The effects of betrothal

539. Four Are the Effects of Betrothals: 1. An obligation of justice, and a grave one, to contract matrimony afterward.

a. An obligation arises because betrothals are a contract, and every contract produces a true obligation. An obligation of justice arises because betrothals are an onerous contract; but every onerous contract produces an obligation of justice. A grave obligation arises because the object of the contract is a grave thing, namely matrimony. It is an obligation to matrimony or, if one withdraws from the betrothals unjustly, at least to repairing the harm which has arisen from the unjust dissolution. It binds afterward, that is, at the determined time, if any was established in the betrothal contract, or if none was defined, when one party reasonably seeks matrimony. Therefore to defer matrimony notably beyond that time without a just cause is a grave sin.

b. To the obligation of each betrothed of contracting matrimony with the other there corresponds in each the right of demanding matrimony from the other at the proper time. Therefore it is not licit for a young man who had contracted betrothals with a girl to abandon her without injury in order to marry another, even if he wishes to endow her abundantly; for the bride can demand the very matrimony by her right.

c. Betrothals, because they oblige to contracting matrimony afterward, also oblige to omitting all things which can impede the future matrimony or render it more difficult and burdensome, and therefore to omitting those things which furnish the innocent party a cause of rescinding the betrothals, especially carnal intercourse with a third person.¹

2. The invalidity of betrothals which are contracted with another person against the faith of the prior betrothals; for what by force of a promise is already owed to one cannot be promised to another.

Hence if a young man has contracted betrothals with two women and sinned with the second:

a. He is held to marry the first, unless she freely yields her right; for the first betrothals do not lose their force, even if afterward he contracted others. Therefore the first bride can be advised to renounce her right freely, but she is not held to this, even if she herself would suffer no detriment or only a light one, while the second would suffer a great detriment.²

b. If the first freely yields her right, the young man is held to marry the second, not indeed by force of the promise, which was null, but to repair the harms inflicted on the second, where she consented to copula because of hope of future matrimony and from it became pregnant.

c. But if the second, when she had copula with him, knew that betrothals had already been entered with the first, the young man has no other obligation toward the second except to pay for the education of offspring perhaps received, because no injury is done to one who knows and wills.

3. The illicitness of matrimony with a third person, unless the betrothals already contracted have been duly dissolved. For although betrothals no longer constitute a prohibiting impediment of matrimony, nevertheless the moral obligation of not contracting against faith given remains.

4. From betrothals, although they are valid and no just cause excuses from not fulfilling them, no action is given for seeking the celebration of matrimony; there is given, however, for reparation of harms which from the faith given happen to the other party.³

a. The action for reparation of harms is of the mixed forum, so that the Church and civil power are equally competent; but they do not suspend the celebration of matrimony. Commission for Interpretation of the Code, June 2-3, 1918.

b. By this disposition of law, ecclesiastical law concerning the effects of betrothals is conformed to the civil law of Austria, section 45 ff., and of Germany, section 1298 f., which admit judicial action only for repairing harms.

c. Hitherto betrothals brought two other effects: a prohibiting impediment of matrimony and the diriment impediment of public honesty. Now, therefore, if someone tries to impede a proclaimed matrimony by this, that matrimony had been promised to him or her by one or the other of the betrothed, he effects nothing.

d. The bishop, although competent as judge in this matter, cannot, as formerly, compel one who refuses to fulfill valid betrothals and has no cause of withdrawing from them to observe the faith given.

¹ What kind of sin carnal copula of the betrothed with a third person is, is said in the fascicle De sexto praecepto7, n. 20, 2.

² St. Alphonsus, n. 540.

³ Cn. 1017, 3.

540. To What Betrothals Entered Under a Condition Oblige. a. Betrothals entered under a possible and honorable condition, e.g., if I shall have received this office, oblige under grave obligation from justice to waiting for the event of the condition; but when the condition has been fulfilled, without another consent they pass into absolute betrothals and produce the obligations of other betrothals, provided neither party meanwhile has revoked consent.

Betrothals which are contracted with a third person before the event of the condition are invalid, because they are against the right of the other party.

Whether, when the condition has been fulfilled, betrothals become valid if one party before the condition was fulfilled illicitly revoked consent, some, Lugo, Wernz, Lehmkuhl, affirm, because an illicit revocation of consent is also invalid; others, Sanchez, Gasparri, D'Annibale, deny it, judging the revocation valid.

b. Betrothals entered under an impossible condition are invalid, unless it is proved that the condition was placed in jest and the betrothals were entered seriously.

c. Betrothals entered under a base condition are invalid before the condition has been fulfilled; therefore they do not oblige to waiting for the event of the condition. But when the condition has been fulfilled, they pass into absolute betrothals and produce the obligation of entering matrimony, unless the condition is opposed to the substance of matrimony.

Since betrothals entered under the condition, if the pope shall have dispensed, are, from what has been said above, not certainly valid betrothals, one who after dispensation has been obtained refuses to enter matrimony is not held to entering matrimony.

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.

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:

1. 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.

2. 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.

3. 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."

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."

“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.

726. Principles. - I. Betrothals bind in justice under grave sin to enter matrimony at the determinate time, if one has been determined; but if no time has been fixed, as soon as one party reasonably requires it. The reason is that where there are true betrothals, there is a true contract in a grave matter, and thence a grave obligation follows ¹. - St. Ligorius, no. 845.

¹ This obligation urges both in the forum of conscience and in the external forum. Therefore, one who withdraws can be compelled by the judge to matrimony, even through censures (chapter Ex litteris 10, On Betrothals); although exhortations and admonitions must first precede (chapter Requisivit 17, under the same title), and coercion must also be abstained from if at any time, after inspecting the circumstances, the judge prudently judges that grave evils and scandals are to be feared from unwilling nuptials, for example, perpetual quarrels, the departure of the husband from the wife, or even conjugal murder. For it is expedient that the lesser evil be permitted in order to guard against a graver one, and thus favor is also bestowed upon the Plaintiff by the judge. See Sanchez (book 1, disputation 23, no. 4) and Schmalzgrueber (book 4, title 1, nos. 94-95).

II. Betrothals induce an impeding impediment to matrimony, or one prohibiting matrimony from being licitly contracted with another person unless the prior betrothals have been legitimately dissolved. The reason is that, from what has been said, betrothals produce an obligation of justice. - See what is to be said below, no. 778.

III. Betrothals also induce the impediment which in law is called public decency, by which, namely, one of the betrothed becomes incapable of contracting matrimony with blood relatives of the other in the first degree. - See what is to be said below, no. 815.

727. Questions. - QUESTION 1. If someone contracted betrothals with two women and sinned with the second, which one must he marry?

Reply 1. Matrimony is certainly to be contracted with the first if, when he was contracting with the second, she was aware of the prior betrothal. The reason is that then the second was not deceived but wished to be deceived.

Reply 2. More probably, matrimony is also to be contracted with the first even if the second was not aware of the promise made to the other. The reason is that the promise made to the second is always null, as being concerning an illicit matter, nor does an injury inflicted upon the other take away the right of the first; and this has force even if the second promise was confirmed by an oath. - St. Ligorius, no. 848.

QUESTION 2. Must the first betrothed woman then yield her right if the other would suffer grave harm from the loss of virginity?

Reply. Probably no. The reason is that the second betrothed woman must impute harm of this kind to her own weakness. - St. Ligorius, ibid. Nevertheless, the first should be persuaded to renounce her right voluntarily unless perhaps she also would incur notable harm therefrom. - St. Ligorius, ibid.

728. • QUESTION 3. Are earnest pledges licit in betrothals?

Reply. Yes. The reason is that they are neither prohibited by Canon law nor opposed to natural law. - St. Ligorius, no. 852.

QUESTION 4. Must the bride return gifts ² received from the bridegroom if matrimony does not follow?

² Betrothal gifts or donations differ from earnest pledges because the latter are given as a pledge or security for fulfilling the thing promised; and therefore he who has given them recovers them when that concerning which agreement had been made is fulfilled. On the contrary, whatever is given by way of betrothal largesse cannot be reclaimed once the nuptials have followed, but ownership of it passes fully to the person to whom it was given, or rather the donation is confirmed and becomes absolute.

Reply 1. No, if the betrothal is dissolved through the fault of the bridegroom, because he, by culpably withdrawing from the promise, is deservedly considered to accept the loss of these gifts. Thus common practice.

Reply 2. Yes, speaking per se, if the betrothal is dissolved without the fault of the bridegroom, and a fortiori if through the fault of the bride; for the bride cannot retain them without injustice, since they were bestowed only in view of matrimony. The same would have to be said if one of the betrothed who received gifts or earnest pledges from the other were overtaken by death before the matrimony was entered; for according to what has just been said, the parents of the deceased are bound to restore everything to the surviving betrothed.

I said speaking per se, because if, considering the condition of the bridegroom, the gifts are of small importance and he does not object, he is considered to remit them.

729. • QUESTION 5. Must one who promised matrimony to a girl on the condition that he sin with her marry her?

Reply. Yes, with the common opinion, according to what was said concerning Justice, volume 1, nos. 729 and 760 ³. - See St. Ligorius, book 3, no. 642, where he says that this opinion must altogether be held.

³ In the notes which you will find appended to these places, it was shown that the opposite opinion is strengthened merely by the deceptive coloring of fallacious citations.

730. • QUESTION 6. Can a merely civil marriage, as it is made in France before a magistrate, be regarded as equivalent to betrothal?

Reply 1. It appears that it must be affirmed if the contracting parties have the intention of afterward having recourse to the Church and contracting before the Pastor, and manifest this intention by an external sign ⁴. The reason is that then they do not contract matrimony but only satisfy the prescription of civil law and at the same time bind themselves, at least implicitly, to contract true matrimony before the Church.

⁴ This question ought to appear nearly useless. For it must not be thought that those who approach the magistrate for this reason had not previously agreed among themselves concerning the matrimony to be contracted or had not expressly given mutual pledges. It must therefore be supposed that true betrothals have already preceded. As regards the obligation of betrothal and the consequent impediment of public decency arising therefrom, it appears useless to inquire whether a ceremony of this kind before the civil magistrate contributes anything to these.

Reply 2. If they do not have such an intention, the civil contract cannot be regarded as a betrothal contract. The reason is that there is no promise of matrimony ⁵, but only a clandestine matrimony here and now, which in no way has the force of betrothal, as the Sacred Congregation of the Council of Trent declared ⁶. - Carriere, no. 565. - See Cases, no. 847.

⁵ Where the intention of celebrating matrimony before the Church is absent, not only in this civil contract (if it merits the name of contract), but not even in the preceding pledge concerning future nuptials, which must be supposed to have been mutually given, will there be any true promise of matrimony or any nature of true betrothal. The reason is evident, because if that intention is absent, matrimony, which does not exist among Christians apart from the Sacrament of Matrimony, is no longer promised; but under the name of matrimony a merely concubinous union is promised.

⁶ That a clandestine matrimony, even with intercourse subsequently occurring, is not resolved into betrothal concerning the future is reported in a twofold declaration by Benedict XIV (Canonical Questions 291, near the end), and you also have it in the Thesaurus of Resolutions of the Congregation of the Council (volume 2, pp. 239-244). Therefore, Cabassutius (Theory of Canon Law, etc., book 3, chapter 24), Coninck (On the Sacraments, disputation 32, no. 78), De Rhodes (Scholastic Theology, Treatise on the Last Five Sacraments, section 5, section 7), Schram (Institutions of Theology, On Matrimony, no. 1230), and any others who, for precisely this reason, taught that the impediment of public decency arises therefrom only to the first degree, are not to be heard. Nevertheless, an exception must be made with Sanchez (book 2, disputation 20, no. 6) unless those contracting the clandestine matrimony had the intention of binding themselves in the manner in which they could; for since they could bind themselves through betrothal, they will remain thus bound, not indeed by force of the contract concerning the present, which is null, but from betrothals contained implicitly in the same contract according to their intention.

A graver question is debated whether that impediment of public decency arises from a clandestine matrimony, not insofar as it passes over into betrothal, but insofar as, according to the ancient Law (which St. Pius V, in the Constitution Ad Romanum, July 1, 1568, declared to be in no way changed as regards this), an impediment of this kind, and indeed to the fourth degree, arises from any ratified matrimony, even invalid, provided it was not invalid because of defect of consent. This question can indeed also regard those who perhaps had the intention of contracting betrothal concerning the present before a civil magistrate.

Moreover, several, and indeed grave Authors, taught that the impediment is incurred, such as Gonzalez, Pontius, Wiestner, Guttierez, Laurenius, Fagnanus, etc. They appear to have been led chiefly to this opinion by certain Declarations of the Sacred Congregation of the Council which were circulated, the principal and better known of which can be seen in this same place in the preceding edition of this work. Nevertheless, others, neither fewer in number nor less venerable in authority, such as Navarrus, Sanchez, Lessius, Tanner, Pirhing, Engel, Barbosa, Cardinal De Laurea, Emmanuel Sa, etc., went over to the opposite opinion and therefore deny that any impediment follows from a matrimony invalid because of the defect of clandestinity. They dispose without difficulty of the Declarations which the patrons of the first opinion allege, and show that some are apocryphal and others do not pertain to the matter. In this diversity of opinions, therefore, there remains place for that general canon which will be stated below for cases of a doubtful ecclesiastical impediment.

834. 1° The obligation of marrying at the opportune time. (A) A certainly valid promise of marriage, whether unilateral or bilateral (espousals), obliges under grave sin to entering the promised marriage, unless a just cause of dissolution is present. For since it is a contract, it obliges each party from justice or at least from fidelity (when the promise is unilateral); and indeed under grave sin, especially if it is bilateral, since the object of the contract, namely marriage, is a grave matter. - Hence one withdrawing without just cause not only sins, but also from justice is held to repair the damage inflicted on the other.

It was said certainly valid; because if they are doubtful with doubt of fact or of law, the obligation is not to be urged, according to all, since obligations ought not to be imposed unless they are first proved.

835. (B) As to the time at which this obligation must be fulfilled, (a) if it has been fixed in the contract itself, this is to be stood by, unless a just cause of delay intervenes; but if it has not been determined, the promise must be fulfilled according to the custom of the region, by the judgment of a wise man, or when the other party has reasonably demanded it.¹ - If a difficulty arises between the spouses, the ecclesiastical judge can establish a term, and when this has elapsed, the one who does not wish to marry by that very fact renounces his or her right, so that the other party recovers his or her liberty.

¹ "Let Bishops and pastors take care that marriages not be delayed longer than a year after espousals have been entered." S. C. Prop. Fid., April 13, 1807, ap. Gasparri, n. 68.

(b) If one party should unjustly refuse to enter marriage, he or she should at most be admonished by the ecclesiastical judge rather than compelled by censures. Moreover, "from a promise of marriage, although it may be valid and no just cause excuses from fulfilling it, there is not given an action for seeking the celebration of marriage; nevertheless one is given for the reparation of damages, if any is owed."¹

¹ Code, c. 1017, § 3.

(c) When espousals have been entered under an honorable and possible condition, the parties are held to wait for the event of the condition; as soon as the condition is fulfilled, they pass into absolute espousals, provided that neither party has revoked consent, except perhaps in the case in which the condition was "if the superior shall dispense," as was said above, n. 830.

836. 2° The obligation of omitting those things which can impede the future marriage, but especially carnal intercourse with a third person; for espousals give an initial right to the body of the other (a right to the thing, not in the thing), which is violated by intercourse with another person.

Hence fornication in spouses probably takes on a special malice, especially if it is committed by the woman, who is rendered much worse from it. Yet since the contrary opinion does not lack probability,² the burden of confessing this is not to be urged, unless the betrothed woman has conceived and introduces another's offspring into the family of the future husband.

² Cf. Lugo, de Paenit., disp. XVI, n. 178; St. Alphonsus, n. 847; D'Annibale, n. 512, not. 46.

837. Until Pentecost 1918 espousal promises induced a twofold impediment: namely a prohibiting one with any other person, and the diriment impediment of public honesty. Each has practically been abolished.³

³ Code, tit. VII, cap. III and IV.

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.

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.

Two effects of betrothals are principally enumerated, namely: 1. the grave obligation of entering matrimony at a suitable and legitimate time; 2. an impediment, not indeed canonical but natural, prohibiting all other nuptials.

The impediment of public honesty no longer arises from betrothals, as the Council of Trent established, sess. 24, c. 3, de reform. matr.

715. 1. The grave obligation of entering matrimony at the due time arises from the very nature of betrothals, since they certainly are nothing other than an onerous contract gravely obliging the parties to contract the promised matrimony at the due time. Hence a betrothed man who without sufficient cause withdraws from a valid betrothal contract, or unduly defers the matrimony to be contracted against the will of the betrothed woman, sins gravely against justice; indeed, he is also bound to restitution if material damage has arisen for the betrothed woman from this manner of acting. But from a valid betrothal contract there is no action before a tribunal to seek the celebration of the matrimony; there is, however, an action for the reparation of damages, if any have arisen.^456a This action indeed can be brought before the civil or ecclesiastical forum; but it does not suspend the celebration of the matrimony.⁴⁵⁷

The betrothed are to be exhorted most strongly not to defer contracting matrimony unless a most urgent reason is present, because betrothals prolonged for a long time are accustomed to be a proximate danger of sinning. But what delay is gravely illicit cannot be determined by a general rule, since this depends upon many fortuitous circumstances.

^456a Code of Canon Law, c. 1017, § 3.

⁴⁵⁷ Pontifical Commission, June 2, 1918 (Acta Ap. Sed. X, 345).

716. 2. An impediment prohibiting nuptials with a third person. This impediment indeed now arises not from canon law but from the very nature of the betrothal promise. Therefore another matrimony contracted, unless the prior betrothals have first been duly dissolved, is gravely illicit; but other betrothals contracted are not only illicit but altogether invalid, since they are contracted concerning an illicit thing. Hence, for example, if a betrothed man sins with another girl and renders her pregnant under a promise of matrimony, nevertheless he is bound to marry the first betrothed woman, because the strict right of the first betrothed woman has remained intact. Not rarely, however, it is expedient that the betrothed woman then freely renounce her right.

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.

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

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.

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.

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

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.

833. The effect of espousals consequent from the nature of the thing is a grave obligation in conscience of entering matrimony at the due time, and indeed from justice, because espousals are a bilateral and onerous promise, which connaturally is a true bilateral contract, and one obliging under grave matter, since it treats of a thing of great moment. Although it does not seem altogether impossible that two might exceptionally intend to oblige themselves only from fidelity, nevertheless it is not usually understood and done so; whence this is not to be presumed, but would have to be proved (II, 478).

Whence:

1° The betrothed are bound under grave matter to avoid all things which can impede matrimony.

2° A betrothed man who without sufficient cause withdraws from a valid espousal contract, or unduly delays matrimony, against the will of the betrothed woman, sins gravely against justice, and is bound to restitution if from this a real damage has arisen for the betrothed woman.

3° Nor is it sufficient to endow the betrothed woman, if she does not consent to this, because the obligation of espousals is not alternative, namely, of taking in matrimony or of endowing, but one obligation is principal, i.e., of entering matrimony, and the other subsidiary, if the prior one is not fulfilled, namely, of repairing damage.

4° Nevertheless "from the promise of matrimony, although it be valid and no just cause excuses from fulfilling it, there is not given an action for seeking the celebration of matrimony" (can. 1017, § 3), namely, in the external forum, whether judicial or administrative; because, as St. Thomas notes: "forced marriages have been accustomed to have bad outcomes" (a. 1, ad 2).

5° "Nevertheless an action is given for the reparation of damages, if any is owed" (can. 1017, § 3); which action indeed is of mixed forum and can be instituted before the civil or ecclesiastical forum, but it does not suspend the celebration of matrimony (com. interpr., June 2, 1918).

Let it be noted:

a) From invalid espousals no obligation arises by reason of the promise, since it is invalid; nevertheless one can arise per accidens on the occasion of the promise made, e.g., for repairing damage inflicted, and especially if someone by promising invalidly deceitfully deceived the other party (II, n. 384).

b) From valid espousals by natural law it is gravely illicit to enter matrimony with a third person; this, however, is not an impediment of matrimony properly so called or canonical, because properly it is not an incapacity of the person, nor is it recognized by canonical law.

c) From valid espousals it is also illicit that matrimony be promised to a third person; indeed this second promise would be invalid, as concerning an illicit thing.

d) He who has promised matrimony to two persons is bound to marry the first, unless she freely renounces her right, as is not rarely expedient; in this case he is not bound to marry the other by reason of the promise, which is invalid, but if damage must be repaired because, on account of the hope of future matrimony, a virgin consented to copulation, or even from this became pregnant, yet not if she herself, in having copulation, knew of the prior espousals (II, n. 384).

e) From a valid unilateral promise there also arises in the promisor an obligation of contracting matrimony, but of itself from fidelity only and under light matter; unless, however, someone intended to oblige himself from justice and therefore under grave matter.

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.

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.

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.

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.

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:

1. What is required for betrothals to be valid?

2. Does any obligation arise from informal betrothals?

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

4. What is to be said of the case?

1. 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.

3. 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.

4. 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.

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:

1. Do sworn betrothals bind although not written?

2. To what and how do betrothals oblige?

3. How are betrothals dissolved?

4. What is to be said of the case?

1. 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.

2. 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.

4. 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.

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:

1. What obligations arise between betrothed persons from betrothal?

2. Is a betrothed woman bound to disclose defects to her betrothed?

3. Under English law, what are a husband’s obligations with regard to his wife’s debts?

4. What is to be said of the case?

1. What obligations between the betrothed arise from betrothal?

They are bound in justice to keep their engagement and to marry at the time agreed on, or within a reasonable time; they are bound to live chastely; one party may not go and live at a distance so that intercourse becomes impossible without the knowledge and consent of the other.¹

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

1 Manual of Moral Theology, vol. ii, 262.

2. Is one who is betrothed bound to make known to the other party any defect he has?

If one party labors under a secret defect which will be injurious to the other party after marriage, such secret defect should be made known to the other party. Otherwise, there will be no obligation to make it known, even though it would give the other party a right to break off the engagement if he should discover it.¹

3. Is the husband liable for the debts of his wife?

A husband is liable for debts contracted by his wife as his agent for the supply of necessaries for herself and children; he is also liable for her torts committed during the coverture. At common law a husband was also liable upon his wife’s contracts made before marriage, but by the Married Women’s Property Act, 1882, the husband “ sued jointly with his wife in respect of a cause of action arising against her before the marriage, is liable only to the extent of such assets as he received or might (but for his own default) have received with her; and if he received none, then he will have his costs of defence, and the judgment for the debt or damages will be separate against the wife, and may be satisfied out of the wife’s separate estate, if she has any.”²

2 Stephen’s Commentaries, vol. ii, 377.

4. The case. If the husband were liable for his wife’s ante-nuptial debts, Titia should make known her indebtedness to Paul before the marriage, otherwise he will suffer serious injury and probable estrangement from her. Even as English law stands at present it will be advisable for Titia to tell her future husband what he will be pretty sure to find out for himself either before or after marriage. As in the circumstances Paul would not be held liable for Titia’s debt of £200, there is the less reason why he should not be told, although she is under no strict obligation to tell him.