Error of person and of condition

By error is understood a mistaken judgement by which one person or thing is taken for another. It differs from ignorance, which is merely the absence of knowledge. Error, if it is substantial, annuls marriage as it does other contracts, by the law of nature itself. For a contract is not valid unless there be an agreement of wills between the contracting parties, and there cannot be that agreement if one of the parties is in error about the substance of the contract. There will be such a substantial error when there is a mistake about the person with whom marriage is contracted. If A thinks he is marrying B and intends to marry B, the marriage will be invalid if the other party to the contract is C, not B. Sometimes a mistake about the quality or rank of the other party may be substantial and invalidate the marriage. Thus, if a woman thinks she is marrying the eldest son of a peer, and only intends to marry the eldest son, who she thinks is present, the marriage will be null and void if the bridegroom is not the eldest son of a peer. Ordinarily, however, a mistake about the quality or condition of the other party will not be substantial, and will not invalidate the contract. If the lady intends to marry the person present who she wrongly thinks is the eldest son, the marriage will be valid. It is possible that there should be a substantial mistake about the subject-matter of the contract of marriage. Thus, if a woman thinks that marriage is a mere union of friendship between the parties, and when she marries does not intend to give her husband any right to have children by her, the marriage is invalid. Mere ignorance as to the way in which children are brought into the world does not invalidate marriage (Can. 1083, 1082).

If a freeman married a slave under the mistaken belief that she was free, the marriage was null and void by ecclesiastical law; if he married knowing the servile condition of the other party, the marriage was valid. To this extent the Church received the Roman legislation on the marriage of slaves, according to which they could not validly marry one that was free, and their marriages among themselves were merely at the good will of their masters. The law of the Church corrected what was inhuman in the Roman civil law, and adopted its provisions as far as they were in harmony with Christian principles. Nowadays, of course, this impediment can scarcely be of practical importance in any part of the world (Can. 1083, sec. 2, 1);

1. Antonius, the father of a family, greatly desired that his son Ioannes should marry a certain Ioanna, daughter of Antoninus, who was living in another city, and whose old and very useful friendship to himself he wished to preserve and strengthen. Therefore Antonius proposed the matter to his son; but he, who did not know Antoninus nor Ioanna, responded to his father: Allow me to think over and weigh this business well. But when the son Ioannes was weaving delays and meanwhile gave no response to his father, the father, insisting on the same matter, said to the son that there was in that city, which he named, a certain Ioanna, very rich and beautiful, indeed more beautiful than all the other girls of that city. Then the son consented to the marriage, and immediately, permission having been obtained, the marriage was celebrated by proxy in the city of Ioanna. After a few days the bride, with great solemnity, was led into the house of Antonius to her bridegroom Ioannes. But he, seeing her and finding that, although she was in reality very rich, nevertheless she was notably deformed, immediately fled from the paternal home and married another girl.

It is asked: 1. What concerning consent and concerning error as regards marriage? - 2. What is to be said to the case?

R. To the 1st. Consent to marriage is essentially required; so that without consent there is no marriage. The reason is that marriage is a contract; and without consent a contract cannot be had.

But, excepting error of servile condition by reason of the diriment impediment positively established by the Church, no error invalidates marriage unless it is substantial. The reason is the very firmness of this state, which both the private good and the public good altogether require. Hence, according to the opinion which St. Alphonsus, l. 6, n. 1012, calls common and more true, not even error concerning a quality giving cause to the marriage invalidates marriage: here also this error is accidental, not substantial, since it neither removes consent nor removes the object of this contract.

Therefore, in order that error of quality invalidate marriage, it is necessary that it be a substantial error. This is verified 1. when the quality is a condition without which there is no consent; for then, the condition not having been verified, consent is not had, which is altogether substantial in marriage, as in any other contract. It is verified 2. when the quality is determinative of the person; for then another person is had, which is altogether substantial in marriage, as its proper object. St. Alphonsus, l. c., n. 1016, adds another third case, namely when the quality is principally intended and the person secondarily. But this third case practically induces great confusion, and speculatively is not true, or it falls back into the preceding two enumerated cases. For first, in marriage, as in any other contract, its object is always that which is principally intended in it; any other intention added over and above is extrinsic to that contract, and neither removes consent nor removes the object; and therefore the marriage is valid. Besides, that principally intended quality is either principally intended because it gives cause to the contract, or it is principally intended because it is the condition of consent, or it is principally intended because it falls back into the object or person, insofar namely as it is determinative of the person; for otherwise it cannot fall back into the person. The first is to be excluded, because, as has already been said, error of a quality giving cause to the contract does not invalidate marriage. Therefore only the second and third remain, and thus we fall back into the two cases already proposed.

To the 2nd. In order that the case may be resolved, it is necessary to see how the father proposed that bride to his son the second time. If this second time the father was proposing to his son a certain girl of that town, by the name Ioanna, the richest and most beautiful of all the girls of that town, the marriage was evidently null, because those accidental qualities determining the individual person induced substantial error, namely concerning the person itself. But if the father, the second time, was proposing to his son that same Ioanna whom he proposed the first time, namely he proposed Ioanna the daughter of Antonius, the only daughter of Antonius, or the firstborn, or the secondborn, etc., the most beautiful and richest of all the other girls of that town, then the marriage is valid. For then the error certainly is not substantial; since that accidental quality of beauty remains accidental in the case. For a person is an individual substance of rational nature: this individual substance is altogether designated by that expression, Ioanna, firstborn daughter, for example, of Antonius. Now from the whole tenor of the case it must be concluded that the father proposed the marriage to his son in this second way. But if in a practical case there were doubt, Antonius and his son would have to be carefully questioned concerning the manner in which that person was proposed to him in marriage, when finally the son furnished his consent to his marriage.

2. Pantaleo entered betrothals in Spain with Leocadia, she herself and her parents consenting. But when afterward Leocadia's parents opposed the marriage, Pantaleo abducted Leocadia by night, led her into England, and there contracted marriage with her.

It is asked: Was the impediment of abduction present in the case?

R. The resolution of the case depends on the question whether he incurs the impediment of abduction who abducts a girl previously duly betrothed to himself. It seems that one must respond: 1. Affirmatively, if the bride has a just cause for receding from the betrothals. For in such a case a true injury is done to the bride, and it is the same as if betrothals had not preceded. - 2. But if the bride has no just cause for receding from the betrothals, there is controversy. Sanchez, de Matr., l. 7, d. 13, n. 15, and others affirm from c. pen. de Rapt., where it is said: "That man ought not to be called an abductor, since he had the consent of the woman; and he betrothed her before he knew her, although the parents protested." Therefore "the marriage is null if the woman is taken away unwilling, otherwise if willing, even if the parents are unwilling; and in the beginning of the text it is not said that abduction does not intervene because betrothals preceded, but because the woman consenting was abducted." St. Alphonsus, l. 6, n. 1109. - La-Croix, l. 6, p. 2, n. 636, and others deny it, because the bride is compelled to this which she was bound to do; and thus it is said in cited c. 6, de Raptoribus: "That man ought not to be called an abductor, since he had the consent of the woman, and he had betrothed her before." - Schmalzgr., l. 5, tit. 17, § 1, n. 37 seqq.; Lessius, de Iust. et Iur., l. 4, c. 3, dub. 8. - But as regards excommunication, cf. here the treatise de Censur.

3. Celerinus abducted Laura, and led her by force into the house of Paternus. After Laura remained in that house for a long time, and she herself now consents spontaneously to the marriage, both Celerinus and Paternus wish to marry her.

It is asked: Who in the case can marry Laura?

R. If Celerinus, by his own will, with no mandate received, abducted Laura so that she might marry Paternus, each of the two can marry her, although she is in the power of each. For Paternus then did not abduct her, and Celerinus did not abduct her for the sake of contracting marriage with her. But if Celerinus abducted her for this end, of contracting marriage with her, he cannot marry her so long as she remains in his power, even if Laura now of her own accord and most freely enters marriage. In order that Celerinus may be able to marry her, it is necessary that she first be restored to a safe place, outside his power. Finally, if Celerinus abducted Laura by the mandate of Paternus, then the latter is understood as the abductor, and consequently cannot marry Laura in the case. For what one does through another is reckoned as done through oneself. But then Celerinus can marry Laura. For the impediment of abduction is not had between the abducted woman and an abductor who abducts the woman for another, not for himself, so that namely she may be joined in marriage with another, not with the abductor himself. The reason is "because the penalty of that Decree is that between the abductor and the abducted woman marriage cannot stand so long as the abducted woman is under the power of the abductor; and therefore it supposes that the abduction is destined to this, that the abductor may marry the abducted woman; therefore there will be no place for those penalties when the abduction is done for the sake of entering marriage with another." Sanchez, de Matr., l. 7, d. 13, n. 6; I. M. 1024.

A twofold error concerning matrimony is distinguished, namely: first, a substantial error, which concerns the person; second, an accidental error, which affects the qualities of the person. By condition, however, is understood a servile condition unknown to the other party.

795. Principles. - I. Every error concerning the person renders matrimony null by natural law, even if the error is altogether invincible. The reason is that on the part of the contracting party it removes voluntariness concerning the object of the contract, and therefore, consent being absent, the contract is invalid.

II. Error concerning the qualities of a person, whatever it may be, does not of itself invalidate matrimony. The reason is that error concerning qualities does not fall upon the object of the contract ¹; for that object is the person himself or herself with whom the contract is entered, as was just said, and not that person's qualities. Except the case in which a quality is explicitly intended as a condition sine qua non, as they say ².

¹ You have a solid reason why the contract of matrimony ought to remain valid even if error concerning qualities is antecedent and gives cause to the contract in Molina (On Justice and Law, tract 2, disputation 259, no. 8, and disputation 252, no. 5) and Sanchez (On Matrimony, book 10, disputation 9, no. 20); but more clearly in Lugo (On Justice and Law, disputation 22, no. 88), who argues thus: First, concerning the contract of matrimony and also concerning religious profession, or

vows constituting the religious state, such as the simple vows of our Society, I think it must be said that if the error or fraud does not concern the substance, even if it gives cause to the contract, it does not render it invalid or to be invalidated.... The reason is that in those things which constitute a state firm and irrevocable by its nature, such as profession and matrimony, the will accommodates itself according to the nature of the thing at issue and consents without restriction or condition, but altogether absolutely and independently of conditions other than those which belong to the substance of the same contract. For from those conditions marriages and professions, and therefore the state itself, would remain uncertain, which is not according to the nature of the thing at issue. Therefore, whatever may be said of other contracts, concerning these it must altogether be said that they are not invalidated by fraud, even one giving cause to the contract, provided that it does not concern the substance. The inconveniences of an uncertain matrimony, as Lugo calls it, Schmalzgrueber indicates thus (book 4, title 1, no. 447): If such an error vitiated matrimony, very many marriages would be dissolved, to the great harm of offspring, the greatest harm of the commonwealth, and public scandal, since error concerning a quality very frequently intervenes in this contract. See also St. Alphonsus, book 6, no. 1012.

² Error concerning a quality renders matrimony invalid not only in this case, but also in another which the Author omits, although each case can be contained in that general, though somewhat obscure, rule that matrimony is invalidated because of error concerning a quality when an error of this kind concerning a quality passes into the substance. Therefore the first case, which the Author also intimates, is when the quality is a condition under which consent is given; for it is manifest that when the condition fails, the conditioned thing, that is, consent, also fails. The other case is when the quality determines the person with whom someone intends to contract; or when one neither knows nor determines the person with whom one contracts except from the indication and mark of that quality. Concerning this Pirhing says (book 4, title 1, no. 163): If through the quality concerning which there is error a certain individual person is designated and conceived in the mind, who was previously unknown by sight, then the error redounds into an error of person. Likewise Sanchez says sufficiently clearly (book 7, disputation 18, no. 38): To explain when error concerning a quality redounds into an error of person diriment of matrimony, I say briefly that this occurs when there is error concerning a quality which designates a certain person, who was not previously known to the contracting party apart from that quality - namely, except from that quality - and it is not established that the mind of the contracting party was to consent to the person present to him, whoever that person might be.

III. Error concerning the servile condition of the other party dirimently invalidates matrimony by ecclesiastical law, as is established from book 4 of the Decretals, title 9. This impediment no longer has a place in Europe, where servitude has been altogether extinguished ³.

³ This impediment has no place in Europe, not because the law ceases, but because occasion is commonly lacking, unless perhaps in parts of the Turkish Empire, or if any persons still reduced to servitude should come from elsewhere into other parts of Europe. According to the common opinion of the Doctors, error in this matter invalidates matrimony even if it was crass. See St. Alphonsus, book 6, no. 1019, and Schmalzgrueber, book 4, title 9, nos. 29-31. But if the contracting party knows the servile condition of the other, or if a union contracted in ignorance is afterward ratified once the error is known, it is certain according to the opinion of all that the matrimony is valid. By the disposition of Canon law, however, one knowingly contracting with a female slave becomes irregular (canon Si viduam 15, distinction 34; St. Alphonsus, l.c., no. 1018, and Schmalzgrueber, l.c., nos. 15-18); and in the second case consent would have to be renewed before the Pastor and witnesses, unless perhaps the nullity of the preceding contract were so altogether occult that it could not be proved; for then consent emitted anew by the free party would suffice. See Schmalzgrueber, book 4, title 3, no. 121, and title 9, no. 18.

Moreover, this impediment, as is evident, has force only with respect to the matrimony of a free person with a slave; for - and this must be carefully noted for places in which servitude still has force - marriages between slaves are to be held valid beyond controversy (Schmalzgrueber, l.c., no. 7; see canon 2, question 2, cause 29, and St. Thomas, II-II, question 104, article 5), even if they are contracted without the consent of the master (canon Dignum 1, On the Marriage of Slaves; Schmalzgrueber, l.c., no. 10). Therefore, just as a slave licitly contracts matrimony even against the will of his master, so the master sins gravely against justice if he either positively impedes the slave from matrimony or, after he has contracted it, treats him more harshly for this cause. Nevertheless, the master is not bound positively to consent and to undergo the prejudice consequently arising, according to the opinion of several Doctors, so that the slave could and should then prefer a spouse seeking the debt to a master seeking service; although Sanchez (book 7, disputation 21, no. 15) judges that this has place even if the matrimony is made without the master's consent. See Schmalzgrueber, l.c., no. 13.

But since the master has the right of selling slaves, the Doctors resolve the difficulty arising from this if matrimony was contracted without his consent as follows. First, if matrimony has not yet been begun by betrothals concerning the future on the part of the slave, the master can sell the slave, because he thus does not impede matrimony and otherwise uses his own right. Second, if matrimony has already been begun by betrothals concerning the future, it is not licit for the master to use that means, because the betrothed woman already has an acquired right that the slave stand by his promises and contract matrimony, which the master would impede by sending the slave elsewhere. Third, finally, if matrimony has already been contracted, some have thought that the slave can be sold because thus not the matrimony but only its use is impeded; others, however, more consistently deny this unless the wife can conveniently follow her husband. Schmalzgrueber, l.c., no. 14.

796. Resolutions. - 1. If someone thinks that he is contracting nuptials with Anna and marries Agatha, the matrimony is invalid. It is otherwise if, thinking that he had married a noble, wealthy, virginal, and peaceable maiden, he finds her on the contrary common, poor, corrupted, and quarrelsome.

2. A matrimony is valid if someone marries a widow while thinking that he is marrying an unmarried woman, even if he was induced into this error through fraud; for fraud indeed induces an obligation of repairing the injury, but it does not bring it about that consent does not concern the substance of the thing at issue. Indeed, this has force even if he certainly would not have wished to contract had he previously known her to be a widow; for attention must be given not to what someone perhaps or even certainly would have done, but to what he actually did.

3. A noble maiden validly contracts with a wandering man who falsely boasts that he is noble and the possessor of many goods, and proves this by false testimonies. But that woman is not bound to cohabit with him and can immediately obtain perpetual divorce as regards bed and habitation. - St. Ligorius and all the others.

I. A substantial error with regard to a marriage is usually quoted by moralists as the first diriment impediment. It would exist, for instance, if a man, instead of marrying the woman of his choice, would by mistake marry another; or if he were to make an explicit condition (i. e., conditio sine qua non) to marry only a rich person, or one of noble birth or well educated, whereas the one actually married proved to be the contrary. If such a condition is not expressly mentioned, however, or if the error concerns only accidental qualities, the marriage is valid. Note that it is not allowed, under pain of mortal sin, to marry with any condition like those mentioned. For marriage, which God wants to be indissoluble, is not to be rendered soluble for frivolous reasons.

2. Slavery is given in Moral Theology as the second diriment impediment. It makes a marriage between a slave and a free person, who is ignorant of the condition of the other party, impossible. Whilst an error about the qualities or conditions of a person does not nullify a marriage, as stated above, the Church has wisely made an exception in setting up this impediment, because a slave is subject entirely and in all things to the will of his master, which is adverse to the marriage rights of a free man. Now-a-days slavery is practically abolished nearly everywhere, and hence this impediment hardly counts.

33. • I) Notion.

Error in general is a false judgment.

In matrimonial consent a manifold error can be found:

a) Error of law: it regards the nature, properties, and essential goods of matrimony.

Error of fact: it regards some fact.

b) Vincible error: i.e., one which can easily be removed.

Invincible error: i.e., one which in no way, or only with difficulty, can be removed.

c) Substantial error: i.e., one which regards the contracting person or the essentials of matrimony.

Accidental error: i.e., one which is borne toward the qualities of the person.

d) Antecedent error: i.e., one which is such that, once the truth was known, the contract would not have taken place.

Concomitant error: i.e., one which is such that, even once the truth was known, matrimony would likewise have been contracted.

II) What error renders matrimony invalid, and what error does not.

A. Error of fact.

34. • a) "Error concerning the person renders matrimony invalid." (Can. 1083 § 1.)

The reason is that such an error is substantial and by the law of nature vitiates consent, which is borne toward a person plainly diverse from the one with whom the contract is made. It does not matter in the case whether the error is antecedent or merely concomitant.

35. • b) Error concerning a quality of the person, even if it gives cause to the contract, generally does not invalidate matrimony. (Can. 1083 § 2.)

The reason is that such invalidation is introduced neither by natural law nor by positive law. Not by natural law, because notwithstanding that error concerning accidental qualities, the substance of the contract nevertheless remains, namely the person himself or herself. Not by positive law, which, as is plain from the cited canon, expressly declares the contrary.

36. • c) Error concerning a quality, however, invalidates matrimony if it itself redounds into error of the person. (Can. 1083 § 2, 1°.)

The reason is that then the error becomes truly substantial, which invalidates matrimony by natural law itself.

But this is verified in a twofold case:

1°) if the quality is altogether proper and individual to some determinate person, e.g., if someone intends to enter matrimony with the firstborn daughter of the king.

2°) if someone intends any quality whatsoever, however accidental, as a condition without which not, or if the circumstances prove that his consent was at least implicitly conditioned.

37. • d) Matrimony is invalid "if a free person contracts matrimony with a person whom he thinks free, when she is a slave by servitude properly so called." (Can. 1083 § 2, 2°.)

Three things must concur in order that matrimony be invalidated under this head, and otherwise from ecclesiastical law alone:

1° servitude properly so called in the other party alone.

2° freedom of the other party.

3° ignorance, on the part of the free person, of the servitude of the co-party.

This impediment, as having been introduced by ecclesiastical law alone, does not bind unbelievers contracting among themselves, unless perhaps civil law has established a similar impediment. Indeed if a free unbelieving party takes in matrimony a believing party who is a slave, whose servitude he does not know, then the matrimony still seems to be valid. The reason is that the Church seems to invalidate the consent of the free party alone. But now, in the case, since the free party is an unbeliever, his consent escapes ecclesiastical law, and thus in no way, not even indirectly, is the unbelieving party held by that impediment.¹

¹ Thus Gasparri, De Matrimonio, n. 640, against Wernz, Jus Decretalium, IV, n. 242, note 27. - Cf. Vermeersch-Creusen, Epitome Juris Canonici, t. II, n. 370.

B. Error of law.

38. • a) Error concerning the very essential object of the matrimonial contract, i.e., concerning the mutual right over the body, invalidates consent and consequently matrimony.

The reason is that in the case error effects the same thing as ignorance. But now, as was said above in n. 32, ignorance concerning the essential object of matrimony renders matrimony void.

39. • b) "Simple error concerning the unity or indissolubility of matrimony or its sacramental dignity, even if it gives cause to the contract, does not vitiate matrimonial consent." (Can. 1084.)

Notice in this text the word "simple" error, i.e., an error resting in the intellect without there following a positive act of the will conformable to it. For such an error does not take away the will of contracting true matrimony.

40. c) But if to such an error there is joined an express and positive intention of excluding something from the essential properties or goods of matrimony, the matrimony is invalid, at least if such an intention prevails over the intention of contracting matrimony.

The reason is that such an intention is exclusive of matrimony itself, because these things are inseparable from true matrimony.

804. Ignorance, under which name inadvertence and error also come (I, n. 80-83), impedes the deliberation required for valid consent if it is substantial, or turns upon a substantial element. Wherefore they can be distinguished:

1° Inadvertence, i.e., an actual defect of sufficient use of reason, which impedes a human act and consequently the due intention and free consent.

Hence consent furnished in insanity, by the perfectly drunk, by hypnotized or sleeping persons, by the furious or by the foolish, is invalid from the very nature of the thing.

2° Ignorance, i.e., a habitual defect of knowledge concerning the very substance or nature of matrimony: from natural law itself it invalidates consent, because nothing is willed unless first known.

Hence can. 1082: "§ 1. That matrimonial consent can be had, it is necessary that the contracting parties at least not be ignorant that matrimony is a permanent society between a man and a woman for procreating children.

"§ 2. This ignorance after puberty is not presumed."

Yet it is not required that the manner in which carnal intercourse is instituted or generation occurs be explicitly known; it suffices that it be known confusedly that this is done by some common work of the bodies, or that matrimony is ordered to having children from a spouse; this being known, if someone consents, by that very fact he implicitly consents to all things necessary or fitting for this.

3° Error, or false apprehension, which adds to ignorance a false judgment concerning the object of consent.

One error is of law, which turns upon matrimony itself, namely, its nature, or properties or obligations; another is of fact, concerning the person and his or her qualities; but each can be antecedent, which gives cause to the contract, so that otherwise it would not have been entered, or merely concomitant, which does not influence the contract, so that this would have been entered even without the error. Now:

A. in error of law: a) Error concerning the very substance or nature of matrimony, even merely concomitant, renders consent invalid (can. 1082, § 1).

Thus one who thinks that matrimony is not a stable society, but a merely friendly one, or some fornicarian or merely precarious conjunction, or the hiring of work in a family matter, or a society for educating children bought from another, contracts invalidly.

b) Error concerning only the properties or obligations of matrimony does not invalidate consent, because it is merely accidental error, even if it was antecedent and the contracting party, if he had known, would not have entered matrimony; - unless, however, the error was deduced into a pact, or was a condition to which consent is bound: for then it becomes substantial, because it concerns the object first intended.

Hence can. 1084: "Simple error concerning the unity or indissolubility or sacramental dignity of matrimony, even if it gives cause to the contract, does not vitiate matrimonial consent." Therefore one who falsely thinks matrimony is dissoluble or is not a sacrament contracts validly unless he intends: I do not contract unless it is dissoluble, or provided that it is not a sacrament.

B. in error of fact: a) Error concerning the person himself or herself, even merely concomitant, invalidates consent, because it is substantial, concerning the very essential object of the contract.

b) Error concerning only the qualities of the person (for example, that she is a virgin, or rich or noble) does not invalidate consent, because it is accidental, although it is antecedent and the contracting party, if he had known, would not have entered matrimony; - unless, however:

1. the error redounds into substance or into error of person, as if someone wishes to marry the daughter of the king, or the firstborn daughter of a count;

2. the quality is an express condition to which consent is bound, as if someone says: I do not wish to marry unless she is a virgin, noble, rich, because then the quality is principally intended and redounds into substance;

3. or the error is concerning servile condition, in the case in which the free contracting party (not so the slave) is ignorant of the slavery of the other and thinks that person to be free: by law, namely, the quality of a free person is presumed to be a condition without which there is not consent, because a free person is presumed to be unwilling to enter matrimony except with a free person, and therefore generally the law invalidates such marriages.

Hence can. 1083: "§ 1. Error concerning the person renders matrimony invalid.

"§ 2. Error concerning a quality of the person, even if it gives cause to the contract, invalidates matrimony only:

"1° If the error of quality redounds into error of person.

"2° If a free person contracts matrimony with a person whom he thinks free, while on the contrary that person is a slave, by servitude properly so called."

St. Thomas states the principle, q. 51, a. 2: "it is necessary that the error which impedes matrimony be concerning one of those things which are of the essence of matrimony. But matrimony itself includes two things, namely, the two persons who are conjoined, and mutual power over one another, in which matrimony consists." The first is taken away by error of person, the second by error concerning the nature of matrimony. And thus it is from natural law itself. Except, however, the case of unknown slavery, which seems to invalidate matrimony only from positive law, although this is urged by natural equity as fitting: for slavery does not wholly stand in the way of the primary end of matrimony, although in many ways it harms the individual society and cohabitation of spouses. Whence St. Thomas, q. 52, a. 1, ad 3: "by the determining positive law it has been made that unknown servitude impedes matrimony, lest someone be punished without fault: for it is a certain punishment of the wife that she have a slave as husband, and conversely." And therefore, since it is a disposition of ecclesiastical law, it does not directly affect unbelievers; moreover, it could be taken away by dispensation, but the Church in fact does not dispense.

805. Observation. - To bind consent to a condition and to deduce it into a pact: certain ones have understood this strictly of an external pact, as if an explicit condition had to be added to it and had to be placed in the contract itself. Yet it suffices that it be mentally in the intention of one contracting party, and that in the mind it be deduced into a pact as a condition to which consent is bound, or as principally intended, whether explicitly or implicitly; as is clear from the very nature of a contract and from the general laws which govern contracts. Nor is it required that it be explicitly enunciated or added to an external pact; although otherwise the means of proof can be lacking by which in the external forum it can be established, in which case the presumption of law is for the validity of the matrimony.

The aforesaid sense is clear from the declaration of the Holy Office, December 2, 1680, and April 6, 1843; and S. C. C., February 9, 1732. Whence also the Sacred Rota, which previously seemed to require an intention deduced into an external pact, no longer requires it: thus for example explicitly March 1, 1913, and February 9, 1915.

II. QUESTION I. Whether error of person dissolves matrimony? ANSWER. Error of person by the law of nature annuls the contract, because this error takes away consent, when one person is substituted for another. This error nevertheless must needs be antecedent, giving cause to the contract, as when someone intends to marry Rachel, prepared not to marry Lia. It is disputed only whether concomitant error renders matrimony null. Some affirm it, others deny it. To me the affirmative opinion is the more probable, because concomitant error, although it does not make it involuntary positively, yet makes it so negatively. Error concerning accidental qualities, whether antecedent or concomitant, according to the more probable opinion does not annul matrimony; unless the accidental quality throw back the error into the very substance of the person, or the consent given were only under the condition of such a quality — for instance: I take thee, if thou be rich, if thou be noble; otherwise I take thee not.

Caius, a missionary priest, gravely offended Titius, a parishioner, by reproving his vices. Afterwards, while drinking with companions, Titius repeated to them the insulting words of Caius and affirmed that he would pay the penalty. While returning home at night, he met a priest whom he thought was Caius and, placing his foot between the priest’s legs, threw him down in the public street with a thrust of his shoulder. On the next day he read in the newspaper that Paul, a priest and Caius’s assistant, had broken his arm by falling in the place where Titius met the priest; he was afterwards informed that no harm had happened to Caius, who remained at home. In the following week, repenting of the deed, Titius approached a confessor and confessed with great shame what he had done. Hence it is asked:

1. What is the privilege of the canon, and is the law penal or prohibitory?

2. What is the purpose of this privilege, and how must it be interpreted?

3. Does error concerning the person to whom an injury is inflicted prevent it from being a formal injury and a voluntary act?

4. What is to be said of the case?

1. What is the privilege of the Canon and is it a penal or prohibitory law?

The privilege of the Canon grants to all ranks of the clergy and to religious Orders personal inviolability, so that any one who unlawfully uses violence against them incurs excommunication, the absolution of which is reserved to the Pope. It is a law which both prohibits and penalizes such violence.¹

1 Manual of Moral Theology, vol. i, 130.

2. What is the object of this privilege and how is it to be interpreted?

The object is to safeguard the dignity and honor of the clerical state. In accordance with this object it must be interpreted favorably, and as widely as possible.

3. Does a mistake about the person injured prevent the injury being formal and the act voluntary?

Many teach that it does on the ground that there was no intention to injure this person, and so the act is casual, not voluntary, with respect to him.²

2 St. Alphonsus, lib. iii, n. 628.

4. The case. Titius certainly committed a grave sin by his unwarranted and malicious act. The excommunication, however, inflicted now by the second of the censures reserved to the Pope by the Constitution of Pius IX, Apostolicae Sedis, must be interpreted strictly with regard to the conditions which are necessary that it may be incurred. As many authorities of weight deny that an injury inflicted by mistake on the wrong person is voluntary, and an action which is involuntary is not punished by censure, therefore Titius did not incur the excommunication.