Conditional Matrimony

Of the conditions which can be added to the matrimonial contract, some are not repugnant to the substance of matrimony,¹ others are repugnant to it as restricting the rights essentially annexed to matrimony.² We shall speak of each separately; and after these have been treated, we shall add certain things about matrimony under mode, cause, or demonstration.

¹ I contract with you if you are a virgin.

² I contract with you if you abstain from intercourse.

I. Conditions not repugnant to the substance of matrimony. 1. Matrimony under a condition concerning the past¹ or the present² is valid or not valid according as the condition has been fulfilled or not fulfilled (canon 1092, 4°). But the licit use of matrimony is suspended until there is certainty about the fulfillment (St. Alphonsus VI, 890).

2. Matrimony under a condition concerning the future is to be judged thus:

a) If the condition is concerning the future necessary³, when it is known as such, the matrimony is valid at once, unless the contracting parties intend to suspend the matrimony until the event of the condition. In the external forum this condition is held as not added (canon 1092, 1°), that is, the matrimony is judged valid at once unless the suspensive intention is proved (St. Alphonsus VI, 891).

b) If the condition is concerning the future impossible,⁴ when it is known as such, the matrimony is null if it is seriously placed. In the external forum this condition likewise is held as not added (canon 1092, 1°), or the contracting party is presumed to have willed matrimony until the contrary is proved (St. Alphonsus VI, 891).

c) If the condition is concerning the future contingent, the following must be said:

α) If the condition is licit,⁵ the validity of the matrimony is suspended (canon 1092, 3°; St. Alphonsus VI, 892).

β) If the condition is base⁶ and is seriously placed, according to many the matrimony is simply null, but more probably only the validity is suspended (vol. I, n. 849). In the external forum this condition too is held as not added (canon 1092, 1°; St. Alphonsus VI, 891).

¹ I contract with you if you have done this or that.

² I contract with you if you are noble.

³ I contract with you if the sun will rise tomorrow.

⁴ I contract with you if you extinguish the sun.

⁵ I contract with you if the parents have died.

⁶ I contract with you if you have admitted intercourse.

II. Conditions repugnant to the substance of matrimony. Concerning these canon 1092, 2° says: "A condition once placed and not revoked, if it concerns the future against the substance of matrimony, renders it invalid." Gregory IX hands down the same doctrine more fully: "If conditions against the substance of marriage are inserted, for example if one says to the other: I contract with you, if you avoid generation of offspring; or: until I find another richer in honor or means; or: if for gain you hand yourself over to be adulterated, the matrimonial contract, however favorable it may be, lacks effect."¹ Therefore:

1. Conditions against the substance of matrimony are those which are repugnant to the object of the matrimonial contract, that is:

a) Either to the right over the body of the consort, in other words, to the right to acts of themselves apt for generation, as if you say: I contract with you if you abstain from intercourse; if you perform it onanistically.

b) Or to the exclusive right over the body of the consort, or to the unity of matrimony, as if you say: I contract with you if you hand yourself over to be adulterated for gain.

c) Or to the perpetual right over the body of the consort, or to the indissolubility of matrimony, as if you say: I contract with you if, after one or another offspring has been procreated, you abstain from intercourse, or from intercourse rightly performed; or: We contract until domestic life is disturbed or until we marry others, and similar things (St. Alphonsus VI, 881, 882).

Corollary I. Conditions which are opposed to the moral or religious good of offspring are not against the substance of matrimony, and therefore do not invalidate it; as if you say: I contract with you if you educate the offspring in unbelief, in heresy. The reason for the assertion is that the said condition is not repugnant to the object of the matrimonial contract. Add that the Church has indeed reproved marriages of this kind, but has never declared them invalid. Finally, if the contrary opinion were admitted, even marriages contracted under the condition of educating offspring in other delicts would be invalid; and so far as I know no one has admitted this.

Corollary II. Nor are conditions which are opposed to the physical good of offspring against the substance of matrimony, as if you say: I contract with you if you procure an abortion, if you cast away or kill the child once born. The reason again is that not even a condition of this kind is repugnant to the object of the contract.

2. The conditions set forth under 1 are repugnant to the substance of matrimony if they truly remove or diminish the right itself to arise from the matrimonial contract, or if they are placed as to be fulfilled from justice, or if they are brought into a pact, or at least are so intended that the contracting party positively intends to contract in such a way and not otherwise. The reason is that the said conditions understood thus prevent consent to the object of the matrimonial contract (n. 700).

If the aforesaid conditions are not brought into a pact, and neither party in another way restricts consent to the object of the matrimonial contract, the matrimony is valid. Therefore the following do not stand in the way of validity:

a) A mere will or purpose, or even some agreement without a pact, whether of abstaining from intercourse, or of performing it onanistically, or of procreating one or another offspring and abusing matrimony otherwise, or of abstaining from intercourse rightly performed until they have arrived at better fortune, etc.

b) The mere purpose of preserving perpetual continence in matrimony.

c) A simple promise, by which the contracting parties bind themselves from fidelity alone to preserve continence.

d) A vow of preserving chastity, by which either or both parties bind themselves, or attempt to bind themselves, to God alone.

Question 1. Whether a condition made by pact of preserving perpetual continence is repugnant to the substance of matrimony and therefore invalidates it?

Response. Some affirm, because matrimony essentially hands over the right to the use of the body of the consort. But this right is excluded by the aforesaid pact. Therefore such a pact destroys the object of the matrimonial contract.²

Others judge that matrimony of this kind can be valid, because that pact can be so intended that it leaves the radical or bound right, excluding only the expedit right to the use of the body. But, they say, the former alone, not the latter, belongs to the substance of matrimony; and they think this must be drawn from the fact that, while the conjugal bond remains, the expedit right is lost through adultery, or even through a pact of preserving chastity entered after matrimony has been contracted (cf. St. Alphonsus VI, 881, 1°, 882, 1°).

Question 2. Whether a condition made by pact of abstaining from intercourse for a time, for example until they have arrived at better fortune, or of having intercourse only when conception is less probable, is repugnant to the substance of matrimony and therefore invalidates it?

Response. Speaking theoretically, one can respond what was responded to the preceding question. But in practice it is to be observed: 1° in the case in which there is a true pact, and it, as commonly happens, is not added from a motive of virtue, the matrimony is invalid, since in practice both the expedit and the radical right are limited.

Note. "Pastors should never admit these conditional marriages without a most urgent cause, on account of the many inconveniences and difficulties which can afterwards occur against their validity" (St. Alphonsus VI, 892).

¹ C. ult. De conditionibus appositis in desponsatione vel in aliis contractibus; cf. Collectanea de Propaganda Fide, n. 222, n. 100, 1327 to doubt 3, 1465.

² Some undeservedly try to prove this opinion from the fact that the Blessed Virgin Mary, who had vowed perpetual virginity, in order licitly to contract with St. Joseph, had to enter a pact of preserving chastity. For to contract licitly it sufficed that she knew certainly, whether naturally or by revelation, for example concerning virginity never to be lost, that her spouse would not use matrimony.

III. Matrimony entered under a mode is valid. For a mode supposes a contract complete in its being, to which it is added. Nevertheless matrimony is invalid: 1° if the mode, or rather quasi-mode, added is repugnant to the substance of matrimony and is brought into a pact, as: "I contract with you, but you must abstain from right intercourse"; 2° if both parties or either party positively intends that he or she be bound only in that way, and not otherwise. The reason is that then something substantial of the object is excluded, so that consent to it is lacking. But in these cases it is not a question of a mode properly so called, since, as was said, it supposes a completed contract.

Note. Matrimonial consent once furnished perseveres until it is revoked; and it is presumed to persevere until its revocation is established. This holds even if the matrimony was entered invalidly by reason of an impediment (canon 1093).

“If conditions contrary to the substance of Matrimony are inserted—for example, if one says to the other: I contract with you if you avoid the generation of offspring, or until I find another richer in honor or possessions, or if you hand yourself over to adultery for gain—the contract of Matrimony, however favorable it may be, lacks effect. But other conditions appended to Matrimony, if they are base or impossible, ought, in favor of Matrimony, to be regarded as not appended.” Gregory IX, chapter Si conditiones, 7, On Conditions, etc.

The Holy Office, in response to the doubt of the Bishop of Bosnia, “Whether a Matrimony contracted between a Catholic woman and a schismatic with the intention of violating or dissolving the Matrimony is valid,” on 2 December 1680, responded: “If those things have been reduced to a pact, or the Marriages have been contracted with that condition, they are null; if otherwise, they are valid.” The same Congregation, by a solemn decision on 1 August 1748, declared two Marriages contracted in Transylvania between Calvinists under the condition, “as long as you remain in conjugal honor,” or, “if you preserve the fidelity of the marriage bed,” to be entirely null. Thus likewise several times elsewhere. Cf. A. S. S., vol. 23, p. 711 ff.; C. 128.

“Marriages entered into merely with the error of the contracting parties that the bond of a consummated Marriage can be dissolved in the case of adultery or for other causes are valid. But if they were entered into under this express condition, they are to be regarded as invalid.” Holy Office, 11 March 1868; 18 December 1872.

750. • QUESTION 3. Is a matrimony entered UNDER A CONDITION valid?

Reply 1. It is certain that it is valid if the condition concerns the past or the present and is verified. The reason is that this conditioned consent immediately passes into absolute consent, and therefore nothing is lacking to the validity of the Sacrament ⁴. - See St. Ligorius, no. 890.

⁴ This has force even if the contracting parties are ignorant that the condition is fulfilled. The reason is that they bound their consent not to knowledge of the condition but to its existence; nevertheless, they cannot use the matrimony before receiving notice that the condition exists, since otherwise they would place themselves in danger of fornication. Concerning this, see the history narrated by Fagnanus (on the final chapter, On Conditions Apposed, no. 13) and Schmalzgrueber (book 4, title 5, no. 40).

Reply 2. If an honorable and possible condition concerning the future is added, I say, first: the matrimony is not perfected until the condition is fulfilled, because the contract must transfer a mutual right over the bodies concerning the present, as was said above. I say, second: when the condition has been fulfilled, the matrimony is valid; for a conditioned contract, when the condition has been fulfilled, passes into an absolute contract and by that very fact is valid by reason of the Sacrament, because among Christians the contract of matrimony cannot be separated from the Sacrament ⁵.

⁵ That a conditional matrimony immediately becomes perfect without new consent when the condition is fulfilled is the most received opinion of the Canonists. Thus Fagnanus (on chapter Super eo, On Conditions Apposed, no. 3), who adds that this opinion of the Canonists is observed in the Curia even after the Council of Trent and therefore must in no way be departed from in counseling and judging.

752. • QUESTION 5. Is a matrimony entered under a base condition valid?

Reply 1. No, if this condition is repugnant to the substance or essence of matrimony, namely, to its threefold good, that is: first, the good of the Sacrament; second, the good of Fidelity; third, the good of offspring. This would happen if the betrothed persons, in contracting matrimony, excluded the generation of offspring ⁶, fidelity in the marriage, or perpetuity in matrimony. But for this it is required that a condition of this kind be expressly apposed and that the betrothed persons intend in mind to obligate themselves in no other way. The matrimony will be valid, however, if this condition is concomitant and therefore is not the motive why the matrimony is contracted, and there is otherwise some general will of contracting validly ⁷.

⁶ The question has been raised whether a condition which indeed excludes the good of offspring but is not base, rather honorable, is an obstacle to the validity of matrimony; for example, when someone adds to the contract the condition: if you live with me in chastity or perpetual continence.

And there were some who denied that matrimony is thus valid. See Gonzalez on chapter Si conditiones 7, On Conditions Apposed, no. 8 and following. They were led especially by this reason: that the contract of matrimony essentially denotes consent to the handing over of the body for conjugal use; but since this handing over imports the obligation of rendering the debt, that is, of furnishing the use of one's own body to the other, with whom by force of the contract the power over that same body remains, surely either there will be no contract, or certainly the one contracting must consent to conjugal use.

But a purpose of continence plainly excludes consent of this kind; and a fortiori this must be said of one who contracts with a firm will of keeping a vow of chastity which perhaps he made, since he does not have that consent otherwise essential to the matrimonial contract, nor can he have it without sin if he wishes to use the period of two months granted for deliberating. Finally, a fortiori, there will be no contract of matrimony if this very thing is reduced to an agreement or condition. And from this arises a difficulty also concerning the matrimony of the Virgin Mother of God with St. Joseph, and of others concerning whom ecclesiastical history speaks; for example, St. Pulcheria, who chose Marcian Augustus as her spouse with the virginity which she had vowed to God preserved.

But it is shown without difficulty that the apposition of that condition is no obstacle to matrimony being validly contracted, and therefore to a right over one's own body being truly handed over to the other and at the same time the obligation proper to matrimony concerning the rendering of the debt being undertaken.

And indeed it is certain that the purpose of not consummating matrimony is no obstacle to the validity of matrimony as regards one who has the intention either of passing over to Religion and professing in it or at least of suspending the execution of the conjugal obligation if he wishes to use the period of two months granted for deliberating concerning that matter. And now it does not pertain to the matter to dispute when this is licit or illicit; meanwhile, it must be held certain that a matrimony of this kind is valid and therefore that the handing over and power over one's own body which constitute the substance of matrimony are given to the other.

You will perhaps say that in this case the substance of matrimony is preserved, and the right granted is therefore by no means injured, because the nature of the contract itself bears this, which implicitly has this condition inserted; but no one is considered to obligate himself beyond what the nature of the contract bears, and consequently no further right is acquired by the other party.

But I say that this is not the sole reason for which, with the right of the other preserved, the obligation of rendering the debt can be suspended. I now omit that the bond of matrimony, with that obligation remaining suspended, endures not only through the two months granted for deliberating but throughout the whole period of religious novitiate. But to touch the matter more closely, can that which the laws of the Church grant not equally be furnished by the voluntary concession of him to whom the right over the body of the other belongs? What prevents the contracting parties themselves from agreeing by common consent upon not only two months but years in which they may deliberate? Why could they not suspend by agreement the execution of their own right also for another cause, for example, until the husband has obtained an office sufficient for supporting offspring? Why could they not agree upon a matrimony not to be consummated except after the fortieth or fiftieth year? And if this, why not also throughout the whole of life?

In a matrimony which is made with an agreement of continence, namely, a twofold contract manifestly intervenes: the one proper to matrimony, by which power over one's own body is mutually handed over to the other; the other, by which the spouses mutually yield the use or exercise of this right. Nor does it matter that they agree concerning the exercise or use of their own right before rather than after the matrimony has been entered. For there is no reason why that cannot first be promised which I can afterward licitly furnish. But, as we all acknowledge, after matrimony has been entered the spouses can licitly yield the use of matrimony; therefore they can also promise this beforehand.

I said promise, because in reality before the contract of matrimony they do not renounce the right over the body of the other; for renunciation or abdication of use has place only after the power of using has been acquired. Therefore, they promise only that they will renounce it, or, if you prefer, they promise that they will so contract matrimony that at the same time they abdicate its use. But these things do not conflict with each other, since, if an abdication of this kind can be made after the contract, it can also be made in the contract itself. Thus one who buys a house can indeed in the very act of contracting yield the use of that house to the seller.

Nor can it be said that a contract of this kind so lacks every effect that it is in some way deprived of the nature and force of a contract. For: first, one who contracts in this way remains incapable, by force of the matrimonial bond, of contracting with another person; second, if the spouses themselves afterward change their purpose and wish to be united, they will not be fornicators; third, likewise, if the husband who, for example, by agreement permitted his wife the condition of chastity, inflicts force upon her, he will indeed sin against justice because he violates the agreement, or at least will violate the virtue of fidelity because he broke his promise, but he cannot be called a fornicator; fourth, if each spouse not only grants continence to the other but both also vow it to God and afterward do not keep the vow, they will sin against the virtue of religion but not against the virtue of chastity; fifth, if either makes his or her body available to an outsider, that spouse is guilty of violated matrimonial fidelity and consequently is held to be an adulterer; sixth, finally (which it is strange is little observed by those who treat this question), when someone consents in contracting to a condition of chastity, does that person not use the matrimonial right especially? Just as one who buys a house exercises his right over it no less if he uses it by inhabiting it himself than if, unwilling to use it himself, he grants its use to another either for a time or in perpetuity; so surely, when someone voluntarily yields the use of his right over the body of the other, by this very fact he must be considered to have the right and power and to exercise it. For no one legitimately yields anything except that which he has in his power, and by yielding its use he evidently exercises that power. Therefore, it is false that through a condition of preserving chastity apposed to and accepted in matrimony, a contract is entered which has no force and no effect and therefore casts off the nature of a contract.

You have both older and more recent Doctors cited for this doctrine in Rebellus (part 2, book 2, question 10, section 3, no. 19), Clericatus (On Matrimony, decision 3, no. 21, and decision 20, no. 21), Schmalzgrueber (book 4, title 5, no. 119), and Benedict XIV (On the Diocesan Synod, book 13, chapter 22, no. 11), who nevertheless adds that it is altogether necessary for the patrons of this doctrine to inquire diligently concerning the strength and subsistence of this opinion, as though a Herculean labor were required to defend it, or as though no one had yet brought forward anything solid for it! He himself merely opposes the citation of Schmalzgrueber, who otherwise concedes that the same opinion is probable. Moreover, the whole armory which Schmalzgrueber himself opposes (l.c., no. 121) consists in this: that through the apposition of such a condition, the contracting parties exclude the right of the other over their own bodies and the implicit consent to rendering conjugal acts, since by force of it they are obligated neither to demand nor render intercourse. The whole force of this argument, as is evident, is situated in the fallacy by which a right is confused with the exercise of the right, and therefore the renunciation of use with the nonexistence of the right. Are not spouses equally obligated neither to demand nor render the debt if both bind themselves to a religious Order by solemn vow? And if this obligation excluded the right over the body of the other, why is either of them who has intercourse with an outside person an adulterer and why does that person sin against justice? Again, if the obligation neither to demand nor render intercourse excludes the right over the body of the other, how will a matrimony be valid when two persons bound by a simple vow of chastity contract? Let us conclude: a contracting party indeed cannot agree concerning those things which by the order of nature cannot be absent from the contract and by force of the contract are inalienable, such as the right over the body of the other; but in those things whose use is indeed licit but neither commanded nor inalienable, it is false that the contracting parties cannot agree upon abdication.

⁷ That saying of Horace has surely happened to the Author in this place: While I labor to be brief, I become obscure. Therefore, a distinction must be made between an express condition apposed to the contract and a merely internal intention.

When an intention or condition contrary to the substance of matrimony is expressly apposed or reduced to an agreement, it is certain from the final chapter, On Conditions Apposed, that the matrimony is invalid in both forums; and the Apostolic See has declared this several times, as will appear below. Nor is that which the Author adds then required, namely, that the betrothed persons intend to obligate themselves in no other manner. For, as Lugo observes (On the Sacraments, disputation 8, no. 128), a matrimony cannot be valid unless someone sufficiently expresses internal consent externally by words or other signs. But in the aforesaid case (namely, an express condition contrary to the essential goods of matrimony), consent in no way appears to be expressed externally when rather the opposite is signified. Therefore, a valid matrimony cannot be had. Except, however, from the common opinion, the case in which that condition is added by only one of the betrothed persons while the other contradicts it, because if the former proceeds to the contract notwithstanding the contradiction of the latter, the former is presumed, in favor of matrimony, to have withdrawn from that condition. Indeed, there are some who think the same must be said when the other is silent at the apposition of a condition of this kind. For in this case also the silent party is presumed, in favor of matrimony, to contradict. - Schmalzgrueber, book 4, title 5, no. 116.

But if there is question of a merely internal bad intention, this can be understood in two ways: either the contracting party is so disposed in mind that he is altogether unwilling to undertake one of those obligations which pertain to the substance of matrimony; or he indeed has the intention of truly contracting matrimony and therefore of undertaking all the obligations proper to matrimony, although he is not prepared to fulfill them, for example, by breaking off an impure friendship with another woman.

If it is accepted in this latter sense, the matrimony is valid according to the opinion of all, and that for both forums. Although one will easily observe that the obligation which concerns the good of the Sacrament, that is, the indissolubility of matrimony, is scarcely, or scarcely at all, capable of the aforesaid distinction, so that it can be undertaken together with an intention of not observing it, unless perhaps we think that the case pertains here of one who intends to leave his wife after some time and secretly to marry another elsewhere while conscious and certain that the prior bond remains.

But if the matter is understood in the former sense, then even if the bad intention is not reduced to an agreement, nevertheless it per se invalidates the contract as regards the forum of conscience. The reason is evident, because the contract of matrimony from its essence requires consent to those obligations. Therefore, whoever has an intention excluding any one of those obligations by that very fact excludes the essence of matrimony, and consequently the matrimony is null. See Sanchez (On Matrimony, book 2, disputation 29, no. 12), who after St. Thomas clearly explains this doctrine, afterward received by all.

I said per se, for another distinction also has place here which the Author also indicates somewhat obscurely: whether this intention is concomitant with or antecedent to the contract. This distinction must be considered diligently because of consequences of the gravest importance as regards practice. And indeed, since, for example, the indissolubility of the bond pertains to the essence of matrimony, what must be said of those who contract with the intention of establishing a divorce not only as regards bed but also as regards the bond, or of giving the wife a bill of repudiation, as the Jews are accustomed to do according to the Mosaic law? A case of this kind is certainly so far from being imaginary that there is a most frequent occasion of this question, because the opinion of the dissolubility of matrimony also flourishes among the schismatic Greeks because of adultery, and the same custom has prevailed among several Protestant heretics; and finally, the same faculty is given to spouses in many places by civil law, to say nothing now of infidels, whether Jews, Mohammedans, or idolaters. Therefore, it ought not to be surprising if those who contract matrimony in these circumstances at the same time have the intention of dissolving the matrimony because of the aforesaid causes and circumstances.

Cardinal De Lugo proposes the resolution of the question according to the twofold case of the distinction from the common doctrine thus (On the Sacraments, disputation 8, nos. 131-132): If the spouses know that repudiation is permitted in their republic, but at the time of the contract have not added this limitation, that they obligate themselves only under this respect, then, if that knowledge which they had concerning the use of repudiation was antecedent, that is, if they therefore contracted because they knew repudiation to be permitted and otherwise would not have contracted, they now appear to have been unwilling to obligate themselves simply to perpetuity. And therefore judgment must incline to the nullity of the matrimony.... But if the contracting parties were altogether ignorant whether the bond would be perpetual, or if they believed it even to be dissoluble but did not limit their intention at the time of the contract to that estimation, but had a general will of contracting a valid matrimony so that that ignorance or estimation was concomitant, since they would equally contract even without it, then the matrimony appears valid and is to be observed. And the things which the same Author discusses at length (l.c., from no. 120 to no. 130) are plainly worthy of being read, so that he may explain how a twofold contrary will can concur and which, as the more efficacious, must be said to prevail. There he also explains what that will is which is more general than the other (which the Author also indicates) and which is therefore more efficacious. You have the counterparts of these things also in Schmalzgrueber (book 4, title 1, nos. 302-304), where he asks whether the matrimony of a baptized person who wishes to celebrate it under the nature of a contract but not under the nature of a Sacrament, and therefore contracts with an intention excluding the Sacrament, must be called valid; and much more extensively (book 4, title 19, nos. 164-176), where he inquires into the case of Lugo itself.

These things, however, as was premised, have force for the forum of conscience; for in the external forum it is always presumed that that more general will of contracting legitimate matrimony was present, and therefore that any error adverse to the substance of matrimony was merely concomitant, until the contrary is proved. Benedict XIV reports from the consensus of the Doctors the general doctrine upon which this practice of the external forum rests thus (On the Diocesan Synod, book 13, chapter 22, no. 7): If that express condition concerning matrimony to be dissolved because of adultery was by no means apposed, however much the contracting parties were in this error, that the bond of matrimony could be dissolved through adultery, nevertheless there is place for the presumption that, when they wished to enter matrimony as it was instituted by Christ, they wished to contract it altogether perpetual and indissoluble even upon the intervention of adultery; namely, the general will which we have stated, concerning entering matrimony according to the institution of Christ, prevails and in some way absorbs that private error. Hence it happens that the matrimony so contracted remains valid and firm. But where the contracting parties in the matrimonial contract itself apposed an express condition concerning dissolving the matrimony as regards the bond in the case of adultery, it can no longer happen that the particular error remains absorbed by the general will of contracting matrimony as it was instituted by Christ the Lord; but rather a general will of this kind is extinguished and suffocated by the particular error which manifestly prevails and dominates. And hence arises the nullity of the matrimony in contracting which there was apposed

a condition contrary to its very substance. He soon confirms this doctrine in each sense by cited Declarations of the Sacred Congregations.

We find it proposed no less clearly in the Letters which Pius VI gave to the Archbishop of Prague on July 11, 1789: If a legal condition (he says) of dissolving the conjugal bond for the cited causes is apposed to matrimony through an express agreement, the matrimony must be called null and invalid from the beginning, nor could a conjugal bond have arisen therefrom; but an altogether illicit union was agreed upon, which each party, especially the Catholic party, is altogether bound to abandon by the law of Christ. But if no express condition of this kind repugnant to the substance of matrimony was apposed, although the contracting parties generally intend to contract according to the decrees of a sect or law granting the dissolution of the conjugal bond, nevertheless the matrimony must be considered validly contracted, and therefore a perpetual conjugal bond arose which can be dissolved by no civil law and no authority of non-Catholic consistories; and consequently the faculty of passing to other nuptials can be granted neither to the parties and much less to the Catholic party.

Pius VI gives the reason for the resolution, no differently from Benedict XIV, thus: Nor is there lacking an intrinsic reason why the intention of contracting according to the decrees of a sect asserting, or of a law permitting, the dissolution of matrimony does not impede its validity, provided it is not reduced to an agreement. For from this very fact that non-Catholics, deceived by a vain error, judge that the dissolution of matrimony for those causes is by no means repugnant to the law of Christ, it comes about that in their mind, because of that false estimation, the intention of contracting according to laws of this kind or the decrees of a sect by no means excludes the primary intention of contracting according to the divine law confirmed by Christ. Therefore this will remains in the act of contracting, and from it flows and is determined the nature of the consent which is actually furnished. Moreover, consent furnished according to the law of Christ is apt and sufficient for the validity of matrimony unless another canonical impediment stands in the way.

Reply 2. But if the base condition is not repugnant to the substance of matrimony, distinguish: first, it is considered valid in the external forum because there the condition is held as not added; second, it is disputed as regards the forum of conscience, as in other contracts. Ordinarily, however, it is not considered a condition sine qua non, but a mere purpose or promise independent of the matrimonial contract, and therefore the consent is not judged suspended under a base condition unless this is altogether established, as was said in the first reply. - St. Ligorius, no. 891 ⁸.

⁸ The base condition of which the Author now speaks, like an impossible condition, is in reality held as not added only when it is doubtful whether the contracting parties added it seriously or in jest. For since in doubt judgment must be made, according to the norm of law, in favor of the validity of the matrimony, deservedly in this doubt also the Church presumes in favor of matrimony that the condition was not seriously added; deservedly, I say, lest perhaps those who are legitimately united be separated and be joined to others through illegitimate marriages. Nevertheless, since this presumption is only one of law, and not also de iure, it can therefore be overcome by reasons brought forward to the contrary. - Schmalzgrueber, book 4, title 5, no. 64.

It is not held as not added, however: first, if the contracting parties regard it as honorable; second, if it is otherwise established that the condition was seriously added by the contracting parties, and therefore that consent was not furnished except under its occurrence; for the presumption then yields to the truth, and therefore, if the condition does not occur, there will be no matrimony because of the defect of consent, which the Church certainly cannot supply; third, if both contracting parties, or at least one of them, were ignorant of the Constitution which holds conditions of this kind as not added; for it cannot then be said that, because they knew this condition to be rejected by the Church, they therefore contracted absolutely, since they wished to receive the Sacraments according to the intention of the Church. This has force only when the contracting parties know both that the condition is base and that it is not admitted by the Church.

But insofar as the Author adds that, as regards the forum of conscience, it is disputed whether the matrimony, once the base condition is fulfilled, must be held valid, just as in other contracts concerning base matter, see what we said at no. 760 of volume I, where we showed that the opinion denying the validity of these contracts is supported only by the coloring of false citations.

698. 1° On its liceity. Since marriage is a contract, nothing of itself prohibits that it can be entered into under a condition, provided that the condition is not repugnant to the substance of marriage. Yet regularly nuptials of this kind are not to be permitted, both because the Roman Ritual, handing down the form of marriage, describes no other than the absolute form; and because very great inconveniences are customarily born from added conditions, since from this certain marriages become doubtful, and moreover the contracting parties are exposed to the danger of living more freely before the condition has been fulfilled. Yet they can be permitted for a most grave cause and with the consent of the Bishop acceding; indeed, if there is question of revalidating a doubtfully contracted marriage, a condition must be added.

⁴ From the Code, c. 1092, "a condition once added and not revoked: 1° if it is concerning a future necessary event, or impossible, or shameful, but not against the substance of marriage, is held as not added; 2° if concerning a future event against the substance of marriage, it renders it invalid; 3° if concerning a future licit event, it suspends the validity of marriage; 4° if concerning the past or concerning the present, the marriage will be valid or not, according as that which is under the condition exists or not."

699. 2° On its validity. Here a multiple distinction is needed.

(A) If the condition is concerning the past or concerning the present, whether it is honorable or not, (a) the marriage is valid immediately, if the condition is verified; and immediately invalid, if it is not fulfilled; for example, I contract with thee if my father is dead, or if thou hast truly killed my enemy, or if thou art a virgin, etc. In these or similar cases consent is, as it were, bound to the condition, and consequently the conditioned contract immediately passes into an absolute one if at that instant the condition itself has been fulfilled. Moreover, since this is concerning the past or concerning the present, it is not to be feared that the apposition of the condition, even one less honorable, is an incitement to crime.

(b) But as long as it is unknown whether the condition has been fulfilled or not, it is not permitted to use marriage, on account of the danger of fornication.

(c) In the external forum, if the condition has not been explicitly brought into the pact in the very act of marriage, it is difficult to prove its existence;¹ and for the marriage to be declared null under this head, three things must be clearly demonstrated: that a true condition without which not was added, - that the same was not revoked before the celebration of marriage, - and that it was not fulfilled.

¹ Gasparri illustrates this by various examples, n. 869.

700. (B) If the condition is concerning the future, likewise a distinction must be made:

(a) If it is concerning a future honorable and possible event (for example, I marry thee if my father consents), the marriage remains in suspense until the condition shall have been verified; but when the condition has been fulfilled, the marriage becomes valid, provided that the consent previously given perseveres. In this case the marriage is valid without any renewal of consent, according to the common opinion, safe in practice, which the Roman Congregations follow in their decisions;¹ for marriage, even if it has been raised to the dignity of a sacrament, has the nature of a contract, and therefore is perfected when the condition arrives, just as other conditioned contracts.

¹ Cf. Fagnanus, Commentar., cap. 5, De Conditionibus...; Gasparri, n. 850.

Yet according to all it is better, when the condition has been fulfilled, to renew consent. Indeed this is necessary if the marriage was contracted under this condition: "If the Pope shall have dispensed from such a diriment impediment"; for those who contract in this way are incapable of marriage before the dispensation is obtained, and their consent is null; whence new consent, once the dispensation has been obtained, must be expressed.²

² Lugo, De Sacramentis in genere, disp. VIII, n. 98.

701. (b) If the condition is concerning a future impossible or dishonorable event, yet not against the substance of marriage (for example, if you receive a golden mountain as dowry, if you kill your brother), the marriage is valid, and the condition is held as not added. For it is presumed that the contracting parties seriously wished to contract, and did not bind consent to such a condition. - Yet this is only a presumption of law, which admits proof to the contrary in the internal forum; whence if the contracting party bound consent to this condition, the marriage is null if the condition is not fulfilled, but valid when the condition has been fulfilled. But in the external forum, according to can. 1092, 1°, proof to the contrary does not seem ever to be admitted by the judge, lest jesting or a depraved intention prevail against marriage.

702. (c) If the condition is concerning a future event against the substance of marriage, and is brought into the pact by the two contracting parties, or consent is expressly bound to it by either one, the marriage is invalid. For then true matrimonial consent is lacking, since at least one of the essential properties of marriage is excluded.

But if a condition of this kind is posited by only one, the other contradicting, or at least manifesting dissent by silence, the marriage is presumed valid, because the former is judged to have withdrawn from the condition and to have contracted absolutely. Yet that presumption yields to the truth, if it is certainly proved that the former bound consent to this condition.

Likewise, if the condition is merely concomitant, so that consent is not bound to it, the marriage is judged valid. For in the conflict of two intentions opposed to each other, that one is efficacious which prevails in the mind of the contracting parties; but in the present case there is a twofold opposed intention, namely the intention of marrying and at the same time of doing something contrary to the essence of marriage; moreover the intention of marrying, from things commonly occurring, prevails in the mind of the spouses; therefore it is truly efficacious and marriage is contracted. Yet this is a presumption which yields to the truth, when this is certainly established from elsewhere.

Let us declare the matter by examples. 1) If a condition is added against the good of offspring, for example, "provided that we avoid the generation of offspring until we become richer, - provided that after one or another child we exclude offspring"; the intention of the spouses must be explored: if they intend to exclude the right to the legitimate use of marriage, the contract is invalid, because they do not grant a perpetual right over their own body in order to generation, which nevertheless is essential to the essence of marriage; but if, as generally happens, the intention of handing over that right prevails, with a secondary intention of abusing marriage, the contract is valid.

2. Likewise, where the law of divorce is in force, if those about to marry contract under the condition of dissolving the matrimonial bond in the case of adultery or disagreements,¹ so that they would not wish to marry unless divorce were permitted to them, the marriage is invalid; for they do not consent to a perpetual bond, which is of the essence of marriage. But if they are so disposed that they would wish to marry even if divorce were prohibited, the contract is valid.¹

¹ Thus the Congregation of the Holy Office declared, May 20, 1754, that a marriage entered before a Calvinist minister was invalid, because he is accustomed to use a formula contrary to the perpetuity of marriage, in Gasparri, n. 854. See also Instruction of the Holy Office to the Bishop of S. Alberti, December 9, 1874, in Collect. P. F., n. 1301.

¹ Thus the Sacred Congregation of the Council, January 31, 1891, declared valid a marriage in which the bridegroom had wished to contract only a soluble bond, but nevertheless truly to marry. Cf. Acta S. Sedis, vol. XXIII, pp. 711-736.

3. The same must be said of conditions against the unity of marriage, for example, provided that I may take another, - provided that for money you prostitute yourself. - In individual cases an investigation must be made to detect whether or not consent was bound to this condition, and this cannot be supplied by a general presumption. But to detect the intention of the contracting parties, not only must the words by which consent was expressed be considered, but also the facts and circumstances from which the sense of the words can be known.²

² Thus Congregation of the Holy Office, 1877, to the Bishop of Nesqually, in Collect. P. F., n. 1302.

But when doubt remains, one must stand for the validity of the marriage, until the Holy See has decreed otherwise. If the spouses wish to renew consent, this is altogether to be advised.

703. (d) If an honorable condition is added of abstaining perpetually from the use of marriage, for example, for preserving chastity, it is controverted whether the marriage is valid or not. Not a few affirm that it is, because a right over one's own body can be conferred and at the same time the exercise of the right can be excluded, on account of a good motive:³ for then there is a radical right, although bound, and this suffices for the essence of marriage. In this way it is easily explained how there was true marriage between the Blessed Virgin and St. Joseph, although they had vowed virginity. But others deny it;⁴ for a right is the power of using; now if a power of this kind is prohibited, no right is conferred. Moreover the marriage of the Blessed Virgin with St. Joseph was valid: for no condition was added, but the Blessed Virgin was made divinely more certain that St. Joseph had proposed to himself to preserve virginity, and therefore by contracting nuptials absolutely, she in no way committed herself to the danger of violating the vow.

³ Palmieri, De Matrim., p. 17; Ball. P., nn. 225-233; Lehmkuhl, II, n. 690; Gasparri, n. 858.

⁴ St. Thomas, 4, dist. 30, q. 2, a. 1, quaestiunc. 3, sol. 2; Benedict XIV, De Synodo, l. XIII, c. 22, n. 10. D'Annibale, III, 443, note 4.

704. Corollary. From these principles the question can be solved whether a marriage contracted by one who falsely thinks himself bound by a diriment impediment is valid. Certain authors deny it, because one cannot seriously will that which is impossible; moreover, he who is certain that he is laboring under an impediment of this kind, by that very fact knows marriage to be impossible. But others affirm it, because in this case the contracting parties consent insofar as they can; but in fact marriage is possible, since in reality there is no impediment; therefore they furnish true consent; and this must be held from the Code, c. 1085.

According to the principles set forth above, attention must be paid to the intention of the contracting parties: if they think themselves to be so bound by an impediment that they seek nothing other than concubinage, the marriage is not valid; but if they intend to contract insofar as they can, the marriage is valid.

737. A suspensive condition is one which suspends the validity of a contract until it has been fulfilled; for example: I contract matrimony with you if your maternal uncle will give you a dowry.

A resolutory condition is called one which, when it supervenes, dissolves the contract entered; for example: I sell you this house until the death of my father. After the death of the father the contract of sale is dissolved by that very fact. Because of the indissolubility of matrimony a resolutory condition is impossible in the matrimonial contract.

An interpretative condition is called one which is indeed judged to have been implicitly present, but was not explicitly placed; for example, if the bridegroom had known the poverty of the bride, he would never have married her. These interpretative conditions produce no effect, unless, however, they constitute substantial error or error redounding upon the person, as will be said below concerning the impediment of error.⁵³³

Rule I. A matrimony entered under a condition concerning the present or the past is valid or invalid according as the condition is or is not fulfilled. Thus the Code of Canon Law, can. 1092, n. 4.

For example, Caius contracted matrimony with Tullia under the express condition that Tullia had preserved her virginity inviolate. If the matter is so, the matrimony is valid; otherwise it is null.⁵³⁴

⁵³³ N. 788.

⁵³⁴ Cf. Causa Versaliens., Acta Ap. Sed. X (1918), 388 ff.

738. Rule II. A matrimony contracted under an honorable contingent condition concerning the future is suspended until the condition has been fulfilled; but when the condition has been fulfilled the matrimony becomes valid by that very fact, nor is a renewal of consent (per se) necessary.

Such is the common opinion of authors, which rests upon c. 5, X 4, 5;⁵³⁵ for example, Caius contracts matrimony with Laetitia under the condition that her father is to give consent. This matrimony is suspended until the father actually gives consent; when this has been given, the matrimony becomes valid without a renewal of consent. Moreover, those things which hold concerning the fulfillment of a condition hold likewise concerning the renunciation of a condition placed. If Caius in the example adduced were to say to Laetitia: I renounce the condition placed, the matrimony would immediately become valid, provided that the matrimonial consent previously given had persevered. Indeed, an express renunciation is not required, but an implicit renunciation suffices, such as can be had through carnal intercourse freely exercised between the contracting parties. Hence some authors teach that in this case there is still in our days the so-called presumed matrimony, which was otherwise abolished by Leo XIII in the Constitution Consensus mutuus (1892).⁵³⁶ - If a matrimony was contracted under the condition: "if the Pope shall have dispensed," then, once the pontifical dispensation has been obtained, consent is to be renewed in the form prescribed by the laws. Thus from positive law and, more probably, also from natural law.⁵³⁷ The reason is that before the pontifical dispensation was obtained the contracting parties were incapable of giving efficacious consent. - Moreover, in practice it is much better that a renewal of consent always be required when there is question of a matrimony previously contracted under a condition which, once the condition has been fulfilled, has become absolute. If a matrimony has been contracted under a condition, before the fulfillment of the condition either contracting party can indeed validly withdraw from the contract entered; nevertheless, that party is accustomed to act illicitly unless the other party freely consents to the dissolution of the contract. This is evident of itself, because one who thus withdraws breaks the faith given.

⁵³⁵ Cf. Gasparri, loc. cit., n. 849; De Smet, loc. cit., n. 87.

⁵³⁶ Cf. De Smet, De sponsal. et matrim., n. 87; Vogt, Das kirchliche Eherecht, § 31.

⁵³⁷ Cf. Gasparri, loc. cit. II, 994; Feije, De imped. et dispens. matrim., n. 648; De Smet, loc. cit., 994. Cappello, De matr., n. 640, asserts that from natural law there is no obligation of renewing consent.

739. Rule III. A matrimony contracted under a condition concerning a future dishonorable, necessary, or impossible contingency, which nevertheless is not contrary to the substance of matrimony, is valid.

For such conditions are judged as not added.⁵³⁸ Hence, for example, a matrimony is valid which was contracted under the condition that the woman must steal a large sum of money from her father. Another and indeed celebrated example of such a dishonorable condition is a stipulation concerning the education of offspring in heresy or infidelity. Although some authors⁵³⁹ wish this condition to be placed as directly contrary to the substance of matrimony (at least if it has been reduced to a pact), since it is contrary to the spiritual good of the offspring, nevertheless the more common and truer opinion teaches that those who make a pact in this manner indeed sin most gravely, but contract validly unless another diriment impediment stands in the way. The reason is that this condition is commonly held not as a condition sine qua non, but as a pure mode added to the matrimonial contract. Then, even if the education of the offspring in heresy has been truly and expressly stipulated, this condition indeed most gravely violates the spiritual good of the offspring, but not its natural good. But only conditions destroying the natural good of the offspring seem to invalidate the matrimony to be contracted.⁵⁴⁰ This opinion indeed is confirmed from the constant practice of the Church, which has always indeed reproved these pacts concerning the total or partial education of the offspring in heresy or infidelity, but nowhere has established that marriages thereby become invalid.

⁵³⁸ "Conditions placed in matrimony, if they are dishonorable or impossible, must on account of its favor be held as not added" (c. 7, X 4, 5). Thus also the Code of Canon Law, can. 1092, n. 1.

⁵³⁹ Weber, Ehehindernisse, § 3; Lehmkuhl, Theol. mor. II, 880 note; Haine, Elem. Theol. mor. IV, q. 46.

⁵⁴⁰ Cf. Wernz-Vidal, Ius can. V, n. 518; Noldin-Schmitt, De sacr.¹⁹, n. 631.

740. Rule IV. A matrimony contracted with a condition which is contrary to the substance of matrimony is null.⁵⁴¹

The reason is that consent of this kind involves a contradiction. For such a contracting party indeed wills matrimony, but by the condition placed immediately destroys it. But the substance of matrimony consists in three goods, namely, offspring, fidelity, and sacrament, concerning which there was discussion above.⁵⁴² Hence, for example, marriages which are contracted under a condition of avoiding generation, or of not begetting more than two children and thereafter abusing matrimony, or of obtaining a divorce if one pleases, are invalid. Certainly it must be established that such a truly suspensive condition was explicitly placed before the matrimony is declared null on account of this defect. For as long as any doubt remains, one must stand for the validity of the matrimony, since it enjoys the favor of law.⁵⁴³ In the external forum a matrimony is not accustomed to be declared invalid on account of these conditions placed unless it is established that they were expressly reduced to a pact. Hence the marriages of heretics who think divorce lawful are nevertheless judged valid, because a condition of divorce is not accustomed to be expressly reduced to a pact. On October 2, 1680, to the question, "Whether a matrimony contracted between a Catholic woman and a schismatic heretic, with a condition of violating or dissolving the matrimony, is valid?" the Holy Office responded: "If these things have been reduced to a pact, ... the marriages are null; but otherwise, they are valid."

Authors are also accustomed here to raise the question whether a matrimony entered under a condition of observing continence, or even with a vow of chastity, is valid. The more probable opinion teaches that such marriages are valid, provided that the right to intercourse is not excluded. The reason is that in marriages of this kind the contracting parties grant to one another the full right to the use of matrimony; but the essence of matrimony consists in such consent. But that which they then promise to one another, that they will never use the right granted, is accidental and does not take away the essence of matrimony. If both contracting parties promise one another from the beginning that they will never use the matrimonial right, and a fortiori if they emit a perfect vow of chastity, they are said to enter a Josephine marriage,⁵⁴⁴ because such a matrimony is judged to have existed between St. Joseph and the Blessed Virgin.⁵⁴⁵ But such spouses, if they used the matrimony, would indeed sin against the vow, but not against chastity.

⁵⁴¹ Thus c. 7, X 4, 5, and Code of Canon Law, can. 1092, n. 2.

⁵⁴² N. 684 ff.

⁵⁴³ Code of Canon Law, can. 1014. Pius VI wrote excellently concerning this matter in letters given July 11, 1789, to the Archbishop of Prague.

⁵⁴⁴ Josephsehe.

⁵⁴⁵ Cf. P. Rett, Die Josephsehe in ihrem Original und ihrer Nachahmung (Innsbrucker Zeitschrift f. kathol. Theol., 1909, 590 ff.); Wernz, loc. cit., n. 302, note 41; De Smet, loc. cit., n. 89.

46. • I. Notion.

A condition is a circumstance upon which both contracting parties, or one of them, wills the validity of his consent to depend.

47. • II. The liceity of appending a condition to matrimonial consent.

Although the Code of Canon Law is silent concerning this matter, several authors judge that it is not lawful to contract matrimony under a condition, except for grave motives and with the consent of the Bishop, because they think that such a manner of contracting is foreign to the practice of the Church and provides an occasion for many and grave inconveniences.

Certainly it is not lawful to contract in this way while the co-party is unaware, or while those things are omitted which are necessary for proving the appended condition in the external forum.

III. Concerning the influence of a condition on the validity of matrimony.

48. • a) "If (the condition) concerns the future and is necessary, or impossible, or base, but not against the substance of matrimony, it is to be regarded as not having been added." (Can. 1092, 1°.)

Notwithstanding the appending of this condition, matrimony is judged valid from the beginning, because such a condition is reputed by the law as not existing and as not seriously added.

But note that here there is question of a simple presumption of law, which must altogether yield to the truth. Therefore, if both contracting parties, or one of them, altogether wills his consent to depend upon such a condition, either the validity of the matrimony is suspended until the event is verified, or the matrimony is invalid from the beginning, according to the quality of the appended condition. If the condition concerns the future and is necessary or base, the validity of the matrimony is suspended; if the condition is impossible, there is no matrimony.

49. • b) "If (the condition is) concerning the future against the substance of matrimony, it renders it invalid." (Can. 1092, 2°.)

A condition of this kind excludes in the matrimonial contract some essential element. And therefore, by natural law itself, such a condition renders matrimony invalid, as being destructive of matrimonial consent itself. For these two things are mutually repugnant: to will to give something, and to be unwilling to give an essential element of that thing.

Conditions against the substance of matrimony are those which are opposed to the essential goods of matrimony, namely of offspring, fidelity, and sacrament.

Against the good of offspring: e.g., if you avoid conception or procure abortion.

Against the good of fidelity: e.g., if you commit adultery.

Against the good of sacrament: e.g., provided that I have the right of dismissing you at pleasure.

It makes no difference whether those conditions are brought into the agreement explicitly between the parties or not, provided that they altogether exclude the assumption of some essential obligation. But the existence of a pact more easily demonstrates the fact of an appended condition.

In practice, let the priest who must judge concerning the case of a condition of this kind attend to the fact that such appended conditions most often signify the will of not fulfilling obligations rather than of not assuming them. And if the matter is thus, it is certain that the matrimony is valid. (Cf. above n. 44.)

50. • c) "If (the condition is) concerning the future and lawful, it suspends the validity of the matrimony." (Can. 1092, 3°.)

Once the condition has been verified, the matrimony immediately becomes valid, without a new consent being required.

But if the condition is not verified by the event, the conditioned consent altogether vanishes.

51. • d) "If (the condition is) concerning the past or concerning the present, the matrimony will be valid or not, according as that which underlies the condition exists or not." (Can. 1092, 4°.)

S. Th., Suppl. q. 45, a. 2-4; q. 46; q. 47, a. 5.

799. Consent unto matrimony must be internal, externally manifested, and mutual. For thus it is essentially required for every contract (II, n. 456). It must be:

1° Internal, because it is an act of one's own will; but it is required that it be:

a) True, namely, elicited from the intention of entering matrimony, or of mutually handing over and accepting dominion over the body: for no one transfers dominion of a thing which he has, nor imposes a grave obligation on himself, unless he wills it, just as no one can validly minister a sacrament, or an adult receive it, unless he has intended it; whence a fictitious, simulated, jocose consent is not valid.

b) Perfectly deliberate: for no one is judged to assume a grave obligation except with perfect knowledge and full advertence; nor does unconscious consent suffice.

c) Perfectly voluntary and free: no one intends to undertake a grave obligation for the whole of life except by directly voluntary and fully free consent; therefore coerced and extorted consent does not suffice.

2° Externally manifested and intimated, both insofar as matrimony is a sacrament which ought to be a sensible sign, and insofar as it is a contract entered into among men, which cannot be made unless it is externally expressed by a human and sensible sign.

3° Mutual, namely, given and accepted by each party, and morally simultaneous, so that the consent of one not retracted is joined by the consent of the other; otherwise they would not consent unto one thing.

800. Consent regularly ought to be expressed by words and personally pronounced by the contracting parties themselves; yet it is valid per se if it is given by sign or nod or writing, by the aid of telegraph or telephone, or through a procurator or interpreter, unless positive law invalidates it.

For marriages in which at least one party is faithful, the prescriptions of canon law are valid.

1° "For contracting matrimony validly it is necessary that the contracting parties be present either by themselves or through a procurator," can. 1088, § 1; therefore it is not validly entered by letter or messenger between absent persons. The prescription of this canon is applied also to marriages of baptized non-Catholics (Resp. C. S. Officii, June 26, 1949).

2° "Matrimony can also be contracted through an interpreter" (can. 1090).

3° "With diocesan statutes superadded remaining firm, in order that matrimony be validly entered through a procurator, there is required a special mandate for contracting with a certain person, subscribed by the mandator and either by the parish priest or Ordinary of the place in which the mandate is made, or by a priest delegated by either of them, or by at least two witnesses. But if the mandator does not know how to write, let this be noted in the mandate itself, and let another witness be added who also signs the writing himself; otherwise the mandate is invalid. And if, before the procurator contracts in the name of the mandator, the latter has revoked the mandate or has fallen into insanity, the matrimony is invalid, although either the procurator or the other contracting party was ignorant of these things. But in order that the matrimony be valid, the procurator must discharge his office personally"¹ (can. 1089).

¹ Let it be noted in the case of a mandate: 1° the name and surname of the person with whom it is necessary to contract must be so determined that he or she cannot be confused with another person; 2° indications of day, month, and year seem to be required for the validity of the mandate (can. 1659, § 1 and 1894, 4°); 3° that the act of the mandatary be valid, it suffices that at the time when he contracts the will of the mandator be present, although previously it had not existed or had been secretly revoked.

According to the response of the Commission for the Interpretation of the Code, May 31, 1948, the mandator himself must designate the procurator individually, and it is not valid to commit the designation of the same to another.

1° "Let the spouses express matrimonial consent by words; nor is it lawful for them to employ equivalent signs if they are able to speak" (can. 1088, § 2).

2° "When matrimony is to be contracted through a procurator or through an interpreter, let the parish priest not assist unless there is a just cause and it is in no way lawful to doubt the authenticity of the mandate or the faith of the interpreter, after the license of the Ordinary has been obtained, if time allows" (can. 1091).

801. Consent can be conditioned, i.e., given under a suspensive condition on whose existence the contract depends and to which consent is bound, but not under a resolutory condition, since matrimony is indissoluble. Now, conformably to can. 1092:

A. Matrimony entered under a condition concerning the present or concerning the past is immediately valid if the condition is fulfilled, or invalid if it is not fulfilled.

B. Entered under a condition concerning the future:

1° If this is against the substance of matrimony, it is invalid.

2° If it is not against the substance of matrimony, but

a) is concerning something necessary, or impossible, or base, matrimony of itself is valid and the condition is judged not to have been added, because it is presumed not to have to be taken seriously; unless, however, someone intended to render the consent truly dependent on the condition, in which case, if this condition is impossible, the matrimony will never be valid; if it is necessary or base, it will not be valid except after fulfillment;

b) if the condition is concerning a licit contingent thing, matrimony is suspended until the fulfillment of the condition; but when this has been fulfilled, consent by that very fact passes into the absolute and becomes irrevocable. Whence at this moment the contracting parties ought to be in the state of grace; but they cannot use matrimony before it has been ascertained that the condition has been fulfilled.

A condition is against the substance of matrimony when it is contrary to the essential object of the matrimonial contract, or to the primary end of matrimony, or to its essential obligations or properties (cf. can. 1086, § 2): thus the condition of not handing over the right over one's own body, or of avoiding all offspring, of procuring sterility or impotence, or reserving the right of committing adultery, or of dissolving matrimony at will. But these are not against the substance: the will only of partially frustrating generation, of merely not fulfilling the obligations of matrimony, or of educating offspring in heresy or Judaism or unbelief, because this is not opposed to its natural good but only to its spiritual good, or only the purpose of renouncing the use of matrimony.

Question 3. Is Marriage entered under a condition valid?

Resp. It is certain that it is valid if the condition is concerning the past or concerning the present and is verified. The reason is that that conditioned consent immediately passes into absolute consent, and therefore nothing is lacking to the value of the sacrament. But if an honorable and possible condition concerning the future is added, then certainly the Marriage is not perfected until the condition is fulfilled; because the contract must transfer the mutual right over bodies concerning the present. But once the condition has been fulfilled, the Marriage is valid; since a conditioned contract, once the condition has been fulfilled, passes into absolute, and by that very fact is valid by reason of the sacrament, because among Christians the contract of Marriage cannot be separated from the sacrament. - Although Marriage is firm even if the condition is fulfilled while the contracting parties are ignorant, nevertheless they themselves cannot use marriage before receiving knowledge of this fulfillment; otherwise at least in will and intention they would commit fornication. - Cf. S. Alphonsus, n. 890; Baller. note (a) and (b), p. 719.

Question 4. Is marriage entered under a condition concerning a necessary or impossible or immoral future thing, but not against the substance of marriage, valid?

Resp. The marriage is valid, because such a condition is held as not added. - Cf. Can. 1092.

A condition once placed and not revoked:

1°. If it is concerning the future and is necessary or impossible or immoral, but not against the substance of marriage, let it be held as not added (Can. 1092).

Consent concerning a necessary future thing is held in law as equivalent to consent concerning the present; and hence, by the addition of a condition concerning a necessary future thing, marriage is neither suspended nor vitiated, but immediately begins to be valid as if it had been contracted purely and without any condition; for example, I contract with you if tomorrow the sun rises.

In the same way the contract is not suspended if it is concerning an impossible thing; for unless certain indications to the contrary are present, in so grave an affair the contracting parties are deemed truly and seriously to wish to do something and not playfully. And thus in the chapter which is called notable and much allegable, Gregory IX says: "If conditions against the substance of wedlock are inserted, if one says to the other: I contract with you if you avoid the generation of offspring, or until I find another more worthy in honor or resources; or if for gain you hand yourself over to adultery; the matrimonial contract, however favorable it may be, lacks effect. Although other conditions placed in marriage, if they were immoral or impossible, ought on account of its favor to be held as not added." C. 7, X, IV, 5.

Question 5. Is marriage entered under an immoral condition against the substance of marriage valid?

Resp. Negatively; thus the new Code decrees the matter: A condition once placed and not revoked, if it is concerning the future against the substance of marriage, renders it invalid (Can. 1092, 2°).

Because then consent in the substance of the contract, which is altogether required, is not had. Consent into a perpetual and exclusive right is not had; therefore neither consent into marriage. Therefore, when contracting is done truly with a condition against the essence of wedlock, certainly the marriage is null; as when by heretics a formula is employed under that explicit condition that this marriage can be dissolved in the case of adultery, then it can no longer happen that error concerning marriage has been absorbed by the general will of contracting according to the intention of Christ. For marriages between co-parties, say heretical ones, can be valid with a concomitant error concerning its indissolubility, when, as very often happens, the will of contracting marriage according to the intention of Christ prevails, and that error is absorbed in this intention. But if it is certainly established that a condition has been added to the substance of marriage, and especially to indissolubility or perpetuity, such nuptials are invalid. Cf. S. Off., 18 Dec. 1872; 9 Dec. 1874; 2 Oct. 1860; 29 Nov. 1882.

It will have to be investigated whether a condition contrary to the perpetuity and indissolubility of the conjugal bond, in some manner, directly or indirectly, explicitly or implicitly, was brought into the pact by the contracting parties, or whether the marriage was contracted with a depraved will of not consenting to a perpetual bond.

X. Consent limited by a condition makes matrimony null. Wherefore if anyone say, I take thee as my wife, if my father shall have consented, the matrimony is null, because the condition suspends the consent. General and necessary conditions, as if you say, I will marry thee, if it shall please God, in no way suspend the matrimony. If they be impossible or shameful, which do not infect the substance of matrimony, they are held as not added. All conditions which infect the substance of matrimony make it null, as are these: I take thee as mine, if thou shalt bear me no sons, if thou shalt avoid generation, if thou shalt take the poison of sterility, if thou shalt prostitute thyself to be an adulteress. I contract with thee until I shall have found a fairer or richer. These and like conditions destroy the very substance of matrimony, and make it null.

XI. If to matrimony or to betrothals conditions be appended concerning the present or the past, the condition being posited, the betrothals and the matrimony subsist; and the condition being taken away, the betrothals and the matrimony are null: as if you say, I take thee as mine, if thou be a virgin, if thou be the firstborn, if thy parents consent, if thou be noble, if thou be legitimate. If, the matrimony being consummated, it be detected that at the time of contracting she was not a virgin, nor legitimate, nor noble, nor firstborn, the matrimony is null; nor can carnal copulation make it valid. If anyone say, I take thee as mine, if it shall please thy father, and knew that the father was dead, the condition is held as not added. But if he was ignorant of the father's death, a new consent is necessary, that the matrimony be valid. For it is null by reason of the first conditioned consent, because the condition suspends the effect. If the father live and be silent, because the contract pleases him, then the matrimony is valid. If it be detected that he is silent because it displeases him, then the contract is null. If it be doubted why he is silent, the contract is to be suspended until he declare himself. If he consent, and afterwards dissent, the matrimony is valid, provided they persevere in the will of contracting until the father's consent. There is need nevertheless of prudence, and it is to be gathered from the circumstances regarded whether the father's consent was in fact full and true. Nay, prudence dictates that these conditions, as being wellsprings of doubts, are in a contract of so great moment — namely matrimony — altogether to be rejected; and that either one must contract absolutely, or abstain from such a contract.

XII. An honourable condition contrary to the goods of matrimony makes matrimony null; as if they contract under the condition of perpetual chastity, then no right to copulation is given. But this right being taken away, the matrimony is null. Nay, although there can be conjoined with matrimony an intention of not asking the debt, yet if this be brought into an agreement, the substance of matrimony is destroyed. The Blessed Virgin and the Patriarch Joseph contracted absolutely, and mutually transferred power over their bodies, no reciprocal agreement being added, although they had the mind of abstaining from all carnal copulation, God so illuminating their minds.

Case.—Claudius and Bertha wish to marry, but fear to undertake the burden of rearing a family. They marry, therefore, with the private understanding that they shall have no children for at least five years, and that the number of their children thereafter shall not exceed three.

Question.—It is asked whether this marriage was valid.

Solution.—A contract to which an immoral condition is attached is by the law of nature invalid, at least as long as the condition has not been fulfilled, if the condition have reference to the future, since no one can oblige himself to sin. In the case of the marriage contract it is not lawful for the parties to attach to their consent any condition—especially any that regards the future, unless there be most urgent reason for such action; a condition, however, that is possible and not opposed to good morals, does not as such render the marriage contract invalid. Such a conditional consent would be an agreement whereby the parties would transfer to each other the conjugal rights under the proviso that they would never exercise these rights. If some theologians regard such a marriage as invalid, this is only because they hold that the promise to practice continency is inconsistent with the right to conjugal intercourse, ‘and consequently opposed to the nature of marriage.

In the case of Claudius and Bertha, therefore, if their agreement bound them to abstain from the use of marriage before and after a certain time and nothing more, such agreement did not invalidate their marriage, unless one prefers the opinion that an engagement to practice continency, perpetual or temporary, is a denial of the rights to perpetual conjugal intercourse. But the condition by which the couple qualified their consent seems to have been of a very different nature. As the purpose of their prenuptial agreement was to evade the consequences of the marriage act rather than to practice continency, it may be assumed that they intended to limit the number of their children by unlawful means. Such a stipulation is plainly repugnant to good morals, and, therefore, by reason of the principle stated in the beginning it would seem that the marriage of Claudius and Bertha should be invalid. But the positive law has provided that for the marriage contract only those immoral conditions are nullifying which are opposed to the substance of matrimony. “If conditions against the substance of marriage are inserted, for example if one says to the other: I contract with you provided that you avoid the generation of offspring, or until I find another richer in honor or wealth, or provided that you give yourself to adultery for gain, the marriage contract, however favorable it may be, lacks effect. Although other conditions added in marriage, if they are shameful or impossible, ought because of its favor to be regarded as not added” (Decretals iv, tit. 5, 7). A condition that positively and expressly excludes an essential obligation of matrimony, whether intended by one or by both parties, renders the marriage of no effect; for without its substantial obligations matrimony cannot even be conceived.

In the agreement of Claudius and Bertha the condition is not merely sinful, it is opposed to the procreation of children. But the substance of marriage, as the words quoted declare, includes the generation of children (bonum prolis), indissolubility (bonum sacramenti), and conjugal fidelity (bonum fidei).

But here we must distinguish between the rights of marriage and their use, between the duties of marriage and their exercise.

According to St. Thomas (4 Sent. d. 31. q. 1. a. 3.) the essence of marriage does not depend on its use or on the fulfilment of its obligations, but on the intention to acquire the rights and to assume the obligations of the married state. This is the common and certain opinion. Now as Claudius and Bertha are not ignorant of the nature and duties of marriage and as they “wish to marry,” their agreement excludes not the right to, but the exercise of the lawful use of marriage, not the matrimonial obligation, but its fulfillment. Hence it appears that their marriage was valid. Of course if the parties had intended the pre-nuptial agreement as a conditio sine qua non of their marriage consent and if they had wished to exclude the rights and obligations that are inherent to the marriage contract, the ceremony they took part in would not have been a true marriage defectu consensus. Their consent would have depended on a condition that was immoral and opposed to the nature of marriage.

As a general rule marriages contracted with the understanding that the parties are to practice birth control, although sinful because of the intended abuse of marriage, are not thereby rendered invalid. The intention to become man and wife usually outweighs any opposing intention. “If a condition is added against the good of offspring—for example, provided that we avoid the generation of offspring until we have become richer; provided that after one or two children we exclude offspring—the intention of the spouses must be investigated: if they intend to exclude the right to the lawful use of marriage, the contract is invalid, because they do not grant a perpetual right over their own body in relation to generation, which nevertheless is essential to the essence of marriage; but if, as generally happens, the intention of handing over that right prevails, with a secondary intention of abusing marriage, the contract is valid.” (Tanquerey, Syn. Theol. Moral., I, p. 427).