The Elements of Matrimony as a Contract

The Consent of the Contracting Parties Is Required and Suffices

“According to the laws, the consent alone of those whose union is in question suffices; and if this consent alone should happen to be lacking in the nuptials, all the other things performed, even together with intercourse itself, are rendered fruitless.” Nicholas I, from the Responses to the Consultations of the Bulgarians, chapter 3.

“A firm and valid Matrimony exists whenever nods or ceremonies performed before witnesses, according to the common estimation of the religion, sufficiently express the mutual present consent of the spouses, and when, moreover (if the question concerns places in which the Tridentine law has been published), a missionary cannot conveniently be had. But if the contracting parties, or either one of them, in ceremonies performed according to the custom of the country, truly did not have the intention or will of contracting in the present, the Matrimony is null.” Holy Office, 22 August 1860.

“Amalia, an unbaptized Protestant, married Giovanni, a Protestant; during the Marriage, Amalia was baptized in Protestantism and lived with her husband for some time. Subsequently, Amalia learned that Giovanni had illicit relations with a woman; she therefore abandoned him, and after some time obtained from the civil tribunal a divorce on the ground of adultery on the part of the husband. Now Amalia asks permission to contract a second Marriage with a Catholic.

“It should be noted that Protestants do not know that a Marriage between a baptized man and an unbaptized woman is null.

“These things having been stated, the Archbishop N. N., prostrate at the feet of Your Holiness, humbly asks:

“Given the ignorance of the nullity of the Marriage on the ground of disparity of worship, did the marital life of Amalia with Giovanni revalidate the Marriage after Amalia’s baptism?

Vol. III, Pt. II, Tr. X, Ch. I, Article II. On The Intrinsic Nature Of The Matrimonial Contract · Vol. III, Pt. II, Tr. X, Chapter VII. On Matrimonial Consent · Vol. III, Pt. II, Tr. X, Ch. VII, Article I. On Matrimonial Consent and Its Qualities · Vol. III, Pt. II, Tr. X, Ch. VII, Art. I, § 1. On the Qualities of Matrimonial Consent · Vol. III, Pt. II, Tr. X, Ch. VII, Article II. On Defects of Matrimonial Consent

“Response. After an oath has first been taken by Amalia in the Curia of N. N., by which she declares that the Marriage contracted with Giovanni, after the baptism of Amalia herself, was not ratified by them with knowledge of its nullity, in a place where clandestine or mixed Marriages are held valid, and provided that the Most Reverend Lord Archbishop is morally certain concerning the asserted ignorance of the spouses about the impediment of disparity of worship, let a document of freedom on the ground of disparity of worship be given to the woman.” Holy Office, 8 March 1899.

Tanquerey

Adolphe Tanquerey, S.S. — 3 passages

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

n. 671.

On Marriage as Contract

Errors to be refuted. Today errors concerning the matrimonial contract are multiplying. (a) Many, especially evolutionists and materialists, holding that man descends from a brute animal, contend that promiscuity prevailed among the first men, as among the other living things, so that men were mingled indiscriminately with women and women with men, as occasion presented itself; and that to this promiscuity succeeded polygamy and polyandry, and only after long ages did monogamy prevail.¹ (b) Yet many moderns, even among evolutionists, admit that monogamy is more perfect than the other matrimonial contracts, and therefore is to be retained, provided, however, that divorce be easily admitted, and that it be permitted to spouses thus separated to seek new nuptials.² (c) Yet not a few, especially among socialists, favor free union: according to them, the chief end of union between man and woman is mutual pleasure; therefore for this union mutual love is required and suffices: those who mutually love each other, by that very fact, have the right to cohabit together; when love ceases, the union must be broken off. But the offspring born from free union will be nourished and educated by the care of the civil State, without the intervention of the parents.³

¹ Lubbock, The origin of civilization; Morgan, Systems of consanguinity, affinity and of the human family; Mac Lennan, Studies in ancient history comprising a reprint of Primitive marriage, London and New York, 1886; Giraud-Teulon, Les origines du Mariage et de la famille, Geneva and Paris, 1884.

² Thus, among others, Naquet, Dumas, Paul and Victor Margueritte, and others enumerated below where divorce is treated.

³ A. Bebel, La femme dans le passé, le présent et l'avenir (translated from German by H. Ravé), 1891; B. Malon, Le socialisme intégral, Paris, 1892, vol. I, ch. 7; G. Renard, Le régime socialiste, 1898, p. 59; Ch. Albert, L'amour libre, Paris, 1900; and others whom Turgeon enumerates, Le Féminisme français, Paris, 1902, vol. II, pp. 259-288.

Against these errors we shall set forth Catholic doctrine: 1° concerning the nature; 2° concerning the properties of the matrimonial contract.

n. 685.

§ II. On the Essence of the Matrimonial Contract

Preliminary notes. From what has already been said it is permitted to infer that the essence of marriage, as contract, consists in mutual consent, by which a man and a woman, otherwise capable of marriage, hand over to each other in the present² a stable right over the body of the other for generating offspring, and for the fellowship of common life. Consequently the matrimonial contract does not consist directly in use or copula, but in the consent by which the right to copula is handed over. For, as St. Thomas rightly observes, "one does not receive power over that which is freely another's except through his consent. But, through matrimony, each spouse receives power over the body of the other... since previously each had free power of his own body. Therefore consent makes marriage."

¹ St. Thomas, Supplem., q. 45-48; Sanchez, lib. II-V; Salmantic., cap. 6-7; Billuart, diss. III, a. 1-5; St. Alphonsus, nn. 885-896; Carrière, nn. 455-505; Gasparri, nn. 770-870; Rosset, vol. I, nn. 88-237; Pesch, nn. 731-752; Billot, th. 34-35; Ball. P., nn. 262-305 (3rd ed.); Wernz, S.J., Jus Decretal., vol. IV, Jus Matrimoniale, Rome, 1904, nn. 45-47 and nn. 291-306.

² It is said in the present, because consent concerning the future indeed suffices for betrothals, but not for marriage.

n. 686.

Certain ancient authors taught that copula is necessary for constituting perfect marriage: "It must be known," says Gratian,³ "that marriage is begun in betrothal, perfected in commingling. Whence between bridegroom and bride there is marriage, but begun; between those joined by copula there is ratified marriage." A few commentators of Gratian proceeded further, teaching that copula is required for the essence of marriage. Freisen renewed this opinion, writing that the matrimonial contract is nothing other than a promise of future copula, and therefore does not differ from betrothals; but marriage properly so called is made through copula had with marital affection.⁴ - It is indeed true that marriage simply ratified is not so perfectly indissoluble as consummated marriage, as will be said below; yet it is true marriage and properly so called, as the common and certain opinion holds. (a) For the Fathers often teach this, when they write that Mary and Joseph were truly spouses, although they never used marriage: thus, for example, Origen, St. Basil, St. Ambrose, St. Jerome, St. Augustine;¹ hence Benedict XIV says: "Those who affirm that the marriage of the Blessed Virgin with St. Joseph consisted only in betrothals, think rashly and falsely. Therefore it must be held as certain that the marriage contracted between them was true and ratified."² (b) Pontiffs and Councils teach the same expressly, when they establish that marriage is perfected by the free consent of the contracting parties. Thus Nicholas I:³ "Let the consent alone of those concerning whose unions there is question suffice according to the laws. If this consent alone perhaps has been lacking in nuptials, the rest, even celebrated with intercourse itself, is frustrated, John Chrysostom, the great Doctor, bearing witness, who says: intercourse does not make marriage, but will." To the point is Trent:⁴ "There is no doubt that clandestine marriages made by the free consent of the contracting parties are ratified and true marriages." Afterwards it declares that ratified marriage, not consummated, is dissolved by solemn profession of religion; now a contract is not dissolved unless it already exists.

³ Dictum in Caus. 27, q. 2, c. 34; cf. c. 45. - There the word ratified from the context seems to signify a marriage which cannot be dissolved in any way.

⁴ Archiv für kathol. Kirchenrecht, LIV, 1885, p. 361 sq. - Yet he later retracted this error in the same periodical, LXVII, 1892, p. 381 sq.

¹ Origen, homil. VI on Luke, P. G., vol. XIII, p. 1814 sq.; St. Basil, De sancta Christi generatione, nn. 3-5, P. G., vol. XXXI, pp. 1463-1467; St. Ambrose, De instit. virg., c. 6, n. 42, P. L., vol. XVI, p. 316; St. Jerome, Contra Helvid., n. 4, P. L., vol. XXIII, p. 185; St. Augustine, De nuptiis et concup., l. I, n. 12, P. L., vol. XLIV, p. 420.

² De Synodo dioeces., l. XIII, c. 32, n. 13.

³ In Mansi, Concilia, vol. XV, p. 403.

⁴ Trent, Sess. XXIV, de Reformat. matrim., c. 1.

It remains, therefore, that we accurately declare the qualities of matrimonial consent; therefore we shall speak: 1° on the endowments of this consent in general; 2° on conditioned consent in particular.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 9 passages

n. ¶1.

Order of discussion. We must treat briefly, imitating the Code, of the notion and necessity of consent, of the conditions necessary for consent, of the mode in which it can be given, and of its perseverance.

n. 786.

— I. Notion and necessity of consent. 1. "Matrimonial consent is an act of the will by which each party gives and accepts the perpetual and exclusive right over the body, in order to acts of themselves apt for the generation of offspring" (c. 1081, §2).

But consent can be supplied by no human power, since the sole cause of matrimony is the consent of the parties (c. 1081, §1).

Consent, moreover, is required to be: a) true: feigned consent cannot suffice; that which is feigned to be present is not truly present; b) mutual: each party gives and accepts the body of the other; c) it must give and accept a right over the body, perpetual and exclusive: perpetual, because matrimony is indissoluble; exclusive, because matrimony is of one man with one woman; d) it gives and accepts in order to acts of themselves apt, etc., but not for having offspring expressly and immediately (cf. St. Thomas, Suppl., q. 49, art. 3, c.). From this description are known the conditions contrary to the substance of matrimony: they are opposed to the perpetuity, to the unity of matrimony, to natural copula, and to offspring itself, not to be positively impeded in the use of marriage.

What knowledge is required that this consent can be given, we are taught by c. 1082, which nevertheless does not say that what it indicates to be necessary already always suffices. Therefore, at least it is required that matrimony be known to be a stable or permanent society between persons of diverse sex, and this for procreating children. Once the primary end of matrimony is known, the object of matrimony is already reached, which consists in acts of themselves apt for generation. Moreover, matrimony must be known to be a society for procreating children, not simply for obtaining them by some means: therefore it is necessary that the contracting parties know that this happens by some common work, perhaps not distinctly perceived. But one who is content with a confused notion virtually accepts the mode which must be used; let him impute it to himself if later it is discerned to be such as he would not have admitted. But this notion of matrimony would not suffice, by which it would be conceived as a mutual contract for educating together children bought in a market or fallen from heaven.

And since the proximate matter of the contract and sacrament is the handing over of the body for generative acts, with Vlaming, II, 523; Linneborn, §36, p. 269, we judge that, in some rare case, substantial consent can be lacking in a person who did not know that concession to the use of one's own body is contained in matrimony, and who abhorred a concession of this kind more than he admitted conjugal life. Gasparri himself requires that it be known that a man procreates children from a wife. But proof of that ignorance and of a prevailing will will be very laborious in the external forum.

But this ignorance of the nature or object of the contract is not presumed after puberty, but must be proved (c. 1082, §2).

By this canon it is also demonstrated that the reticence of parents is harmful, who deceive marriageable daughters by an artificial ignorance, and rashly hand them over to a bridegroom, often little pious, to be used or abused.

n. 787.

— II. Conditions of consent. Besides the truth of consent, there is also required its immunity from certain vices.

First, from error. Yet not every error renders matrimony invalid, but only that error which, with attention to the nature of the contract, is reputed substantial. But although it is to be desired above all that the contract, upon which the morally whole lot of several human persons depends, be infected by no error, nevertheless the necessary stability of a contract whose consequences are irreparable requires that very few causes of nullity have force to invalidate it. Wherefore, besides error, necessarily substantial, concerning the object of the contract, only a threefold error substantially vitiates consent:

a) error concerning the very person to whom one gives faith: concerning the person, that is, not concerning the name or riches, but concerning his or her individual identity, so that one thinks he is contracting with Peter while it is Paul, or with the elder child of such a family, while it is the younger child. This would no longer be that error if he intended to make a pact with the person present, whoever that person may be;

b) error concerning a quality which redounds into error of person. For of itself error concerning a physical, intellectual, or moral quality does not stand in the way of validity. But error concerning a quality which has been expressly required as a condition without which not, redounds into error of person. For if the condition is lacking, no consent of itself is had;

c) error of servile condition, or concerning the freedom of the person, if a free person (therefore not if a slave) contracts with a person whom he thinks free, whether freeborn or emancipated, while that person is held by servitude properly so called.

No other error essentially vitiates matrimonial consent.

Not simple error (if fear is added, or contrary will, see below) concerning the unity of matrimony, or indissolubility, or sacramental dignity (c. 1084); not error concerning virginity, virtue, disposition, riches, nobility of the person, or concerning the paternity of a conceived child, by reason of which matrimony is contracted. Nor does it matter that the error gave cause to the contract, or was mixed with deceit or fraud.

n. 788.

— 2. Consent is required immune from fiction. We have already warned above that feigned consent is altogether ineffective. But internal consent is always presumed to have been conformed to the words or signs.

But, besides the subjectively complete fiction of him who wills nothing, there is a partial fiction from the object, when consent is borne only to an object or contract substantially diverse. Wherefore, "if either or both parties by a positive act of the will exclude matrimony itself, or every right to the conjugal act, or some essential property of matrimony, he contracts invalidly" (c. 1086, §2). Every right to the conjugal act is excluded if she who is named a wife, in the manner of a concubine, can complain of no injury if, even without cause, she is dismissed. Not every right is excluded if it is conceded limited in time or subordinated to the condition of fidelity, etc. But then an essential property of matrimony can easily be excluded. But the excluding will is supposed to be efficacious, which is not destroyed by a contrary prevailing will, as if one should will matrimony, and at the same time that it be dissoluble, while ignorant of the indissolubility of matrimony. Cf. what is to be said below, n. 791, concerning conditional will.

n. 789.

— 3. Consent is demanded immune from a certain force and fear. Not every fear, even one which gives cause to the contract, brings with it the nullity of matrimony, but only force or grave fear inflicted from without and unjustly, from which, that one may free himself, he is compelled to choose matrimony (c. 1087). Therefore invalidating fear must satisfy these conditions:

a) force, under which name comes not only violence strictly so called, but every free extrinsic cause which produces fear, must have effected grave fear, whether such absolutely, which falls upon a steadfast man, or at least such relatively. Grave is that which is overcome with difficulty. Such can be even reverential fear, or the fear of offending persons to whom reverence is owed, especially parents, if threats, importunate prayers, etc., are added;

b) fear must be unjustly inflicted. But it can be unjust from the object or cause, as if the one instilling fear can exact nothing, or at least can in no way exact matrimony; and unjust from the mode alone, as if he cannot legitimately command matrimony in that way. Suppose the father of a deflowered virgin threatens death unless the deflowerer takes her as wife. Indeed, since now no action is given for exacting matrimony itself, every fear inflicted for obtaining matrimony must be called unjust;

c) no other option besides matrimony must have been available to the one suffering fear. This can happen even if the fear was inflicted for another end. Suppose an angry man who wishes to avenge some injury by atrocious revenge; and no other escape appears to a rich young man except the promise of taking the aggressor's daughter.

By what law force and grave fear invalidate matrimony is disputed. Many think this impediment is established by positive law alone, although it is altogether consonant with the wishes of nature. For he who consents from fear nevertheless truly furnishes internal consent; and he could have escaped the necessity itself by feigning consent. Yet others think it repugnant to natural law itself that consent unjustly coerced be sanctioned by the most grave obligation of perpetual matrimony. Grave reasons indeed are alleged for each side. Even one who in a general way admits that acts from grave and unjustly inflicted fear are valid, as c. 103, §1 itself declares, can without absurdity maintain an exception for this contract-sacrament, to which it is so necessary that it be done freely. Nevertheless we shall incline toward the former side. For if it were an impediment of natural law, human positive law seems not to have been going to define so rigorously the conditions of invalidating fear. For that these embrace the whole force of the natural impediment would be difficult to demonstrate.

n. 790.

— III. Presence of the contracting parties. By the positive law of the Code the celebration of matrimony between absent persons, or by letters, is excluded.

The contracting parties, however, can be present either personally or through a procurator (c. 1088). A special mandate is required, given in writing and subscribed as sponsals are, except that, in the present case, the pastor or local Ordinary can delegate a priest to subscribe. The competent Ordinary is the Ordinary of the place in which the mandate is made. If the mandating person does not know how to write, those things are to be observed which are prescribed when the party who promises marriage is ignorant of letters. If the mandating person has revoked the mandate before the marriage, or has fallen into insanity, the procurator, even ignorant of the matter, can no longer contract a valid matrimony for the mandating person. And for validity it is necessary that the procurator execute the mandate personally (c. 1089).

Besides, diocesan statutes concerning the procurator, if any exist, are to be observed. But, contrary to what Noldin, III, 611, thinks, this is not a condition of validity, since Ordinaries cannot fortify their prescriptions or prohibitions concerning matrimony with the sanction of nullity. Cerato, n. 85; Cappello, III, 619, agree.

Matrimony can also be contracted through an interpreter.

The pastor is not to assist at a marriage through a procurator or through an interpreter unless a just cause is present, there is no doubt concerning the authenticity of the mandate or concerning the trustworthiness of the interpreter, and, if time permits, the license of the Ordinary has been obtained.

Both the spouses themselves and the procurator are to express matrimonial consent by words; nor, if they can speak, can they licitly use equivalent signs.

Signs, however, suffice for validity. And thus the whole ceremony sufficiently manifests the consent to the witnesses, even if, because of a certain timidity, the bride does not pronounce in an intelligible tone the single affirmative word which the Roman Ritual demands. For the rest, the Ritual, tit. VII, c. 2, n. 2, did not require anything except some sensible sign expressing consent.

n. 791.

— IV. Conditioned matrimony. Like every contract, matrimony can be made conditionally. Yet this is proper to matrimony, that conditioned consent can always validly be revoked, and that another matrimony contracted absolutely before the condition arrives is valid.

Concerning the difficulty which arises from the efficacy of that illicit retraction before the condition has been purified, the Epitome, II, n. 381, III, can be consulted.

Concerning an appended condition the Code briefly proposes these things:

A future condition which is necessary, or impossible, or base, but not contrary to the substance of matrimony, is considered as not added.

Yet the intention of the parties must be observed, who could, through a necessary future condition, defer the very celebration of matrimony to the day on which it has been fulfilled, or clothe a will of not contracting with an impossible condition.

A future condition contrary to the substance of matrimony renders it invalid.

Here a condition deduced into the pact must be carefully distinguished from a condition simply conceived. Because, when the condition enters the pact itself, the expressed consent itself is not consent of a true matrimony; matrimony never has validity. For merely internal consent cannot be mutual. And therefore there was declared null the marriage of a non-Catholic, in whose celebration there was read the Gospel by which non-Catholics rely upon admitting perfect divorce in the case of adultery.

But where it has not been deduced into the pact, judgment must be made concerning the validity of matrimony according to the prevailing will.

Finally, a condition must be carefully distinguished from purposes, even mutual ones, of violating the laws of matrimony by adulterous or neo-Malthusian abuse. Indeed, most often those "conventions broadly so called" about avoiding offspring for the first year, etc., are not to be held as true conditions, nor do they impede the validity of matrimony, which was contracted absolutely.

Is a condition appended, indeed deduced into the pact, of preserving continence, repugnant to the substance of matrimony? Although several think that this is repugnant, nevertheless it seems it must be denied, because the right is one thing, the use of the right another. A pact of not using does not take away or impede the handing over of the right, which alone is essential (cf. Noldin, III, 613).

A licit future condition suspends the contract. When the condition arrives, matrimony is perfected, and is judged to have had its beginning from the day of the conditioned contract.
A condition concerning the past or the present makes matrimony valid or not, according as that which is subject to the condition exists or not (c. 1092, 4°).

n. 792.

— On the perseverance of consent. "Even if matrimony was invalidly entered by reason of an impediment, the consent furnished is presumed to persevere, until its revocation has been established" (c. 1093).

This must be carefully noted for the convalidation of matrimony invalidly celebrated.

n. 793.

Summary

— I. Consent is required to be true, mutual, which gives and accepts a perpetual and exclusive right over the body, in order to acts of themselves apt for the generation of offspring (c. 1081). It can be supplied by no human power. Therefore matrimony must be known at least as a stable society between persons of diverse sex, and this for procreating children, by some common work.

It must besides be immune from substantial error, i.e., here, from error concerning the individual identity of the person with whom one contracts; concerning a quality which has been expressly required as a condition sine qua non; concerning servile condition, if the other contracting party is a free person.

It must also be immune from grave fear unjustly inflicted, at least as regards the mode, and "from which, that one may free himself, he is compelled to choose matrimony."

II. It can be made under a licit future condition, and then it suspends the contract, which, once the condition is fulfilled, passes into the absolute. Meanwhile, however, the condition being disregarded, one validly marries another.

A future condition which is necessary or impossible or base but not contrary to the substance of matrimony is considered as not added. If it is future and contrary to the substance of matrimony (offspring, fidelity, or sacrament), it renders it invalid, when it has been deduced into the pact, or prevails over the will of matrimony.

Purposes, even mutual ones, of violating matrimonial duties must be carefully distinguished from a condition.

III. Consent is not necessarily impeded by knowledge of nullity; and once given it is presumed to persevere, until it has been revoked.

IV. Consent must be given between persons present, and therefore matrimony by letters is excluded, but not matrimony through a procurator or through an interpreter. But if time permits, the Ordinary must be consulted. And for liceity consent must be expressed by words.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 17 passages

Vol. III, Pt. II, Tr. X, Ch. I, Article II. On The Intrinsic Nature Of The Matrimonial Contract

n. 630.

630. Since every good definition ought adequately to describe the essence of the thing defined, after the definition of matrimony has been explained, the question is proposed by authors: what properly is the formal constitutive of matrimony, or what primarily and fundamentally constitutes the essence of matrimony. Two theories have been devised to resolve this question, namely, the copular theory and the consensual theory. The former teaches that the essence of matrimony consists in the union of bodies, that is, in carnal intercourse itself, so that matrimony is not a true and perfect matrimony before carnal intercourse has been performed. Thus teach Julian, the disciple of Pelagius, Hincmar of Reims, Gratian, John Wycliffe, several Protestants, John of Faenza, and perhaps certain other ancient Catholics cited by Freisen,⁴⁸ who himself also defended this theory, but afterward (in 1892) retracted it, at least in some manner. The second theory asserts that the essence of matrimony consists in the union of wills, that is, in the consent of the contracting parties, and consequently that a true and perfect matrimony exists even if carnal intercourse is not had between the spouses. Almost all Catholics now teach thus. To elucidate this matter we posit three propositions:

⁴⁸ Ibid., p. 151 ff. Already in the time of Alexander III (1159-1181), matrimony was held to be "true and indissoluble" before carnal intercourse had been performed, "although," says the Pope, "others think otherwise, and it also was at times judged otherwise by certain of Our predecessors" (c. 3, X 4, 4). The school of Bologna especially appears to have stood for the copular theory.

n. 631.

631. Proposition 1. Carnal intercourse itself is not required for the essence of matrimony.

Proof a) From two biblical examples. There was a true matrimony both between Adam and Eve while still living in paradise, and between the Blessed Virgin Mary and St. Joseph. But in neither case did carnal intercourse intervene. Therefore carnal intercourse does not pertain to the essence of a true and perfect matrimony. Most commonly all theologians teach that matrimony was instituted in paradise. Now it is certain that matrimony was not consummated in paradise, because offspring generated in paradise before sin would not have had original sin. But such offspring without original sin never existed. Almost all authors, both ancient and modern, teach that a true matrimony existed between the Blessed Virgin and St. Joseph.⁴⁹ Freisen himself admits this. For in the Gospel it is said by the angel to Joseph: "Do not fear to take Mary your wife."⁵⁰ But it is certain by faith that Mary was a virgin both before and after childbirth.⁵¹ Therefore carnal intercourse is not required for the essence of matrimony.

Proof b) From the Holy Fathers. St. Ambrose⁵² says: "It is not the defloration of virginity that makes marriage, but the conjugal compact"; and St. John Chrysostom⁵³ teaches: "Intercourse does not make marriage, but the will." St. Thomas⁵⁴ responds to the question whether the consent which makes marriage is consent to carnal intercourse: "Those spoke well who said that to consent to marriage is consent to carnal intercourse implicitly, not explicitly." This, Sylvius says,⁵⁵ is consequently not to be understood as though there were at least a virtual purpose of carnal intercourse, but because it is consent to that power in which such intercourse is contained implicitly, as act in potency. Blessed Albert the Great especially attacks the copular theory vehemently and teaches simply: "It must be said that matrimony is perfected by consent."⁵⁶

Proof c) From the Roman Catechism, p. II, c. 8, where § 8 is entitled: "Intercourse is not required for a true matrimony."

Proof d) From the Code of Canon Law, which says absolutely in c. 1081: "The consent of the parties, legitimately manifested between persons capable by law, makes matrimony." Nothing, therefore, is said concerning the necessity of marital intercourse.

You will object 1. Christian matrimony signifies the real union of Christ with the Church. But this union is not signified except through the carnal union of the spouses. Therefore carnal union pertains to the essence of matrimony.

I respond by distinguishing the major: Christian matrimony signifies the real union of Christ with the Church through love and the influx of graces, which signify a moral union, I concede; it signifies the physical union of Christ with the Church, I deny; and I deny the consequence.

You will object 2. St. Paul, speaking of spouses, says: "They shall be two in one flesh; this is a great sacrament. But I speak in Christ and in the Church."⁵⁷ Therefore carnal union pertains to the essence of matrimony.

I respond: These words, "They shall be two in one flesh," do not necessarily signify carnal union, but the indissoluble bond existing between the spouses; for St. Paul here evidently alludes to the words: "And Adam said: This now is bone of my bones, and flesh of my flesh; she shall be called woman, because she was taken out of man. Wherefore a man shall leave his father and mother and shall cleave to his wife, and they shall be two in one flesh."⁵⁸ But from these words nothing can be concluded concerning carnal intercourse. See other objections and their solutions in Billuart.⁵⁹

⁴⁹ Cf. S. theol. 3, q. 29, a. 2.

⁵⁰ Matt. 1:20.

⁵¹ Epistle of Pope Siricius on the perpetual virginity of Mary (Denz., n. 91; cf. ibid., nn. 256, 993).

⁵² It is contained in c. 5, C. 27, q. 2. Similar things are contained in c. 9, C. 27, q. 2, from St. Augustine, De bono coniugali, l. 1, c. 2.

⁵³ c. 1, C. 27, q. 2.

⁵⁴ Suppl., q. 48, a. 1.

⁵⁵ Commentary on this place, namely, Suppl., q. 48, a. 1; cf. also Suppl., q. 44, a. 1.

⁵⁶ In 4, dist. 26, a. 15.

⁵⁷ Eph. 5:31 ff.

⁵⁸ Gen. 2:23 ff.

⁵⁹ De matrimonio, diss. 3, a. 5.

n. 632.

632. Proposition 2. The essence of matrimony in fieri (and consequently also of the sacrament of matrimony) consists in mutual consent externally manifested, or in the matrimonial contract.

That even Christian matrimony is a true and proper bilateral contract, although singular and sui generis, is today, after the Encyclical Arcanum cited above, so certain that the contrary assertion of a few authors is rash.⁶⁰ The reason is that in matrimony all things are found which are necessary for a true contract. A contract is customarily defined: "The agreement and consent of two or more in the same thing."⁶¹ Now in matrimony there is the free consent of two, namely, of those about to marry, in the same thing, namely, in conjugal life. But the qualities of this matrimonial consent will be treated below.

⁶⁰ Cf. Gasparri, De matrimonio, n. 202 ff.

⁶¹ l. 1, § 2, D. De pactis II, 14.

n. 633.

633. The material object of this contract is the persons themselves who contract.

The formal object is the manner of life. Philosophers call the material object the thing about which action is taken; the formal object is that one among the diverse formalities existing in the thing which is principally intended. Thus in one and the same material thing there can be a manifold formal object; for example, one and the same house, considered as the material object, when it is sold, is subject to the formal object of a contract of sale; when it is leased, it is subject to the formal object of a contract of lease. For in the former case ownership is principally intended, but in the latter only the use of the house. In contracting matrimony each spouse must principally⁶² intend (or at least not exclude) a mutual, exclusive, and perpetual right to the body of the other with an order to generation. Therefore such a right is the formal object of the matrimonial contract; and if such a right were excluded, the matrimony would be null and invalid from the beginning. But once matrimony has been contracted and such a right has been truly granted, nothing prevents that right from never being reduced to practice, or even from being perpetually suspended with regard to actual exercise, for example, when the spouses by common consent emit a vow of perpetual continence, or when, after adultery committed by one spouse, the innocent party refuses to render the conjugal debt (concerning which more fully below).

⁶² Nothing prevents the spouses from having other accidental intentions, for example, of preserving the honor or fortune of the family, of having a remedy for concupiscence, etc.

n. 634.

634. Matrimony is a plainly singular and sui generis contract, for:

a) every true and legitimate matrimony is a sacred contract.

Hence even the legitimate matrimony of pagans is called by Leo XIII in the Encyclical Arcanum: "sacred by its own force, its own nature, and of its own accord." The reason is both because the immediate author of matrimony is God, and because matrimony even from the beginning was a certain foreshadowing of the Incarnation. The history of peoples also openly demonstrates that nuptials were always held as something sacred, and therefore were celebrated with religious ceremonies, unless the peoples had fallen into the abyss of immorality. Thus Leo XIII in the often-cited Encyclical Arcanum deservedly says: "Both the monuments of antiquity and the customs and institutions of peoples testify, ... in the minds of all of whom it is evident that it had been formed and anticipated that, when they thought of matrimony, there occurred the form of a thing joined with religion and sanctity. For this reason nuptials among them were often accustomed to be performed not without religious ceremonies, the authority of pontiffs, and the ministry of priests."⁶³ From the sanctity of matrimony it follows that the matrimonial contract cannot, like other human contracts, be clothed with arbitrary conditions or dissolved at the will of the contracting parties; for those things which are ordained by God Himself and by the natural law cannot be arbitrarily changed by men.

Note. The sanctity of the matrimonial contract must be greatly inculcated, especially in our days, when, from civil marriage introduced almost everywhere on earth and from frequent divorces, the danger has arisen that the people may consider matrimony as any other human contract. The sorrowful experience of all peoples and all ages proves more than sufficiently that divorces, and even adulteries, increase day by day because matrimony is no longer sufficiently considered as something sacred and immediately instituted by God. Hence every priest should strive with all his strength to inculcate the sanctity of matrimony in the hearts of men.

⁶³ There is no leisure to treat the history of matrimony here. The history of matrimony is the history of morality. The more sacred marriages are held by a people, the better are its morals; and the more frequently matrimony is disfigured by adulteries and divorces, the more its morals are ruined. Leitner treated the history of matrimony (Eherecht; Geschichte der nichtsakramentalen Ehe). Westermarck (History of Human Marriage) wrote in a Darwinistic sense.

n. 635.

635. b) The matrimonial contract is by divine law a bilateral and indivisible contract, which cannot limp.

The Angelic Doctor writes on the matter:⁶⁴ "Since matrimony is a certain relation, and a relation cannot arise in one of the extremes without its arising in the other, therefore whatever impedes matrimony in one impedes it in the other, because it cannot be that someone is a husband who is not the husband of a wife, or that someone is a wife not having a husband, just as neither can there be a mother not having a son; and therefore it is commonly said that matrimony does not limp." This principle, "Matrimony cannot limp," understood in this negative sense, must be carefully attended to in practice, and it was employed both by the celebrated Decree Ne temere XI, § 2, and by the Code of Canon Law, c. 1036, § 3, in this sense explained above by St. Thomas. For the Code establishes (loc. cit.): "Although an impediment is present on the part of only one party, nevertheless it renders the matrimony either illicit or invalid." Formerly it was much disputed whether this principle could also be taken in a positive sense, so that if one of the contracting parties were capable, that party could communicate this capability to the other party. This question indeed was of great moment in the impediment of clandestinity, in which this principle could truly be applied in a positive sense;⁶⁵ today, however, after the Decree Ne temere, it has lost practical utility. For the negative response is certain,⁶⁶ at least for marriages contracted after that Decree. Therefore the following practical conclusion is easily deduced:

An infidel, although not bound by matrimonial impediments of purely ecclesiastical law,⁶⁷ nevertheless, even after obtaining a dispensation from the impediment of disparity of cult, cannot validly contract matrimony with a Catholic unless he observes the statutes of the Code of Canon Law. The reason is that the Catholic is bound by these statutes, and consequently the infidel also indirectly.

⁶⁴ Suppl., q. 47, a. 1.

⁶⁵ Cf. Sacred Roman Rota, in the Mohilev case, April 18, 1916 (Acta Apost. Sed. VIII, 422).

⁶⁶ Cf. Boeckenhoff, Dissertatio de individuitate matrimonii, Berlin 1901.

⁶⁷ Cf. below, n. 651.

n. 636.

636. Proposition 3. The essence of matrimony in facto esse consists in a bond permanent of itself, which arises from a legitimate matrimonial contract.⁶⁸

Billuart writes excellently on this matter:⁶⁹ "Matrimony in facto esse does not consist essentially in mutual or external consent, nor in the mutual handing over of bodies, because these pass away while the matrimony remains; nor in a mutual right to intercourse, both because that right to intercourse is something consequent upon matrimony already constituted, for the spouses have a right to intercourse because they are joined in matrimony; and because matrimony subsists without that right, as in those who by mutual consent bind themselves to preserve continence, unless perhaps you understand the radical right, which is nothing other than the formal and passive bond or union.... I said: in the formal bond, because the bond is not taken causally for the thing which binds; for thus it is the contract, but for the formal mode and bond, or the passive union resulting from the causal bond, which St. Thomas, q. 44, a. 1, places in the relation of the persons joined."

⁶⁸ Cf. Roman Catechism, p. 1, c. 8, q. 4.

⁶⁹ De matrimonio, diss. 1, a. 1.

n. 637.

637. Scholion. There is no reason for us to speak of the necessity and moral goodness of matrimony. For from what has been said it manifestly follows that matrimony is necessary for the human race and is something morally good in itself. For God commanded men in paradise: "Increase and multiply."⁷⁰ Moreover, the suitable propagation of the human race is impossible without legitimate matrimony. For not only the physical generation of offspring is required, which indeed can be had without matrimony, but also the bodily and spiritual education of the offspring born. This education indeed is morally impossible unless the father and mother are joined in legitimate matrimony and with united strength provide for the welfare of the offspring. Furthermore, true family life and the mutual love of men perish without marriages. Hence the error of certain Socialists and Mormons is most wicked, who wish to abolish all marriages and proclaim so-called free or promiscuous love. But although matrimony is something morally good and necessary for the whole human race, it does not therefore follow that every capable man must contract matrimony. For the propagation of the human race is already had so sufficiently that from the celibacy of a certain few men, not only does no harm arise, but rather the greatest utility. By accident, however, an obligation to enter matrimony can also be incumbent upon some determinate man, for example, to repair damage inflicted, to fulfill a promise made, etc. There is no leisure here to speak of the utility and excellence of virginity.⁷¹

⁷⁰ Gen. 1:28.

⁷¹ Cf. S. theol. 2, 2, q. 152, aa. 2 and 4, and above, II, n. 659.

n. ¶100.

We divide this chapter into two articles: 1. On matrimonial consent and its qualities. 2. On defects of matrimonial consent.

n. ¶101.

"Matrimony is effected by the consent of the parties, legitimately manifested between persons capable according to law; this consent cannot be supplied by any human power."

Thus the Code of Canon Law, can. 1081, § 1. As is evident from what was said above, n. 654, consent is at once the matter, form, and efficient cause of the sacrament of matrimony, although under a diverse respect.

n. ¶102.

Matrimonial consent must be:

1. true, that is, not fictitious or simulated or jocular.

n. 732.

732. For each contracting party must have the true and sincere intention of handing over to the other a right over his or her own body in relation to generation. For this reason a union between a man and a woman made for other ends, for example, for mutual solace and protection alone, for obtaining only the wealth of the other party, and so forth, is not a true matrimony. - A fiction or simulation of matrimonial consent is present when one contracting party externally indeed seriously and duly pronounces the words or other signs expressing consent, but interiorly has an entirely different intention. The intention of such a simulator can be threefold: 1. of not contracting at all; 2. of contracting indeed, but not binding oneself; 3. of contracting and binding oneself indeed, but not fulfilling the obligations that arise. This third simulation is indeed gravely sinful, because it is a notable unjust deception of the other party, but it does not invalidate the matrimony contracted, because the essence of matrimony consists in sincere consent to contract. But the first and second simulation invalidate matrimony, because true matrimonial consent is then not present.

Since the internal consent of the mind is always presumed to conform to the words or signs employed in celebrating the matrimony,⁵¹² in the external forum such fictions are not acknowledged except after clear proof, which indeed is quite difficult. For even the sworn affirmation of one or both spouses does not suffice, but other witnesses or indications so certain that no reasonable doubt concerning the existing fiction remains are required.

You will ask: a) Whether one who consents fictitiously in a Christian matrimony is guilty of sacrilege properly so called. Some affirm it, for example, Pirhing,⁵¹³ Schmalzgrueber,⁵¹⁴ and Marc,⁵¹⁵ because he simulates the sacrament of matrimony, which is true sacrilege, from which not even grave fear excuses, as is evident from proposition 29 condemned by Innocent XI: "Urgent grave fear is a just cause for simulating the administration of the sacraments."⁵¹⁶ - Other authors more probably deny it, for example, St. Alphonsus,⁵¹⁷ D'Annibale,⁵¹⁸ Gasparri,⁵¹⁹ and so forth. The reason is that the simulation of a sacrament, which is sacrilege, is present only when someone indeed posits the matter and form of the sacrament, but withholds the internal intention of administering a true sacrament, such that the entire rite is vain and null. But one who fictitiously consents in matrimony posits no matter and form of the sacrament of matrimony, because he destroys the matrimonial contract itself, which is the matter and form of this sacrament, and therefore he does not properly simulate the sacrament of matrimony. This reason acquires still greater force from what is soon to be said.

b) Is it ever lawful to give fictitious matrimonial consent? Affirmatively, provided that a grave cause is present. Such is the common opinion.⁵²⁰ Hence, for example, it is lawful to give fictitious consent if someone is compelled by grave unjust fear to enter matrimony, or if someone discovers that he is bound by some diriment but dispensable impediment when all things are already prepared for the nuptials and the matrimony can neither be deferred nor a dispensation obtained here and now. But if in these cases it is lawful to give fictitious consent, it is evident of itself that not every fictitious matrimonial consent is true sacrilege, because it is never lawful to commit sacrilege.

c) To what is one bound who has consented fictitiously with grave fault? First, he cannot seek or render the conjugal debt. This is evident, because such an act would be foul fornication. Then he is bound to repair the unjust harm that he inflicted upon the other party by deceiving that party. Unless great harms are feared from convalidating the matrimony, he is bound to give true consent as soon as possible, so that the matrimony becomes legitimate. The reason is that when two freely contract, with one party proceeding sincerely, the other party is likewise bound to proceed sincerely.⁵²¹

⁵¹² Code of Canon Law, can. 1086, § 1.

⁵¹³ In 4, tit. 1, n. 97.

⁵¹⁴ In 4, tit. 1, n. 230.

⁵¹⁵ Instit. mor., n. 1978.

⁵¹⁶ Denz., n. 1179.

⁵¹⁷ Theol. mor., l. 6, n. 62.

⁵¹⁸ Summula Theol. mor. III, § 295.

⁵¹⁹ De matrim. II, n. 795.

⁵²⁰ Cf. St. Alphonsus, Theol. mor., l. 6, nn. 62 and 887; Marc, loc. cit. Milante seems to be almost the only one who denies this.

⁵²¹ Cf. Billuart, De matrim., n. 2.

n. 733.

733. 2. free and deliberate.

That matrimonial consent must be free is evident from the ancient Corpus of Law:⁵²² "Matrimony is contracted by consent alone, and when inquiry is made concerning that consent, the one whose mind is to be investigated ought to enjoy full security, lest through fear that person say that what he hates is pleasing to him, and the outcome which is accustomed to proceed from unwilling nuptials follow." - St. Thomas⁵²³ offers two reasons on account of which matrimonial consent ought to enjoy full liberty: a) because matrimony signifies the union of the Church with Christ. But this union is a free union of love. Therefore likewise in every matrimony there ought to be a free union of love. b) The bond of matrimony is perpetual. Hence that which is repugnant to perpetuity takes away matrimony. But fear which befalls a constant man takes away the perpetuity of a contract, because restitutio in integrum can be sought. And therefore this coercion of fear which befalls a constant man takes away matrimony. - The matrimonial yoke, although willingly assumed, is already hard; but it becomes cruel servitude when it is coerced.

Since the matrimonial contract is a most grave matter, previous serious deliberation with perfect knowledge is moreover required. Wherefore if someone is insane or drunk or hypnotized, he does not have sufficient deliberation for giving valid matrimonial consent, and a matrimony perhaps entered in this way is null.

Force, fear, and error are opposed to the necessary liberty and deliberation; these will be treated more fully below.

3. concerning the present.

As was said above, the essence of matrimony consists in consent given concerning the present; therefore consent concerning the future does not suffice.

⁵²² c. 14, X 4, 1.

⁵²³ Suppl., q. 47, a. 3.

n. 734.

734. 4. mutual and simultaneous.

Matrimony is a bilateral contract, for which it is altogether required that both contracting parties give mutual consent. Therefore it does not suffice that one alone give consent, but it is required that both contracting parties give and accept consent. Then it is necessary that the handing over and acceptance of the consents be simultaneous. Nevertheless, a moral union suffices. Hence, for example, if Caius says to Sempronia: I take you in matrimony, and Sempronia here and now responds nothing, but deliberates and after an hour says to Caius, who is waiting: I too take you in matrimony, such consent is sufficiently simultaneous. In practice, according to the discipline now in force, a question concerning the simultaneity of consent can rarely arise. But in ancient times, when marriages were not rarely contracted through a proxy, this question was of greater importance.

n. 735.

735. 5. externally and legitimately manifested.

The Council of Florence declared in the Decree for the Armenians: "The efficient cause of matrimony regularly is mutual consent expressed by words concerning the present."⁵²⁴ - This word "regularly" does not pertain to mutual consent, which must be present not only regularly but always, but to "expressed by words concerning the present." For although in extraordinary cases matrimonial consent can be expressed by any intelligible external sign, for example, by writings, nods, or a proxy, nevertheless regularly it must be expressed through clearly pronounced words. Hence the parish priest assisting at the matrimony is to require from those about to marry that they express consent not only by nods or tears but also by clear words, because otherwise many inconveniences can arise, as experience testifies. Innocent III⁵²⁵ said: "Matrimony is truly contracted through the legitimate consent of the man and woman, but as far as the Church is concerned words expressing consent concerning the present are necessary; for the deaf and mute can contract matrimony through mutual consent without words." From this some deduce that words expressing consent are prescribed by the Church under grave obligation. More probably, however, this ecclesiastical precept binds only under light obligation. Thus St. Alphonsus,⁵²⁶ who adds: "But modesty or another reasonable cause would well excuse from such a fault." In our times, indeed, modesty alone does not seem to be a sufficient cause for abstaining from words expressing matrimonial consent. For the Code of Canon Law, can. 1088, simply establishes: "The betrothed are to express matrimonial consent by words; nor is it lawful for them to employ equivalent signs if they can speak."⁵²⁷ - Moreover, the parish priest himself is commanded, in receiving the consent of those about to marry, to employ that formula of words which is prescribed in the statutes of each diocese. For the Council of Trent⁵²⁸ established: "The parish priest, having questioned the man and woman and understood their mutual consent, is either to say: 'I join you together in matrimony, in the name of the Father and of the Son and of the Holy Spirit,' or is to employ other words according to the received rite of each province." - Matrimonial consent is legitimately manifested when all those things prescribed by ecclesiastical law, both as regards liceity and as regards validity, are observed. All these things will be treated below, when there is discussion of the celebration of matrimony.

⁵²⁴ Denz., n. 702.

⁵²⁵ c. 25, X 4, 1.

⁵²⁶ Theol. mor., l. 6, n. 888.

⁵²⁷ Can. 1088, § 2.

⁵²⁸ Sess. 24, c. 1, de reform.

n. 736.

736. Scholion. On the manifestation of consent through a proxy.⁵²⁹ A few things are to be said concerning this matter, since in present times it is not so practical, because it rarely happens.

For the validity of such a matrimony it is required:

that there be a special mandate for contracting with a determinate person. This mandate must be signed: a) by the mandating party himself; but if he does not know how to write, this is to be noted in the mandate and another witness is to be added who signs the document; b) or by the parish priest or Ordinary of the place in which the mandate is made, or by a priest delegated by either one, or by two witnesses.
that, before the proxy contracts in the name of the mandating party, the mandating party has not revoked the mandate or fallen into insanity.
that the proxy exercise his office personally and not through another subdelegated person.

Moreover, it is prescribed: a) that diocesan statutes perhaps enacted concerning this matter be observed; b) that a just cause be present; c) that the permission of the Ordinary be had if time permits.

Matrimony can also be contracted through an interpreter, but not also through letters, since the Code of Canon Law⁵³⁰ generally establishes: "For contracting matrimony validly, it is necessary that the contracting parties be present either personally or through a proxy." But if matrimony is contracted through letters, the contracting parties are not present.

6. absolute and not conditional.

Authors warn that the matrimonial contract cannot licitly be entered under a condition unless the bishop has expressly permitted this for most grave reasons. In our times such permission is scarcely ever found.⁵³¹ But it happens not so rarely that those about to marry on their own authority place conditions in contracting matrimony; by this unhappy manner of acting the very validity of the matrimony is placed in danger. Hence certain brief rules drawn from the Code of Canon Law, can. 1092, are indicated here for discerning whether a matrimony entered conditionally is valid or not. But we omit several cases adduced by older authors which today have scarcely any practical utility. For suspensive, resolutory, and interpretative conditions are customarily distinguished.⁵³²

⁵²⁹ Cf. Code of Canon Law, can. 1089-1091.

⁵³⁰ Can. 1088, § 1.

⁵³¹ Cf. Austrian Instruction, § 55.

⁵³² Cf. above, II, n. 261.

n. ¶103.

The defects of matrimonial consent are customarily said to be: 1. error; 2. force and fear.

Merkelbach, Pastoral Questions

Benedict H. Merkelbach, O.P. — 43 passages

Chapter II: Concerning Matrimonial Consent in Particular · Ch. II, Article I: Concerning the Qualities of Matrimonial Consent · Ch. II, Article II: Concerning Those Things Which Can Vitiate Consent · Ch. II, Art. II, § 3. Simulation

n. ¶5587.

As is plain from what has been said, matrimonial consent is a matter of the greatest moment, since it constitutes matrimony itself in its becoming, and exists as at once the matter and form of the sacrament of matrimony. And therefore it is necessary to treat consent more accurately. In the present chapter there must be treated successively, in distinct articles: 1) concerning the qualities of valid consent; 2) concerning the vices of consent.

n. 26.

- I. In order that it be sufficient for valid matrimony, matrimonial consent must be: true and internal, free, mutual and simultaneous, concerning the present, externally manifested.

n. ¶5589.

a) True and internal: namely, it is necessary that the will of the contracting parties sincerely intend to undertake the matrimonial obligations.

n. ¶5590.

b) Free: i.e., immune from error, force, and grave fear, and offered with sufficient knowledge and deliberation.

n. ¶5591.

c) Mutual and simultaneous: since matrimony is a bilateral contract, from its very nature it requires the consent of both persons about to marry. There is also required, as in civil contracts, at least the moral simultaneity of each consent.

n. ¶5592.

d) Concerning the present: for consent concerning the future effects betrothal, not a matrimonial contract.

n. ¶5593.

e) Externally manifested: for who can conceive a merely internal bilateral contract?

n. ¶5594.

Any external and certain manifestation of consent suffices for validity. But the Church commands that words be employed.

n. ¶5595.

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

n. 27.

- II) Matrimony by an interpreter.

n. ¶5597.

"Matrimony can also be contracted by an interpreter." (Can. 1090.)

n. ¶5598.

For liceity alone there is required a just cause and, if time allows, the license of the Ordinary. Moreover it is necessary that in no way should it be lawful to doubt the trustworthiness of the interpreter. (Can. 1091.)

n. 28.

- III) Matrimony by a procurator.

n. ¶5600.

Both validly, and licitly from a just cause, matrimony can be contracted by a procurator. This is clear from can. 1088 § 1 and can. 1089.

n. ¶5601.

For the validity of matrimony of this kind there is required:

n. ¶5602.

a) A special mandate to contract with a certain person (from natural law), signed by the mandator and either by the pastor or the Ordinary of the place in which the mandate is made, or by a priest delegated by either of them, or by at least two witnesses.

n. ¶5603.

If the mandator does not know how to write, or is not able to write, this is to be noted in the mandate itself, and another witness is to be added who also signs the writing. Otherwise the mandate is void. All these things are from ecclesiastical law.

n. ¶5604.

b) That the mandator, before matrimony has been contracted in his name, has not revoked the mandate, or fallen into insanity, even though this was unknown to the procurator or to the other party. (From natural law.)

n. ¶5605.

c) That the procurator himself personally fulfill the office. (Can. 1089.) (From ecclesiastical law.)

n. ¶5606.

For liceity the law prescribes:

n. ¶5607.

a) That diocesan statutes perhaps existing concerning this matter be observed.

n. ¶5608.

b) That a just cause be present.

n. ¶5609.

c) That, if time allows, the license of the Ordinary of the place be had.

n. ¶5610.

d) That the pastor should always be certain concerning the authenticity of the mandate. (Can. 1089 § 1. - Can. 1091.)

n. 29.

- IV) Matrimony by letters.

n. ¶5612.

It is altogether invalid, from ecclesiastical law, since the law decrees: "For matrimony to be contracted validly, it is necessary that the contracting parties be present, either personally or by procurator." (Can. 1088 § 1.)

n. 30.

- Matrimonial consent is essentially an act of the will; but, as is plain, it supposes a previous act of the intellect. For nothing is willed unless it is first known. Wherefore matrimonial consent can be impeded both by causes which stand in the way of the full knowledge of the mind, and by those which directly influence the will.

n. ¶5614.

On the part of the intellect, defect of reason, ignorance, and error can vitiate consent; on the part of the will, simulation, an appended condition, force or fear. Concerning each of such sources of invalid consent we must now treat.

Ch. II, Art. II, § 3. Simulation

n. 41.

- I. Notion.

n. ¶5661.

Simulation or fiction consists in this, with respect to contracting matrimony: that, while words which express matrimonial consent are externally pronounced seriously and duly, one or both contracting parties withhold interior consent.

n. ¶5662.

The intention of the simulator can be conceived as threefold: 1. not of contracting; 2. indeed of contracting but not of assuming the obligation; 3. of not fulfilling the obligation.

n. ¶5663.

II. What simulation effects with relation to the validity of matrimony.

n. 42.

- a) The intention of not contracting matrimony invalidates.

n. ¶5665.

This is plain, because such simulation excludes every consent of the will. Cf. Can. 1086 § 2.

n. 43.

- b) The intention of not assuming the obligation likewise makes matrimony invalid.

n. ¶5667.

The reason is that without the undertaking of the matrimonial obligation, matrimonial consent itself can no longer be conceived, without which there is no matrimony. Cf. ibid.

n. 44.

- c) The intention of not fulfilling the matrimonial obligations does not invalidate matrimony, but is a grave sin and an unjust deception of the co-party.

n. ¶5669.

For in this simulation nothing is present which is contrary to matrimonial consent itself.

n. 45.

- III. Whether and how one consenting fictitiously sins.

n. ¶5671.

a) Most certainly it is a grave sin, without grave cause, to consent fictitiously in contracting matrimony.

…and 3 more passages — all of them are listed on the topic page.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 59 passages

Vol. III, Special Moral Theology: On…, Treatise: On Matrimony, First Part: On Matrimony I…, Question One: On Matrimony…, Article V: On the Essence of Matrimony

n. ¶1.

S. Th., Suppl., q. 41, a. 1; q. 42, a. 1, ad 5, and a. 4; q. 44, a. 1; q. 45, a. 1 and 2; q. 48, a. 1; III, q. 29.

772. State of the question. - Matrimony can be regarded in becoming, i.e., in the act by which it is entered or the convention by which it is constituted; and in fact, or in the constituted state.

A. Concerning matrimony in becoming, 1. formerly several thought that carnal intercourse was required for its essence, saying that matrimony is begun in espousal or consent, but that it does not yet exist as perfect except by real handing over exercised in intercourse. Whence the name: copula-theory.

Thus Julian the Pelagian, Hincmar of Rheims, Ivo of Chartres, Algerus of Liege, Gratian, and many canonists, especially of the school of Bologna, among whom was Master Roland;¹ against St. Peter Damian, and the theologians, especially of the Parisian school with Peter Lombard, who taught that matrimony is constituted by mutual consent alone. But Roland, created Pontiff under the name of Alexander III, as to substance sanctioned the doctrine of the Parisian school; but according to the opinion of Bologna he established that ratified and non-consummated matrimony is not perfectly indissoluble.

¹ The opinion afterward is attributed to Wyclif and certain Protestants; Freisen again began to defend it, Geschichte d. Kan. Eherechts, § 3, but afterward retracted it.

Others have been unwilling for it to be called a contract, or have been found hesitant to affirm this, both among the ancients, at the time when the definitive juridical and scholastic doctrine of matrimony had not yet been formed, and also among more recent authors; indeed, "not a few more recent writers... shrink from the word contract, as if such a name either were unbecoming to matrimony, or inserted a less right concept of matrimony."²

² Gasparri, De Matrimonio, n. 3.

The immediate end, they say, of the act of entering matrimony is not an obligation, but a consortium of life whose obligations are determined not by the will of those contracting but by the law itself. For from the fact that they called it a contract, not a few falsely deduced that matrimony is dissoluble by the will of those contracting and is ruled by the civil power, after the manner of other contracts. Whence it is not a contract, neither real nor merely consensual, but a state, an institution, a society.

Roman law never uses the word contract; St. Thomas, who had hesitantly called it a contract in the Commentary on the Sentences, in the Summa contra Gentiles no longer says this, but simply says that it is a conjunction. And although ecclesiastical documents speak of a contract, they take that contract in a broader sense; but in the entirely proper sense, and better, it is not called a contract.³

³ Thus many modern jurists in Germany, such as Scherer, Vering, Laemmer, Schulte, Breda; and in France. On this matter there can be consulted: Desforges, Etude historique sur la formation du mariage en droit romain et francais; Lefebvre, Le mariage civil n'est-il qu'un contrat? in Nouv. Rev. historique du droit, 1902; Hauriou, Precis de droit constitutionnel, 1930; G. Renard, La doctrine de l'institution; and in Vie intell., 1931: La doctrine institutionnelle du mariage; Le Fur, Le droit naturel et la theorie de l'institution; Delos, in Bull. Thom., 1930-33.

But Catholic doctrine holds that matrimony a) negatively: does not consist in carnal intercourse, but b) positively: in mutual consent externally manifested. Whence it is not a real contract, but a consensual contract.

B. Matrimony in fact is the effect resulting from the matrimonial contract or from matrimony in becoming: the very state introduced by the contract, the permanent society which is effected by consent, which is the cause of matrimony. Now it is asked in what precisely the essence of this state consists, or in what it essentially consists.

There are many things which pertain to matrimony: mutual consent, external expression of consent, mutual handing over, mutual power over the body of the partner, the nexus and permanent bond between man and woman, the mutual right to acts of themselves apt for generation or to undivided life, the obligation and offices of undivided life, the very association of life, the use of matrimony. Several of these pertain to the cause of matrimony or to the contract, which is matrimony in becoming, and therefore do not constitute it in fact, as the first three; but it is asked which among the remaining things is the very essence of the matrimonial state.

773. Thesis I. Matrimony in becoming is a contract, not real but consensual, essentially consisting in mutual consent, externally manifested and unable to be supplied, unto conjugal life, by which namely man and woman mutually hand over their bodies to each other in order to acts of themselves apt for generation; whence, although it essentially implies order to carnal intercourse, nevertheless this does not pertain to its essence or substantial integrity (can. 1081). - That matrimony, even among the baptized, is essentially a contract, is certain from the encyclical of Leo XIII Arcanum and from the encyclical of Pius XI Casti connubii; but that carnal intercourse does not pertain to its essence is common and certain doctrine, from the decree of Alexander III.

It is proved: A. That carnal intercourse does not pertain to the essence of matrimony is clear from universal tradition, which is established:

from the Fathers: Origen, hom. 6 on Luke; Basil, On the holy generation of Christ 3-5; Ambrose, De inst. virg. VI, 42; Jerome, against Helvidius, 4; Augustine, De bon. coni. I, 2; De nupt. et conc. I, 11; against Julian 5, 12; Pope Siricius, ep. 1 and 9;

from the fact that they themselves and then theologians generally teach that true matrimony existed between Adam and Eve in the earthly paradise, and between the Blessed Virgin Mary and St. Joseph (Mt. I, 20; Lk. II, 5, 48);

from the doctrine of Councils and Pontiffs: thus Nicholas I in the response to the Bulgarians, c. 3; the Council of Florence, saying: "the efficient cause of matrimony regularly is mutual consent expressed by words of the present"; the Council of Trent, asserting that clandestine marriages made by free consent were ratified and true marriages, sess. 24, de ref., c. 1, and that ratified non-consummated matrimony is dissolved by solemn profession of religion, can. 6;

from the rule of law: "Not concubitus but consent makes nuptials," and from can. 1081 and 1015, § 1;

from the common persuasion of the faithful, indeed of men: that a man and a woman come together without sin because they are spouses, and that they are not spouses because they come together.

B. That matrimony is a true contract is established, since it is a mutual consent unto the same juridical agreement, or consent inducing obligation in both parties from commutative justice, namely, consent into the same obligations of the matrimonial state and of undivided conjugal life. As is constantly affirmed, for example, by Innocent III, in the Decretals of Gratian, c. 26, X, IV, 1; the Council of Trent, sess. 24, de ref., c. 1; Pius VI, July 11, 1789; Pius IX, Syllabus, prop. 66 and 73; Leo XIII, enc. Arcanum; Pius XI, enc. Casti connubii; and the Code of Canon Law, can. 1012, § 1 and 2; can. 1015, § 1. That so constant a doctrine is to be understood in a broader sense, not of a properly so-called contract, could seem temerarious.

The material object of the contract is the bodies, or, as St. Thomas says, the very persons of the contracting parties: "legitimate persons for contracting," he says, q. 45, a. 5. The formal object is the association of undivided life to which they obligate themselves by the conjugal bond, which comprises the mutual, exclusive, and perpetual right over the body of the other for acts of themselves apt for generation.

Hence although matrimony cannot be valid unless it confers at least a radical right to carnal intercourse, nevertheless the use of this right or the fulfillment of the matrimonial obligation does not pertain to its essence, just as neither does the use of the thing about which one contracts pertain to the essence of a contract.⁴

⁴ Roman law indeed does not use the word contract, but jurists say "to contract matrimony," and commentators said contract. - Among ecclesiastical writers, Ambrose says, De inst. virg., c. VI: "Not the deflowering of a virgin makes marriage, but the conjugal pact." The same doctrine is handed down by the Decree of Gratian, p. 2, c. 27, q. 2, can. 5. Peter Lombard, in IV Sent. d. 27, c. 3, uses the expression: conjugal pact; moreover by comparing betrothals and matrimony, he says that betrothals are a promise concerning the future, matrimony a promise concerning the present, and consequently this is a contract just as that is. Likewise Abelard, Ep. Th. chr., c. 31: confederation concerning marriage to be contracted. Likewise St. Raymond, in Summa, IV, t. 2, § 2; St. Bonaventure, in IV, d. 27, a. 2, q. 1 and d. 29, a. un. q. 3; St. Albert the Great, in IV, d. 27, a. 4, 6, 7 and 8, say contract. And this doctrine occurs throughout St. Thomas: thus for example q. 45, a. 1 and 2: the matrimonial conjunction is made in the manner of obligation in material contracts; and a. 2: in matrimony a contract is made between man and woman; and a. 3, ad 2: also in other contracts; and a. 5: in occult matrimony the due matter is preserved, because there are legitimate persons there for contracting. And q. 47, a. 1: in matrimony there is a certain contract; and a. 3: fear takes away the perpetuity of the contract, and therefore... takes away matrimony; and a. 5: in other contracts obligation is made under a condition..., therefore since matrimony is a contract... And q. 49, a. 3, concerning the goods of matrimony it is said that they are caused from the very conjugal pact. And q. 50, impediments diriment the contract on the part of the contract, or on the part of those contracting: in the first way, since the contract of matrimony is made through voluntary consent, which is taken away by ignorance and by violence. And q. 51, a. 2: just as purchase is a certain contract, so also is matrimony; q. 52, a. 1: in the contract of matrimony one is obligated to the other to render the debt; ignorance of impotence takes away the contract; q. 53, a. 1: one contracting matrimony after a simple vow of continence sins; nevertheless because it is a true contract...; q. 58, a. 1: in matrimony there is a certain contract... whence as in other contracts; similarly a. 3; and a. 5: matrimony, since it is made through the manner of a certain contract, etc. Therefore the Holy Doctor by no means spoke hesitantly, as someone has said. But if in the Summa contra Gentiles he does not speak of contract, the reason is that he does not explain the whole doctrine of matrimony, but has relatively few things, namely, concerning the state of matrimony in fact and concerning unity and indissolubility, but nothing concerning the cause and matrimony in becoming.

774. They object: A. against the first part. Intercourse is of the essence of matrimony.

For 1. Christian matrimony signifies the union of Christ with the Church; but this union is not signified except by carnal conjunction; therefore carnal conjunction pertains to the essence of matrimony. - Resp. I distinguish: Christian matrimony signifies the union of Christ with the Church through grace and charity, or a moral union, I concede; it signifies physical union, I subdistinguish: through the mediation of conjugal intercourse, I concede; essentially, I deny.

St. Paul explains this union, Eph. V, 31 sq.: "They shall be two in one flesh; this is a great sacrament. But I speak: in Christ and in the Church"; therefore carnal union pertains to the essence of matrimony. - Resp. The words: they shall be two in one flesh, do not necessarily nor first signify carnal union, but the indissoluble bond between spouses with a right to the body of the partner, and the bond of love by which he loves her as his own flesh. For the Apostle alludes to the words of Adam: "This now is bone of my bones and flesh of my flesh... wherefore a man shall leave his father and mother and shall cleave to his wife, and they shall be two in one flesh," i.e., in one principle of generation. This is also verified before the spouses exercise intercourse; whence in these words carnal intercourse is not directly treated.

Matrimony is in the office of generation and as a remedy of concupiscence; but neither is had except through intercourse; therefore intercourse pertains to the essence of matrimony. - Resp. I deny the consequence, because the attainment of the end of some thing is not of its essence.

Therefore carnal intercourse is only of the secondary and accidental integrity of matrimony (q. 42, a. 4).

B. against the other part. Matrimony is not a properly so-called contract, but an institution and society.

For 1. A contract immediately produces obligations and rights; the matrimonial convention immediately produces a state. - Resp.: matrimony is at the same time a state and a contract; essentially and in being it is an institution and society, but causally and in becoming it is a true contract. For matrimony immediately produces the conjugal state, but as obligatory, and all its obligations. It also grants power and right: it grants property of the body, namely, dominion over the body of the partner. Therefore it is a true contract.

A contract is an act which produces obligation only between the contracting parties, and indeed between equals, and immutably; matrimony produces obligations also in others, is hierarchical, and over the course of centuries has adapted itself to various circumstances. - Resp. Matrimony immediately produces obligation in the contracting parties, mediately and consequently in others; it is between equals as to the essential right and primary object, carnal intercourse, although spouses are not equal as to domestic life; it is immutable in essentials, although it has undergone accidental modifications. Other contracts also can mediately obligate a third party, as lease; institute a hierarchy, as for example a contract of service; nor are they always immutable in all things.

If matrimony were a contract, it could be dissolved by mutual consent, as contracts can, and be ruled by the civil power after the manner of other contracts. - Resp. I distinguish: if it were a contract of merely human institution concerning temporal things, I concede; if it were a natural contract instituted by God, especially not merely profane, but religious in some sense, I deny.

775. Corollaries. - From the foregoing the following things are drawn:

Matrimony is a contract, because essentially it is the consent of two persons in the same thing, and indeed perfectly bilateral.

It is a most excellent contract, both by reason of the object, which is nothing less than the very persons of the contracting parties, and by reason of the end, which is the legitimate procreation of offspring and their education unto the worship of God.

It is a natural contract, as indicated and imposed by nature itself.

Yet therefore it is not merely profane, but of its own accord is religious, says Leo XIII, and this independently of sacramental dignity; namely, it is religious and sacred, not indeed intrinsically and essentially, but according to an extrinsic reason, in the present supernatural order: both by reason of its immediately divine origin; and by reason of the signification of a sacred thing, which is an adumbration of the union of the incarnate Word with human nature; and by reason of the end to which it is ordered, namely, to procreate and educate children for God unto the beatific vision; and, Pius XI adds: "from the same natural office of marriage, instituted by the most provident mind of God the Creator, that it should be as it were a certain vehicle for transmitting life, by which parents serve the divine omnipotence as it were as ministers." Wherefore it is "intimately joined with religion and the order of sacred things," and by this reason, Leo XIII says, "there is in it something sacred and religious, not adventitious, but innate, not received from men but implanted by nature." And therefore the monuments of antiquity and the customs and institutions of peoples testify that matrimony is a thing joined with religion and sanctity, and that it was not accustomed to be done without religious ceremonies.

It is a contract not merely private, as being ordered not primarily to the good of the contracting parties but to the common good; its character does not depend on free convention, but is determined by nature and the author of nature.

It is a singular contract, both because matrimonial consent can be supplied by no human law (can. 1081, § 1), and because its laws, as instituted by God and nature, cannot be subject to human laws or decrees or to the contrary agreement of the spouses themselves, and because it is of itself perpetual and indissoluble.