarely require the unfaithful betrothed man, nor would a happy outcome of Marriage of this kind be hoped for. - Cf. Baller. note (b), p. 705.

4°. The Supreme Pontiff, from a just cause, can dissolve betrothals through dispensation. For he can dissolve the bond of a ratified and non-consummated marriage; therefore also a bond less firm. And in fact he dispenses repeatedly. - Cf. A. S. Sedis, vol. 1, p. 341; vol. 3, p. 461; Wernz, vol. 4, n. 118.

5°. The betrothed man is bound by natural law to manifest to his co-party occult defects injurious to her: such as defects which would render marriage null, a contagious or venereal disease, pregnancy from intercourse with another person, sterility, widowhood, another religion. But he is not likewise bound to disclose lesser defects or those which are not damaging. Cf. S. Alphonsus, n. 864.

6°. But disease, according as it is in a different degree, will be more or less or perhaps in no way pernicious: thus syphilis has, as it were, different states; and if it would bring grave damages to the betrothed woman herself, the betrothed man would be obliged to manifest his condition to the other. The principles in this question are the following: The Church alone on earth can establish impediments, whether diriment or impeding, of Christian marriage, and when she established these, she consulted excellently both for herself, for her own, and for the human race. Leprosy and any other horrible and contagious infirmity, such as syphilis, epilepsy, which in this matter are equated with leprosy itself, are not impediments. In judging these, one must act according to the norm just brought forward. For either the disease is known to the betrothed parties before the betrothals, or it is not known; whence a known disease which will be injurious to the other is to be manifested to that one by the co-party under grave obligation. If it is known to both, they are not bound to enter the contract, although they can enter it if they wish. The Church does not prohibit it; and therefore, once it has been entered, it must be stood by. If one party did not know, that party can withdraw from the contract. Indeed, if a disease supervenes upon the betrothals, it is licit for each to rescind the pact; or if knowledge of the existence of the disease supervenes for each, the same must be said. And what we say here about disease is to be understood of the personal infirmity of one of the betrothed; for if a disease, say epilepsy, has infected another member of the family, for example, a blood-relative, and the marriageable betrothed woman has remained immune up to this time, it is licit for her to reveal the matter, but she is not bound; indeed it would not even be licit, unless the good name of the infirm blood-relative were preserved. Wernz, vol. 4, n. 254; Nouv. Rev. Theol., vol. 45, p. 611; Rev. du Clerge Francais, vol. 75, p. 227.

7°. It is evident that wedlock is not of itself to be entered by those who are wholly unfit to bear its burdens, who are so dull in mind or so debilitated in body that they can scarcely beget or conceive, or provide for the education of children. - Cf. DeSmet, p. 418. But here also caution must be used; for if they are not impotent, it is licit for them to contract on account of the imminent danger of incontinence. Likewise it is certain that such persons who long for future nuptials ought to use every aid of medicine to cure the disease; indeed, also to spend so much time on this cure that there is a founded hope that the damage will be much diminished or will disappear entirely; and thus a minimum danger will be created for the co-party.

Vol. II, Tr. XVIII, Ch. II, Article I. On the Necessity of the Banns

n. 843.

I say. There exists, by necessity of an ecclesiastical precept, a grave obligation of proclaiming the banns before the celebration of Marriage.

It is established concerning the precept from the Lateran and Tridentine Councils and from the new Code: Let it be publicly announced by the pastor between whom marriage is to be contracted (Can. 1022). But the gravity of the obligation is deduced from this, that a general discipline prescribed by two general Councils and resting upon grave motives produces a grave obligation. It is said 1°. by necessity of precept, because it is certain that banns are not required by necessity of the sacrament, for the aforesaid Councils place no invalidating clause. It is said 2°. ecclesiastical, because although by natural law there exists an obligation of inquiring whether some impediment is present for the future Marriage, nevertheless there is not had an obligation of employing such a means.

n. 844.

Questions

Question 1. Whether the aforesaid obligation strictly urges in this region?

Resp. Affirmatively; for it is a universal law, again and again repeated by the Baltimore Fathers both in the First and in the Second Plenary Council and by very many diocesan statutes.

n. 844, Q. 2.

Question 2. Are all who are about to contract subject to the law of proclamation?

Resp. Affirmatively, because the law is altogether general. Nevertheless, by usage Princes are excepted, because their lineage is sufficiently known, and ordinarily their marriages are sufficiently public. Except also the case of necessity, for example, if someone near death should wish to marry a concubine in order to legitimate offspring, and there would be danger in delay. - Cf. Ferraris, under the words Denuntiationes Matrimonii.

Publications are not to be made for marriages which are contracted with dispensation from the impediment of disparity of cult or of mixed religion, unless the Ordinary of the place, according to his prudence, scandal having been removed, has judged it opportune to permit them, provided the apostolic dispensation has preceded and mention of the religion of the non-Catholic party is omitted (Can. 1026).

n. 844, Q. 3.

Question 3. Does a Pastor who omits the banns sin gravely, if he knows that no impediment is present?

Resp. Affirmatively, and the reason is: 1°. because with difficulty can the Pastor be altogether certain that no impediment of Marriage is present; 2°. because, even if no impediment appears before the proclamation of the banns, it can happen that, once they have been proclaimed, some impediment supervenes; 3°. because a law does not cease when its final cause ceases only in a particular case. - But it is probable that it is not a mortal sin if one denunciation, and perhaps even if two, are omitted. Cf. S. Alphonsus, nn. 990 and 991.

n. 844, Q. 4.

Question 4. What formula is to be used in making the proclamations?

Resp. Concerning this matter the Roman Ritual establishes thus: But the publications are to be made in this way. During the solemnities of Masses or during other divine offices, as above, the Pastor is to admonish the people in this sense in the vernacular speech:

"Let it be known to all here present, that N., son of N., of the family N., of the parish of St. N., and N., daughter of N., of the family N., of the parish of St. N., intend to contract Marriage between themselves. Therefore we admonish all and singular persons that if anyone knows that some impediment of consanguinity or affinity or spiritual relationship, or any other impediment whatever, exists between them, which would impede the Marriage to be contracted between them, he ought to reveal it as soon as possible to the Pastor or to the Ordinary of the place; and this we admonish FIRST, if it is the first; or SECOND, if it is the second; or THIRD, if it is the third publication." Tit. VII, c. 1, n. 8.

Vol. II, Tr. XVIII, Ch. II, Article II. On the Circumstances of the Banns

n. 845.

I. - Circumstance of Time

Publications are to be made on three continuous Sundays and other feast days of precept in the church during the solemnities of Masses, or during other divine offices to which the people come in frequency (Can. 1024).

It is said 1°. on feast days, that is, on days of precept at least in the place of the proclamations, and probably also on ferial days on which, from some cause, there would be a great gathering of the people in the church. - It is said 2°. continuous, that is, with no feast day omitted from the first proclamation to the last. But whether the proclamations can be made on feast days immediately succeeding one another, if they occur, is disputed; and there is a twofold probable opinion. It is also probable that it is not mortal if one or another feast day is interposed. - It is said 3°. during the solemnities of Masses, that is, in the parochial or conventual Mass, from the Decree of the S. C. of the Council. - Nevertheless it is licit to make these proclamations during other divine offices, provided there is a frequent gathering of the people to them.

The Ordinary of the place, for his territory, can substitute for publications a public affixing of the names of the contracting parties at the doors of the parochial church or of another church for the space of at least eight days, yet in such a way that, in this space, two feast days of precept are included (Can. 1025).

n. 846.

II. Circumstance of Place

§ 1. Publications of marriages must be made by the proper pastor.

§ 2. If a party has stayed in another place for six months after attaining puberty, the pastor is to explain the matter to the Ordinary, who according to his prudence is either to require publications to be made there, or to prescribe that other proofs or conjectures concerning the state of freedom be gathered.

§ 3. If there is some suspicion of a contracted impediment, even for a shorter stay the pastor is to consult the Ordinary, who is not to permit the marriage unless first the suspicion is removed according to the norm of § 2 (Can. 1023).

n. 847.

III. - Circumstance of Persons, Namely of Minors, Soldiers, and Wanderers

1°. Minors. Canon law establishes nothing concerning minors. Nevertheless, in some places, according to the norm of civil laws, it is the custom that their banns are not proclaimed unless by the express consent of parents or guardians.

2°. Soldiers. By common law soldiers are regarded as if they were wanderers or foreigners. Their banns are to be proclaimed: 1°. in the place where they are in garrisons; 2°. in the place where they resided before military service was taken up; because they have not acquired another domicile of law.

3°. Wanderers. Their banns, according to the common opinion, are to be published in the domicile of fact and in the place of origin, if they have not obtained a true domicile elsewhere, or at least in the place in which they stayed longer. Besides, authentic testimony concerning their free state is to be had, and they are not to be joined in Marriage without the permission of the Ordinary, as the Tridentine Council has it, sess. 24, cap. 7, de Reform. Matrim. Cf. Can. 1032.¹

¹ Cf. Addenda, p. 1119, n. 72.

Vol. II, Tr. XVIII, Ch. II, Article IV. On the Revelation of Impediments

n. 850.

I say. All the faithful are bound, before the celebration of marriage, to reveal impediments, if they know any, to the pastor or to the Ordinary of the place (Can. 1027).

But this obligation generally regards all the faithful of whatever sex, age, parish, or diocese, etc., and also blood-relatives and friends. The reason for the first is drawn from the motive of Religion and charity, and also from the precept itself of the banns. - But the reason for the second is that that law is borne in the name of the Church, to which all Christians are subject. Indeed, although, once Marriage has been celebrated, the positive law of denouncing ceases, nevertheless charity and Religion can, according to circumstances, require the said revelation. - I said of itself, because when grave inconvenience or detriment to you intervenes, or if the revelation would be altogether useless, you are not bound to the revelation. - Cf. S. Alphonsus, n. 995; Baller. note (a), p. 715.

n. 851.

Questions

Question 1. Must impediments known under a secret, even a committed secret, be revealed?

Resp. Affirmatively, probably, even if an oath of not revealing them has been added. The reason is that a natural secret, even committed and sworn, does not oblige when grave damage threatens the community or a third person.

n. 851, Q. 2.

Question 2. Are you bound to reveal an impediment if you alone know it and cannot prove it?

Resp. Affirmatively, and the reason is that in matter of this kind the testimony of one person can suffice. Thus the most common and truer opinion, says S. Alphonsus, n. 995.

Vol. II, Tr. XVIII, Ch. II, Article V. On Certain Other Things to be Premised to the Celebration of Wedlock

n. 852.

Questions

Question 1. What is the obligation of the pastor in this matter concerning the instruction of the people?

Resp. He is bound prudently to instruct his people concerning the sacrament of marriage and its impediments. For if spouses duly fulfill their duties, there is had a most grave bulwark of the Church and of the republic. Discreet and priestly instruction concerning this great sacrament is of the highest importance, so that the betrothed may receive it worthily. Hence Canon 1018 admonishes pastors concerning the duty of their office of not omitting instruction about wedlock.

Besides, it is necessary to exhort minor children under paternal power not to contract marriage without their parents knowing and while they are reasonably unwilling; but if they refuse, he is not to assist at their nuptials unless the Ordinary of the place has first been consulted. - Cf. Can. 1034.

n. 852, Q. 2.

Question 2. What must first be established before marriage is celebrated?

Resp. It must be established that nothing obstructs its valid and licit celebration. But in danger of death, if other proofs cannot be had, it suffices, unless contrary indications are present, that the contracting parties swear an affirmation that they are baptized and entangled in no impediment. - Cf. Can. 1019.¹

¹ Cf. Addenda, p. 1093, n. 26.

n. 852, Q. 3.

Question 3. What must the pastor furnish concerning the investigation before marriage is contracted?

Resp. § 1. The pastor who has the right of assisting at the marriage, at a suitable time beforehand, is diligently to investigate whether anything obstructs the marriage to be contracted.

§ 2. He is to question both the betrothed man and the betrothed woman, even separately and cautiously, whether they are held by any impediment, whether they give consent freely, especially the woman, and whether they have been sufficiently instructed in Christian doctrine, unless on account of the quality of the persons this last questioning appears useless.

§ 3. It belongs to the Ordinary of the place to give particular norms for an investigation of this kind by the pastor (Can. 1020).

n. 852, Q. 4.

Question 4. What does the law establish concerning testimony of baptism? And what concerning confirmation?

Resp. § 1. Unless baptism was conferred in his own territory, the pastor is to require testimony of baptism from each party, or from the Catholic party alone if it is a question of a marriage to be contracted with dispensation from the impediment of disparity of cult.

§ 2. Catholics who have not yet received the sacrament of confirmation are to receive it before they are admitted to marriage, if they can do this without grave inconvenience (Can. 1021).

Indeed, this prescription is most wise, and, duly observed, will drive away very many difficulties. In a word, baptism must always be established authentically. If it was conferred in one's own territory, it will be known from the proper book of baptisms. If it was conferred in another territory, either it is a question of the marriage of two Catholics, or of a Catholic and a baptized non-Catholic, or of a Catholic and an unbaptized person; testimony of baptism from this canon seems to be required from every baptized person: from two Catholics in the first case; from the two, a Catholic and a baptized non-Catholic, in the second case of mixed marriage; from the Catholic in the third case.

Confirmation also ought to be received beforehand. No one fails to see with how many graces one confirmed is heaped up and how fitting a preparation for his conjugal life the reception of confirmation would be.

n. 852, Q. 5.

Question 5. To what is another pastor bound who has carried out the investigation or publications?

Resp. He is bound, by an authentic document concerning their outcome, to render the pastor who must assist at the marriage more certain. - Cf. Can. 1029.

n. 852, Q. 6.

Question 6. When at last can the pastor licitly assist, once the investigations have been completed?

Resp. He ought not to assist before he has received all the documents, and, unless some other reasonable cause requires otherwise, three days have elapsed from the last publication. The reason is that sufficiently ample time may be given for detecting an impediment and making it known to the pastor. - Cf. Can. 1030, § 1.

n. 852, Q. 7.

Question 7. Must the publications ever be repeated?

Resp. Affirmatively, if the nuptials are not contracted within six months, unless the Ordinary of the place has judged otherwise. - Cf. Can. 1030, § 2.

n. 852, Q. 8.

Question 8. When does the pastor licitly assist at the marriage of wanderers, namely of those who nowhere have a domicile or quasi-domicile?

Resp. Except in a case of necessity, he never assists licitly, unless, after the matter has been referred to the Ordinary of the place or to a priest delegated by him, he has obtained permission to assist.

…and 2 more passages — all of them are listed on the topic page.

Concina, Compendium

Daniele Concina, O.P. — 23 passages

Diss. I, Chapter VI — On betrothals and their conditions

n. I.

I. QUESTION I. What are betrothals? ANSWER. Betrothals, of which at present, are a promise concerning a future matrimony, mutual, free, expressed by external signs, bearing an obligation. The promise must needs be mutual, that it may oblige both. Free, coercion and fear being excluded. Expressed by external signs, because internal acts do not suffice. Betrothals bear a twofold obligation, natural and canonical. For by natural right each man is bound to stand by his promises, chiefly in a most grave matter, such as are betrothals. The canonical obligation induces the impediment of public honesty. A promise made to one absent, before his acceptance, does not oblige. Betrothals cannot be contracted under a slight obligation. They can indeed promise to one another under the penalty of losing the earnest-money, and even under no obligation; but these would be simple, jesting promises, not true betrothals, which induce the impediment of public honesty. The betrothed ought to promise to one another mutually, that the betrothals may be valid and firm.

n. II.

II. There is required a deliberate mind of contracting betrothals according to the rite of the Church. If a betrothed man deceive a virgin by a feigned promise, and deflower her, he is bound to marry her; nor is it enough to endow her, chiefly if they be not of disparate condition, and if the virgin herself did not consent to her own defloration and deception. If on the contrary the deceiving betrothed man be of a condition far superior, and known as such by the virgin, then he is bound to endow her, not to marry her. Since in such a case it is presumed, and indeed prudently, that the virgin willed of her own accord to be deceived. On the contrary, if the superior condition of the betrothed man was unknown to the virgin, and he had promised in good faith, the feigned promiser would be bound to marry her.

n. III.

III. This nevertheless is certain to me, that exceedingly few Lucretias are deflowered unwilling. The girls themselves are the cause why they are deflowered. If they abstained from commerce with young men, and led a modest, bashful, and solitary life, as befits their state, they would be impregnable citadels. But the feigned Lucretias of today themselves open the doors, dart the strokes of their eyes, hunt lovers, and with marvellous modes allure, invite, provoke. When they see wretched youths foaming with the sting of lust, and captured by an immodest love, then they employ all womanly prestiges, and display a more elegant beauty with paints, cosmetics, and allurements. They spare no industry, no study, no craft, no fraud, that they may bewitch their little lovers and suitors and drive them into the snares. And when the wretched youths, seduced by so many stratagems and artifices, attempt to enter the citadel, then the crafty Lucretias put forth a fraudulent resistance — who do not resist but invite, do not repel but provoke, that the young men may fall into the snare of a promise of future matrimony. Shameless virgins of this kind are truly foolish, who disturb families, who stir up dissensions, who bring forth enmities, homicides, and most mournful tragedies. Wherefore if a law were passed binding all deflowered virgins to perpetual penance to be performed in ashes and hair-shirt, this law being passed, beyond doubt virgins would become solitary, bashful, and modest, and would dwell hidden at home.

n. IV.

IV. QUESTION II. By what words are betrothals to be contracted? ANSWER. By words or signs which clearly manifest mutual consent, such as are these: I promise, I oblige myself, on my faith I will take thee as wife. Taciturnity does not suffice. He who is silent seems to consent holds good only in one's own favour, otherwise for undertaking a burden. For then this other rule holds good: He who is silent seems neither to consent nor to dissent. Words ought to be employed absolutely. For the rest, according to the diversity of nations signs can be had in place of words.

n. V.

V. Infants, the demented, the drunken, and children cannot contract betrothals, because here, as I have said, they require a liberty immune from coercion and from fear falling upon a constant man. The deaf and dumb from birth, if they be endowed with such understanding that they can perceive what betrothals are and what matrimony is, can contract betrothals, as is gathered from chapter Cum apud sedem on betrothals. For a deaf and dumb man can confess and be absolved. He nevertheless who should at the same time be blind could not contract, because he could be instructed by no signs so as to perceive what betrothals and matrimony are.

n. VI.

VI. QUESTION III. What age is required both for betrothals and for contracting matrimony? ANSWER. Seven years completed are required for betrothals, because commonly at this age the light of reason shines forth. But for matrimony fourteen years in males and twelve in females are necessary. Those who before the years of puberty completed contract matrimony sin mortally, as is had in chapter Qui 1 on the betrothals of the under-age.

n. VII.

VII. QUESTION IV. When the time is not predetermined for betrothals, ought matrimony to be celebrated at once? ANSWER. Betrothals oblige under mortal sin to contracting matrimony, as has been said. When the time is predetermined within a month, a year, and so forth, neither can compel the other before the time has elapsed. But when the time is not predetermined, matrimony ought to be contracted as soon as it can conveniently be done. If it be deferred more than is just, he who is in culpable delay sins. Since betrothals afford a right to future matrimony. Therefore the delaying of that right is an unjust privation. The circumstances nevertheless are to be regarded. When one party defers more than is just, he ought in the interior forum to be compelled by the confessor, as all confess, unless some just and grave cause stand in the way. As regards the external forum, in my judgment a judge will never compel by force that matrimony be celebrated; but will rather persuade the party willing to celebrate the matrimony to renounce betrothals of this kind. For matrimony is a conjunction of souls, which does not consist without liberty. And upon the prudence of the confessor and of the judge this whole business depends. A judge nevertheless is bound to compel that the injured party be indemnified for the dissolution of the betrothals.

n. VIII.

VIII. QUESTION V. Whether it be lawful to affix to betrothals an obligation to a penalty? ANSWER. One penalty is positive, as if someone oblige himself to lose a hundred gold pieces unless he marry Bertha; the other negative, as if someone promise that he will give a hundred to a girl if she will marry him, otherwise not about to give; or if a testator leave a legacy to a girl if she marry such a man, otherwise she loses the legacy. The former penalty canon law forbids and constitutes invalid, as is plain from chapter Gemma on betrothals. For such a penalty stands in the way of the liberty of matrimony. Nor is a penalty to be imposed upon the party drawing back, for the same reason. For although in other contracts penalties of this kind can lawfully be imposed, yet because matrimony is a bond of souls, and indeed perpetual, whose felicity depends upon the concord and benevolence of the spouses, most prudently have the Legislators forbidden every positive penalty. If one has been appended, the party drawing back is not bound to pay it.

n. IX.

IX. QUESTION VI. Can betrothals be dissolved by mutual consent? ANSWER. The affirmative opinion is common, when each party freely consents. If one party should extort from the other by guile, fraud, fear, or importunate entreaties a remission of the obligation, it would not remain immune from the contracted obligation. But when the reciprocal consent is sincere and free, betrothals can be dissolved even when confirmed by oath, because that oath follows the nature of the contract. Wherefore, the contract yielding, the oath yields. The under-age cannot dissolve betrothals by mutual consent before they have arrived at the years of puberty. Puberty being acquired, both, or one of them, can protest, and the betrothals are rescinded, although the other party refuse. If, puberty being attained, they have not protested at once, or, as they say, after three days, the betrothals cannot afterwards be dissolved at the protest of one party, but the mutual consent of each party is necessary. If one attains puberty before the other, he can forthwith draw back, the other party's puberty not being awaited. If one of full age contract betrothals with one under age, he cannot recede from the contract; but the under-age party, having attained puberty, can draw back. When the under-age, betrothals being contracted, attain puberty, a new consent is not necessary, but the contract entered upon perseveres, because it was not retracted. A private protest also suffices. If nevertheless the betrothals were contracted before a bishop or parish priest by the under-age, then, for the redeeming of vexation, the protest ought to be made in the exterior forum.

n. X.

X. QUESTION VII. Whether after betrothals contracted and confirmed by oath it be lawful for one party to enter Religion? ANSWER. If entrance is lawful after a ratified matrimony, by a stronger right it is lawful after betrothals even confirmed by oath: because the oath follows the nature of the contract, which is dissolved by entrance into Religion, and so therefore is the oath also. The party which remains in the world, as soon as the other party has entered Religion, remains free, because he who enters cedes his own right. But he who enters remains bound until profession: so that, if the party which remains wishes to wait, and the one who entered return to the world without profession, the betrothals ought to be fulfilled. Betrothals are also dissolved through the reception of sacred Orders. Nor does he sin who after betrothals receives sacred Orders, whatever some say to the contrary, because always in betrothals this condition is included, unless I shall have passed to a better state. Similarly betrothals are dissolved through a vow either of entering Religion or of receiving sacred Orders.

n. XI.

XI. QUESTION VIII. Is it lawful, betrothals having been contracted, to emit a simple vow of chastity? ANSWER. That, this vow being emitted, the betrothals are dissolved in respect of the party which does not vow, is agreed among all, because the one vowing cedes his own right. It is disputed only concerning the vowing party, whether he lawfully vows and becomes free from the burden of the betrothals. The negative opinion, favouring the nuptials, is defended by Lessius, Layman, Castropalao, and Sánchez, who reports several other authors: because, they say, that cannot be promised to God which was owed to man. By force of the betrothals the body was owed to man. Therefore it cannot be promised to God. How robust this reason is, no one does not see.

n. XII.

XII. The affirmative opinion is defended by grave theologians — Cajetan, Suárez, Vásquez, Azor, Gonet, Pontius, Ledesma, and very many others. This opinion is to me the more probable, provided guile and fraud be absent. Since always in a promise made to a man, in which each man binds his own state, there is included the condition, unless I shall choose a better state of serving God. But celibacy is a better state than that of matrimony, as all confess. Nor does the reason of the opposite opinion urge anything: since that vow is not to the loss of a third party, seeing that all creatures are subject to God. Nor by force of betrothals does the body become owed to a man absolutely, since in them the said condition of a better state is included. The chapter Veniens, which is wont to be opposed, speaks of a crafty woman who had emitted a vow after a postponement of the matrimony, that she might elude her betrothed.

n. XIII.

XIII. A subsequent matrimony dissolves preceding betrothals, as all confess. He nevertheless sins mortally who, betrothals having been entered upon, contracts matrimony with another man or woman. If the matrimony be invalid, the contracting party remains bound, and is held on his own part to fulfil the betrothals; and if he has inflicted loss upon the party, he is bound to repair it.

n. XIV.

XIV. A subsequent valid matrimony not only suspends betrothals but dissolves them, so that, the spouse being dead, one is not bound to fulfil the betrothals, as seems to me the more probable. Preceding betrothals are in no way dissolved by later ones, but the later ones are altogether invalid, even if they were confirmed by oath. Always nevertheless the innocent party remains free, so that she can lawfully marry another. What if to the second betrothals carnal copulation should accede, which had not acceded in the first? If the second betrothed woman knew of the prior betrothals, these are not dissolved, because she willed of her own accord to be deceived. If on the contrary she was ignorant of the betrothals, and was in truth deceived under the hope of future matrimony, then that the second betrothals are valid seems to me the more probable, and that this second deflowered virgin would have to be married. Although, as I said above, rare are the virgins who unwilling and deceived are deflowered. And therefore rare is the case in which second betrothals subsist. He who celebrates second betrothals, if the prior ones, which were valid, are on some head rescinded, is not bound to fulfil the second, as being null: because what from the beginning was null does not by the course of time grow valid.

n. XV.

XV. QUESTION IX. Whether betrothals be dissolved either by delay of time, or by the absence of one of the betrothed, or by change of domicile? ANSWER. If the time be predetermined for ending the obligation, the time having elapsed the betrothals can be dissolved by the innocent party, otherwise by the guilty. If the time be indefinite, they are not dissolved by delay of time, unless it be exceedingly excessive, and the other party press. Authors dispute whether one year, or two, or three ought to be reputed a sufficient interval for dissolving betrothals. A certain rule of this dissolution cannot be prescribed. The age, condition, and state of the betrothed, and several other circumstances, are to be regarded.

n. XVI.

XVI. That betrothals are dissolved by departure into a far region, even with the mind of returning, is the common opinion, and is gathered from chapter De illo on betrothals. The civil laws which oblige a betrothed woman to await for a biennium the return of a betrothed man absent in the same province, and for a triennium if he has gone into a foreign province, have been corrected by canon law. The forum of conscience is chiefly to be regarded in this matter. If with the betrothed woman consenting the betrothed man departed, she is bound to wait until he return according to the predetermined time. Similarly if with the betrothed woman consenting the domicile be changed, the betrothals subsist; otherwise if it be done without her knowledge. In all these things, before betrothals be dissolved, the parish priest is always to be consulted.

n. XVII.

XVII. QUESTION X. What are the supervening causes which suffice for dissolving betrothals? ANSWER. This is the general rule which is commonly assigned. As often as a grave change, vicissitude, or circumstance emerges which, had it been known or foreseen before the betrothals were contracted, would have been an impediment to the celebration of the contract, it suffices for dissolving the betrothals in respect of the innocent party, who is not the cause. For this condition — if things stand as they now are, unless a notable change happen — is always implanted in the contract of betrothals. Nor hence does it follow that all betrothals are conditioned, but only those to which a condition is appended from the free will of the contracting parties. But the general condition implanted in the contract itself does not hinder the betrothals from being absolute, and from inducing the impediment of public honesty.

n. XVIII.

XVIII. A notable defect of beauty, with which the betrothed woman was endowed at the time of the contract, and afterwards has been made deformed, is a sufficient cause for dissolving betrothals, because with a notably deformed girl a prudent betrothed man would not have contracted. The crime of heresy, a scandalous deed bearing infamy, grave enmities, quarrels between the betrothed, and the rest which suffice for a separation from bed, much more suffice for dissolving betrothals. Similarly any impediment whatsoever, whether diriment or impedient, which is adverse to the contracting of matrimony, is enough for rescinding betrothals. Similarly grave poverty supervening upon one of the betrothed, who at the time of the contract abounded in riches, is enough for dissolving betrothals. If nevertheless the betrothed woman should have her whole designated dowry, and the betrothed man were rich, although the other goods of the betrothed woman had perished, then it does not seem a sufficient cause for dissolving the betrothals. But if each of the betrothed be made poor, then by a stronger right the betrothals may be dissolved, because the burdens of matrimony could then be more difficultly sustained, teach Pontius, Rebello, Leander, and the Salmanticenses. But this is not absolutely true. When both are poor, the condition of each is equal. Are betrothals not valid among the poor, provided the betrothed be able to earn bread whereby they may feed themselves and their offspring? In practice nevertheless I myself judge that betrothals of this kind ought easily to be dissolved. Because the rich made poor bear poverty too grievously, and are with difficulty induced to labour. And besides, a rich betrothed man made poor perhaps wishes to abstain from matrimony. Wherefore like cases are to be subjected to a prudent parish priest, that, the circumstances being regarded, he may judge what is expedient in the Lord. This is certain, that those sin who contract matrimony unless they probably foresee that they can acquire those things which are necessary for sustaining the burdens of matrimony.

n. XIX.

XIX. If one of the betrothed become far richer, the other remaining in the state in which the betrothals were contracted, that the betrothals are not dissolved is to me the more probable. For no deception is then in him who has been made richer. Fornication contracted after betrothals dissolves them, as much in respect of the betrothed man as of the betrothed woman, because each violates the fidelity of the betrothals: although the betrothed woman commits a baser crime, it does not nevertheless take away that the betrothed man's fornication suffices for dissolving the betrothals. If nevertheless the innocent party wish to contract matrimony, the betrothals subsist. When both fornicate, the betrothals can be dissolved, because there is not given a mutual compensation, in that the betrothed woman's fornication is far baser and brings infamy upon the betrothed man. A betrothed woman oppressed by force after betrothals can by right be rejected by the betrothed man, because a grave, nay a most grave, change has happened.

n. XX.

XX. QUESTION XI. What antecedent causes dissolve betrothals? ANSWER. There are several, which, if they be unknown to the contracting parties, can dissolve betrothals, otherwise if they were known to them. 1. If a noble and rich man promise to a poor and ignoble girl, thinking her to be rich, noble, and so forth. 2. Preceding fornication of the betrothed woman, as soon as it becomes known to the betrothed man, dissolves the betrothals. On the contrary the occult fornication of the betrothed man inflicts no infamy upon the betrothed woman, and therefore here does not absolutely dissolve them. 3. An accidental cause unknown, which gave cause to the contract, affords a right to the innocent party that he may be able to draw back from the contract. 4. An ignoble betrothed woman is reputed noble, a poor one is believed rich, a deformed one beautiful, a corrupt one is reckoned a virgin: if she wish to contract betrothals, she is bound to lay open these defects, because if she concealed them, she would deceive the betrothed man in a grave matter. But she is not bound to defame herself. True. But neither can she by right deceive her neighbour. What then? Let her abstain from the contract. For the rest, if she wish to enter upon the contract, she ought to lay open the occult and grave defects. This is observed in the sale of a horse, a cow, or an ass by a man truly Christian.

n. XXI.

XXI. QUESTION XII. Who is the lawful judge for dissolving betrothals? ANSWER. The ecclesiastical one, namely the proper bishop, or his delegate. A parish priest in the contentious forum is not a judge. If the cause be occult, the betrothed can by their own authority draw back from the contract. If the betrothed woman be guilty of occult fornication, she ought to be admonished and persuaded by the betrothed man to withdraw; if she refuse, he can call her before a judge: if she be defamed, she herself is the cause.

n. XXII.

XXII. The cause which is assigned for dissolving betrothals ought to be morally certain. In the exterior forum the confession of each party suffices. In the interior forum one trustworthy witness suffices. In the exterior forum also, if the cause be a diriment or impedient impediment, one grave witness worthy of credit suffices. But these things pertain to the ministers of the forum.

n. XXIII.

XXIII. QUESTION XIII. Do children sin mortally who contract betrothals or matrimony with their parents unaware or unwilling? ANSWER. Theologians and canonists commonly affirm it. For if children ought to honour and revere their parents and to obey them, assuredly they are bound to obey them and to honour them in a business most grave of all, whereon depends the institution of life, the peace of families, and the preservation of cities and kingdoms. Parents nevertheless cannot compel their children to marry this woman rather than that. Children under grave fault ought to consult their parents concerning matrimony to be contracted. But parents ought to instruct their children to take a betrothed woman modest, honourable, of good morals, and equal to themselves both in riches and in condition of state. Marriages nevertheless celebrated with parents unwilling are valid, though unlawful.

Slater, Cases II

Thomas Slater, S.J. — 64 passages (filed under the subtopics)

Slater, Cases II, Matrimony, Case 1. Informal Betrothal · Slater, Cases II, Matrimony, Case 2. An Action for Breach of Promise · Slater, Cases II, Matrimony, Case 3. A Promise Confirmed by Oath · Slater, Cases II, Matrimony, Case 4. Debts of Betrothed

Slater, Cases II, Matrimony, Case 1. Informal Betrothal

Titius, a missionary priest, wishes to know whether, by virtue of the decree Ne temere of the Sacred Congregation of the Council, Aug. 2, 1907, a mutual, serious, and deliberate promise of marriage between capable persons, but not made in writing, is of no effect, or whether, notwithstanding the decree, it has the force of a private contract binding gravely in conscience. Furthermore, he asks whether under the name of parish priest in the cited decree are comprehended not only the principal priests in a mission but also their assistants, if there are any. Hence it is asked:

What is the purpose of the decree Ne temere?

What does that decree establish concerning betrothals?

What power do assistant missionaries in England have?

What is to be said of Titius’s difficulties?

Solution

What is the scope of the decree Ne temere?

The scope of this decree was to alter the law about clandestinity so as to remove its uncertainties as far as possible, and to prevent the evils which frequently arise from private and informal betrothals. (Proœmio decreti Ne temere.)

What does the decree lay down about betrothal?

“ Only those betrothals are considered valid and produce canonical effects which have been contracted in writing signed by both the parties and by either the parish priest or the ordinary of the place or at least by two witnesses. In case one or both the parties be unable to write, this fact is to be noted in the document and another witness is to be added who will sign the writing as above, with the parish priest or the ordinary of the place or the two witnesses ” (Sect. 1).

What authority have coadjutor missioners in England?

They are delegated by the bishop to exercise the cure of souls, but according to the Provincial Councils and the declared intention of the bishops, they must exercise it in dependence on the head priest. 1

What about the difficulties of Titius?

n. ¶13.

One of the objects of the new law was to prevent the inconveniences arising from mutual promises of marriage privately entered upon. For as the decree says: “ Experience shows that they are an incitement to sin, causing the deception of inexperienced girls, and afterward giving rise to inextricable dissensions and disputes.” The first section of Ne temere, therefore, provides that “only those,” etc., as above. This section would be valueless for the object in view unless it invalidated betrothals made otherwise than is laid down. So that we must conclude that betrothal not made according to the decree has no binding force directly and of itself. The

n. ¶14.

S. C. super neg. eccles. extraord., 5 Nov. 1902, decided that informal betrothals were invalid in conscience and in law in Spain and in Latin America, where a similar law 1 Manual of Moral Theology, vol. i, 630.

n. ¶15.

to Ne temere has long been in force. This doctrine is maintained by most commentators, e.g., by Gennari, Ojetti, Vermeersch, Ferreres, Besson.

n. ¶16.

The term parish priest comprises the coadjutors as well as the head priest, but the former are bidden to exercise their authority in dependence on the head priest; with dependence upon the Rector.

Slater, Cases II, Matrimony, Case 2. An Action for Breach of Promise

Titius, the son of a wealthy family, seriously, but only by words and love letters, promised marriage to Catherine, an honorable girl. For two years Catherine admitted him to the familiarity customary between betrothed persons, when his love began to grow cold; after some months he contracted marriage with Bertha, who was much richer than Catherine. The abandoned Catherine has scarcely any hope or desire for another spouse, but asks her confessor whether she can safely in conscience bring an action against Titius for breach of promise, since otherwise she has no means by which she may be honorably supported. Hence it is asked:

What is required for betrothals to be valid?

Does any obligation arise from informal betrothals?

If some right arises from informal betrothals, is it lawful to pursue it in a civil court?

What is to be said of the case?

Solution

What is required for valid betrothal?

The decree Ne temere lays down that: “ Only those are considered valid and produce canonical effects which have been contracted in writing signed by both the parties and by either the parish priest or the ordinary of the place, or at least by two witnesses.”

The second question was answered above, p. 244.

But here it must be borne in mind that although no obligation arises directly from informal betrothal in itself, yet obligations do arise indirectly from such betrothal when they are the cause of serious injury to another. There is always an obligation in justice to make reparation for wilful and culpable injustice done to another.

If any right arises from informal betrothal may an action be brought in the civil courts?

Per se questions about marriage and betrothal belong to the ecclesiastical courts. But in countries like England and the United States where no legal force is recognized in ecclesiastical sentences of the Catholic Church, certain cases may be brought into the civil courts which would otherwise have to be tried in the ecclesiastical courts.¹ In cases especially where the injury is not doubtful, and the only practical question is one of damages claimed for the injury, there seems no objection against applying to the civil courts.

1 Manual of Moral Theology, vol. ii, 282.

The case. Catherine has a right to damages for the cruel deception that was practised on her, and for the ruin of her prospects, although the betrothal was not valid in itself. English law gives her a right of action in such a case, and the Church certainly does not wish to deprive her of it. Her confessor, therefore, may tell her that she is perfectly justified in suing Titius for damages for breach of promise in the civil court.

Slater, Cases II, Matrimony, Case 3. A Promise Confirmed by Oath

Titius, a Catholic, formed a familiarity with Titia, likewise a Catholic. One day, overcome by temptation, Titius wished to induce Titia to sin with him. When Titia resisted, he promised, even under oath, that he would afterwards take her as his wife; having heard this, Titia consented to fornication. After some months, when she became pregnant, Titia began to press for fulfillment of the sworn promise. But since Titius now knows her disposition better and, because of her harshness, has no hope of a happy married life with her, and since his love has also grown cold, he asks a confessor whether he is bound to stand by the sworn promise. Hence it is asked:

Do sworn betrothals bind although not written?

To what and how do betrothals oblige?

How are betrothals dissolved?

What is to be said of the case?

Solution

Does a sworn promise to marry bind when it is not in writing?

An unwritten promise to marry is made null and void by the decree Ne temere, and what is invalid can not be made valid and obligatory by adding an oath — accessorium sequitur principale.

To what and how does betrothal bind?

Valid betrothal binds the parties by a serious obligation of justice to fulfil the contract at the time fixed, or if no time was fixed, then at a reasonable time.¹

1 Manual of Moral Theology, vol. ii, 256.

Betrothal may be dissolved by mutual agreement of the betrothed, by the happening or detecting of a circumstance of importance by one of the parties which would have prevented him from making the engagement if it had happened or been known before, by embracing a more perfect state of life, by a dispensation of the Pope for good reason.²

2 Ibid., 260.

The case. Neither the promise made by Titius nor the oath which he took are valid or obligatory in themselves. It was a turpis contractus, and moreover it was not in writing, and so it was invalid by the decree Ne temere. The oath as being accessory was also invalid. However, Titius by an invalid promise has induced Titia, who otherwise was unwilling, to commit sin with him, and she is now pregnant. She will be injured for life unless he marries her. He will be justified in offering her money and trying by other means to induce her to free him from his obligation to prevent harm following to her from his action. But if nothing but marriage will satisfy her and safeguard her reputation, Titius will be bound to marry her, unless indeed incompatibility of temper makes a happy marriage utterly hopeless.³

3 How is betrothal dissolved?

3 Bucceroni vol. ii, n. 920.

Slater, Cases II, Matrimony, Case 4. Debts of Betrothed

Vol. I, Case XXXI: Dispensation from a Prohibitory Impediment Arising from Betrothal · Vol. II, Case XXV: Are Informal Betrothals Binding in Conscience? · Vol. II, Case XXVI: Delegation in Assisting at Betrothals · Vol. III, Case II: Concerning Espousals

Titia, a widow who had promised to marry Paul, approached a confessor and asked whether she was bound to disclose to her betrothed that she was burdened with debts amounting to two hundred pounds sterling and had no means to pay them; for she feared that Paul, when he heard about the debts, would withdraw from the betrothal. Hence it is asked:

…and 24 more passages — all of them are listed on the topic page.

The Casuist

Various; ed. S. Woywod, O.F.M., and J. A. McHugh, O.P. — 47 passages

Vol. I, Case XXXI: Dispensation from a Prohibitory Impediment Arising from Betrothal

Applied correction from Woywod's opening insert: CASE XXXI, if placed after 19 April, 1908, the engagement contract would have to be in writing signed by the parties and two witnesses or by a pastor, otherwise the Church attaches no binding force to it, neither in conscience nor in the public forum.

John contracts valid espousals with Mary, but afterward falls in love with Martha, and, without any just cause, deserts Mary. When he goes to the parish priest to get married to Martha, Mary puts in her claim, and the priest sustains her right. Then John and Martha go before a magistrate and contract civil marriage, which, where the Tridentine decree is published, is no marriage at all.

After some time, when they have two children, they wish to become reconciled with the Church, and also to legitimatize the children; so they ask the parish priest to try to persuade Mary to give upher right, but the attempt is vain. The worried pastor is telling his troubles to a neighbor, and is surprised to hear that the matter can be fixed by a dispensation from the Sovereign Pontiff. He doubts whether the Roman Pontiff can give a dispensation hurtful to the interests of a third party, so he submits the following questions to a theologian:

Whether and for what cause can the Roman Pontiff dispense from an impedimentum impediens arising from valid betrothal?

Whether in the present case there is sufficient ground for a dispensation?

Whether Mary should have given up her right?

Whether, supposing a dispensation granted, John has still any obligations to Mary?

I. Since it is a question of the Roman Pontiff in his public capacity, we can infer from fact to right. Now the Roman Pontiff does dispense in such cases. Therefore, he has the right.

Moreover, "cui licet quod est plus, licet utique quod est minus" Now the Pope can dispense in the case of a marriage ratum non consummatum. Therefore, a fortiori, he can dispense from these lesser impediments.

It is true that in betrothal there is a right acquired by the other party, and the difficulty is: How can the judge, as defender of the law, act prejudicially to the rights of this other party? It must be remembered, however, that the Pope is Chief Legislator as well as Chief Judge. As Chief Judge, he must urge the observance of the law. But as Chief Legislator, he can undoubtedly dispense from the law he has made; for the law-maker can dispense from the law.

However, he can not do so arbitrarily and without cause. The gloss in can. I. dist. 22 in Decret. v. injustitiam says, “nor ought the Pope take away from one in order to give to another unless a cause underlies it.” It therefore requires a grave and just cause for the Pope, although he is Chief Legislator, to use this power. The question now is whether such cause exists.

II. There is no doubt that John did Mary a serious wrong when he deserted her, and committed a grave sin. But should he be compelled to leave Martha and her two children and marry Mary? No one can sincerely propose such a solution. Suppose that after he contracts Christian marriage with Mary, the civil power were to intervene and order him to restore Martha to conjugal rights. It is evident that there are quite sufficient causes for granting the dispensation. And as a matter of fact, in our own times the Pope has granted dispensations of this sort.

n. ¶13.

III. Mary ought to give up her claim, not by the strict rigor of justice, but from charity. She could properly urge her claim until the man went through the civil contract, but afterward, considering his obligation before the civil law, and the birth of his children, and desire of the parents to be reconciled with the Church, she ought to make things smooth by giving up her right. She owes it to herself as well as to them, for even if she married the man before the Church, the other woman would have a claim on him in the eyes of the civil law.

n. ¶14.

IV. Even if a dispensation is granted, the rejected girl still has certain claims: 1. He must restore any presents he has of her, though she is not bound to send back his gifts. 2. He must make compensation for any evils which she may have sustained by his breaking the engagement.

n. ¶15.

It is a disputed question whether the engagement holds if Martha dies before the others. Some hold that the betrothal remains in suspense, and binds once more if the wife dies; others that it becomes altogether extinct. Arguments are drawn by both sides from the texts of the law, which does not seem to be clear on the question. But since there is no word of such an obligation in the rescript of the dispensations, it seems to be the mind of the legislator that by the dispensation the original obligation becomes extinct. In practice, if such a case should arise, it would be necessary to bring it to an ecclesiastical judge.

Vol. II, Case XXV: Are Informal Betrothals Binding in Conscience?

Applied correction from Woywod's opening insert: Case XXV.—The answer to this case is made absolutely certain by Canon 1017 of the Code which reads: "The promise of marriage whether by one party only or mutual is null and void both in conscience and in the external forum unless it is made in writing, signed by the parties and either the local pastor or the bishop, or two private witnesses."

Of the commentators who affirm this, HEINER expresses himself most clearly, and therefore his argument may here be repeated: “As every positive promise engenders under natural law an obligation, and for this reason is binding in conscience and before God, there can be hardly a doubt that even a secret promise to marry is, of its own force, binding in conscience. Although, owing to the positive law, such a secret promise to marry has no legal operation and can not be enforced pro foro externo, this fact changes nothing in the consequences which a promise of this kind begets by virtue of its existence. The law declares invalid the marriage-promise without formal betrothal, not, however, the promise with the intention to take upon one’s self the obligation to enter a prospective marriage, even though this promise is by the legislator declared invalid. In conscience one party is bound to keep such a promise to the other, and to redeem his promise either by formal betrothal or by marriage.”

This argument can not be regarded as proving its point. An informal marriage promise is under the natural law binding, no doubt, but so is the informal marriage. And yet the informal marriage is without doubt invalid, because “owing to the positive law such marriage has no legal operation,” it contracts no matrimonial union pro foro externo, and begets no marriage rights nor duties whatsoever, thus depriving the contract of any value it may have by virtue of the natural law. The appeal to the natural law proves nothing therefore.

On the contrary we would conclude, and we believe correctly so:

If in consequence of the Church’s legislation, governing the forum externum and internum, there ensues from the repudiation of an act, of itself valid according to the natural law, its nullity and ineffectiveness for the forum internum, there must result, if the Church repudiates also the agreement to perform this act, a fortiori also nullity and ineffectiveness of the agreement for the forum internum That the Church has exercised her authority over betrothals pro foro interno is known to every canonist. The bond formed by the betrothal is, in and of itself, easily dissolved, even simply by mutual consent without any particular reason. It is difficult to believe that the words of a certain ecclesiastical law, which in all its other paragraphs undoubtedly does bind in the forum internum, should in its first paragraph, despite its plain wording, refer merely to the forum externum.

One single ground might seemingly be mentioned in support of their claim, but none of the commentators refer to it. The first article says: Ea tantum sponsalia HABENTUR valida, while in the third article we find: Ea tantum matrimonia valida SUNT. However, habentur and sunt are only different terms that have here the same meaning, for alone those betrothals made under observance of the lawful form are valid, because the Church repudiates the informal ones, and deprives them of all value and force. If—and in this all commentators are unanimous, from an informal betrothal not even the fides sponsalitia follows, and therefore a transgression against the holy purity does not involve a breach of faith and a violation of justice (iustitia commutativa) toward the innocent party, then it is difficult to perceive how there can be an obligation in conscience.

The law says: “an informal marriage promise is not a betrothal,” such an informal betrothal can not therefore be a promise with the intention of assuming an obligation, and can not, therefore, be of value and binding in conscience. The position of the commentators who defend the obligation incurred by informal betrothal does not seem consistent. Either they must concede to an informal engagement all effects pro foro interno, which proceed from the natural law, therefore fidelitas and fides (sponsalitia or otherwise) with iustitia commutativa and invalidity of a subsequent betrothal stante priori—three grave obligations therefore, or they must admit that none of the effects, not even the minor obligation of fidelitas, result for the forum internum. VERMEERSCH, in his excellent commentary, supports this view.

Cardinal Gennari refers, moreover, to the introduction of the decree, where are set forth the dangers of informal betrothal, as: first, inducements to sin and the reason why inexperienced girls are deceived; afterward, dissensions and inextricable lawsuits, and concludes with good reason that if informal betrothals were binding in conscience, all these dangers which the legislator intended to set aside would remain, and the legislator obviously can not intend this. Finally he cites from Cardinal Gasparri’s work (De Matrim., n. 78) a decision of the Congregation for Extraordinary Ecclesiastical Affairs. Leo XIII had ordained for so-called Latin America a certain written form for the validity of a betrothal, and to the question whether betrothals without this written form were in those countries binding, at least in conscience, the Congregation, on January 5, 1902, handed down the answer, confirmed by the Pope: The aforesaid betrothals are valid in neither forum.

No confessor has therefore the right to construe any obligation whatsoever from an informal betrothal. If a liability is incurred by one who has entered an informal betrothal, it can not originate from the betrothal (there is no betrothal), but only from some other incidental aspect of the act, for instance the informal betrothal may have been a means to deceive, or to lead into sin.

For this reason it is important to draw the attention of the people to the fact that those who are not willing to make the formal declaration of betrothal are open to suspicion that they have no earnest, no honorable intention. The faithful should be enlightened, likewise, that formal betrothals are not valid if there is an impediment (except the one of forbidden times) and such betrothals become valid only upon the removal of the impediment. For that which a person can not do valide or licite, he can not either validly promise to do.

Vol. II, Case XXVI: Delegation in Assisting at Betrothals

Can the parish priest ^* or the bishop delegate another priest (his curate for instance) to assist at a betrothal, or can they have themselves delegated in another parish by the parish priest there? KNECHT and HEINER affirm this with considerable certainty, and KNECHT applies to this the rule: Plus semper in se continet quod est minus, and, Cui licet quod est plus, licet utique quod est minus. The law, however, speaks of delegation only in cases of marriage, not of betrothal, and there explicitly circumscribes this faculty, therefore all other commentators declare against delegation at betrothals, and so has the S. C. C. decided, March 28, 1908. Pro praxi no special difficulty is thereby offered. If he is not parish priest of the place where the betrothal is made the priest requested to assist may simply secure another witness to the act; then the betrothal at all events is valid ceteris paribus.

^* According to decisions of the S. C. C, the term parish priest, in the sense of the decree Ne temere, does not only refer to pastors in canonically erected parishes, but it means, where parishes have not been canonically erected, all priests lawfully appointed to exercise the pastorate for fixed districts; the term includes, furthermore, chaplains in Army and Navy, within the boundaries of their lawful appointment; furthermore, administrators and coadjutors who, for incapacitated pastors, take full charge of parishes; of spiritual directors of hospitals and other institutions, only those who are not subject to a parish priest; and, in missionary territories, every priest entrusted by his lawful superior with the charge of a station or district,

Is there a law or precept that betrothal must precede the marriage? To this question we must evidently say no. But if two persons wish to become betrothed, they must observe the prescribed form. Otherwise a betrothal does not take place, and he who knowingly and by omission of the prescribed form merely pretends to become betrothed, commits a deception toward the other party and is answerable in foro externo and interno for the consequences of the deception.

Vol. III, Case II: Concerning Espousals

Applied correction from Woywod’s opening insert: Case II.—The New Code abolishes the fourth degree of blood relationship as an impediment to marriage. The impediment of public honesty arising from valid marriage engagements has likewise been dropped by the Code.

Some time before last Easter John entered into a serious and valid contract of betrothal with a widow named Virginia. Virginia was a third cousin of John, and the sponsalia were contracted on condition that the Church would allow them to marry. Application was made for a dispensation from the impediment of consanguinity in the fourth degree, and the dispensation was obtained. Before the marriage took place, however, the widow died. She left a grown daughter, Rhea, whom John now desires to wed. Will it be necessary to get a dispensation from the impediment of blood relationship, since Rhea is John’s third cousin once removed; and will it be necessary also to get a dispensation from the impediment publicae honestatis, on account of the valid espousals that existed between John and Rhea’s mother, Virginia?

Answer—I. There is no need of a dispensation from an impediment of consanguinity in order that John may marry Rhea. Rhea’s mother was John’s third cousin, or, as the Canon Law puts it, the widow Virginia was related by blood to John in the fourth degree of kinship. The widow’s daughter Rhea is related to John in the fifth degree, touching the fourth, in quinto gradu attingente quartum. In English John and Rhea are called third cousins once removed. In Latin they are called consanguinei in quinto gradu attingente quartum. Now the fourth Council of Lateran, held under Innocent III, A. D. 1215, and the Council of Trent, A. D. 1545, restricted the impediment to marriage arising from blood relationship to the fourth degree of kindred, that is, to third cousins. Any relationship beyond the fourth degree, even though it be mixed with a closer degree, say the second or the third, creates no impediment to marriage. Before the fourth Council of Lateran, the impediment extended to the seventh degree, i. e., to sixth cousins. But as it was very difficult to follow up blood relationship to the seventh degree, the council wisely restricted the impediment to the fourth degree. As Rhea’s mother and John were third cousins, or blood relatives in the fourth degree, it follows that Rhea herself is more distantly related to John than the fourth degree, and therefore needs no dispensation in order to marry John.

II. But when we come to the second question the solution is not so easy. Theologians and canonists of high repute have argued the matter for centuries, but the case is still in court. Are espousals valid, when contracted by two persons between whom a diriment impediment to marriage exists, provided these persons contract the espousals on condition of obtaining a dispensation from the impediment?

Theologians are agreed that, if the impediment be one from which the Church can not or does not dispense, or if there be no sufficient reason for granting a dispensation, the espousals are null and void. Even though the impediment be one from which the Church can and does dispense, and there be a just cause for granting a dispensation, nevertheless if either party to the betrothal contract breaks the engagement before a dispensation is granted, then the espousals are null and void, and a subsequent dispensation produces no effect whatever. On this point also the theologians are in accord. If, after a dispensation has been granted, the parties to a betrothal renew their consent, either expressly or tacitly, v. g., by having the banns of marriage published, in that case the sponsalia are valid and produce their canonical effects. On these points there exists no controversy.

The question which divides the theologians to-day, and has divided them for centuries, is this: Are sponsalia, contracted sub conditione: si dispensetur, by persons between whom a diriment impediment to marriage exists, null and void from the beginning, so that, although neither party to them withdraws consent, still they remain null and void and produce no canonical effect, even after a dispensation to wed has been granted, unless there be a renewal of the engagement, after obtaining the dispensation? Or are such espousals conditionally valid from the moment they are entered into, and do they become absolutely valid on the granting of the dispensation to marry, without any renewal of the espousals? If such sponsalia are invalid from the beginning, then obtenta dispensatione they remain invalid, and create no diriment impediment publicae honestatis, between blood relations in the first degree. If, on the contrary, such espousals are conditionally valid, like all other conditional espousals, then, obtenta dispensatione, they become absolutely valid, and create the diriment impediment publicae honestatis, which renders marriage with one another’s blood relations in the first degree null and void. For when valid espousals have once been contracted, then, although they be broken for just and sufficient cause, still they leave behind them a diriment impediment publicae honestatis, which will invalidate the subsequent marriage of either party with the first degree blood relations of the other. Thus a man who is validly engaged to a woman, can not wed her mother, nor her sister, nor her daughter, even though the original engagement be broken by mutual consent and for sufficient cause. The same is true of the woman with regard to the man’s father, brother and son. Now if we apply what has been said to the case under discussion, we would say that if the sponsalia of John and Virginia, contracted “sub conditione: si dispensetur,” became absolutely valid as soon as the dispensation was granted them to wed, then John can not marry validly any first degree blood relation of Virginia, i. e., neither her mother, nor her sister, nor her daughter Rhea. On the contrary, if the espousals of John and Virginia were invalid when they were contracted, then they remained invalid even after a dispensation to wed had been granted, and there exists no diriment impediment publicae honestatis to John’s marriage with Virginia’s daughter Rhea.

Among the theologians who would permit John and Rhea to marry without procuring a dispensation we find Card. de Luca, Berardi, Lehmkuhl, Santi, Scavini, Gury, Giraldi, and very many others. Among the theologians who maintain that John’s espousals with Virginia were valid, and that therefore there does exist a diriment impediment publicae honestatis, between Virginia’s daughter and John, we find the names of St. Alphonsus, Reiffenstuehl, Ballerini, de Angelis, D’Annibale, Noldin, etc. The first of these two groups of theologians maintains that betrothals entered into between persons subject to an impediment, under the condition: IF THE SUPERIOR SHALL HAVE DISPENSED, are radically null from the beginning, so that even after the dispensation has been obtained, although consent has not been revoked, they persist in their nullity unless consent has been renewed.

In support of their opinion they appeal to the Acta S. Sedis, I, p. 121, where we read: “If these espousals were valid, even though contracted sub conditione, then they would be binding from the very moment they were contracted. The condition attached to them adds nothing new, except the note of time, which is made dependent on the dispensation. Supposing the dispensation to have been granted, one party to the sponsalia could force the other party to contract marriage in case this second party should be unwilling to do so, and this he could do, not by virtue of the dispensation, but by virtue of the promise to marry originally made. The source of the obligation to marry would thus have to be traced back to the time that the espousals, even though conditional, were contracted. But, at the time when the espousals were contracted, the contracting parties were not capable of making such a contract, being disabled by the diriment impediment.” From which it follows that a contract that is null and void when made, can not be rendered valid later on, except by renewal of the contract after the disability has been removed.

Again, the Congregation of the Council has repeatedly declared espousals, such as we are discussing, to be null and void in law and of no effect, v. g., January 26, 1709; December 12, 1733; May 2, 1857; November 27, 1858. On October 2, 1857, the same Congregation declared that these espousals are null and void, even though there was question of a blood relative having been violated under promise of marriage and to whom a dispensation was promised afterward. A renewal of the consent was necessary, the Congregation declared, even after the dispensation had been granted. and in the mean time both parties were canonically free to contract other espousals. Finally, according to these theologians, it has always been the steadfast practise of the Congregation of the Council to declare such espousals null and void.

But now listen to the theologians of the opposite side. The reasons which they advance in support of the validity of these conditional espousals are even more cogent than those of their opponents,

They contend that the condition, si dispensetur, annexed to the espousals is possible of fulfilment, since the Church can and does dispense in like cases, the condition is just and legitimate, since there is a sufficient reason for asking for a dispensation and a just cause for granting it. The subject matter of the conditional sponsal contract is perfectly legitimate, namely, marriage upon obtaining a dispensation. ‘A contract, made on a condition that is just and legitimate, becomes valid and binding as soon as the condition is fulfilled. Again, in the opinion of these theologians, no proof can. be drawn from the answers of the Congregation of the Council, because, in the cases reviewed by the Congregation, the dispensation had not yet been fulminated and one of the parties had withdrawn consent, and therefore the sponsal contract remained null and void, even after a dispensation had been obtained. The cases reviewed by the Congregation were therefore altogether different from ours.