Error, Slavery, Imbecility

636. On the Defect Itself. 1. Error concerning the very nature or object of the contract renders matrimony invalid, because when the object is lacking, no matrimonial contract exists. Thus if either party should think that matrimony is a society entered for managing domestic affairs. At least this much must be known by the contracting parties: that matrimony is a society entered for procreating children, and that for obtaining this end the concurrence of one's own body is necessary, and therefore that there is conceded to the other party the right over one's own body insofar as it is necessary for procreating children.¹

Error concerning the essential properties (unity, indissolubility) or sacramental dignity of matrimony does not render the consent null, provided the contracting party wills to enter true matrimony, or to contract according to the manner of others.² For in this case he has two intentions, one general, of entering true matrimony, the other erroneous, of entering, e.g., a soluble matrimony. Now that general intention prevails, even if he would not have contracted had he known it was indissoluble. Nevertheless, one who is so disposed in mind that he expressly does not will indissoluble matrimony does not contract validly.

2. Error concerning the person itself with whom one contracts renders matrimony invalid: for in the matrimonial contract, otherwise than in other contracts, the person constitutes the substantial object of the contract.³

Therefore one who from error contracts with another person, not with the one whom he himself intends, as if someone contracts with Lia thinking her to be Rachel, does not contract, even if, once the truth was known, he would nevertheless have contracted.

3. Error concerning the quality of the person which redounds into the person itself.⁴ Now in a twofold case error concerning quality is judged to redound into the person itself: a. if the quality is a condition of consent, that is, if consent is given only dependently on the existence of some quality, as if someone is unwilling to marry Bertha unless she is noble; b. if the quality is determinative of the person, that is, if the quality in the mind of the contracting party determines a person otherwise unknown and known from this quality alone.

If therefore someone wishes to contract with the firstborn daughter, but the second-born daughter, who pretends that she is the firstborn, is offered to him, there will be no matrimony.

Error concerning a quality of the person, which does not redound into error of the person, does not render matrimony invalid: for what does not remove substantial consent to a determinate person does not invalidate matrimony. Therefore if someone marries Anna thinking that she is noble, a virgin, rich, healthy, when she is not, the matrimony has force, even if he believed Anna falsely asserting this. Although in other contracts antecedent error caused by fraud renders the contract invalid, or rather rescindable, nevertheless it does not render matrimony invalid, provided the error does not redound into the person, because of the common good and because of the indissoluble nature of the matrimonial contract. For few marriages are contracted in which there does not lie beneath, on either side, some accidental error, which is not rarely also caused by fraud.

Note. These errors dirimently impede matrimony by natural law: for true, free, and deliberate consent to the object of the contract is required from the very nature of the contract. Therefore they dirimently impede the matrimony of all persons, faithful and infidels.⁵

4. Error of a free person concerning the servile condition, by slavery properly so called, of the person with whom he or she contracts matrimony, makes the matrimony invalid.⁶

a. In order that ignorance concerning the servile condition dirimently impede matrimony, three things are required: a. slavery, and perfect slavery, of one party; b. liberty of the other party; c. on the part of the free person, ignorance of the slavery of the other party.

From these things it follows that matrimony entered between two parties subject to slavery is valid, and likewise that matrimony entered between a free party and a slave is valid if the free party knows the servile condition of the other party.

b. Although error concerning a quality of the person which does not redound into the person itself does not dirimently impede matrimony, nevertheless by ecclesiastical law error concerning the quality of the servile condition must be excepted. There are indeed errors concerning other qualities also which are of greater moment in matrimony, such as concerning the lack of virginity, concerning epileptic or syphilitic disease; but the Church has not constituted error concerning these qualities a diriment impediment of matrimony, even if it was caused by fraud. Nevertheless civil codes establish that error concerning certain qualities dirimently impedes matrimony.

This error invalidates matrimony by ecclesiastical law, from which it follows that matrimony entered between a free infidel and an infidel slave is valid, even if the free party was ignorant of the servile condition of the other party.

Error of servile condition does not dirimently impede matrimony by natural law, because the servile condition does not absolutely exclude the essential goods of matrimony. But because it is opposed in some measure to these goods, by the best right the Church established this impediment. "It is opposed," says Busenbaum, "a. to the good of the sacrament, since a slave cannot cohabit with the spouse against the will of the master; b. to the good of conjugal fidelity, since he cannot render the debt at the will of the other; c. to the good of offspring, since a slave acquires all things for the master, nor does offspring remain in the power of the parents, so that it can be educated religiously."

¹ Cn. 1082, 1.

² Cn. 1084.

³ Cn. 1083.

⁴ Cn. 1083.

⁵ Cf. Gen. 29, 24.

⁶ Cn. 1083, 2, 2.

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);

Imbeciles who have not the use of reason are incapable by the law of nature of contracting a valid marriage, unless it is contracted in a lucid interval. If the loss of reason supervenes on marriage which has been validly contracted already, it cannot of course annul the marriage.

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.

3. Grave fear, through which a person is unjustly forced to marry, is another impediment which nullifies marriage. Marriage is of such importance that it requires full liberty of action.

4. A person must also be of proper age in order to be able to contract a valid marriage. The age limit has been changed by Canon 1067 of the new Code, according to which (§ 1) males cannot validly marry before they have completed their sixteenth and females their fourteenth year. The same canon (§ 2) exhorts pastors to deter young people from getting married until they have reached the age usual in their country.

5. Another diriment impediment is mentioned in Canon 1068, viz., impotence, if it precedes marriage and is permanent, whether it be known to the other party or not, or whether it renders the other unable to cohabit properly with anybody or only with the intended spouse. If there is any doubt about the existence of this impediment the marriage is not to be hindered. Neither does sterility prevent marriage according to the same Canon.

6. Canon 1069 insists on the natural law impediment called " ligamen " or bond of a previous marriage, which renders invalid any attempted marriage during the lifetime of a married couple, even if their marriage was never consummated. The only exception is the so-called " Pauline privilege." St. Paul allows the Catholic party to marry again if the non-baptized or non-Christian party refuses to live in peace with the former. " For," as the Apostle says, " a brother or sister is not under servitude in such cases." * Even in case the former marriage has been found invalid or has been annulled, the same canon forbids a new marriage before permission has been obtained from legitimate authority (i. e., the bishop or the Holy See).

7. Marriage between persons baptized in, or converted to, the Catholic Church, on the one hand, and unbaptized persons on the other (disparity of worship), is declared invalid in Canon 1070. The law speaks of persons baptized in, or converted to, the Catholic Church, i. e., of persons who ought to be Catholics. Therefore a baptized non-Catholic who never joined the Church can validly marry an unbaptized person. The same Canon also declares (§2) that if at the time of such a marriage a person was commonly held to have been baptized, or if the Baptism was of doubtful validity, the marriage should be upheld until it is proved that one party was, and the other was not, baptized.

8. Attempted marriage of clerics in higher orders, or of religious with solemn vows, or of religious with simple vows (which in this respect have the privileges of solemn vows) is declared invalid by canons 1072 and 1073- 9. No marriage can exist between a woman who was 1 1 Cor. VII, 15. forcibly abducted and the man who abducted her for the purpose of marriage, even if the former went of her own free choice to the place where she is forcibly detained by the latter for the purpose of inducing her to marry him. But the impediment ceases as soon as the woman is set free and willingly consents to the marriage (canon 1074).

10. The impediment of crime, as described in canon 1075, contains three distinct impediments. The first is contracted if a man and a woman, while at least one of them is lawfully married, commit adultery with the mutual promise to marry each other, or if they attempt civil marriage. The second is contracted if a man and a woman, while at least one of them is lawfully married, commit adultery with each other and one of them kills his or her lawful spouse. The third impediment is contracted if a man and a woman cooperate physically or morally in bringing about the death of husband or wife, even though the crime of adultery was not committed.

11. The diriment impediment of consanguinity or blood-relationship extends, according to canon 1076, to all degrees in the direct line upward (father, grandfather, etc.), and downward (son, grandson, etc.). In the collateral (side) line it extends only to the third degree, inclusive. The same canon also forbids marriage when there is positive doubt whether the parties are related by blood in any degree of the direct line or in the first degree of the collateral line.

12. Affinity (relationship by marriage) constitutes a diriment impediment in all degrees of the direct line, and up to the second degree, inclusive, of the collateral line (canon 1077); which means that the marriage of a woman after the death of her husband with any of his blood relatives in the direct line, and to the second de- gree of the collateral line, is invalid. Canon 97 declares that the impediment of affinity arises only from a valid marriage, whether consummated or not. The former impediment of affinity from sinful intercourse is dropped.

13. Public decorum is another diriment impediment (canon 1078). It may arise from an invalid marriage, whether consummated or not, or from public and notorious concubinage. The law forbids and annuls a marriage between such a man and the woman's blood relations in the first and second degree of the direct line, and vice versa.

14. Besides the diriment impediments of bodily relationship mentioned in the last three numbers, there is also a spiritual relationship (canons 1079, 768), which exists (a) between the one who baptizes and the person baptized, and (b) between the one baptized and his or her sponsor. This relationship is not contracted if Baptism is given conditionally, unless the same sponsor again acts in the ceremony of solemn Baptism (canon 763).

15. Another diriment impediment (canon 1080) is that of legal relationship arising from adoption. It constitutes a diriment impediment only where it is so regarded by the civil law. Thus if the civil law should declare the marriage of an adopted child with a natural child of the same family invalid, it would be invalid also in the eyes of the Church; not so, however, if the laws of the State in which the marriage takes place admit such marriages as valid.

1 6. The impediment of clandestinity is thus defined in canon 1094: " Only those marriages are valid which are contracted before the parish priest, or the Ordinary of the diocese, or a priest delegated by either of these, and at least two witnesses."

READINGS.—J. M. O'Hara, The Laws of Marriage Simply Explained According to the New Code, Philadelphia, 1918. —M. J. O'Donnell, " Matrimony in the New Code," in the Irish Ecclesiastical Record, Fifth Series, Vol. XI (1918), Nos. 6 sqq.—S. Woywod, O.F.M., The New Canon Law, New York, 1918, pp. 209 sqq. —H. A. Ayrinhac, S.S., Marriage Legislation in the New Code of Canon Law, New York, 1919.—Fr. Chas. Augustine, O.S.B., Commentary on the New Code of Canon Law, Vol. V, St. Louis 1920. —J. J. C. Petrovits, The New Church Law on Matrimony, Phila., 1921, pp. 67-291.

741. Preliminary note. Error and the servile condition were enumerated by ancient authors as two distinct matrimonial impediments; but in reality they are only one impediment having a twofold material object. For error can concern the very person of the other party or a quality redounding upon the person, and then there is the impediment of error simply so called; or error concerns the servile condition of the other party, and then there is the impediment of servile condition. But since error is no longer enumerated in the Code of Canon Law among the impediments, but among those things which vitiate matrimonial consent, we too follow this method.

Notion. Error is a false judgment by which the will is moved. Error is indeed distinguished from ignorance, which is the lack of knowledge in a capable subject; "nevertheless, as regards that which is to impede the voluntary, it does not differ whether it is called ignorance or error, ... whence, if ignorance is present there, error must be present there. And therefore error is also posited as the proximate cause."⁵⁴⁶

⁵⁴⁶ St. Thomas, Suppl., q. 51, a. 1, ad 1.

742. Divisions. Error which can occur in matrimonial consent is customarily divided in several ways:

1. Vincible and invincible error.

The first can be overcome or expelled easily; the second, with difficulty or in no way.

2. Theoretical and practical error.

The first, which is also called concomitant or incidental, is indeed a false judgment concerning the nature of matrimony, but it does not so influence the will of the contracting party that, if it had been detected, it would have prevented the matrimony. Protestants, for example, are accustomed to labor under such an error, who think that matrimony is neither a sacrament nor indissoluble, but who nevertheless will to contract a true matrimony, as other good Christians do. - The second, which is also called antecedent, gives cause to the matrimonial contract and, if it had been detected before the matrimony, would have entirely avoided the contract.

3. Error of law and error of fact.

The first concerns the very nature of matrimony and the obligations flowing from this nature; or it can also be said: error of law concerns the three goods of matrimony, for example, the good of offspring, when either contracting party firmly thinks and wills that the generation of offspring is to be avoided; or the good of fidelity, when either contracting party firmly thinks and intends to enjoy so-called "free love"; or the good of the sacrament, when matrimony is contracted under an express intention of divorce. - The second error concerns some fact, either essential or accidental. An essential fact is again twofold: the very person of the other party and a quality of that person which redounds upon the person himself or herself. An example of essential error in the person of the other party is found in the matrimony of Jacob with Leah.⁵⁴⁷ For Jacob willed to contract matrimony with Rachel, for whom Leah was substituted by Laban. A quality redounding upon the person himself or herself is judged to be one which belongs to only one individual person; for example, someone expressly intends to contract with the firstborn daughter of a certain count, and in place of the firstborn daughter the second-born is handed over to him. This distinction of a quality redounding upon the person was first offered in express words by St. Thomas.⁵⁴⁸ - An accidental fact, or accidental error, concerns some quality of the other party which perhaps is of the greatest importance but nevertheless can belong to several persons, for example, nobility, virginity, wealth, and so forth.

4. Substantial and accidental error.

The first concerns either the essential obligations of matrimony (error of law), or the very person of the other party, or a quality redounding upon the person, and it is always practical error. The second is either merely theoretical or concerns accidental qualities of the other party. - This distinction is of great importance in the present matter.

⁵⁴⁷ Cf. Gen. 29:24.

⁵⁴⁸ Suppl., q. 51, a. 2, ad 5.

743. Principle 1. From natural law itself, substantial error alone invalidates every matrimony.

The reason is that substantial error takes away consent and therefore matrimony itself, which is caused by the consent of the contracting parties alone, as was proved above. St. Thomas⁵⁴⁹ writes to the point: "Whatever impedes a cause by its own nature similarly impedes the effect. But consent is the cause of matrimony, and therefore that which nullifies consent nullifies matrimony. But the consent of the will is an act which presupposes an act of the intellect. When the first is lacking, a defect must occur in the second. And therefore when error impedes knowledge, a defect also follows in consent itself, and consequently in matrimony. And thus error has it from natural law that it nullifies matrimony."⁵⁵⁰

Substantial error can concern three objects:

a) The three goods of matrimony. Error of this kind (which is error of law) invalidates matrimony only if it is truly antecedent and practical, but not if it is merely concomitant and theoretical.

Hence, if a virgin contracting matrimony knows nothing concerning the conjugal act, the matrimony is not yet invalid, unless, once the truth of the matter is known, she immediately declares that she would never have consented to this act. The reason is that such a virgin is judged to have contracted matrimony as other women are accustomed to do, and therefore this error is held as concomitant or merely incidental. Wherefore in practice nothing remains to be done except that the virgin now consent to the conjugal act, or seek a dispensation from ratified and non-consummated matrimony. This doctrine, which canonists and theologians very commonly hold,⁵⁵¹ is confirmed from the practice of the Sacred Congregation of the Council. Thus, for example, the following case was resolved: Antonius, twenty-five years of age, married Rosa, nineteen years of age, who was entirely ignorant of the matrimonial office. Rosa obstinately denies the conjugal debt to her husband for three years, saying that she would never have contracted matrimony if she had known herself to be obliged to so foul a thing. On December 18, 1869, the Sacred Congregation of the Council responded to the question: "Whether the Most Holy One is to be advised in favor of a dispensation from ratified and non-consummated matrimony in the case? - Affirmatively, with the woman forbidden to pass to other nuptials without consulting the Sacred Congregation." In other similar cases the Sacred Congregation was unwilling to dissolve the matrimony.⁵⁵² Observe that the matrimony was not declared null, but dispensed. The same holds of the matrimony of Protestants, which is judged valid even if the contracting parties think divorce as regards the bond to be lawful. Hence the Code of Canon Law, can. 1084, establishes: "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";⁵⁵³ and can. 1085: "Knowledge or opinion of the nullity of the matrimony does not necessarily exclude matrimonial consent."

b) The very person of the other party.

For a contract between certain and entirely determinate persons pertains to the essence of matrimony. Such error of person can scarcely arise in our regions, since those about to marry have perfect mutual knowledge before the matrimony. It is otherwise among Mohammedans or pagans, who sometimes buy a bride whom they have never before seen, or if matrimony is contracted through a proxy.

c) A quality redounding upon the person.

In the external forum an error of this kind is never acknowledged as a diriment impediment of matrimony unless this quality was expressly stipulated, and indeed as a condition sine qua non. Hence those things said above, n. 737 ff., concerning conditional matrimony are to be applied. Certainly, theoretically speaking, every antecedent error giving cause to the matrimonial contract destroys true consent and therefore matrimony itself; but the Church does not acknowledge such error unless it is clearly proved in the external forum, which can scarcely be done unless the quality in question was expressly reduced to a pact. But in the internal forum the matter is otherwise, because true consent is lacking. Therefore, if someone led by antecedent error contracted matrimony, he must either give true consent or abstain from the conjugal act. - Behold a practical case of error concerning a quality which redounds upon the person: "The family of Count A. employs domestic statutes by which it is provided that the hereditary count take to himself a wife of equal condition. Count A., therefore, seeks a wife for himself with this open intention. At length he hears that the most noble family of Count B. exists at Florence and that Count B. has an only daughter. Hence Count A. sends to Florence letters by which he seeks the same daughter as wife for himself. Nevertheless, the chambermaid of this daughter, having fraudulently suppressed the letters, writes to Count A. and, upon receiving a response, sets out for Germany. Under the false name of Countess B. she contracts matrimony with Count A. Once the matrimony has already been consummated, she reveals the fraud. It is asked whether that matrimony is invalid on account of an error of quality redounding upon the person. We respond that there is no doubt that in this case the error of quality redounds upon the person."⁵⁵⁴ - On the contrary, in the following case the Sacred Congregation of the Council was unwilling to acknowledge an error redounding upon the person: Cassandra, thinking Vincentius to be wealthy and noble, married him after she had been confirmed in her error because Vincentius very cunningly assumed a fictitious name. When the error was discovered, Cassandra sought the dissolution of the matrimony on account of the impediment of error, but the Sacred Congregation of the Council refused on May 27, 1820. Likewise in this sad case: Jacob Teichert expressly said to his betrothed, Elisabeth: I shall never marry a girl who has already had carnal intercourse with another. After the matrimony had been contracted, Elisabeth disclosed that she not only had had carnal intercourse, but also was pregnant by another man. Although a most grave error was present, nevertheless the Sacred Roman Rota on January 2, 1913, responded that the nullity of the matrimony was not established.^554a The reason seems to be that there was indeed a very great error of quality, but this quality was not expressly stipulated.⁵⁵⁵

⁵⁴⁹ Suppl., q. 51, a. 1.

⁵⁵⁰ Freisen (Gesch. d. kan. Eherechtes, 302 ff.), adopting the division of error into proper and improper (echter und unechter Irrtum), first introduced by Savigny, does not admit that error even in the person invalidates matrimony by natural law, but only by ecclesiastical law. This singular opinion is deservedly rejected very commonly.

⁵⁵¹ Gasparri, De matr. II, n. 791; Wernz-Vidal, Ius can. V, n. 492; Lehmkuhl, Theol. mor. II, 934; Leitner, Lehrb. d. kirchl. Eherechtes, 106.

⁵⁵² Cf. Sacred Congregation of the Council, March 15, 1850.

⁵⁵³ "Whether a matrimony contracted between a Catholic and a heretic with the intention of violating or dissolving the matrimony is valid? - If these things have been reduced to a pact, or if the marriages have been contracted with this condition, they are null; but otherwise they are valid." Thus the Holy Office, October 2, 1680. The reason is that these spouses, as knowing Christ's doctrine concerning matrimony, are presumed principally to have intended a true Christian matrimony. The matter is otherwise if there is question of marriages of infidels, as is evident from the response of the Holy Office of May 19, 1892: "It is the custom of the Indians of this region [Sioux Falls] to contract marriages for the sake of testing the character and qualities of their wives, namely, whether they are good and prudent or not; and with the intention of dismissing them if they are foolish and wicked. Hence it is asked: Can faith be given to them if they affirm under oath that they never contracted matrimony with preceding wives by an indissoluble bond; and can they be permitted to join to themselves, according to the laws of holy Mother Church, the woman whom they now have? - Affirmatively, if there is question of infidels, after a diligent examination of all the circumstances concerning their credibility has been instituted, and no doubt or only a slight doubt remains concerning the truth of the assertion. Negatively, if there is question of the faithful, but legitimate proof is required" (Collect. de Prop. Fide, nn. 221 and 1796).

⁵⁵⁴ Cf. Gasparri, De matr. II, n. 787.

^554a Acta Ap. Sed. V, 45 f.

⁵⁵⁵ Gasparri, loc. cit., n. 790, adduces several other cases in which the Sacred Congregation of the Council was unwilling to acknowledge an error redounding upon the person.

744. Principle 2. By ecclesiastical law, error concerning servile condition is a diriment impediment of matrimony.⁵⁵⁶

Servile condition or servitude has three degrees. The first is when a slave is considered as a mere thing, over which the master has most perfect dominion and which he can therefore even destroy. Such servitude is contrary to natural law and once existed only in paganism, where a master could even kill his slaves. The second is when a slave must serve a master throughout his whole life without receiving any other recompense except food and clothing; but the master has no authority over the life of the slave, whom he is also bound to treat in a humane manner. Such servitude existed even among Christians and is still servitude properly so called. Here there is question of servitude in both degrees. The third degree is when a man is indeed bound to render some services to a master, but in other matters is entirely free. - The impediment of servile condition is present only when a freeborn or free person marries another party whom he falsely thinks to be free and not a slave. Therefore a matrimony is not invalid: a) which is contracted between two slaves; b) if a free person knowingly marries a slave; c) when a slave marries a female slave whom he falsely thinks to be free.⁵⁵⁷ - The impediment of servitude was fittingly introduced by the Church because a party restricted by servitude can neither freely render the conjugal debt nor suitably educate the offspring born; for that party always remains under the dominion of the master, who can impose burdens incompatible with conjugal obligations.⁵⁵⁸ But since unrecognized servitude is an impediment of matrimony by ecclesiastical law alone, it does not bind pagans. And since in present times servitude has been abolished almost everywhere in the Christian world, this impediment can scarcely occur any longer. Hence these things briefly said suffice. Whoever desires more should approach St. Thomas, who treats this matter throughout question 52 of the Supplement.

⁵⁵⁶ Innocent III already so established in c. 4, X 4, 9; this the Code of Canon Law, can. 1083, § 2, n. 2, confirmed: "Error concerning a quality of the person renders matrimony invalid if a free person contracts matrimony with a person whom he thinks to be free, when on the contrary that person is a slave, with servitude properly so called."

⁵⁵⁷ Code of Canon Law, loc. cit.; St. Alphonsus, Theol. mor., l. 6, n. 1918.

⁵⁵⁸ St. Thomas, Suppl., q. 52, a. 1.

745. A dispensation from the defect of substantial error, since it invalidates matrimony by natural law itself, cannot be granted by the Supreme Pontiff. Therefore a matrimony null because of substantial error cannot be convalidated except through the express or interpretative consent of the erring party (for example, through marital intercourse). But if the error was publicly known, the convalidation must be made before the parish priest and two witnesses according to the legal form, unless, however, the Supreme Pontiff has permitted another giving of consent. Cf. below, n. 875 f., concerning the convalidation of matrimony because of a defect of consent.

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.

31. • I. Defect of the use of reason.

a) Those who actually are not masters of reason, such as: infants, the completely intoxicated, those sleeping, the hypnotized, and also the insane, i.e., those who are mad regarding all things, contract matrimony invalidly. The reason is evident, because they are incapable of human acts.

b) What concerning the demented, i.e., those who are mad regarding some matter?

Resp. Most certainly they contract invalidly if they are mad precisely concerning matrimony. Otherwise, in practice, their matrimony will often be doubtful.

32. • II) Ignorance.

"In order 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." (Can. 1089 § 1.)

a) Therefore one contracts invalidly who does not know that matrimony consists in the mutual handing over and acceptance of a right over the body in order to generation.

Certainly there is not required a precise and exact knowledge of the mode by which conjugal intercourse occurs, but it is necessary that the contracting parties know that children are generated through joined bodies, or at least that "by a certain concurrence and familiarity of the parents offspring is obtained, and is brought forth by the mother."¹ Otherwise knowledge concerning the formal object of the contract is lacking, and consequently consent into it.

¹ Vermeersch, Theologia Moralis, t. IV, n. 39.

b) In the external forum, ignorance concerning the essence of matrimony is presumed before puberty; after puberty, however, knowledge is presumed. (Can. 1081 § 2.) Yet that presumption is only of law, namely admitting proof to the contrary.

c) Any other ignorance whatsoever, besides that which regards the essence of matrimony, does not make matrimony invalid, even if, had it not existed, matrimony would never have been contracted.

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.

I say 1°. A twofold error about Marriage is distinguished, namely: 1°. substantial error, which is concerned with the person; 2°. accidental error, which affects the qualities of the person. But condition is understood as servile condition unknown by the other free party, and consequently the impediment which is called condition is nothing other than an error by which the co-party is thought free when she is a slave.

When error is in the apprehension of a thing not necessary for the essence of the contract, but in a certain accident, it brings it about that the contract is voluntary as regards its essence and consequently such simply, but involuntary in a qualified sense and as regards that accident in which the error is concerned. And this error does not exclude consent, nor is anything had in law vitiating such consent. For in reality, in this error, he wills to marry this woman, to be married to this one; and there is the consent of two into the same thing and a contract substantially whole, nor invalid by law. S. C. C., Wallachien., 2 June 1860.

§ 1. Error concerning the person renders marriage invalid.

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

1°. If error of quality redounds into error of person;

2°. If a free person contracts marriage with a person whom he thinks free, when on the contrary she is a slave, by slavery properly so called (Can. 1083).

Error of person renders marriage invalid. Error is also either of fortune, or condition, or quality.

Error of person is when this man is thought to be Virgilius but he is Plato; error of fortune when this man is thought to be rich who is poor; error of condition when he is thought to be free who is a slave; error of quality when he is thought to be good and is evil. Cause XXIV, q. 1.

Titius wishes to enter marriage with Anna, and Anna with Titius; therefore each, Titius and Anna, wish mutually to hand over and accept the perpetual and exclusive right over the body in order to determinate acts. Titius wishes to hand over the right over his body to Anna, and Anna wishes to accept that right; Anna wishes to hand over the right over her body to Titius, and Titius wishes to accept that right. In the celebration Martha has been substituted for Anna, and Titius, thinking Martha to be Anna, hands over the right over his body not to Martha, but truly to Anna. But Martha cannot accept from Titius a right which Titius does not hand over to her. This error of person on the part of Titius brings it about that the consent furnished to Martha is null in relation to Martha. In other words, the right which Titius wished to hand over over his body, he wished to hand over to Anna; this was the object of the contract, just as the right which he wished to accept was the right over the body of Anna. Error of person removed this object; in the celebration itself he wished to accept as wife not Martha but Anna, and to hand himself over as husband to a woman, not to Martha, with whom he externally expressed the words, but to Anna. Therefore his error made it such that externally he said that he consented to the woman Martha, to whom he consented in no way. This error removed matrimonial consent. For he does not consent to this Martha, but to Anna, whom he thought Martha to be. Consent to Anna remained; consent to Martha was null; therefore there is no marriage with Martha.

If, however, error of quality redounds into error of person, the contract is invalid: that is, if someone judges that he is contracting with another person, not the one whom he accepts externally, and therefore neither does he consent to contract with this one. When therefore does error of quality redound into error of person? When the quality in which there is error designates an individual person, then error of quality falls back into error of person; as if someone wished to marry the firstborn daughter of the king of Spain. For since the apprehension of the mind draws the consent of the will, the will tends toward that which apprehension proposes to it. Wherefore, since the individual person apprehended, by means of that quality of primogeniture by which she is indicated, is proposed to the will, the consent directly and formally tends toward that person, and hence error concerning that quality is error concerning the person. S. C. C., Wallachien., 2 June 1860.

As regards the second paragraph, n. 2: If a free person has contracted with a slave properly so called, judging her to be free, the marriage is null. The conditions are that the free party be ignorant of the servile condition of the other and contract with that ignorance, and that the slavery be strictly so called.

A threefold error renders marriage null: error of person; error of quality redounding into error of person; error of servile condition of one party.

I say 2°. Simple error concerning the unity or indissolubility of marriage, or its sacramental dignity, even if it gives cause to the contract, does not vitiate matrimonial consent (Can. 1084).

For such error does not take away true and sufficient consent, as has been answered many times by the Sacred Congregation of the Holy Office.

A valid marriage can be contracted with a merely concomitant error concerning its indissolubility, because then the general will of contracting according to the institution of Christ prevails, and that general will as it were absorbs the private error. Instruction of the Holy Office, 6 April 1843. - The depraved opinion of the contracting parties, even though confirmed by the laws or customs of the fatherland, namely that the bond of marriage can be dissolved, in no way of itself harms the validity of marriage, unless this opinion is brought into a pact as a condition in the act of entering marriage; for then the marriage becomes null and invalid, as always happens when a condition repugnant to the substance itself has been attached to marriage. Holy Office, 20 June 1866, n. 25. - Marriages entered with only the error of the contracting parties that the bond of consummated marriage can be dissolved in the case of adultery or for other causes are valid. But if they have been entered under this express condition, they must be held as invalid. 11 March 1868, to 2. Error adhering to the mind, which nevertheless has not been brought into a pact or condition, does not harm the validity of marriage. Holy Office, 18 Dec. 1872. Concerning heretics imbued with false doctrine, Benedict XIV, de syn. dioec., 1. 13, c. 22, says thus: It must be believed that they (heretics) wished by a general will to contract a valid marriage according to the law of Christ, and therefore one not to be dissolved even for cause of adultery. For private error can neither be put before nor bring prejudice to the general will of which we have spoken, on which the validity and perpetuity of the contracted marriage depend.

I say 3°. Knowledge or opinion of the nullity of marriage does not necessarily exclude matrimonial consent (Can. 1085). For it does not exclude the general intention of entering marriage according to the law of Christ, and indeed here and now. For they wish to furnish consent truly matrimonial, and thus insofar as they can, as in the example of those who thought that they could not enter before a Turkish judge, although they wished to enter nuptials. Thus such marriages are to be held as valid, as was answered by the Sacred Congregation de Prop. Fide, 1 Oct. 1785. Again the same is established from the sanation of marriage so called civil, which sanation has been conceded not only once. But it could not have been conceded unless matrimonial consent could exist together with such a celebration.

III. QUESTION II. What is understood by the name of condition? ANSWER. Condition betrays servitude. Those are called slaves whose master has full dominion of selling, letting, and employing them, and so forth; these are called also mancipia. This condition of servitude according to all annuls matrimony. It is disputed only whether error of servitude annuls it by civil and ecclesiastical right alone, or also by the right of nature. To me the more probable opinion is that this impediment proceeds from the law of nature itself, and has been determined by positive law. He who knows a woman to be a slave and nevertheless marries her, the matrimony is valid. It is valid also if a man ignorant that she is a slave marry her, when he himself is a slave: because the condition of each is equal.

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.

George married Emma, because he thought she had considerable money, and that she was a good woman and of real refinement. George was a Catholic and Emma was a Methodist. They were married by the Methodist minister. This happened before the Ne temere decree went into force at Easter, 1908. After the marriage, George discovered that Emma had no means of any kind, and that she was an adventuress and a woman of very loose life. As soon as he discovered this he left her, and she went off with another man. George sued for, and obtained, a divorce in the civil court. He now wishes to have the Church annul this marriage. His grounds are that he was completely deceived by this woman, that he thought he was marrying a wholly different person and that he never would have married her had he not been thoroughly deceived as to who and what she was. Moreover, there is no evidence that she was ever baptized. She was more a nominal Methodist than anything else. Is there any hope that the Church might annul this marriage?

Answer:—Before discussing this case, we must explain briefly in what the impediment of error consists, in as far as it acts as a destructive bar to a valid marriage. In the Corpus Juris Canonici, Gratian says, in his decree:

"Not every error excludes consent, but one error concerns the person, another fortune, another condition, and another quality. Error concerning the person occurs when this man is thought to be Virgil but is Plato. Error concerning fortune occurs when this man is thought rich but is poor. Error concerning condition occurs when one is thought to be free but is a slave. Error concerning quality occurs when one is thought to be good but is wicked. Error concerning fortune and quality does not exclude marital consent. Error concerning the person and condition, however, does not admit marital consent" (c. 29, q. 1).

In Canon Law, by the condition of a person is meant, not a person's social, financial or moral condition, but whether a person is a freeman or a slave. Again the Canon Law distinguishes two kinds of error, as affecting marriage: Error juris, i. e., when one is in error or mistaken concerning the essential qualities of marriage, its indissolubility, fidelity, unity, etc; and error facti, when one is mistaken concerning a person's social, moral or financial position. In the case here submitted, it is evident that we have to do with an error of fact. George was mistaken concerning Emma's moral and financial condition, that is, about her qualities. Now an error of fact, concerning a person's qualities, diriments marriage in three cases:

1. If one marry a slave, thinking she is a free woman;

2. If the condition is made a part of the contract, and that expressly; v. g., if George says expressly: "I marry Emma only on the condition that she is a good woman or a rich woman";

3. When the error concerning another's qualities affects that individual's person, redundat in personam; v. g., a man wants to marry the oldest daughter of a family, but not knowing her personally, he marries this woman here present, believing her to be the oldest daughter.

In these three cases, the error is said to be a substantial error of fact, and diriments the marriage. All other mistakes or errors concerning a person's qualities or condition do not diriment a subsequent marriage, because they do not affect the substance of the marriage contract, but are considered a side-issue. They render the consent given in the marriage more easy, more prompt, but they are not the cause of the consent, or rather the consent is not primarily concerned with them, but with the substance of the marriage contract, and only secondarily with them. In our case, if George had known, when he married Emma, that she was a bad woman, he never would have married her. Granted. But that intention is only an interpretative intention, that is, if George had known, he would not have married. An interpretative intention is no intention. The only intention George had, as a matter of fact, when he married Emma, was to marry Emma. The Church could, if she wished, make such deception as practised by Emma a diriment impediment. The civil law voids many contracts, when procured by fraud. But the Church expressly abstains from doing so, in order not to open the door wide to much litigation and to endless doubts and dissensions.

The case. George's error concerning Emma's qualities when he married her in no wise affects the validity of his marriage. Many similar cases have been referred to the Holy See, and the invariable answer has been: valet matrimonium. What was George's chief and principal purpose when he accompanied Emma to the Methodist church? To contract a valid marriage with her. That he thought she was rich and good was quite a secondary consideration, a minor issue, in no way affecting or interfering with his main purpose, to wed Emma. If he had known the truth, he would have done otherwise. Certainly he would. But as a matter of fact he did not know the truth, and de facto, he had no intention of doing otherwise. There was no error personae vel conditionis; there was only an error fortunae et qualitatis. And that kind of an error does not diriment marriage.

As far as any error was concerned, therefore, there is practically no hope that the Church will declare George's marriage to Emma null and void.

As regards an annulment on the grounds that Emma was unbaptized at the time of her marriage, and therefore was barred from a valid marriage with George, propter disparitatem cultus, they having obtained no dispensation, there is little prospect that an annulment would be granted on that score. If it could be proven beyond doubt, that Emma had never been baptized, then, of course, the marriage is null and void from the beginning. But after a marriage, that is never presumed or taken for granted. On the contrary, every such marriage will be held to be valid, until, de facto, it is proven, beyond reasonable doubt, that it was invalid. And in this connection, it must be observed, that what would be considered "beyond reasonable doubt" by our civil courts, would not be considered so, always, by the Church. In these matters, the Church has her own standards, which, particularly in this matter, differ considerably from the standards followed by our civil law courts. If Emma belonged to a sect that did not believe in baptism nor practise it, she would naturally have to be considered unbaptized. But she was a member, and evidently born and brought up in a sect that believes in and practises baptism, and therefore post factum, that is after her marriage, and in order precisely, to make the marriage valid, Emma will be looked upon by the Church authorities as having been validly baptized in the Methodist Church and therefore validly, although illicitly, married to George, and there is no hope of an annulment on this ground either, unless more evidence be produced, to prove beyond reasonable doubt that Emma was never validly baptized. As far as a new marriage is concerned, in the Catholic Church, George will have to wait until Emma dies, or else produce evidence, sufficient in the eyes of the Church, to prove that Emma, at the time of her marriage to him, was unbaptized.