What betrothal is and how it is made

THE seventh sacrament of the Christian Church is Marriage, and because it is usually preceded by an engagement to marry, we will first treat of betrothal. Betrothal may be defined as a mutual promise of future marriage between persons who may marry lawfully.

It is a mutual promise or a bilateral contract between a man and a woman, and the conditions which are required for the validity of any bilateral contract are requisite for betrothal. There must be a serious, voluntary, and deliberate intention to enter into the agreement: Mere unmeaning flirtation, or the expression of a wish by the man that he could make the woman his wife, does not make a betrothal. Anything which destroys the voluntariness of the act will prevent it from being a valid contract. Substantial mistake about its nature or about the identity of the other party to the contract, and probably even mistake about some unessential quality in the other party, if it were the motive for entering into the contract, would make it null and void. As grave and unjustly caused fear is a diriment impediment to marriage, so, too, it prevents a valid engagement to marry.

The promise must be deliberate, made with full knowledge and advertence to the serious step which is being taken. There must be, as divines say, the deliberateness about the act which is necessary to commit a grave sin. The mutual consent of the parties must be expressed by words, writing, or other suitable sign. The acceptance by a woman of a ring from a man who has asked her to be his wife is a sufficient expression of consent and concludes the contract.

For many years past a special law has existed in Spain by virtue of which no betrothal is valid unless attested by a formal document in writing. In the year 1900 this law was extended to the whole of Spanish America, and by the decree of the Sacred Congregation of the Council, August 2, 1907, no betrothal between Catholics or in which one of the parties is a Catholic is valid in conscience or in law or has any canonical effects unless it is contracted in writing and is signed by the parties, and also signed either by the parish priest, or by the local ordinary, or at least by two witnesses. If either of the parties or both of them are unable to write, the fact should be noted in the document, and another witness must be added who will sign the document together with the priest, or the local ordinary, or the two witnesses mentioned above. This decree binds all Catholics of the Latin rite throughout the world, and takes effect from Easter Sunday, April 19, 1908 (Can. 1017).

The term parish priest in this decree is used to designate not only him who is lawfully placed in charge of a canonically erected parish, but in countries where there are no canonically erected parishes the priest to whom the cure of souls in a definite district is lawfully entrusted, and who is equivalent to a parish priest, and in missions where as yet the districts are not definitely marked out all priests who in any place have the general cure of souls assigned them by the superior of the mission.

The parties must be capable of entering into a lawful marriage at any rate at the time contemplated when the engagement is made. For a promise to do something which is impossible or unlawful has no binding force, and so if at the time contemplated there will still be some diriment or prohibitory impediment between the parties, an engagement to marry is void.

A valid contract to marry at a future time when the parties will be free to do so may be entered into by those who are now hindered by some impediment. And so children under age, though incapable of marrying, may enter into a valid betrothal. According to the old canon law, even their parents might make a valid engagement for them, if they were present and did not express dissent; or, if absent, afterward ratified the contract. The decree of August 2, 1907, abolishes this rule, as also the presumption of law by which marriage attempted by children under age was presumed to be a valid engagement to marry.

Some authors applied that presumption to the case of clandestine civil marriages contracted in places subject to the decree Tametsi of the Council of Trent. They held that although such a marriage was null and void, yet it had the effects of a betrothal, as in the case of those under age. Leo XIII, however, by a decree dated March 17, 1879, decided that a clandestine marriage has not the effects of a betrothal even if the parties intended that it should have.

Betrothal of children under seven is presumed to be amend for want of the use of reason, but if it is proved that the parties to the contract had sufficient use of reason in spite of their tender age, the engagement will be valid; malice is then said to supply for the want of age.

Betrothal under condition, as, “I will marry you if I can earn £200 a year,” is lawful, and follows per se the ordinary rules of conditional contracts. Such a betrothal will impose on the party who enters into it an obligation to do what he can to fulfil the condition, and when the condition is fulfilled the engagement will become valid and binding without any renewal of consent. Similarly, an engagement in this form, “1 will marry you if I reach the age of twenty-one,” will become a binding engagement on attaining that age. On the contrary, an engagement under an impossible condition is null and void from the commencement. And so, if two parties between whom there is a diriment impediment, which either cannot be dispensed or for which a dispensation is not usually given, enter into an engagement under the form, “I will marry you if we can get a dispensation,”’ there will be no valid contract. It is much controverted among canonists and divines whether the same is to be said when the impediment is one for which a dispensation can be, and usually is, granted. If cousins, for example, entered into an engagement under the form, “‘ I will marry you if I can get a dispensation,” what would be the effect of such an engagement? ‘There would, of course, be an obligation to ask for a dispensation; but if it were got, would there be a valid betrothal by virtue of the conditional engagement, or would the parties have to renew their consent ? Many authors maintain that in this case there is no valid betrothal without a renewal of consent. For proof of their view they point out that the parties were not free to enter on an engagement to marry on account of the diriment impediment between them; that it is unbecoming to contract on condition that the superior grant a dispensation from the law which should be observed by all; and that when the question has been submitted to Rome the decision has uniformly been in favour of this view. On the other hand, many good authors hold that there is nothing in these reasons to prohibit us from applying to such cases the ordinary doctrine concerning conditional contracts, and so the general question remains undecided and uncertain. Both opinions are theologically probable.

I. The notion of betrothals. Betrothals¹ are the mutual promise of matrimony between one man and one woman who are capable. It is said:

1. A promise. Therefore a desire, a mere purpose, or a simple negotiation about entering matrimony does not suffice.

2. Mutual. Therefore it is not sufficient that only one party promise, even if the other accepts the promise; but a counter-promise also is required (canon 1017, § 1). As is clear from what has been said, betrothals constitute a contract, and indeed an onerous one; hence for them, as for every contract of this kind, consent is required:

a) Internal. If it is not internal, consent or volition is lacking in reality. Therefore a fictitious promise does not suffice, that is, one made externally but without the mind of promising. One who wishes to enter betrothals, but has the mind of not binding himself, seems not to enter betrothals, because he excludes that without which the contract cannot exist (cf. vol. I, n. 834). But one who wishes to enter betrothals acts validly, even if he has the mind of not fulfilling the obligation (cf. ibid.). In addition, one who has promised fictitiously is guilty of fraud, and therefore is bound to prevent or compensate the damage; even, if this cannot be done in another way, by now promising truly (St. Alphonsus VI, 832, 833).

b) Fully deliberate; for only an act of this kind can produce an obligation and the acquisition of a right. Hence betrothals entered, for example, in drunkenness, by one half-insane, are invalid; likewise betrothals made from a sudden movement of passion can be invalid (St. Alphonsus VI, 831).

c) Sufficiently free from error; wherefore it is enough to note:

α) Error concerning the person with whom betrothals are entered renders these betrothals invalid. The reason is that in betrothals the person constitutes the object of the contract. But error concerning the object of a contract invalidates the contract (vol. I, n. 836).

β) For the same reason, error concerning a quality or circumstances of the person with whom betrothals are entered renders these betrothals invalid if the error redounds into error concerning the person. Otherwise it does not invalidate them, because consent to the object of the contract is not lacking; nevertheless it renders them rescindable if, had the error not existed, the betrothals would not have been entered; practically, if the error concerns a notable defect. These things indeed do not of themselves hold for all onerous contracts, but with regard to betrothals they are admitted in law, as will be explained later (St. Alphonsus, Homo Apostolicus, tr. 18, n. 2).

d) Sufficiently free from fear. Fear which so disturbs the use of reason that the act is not fully deliberate invalidates betrothals (vol. I, n. 840). These things set aside:

α) Fear, whether arising from within, or from a necessary cause, or inflicted justly or unjustly by a free cause, does not invalidate betrothals. The reason is that fear does not prevent the contracting party from furnishing perfect consent. But every contract is intrinsically constituted by perfect consent (St. Alphonsus VI, 844; cf. vol. I, n. 840).

Objection. Grave fear, inflicted unjustly and for extorting consent, invalidates betrothals at least by canon law, just as it invalidates matrimony (canon 1087, § 1), according to that rule: connected things ought to have the same reckoning.

Response. The assertion seems to have to be denied; for since the application of the assigned rule is in itself rather difficult, the Code certainly, if it had wished the rule to be applied, would have stated that betrothals are invalidated by the said fear in the same way as matrimony.

β) Fear renders betrothals rescindable if it has been inflicted both unjustly and by the other contracting party, and has given cause to the contract. If one of the assigned conditions is lacking, fear does not render betrothals rescindable (vol. I, n. 840).

e) External, namely insofar as it must be made known to the other party. Of itself, however, it is indifferent whether it is manifested by words, in writing, or by a sign, for example by a nod. But, with positive law considered, it is required that the legitimate form, to be explained later, be observed (St. Alphonsus VI, 838).

f) Made known to the other party, as was explained in vol. I, n. 834.

g) Made known by the promisor or in his name (vol. I, ibid.).

h) Simultaneous, the one with the other, because otherwise they do not truly agree into one. Of itself, however, it suffices that one consent while the consent previously given by the other persists (vol. I, n. 834).

3. Of matrimony; others say of future matrimony, so that betrothals may be more expressly distinguished from matrimony not yet consummated, which formerly came under the name of betrothals concerning the present, while betrothals properly so called were called betrothals concerning the future.

4. Between one man and one woman. Hence there would not be betrothals if someone promised matrimony to two at the same time.

5. Capable, that is, it is required that the promisors be both actually capable of promising matrimony and at least later capable of contracting it; these things, however, need explanation, which we shall add in the corollaries.

¹ Betrothals are so called from promising, namely from the practice of the Romans, by which one who wished to take a girl as wife addressed her father or guardian with the solemn formula: "Do you promise?" and he responded: "I promise." She who was promised was the bride, that is, the promised one; he to whom she was promised was the bridegroom; he who promised was the sponsor; the whole contract was betrothals; the day on which it was entered was called sponsal.

Corollary I. Betrothals entered by those who are held by a diriment or prohibitive impediment are to be judged thus:

1. If they are entered absolutely, they are invalid; for then matrimony is not reached insofar as it is valid and licit. The same must be said if they are referred to a time at which the impediment has not yet ceased.

2. If they are referred to the time at which the impediment has ceased:

a) They are valid if they are entered under the condition of an impediment removed without dispensation. Hence if someone says: "I shall contract with you if you have been converted to the Catholic faith," he is bound to wait for a reasonable time; and if the other is converted to the faith, the betrothals become absolute. Yet it is especially disputed whether these things also hold for the impediment of bond, namely when a married person promises matrimony to someone under the condition of the matrimonial bond being dissolved by death. Many judge that betrothals of this kind are invalid, because just as a subsequent matrimony extinguishes betrothals entered with a third person, so an antecedent matrimony ought to prevent valid betrothals from being entered with a third person. But the antecedent seems to have to be rejected, as we shall say in n. 677.

b) If they are entered under the condition of an impediment removed by dispensation, for example if someone says: "I shall contract with you if the Church dispenses," it is more disputed whether they are valid and consequently, when the dispensation has been obtained, become absolute by that very fact. Now then:

α) It seems that an affirmative answer is to be given if the dispensation can reasonably be expected, and it is a question of a matrimony which neither under a moral respect is dangerous, nor of itself injurious to the sacrament; for example, if someone should enter betrothals with his niece. The reason is that the promise regards matrimony insofar as it is valid and honorable in the full sense. The positive law, which, with certain declarations considered, formerly seems to have stood in the way, no longer seems to have to be urged, since the Code is silent.

β) It seems that a negative answer is to be given if it is a question of a matrimony which remains full of danger and of itself inflicts injury upon the sacrament; for example, if someone should enter betrothals with a heretic. The reason is that, as it seems, an obligation to enter such a matrimony cannot arise.¹

Corollary II. Betrothals entered by children without the knowledge of their parents are of themselves contracted illicitly; nevertheless they are valid, unless the matrimony itself is illicit for them. Likewise betrothals contracted against the will of parents are valid or invalid according as the matrimony itself which is promised must be held licit or illicit (St. Thomas II-II, q. 104, a. 5; Supplement, q. 47, a. 6; St. Alphonsus VI, 849, 851).

Corollary III. Betrothals, just like other contracts, can also be entered through a procurator (n. 666); likewise by letters, if only the law of nature is considered, but not if canon law is considered (n. 666).

¹ The Holy Office, December 12, 1888, responded: "Betrothals between one Catholic party and the other schismatic or heretical party are illicit and therefore invalid, unless they are celebrated after previous legitimate dispensation" (Collectanea, n. 1696).

II. Division of betrothals. Betrothals are distinguished into:

1. Solemn and non-solemn, according as the legitimate form is or is not observed.

2. Absolute and conditional, according as they are neither suspended by a condition concerning the future nor made less firm by a resolutory condition; or are entered under some one of the aforesaid conditions.

3. Confirmed and bare or simple, according as an oath or earnest money or other stipulations, for example penalties against those withdrawing, are or are not added.

III. Fittingness of betrothals. Betrothals indeed are not prescribed; nevertheless the contract of betrothals is "decent and fitting before the celebration of matrimony. For in this way the betrothed obtain the opportunity of examining their morals and character. For since it is a question of entering matrimony, which induces a perpetual and indissoluble bond, the greatest circumspection and mature deliberation are needed, lest, if persons unequal in morals are joined to one another in perpetuity, marriages should obtain unhappy outcomes. Moreover, it is necessary that certain preparations precede the celebration of nuptials; and lest the delay thence arising render uncertain the hope of future matrimony, the betrothal pledge is aptly interposed. Furthermore, when betrothals are arranged, there is an easy occasion for the consent of parents, or of those who have authority over the betrothed, to intervene. Although that consent is not necessary at least for validity, nevertheless it is useful in the highest degree, and clandestine betrothals or inconsiderate negotiations are already wont of themselves to offend parents (cf. the cited c. 1.3. CXXX. q. 5). Finally, when betrothals have been publicly celebrated a just time before matrimony, impediments which perhaps stand in the way of matrimony are more easily detected."¹

¹ Wernz-Vidal, Ius canonicum, t. V, n. 81.

IV. Governance of betrothals. Since betrothals by their nature are ordered to matrimony, their governance belongs to the same persons to whom the governance of matrimony belongs, that is, if it is a question of baptized persons, to the Church (n. 718). Now only the Supreme Pontiff enjoys legislative power in it, so that Bishops cannot, for example, establish impediments of betrothals. Nevertheless judicial power belongs to them, or the power of judging betrothal cases. What belongs to the pastor is explained in n. 670.¹

¹ Cf. n. 670.

The legitimate form of betrothals, likewise of a unilateral promise, is set forth in these words: A promise of matrimony, whether unilateral or bilateral or betrothal, is invalid for both forums unless it has been made by a writing signed by the parties and either by the pastor or the local Ordinary, or by at least two witnesses (canon 1017, § 1). If both parties or either party does not know how or cannot write, for validity this is to be noted in the writing itself and another witness is to be added, who signs the writing with the pastor or local Ordinary, or with the two witnesses of whom in § 1 (canon 1017, § 2).

I. Explanation of the legitimate form. For the legitimate form of betrothals it is required: 1° that it be contracted by writing; 2° that the day, month, and year of the contract entered be affixed; 3° that the writing be duly signed.

1. That it be contracted by writing, in other words, either one or both parties must promise matrimony to the other in writing. But if the promise is made under a condition, likewise if a time is added for ending the obligation, these seem necessarily to have to be expressed; for they so alter the promise that, if they are omitted, it is not designated according to its substantial elements. Other stipulations of some moment also are usefully expressed. Moreover, it is not required that the parties themselves draw up the writing; nor does anything prohibit a determined formula from being printed, or made lithographically or in another way, for the common use of contracting parties. The signature, however, is to be made as will soon be explained.

2. The day, month, and year on which the betrothals are entered are to be affixed. The affixing of a false date stands in the way of the value of the contract; since in that case the date is not in reality affixed. Some, however, relying on the analogy of civil law, judge that betrothals are valid if the inscription of the false date arose from an involuntary error, and the true date can be drawn from the context.

It is doubted whether or not the affixing also of the place in which the promise is made is required for validity. For the affirmative opinion there militates first, that custom interprets the signing of the date in such a way that the place also is affixed. Next, where there is question of betrothals signed by the pastor or by the Ordinary, the affixing of the place is very greatly conducive to a document which can firmly prove the validity of the betrothals, since for the aforesaid persons to sign validly it is required that they perform this within the place of their territory. That the Sacred Congregation of the Council, when it responded that the date had to be added, was silent about the affixing of the place is perhaps explained by the fact that it was not asked about it. Since the matter is doubtful, the affixing of the place should not in practice be omitted.¹

3. That the writing be duly signed. On this point observe:

a) The writing of itself must be signed either by the parties together with the pastor or local Ordinary, or by the parties together with two witnesses. If both parties or either party does not know how or cannot write, for validity this is to be noted in the writing itself and another witness is to be employed, who is joined either as a second witness to the pastor or Ordinary, or as a third witness to the other witnesses. It is not required and it does not suffice that the party who does not know how or cannot write affix a mark in place of name and surname. It suffices that one witness be added, whether both parties or either party does not know how or cannot write, since the law speaks only of another witness to be added. The party who alone can write seems not to be bound to sign. For the obvious sense of the law sufficiently insinuates that the signature of the pastor, or of two witnesses, and of the added witness suffices. Nevertheless, on account of some doubt, it is expedient to follow the safer course.

One does not know how to write who is ignorant of letters; one cannot write who is physically impeded from writing. One who affixes his name while guided by the hand of another seems to sign validly if he is only helped, so that he himself exists as the principal cause. But if someone is like a mere instrument, for example because he has in no way been taught the method of writing or has a hand suffering from perfect paralysis, he affixes his name invalidly. Likewise one who uses a typewriter signs invalidly; for he must be said to print rather than to write. In addition, that manner of signing is destitute of every sign of authenticity. For the same reasons one signs invalidly who employs an instrument which reproduces the name in the likeness of an engraved character.

Who come under the name of pastor and local Ordinary, see n. 734. Now the pastor seems to sign validly even if he has not yet obtained possession of the benefice, since the law, where it speaks of the promise of matrimony, does not speak of a requirement of this kind, and requires only that one be pastor. For the same reason, the same seems to have to be said of a pastor excommunicated by sentence, or interdicted, or suspended from office, or declared such. But the pastor and local Ordinary cannot grant to another, for example to a vicar or secretary, the faculty of signing the promise of matrimony as an authorizing witness.²

As witnesses there can be employed any who, with the law of nature considered, are capable of giving testimony.³ Hence infidels, heretics, women, and those under puberty are not excepted, although, where Catholics can be had, it is not fitting that heretics or infidels be employed. It is clear that even the pastor and Ordinary can be taken as common witnesses.

b) The pastor or local Ordinary taken as an authorizing witness is bound to sign the writing within his own territory. But this also suffices. Therefore it is not required that the pastor or Ordinary who is employed be proper to either contracting party, for example by reason of domicile; but it is required and suffices, both for validity and for liceity, that he be the pastor or Ordinary of the place in which he signs the contract.⁴

c) The parties are bound to sign the writing in one context with the pastor or Ordinary, or with the two witnesses;⁵ in other words, it is required that each be present to all the others as they sign.

¹ Sacred Congregation of the Council, July 27, 1908, to II. This and similar responses were mere explanations of law previously existing and inserted into the Code; hence we judge that they persist, with canon 6, 2°, and canon 23 considered.

² Sacred Congregation of the Council, March 30, 1908, to VI.

³ Cf. Sacred Congregation of the Sacraments, March 12, 1910, to IV.

⁴ Sacred Congregation of the Council, March 30, 1908, to VII.

⁵ Sacred Congregation of the Council, July 27, 1908, to I.

As custom has it in civil contracts, so also it is expedient that the betrothal contract be read aloud before it is signed. Likewise it is useful that the document which contains the contract be preserved with the pastor or Ordinary of the place who signed it, while a copy is nevertheless handed to each party.

Corollary. Since the parties are bound to sign the writing in one context with the pastor or local Ordinary, or with two witnesses, betrothals cannot be contracted between absent persons except through a procurator. That they can be entered through a procurator follows from the fact that otherwise provision would not have been made for contracting betrothals by those who cannot meet with one another. Next, unless the contrary is established, it must be judged that with regard to contracts the faculty persists of doing through another what one can do through oneself. As to the manner of employing a procurator, however, it is expedient to observe what canon 1089 establishes concerning marriages to be contracted through a procurator.¹

¹ As matrimony, so says the cited canon, is validly entered through a procurator, there is required a special mandate to contract with a certain person, signed by the mandator and either by the pastor or Ordinary of the place in which the mandate is made, or by a priest delegated by either, or by at least two witnesses. If the mandator does not know how 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 invalid. If, before the procurator has contracted in the name of the mandator, the latter has revoked the mandate or fallen into insanity, the matrimony is invalid, although either the procurator or the other contracting party may have been ignorant of these things. For matrimony to be valid, the procurator must perform his office personally.

II. Necessity of the legitimate form. a) A promise of matrimony, whether bilateral or betrothal, or unilateral, made without the statutory form, is void or invalid for both forums (canon 1017, § 1).

Therefore informal promises made after the statutory form, as being wholly void, of themselves induce no obligation either of justice or of fidelity. I said of themselves; for it cannot be denied that, accidentally, an obligation can arise from an informal promise. Thus, for example, one would be bound to restore damage who deceitfully entered betrothals with a person ignorant of the invalidating law, and by acting thus was the cause why the other party suffered damage. Likewise one would be bound by the obligation of restitution who deceitfully had intercourse with a betrothed woman who judged that the private betrothals entered by her were valid. Finally, one who after informal betrothals had been entered no longer wished to enter matrimony would be bound to warn the other party, who would be foreseen as about to make expenses for the future matrimony, etc.

Question. Whether an informal promise of betrothals is also invalid?

Response. We judge that this must be denied, because the law speaks only of a promise of matrimony; the force of this argument is increased by the fact that an invalidating law is to be interpreted strictly (cf. canon 19).

b) Although an informal promise of matrimony is invalid, nevertheless it does not seem illicit. For the end of the legislator is sufficiently obtained by the mere invalidation of the informal promise, without a prohibition being added. Add that a law which not only invalidated but also prohibited informal promises would provide occasion for innumerable and continual transgressions, and therefore would not be conducive to the common good.

III. Subjects of the legitimate form. The following are subject to the form of betrothals:

1. Catholics of the Latin rite, not of the Oriental rite (canon 1), as is clear.

2. Baptized non-Catholics. It is indeed true that heretics and schismatics were immune from the Pian law, even insofar as it regarded betrothals; but the Code repeats that immunity only with respect to marriages. It is also true that heretics and schismatics, according to many, are not held by many ecclesiastical laws;¹ but they extend this immunity only to laws which more nearly regard the sanctification of souls rather than public order. Finally, the special reason which holds for exemption from the form of celebration of matrimony, namely the preventing of concubinage, cannot be urged here.

Corollary. Catholics of the Latin rite are subject to the form whether they enter betrothals among themselves, or with a Catholic of the Oriental rite, or with a non-Catholic, baptized or not baptized. Baptized non-Catholics are subject to the form whether they contract betrothals among themselves, or with a Catholic, or with a non-Catholic, baptized or not baptized. The non-baptized are not subject to the form if they enter betrothals among themselves; but they are subject to it if they do so with a baptized person.

¹ We abstract from the question whether or not this opinion is sufficiently founded (cf. vol. I, n. 129).

Forms of Betrothals

I.

Betrothals signed by the contracting parties and the pastor.

James.......... son of.......... and.......... born on the day.......... of the month.......... of the year.......... and living in.......... and Anna.......... daughter of.......... and.......... born on the day.......... of the month.......... of the year.......... and living in.......... by these letters contract betrothals.

At Rome, on the day.......... of the month.......... of the year............

Signature of the bridegroom

Signature of the bride

Signature of the pastor

II.

Betrothals signed by the contracting parties and two witnesses.

James.......... son of.......... and.......... born on the day.......... of the month.......... of the year.......... and living in.......... and Anna.......... daughter of.......... and.......... born on the day.......... of the month.......... of the year.......... and living in.......... by these letters contract betrothals.

At Rome, on the day.......... of the month.......... of the year............

Signature of the bridegroom

Signature of the bride

Signature of the first witness.

Signature of the other witness.

III.

Betrothals signed by the pastor and a witness.

James.......... son of.......... and.......... born on the day.......... of the month.......... of the year.......... and living in.......... and Anna.......... daughter of.......... and.......... born on the day.......... of the month.......... of the year.......... and living in.......... by these letters contract betrothals. The contracting parties, or one of the contracting parties, N.N., cannot write. Hence N.N., son of.........., has been taken as witness.

At Rome, on the day.......... of the month.......... of the year............

(Signature of the party who can write.)

Signature of the pastor

Signature of the witness taken.

IV.

Betrothals signed by three witnesses.

James.......... son of.......... and.......... born on the day.......... of the month.......... of the year.......... and living in.......... and Anna.......... daughter of.......... and.......... born on the day.......... of the month.......... of the year.......... and living in.......... by these letters contract betrothals. The contracting parties, or one of the contracting parties, N.N., cannot write. Hence N.N., son of.........., has been taken as third witness.

At Rome, on the day.......... of the month.......... of the year............

(Signature of the party who can write.)

Signature of the first witness

Signature of the second witness

Signature of the third witness.

Betrothal or Engagement.—Engagement is a promise of their future marriage made by competent persons.

(a) It is a promise, either unilateral or bilateral, the latter being espousals or betrothal in the strict sense of the word (1749). Like every promise, engagement is not binding unless it be made with requisite deliberation and freedom from force and fear. But a valid engagement to marry has not the same strength, either from divine or from human law, as a contract of marriage, and hence fraud or light fear unjustly produced and which induces one to become engaged leaves the engagement rescindable at the will of the innocent party. Canon Law requires certain formalities for a valid engagement, and without them there is no obligation in either forum. The law is that the contract of betrothal be in writing, and be signed by the parties and also by the pastor or local Ordinary or two witnesses, and that, if one or both of the parties be unable to write, this be noted in the document and an extra witness be added (Canon 1017).

(b) It is a promise made by competent persons. Hence, there is no valid engagement if a party is incapable either naturally (e.g., one who has not the use of reason) or canonically (e.g., one who has not attained the age of seven years). It is against good morals to be engaged to two persons at the same time, with the understanding that one will marry the second after the expected death of the first; and much more is it immoral for a married person to become engaged to marry another, the marriage to take place after the death of the present consort. Some canonists hold that engagements are not valid before the age of puberty, on account of the lack of sufficient discretion.

(c) It is a promise of future marriage, that is, a contract to marry, not a contract of marriage. A nuptial engagement is invalid if the marriage promised is invalid or unlawful, for no one can bind himself to sin. An invalid marriage is promised if there is a diriment and not dispensable impediment in the way, or if in spite of a removable impediment the engagement is unconditional, unless the mind of the parties is to marry after the impediment has ceased. The Church seems to regard as null an engagement made on the condition that the Pope will dispense an impediment. An unlawful marriage is promised when the parties cannot marry without sin (e.g., when the marriage will bring great sorrow or disgrace on parents), or when they promise to marry in a sinful way (e.g., with the understanding that they will abuse marriage). But an unlawful promise of a lawful marriage is not necessarily invalid, and hence an engagement dependent on an immoral condition not opposed to the substance of marriage would become obligatory on fulfillment of the condition (see 1878 d, 1886).

It should be noted that the former diriment and impedient impediments produced by espousals are no longer in force, and even a valid engagement gives no right to an action for the celebration of marriage.

Is an Engagement Necessary before Marriage?—(a) An engagement is not strictly necessary. Neither the validity nor the lawfulness of marriage depends on espousals, for there is no law that requires this. Hence, if for a reasonable cause a man and woman married without any previous binding pledge on either side, the marriage would be good and lawful. The formal engagements of Canon Law are not common in this country, but an informal engagement usually precedes matrimony.

(b) Engagement is most suitable and useful. Men are accustomed to fit themselves by long and serious study for the business of a profession or calling, and to enter into preliminary agreements about contracts of major importance (as in contracts to sell), and certainly marriage, a contract and vocation that binds until death and upon which the spiritual and temporal welfare of society and individuals rests, is among the most momentous of human agreements. The special advantage of engagement is that it affords a means of preventing hasty and ill-advised unions, of discovering impediments, of securing the consent of parents, and of preparing oneself in knowledge and virtue for the duties of the married state. If engagements were regarded and treated as a period of training for serious and sacred duties, not as a time for frivolity or enjoyment, there would be fewer divorces and less talk about trial marriages. On the duties of engaged persons to one another, see 2628, 2629.

722. Definition. - Betrothals are a deliberate promise (namely, with deliberation sufficient for mortal sin) ¹, mutual ², and expressed by a sensible sign ³, of future matrimony between capable persons.

¹ Some affirm, and others deny, in Bonacina (On Matrimony, question 1, point 4, no. 4) and Sanchez (book 1, disputation 16, no. 15), that deliberation which suffices for sinning mortally is sufficient; and among the latter is St. Thomas (Supplement, question 43, article 2, reply to objection 2; or On the Fourth Book of the Sentences, distinction 27, question 2, article 2, reply to objection 2). You will reconcile both opinions without difficulty by the same reasoning by which the Doctors, who disagree only in appearance, are reconciled concerning whether deliberation which suffices for mortal sin is sufficient for the validity of a vow. Concerning this, see volume 1, no. 320, with the note.

² If the promise is not mutual but belongs only to one party, there will not be a contract of betrothal, which is onerous and binds each side in justice, but a contract of simple promise, which is gratuitous and binds from mere fidelity if the other party accepts the promise. St. Antoninus (part 3, title 1, chapter 18, section 3) gives an example in one who says: I give my pledge... and I shall wait one or two months or years or for all time, prepared to marry you if you wish. But the other party can accept the promise and remain free in the meantime, so that, after taking counsel, the betrothal offered to him or her may either be admitted or rejected. I said the betrothal offered, for this is a certain promise of contracting betrothal. As Schmalzgrueber observes (book 4, title 1, no. 49), although it obliges one to contract betrothal and appears to be a promise of matrimony, at least mediately, nevertheless it does not merit the name of betrothal and therefore produces neither public decency nor the other effects proper to betrothal, just as a promise of sale is not a sale and does not transfer title to another. - See Sanchez, On Matrimony, book 1, disputation 5, no. 7 and following.

³ It is said, by a sensible sign, that is, by any exterior sign by which there is expressed that to which each of the contracting parties consents and what is accepted, and by which the mutual acceptance is made known to the other, so that the contract becomes absolute. Words, therefore, are not necessary, for they could neither be uttered by a mute person nor heard by a deaf person, between whom, nevertheless, both betrothal and matrimony can be contracted, as is established from chapter Cum apud 23 and chapter Tuae 25, On Betrothals. The contrary is to be said, as Sanchez notes (On Matrimony, book 1, disputation 8, no. 13), concerning one who is both deaf and blind from birth; for he can neither hear words, since he is deaf, nor perceive other signs, since he is blind, and therefore cannot be taught what matrimony is unless perhaps he can be instructed and taught by some new art.

It is not necessary, however, that consent be signified by the contracting party himself or in his presence, but a contract can be made between absent persons either through an intermediary, or by letter (law In sponsalibus 18, Digest, On Betrothals), or through a Procurator (chapter Procurator 9, On Procurators, in the Sixth Book). The Procurator, nevertheless: first, must have a special mandate for contracting betrothal, and indeed with a determinate person; second, must execute the mandate personally unless he has expressly received the faculty of substituting another for himself; third, at the time when the Procurator executes the mandate, it must not have been revoked by the Mandator, for otherwise (which is a prerogative proper to matrimonial contracts) he contracts invalidly, although neither he nor the other party is aware of the revocation.

Moreover, the expression of consent through some sign is so necessary that silence in the face of nuptials offered to oneself in no way suffices. For although matrimony is numbered among favorable causes, in which (rule of law 43, in the Sixth Book) he who is silent appears to consent, contracting with a certain person can be harmful. See Schmalzgrueber (book 4, title 1, no. 58) and Sanchez (On Matrimony, book 1, disputation 23, no. 7). - Except betrothals which parents contract for their children, whether the children are present or absent; for if, when the matter has become known, they do not contradict it, they are presumed by law to consent tacitly by their very silence. Thus expressly in the sole chapter, section 2, On the Betrothal of Minors, in the Sixth Book: From betrothals which parents very often contract for children who have reached puberty or are minors, the children themselves, if they have consented expressly or tacitly, as if they were present and did not contradict, are bound; from them arises the justice of public decency. And it is the same if the children were absent and even ignorant at the time of the betrothal, and afterward, having learned of it, ratified the same betrothal tacitly or expressly. Otherwise, from betrothals contracted by parents for their children, neither are the children themselves bound nor does the justice of public decency arise therefrom. Concerning these things, several observations are to be made.

First, according to the most common opinion (see Sanchez, book 1, disputation 23, no. 7, and St. Alphonsus, book 6, no. 839), under the name of parents come only the father and mother, not a tutor or curator or any other relative by blood or affinity. Schmalzgrueber (book 4, title 1, no. 67) rightly gives the reason, because by natural and divine law the contract of matrimony and betrothal is so personal that no one, not even a father, can stand for a son by that law unless he has a special mandate from him. And therefore, if the consent of the parents joined with the silence of the son makes a presumed betrothal, this is had from the provision and presumption of positive law alone. Moreover, since this provision of positive law restricts natural law, it ought not to be extended beyond the case expressed in the law; but it would be extended if this proceeded also in tutors, curators, brothers, relatives, etc. See also Diana, volume 2, treatise 6, resolution 32.

Second, it does not matter whether the children are legitimate or illegitimate or even emancipated. For a distinction of this kind is not made in the cited text; and although by civil law those who are born from condemned intercourse are not called children, nevertheless, in this matter consideration of nature is more powerful than civil law. But the reason drawn from nature has no less force for illegitimate and emancipated children, since great parental love is presumed even toward them.

Third, what is said in the text, that betrothals contracted by parents for children even when absent are valid if the latter afterward, knowing of them, ratify them expressly or tacitly (which tacit consent or ratification is sufficiently inferred if they did not contradict, as the same text previously says), is to be understood if they did not contradict when the parents themselves, either personally in their presence or through a messenger or letter, made the children more certain concerning the matter. For if others, apart from a mandate of the parents, report it to the children, there is no reason why, if perhaps they wish to object, they must express their dissent; for they are not bound to disclose their mind to everyone, and therefore silence then in no way indicates consent.

Fourth, finally, St. Alphonsus (book 6, no. 838) rightly warns that the silence of children in the aforesaid circumstances is equivalent to consent only as regards the external forum, since consent of this kind is merely presumed; but for betrothal there is required consent not merely presumed, but true and natural. Hence, if it in fact happens that the child is then silent either because of reverential fear or for some other cause, but inwardly dissents or even merely holds himself negatively, in the internal forum, in which one speaking both against himself and for himself is believed, the exterior presumption has no effect. Therefore the betrothal is null, and the Confessor can tell a penitent of this kind that he is in no way bound by that betrothal. Indeed, neither will it have force in the external forum if, for example, a girl proves her dissent; this can be done by other conjectures or presumptions or, in their absence, by an oath. See Schmalzgrueber (book 4, title 1, no. 63).

Betrothals are distinguished:

1. As ecclesiastical or solemn, and private, according as they are celebrated in the presence of the Church, that is, before the Pastor ⁴ and witnesses, or are completed privately by the consent alone of the contracting parties, or before the parents in the midst of the family.

⁴ The Pastor is indeed accustomed, before proceeding to the proclamations, to investigate the will or consent of the contracting parties concerning the future matrimony. But he is accustomed prudently to take care that he question each of them separately, and he does not then customarily employ witnesses. The reason for this prudent precaution is lest, if the betrothed stand together before the Pastor, even with witnesses, what would otherwise be a betrothal concerning future matrimony should instead become a betrothal in the present.

2. As absolute and conditional, according as they are made without any condition or with some condition attached.

723. Principles. - I. For the validity of betrothals, all the conditions contained in the definition are required, so that if one of them is lacking, the betrothal contract is to be regarded as null ⁵. The reason is evident from what was said concerning the nature of a contract, volume 1, nos. 754 and 772.

⁵ Since the Author adds nothing concerning the last condition, which requires capable persons, it is useful to append some things concerning it.

Thus those persons are capable by law of betrothal who can contract matrimony both validly and licitly; and therefore, on the contrary, those will be called incapable who cannot contract either validly or at least licitly. This can be the case in two ways: either because they are generally incapable of a human act, or because they are incapable of this particular promise. The latter occurs when there intervenes either a diriment impediment or even a merely impeding one; these will be treated below in their place. But incapacity for a human act in general can arise either from defect of age or from want of judgment. Concerning these, some things are now to be said.

Since, therefore, for the validity of a contract it is necessary that each contracting party be master of himself and have the use of reason, if either is insane, the betrothal will be null. This is confirmed from chapter Dilectus 24, On Betrothals. Under the name of insane persons, however, there do not here come certain more stupid persons, nor certain half-witted persons in whom the right use of reason is lacking only as regards certain things but by no means as regards others. Namely, the general rule is to be applied: those are capable of this contract who have as much use of reason as suffices for sinning mortally. Compare Sanchez (On Matrimony, book 1, disputation 8, no. 15 and following), who in addition supplies a suitable reason for judging concerning those demented persons who have lucid intervals. What has been said concerning the insane has equal force concerning one who contracts while intoxicated, for an intoxicated person lacks free consent and due deliberation. Nor does it suffice that the intoxicated person previously had the will of contracting betrothal or matrimony while he was of sound mind. For the contract itself must be a human act; in addition, since the contracting parties are the ministers of the Sacrament of Matrimony, this requires the present use of reason.

As regards capacity by reason of age, the common opinion of the Theologians and Canonists is that, regularly and speaking per se, seven completed years are required and suffice for betrothal. For that perfect deliberation which an onerous contract of this kind requires is not ordinarily and regularly present before this time, but is usually present when seven years have been completed. This is confirmed from Canon law, chapter Litteras 4, chapter Accessit 5, chapter Ad dissolvendum 13, On the Betrothal of Minors, and the sole chapter under the same title in the Sixth Book.

It was said regularly and speaking per se, for according to the common opinion of the Theologians and Canonists (see Ferraris, Library, entry Betrothals, no. 15), betrothal will be contracted validly even before the age of seven if malice and prudence supply for age, namely, if a sufficient use of reason for deliberating is evident and at the same time the contracting parties sufficiently understand what is being done. See Sanchez (On Matrimony, book 1, disputation 16, no. 9 and following). On the contrary, even when the age of seven is completed, the betrothal will be invalid if due use of reason is not yet present. Hence St. Thomas (Supplement, question 43, article 2, reply to objection 7): It is better that it be determined according to the condition of the contracting parties, because in some the use of reason is accelerated more than in another. Therefore, the age of seven years is prescribed by the laws merely for prudently presuming from those things which commonly happen, so that, unless the contrary appears, betrothals contracted before the age of seven are not considered valid, nor those celebrated after the completion of seven years invalid. Therefore, betrothals before seven years are not to be held valid unless the contracting parties are proved capable of malice; but after seven years have been completed, they are to be held valid unless it is proved that they were not yet capable of malice. Accordingly, in doubt one must stand by what the law prescribes.

Nevertheless, although betrothals of children who have attained the perfect use of reason are held valid by the sacred Canons and therefore induce the impediment which is called the justice of public decency, nevertheless, in order that provision be made for the weakness of age, the Church specially decreed certain things concerning them (see chapter De illis 7, On the Betrothal of Minors), namely: first, if each contracting party is indeed older than seven but is a minor, neither can withdraw before puberty, but can object or dissent only after attaining puberty. This was most wisely provided. For, as Covarruvias observes (Epitome, book 3, Decretals, chapter 5, section 1, no. 1), minors, because of the fragile constancy of their age, would frequently contract and frequently dissent from contracts.... But from that inconstancy... the impediment of public decency would be multiplied without end according to the number of betrothals. Second, even if the contract was between one who had reached puberty and a minor, the latter, when he comes to puberty, can withdraw. Third, nevertheless, he who was already of puberty cannot withdraw. (This opinion of the Canonical text is rendered backwards by the one who inscribed the rubric upon the cited Chapter in these words: He who first reaches puberty shall await the other. This is false, for according to the common opinion, whichever contracting party first reaches puberty can object immediately and is not bound to await the puberty of the other. See Covarruvias, l.c.) Fourth, if the one who first reaches puberty does not object but awaits the other, the latter nevertheless, when he also reaches puberty, can object and dissent.

These provisions of Law have equal force whether they expressly wished to contract betrothal alone or contracted betrothal only virtually. Namely, by provision of Law (see chapter Tuae nobis, at the end, On the Betrothal of Minors, and the sole chapter, section 1, under the same title in the Sixth Book), when either two minors in whom malice does not supply for age, or a minor with one who has reached puberty, contract a betrothal not concerning the future but concerning the present, this contract has force not as matrimony, for which they are incapable, but, by interpretation of law, only as betrothal concerning the future (unless perhaps they expressly intended only to bind themselves by the bond of matrimony, as Sanchez observes, book 1, disputation 21, no. 3). Whatever things have been said concerning the right of withdrawing from express betrothals when puberty is reached have precisely the same force in this latter mode of betrothal also. And here take special notice that this ancient law concerning clandestine matrimony contracted by minors, according to which it passes over into betrothal, was not corrected or abrogated by the Tridentine decree concerning clandestine marriages. Concerning this, Sanchez (On Matrimony, book 1, disputation 21, no. 5) mentions a Declaration of the Cardinals from the report of Peter De Ledesma. Pignatelli (Consultations, volume 9, consultation 133, no. 46) reports it thus (unless perhaps it is another): It was asked whether a matrimony contracted clandestinely by words concerning the present between one who had reached puberty and a minor, the form handed down by the Council not having been observed, is resolved into betrothal; this pleased some Doctors consulted concerning the matter from the Response of Boniface VIII in the sole chapter, section 1, On the Betrothal of Minors, in the Sixth Book. The Sacred Congregation declared this opinion true, so that clandestinity does not prevent the matrimony contracted by words concerning the present between one who has reached puberty and a minor from having force. But because the law is interpretative, such matrimony contracted by words concerning the present is only betrothal by words concerning the future (the aforesaid section 1). Therefore, just as clandestinity would not harm the validity of betrothals contracted by persons who had reached puberty, as the Sacred Congregation has already declared, and there is no doubt concerning this, so neither will it prevent the validity of these betrothals contracted between one who has reached puberty and a minor.

II. Betrothals have force in the same manner whether they are solemn or ecclesiastical, or private or clandestine, because the consent of two persons suffices for a true contract; nor has the Church ever invalidated private betrothals. Indeed, now in most places solemn betrothals have fallen into desuetude.

III. Betrothals entered into under a condition concerning the present are valid here and now if the condition is verified; but if they are contracted under a condition concerning the future, they will have force as soon as the condition is fulfilled, without new consent of the contracting parties, provided neither has revoked the consent previously given. In the meantime, however, the contracting parties are bound to await the fulfillment of the condition if it is honorable.

IV. When words or signs are doubtful, in the forum of conscience one must stand by the intention of the contracting parties if it is established; but in the external forum, by the common understanding and sense of the words. - St. Ligorius, book 6, no. 840 ⁶.

⁶ You have rules for determining the sense of words in Schmalzgrueber (book 4, title 1, no. 50). Moreover, when the words or signs still remain doubtful and equivocal, according to the common opinion of the Theologians even the betrothal must be held doubtful. In this case St. Alphonsus (book 6, no. 840), having cited the opinion of those who think one must incline in favor of matrimony, more probably judges with Viva that one must incline in favor of liberty. But in reality the Doctors here disagree only in appearance, for some speak of betrothal concerning the present, while others speak of betrothal concerning the future. Hence Diana (volume 2, treatise 6, resolution 135, no. 4) thus composes the matter according to the sense of each side: I would think that a distinction must be made between betrothal and matrimony, so that when in equal doubt they doubt whether matrimony was contracted, the contracting parties should be compelled in both forums, lest perhaps injury be done to the Sacrament through the dissolution of matrimony; but when it is doubted whether the betrothal is valid, they should be judged free in both forums, because if someone were then compelled against his will, injury would be done to him through the despoiling of the liberty which he possesses.

724. Questions. - QUESTION 1. Are betrothals contracted from grave fear valid?

Reply. More probably, no. The reason is that matrimony contracted from grave fear is null, as is established from Canon law and will be explained below, no. 747. Therefore, by that very fact, betrothals entered into from such fear must also be null. - St. Ligorius, no. 844 ⁷.

⁷ The question must be understood as asking whether these betrothals are valid by natural law. For the two opinions differ in this: one opinion (also certainly more probable to St. Alphonsus) says that the contract is invalid by natural law; but the other says that it is valid, though rescindable by him who suffered the fear. Therefore, this latter opinion must also necessarily admit that the impediment of public decency arises therefrom, which the former consequently more probably denies is incurred.

QUESTION 2. Are betrothals entered into from light fear valid?

Reply. Yes. The reason is that one who instills light fear is not considered to inflict a grave injury upon another, since the latter can easily despise such fear and consequently is considered to have willed voluntarily to suffer the injury. Recall what was said concerning Human Acts, volume 1, no. 10. - St. Ligorius, ibid. - Lacroix, no. 105, etc. Some nevertheless deny it, because no one is bound to suffer an injury and therefore cannot be obligated through an injury ⁸.

⁸ St. Alphonsus (book 6, no. 844, question 2) does not deny that this latter opinion also is probable; nor without merit will others hold it as more probable. For the matter always comes back to this: that the other is compelled through injury toward one of two alternatives, namely, either certainly to undergo some evil, whatever it may be, or to admit a contract which he otherwise would not wish to admit.

But this is repugnant to natural law, which requires both that the right of each person be preserved intact and that, if perhaps it has been injured, it be restored anew in its integrity. Nor is the reason of the opposite opinion firm; for it is false that an injury is voluntarily admitted when someone is unjustly compelled necessarily to undergo one or the other injury.

The reason by which St. Alphonsus (l.c., question 3), with the more common and more probable opinion of the Doctors, proves that even one who suffered light fear can rescind the contract supports the same opinion: namely, just as he (that is, the one instilling unjust fear) is bound to release the pledge unjustly extorted through such fear, so the one who suffered the fear can revoke the pledge given. And surely, unless we wish to abuse words, a contract which produces no obligation can never be called valid; but no obligation is in fact to be said to exist which someone, as in the present case, can cast off at will. Therefore, the contract is rightly to be called invalid by natural law itself.

Nor should it appear to anyone to be the same whether you call these betrothals invalid by the law itself or valid but rescindable at the judgment of the one who suffered the fear. For this distinction of the greatest importance intervenes: in the latter opinion the impediment of public decency arises from the contract, but in the former not at all. Since the latter cannot be denied its probability, it will therefore be altogether probable that no impediment arises from that contract and consequently that matrimony is validly and licitly contracted, according to the general rule which we shall see below to be handed down by the common opinion of the Doctors in a case of a doubtful impediment introduced by ecclesiastical law.

** The VV. object first against this Note (p. 792): Father Ballerini does not rightly assert that St. Alphonsus does not deny that this latter opinion is probable. Reply. Then let the VV. show, I ask, where the holy Doctor denies that it is probable.

The VV. reply (ibid.): St. Alphonsus reports authorities favoring this opinion without pronouncing any judgment concerning its probability. Reply 1. Let the antecedent pass; I deny the consequence. The reason is evident, because one who pronounces no judgment neither affirms nor denies. Therefore, it is most true that the holy Doctor does not deny it. But why the antecedent has been allowed to pass will be evident from the things to be said.

Second, against the argument of the Note that the other is compelled through injury toward one of two alternatives, the VV. (p. 791) object these things: Here you have a mere sophism. For where there is only light fear, there is not considered (as St. Alphonsus observes) to be a true injury. Reply. I certainly do not know how the VV. say that St. Alphonsus observed that there is no injury. For are not these the words of St. Alphonsus (book 6, no. 844, question 3), cited by the VV. themselves (p. 789): Just as he is bound to release the pledge UNJUSTLY extorted through such fear, so the one who suffered the fear can revoke the pledge given? But is not a pledge unjustly extorted a true injury? Indeed, do not the VV. themselves (ibid.) write a little below: He who suffered light fear... since he suffered an injury, although not a grave one, etc.?

Third, the VV. add (ibid.): Nor is the one who suffered fear properly said to be compelled, since he can easily repel fear of this kind. Reply. I distinguish. If by repel the VV. understand avoid, I concede it; but this is apart from, indeed contrary to, the present hypothesis, in which it is established that someone must necessarily undergo one or the other inconvenience; therefore, I deny the supposition. But if by repel they understand tolerate, I deny that he is not compelled; for he is truly compelled upon whom, though unwilling, the necessity of tolerating or suffering one or the other is imposed, no differently than the unavoidable necessity of suffering the loss either of money or of life is imposed by a robber upon a traveler.

Fourth, the VV. insist (ibid.): Father Ballerini supposes as undoubted and admitted by all precisely that which is denied, namely, that in the case THERE IS TRUE COACTION. Reply. Do the VV. here wish (indeed less opportunely) to play with words for a while? We shall put an end to the play with St. Thomas (On the Fourth Book of the Sentences, distinction 29, question 1, article 1). St. Thomas therefore says: Coaction is twofold. One which causes absolute necessity, and such a violent thing is called simply violent by the Philosopher, as when someone bodily drives another to motion. The other causes conditional necessity; and this the Philosopher calls mixed violence.... And because this coaction arises from the fact that some imminent danger is feared, therefore THIS FORCE IS THE SAME AS FEAR, which in some manner COMPELS the will. Moreover, since fear is in question in the case, it is certainly easily understood in what sense the word coaction is employed in the Note.

Fifth, against the other argument of the Note, the VV. (ibid.) write: Father Ballerini abuses words not slightly. For by the very fact that a contract is rescindable it is not invalid, since no one rescinds that which does not exist. Certainly, a contract which produces no obligation can never be called valid; but it cannot be said of a rescindable contract that it produces no obligation; rather, as is established from the things said above, it produces a true and natural obligation in each contracting party.

Reply. I would think there to be neither a slight nor a non-slight abuse of words in these things which De Lugo writes (On Justice and Right, disputation 22, no. 75): I suppose the definition of an onerous contract... which, namely, produces a mutual obligation on each side; but if it obliges only the one party, it already falls short on that side of the true nature of a contract and is valid on one side alone. For it is valid insofar as it obliges; therefore, if it does not oblige on both sides, it is not valid on both sides. Moreover, in the present matter there is no question whether he who extorted the pledge from the other through fear is obligated; for the Doctors agree that he is obligated. Thus collapses the reason of those who therefore contended that contracts extorted by fear are valid, lest he who had instilled the fear or deceived the other be free from obligation. The question, therefore, concerns him whose consent to the contract was extorted through fear. Is he obligated to contract matrimony in the case?

An obligation is a bond of law by which we are bound by necessity to discharge something. Thus the Institutes, book 3, title 14. Therefore, is he bound by necessity to contract matrimony? And if even St. Alphonsus, as the VV. themselves allege him, denies this, how do they themselves say that a contract of this kind produces a true and natural obligation in each contracting party? The VV. write: as is established from the things said above. But from the things said above the opposite is rather established. Moreover, as De Lugo says, a contract is valid insofar as it obliges.

Sixth, they say, By the very fact that a contract is rescindable, it is not invalid, since no one rescinds that which does not exist. Reply. Rescission of the contract in the case does not mean removal of an obligation which exists. For how could someone in the forum of conscience rescind a contract with a safe conscience if there existed some obligation by which he was bound? Therefore, rescission of the contract in the forum of conscience merely means a declaration of the will rejecting an obligation by which the natural law does not bind him by force of that contract.

And thus Molina rightly replies to the argument which those who defend the validity of these contracts employed, because, namely, the law prescribes that they are to be rescinded (On Justice and Right, tract 2, disputation 326, no. 14), that it is not necessary for the laws to be understood as speaking of rescinding a contract valid in itself, but rather as declaring their invalidity. And surely, as the same Molina observes, ownership is so little considered to have been transferred through a contract of this kind that in the law (law 9, section 5, Digest, What Is Done Because of Fear) it is expressly said that an action in rem is granted to the injured party and that the thing itself is among his goods, so that an action is granted against any persons whatsoever to whom that thing has come. See also Voet, book 4, title 2, no. 4. And indeed, when judges decree that a contract is to be rescinded, do they remove any obligation imposed by natural law, or do they not rather declare that no obligation of this kind exists?

Moreover, the reason why the laws speak in this way concerning these contracts, as though they are to be rescinded, is easily apparent. Namely, by a fiction of law, as the same Molina notes, ownership of a thing handed over by force of fear is considered transferred; or, to speak better, a contract is always presumed valid. Therefore, the burden of proving the fear instilled is cast upon him who suffered the fear, and deservedly indeed, because fear is not presumed. But a presumption concludes nothing of itself and in the end always yields to truth.

Seventh, the reason must now be given why at the beginning the response to the first difficulty of the VV. was, Let the antecedent pass. For it has already been said that rescission of a contract supposes that no obligation in fact arose by force of that contract in the one who suffered fear; and from this it must be repeated that he can rescind the contract at his judgment. Therefore one must conclude with De Lugo: Therefore, the contract is not valid. For a contract is valid insofar as it obliges.

Moreover, St. Alphonsus, asking (book 3, no. 718) whether a contract entered into from light fear is rescindable at the judgment of the one who suffered fear, expressly says (which part of the response the VV. do not rightly cut short) that the first opinion probably affirms it. Indeed, although in that place he follows as more probable the negative opinion, nevertheless, with the Salmanticenses he excepts the contract of betrothal. In addition, in book 6, no. 844, question 3, asking, Can one who contracted betrothal from light fear which gave cause to the contract rescind it in conscience?, he says that the affirmative opinion appears more probable to him. Therefore, according to the opinion approved by the holy Doctor, no obligation is supposed to have arisen on the part of the one who suffered fear. But if no obligation arises, the contract cannot be called valid on that side, because the whole validity or force of a contract resides in this: that it imposes a necessary bond upon the contracting party, or produces an obligation. Therefore, the opinion of St. Alphonsus ultimately leads to this, that these betrothals can be called invalid on the part of the one who suffered fear. Therefore, that Antecedent, where it was said that St. Alphonsus pronounces no judgment concerning that opinion, ought rather to have been allowed to pass than conceded.

Eighth, for a certain greater clarity of the matter, it will be useful to inspect the reasons which the holy Doctor employs to prove the greater probability of each of his aforesaid opinions. Thus, in order to demonstrate that betrothals can more probably be rescinded in conscience if someone contracted them from fear, he reasons thus (book 6, no. 844, question 3): The reason is that, since fear gave cause to the contract, so that otherwise it would not have been entered into, the one instilling the fear is bound to rescind the contract. Hence, just as he is bound to release the pledge unjustly extorted through such fear, so the one who suffered the fear can revoke the pledge given. These things indeed manifestly argue that the one who suffered fear contracted no obligation, that the contract has no force as regards him, and consequently is invalid; for we call invalid that which lacks the force of obliging.

But where he wishes to demonstrate that contracts entered into from light fear generally cannot more probably be rescinded at the judgment of the one who suffered fear, a conclusion which can appear opposed to the preceding, he reasons thus (book 3, no. 718): The reason is that he who knew the fear to be light is not presumed to have consented from fear, but truly voluntarily. Moreover, here the holy Doctor does not so much prove his thesis as deny the hypothesis, which, namely, supposes that fear in the case gave cause to the contract. For in that hypothesis, as we have just seen, he establishes by a most solid reason that one who in fact consented because of fear is bound by no obligation and therefore that the contract has no force. Nor, again, does a presumption, which here is not indeed a presumption iuris et de iure, furnish sufficient foundation for asserting this other thesis of St. Alphonsus, namely, that a contract entered into from light fear cannot be rescinded either in the external or the internal forum. Let it now pass that presumptions are in no way attended to in the internal forum of conscience, but only the truth, of which each person is certainly conscious within himself. But even if there is question of the external forum, in a case of this kind an action will indeed generally be denied by provision of positive law, especially if it is established that the fear appeared to the contracting party only as light; although St. Alphonsus, with the Salmanticenses, excepts the contract of betrothal from this general rule. Nevertheless, it must finally be admitted that presumptions of this kind can of themselves produce only this one effect: that, as Cuiacius writes (rubric of the Digest, On Proofs and Presumptions), they transfer the entire burden of proof to him against whom they operate; for otherwise proof of the truth is rightly opposed to a presumption. Therefore, this latter thesis is not in fact opposed to the former, and consequently the argument brought forward by St. Alphonsus for the former, where betrothals are treated, has the same force in any contract whatsoever, provided that the consent of either party was truly extorted through fear, even light fear.

Ninth, after the VV. persuaded themselves that they had now shown the first of the arguments brought forward in the Note to be a mere sophism, but the other to confound two altogether diverse things, and therefore those arguments to be of no force, they conclude (pp. 791-792) that the consequence deduced in the Note also collapses, namely, that it is probable that no impediment arises from these betrothals.

Not every uncertain probability or one asserted only by some is sufficient (they say); but it is required that an opinion of this kind be universally received by the Authors, or at least received as probable. They take these last words from St. Alphonsus (book 6, no. 901).

Reply 1. Unless the VV. bring forward something more solid, it is sufficiently evident from what has been said that nothing is detracted by their arguments from the most solid firmness of the reasons brought forward in the Note. Second, does not the holy Doctor Alphonsus regard as more probable the opinion which gives to the one who suffered fear the full faculty of rescinding betrothals of this kind in the forum of conscience? But this is the same, as we have seen, as declaring those betrothals invalid. Therefore, according to St. Alphonsus, it is more probable that those betrothals are not valid. Reply 3. For what the VV., after St. Alphonsus, require, namely, that the opinion for the absence of the impediment be universally received by the Authors, or at least as probable, the doctrine such as is exhibited by the Doctors cited there by St. Alphonsus can be sufficient for us. Suarez being omitted, therefore, who in part 3, On the Sacraments, question 67, article 8, final doubt (as St. Alphonsus cites him) has nothing which pertains to the matter, Sanchez (book 8, disputation 6, no. 18) writes thus: If the matter is altogether doubtful, whether an impediment intervenes or not, no dispensation is necessary.... When the matter is not truly doubtful, but there are opinions, some asserting that it is an impediment, while others deny it, if the negative opinion is truly probable, although the affirmative were more probable, one following the probable opinion could enter that matrimony without any dispensation.

And Palaus (treatise 28, point 4, section 9, no. 4): If you have an opinion or doubt that an impediment is present, and after diligence has been made for investigating the truth you cannot overcome the doubt, you are not impeded from contracting matrimony, because while it is not established for you that an impediment introduced by human law exists, you ought to regard yourself as free by reason of possession of innate liberty.

Likewise Viva (On Proposition 4 of Innocent XI, no. 20): If the probability concerns the law,

that is, when on each side the Doctors probably judge that something is or is not an impediment,... the custom and practice of the Church is that a matrimony thus contracted is regarded as valid; and therefore the Church does not wish it to be dissolved by an impediment which probably is not an impediment.

Finally, La Croix (book 6, part 1, no. 117): Whenever there is a probable opinion for the absence of an impediment, the most common opinion is... that the Church then also dispenses, when she can, if perhaps the impediment is present. But that probability of this kind is not lacking in the present question has been shown sufficiently and more than sufficiently.

725. • QUESTION 3. Are betrothals under the condition, if the Pope shall dispense, valid between those who have a diriment impediment?

Reply. According to St. Ligorius, no. 859, and not a few others, although the betrothal does not have force before the condition is fulfilled, nevertheless, the condition having been verified, they have force without new consent. But the negative opinion is to be held from a Decision of the Sacred Roman Rota in Clericati, On Matrimony, decision 17, no. 41, where he testifies that this was the perpetual opinion of the Sacred Rota. This is also established from a Declaration of the Sacred Congregation of the Council in a case from Genoa, December 12, 1733 ⁹.

⁹ From this Declaration of the Sacred Congregation, nothing can in fact be concluded against the aforesaid doctrine of St. Alphonsus and of several very grave Theologians. For they contend that even without new consent these betrothals have force after the condition has already been fulfilled, that is, when the impediment has already been removed through dispensation. But in that Declaration, on the contrary, the Sacred Congregation defines that the betrothals do not subsist when, as is evident from the case proposed to the Sacred Congregation (Thesaurus of Resolutions, volume 6, p. 205), the condition had not yet been fulfilled and the impediment had not yet been removed through execution of the Apostolic Letters. In this case neither St. Alphonsus nor anyone else ever said that the betrothals have force or subsist. Since, therefore, an altogether diverse case is treated on each side, one opinion is wrongly objected against the other as though contrary. And precisely the same is to be said concerning the other Declarations of the Sacred Congregations which are brought forward with empty labor for the same purpose, as in the case from Brugneto, January 20, 1709; the case from Siponto, May 2, 1857; the case from Mileto, March 29, 1862; and the case from ..., February 22, 1862. (See Acta, etc., Rome, Press of the Propagation of the Faith, volume 1, pp. 79-81.) For these also certainly establish that betrothals contracted under the condition of seeking a dispensation from an impediment are not to be upheld; but they always pronounce judgment in favor of the one who withdrew from the contract before the condition was fulfilled. Hence whoever from a judgment of this kind contends to conclude also to the case of a condition already fulfilled, namely, that for valid betrothals to exist it is necessary that they be confirmed by the contracting parties even after the dispensation has been effectively obtained, by which the canonical impediment was actually removed, draws a conclusion by a logical fault which is broader than the premises.

Here we pass over certain little arguments which Jurists employ for the same conclusion, which indeed tend to this: that these persons are considered incapable even of contracting conditionally. For they are also commonly found dissolved among the Theologians (see also St. Alphonsus, book 3, no. 650), and, if pressed, they easily lead to absurd consequences repugnant to common sense. Nevertheless, I shall not pass over this one point, that some also urge this reason: that it appears ignominious to put into a pact that which depends upon the power of the Prince. In this you surely have an equivocation which I would almost call ignominious. Grant, indeed, that it is disgraceful to promise by pact that a dispensation is to be granted by the Prince. But do those who contract conditionally promise the condition itself (which now is the dispensation)? They promise, namely, the future matrimony and obligate themselves hypothetically to it, and so bind the obligation to the condition of dispensation that, if the latter fails, the obligation also fails. What ignominy is here? Unless perhaps, by parity, you think it ignominious also to promise by vow, under the same condition, your labor in caring for the spiritual salvation of the sick in hospitals, namely, if through dispensation it should fall to you to be initiated into sacred Orders.

Although they find ignominy in the case for another reason, namely, because a dispensation (as they say), as an alteration of law, always strikes at public law, by which society is governed. But where a condition cannot by law be fulfilled, the stipulation is of no moment, etc., as is contained in law 137, Digest, section 6, On Verbal Obligations. - But these things (besides the fact that they would prove, contrary to common sense, that every petition for dispensation is ignominious) savor of a complete forgetfulness of the purpose for which the power and use of dispensing flourishes in society. Let us recall, I ask, the first principle concerning this matter, which St. Thomas (I-II, question 96, article 6) thus declares: Because the legislator cannot consider all singular cases, he proposes a law according to those things which happen in the greater number of cases, directing his intention toward the common utility.... And if the legislator could (he continues there, reply to objection 3) consider all cases, it would not be necessary that he express all of them, in order to avoid confusion; but he ought to make the law according to those things which happen in the greater number of cases. But it happens (he adds there, question 97, article 4) that some precept which is advantageous to the multitude in the greater number of cases is not suitable to this person or in this case, because through this either a greater good would be impeded or some evil would even be introduced.... But it would be dangerous that this be committed to the judgment of anyone whatsoever, except perhaps because of an evident and sudden danger.... And therefore he who has the governance of the multitude has the power of dispensing in a human law which rests upon his authority, so that, namely, in persons or cases in which the law is deficient, he may grant permission that the precept of the law not be observed. From these things it is manifest that by the same natural law and order of things it is required both that society be governed by laws and that dispensation be made opportunely in laws; and consequently the use of dispensations, rather than striking public law, is indeed demanded by a certain higher law. But the cited law, which speaks concerning a stipulation under this condition: If Titius shall sell a sacred or religious thing, or a forum or basilica, and things of this kind which have been left perpetually for public uses, etc., as is evident, does not pertain to the matter.

QUESTION 4. Must promises which are customarily made concerning entering matrimony always be regarded as true betrothals?

Reply. It appears that it must be denied; for often those promises bear the appearance of a proposal rather than of a true promise. In practice, therefore, one must attend to the particular intention of those promising. - See Cases, no. 836 and following.

821. 1° Notion. (A) Before the promulgation of the Code, only a bilateral or espousal promise was acknowledged in ecclesiastical law. But from the Code² a promise, whether unilateral or bilateral, is acknowledged, and the same canonical value is attributed to each, provided that the same formalities are fulfilled in each case.

² Indeed "a promise of marriage, whether unilateral or bilateral or espousal, is null for each forum, unless it has been made by a writing signed by the parties and either by the pastor or the local Ordinary, or by at least two witnesses." Code, c. 1017.

A promise of marriage is an internal, free, and externally manifested promise, by which one party toward the other, or each party toward the other mutually, obliges himself or herself from justice to contract future marriage between themselves.

(B) Espousals are premised to marriage, not indeed necessarily, but fittingly: (a) so that the contract of marriage may be entered more maturely, namely with mutual knowledge of the character and morals of each spouse; and so that the parties may dispose themselves more perfectly for receiving the grace of the sacrament; (b) so that impediments may be detected more safely, if any are present; (c) so that honorable relations between the spouses may more easily be fostered, and thus wandering and dangerous loves may be warded off.

The use of espousals, which flourished among the Hebrews, Greeks, and Romans, is most ancient in the Church, as is clear from the Council of Elvira (305), which strikes with canonical penalties those who break espousals.¹

¹ Elvira, can. 54, ap. Bruns, t. II, p. 9.

822. 2° Conditions necessary for the validity of espousals.

The general principle is that those conditions are required which are necessary for a valid contract; namely, the promise of future marriage must be: true, free, externally manifested, between determinate persons and persons able by law.

823. (A) True, that is, with the intention of gravely obliging oneself from justice, and therefore with that advertence and deliberation which is required for mortal sin.

Hence if the promise is made without sufficient advertence (which rarely happens today, since it is made in writing) or without internal intention, by feigning consent, or in jest, it is not valid, because true consent is lacking. Nevertheless one who promises fictitiously is held to repair the damage inflicted on the other.

824. (B) Free, and therefore immune both from substantial error and from grave fear; for since a grave obligation is induced by espousals, it cannot be contracted without the free assent of the will. Therefore whatever destroys liberty relative to marriage likewise takes it away relative to espousals.

825. Some indeed contend that espousals entered from grave fear are only rescindable, and not null by that very fact, provided that it is established that the consent was truly internal; but, since here there is question of a contract requiring full liberty, we think, with St. Alphonsus (n. 844), that they are null in this case.

826. (C) Externally manifested, and indeed, if there is question of Catholics, according to the norm of the decree Ne temere and of the Code, "by a writing¹ signed by the parties, and either by the pastor, or by the local Ordinary, or by at least two witnesses. But if each party or either party does not know how to write, this is to be noted in the writing itself; and another witness is to be added, who, with the pastor or local Ordinary, or with the two witnesses of whom above, signs the writing."

¹ This or a similar formula can be used:

On the 15th day of May 1913, before me, pastor of the church N... in the diocese X, there appeared A. C. Boileau, son of N. and N., and D. R. Lenoir, daughter of N. and N., who declared that they wished to enter true espousals between themselves; namely, A. C. Boileau promised that he would take D. R. Lenoir as wife; and she promised that she would accept A. C. Boileau as husband.

Witnesses of this promise, besides the undersigned pastor, were: J. B. M. (whose domicile is inscribed) and F. R. S.

There are indicated there the place, day, month, and year, and afterwards the pastor, spouses, and witnesses sign the writing.

You will find another Gallican formula in Ami du Clerge, May 1, 1913, p. 880.

This form is so necessary for validity that, if it is lacking, immediately, without any declaration of a judge, espousals deservedly are held as null in each forum.² - Already from the response of the Sacred Congregation concerning Extraordinary Affairs, November 5, 1901, it had been declared that in Spain and in Latin America espousals celebrated without a public writing are invalid even in the internal forum.

² Code, c. 1017, § 1.

The form required is: (a) A writing signed by the parties; but any writing suffices, even one written previously and separately, composed by anyone whatever, indeed a formula printed in type, provided that there is clearly expressed there the mutual promise of nuptials between determinate persons, whether absolute or conditioned. For validity it is required that the day, month, and year be designated; but not the place, although this is altogether expedient, so that the authenticity of the act may more easily appear. - But the writing ought to be signed by the parties, that is, by the contracting parties themselves, if they are able to write; but if each party or either party does not know how to write, this is to be noted in the writing itself, and another witness, besides those of whom below, is to be added, who signs the writing.

(b) The writing is moreover signed by the pastor of the place, or by the local Ordinary,¹ or at least by two witnesses. - Now competent is the pastor of the place where the act is made, or, where parishes have not been canonically erected, the priest to whom the care of souls has been committed. But the local Ordinary is anyone having ordinary jurisdiction or jurisdiction equivalent to ordinary jurisdiction in the external forum; thus the Supreme Pontiff for the whole world, the Bishop in his diocese, an Abbot nullius or Prelate, an apostolic Vicar, an apostolic Prefect, a capitular Vicar while the see is vacant, the legitimate administrator of a diocese or apostolic Vicariate, the Vicar General of a Bishop; - but not Cardinals in their titles, nor nuncios or apostolic delegates, unless these have obtained special faculties. - But the Ordinary and the pastor cannot validly delegate another priest, even a vicar delegated to the universality of matrimonial causes,² to espousals, as is clear from response V, March 28, 1908. (c) But suitable witnesses can be any persons who are able to testify and are able to subscribe. (d) According to a recent decision of the Sacred Congregation of the Council, July 27, 1908, ad I, for validly entering espousals, the parties are held to sign the writing in one context with the pastor or Ordinary, or with two witnesses; and therefore the witnesses ought to be present while the parties sign, so that they are witnesses of the contract itself, as is customary in writings in which there is the force of a public document; nor does it suffice that a writing, signed by one party with the pastor or with two witnesses, be sent to the other party, who in turn signs with the pastor or with two witnesses.

¹ S. Cong. Concil., March 28, 1908.

² Fourneret, Le Mariage chretien, p. 51.

Corollary: concerning espousals between absent persons. From what has been said it follows that espousals cannot be made between absent persons by letter, or by a writing signed at a different time by the parties, as formerly; and deservedly, lest a way be opened to frauds. But they can be contracted through a procurator specially designated for contracting espousals with such a determinate person: before the required witnesses he will sign the writing together with the other party; nevertheless he would act invalidly if meanwhile the mandator had revoked his consent even internally.

827. (D) Between determinate persons; therefore if someone promises marriage to two or three sisters, saying, I pledge that I will marry one of you, the espousals are not valid, because the person is not sufficiently determined.

828. (E) Between persons able by law, that is, who are able to contract marriage both validly and licitly. For a promise concerning a thing which is not in the power of the one promising, or which cannot be furnished by him without sin, cannot be valid; for example, espousals contracted by one who had already validly promised to marry another person are null, even if the second espousals were confirmed by an oath.

(a) Now infants before the completion of seven years are not able. According to the common opinion, they are able after seven years have been completed; but if they contracted espousals before puberty,¹ they can withdraw from them after puberty has been attained. Besides, since discretion of mind and deliberation are required for the validity of espousals, if they are contracted long before puberty, they will often be invalid. - And surely it is very rarely expedient that they be entered at a tender age, or even immediately after puberty has been attained; for it is fitting that a long time not intervene between espousals and marriage, since otherwise the spouses are exposed to indulging excessive familiarity.

¹ Males juridically attain puberty when the fourteenth year has been completed, females when the twelfth year has been completed.

(b) Moreover, those who are bound by a diriment or prohibiting impediment are not able, unless they have sought a dispensation; but they are doubtfully able before the dispensation has been obtained. (See below, n. 830.)

829. 3° On espousals entered under condition. In a general way, the principles set forth above (n. 698 sq.) concerning conditioned consent are valid here. Yet certain special difficulties must be solved here.

(A) On espousals contracted conditionally between persons laboring under some impediment. (a) Espousals entered with an indispensable impediment are certainly not valid, that is, one in which the superior cannot or does not usually dispense, or also when in the case a just cause for dispensing is lacking: for then the condition is impossible or unreasonable; moreover, there is no obligation to the impossible.

(b) Espousals entered with the intention of contracting marriage at the time when the impediment has ceased, either of itself or from the very will of the contracting parties, without dispensation, are certainly valid; for example, I promise to marry you as soon as the vow of chastity, emitted for two years, has expired, - or as soon as you have embraced the Catholic religion.

(c) It is certain that espousals are valid if, after a dispensation has been obtained, the espousal consent is renewed either explicitly or implicitly, for example by consenting to the publication of banns: for then it takes place between persons able by law.

830. (d) But if the consent given under this condition, "if the superior shall dispense," has not been renewed after the dispensation has been obtained, it is disputed whether the espousals are valid or not at that instant at which the dispensation is granted. The opinion affirming seems more probable, provided that the consent of both still perseveres; for here there is question of an honorable and possible condition; now the general principle is that contracts entered under such a condition are valid as soon as the condition is verified, without any renewal of consent. Nevertheless, since some probably affirm that espousals in this case are invalid, as being celebrated at a time when the contracting parties were not able in the present, the obligation of standing by the promises cannot be urged, but only advised.

831. (B) If espousals are entered under a base condition, for example of having intercourse, they are indeed not valid before the sin has been committed, since no one can oblige himself to sin; but, once intercourse has been had, there is already an obligation of contracting marriage, not indeed from the promise, which is certainly invalid as not given in writing (can. 1017, § 1), but by the force of the unnamed contract facio ut facias: for the woman did not furnish access to her body except on that condition that marriage would be celebrated. But if, because of various circumstances, nuptials are morally impossible, some compensation is owed to the woman.¹

¹ The civil law concerning this matter is not the same in all regions; in some the injured party has a right to exact marriage, as in several States of America; in others only to compensation, as in France, not indeed from law, but from jurisprudence; cf. Baudry-Lacant., t. I, n. 484.

832. (C) If espousals are contracted under penalty, that is, under that condition that a sum of money be paid if marriage is not entered, it is disputed whether this condition is valid. - Now all admit that the penalty is not to be paid by him who justly withdraws from the contract: for penalty supposes a delict. But if someone unjustly withdraws, some affirm that he is held to pay the money; for the matter holds itself thus when earnests are handed over; moreover, between earnests and money to be paid there is no substantial difference; - yet many deny this, because a stipulated penalty diminishes the liberty of marriage: and this harms the public good; nevertheless an exception is given when the penalty is to be paid by an outsider, because this stipulation harms liberty less. - In practice, while the controversy stands, the confessor cannot compel one unjustly withdrawing to pay the penalty.

833. (D) Sometimes espousals are entered under earnests; earnests are, as it were, a pledge which the spouses hand over to one another under this law, that, if marriage does not follow, the one unjustly withdrawing loses what he gave and is held to return what he accepted. A condition of this kind seems sufficiently just, and renders young persons more cautious in promising marriage; hence it is licit and begets obligation. - But it is disputed whether a stipulation concerning earnests to be paid double or quadruple is valid; since this does not differ from a contract under penalty, the same must be said of it as concerning a penal condition attached to espousals.

Gifts which the spouses hand over to one another, and especially the man to the woman, differ in some way from earnests. When they are not of great value, regard being had to the fortune of the contracting parties, they seem to have been given absolutely, and therefore are not to be restored if the espousals are dissolved. But if they are of great price, and given with regard to future marriage, regularly they are to be returned when marriage does not follow, because they were given under condition; nevertheless they can probably be kept by the faithful party, if the other party withdraws unjustly, as compensation for fidelity not observed.

Under the new Code of Canon Law a promise of marriage, made by one party or by both, is valid in the court of conscience as well as in the external forum only if made in writing and signed by the parties themselves and by the parish priest, the Ordinary of the diocese, or at least two witnesses.¹

¹ C. I. C., can. 1017, §1.

Such a promise (sponsalia), if mutual, imposes on both parties the grave obligation of mutual fidelity and eventual marriage. The time for the latter is left to their own prudent judgment, but it should not be unreasonably protracted.²

² P. Chas. Augustine, O. S. B., A Commentary on the New Code of Canon Law, Vol. V, p. 43, St. Louis 1920.

290. - We call those persons betrothed (for the future) who, whether from a betrothal agreement properly so called or from the equivalent introduction of one into the house of the other, have a certain and mutual hope of marriage.

Sanchez ¹ indeed seems to consider only those betrothed persons between whom betrothals for the future have been contracted absolutely. But many theologians who treat what is lawful and unlawful between betrothed persons are not accustomed to define accurately whom they address by the name of betrothed persons. Yet all persons who have attained a certain hope of marriage, whether they are bound by a formal agreement or are content with a mutual firm resolution, seem to be situated in a similar condition and are commonly called betrothed persons (fiancés); so that the rules to be handed down seem to apply to both.

¹ De matrimonio, book 9, disputation 46, no. 47.

Nevertheless, a prudent application of these rules demands that, even among those who are formally betrothed, the distance by which they are separated from marriage not be neglected; but those between whom marriage negotiations have begun are already to be regarded as approaching the condition of betrothed persons.

I. Usefulness of a promise. Matrimony can be promised honorably and usefully. Honorably, because it is a good thing and necessary to the human race, although the continent life of itself surpasses conjugal life. Usefully, because the security of a promise fosters peace of soul, and, if faith has been mutually given, gives place to an intercourse by which the betrothed can make mutual experience of qualities, affections, and propensities, so that the indissoluble covenant of matrimony may be contracted more prudently, and they may conceive and foster that nobler friendship which will strengthen the nuptial covenant and meanwhile renders a pure and chaste life easier for the young man. Wherefore the Church, although she does not require sponsals, nevertheless favors them.

II. Various nature of a promise. 1. As every promise, the promise of matrimony can be unilateral, and then, according to the obligation undertaken, be of mere fidelity, which of itself does not oblige under grave sin, or of justice, which obliges under grave sin from the time when it has been accepted by the other party.

A bilateral or mutual promise, made under grave obligation, between persons fit in law, effects sponsals. But all who are naturally capable are fit, therefore even, although some doubted, impubescent persons, provided they are bound by no bond either of present matrimony or of an incompossible promise, nor detained by an impediment of matrimony.

Unilateral promises are to be made less of, since they are often vain or are made for extorting acts that are less lawful.

2. Conditioned sponsals also are valid. By their nature, do sponsals made between impeded persons hold, under the condition: if the Pope dispenses? Before the Code, this was disputed, rather from positive law. Against this condition there could be objected a detriment brought to the authority of the Church, which will be able to judge less freely concerning the opportuneness of the dispensation. But, at least if there is question of impediments in which the Supreme Pontiff is wont to dispense, and causes for dispensing are present, that inconvenience is rather fictitious. Wherefore we judge that the condition restricted to these impediments is valid, since from present positive law nothing contrary can be gathered. (Concerning the law before the Code, cf. Wernz, t. 4, n. 95, 96).

3. Vitiated by grave and unjust fear, they are indeed valid, in our opinion, but they can be rescinded by him who has suffered the fear. Some think the same to be null: but for the party who has been injured by fear, the nullity of the contract favors and profits him less than the faculty of rescinding; for this takes every option away from him.

4. The general rules concerning error also are to be applied here. Therefore sponsal promises infected by substantial error, understood broadly concerning a very notable quality, are not valid. Accidental error, however, which gives cause to the contract, gives the right of withdrawing to the deceived party, especially if she has been deceived by the fraud of the other.

— You ask what bodily defects must be manifested opportunely by those about to marry.

Occult defects must be manifested which render nuptials pernicious or damaging, as is every contagious disease; or notably useless for the ends of matrimony, as sterility, physical incapacity for giving birth without danger of life, a weakness which would oblige the other spouse to perpetual or long-lasting continence. Among damaging defects is also placed the occult pregnancy of the woman, which exposes the man to the danger of nourishing offspring not his own.

Occult defects which render nuptials merely less desirable need not be manifested if they cannot be manifested without proportionate inconvenience: thus a girl cannot without infamy reveal herself to have been deflowered.

Nevertheless one must act prudently here, and the very disposition of the man is to be explored, who, if he is suspicious and irascible, could esteem himself gravely offended. Nor is the happiness of matrimony to be opposed to grave danger. Sometimes there will be cause for restoring, by the aid of a skilled physician, the external signs of virginity.

Defect of substantial form. Fictitious promise.

Made otherwise than by writing signed by the parties¹ and by the Ordinary or pastor or at least two witnesses, every matrimonial promise of Catholics lacks the substantial form prescribed by canon 1017, §1. And a formless promise, whether unilateral or bilateral, even sworn, as such, no more than a fictitious promise, begets any obligation of conscience.

Nor will the publication of this law be a little useful for avoiding many deceptions for incautious girls. Nevertheless each promise fraudulently made, as a damaging deed, begets the obligation of repairing damages.

Not rarely it happens that adequate reparation is only in matrimony. Suppose a girl deceived by the reasonable hope of matrimony to be pregnant from fornication. Then, if, with attention to the social condition of both parties, especially to civil culture itself, there is hope of a happy marriage, we shall persuade, as far as can be done, that this be done. But if such hope is not had, it is most grave to impose perpetual servitude on an unwilling party, nor is it useful even for the deceived girl that she be joined to such a marriage. Wherefore then it will be better that, besides support for the offspring to be born, she accept a dowry by which she can suitably contract nuptials.

Observe that the counselor must act circumspectly. For if there are young seducers, there are also malicious women who, either spontaneously or at the instigation of the mother, set snares so that they may obtain either a husband or money. Nor must immediate belief be given to a girl who, after fornication has been admitted, says that she is pregnant by someone; but it must be accurately seen whether perhaps she has also sinned with others, and without sufficient cause names as father a young man from whom she has expectation of more abundant money.

Moreover, even aside from cunning, if too great a distance of persons or other circumstances demonstrate that the promise could not have been anything except prodigal or fictitious, the girl's error is to be imputed rather to her own imprudence than to the fraud of another, so that the obligation of reparation is lesser. Although equitable compensation is always to be commended.

¹ If either party or both parties do not know how to write, or cannot do so on account of a physical impediment, that must be noted for validity, and another witness must be used, who with those named above signs the promise.

Parents to be consulted. By the very affection of reverence, also by confidence in their experience and love, and by the importance which there is in matrimony for the name and prosperity of the family, sons and daughters will be moved, before they promise nuptials or allow matters to be brought to the point where they are changed with difficulty, to seek counsel from their parents. To omit this of itself is grave. The sin can become light or even none, if the negligence of the parents, or the excellence of the occasion, or the difficulty of asking, has not made them seriously unwilling. Indeed it can happen that such is the disposition of the parents that it counsels silence concerning these negotiations.

A promise illicit from the object, or of a matrimony to which the parents justly are opposed, is invalid by the natural law itself; a promise illicit only from the mode, or of a matrimony to be approved, but with the consultation of the parents omitted or their authority neglected, is not therefore invalid.

III. The effect of a valid promise is that of itself it obliges to contracting nuptials. And furthermore, after true sponsals, common sense dictates that the betrothed are held by mutual obligation not only of refusing another matrimony, but also of abstaining from every other carnal commerce, so that those who sin luxuriously with others may be considered unjust in some way. And especially the bride cannot, by admitted fornication, render herself notably less desirable. Wherefore most think that fornication of the bride with another adds to the sin a grave species to be accused. Nevertheless the matter is disputed, so that the confessor can lay aside solicitude, not indeed concerning the counsel to be given of fidelity, but concerning that accusation.

Yet canonically, as we have seen, and this also for sponsals which were celebrated before the Code, an action is not given except for repairing damages. Nevertheless the obligation of conscience subsists even after the sentence of the judge, unless the other party has accepted the sum set by the judge in such a way that she must be said to have renounced her right. But he who withdraws without cause sins gravely, although he validly contracts another matrimony, and thereafter licitly uses it.

Just causes for withdrawing from promises. The common good itself, to which it pertains that happy marriages be contracted, demands that sponsals and promises of matrimony be able to be dissolved for grave causes. And first it must be noted that sponsals do not impede the choice of a better state, sacerdotal or religious. The best cause for dissolving a promise will be the renunciation of the promisee or mutual consent.

But grave causes are enumerated: 1. error giving cause; 2. unjust fear; 3. a too notable change of condition: this according to many is had after matrimony contracted with another person, or after entrance into religion, even if the matrimony has been dissolved or the novice or professed person has deserted religion. And it is certain that it is entire for the party who has not changed state to break off the sponsals. The condition itself is not sufficiently changed by acquired or lost riches, so that of itself there is thereby place for dissolving the sponsals. But circumstances can permit more; 4. fornication of the bride, and also of the bridegroom, especially if there is question of an honorable girl who desires a truly Christian matrimony, permits that the innocent party withdraw from the sponsals; 5. the departure of the bridegroom into a region too distant or diverse; 6. the dissent of the parents, not indeed directly, but indirectly, on account of consequences in the marriage, will often give sufficient cause of withdrawing, especially if it was not foreseen. If it was foreseen, he who nevertheless deliberately promised matrimony seems at least from equity to be induced to compensate the damage; 7. finally, whenever, all things considered, the marriage is foreseen to be going to be unhappy, a just reason will be present for withdrawing from the sponsals.

706. Definition. Betrothals are a mutual promise of future nuptials, legitimately entered into between capable persons and set down in writing.⁴²⁰

Explanation. Before the Decree Ne temere, issued by the Sacred Congregation of the Council on August 2, 1907, and in force from April 19, 1908, throughout the whole Christian world, private betrothals were valid and licit; but now "only those betrothals are held valid which have been contracted through a writing signed by the parties and either by the pastor or the local Ordinary or by at least two witnesses. If either or both parties do not know how, or are unable, to write, this is to be noted in the writing itself and another witness is to be added, who together with the pastor or the local Ordinary or with the two witnesses mentioned in § 1 is to sign the writing." Thus the Code of Canon Law, c. 1017. - The reason for this law is the evils and dangers which were accustomed to arise from private betrothals. For very often it was difficult, not to say impossible, to determine whether betrothals truly existed, because the intention of the one promising did not clearly appear; betrothals were often contracted rashly and precipitously and then dissolved with equal rashness. Hence many disputes and enmities had their origin. Not rarely also did girls allow themselves to be seduced because of fictitiously contracted betrothals and the hope of a future marriage. All these inconveniences are avoided if the faithful clearly know that all betrothals are altogether invalid both in the external forum and in the internal forum unless they were contracted according to the norms of the new law.

⁴²⁰ The ancient canonists distinguished between sponsalia de praesenti, which are ratified matrimony, and sponsalia de futuro. Here there is discussion only of sponsalia de futuro. - St. Thomas beautifully calls betrothals "certain sacramentals of matrimony, as exorcism is of baptism" (4, dist. 27, q. 2, a. 1, ad 6).

707. No obligation arises from informal betrothals either in the external forum or in the internal forum; and the same holds concerning a unilateral promise of matrimony, as the Code of Canon Law⁴²¹ expressly establishes: "A promise of matrimony, whether unilateral or bilateral, that is, betrothal, is invalid in each forum unless it has been made through a writing signed by the parties and either by the pastor or the local Ordinary or by at least two witnesses." Nevertheless, if from betrothals fraudulently entered into without the prescribed form and afterward dissolved, notable material damages have arisen for the other party, then there certainly arises a natural obligation of making indemnification; for an unjust causing of damage is present.

⁴²¹ C. 1017, § 1. Sometimes civil codes grant indemnification to a betrothed party unjustly abandoned. Cf. German Civil Code, § 1298; Austrian Civil Code, §§ 45-46; Swiss Civil Code, art. 92 ff.; Spanish Civil Code, art. 44.

In order that a betrothal promise may be valid, the following conditions are required:

708. 1. A free promise and therefore one immune both from substantial error and from fear and coercion.

a) Substantial error (or even accidental error which redounds upon the person) renders matrimony itself invalid, as will be said below. Therefore a fortiori it renders betrothals contracted with such an error invalid. A notable accidental error renders betrothals rescindable, because it is a notable change now known, on account of which it is lawful to dissolve the betrothals, as will be explained below, n. 718.

b) Grave fear inflicted by a natural cause or even by a free cause justly does not invalidate betrothals or render them rescindable.⁴²²

It is disputed whether grave fear unjustly inflicted renders betrothals invalid or only rescindable. All teach that betrothals can be rescinded on account of grave fear unjustly inflicted, because marriages ought to be especially free. But St. Alphonsus,⁴²³ Feije,⁴²⁴ Gasparri,⁴²⁵ Cappello,⁴²⁶ and others teach that betrothals entered into in this manner are in addition invalid. Billuart,^426a Santi,⁴²⁷ Scherer,⁴²⁸ Wernz-Vidal,⁴²⁹ Vogt,⁴³⁰ Noldin-Schmitt,⁴³¹ and others think that they are only rescindable. This latter opinion is truer, because no certain argument for the first opinion can be brought forward either from positive law or from natural law. For by natural law every contract entered into between capable persons with sufficient deliberation is valid, even if it was completed under fear. Positive law, however, has declared only a few contracts made under grave fear invalid, for example, matrimony and religious profession, but not betrothals.⁴³²

Slight fear unjustly inflicted renders betrothals rescindable, at least if it gave cause to the betrothal contract, but not if it is merely concomitant.⁴³³

⁴²² Cf. above, II, n. 258.

⁴²³ Theol. mor., l. 6, n. 844.

⁴²⁴ De imped. et dispens. matr., n. 390.

⁴²⁵ De matrim. I, n. 21.

⁴²⁶ De sacr. III, n. 98.

^426a De contract., diss. 1, a. 4.

⁴²⁷ Prael. iur. can., l. 1, tit. 40, n. 4.

⁴²⁸ Kirchenr., § 110, n. 10.

⁴²⁹ Ius can. V, n. 85.

⁴³⁰ Das kirchl. Eherecht, § 8.

⁴³¹ De sacr., n. 528.

⁴³² Cf. Code of Canon Law, c. 103, § 2.

⁴³³ Cf. St. Alphonsus, Theol. mor., l. 6, n. 844; Gasparri, De matr., n. 21.

709. Since marriages ought therefore to be free, the ancient canon law⁴³⁴ prohibited the stipulation of any conventional penalty to be paid by that party who withdraws from the betrothals. All indeed teach that a conventional penalty of this kind is illicit and invalid if it were imposed even upon one withdrawing justly; but if it is stipulated only against one withdrawing unjustly, several authors think it valid notwithstanding the cited chapter of canon law. In practice the condition of the possessor is better. That is, if the penalty has already been paid, the recipient can retain it; if it has not yet been paid, it cannot be exacted.⁴³⁵

From this conventional penalty are to be distinguished earnests (arrhae), which are things given, not promised, between the betrothed as a sign of the betrothals entered into and as a pledge of the matrimony to be contracted. These earnests, if the matrimony is contracted, can be reclaimed and ought to be restored; but if the matrimony has not followed, the party unjustly withdrawing loses his or her earnest, and if that party has received any, he or she ought not only to return it but also to return double. The party injured through the unjust dissolution of the betrothals can retain the earnest given by the other party.⁴³⁶ Earnests are licit in themselves, but in our regions they are no longer in use.

From an earnest, again, are to be distinguished betrothal gifts (betrothal largess, or even iocalia),^436a which are gifts or presents handed over between the betrothed as a sign of love, but not as a strict pledge of future matrimony. Gifts of this kind, if they are of small value (with regard had to the state of the betrothed), are considered to have been given absolutely, and therefore no obligation of justice to restore them is present, even when the betrothals have been dissolved. But if they are of great value, the things given are presumed to have been given in view of the future matrimony, or rather as earnests, and therefore are to be restored if the matrimony does not follow. In practice it is preferable to restore all betrothal gifts if the matrimony does not follow, and all the more if they are demanded back. The reason is that gifts of this kind not rarely recall painful and even dangerous matters to memory.

Note. Those things taught by the older authors concerning a conventional penalty, earnests, and betrothal gifts according to Roman law cannot always be reduced to practice today, because that law in many regions neither exists nor binds in conscience.⁴³⁷

⁴³⁴ C. 29, X 4, 1.

⁴³⁵ Cf. Aertnys, Theol. mor., l. 6, n. 430; Cuniliati, O.Pr., De matrim., § 1, 8-15.

⁴³⁶ Thus from ancient Roman law, L. 5, C. V, 1. Whether these statutes are valid also in our days is very doubtful.

^436a French joyau, German Juwel ("jewel").

⁴³⁷ Cf. Reiffenstuel, Ius can., l. 4, tit. 1, n. 176 ff.

710. 2. A deliberate promise.

For there is question of a matter of great moment, which cannot be treated without serious deliberation. The deliberation required and sufficient, however, is that which is necessary for constituting a mortal sin. Since today betrothals ought to be set down in writing, sufficient deliberation is almost always presumed to be present.

3. A mutual promise.

A unilateral promise of matrimony can indeed exist, but a true betrothal promise ought to be bilateral; for betrothals are a mutual and indeed an onerous contract. Hence for their validity a promise of matrimony given by one party and accepted by the other party does not suffice, but a reciprocal and explicit promise is required. In betrothals entered into according to the new law, this reciprocal promise is always presumed and is present.

711. 4. A promise between capable persons. There is a twofold incapacity: one natural, the other legal.

All those who lack sufficient use of reason for entering into an onerous contract of great moment labor under natural incapacity. Hence the insane, the perfectly intoxicated, the hypnotized, and so forth, are incapable. Infants before the completion of the first seven years are presumed to lack sufficient use of reason, and therefore their betrothals are invalid.⁴³⁸ If betrothals were entered into after the completion of seven years and sufficient use of reason was certainly not yet present, they are invalid; otherwise, however, they are presumed valid. Concerning betrothals contracted after the age of seven but before legal puberty, the following was established in the ancient law: They cannot be rescinded before the years of puberty; but after puberty has been attained, the faculty of rescinding the betrothals immediately, that is, within three days, is granted to each betrothed party,⁴³⁹ unless, however, carnal intercourse occurred between the betrothed,⁴⁴⁰ or the betrothals were confirmed by an oath.⁴⁴¹ These three days probably are not to be computed physically after legal puberty has been attained, but after knowledge of the privilege.⁴⁴² But one who, existing in puberty, enters into betrothals with a prepubescent person (for example, a young man eighteen years old and a girl eleven years old) cannot withdraw from the betrothal contract. The prepubescent person, however, can rescind these betrothals after attaining puberty. The reason is that canon law granted the faculty of dissolving only in favor of the prepubescent person. - Moreover (at least in our times and in our regions), betrothals of prepubescent persons are exceedingly rare, and the Code of Canon Law is silent concerning them; therefore they seem to be treated like other betrothals.

Those labor under legal incapacity: a) who do not observe the form prescribed by ecclesiastical law; b) who are bound by some prohibitive or diriment impediment of matrimony. This indeed is certain if that impediment is indispensable, or at least if a dispensation is not customarily granted. For betrothals in this case are a promise of an impossible or illicit thing and therefore are invalid by natural law. But if this impediment is easily dispensable, or if it ceases of itself with the passage of time, it is not so certain whether the betrothals are invalid if they are contracted conditionally, that is, for the time when the impediment shall have ceased. The older authors dispute at great length concerning betrothals thus entered into under condition. This dispute today has lost almost all practical utility, because among Catholics no betrothals other than public betrothals are now valid. But public betrothals are not customarily contracted under condition. If young persons approach the pastor to contract betrothals, it must first be investigated whether a diriment or prohibitive impediment stands in the way of the future matrimony. If this is so, the pastor will take care that a dispensation be obtained, and only then should he assist at the betrothals.

⁴³⁸ Cf. c. 4 § 13, X 4, 5; Code of Canon Law, c. 88, § 3; St. Thomas, Suppl., q. 42, a. 2.

⁴³⁹ Cc. 8 and 11, X 4, 2.

⁴⁴⁰ C. 8, ibid.

⁴⁴¹ C. 10, ibid.

⁴⁴² St. Alphonsus, Theol. mor., l. 6, n. 855.

712. A special difficulty is whether betrothals are valid if the contracting parties are of mixed religion. The following seems to be the true doctrine: If these betrothals were contracted after the due dispensation had been obtained, they are valid. For this dispensation is not granted unless the clauses which render such a matrimony licit have been promised. But if such a matrimony is licit, then the preceding betrothals are considered valid. Moreover, if betrothals of this kind were said to be invalid, then the pastor would have to avoid them according to his powers, even if perhaps he could no longer prevent the matrimony itself; for it is not lawful to concur in an invalid act of such great moment unless great necessity demands it. But such an obligation is not to be imposed upon pastors. - But if there is question of mixed betrothals contracted without the previous dispensation of the Church, they seem to be null, even if the legal form was observed. For such betrothals are almost always illicit.⁴⁴³ This holds a fortiori everywhere in the world concerning private mixed betrothals, as is self-evident. An Instruction of the Holy Office of December 12, 1888,⁴⁴⁴ expresses this entire doctrine in these words: "Betrothals between one Catholic party and another schismatic or heretical party are illicit and consequently invalid unless they are celebrated after a previous legitimate dispensation."

5. A promise legitimately manifested. This is treated immediately in the following paragraph.

⁴⁴³ Cf. Lehmkuhl, Theol. mor. II, n. 852; Noldin-Schmitt, De sacr.¹⁸ n. 534; Linneborn, Eherecht, § 6.

⁴⁴⁴ Collect. de Prop. Fide, n. 1696 (9).

713. Before the Decree Ne temere, betrothals could be sufficiently celebrated and manifested by any clear words and signs; but now, for all validly baptized persons of the Latin rite, even non-Catholics, several things are required for validity by positive law, namely:

1. They must altogether be made in writing, with the day, month, and year set down.⁴⁴⁵ The place (city, town) in which the betrothals are entered into is also fittingly designated, in order to avoid any doubts.⁴⁴⁶ It is indeed free to employ any language and form, provided that the mutual promise of future matrimony is clearly expressed; but it is preferable that forms approved in each diocese or parish be employed.

2. These forms (whether written or printed) ought to be signed by hand (and not by some machine), either a) by the two contracting parties and the pastor or Ordinary, or b) by the two contracting parties and two witnesses. If either or both of the contracting parties cannot write (whether from lack of skill or from bodily infirmity), for validity this is to be expressly noted in the document, and then in place of the contracting party (or parties) another new witness ought to sign. Therefore, in the case, the signatures either of three witnesses or of the pastor and one witness are required. - Concerning the quality of the witnesses nothing determinate has been established.⁴⁴⁷ Hence any human being capable of reason, worthy of faith, endowed with the senses of sight and hearing, and able to write can be a witness. Nevertheless, it is expedient that non-Catholics and notorious sinners be excluded insofar as this is morally possible.

3. The betrothal contract ought to be signed by the contracting parties and the witnesses gathered together at the same time.⁴⁴⁸ Therefore it does not suffice that the contract signed by one party before the witnesses be transmitted to the other party, so that the latter may also sign it before witnesses. The reason is that otherwise frauds and deceptions could easily occur, especially if the other party does not know how to write and read.⁴⁴⁹ - More probably, betrothals contracted through a proxy are invalid, because it is necessary that the contracting parties themselves sign while gathered together; the contrary, however, is taught by some, for example, Noldin⁴⁵⁰ and Vlaming.⁴⁵¹

⁴⁴⁵ Sacred Congregation of the Council, July 27, 1908. The Code of Canon Law seems to have changed nothing in this matter.

⁴⁴⁶ The special law in force before the Decree Ne temere in Spain and Latin America, by force of which a writing signed by a notary was required for the validity of betrothals, was abrogated (Sacred Congregation of the Sacraments, March 12, 1910, ad 7, in Acta Ap. Sed. II, 195).

⁴⁴⁷ Sacred Congregation of the Sacraments, March 12, 1910, ad 4.

⁴⁴⁸ Sacred Congregation of the Council, July 27, 1908, ad 1.

⁴⁴⁹ Cf. Analecta eccl. XVI (1908), 333.

⁴⁵⁰ De sacr., n. 536.

⁴⁵¹ Prael. iur. matr.³ I, 100.

714. 4. Under the name of pastor are understood not only pastors properly so called, but also quasi-pastors (in mission places) and those parochial vicars who are endowed with full parochial power,⁴⁵² such as administrator, actual, and substitute vicars, but not assistant vicars. In order that betrothals may be validly and licitly celebrated before the pastor or Ordinary, it is not required (as for the celebration of matrimony) that the contracting parties have already dwelt in the parish for a month or at least have acquired a quasi-domicile, but the pastor or Ordinary can licitly assist⁴⁵³ in his own territory at the betrothals of all who come to him, and this with the same liberty with which he can hear the confessions of any betrothed persons coming to him. On the contrary, a pastor cannot as pastor, but only as a witness, assist at the betrothals of his own parishioners outside his own territory; this seems to follow from the same response of the Sacred Congregation of the Council. Moreover, all things suggest that the tendency is for the laws concerning the assistance of the pastor both at betrothals and at matrimony to be territorial.⁴⁵⁴ - But those pastors who do not have a separate territory, as is commonly the case with military chaplains, chaplains of hospitals and prisons, and so forth, validly and licitly assist everywhere at the betrothals of their subjects, just as other pastors do in their own territory.⁴⁵⁵

The pastor or Ordinary cannot delegate another to assist at the celebration of betrothals.⁴⁵⁶ Moreover, this faculty of delegation is not necessary, since betrothals can equally well be celebrated before two other witnesses. Hence, if the pastor is absent, his assistant vicar cannot validly assist at betrothals to be entered into unless he assumes another witness, who signs together with him and the two contracting parties. Under the name of the local Ordinary comes not only the bishop of the place, but also his vicar general, and, when the see is vacant, the vicar capitular. Prelates nullius are considered Ordinaries in their exempt territory.

Note. Nowhere in the law is it prescribed that betrothals ought absolutely to precede matrimony; if, therefore, those about to marry have entered into only private betrothals, which according to the discipline now in force are altogether invalid, nevertheless the pastor can make the proclamations and assist at the matrimony. In practice, however, it seems advisable that those about to marry who approach the pastor for the making of the proclamations first contract betrothals before him.

⁴⁵² Code of Canon Law, c. 451, § 2.

⁴⁵³ Sacred Congregation of the Council, March 28, 1908, ad 7.

⁴⁵⁴ Cf. below, n. 752.

⁴⁵⁵ Sacred Congregation of the Council, February 1, 1908, ad 8.

⁴⁵⁶ Sacred Congregation of the Council, March 28, 1908, ad 6.

1950. DEFINITION. "Betrothals are a voluntary, deliberate, and mutual promise, expressed by a sensible sign, of future matrimony between persons capable by law."³

It is said 1. A PROMISE, that is, not only a simple desire and purpose, although externally manifested, but an act of the will, by which someone sincerely, and with internal consent of the mind, obliges himself to future matrimony. - Hence he is not obliged who promises without the mind of contracting, or without the mind of obliging himself, although he knows the obligation. The reason is, because since obligation arises from one's own will, when the act of the will is lacking, the obligation also is lacking; and this, although the promise is confirmed by oath; for an oath follows the nature of the promise (cf. n. 615). - Therefore one promising fictitiously "is indeed bound by reason of deception to repair damages, but he is not bound by reason of the promise to put true consent and contract matrimony."⁴ But it must be said otherwise if defloration intervened; because then the deflowerer is altogether bound to matrimony, since he cannot repair the damage by another way sufficiently equivalently,⁵ as was said n. 959.

It is said 2. VOLUNTARY AND DELIBERATE, i.e., made with that knowledge, advertence, and liberty which is required for mortal sin; namely, that the one promising attend both to what he is doing and to what he is binding himself, and add consent with due liberty. For to induce a grave obligation, such as is the obligation of betrothals, full deliberation and free consent are required.⁶

Hence Betrothals are invalid: 1. Contracted by those who either habitually, or at least while they contract, do not have perfect USE OF REASON, such as children, the insane, the drunk, the mentally seized. But disturbance of reason arising from concupiscence commonly does not impede the validity of betrothals, because, although it is opposed to prudence and counsel, nevertheless it does not exclude deliberation of mind. 2. Contracted FROM ERROR concerning the substance, or concerning a substantial condition, e.g., if someone should promise expressly under such a particular condition; but if the error concerns an accidental condition, the betrothals are valid, but sometimes they can be dissolved, according to what is to be said below (n. 1960).⁷ - 3. Contracted THROUGH FEAR unjust, grave, and inflicted from without; for betrothals follow the nature of matrimony, which contracted by fear is certainly null. - It was said 1) through unjust fear; because if it were just, they would be valid no less than matrimony itself; 2) through grave fear; for if it were light, likewise they would be valid, according to the more probable and more common opinion, because he is judged to contract spontaneously who, when he could repel light fear, does not repel it: nevertheless in this case betrothals can be rescinded by sentence of the judge, on account of the greatest liberty which they require; 3) inflicted from without; for if fear arose from within, e.g., if someone promised in order to decline payment of debt, the promise would be valid.⁸

It is said 3. MUTUAL, i.e., made and accepted in turn by a man and a woman: whence, a promise of matrimony, even confirmed by oath, does not oblige as long as a return promise has not been made by the other party. But the acceptance of the promise and the return promise must be made immediately, and therefore, if the return promise has not been made, the one promising is not bound; nor can the promisee accept the promise alone and deliberate concerning making the return promise; because the promise is judged to have been made under the condition: if the promisee accepts it and returns the promise immediately; unless the contrary is expressly signified, e.g., if the one promising grants delay for acceptance and return promise, or at least for the return promise. If the promisee accepts a gratuitous and liberal promise, and does not yet return the promise, betrothals are not had; but only a promise which obliges, only under light fault, by reason of fidelity, unless the one promising wished to oblige himself under grave fault. If the promisee is silent while the promise is made, she is indeed judged to accept, because it is a question of a favor; nevertheless, her silence does not suffice for a return promise, because a return promise is a burden, and in onerous matters the axiom does not avail: "He who is silent seems to consent." But commonly a promise of matrimony is not judged to have been made gratis and liberally, but under the condition: if the other party also binds herself in turn. And this intention, in doubt, must be presumed.⁹

It is said 4. EXPRESSED BY A SENSIBLE SIGN; because a contract among men is made only by an external sign. - Hence, in betrothals, consent must be expressed:

a) Either BY WORDS, which, if they are doubtful, are to be interpreted according to the obvious sense and the custom of places, or also from the intention of the contracting parties. Certain words are these: I promise matrimony to you..., under my faith I will marry you, etc. But these are null, or very doubtful: "You will be mine..., to you I promise love, fidelity, etc...." He who should say: "I will marry no other than you," would indeed not be bound to marry her, but to marry no other, unless from the circumstances it is gathered that such a one truly wished to contract betrothals.¹⁰

b) Or BY SIGNS, e.g., by the extension of the right hand, namely when the circumstances are such that there can be no doubt concerning the value of the sign. But if there is doubt concerning this, liberty is to be favored;¹¹ nevertheless if copulation freely follows (not if it preceded), one must conclude in favor of betrothals. The mere handing over and acceptance of a ring is not a sufficient sign, unless such a custom is given somewhere. Betrothals can also, like matrimony itself, be contracted through a procurator, or through letters (cf. n. 1973).

c) Or BY THE WORK OF PARENTS, namely if a father or mother promised for a present and silent son or daughter: as is had from the law, saying thus: "Moreover, from betrothals, which parents commonly contract for their children whether pubescent or impubescent, the children themselves, if they expressly consented, or tacitly, or were present and did not contradict, are obliged."¹² - Yet it must be adverted: 1. that this is valid for the external forum; for, for the internal forum, the son is not bound, if he does not assent internally, or if he only has himself negatively: because positive consent is required for contracting some obligation; 2. that this proceeds only in the case in which the parents themselves promise; but not others, although they are guardians or curators, unless perhaps somewhere, as among the Indians, a custom is in force that consent is expressed through others; 3. that betrothals contracted by parents for an absent son are valid, if he, made more certain concerning the matter, ratifies them either expressly or tacitly.¹³

It is said 5. OF FUTURE MATRIMONY, namely to be entered in its own time. Therefore consent expressed through words concerning the present (since, the law standing in the way, it is not valid for matrimony) induces no obligation. Except the consent of impubescents, among whom words concerning the present have the force of betrothals: for in their case the rule is admitted, that an act which is not valid in the mode in which it is made, is nevertheless valid in the mode in which it could be made.¹⁴

It is said 6. BETWEEN PERSONS CAPABLE, namely between such as at some time are able validly and licitly to enter matrimony, since the promise of an illicit, or impossible, thing is of itself void. But if betrothals are contracted while some impediment stands in the way, it is to be distinguished thus: 1. If the impediment is perpetual and of such nature that it can be removed by no reason, the betrothals are invalid; 2. if it is temporary, e.g., a temporary vow of chastity, or if it can be removed by the industry of the contracting parties, e.g., if the non-Catholic party promises conversion, they are valid, and therefore matrimony, when now it can be contracted licitly, is to be contracted.¹⁵

1951. Questions. Q. 1. Whether children under parental power need the CONSENT OF PARENTS for contracting betrothals?

Resp. 1. For contracting validly their consent is not required, since this is prescribed by no law. - Nevertheless, if the parents justly contradict, e.g., on account of dishonor or scandal of the family to arise from such a marriage, the son by not obeying and by contracting betrothals would sin gravely; and therefore the betrothals, although confirmed by oath, would not oblige, because the promise would be concerning an illicit thing, and an oath cannot be the bond of iniquity.

Resp. 2. For contracting licitly the consent of parents is ordinarily required. For the reverence by which they are to be pursued demands for itself that, in a matter of such moment, their counsel be sought. Therefore children, contracting while parents are ignorant or unwilling, sin more or less gravely, according to the diversity of circumstances. - It is said consent is ordinarily required; for a son is not bound to obey parents, if they contradict irrationally, e.g., if they prohibit marriage, or if they prescribe it with an unworthy person.¹⁶ Consent reasonably presumed also suffices, e.g., if the father is so distant that he cannot conveniently be made more certain concerning the betrothals to be contracted, which are judged to have been going to have his approval.

Q. 2. Whether CLANDESTINE betrothals are valid?

Resp. Affirm.; for "the S. C. OF THE COUNCIL has often declared that the Council prescribed no form for contracting betrothals through words concerning the future, and therefore that they can be contracted in that mode in which they could be before the Council itself."¹⁷ Now, before Trent betrothals of this sort were certainly valid, therefore they are also valid at present. - Therefore generally no determined form is required for contracting them, although it is to be advised that they never be contracted without a witness, so that thus, when circumstances demand it, they can also be proved in the external forum.¹⁸ We said generally; for in Spain they are not valid if they are contracted without a public writing, on account of the Caroline Pragmatic, which, by legitimate customary law, has obtained for itself the authority of canonical discipline and the force of an ecclesiastical sanction. Thus from the decision of the S. C. C., January 31, 1880.¹⁹

Q. 3. Whether betrothals contracted between the ABDUCTED WOMAN and the ABDUCTOR are valid, at that time at which the woman was in the power of the abductor?

Resp. Affirm., according to the more probable opinion, provided that fear did not intervene, nor another impediment. For the disposition of law, by which matrimony is invalidated as long as the abducted woman remains under the power of the abductor, is not valid for betrothals, which, as rescindable, require lesser liberty.²⁰

Q. 4. What concerning betrothals entered UNDER CONDITION?

Resp. That betrothals, like any other contract, can be made under condition is certain. Nevertheless, concerning the diverse conditions which can be added, one must speak diversely, according to their variety, and indeed: 1. If the condition is concerning the present, the betrothals are immediately either valid or invalid, according as the condition is verified or is not verified. 2. If the condition is concerning the impossible, the betrothals are null, because the addition of an impossible condition naturally denotes dissent rather than consent, nor is there had the favor of positive law, as happens for matrimony. 3. If the condition is concerning a future necessary thing, it is held for completed, and therefore the betrothals are immediately valid and obtain their effects. 4. If the condition is concerning a future contingent and honorable thing, the betrothals become absolute when the condition has been fulfilled, and new consent is not required; for the consent which was given from the beginning suffices, provided it has remained. But from betrothals of this sort there arises an obligation of attending to the fulfillment of the condition; and indeed this obligation presses so much that any later betrothals, the prior ones not yet dissolved, are rendered invalid. The added condition is judged to have been renounced if the spouses, while it is still pending, have come together in venereal congress.¹ 5. If the condition concerning a future contingent thing is dishonorable, there does not arise from it an obligation of awaiting the event, since it induces to sin; but indeed, when the condition has been fulfilled, the betrothals are valid² (cf. n. 1057, 5).

Q. 5. Whether, some impediment standing in the way, betrothals contracted under the condition, IF THE POPE SHALL HAVE DISPENSED, are valid?

Resp. Dist. 1. If the impediment is such that the Pope never or rarely is accustomed to dispense in it, or if a just cause for obtaining the dispensation is lacking, the betrothals are not valid; because they are concerning an impossible thing. 2. But if it is a question of an impediment in which the Pontiff can and is accustomed to dispense, and at the same time sufficient reasons are had for seeking and obtaining the dispensation, the betrothals are valid, as we said concerning betrothals entered under a possible and honorable condition. Whence, although they are not absolute, nevertheless they induce an absolute obligation of seeking the dispensation and awaiting it; but when this has been obtained and signified to the parties, the betrothals are confirmed without new consent, provided the consent furnished from the beginning still perseveres.

But if the other party, before the verification of the condition, should enter new betrothals, these would be invalid, since it would be a promise concerning an unjust thing, which does not oblige. Thus the more common and truer opinion.³ - Nor do the laws and decisions of the S. C. C. which the opposite opinion alleges seem to stand in the way of this opinion; because, as will easily be clear to the reader, they are to be understood of the case in which either the Pope is not accustomed to dispense, or a cause for dispensing is not present, or other special circumstances of things occur, which weaken that promise.⁴

Note. - Very often, promises of future matrimony, which are customarily made among adolescents mutually loving each other, are not true betrothals, since they bear before themselves the conditions of a purpose rather than of an onerous contract. And thus it is especially in those regions where it is placed in custom that betrothals be entered with some solemnity. In practice, let attention be given especially to the intention of those promising.

1525. - Definition. Betrothals are a deliberate, mutual promise, expressed by a sensible sign, of future Matrimony between capable persons.

It is said: 1° deliberate, namely with the deliberation required for a vow (see n. 379).

It is said: 2° mutual. Hence, if one only of the contracting parties promises, the other simply accepting but not promising in return, there will be no betrothals. - Nevertheless acceptance is equivalent to a return-promise if a woman, who is honorable, is led into so great a dishonor to herself that after acceptance of the promise she suffers defloration, at least if it is not clear that she acted thus merely for the sake of fulfilling lust.¹

It is said: 3° expressed by a sensible sign. Hence there is no need of words; but tacit consent, not expressed by a suitable sign, does not suffice, unless, as Canon Law² disposes for the external forum, parents (i.e. father or mother) contract for children present and not contradicting, although they could easily contradict. - I said: a) for the EXTERNAL forum; for for the internal forum betrothals cannot be valid unless the children positively (i.e. not only by conducting themselves negatively) and internally consent. - I said: b) father OR mother; for the value of the betrothals, or the consent of the children, is presumed in Law, not from paternal power, by which children cannot be compelled to these things (see n. 425), but from parental affection, which is equally in the mother and in the father, and whose dispositions, as having been made in their favor, children are judged to admit. - I said: c) for children PRESENT; for although to St. Alphonsus the more probable opinion is that which affirms that parents can also contract for absent children (to be made more certain by themselves, or by letter or messenger), nevertheless he also holds the negative as probable. - I said: d) not contradicting, ALTHOUGH THEY COULD EASILY CONTRADICT; for betrothals would not be valid if there were a reason why they do not contradict, e.g. fear.³

It is said: 4° of future Matrimony. Hence betrothals would not be valid if the parties pledged only that they would never enter Matrimony with some other person, unless from the circumstances it is clear that such persons truly wished to contract betrothals, as if the words are of the present, namely: I want no one but you.¹

It is said: 5° between capable persons, i.e. persons prohibited by no impediment, whether diriment or impedient. Hence they are not valid if they are made between a Catholic and a non-Catholic, unless their execution has been remitted to the time at which this latter will have received the Catholic Faith.

1526. - Division. They are: 1° Ecclesiastical or solemn, and private, according as they are celebrated either in the face of the Church, i.e. before the Pastor and witnesses; or are perfected privately by the consent alone of the contracting parties, or before parents in the midst of the family. 2° Absolute and conditioned, according as they are made without any condition, or with some condition added.

1527. Principles. - I. For the validity of betrothals all the conditions contained in the definition are required, so that, if one of them is lacking, the betrothal contract must be held as null. The reason is clear from what was said concerning the nature of a contract, n. 828, 845.

II. Betrothals are valid in the same way, whether they are solemn or ecclesiastical, or private or clandestine, because the consent of two suffices for a true contract; nor has the Church ever invalidated private betrothals. Indeed now in most places solemn betrothals have gone into desuetude, nor are they ever contracted among us.²

III. Betrothals entered under a condition concerning the present are valid here and now, if the condition is verified; but if they are contracted under a condition concerning the future, they will be valid as soon as the condition is fulfilled, without a new consent of the contracting parties, provided neither has revoked the consent previously given. Meanwhile the contracting parties are held to await the fulfillment of the condition, if it is honorable and possible, and does not oppose the nature of this contract or of future Matrimony.

IV. When the words or signs are doubtful, in the forum of conscience one must stand by the intention of the contracting parties, if it is clear; but in the external forum, by the common understanding and sense of the words. But if doubt remains, one must incline in favor of liberty.¹

1528. Questions. - Quaer. 1° Are betrothals contracted from grave fear valid?

Resp. Negatively, more probably, provided the fear is from without, unjustly, and inflicted in order to contracting. The reason is because Matrimony contracted from such fear is null, as is clear from Canon Law, and will be explained below. Therefore by that very fact betrothals entered from such fear also ought to be null. Cf. n. 854.

Quaer. 2° Are betrothals entered from light fear valid?

Resp. See n. 853. III.³

Quaer. 3° Among those having a diriment impediment, without new consent, are betrothals valid under the express condition: if the Pope shall have dispensed?

Resp. Affirmatively, once the condition has been fulfilled and the dispensation committed to execution. The reason is because the consent perseveres until the fulfillment of the condition.⁴

Quaer. 4° Are fictitious betrothals valid?

Resp. The question is to be resolved in almost the same way as the question concerning a fictitious oath (see n. 367. 1°. 2°). Therefore they are valid if someone had the intention of celebrating betrothals and binding himself, but not of satisfying the obligation. But otherwise, if internally he did not wish either to contract betrothals or to bind himself. Nevertheless through a fiction of this kind he sins gravely, and is bound to repair damages, indeed also to celebrate Matrimony if damages cannot otherwise be repaired.⁵ See nevertheless what was said n. 810.

Quaer. 5° Are betrothals valid: 1) of those not of puberty; 2) of those not seven years old?

Resp. to the 1st. Affirmatively in itself, because even in the betrothals of those not of puberty all essentials (n. 1525) can be present.

Resp. to the 2nd. Affirmatively, more probably, by natural law, if the one promising has the perfect use of reason and in some way comprehends the burdens of the conjugal state.⁶

Quaer. 6° Are they valid between absentees through an intermediary, letters, or procurator?

Resp. Affirmatively, provided, if there is question of a procurator, he 1) has a special mandate; 2) the mandate is concerning contracting with a determinate person; 3) the procurator contracts by himself; 4) the mandate has not been revoked by the mandator before the betrothals were contracted, whether mentally or tacitly, e.g. by celebrating betrothals with another; 5) the procurator does not exceed the limits of the mandate.¹

Quaer. 7° Must promises which are customarily made concerning entering Matrimony always be held as true betrothals?

Resp. It seems they must be denied; for often those promises bear the appearance rather of intention than of true promise. Therefore in practice attention must be paid to the particular intention of the promisors.²

St. Th., Suppl., q. 43.

830. Espousals according to the name are so called from spondere, i.e., to promise spontaneously, because in antiquity a girl was promised or pledged as wife to a man by those under whose power she was. Whence she who was promised was called sponsa, he to whom she was promised, sponsus, he who promised, sponsor, and the contract of this promise, sponsalia. Therefore it is a bilateral contract concerning matrimony to be entered later, or a mutual promise of future matrimony. 2

It is therefore a promise:

1. of future matrimony, and therefore it is distinguished from valid matrimony not consummated, which sometimes improperly was called espousals, in which sense Blessed Joseph is usually named the spouse of the Blessed Virgin: matrimony in the case was called espousals de praesenti ("I take you"), and differs from true espousals de futuro ("I will take you");

2. mutual, not merely unilateral, made by one and accepted by the other but without a reciprocal promise. And although the new canonical legislation is the same concerning both (can. 1017), nevertheless in order to matrimony the bilateral or espousal promise rather comes to be considered, because this, not the unilateral one, is usually antecedent to matrimony and is its fitting preparation, although nevertheless it is in no way of precept.

Moreover, espousals are usually premised: a) so that matrimony may be entered with more mature counsel and with a better disposition; b) so that in this intermediate time one may better experience the disposition and morals of the other, and it can be detected whether nothing stands in the way of matrimony; c) so that the friendship of the betrothed and desire of the union may grow, as Augustine says, Conf. VIII, 3: that a husband may not hold as cheap the woman given, whom he did not sigh for as loved.

1. This second section of the treatise, like also the third, is canonical for a great part. We wish to warn that our mind is in no way to treat juridical questions more fully and perfectly, or to compose a canonical treatise on matrimony, but only briefly, in order, and succinctly to hand on those things which are necessary for a priest in the ministry of souls.

2. There can be consulted: Wouters, De Forma promissionis et celebrationis matrimonii; and Darmanin, De Promissione matrimoniali, in Angelicum 1931.

831. Definition of espousals. - Espousals are usually defined: A mutual promise of future nuptials between two determinate persons capable by law. It is said:

1° Of future nuptials, which are the proper object itself of espousals;

2° Promise, and not mere intention, desire, or simple purpose even expressed in words, because this does not include the intention of obliging oneself, which is the essential element of a promise;

3° Mutual, i.e., reciprocal, or given and accepted on both sides: thus it is distinguished from a unilateral promise also accepted by the other, which also can be made, although no one is presumed to wish to oblige himself to matrimony except under the condition that the other also obliges himself. And so espousals are, as it were, matrimony begun, and just as there is no matrimony without the mutual handing over of bodies, so neither are there espousals without the mutual pledging of this future handing over; whence espousals, just as matrimony, cannot limp.

4° Between two determinate persons capable by law, for just as matrimony cannot be entered except between two determinate persons capable by law, so neither can espousals, which are the preamble of matrimony, exist except between two determinate persons, who now are capable by law for promising and at least at some time will be capable for contracting matrimony validly and licitly: for a promise concerning an impossible or illicit thing is null.

Hence a) espousals entered with an impediment of matrimony are invalid, when that impediment cannot be removed by dispensation, or in the case is not usually so removed;

b) likewise those entered with an unknown impediment;

c) on the contrary, those entered knowingly with an impediment are valid, but for the time when, with the cessation of the impediment or with dispensation, matrimony will be licit;

d) those entered between two persons of mixed religion after a dispensation already obtained are valid;

e) on the contrary, if they have been entered when a dispensation has not yet been obtained, ordinarily they will be invalid, because mixed matrimony is more often illicit, unless it is intended as a means of repairing an injury.

The conditions required for espousals are the general conditions of every contract: namely, there must be a personal promise, true and not fictitious, fully deliberate, free, and expressed by sensible signs. Whence the general rules concerning vices of consent which invalidate a contract, or permit it to be rescinded, here simply come to be applied.

832. The legal form required by canon law for the validity of espousals, indeed of any promise of matrimony whatever, is indicated in can. 1017:

"§ 1. A promise of matrimony, whether unilateral or bilateral or espousal, is invalid for both forums, unless it has been made by a writing signed by the parties and either by the pastor or local Ordinary, or by at least two witnesses.

"§ 2. If both or either party does not know how to write or cannot write, for validity this is to be noted in the writing itself and another witness is to be added who, with the pastor or local Ordinary or the two witnesses of whom in § 1, signs the writing."

Since private promises gave occasion to many dangers and evils, many of which were doubtful or entered rashly or lightly, from which many lawsuits and enmities had their origin, most wisely this invalidating law was established for every promise which is not publicly contracted in writing. But three conditions are required for validity:

1° That the promise be made by writing or in written form.

2° That it be entered before the pastor or local Ordinary or two witnesses.

3° That the writing be signed by the contracting parties and by the pastor or local Ordinary or two witnesses.

And so:

1° The promise must be made in writing; nevertheless it need not be written by the very hand of the contracting parties, but it is sufficient if it has been written by another, or with the aid of a machine, or printed by type. But the date, or inscription of day, month, and year, must be placed (S. C. C., July 27, 1908, together with can. 6), not the place; the date can be indicated expressly or equivalently, e.g., by naming the day of a feast; but an error in the date, even an involuntary one, invalidates the act.

2° Before the pastor or local Ordinary or two witnesses: The qualified witness, namely, the Ordinary and the pastor, under whose name also come those who by law are in the place of the pastor, is understood to be the one within the limits of whose territory the act is made (S. C. C., March 30, 1908), who nevertheless cannot substitute another for himself, nor one delegated to the universality of matrimonial causes; and one suspended from office or excommunicated as vitandus would exercise the function invalidly after a declaratory or condemnatory sentence (can. 2279, § 1; 2284; 2266). Whence if the promise is entered before an assistant vicar, or before the Ordinary or pastor himself but outside his own territory, in addition another witness is required. But witnesses need not have special qualities; it is sufficient that they be capable of witnessing.

3° The writing must be signed by all, and indeed at the same time and in one context, the contracting parties and the pastor or Ordinary or witnesses being gathered together at the same time (S. C. C., July 27, 1908). The signing must be done personally and by one's own hand, but not be impressed by an instrument, by aid of a machine, or by type; whence a promise made through a proxy is invalid. But if someone signed with his hand guided by another, he would contract validly provided that he remained the principal cause and also could sign by himself, although with more difficulty; but in practice the matter will easily be doubtful.

When both or either party, because of ignorance, does not know how, or because of infirmity or sickness cannot write, this must be noted, and in place of that party another witness must be employed, who signs with the other witnesses or with the pastor or Ordinary.

If the aforesaid conditions are omitted, the promise will be invalid even in conscience, yet not illicit. So it is for all Catholics of the Latin rite, and also for non-Catholic baptized persons, but not for Orientals or unbelievers while they contract among themselves.

Betrothals are a fully deliberate, mutual promise, expressed by a sensible sign, of future Marriage between capable persons. - It is said 1°. fully deliberate, because a perfect and direct voluntary act is required, namely one proportioned to the grave obligation which is taken up; 2°. mutual, because the simple acceptance of a promise does not suffice, but a counter-promise is necessary; 3°. expressed by a sensible sign, because on the one hand no contract can be made without manifestation of consent, and on the other it is not required that this be manifested through words, since neither in the matrimonial contract itself is this necessary; 4°. of future Marriage, because this is the thing which is promised, but not perpetual love or another thing of this sort; 5°. between capable persons, namely those entangled by no diriment or impeding impediment. - Cf. Baller. note (a) and (b), p. 677; and note (a), p. 678.

§ 1. A promise of Marriage, whether unilateral or bilateral or sponsalitial, is invalid for each forum unless it has been made through writing signed by the parties and either by the pastor or the Ordinary of the place, or by at least two witnesses.

§ 2. If each party or either party does not know how or is unable to write, for validity this is to be noted in the writing itself, and another witness is to be added, who with the pastor or the Ordinary of the place, or the two witnesses concerning whom in § 1, signs the writing.

§ 3. But from a promise of marriage, although it is valid and no just cause excuses from fulfilling it, no action is given for seeking the celebration of marriage; yet one is given for the reparation of damages, if any is owed (Can. 1017).

I say 1°. (a) From these things it is clear that for making valid promises of marriage, whether unilateral or bilateral or betrothals, the formality of writing is required, namely in such a way that those promises alone are to be held as valid which are contracted through writing signed by the parties and either by the pastor or the Ordinary of the place or by two witnesses; or, when each party or either party does not know how or is unable to write, by the party knowing and able to write and by the pastor or Ordinary of the place and another special witness; or by the party able and knowing how to write and by two witnesses and another special witness. Besides, when each party or either party does not know how or is unable to write, for validity this fact must be noted.

(b) § 1. A pastor is a priest or moral person upon whom a parish has been conferred by title, with care of souls to be exercised under the authority of the Ordinary of the place.

§ 2. To pastors are equated, with all parochial rights and obligations, and they come in law under the name of pastors:

1°. Quasi-pastors, who rule quasi-parishes concerning which in Can. 216, § 3.

2°. Parochial vicars, if they have been endowed with full parochial power.

3°. Concerning chaplains of soldiers, whether major or minor, one must stand by the peculiar prescriptions of the Holy See (Can. 451).

(c) The Ordinary of the place is the Bishop of the diocese, the Vicar General, the Capitular Vicar, the Apostolic Vicar, the Apostolic Prefect, the Abbot Nullius, the Administrator, and, as is clear, he who is eminent over all these, the Roman Pontiff.

Therefore all these, pastors or Ordinaries, are authorizable witnesses of betrothals and marriages.

(d) From the declaration of the S. Congregation of the Council, 27 July 1908, for the validity of betrothals the date, or the inscription of the day, month, and year, must be placed in the writing.

(e) Witnesses can be whoever, having the use of reason, know how to write; and therefore whether Catholics or non-Catholics, whether men or women, whether blood relatives or strangers. In them nothing else is required except that by natural law they be suitable for making faith, and that they know how to write. But as regards liceity, heretics are not to be employed. (S. C. Inquis., 19 August 1891.)

Question 1. Are betrothals privately entered into without the prescribed form valid, at least in the internal forum?

Resp. Negatively, as is clearly established from Canon 1017, § 1: a promise is invalid for each forum, unless it has been made through writing signed, etc.

Question 2. Are private betrothals at least so confirmed by the addition of an oath that they are valid and cannot be rescinded without injury?

Resp. Negatively, because an oath cannot render valid contracts which positive law declares null and invalid on account of the common good. For those things which are invalidated in this manner are also deemed to be prohibited as contrary to good morals; therefore the oath would be contrary to the common good of society and an immoral bond, which God cannot sanction. But private betrothals are declared invalid on account of the common good. Cf. Ball.-Palm., vol. 2, n. 91; Gury, n. 791; Ojetti, loc. cit., n. 55. See Canon 1318, §§ 1, 2.

Question 3. Granted that private betrothals are invalid, is one who takes an oath bound to fulfill it?

Resp. Negatively, because a promissory oath follows the nature and conditions of the act to which it is added (Can. 1318, § 1). But private betrothals are of no value in either forum, and therefore are acts of no value. Therefore.

Question 4. "Whether betrothals can be celebrated only before the Ordinary or pastor of domicile or monthly residence, or also before any Ordinary or pastor?"

Resp. They can "be celebrated before any Ordinary or pastor, provided it is within the limits of the territory of the same Ordinary or pastor." Thus the Sacred Congregation of the Council, 28 March 1908. And therefore the qualified witness is the pastor or Ordinary of the place where the contract is entered; in other words, any pastor or Ordinary in whose territory the instrument is made can, by his signature, render authentic the instrument signed by the contracting parties. It is not required that betrothals be celebrated before the proper pastor or Ordinary; neither the one nor the other, signing outside his own territory, is a qualified witness of the betrothal contract, even of his subjects.

Question 5. "Whether betrothals, besides before the Ordinary or pastor, can validly be celebrated also before one delegated by either of them?"

Resp. "Negatively." Thus the Sacred Congregation of the Council, 28 March 1908. Therefore the Ordinary or pastor cannot delegate someone to this end, that he perform the office of an authorizable witness in betrothals. For in this new law the substantial form of the betrothal contract is determined, which must be observed exactly under pain of nullity. Indeed, the faculty of delegating has been granted for marriage; but in the canon on betrothals no mention of such a faculty has been made. Therefore, since the principle is: "The legislator expressed what he willed; what he did not will, he passed over in silence," delegation is permitted for nuptials because the legislator expressed it; it must be denied for betrothals because he passed over the same in silence. Then, the office of authorizable witness, whose signature alone suffices for making authentic faith of the instrument, is joined to the quality of pastor. But by delegation the quality of pastor is not communicated; therefore neither is the office of authorizable witness joined by the law itself to this quality. Moreover, there is no necessity for this faculty, because another witness can easily be found who may sign the document together with the priest, and therefore the betrothals will be valid. It is to be noted that the Ordinary and pastor are prohibited from granting a special delegation to a priest for betrothals alone. But what if there are some who have been delegated for the universality of causes, as, for example, the steward of a vacant parish and the temporary administrator in the absence of the pastor? Can such persons be authorizable witnesses of betrothals? Certainly, because these in fact preside over the parish, and therefore they are equated with pastors.

Question 6. Must the witnesses be present when the betrothed parties sign?

Resp. Affirmatively. For they must be witnesses of the betrothal contract. But this contract is made through writing. Therefore they must be present so that they can immediately attest the signature of the betrothed parties.

Question 7. "Whether, for validly entering into betrothals, the parties are bound to sign the writing in one and the same act together with the pastor or Ordinary, or with two witnesses; or whether rather it suffices that the writing, signed by one party together with the pastor or with two witnesses, be sent to the other party, who in turn signs it with the pastor or with two witnesses?"

Resp. "Affirmatively to the first part, negatively to the second." Thus the S. Congregation of the Council, 27 July 1908. Therefore, when the betrothal act is drawn up, each party must be present.

Question 8. Is it required that the whole formula be written by the hand of the betrothed parties?

Resp. Negatively: namely, it is required and suffices that the parties sign the document by hand; and although this be printed in type, by the signature of the parties and witnesses it becomes valid. Cf. Gennari, Il Mon. Eccles. Sec. Ser. vol. 10, p. 87.

Question 9. Can betrothals be contracted through a procurator?

Resp. Affirmatively, because a procurator is always admitted when he is not expressly excluded; and since marriage itself, in places subject to Tametsi, could be entered into through a procurator, and now also with the New Code in force the same is permitted, authors commonly adhere to this affirmative opinion. Cf. Gennari, loc. cit., p. 18; Vermeesch, loc. cit., n. 34; Ojetti, loc. cit., n. 44; Pezzani, loc. cit., n. 48. The conditions are: 1°. that he act himself in person; 2°. that he not be a procurator for the universality of causes; 3°. that he contract with a determinate person; 4°. that when he acts the mandate has not been revoked. But the witnesses must be present at the signing of the parties; otherwise they would not be witnesses of the contract, which for validity must be celebrated through writing.

Question 10. Does a promise of future marriage made by one party and accepted by the other without a counter-promise bind in conscience?

Resp. A promise of marriage, whether unilateral, or bilateral or sponsalitial, is invalid for each forum unless it has been made through signed writing, etc. Thus Canon 1017, § 3. Therefore, if it has been made in this manner through signed writing, it binds; otherwise, it does not.

Question 11. Are betrothals contracted from fear valid?

Resp. Negatively, more probably, if the fear is grave; and the reason is that Marriage contracted from such fear is null, as is established from canon law and will be explained below. Therefore by that very fact betrothals also ought to be null; otherwise these would oblige one to an act invalid of itself, which is absurd. But if the fear is slight, the betrothals will more probably be valid; for he who causes slight fear is not deemed to inflict grave injury upon another, since this other can easily disregard such fear, and therefore, even if he suffers some injury, he is deemed to have willed to suffer it spontaneously. Others, however, deny this, and, as it seems, probably, because even in the case of slight fear that absurd consequence would be verified, namely, that a right would arise from an injury. - Nor should you say that this controversy is useless, practically speaking, from the fact that all theologians hold that betrothals of this kind are rescindable; for the answer is that, in the ancient discipline, a diriment impediment would have arisen from these betrothals if it be admitted that they were only rescindable, but not if it be said that they were null from the beginning. - Cf. S. Alphonsus, n. 844; Baller. note (a), pp. 682 and following; Lehmkuhl, n. 658.

Question 12. Among those who have some impediment, are betrothals under the condition, if the Pope dispenses, valid?

Resp. Affirmatively, if the condition has been verified; nor then will it be necessary to renew consent. The reason is that then nothing is lacking from those things which by force of this contract are required. The negative opinion is probable: the S. C. C., 2 October 1857, responded: "that such betrothals are altogether null, even if it is a question of a violated blood-relative, to whom also a promise has been made of obtaining a dispensation, and therefore, once the dispensation has been obtained, a new consent is necessary, and meanwhile each contracting party is free to enter other betrothals, although it is not according to honor to fail in promises." D'Annibale, n. 508, note 26: "And in the forum this opinion has been more received." Wernz, n. 97.

You Will Resolve. - Betrothals are invalid:

1°. When they are not contracted through writing, although many witnesses of the mutual consent externally expressed are present;

2°. When the writing is not signed by the co-parties knowing how to write, or by the co-party knowing how to write in the case in which only one can write;

3°. When they are not contracted before the pastor (or Ordinary) or before at least two witnesses;

4°. When the writing is not signed either by the pastor or Ordinary of the place or by two witnesses;

5°. When the writing is signed by the pastor of the contracting parties but outside his territory;

6°. When the writing is signed by a pastor, but not by the pastor of the place in which it is contracted;

7°. When the signature of a special witness distinct from the others is not had in the case in which each party or either party does not know how to write;

8°. When each party or one party does not know how to write, if this fact is not noted;

9°. When the parties do not sign the writing in one and the same act together with the pastor or with two witnesses;

10°. When the date is not placed in the writing.

This Canon 1017 establishes the essential form of betrothals. And therefore, as regards the other things which were valid before it, the ancient discipline is in force. Although, therefore, it is very fitting that betrothals precede marriage, nevertheless no obligation is imposed. They can be dissolved.

I say 2°. Betrothals entered under a condition concerning the present are valid here and now, if the condition has been verified; but if they are contracted under a condition concerning the future, they will be valid as soon as the condition is fulfilled, without new consent of the contracting parties, provided neither party has revoked the consent previously given. Meanwhile, however, the contracting parties are bound to await the fulfillment of the condition for a reasonable space of time, if it is honorable.

I. QUESTION I. What are betrothals? ANSWER. Betrothals, of which at present, are a promise concerning a future matrimony, mutual, free, expressed by external signs, bearing an obligation. The promise must needs be mutual, that it may oblige both. Free, coercion and fear being excluded. Expressed by external signs, because internal acts do not suffice. Betrothals bear a twofold obligation, natural and canonical. For by natural right each man is bound to stand by his promises, chiefly in a most grave matter, such as are betrothals. The canonical obligation induces the impediment of public honesty. A promise made to one absent, before his acceptance, does not oblige. Betrothals cannot be contracted under a slight obligation. They can indeed promise to one another under the penalty of losing the earnest-money, and even under no obligation; but these would be simple, jesting promises, not true betrothals, which induce the impediment of public honesty. The betrothed ought to promise to one another mutually, that the betrothals may be valid and firm.

IV. QUESTION II. By what words are betrothals to be contracted? ANSWER. By words or signs which clearly manifest mutual consent, such as are these: I promise, I oblige myself, on my faith I will take thee as wife. Taciturnity does not suffice. He who is silent seems to consent holds good only in one's own favour, otherwise for undertaking a burden. For then this other rule holds good: He who is silent seems neither to consent nor to dissent. Words ought to be employed absolutely. For the rest, according to the diversity of nations signs can be had in place of words.

Titius, a missionary priest, wishes to know whether, by virtue of the decree Ne temere of the Sacred Congregation of the Council, Aug. 2, 1907, a mutual, serious, and deliberate promise of marriage between capable persons, but not made in writing, is of no effect, or whether, notwithstanding the decree, it has the force of a private contract binding gravely in conscience. Furthermore, he asks whether under the name of parish priest in the cited decree are comprehended not only the principal priests in a mission but also their assistants, if there are any. Hence it is asked:

1. What is the purpose of the decree Ne temere?

2. What does that decree establish concerning betrothals?

3. What power do assistant missionaries in England have?

4. What is to be said of Titius’s difficulties?

1. What is the scope of the decree Ne temere?

The scope of this decree was to alter the law about clandestinity so as to remove its uncertainties as far as possible, and to prevent the evils which frequently arise from private and informal betrothals. (Proœmio decreti Ne temere.)

2. What does the decree lay down about betrothal?

“ Only those betrothals are considered valid and produce canonical effects which have been contracted in writing signed by both the parties and by either the parish priest or the ordinary of the place or at least by two witnesses. In case one or both the parties be unable to write, this fact is to be noted in the document and another witness is to be added who will sign the writing as above, with the parish priest or the ordinary of the place or the two witnesses ” (Sect. 1).

3. What authority have coadjutor missioners in England?

They are delegated by the bishop to exercise the cure of souls, but according to the Provincial Councils and the declared intention of the bishops, they must exercise it in dependence on the head priest. 1

4. What about the difficulties of Titius?

One of the objects of the new law was to prevent the inconveniences arising from mutual promises of marriage privately entered upon. For as the decree says: “ Experience shows that they are an incitement to sin, causing the deception of inexperienced girls, and afterward giving rise to inextricable dissensions and disputes.” The first section of Ne temere, therefore, provides that “only those,” etc., as above. This section would be valueless for the object in view unless it invalidated betrothals made otherwise than is laid down. So that we must conclude that betrothal not made according to the decree has no binding force directly and of itself. The

S. C. super neg. eccles. extraord., 5 Nov. 1902, decided that informal betrothals were invalid in conscience and in law in Spain and in Latin America, where a similar law 1 Manual of Moral Theology, vol. i, 630.

to Ne temere has long been in force. This doctrine is maintained by most commentators, e.g., by Gennari, Ojetti, Vermeersch, Ferreres, Besson.

The term parish priest comprises the coadjutors as well as the head priest, but the former are bidden to exercise their authority in dependence on the head priest; with dependence upon the Rector.