Twenty Seventh Distinction

Question One. Whether Matrimony is Suitably Defined as ‘The Marital Union of Man and Woman Retaining, between Legitimate Persons, an Indissoluble Life’

1. “After this one must note” [Lombard, Sent. IV d.27 ch.2].

2. About this twenty seventh distinction I ask two questions: first about the definition of matrimony that the Master puts in the text [ibid. ch.1], whether it is fitting when he says that matrimony is the marital union of man and woman retaining, between legitimate persons, an indissoluble life.

3. It seems that it is not:

Because union there is taken either for passive union or for relation:

Not in the first way, because it passes when the act passes, and ceases when the act of the contracting parties ceases, and it does not remain, but matrimony remains. Likewise, every passion in the category of passion has some form or some term that is induced in the passive subject; but it is not possible to grant any term introduced by this union, because nothing is new save a respect of reason.

Not in the second way; first because a relation is not a term of motion or change, but this union is the term of a preceding motion or change because after the change it is present and before not; second because although ‘the road from Athens to Thebes is as the same as the reverse’, Physics 3.3.202b8-14, yet the relation is different and diverse from here to there and conversely [Ord. IV d.13 n.68]

4. Therefore in the same way there will be two relations here, one of man to woman and the other conversely; and then it would follow that there were two matrimonies, or that matrimony is not essentially one.

5. The opposite is plain from the Master in the text.

I. To the Question

6. The answer to this question is clear in accord with what was said in the fifth conclusion of the preceding question [d.26 nn.56-67], because this definition of matrimony must be understood according to what it is explained to be in the definition or description set down there. And if matrimony is taken properly for the union, then this sort of union must be understood to be the same as obligation. And if it is taken for the preceding contract, then the union can be taken for the act of joining or the passion that includes both acts, namely the interior and exterior act, of the persons joined by the act.

II. To the Initial Arguments

7. To the argument [n.3] I say that, when understanding matrimony properly, union is understood there as a relation. And when you say that it would be the term of a motion or change, this does not follow, because the change, which was there, was according to an act of will, not leaving behind any induced term, and according to an act of causing an exterior sign, from which again nothing is left behind.

When it is said that relation is not the term of motion, this is true perhaps of a relation coming from within. But if one wish to say that there are relations of wills there from the mutual obligation, then it would have to be said that the union would be a respect coming to the will from without and not from within, just as it is not by my will that the Religion of Blessed Francis is a Religion, but this is an extrinsic respect. Likewise, this obligation [sc. of matrimony], as it is a certain relation, does not come from within to the persons obligated, because such respect does not exist by the nature of the extremes or wills obligating themselves. And if the respect is not real but only a relation of reason, then it is only a certain ordination, namely one according to justice, which ordination is in him who has the power of law; for God himself, who as legislator ordained that contract and that obligation to come to be, retains it in his ordination such that there is only a change according to reason there, just as is plain in other obligations and lordships; for lordships are not real entities but real relations, and we only love lordships and such powers of law or such jurisdictions because of that for which they are, as for pleasures or honors or the like.

When you say, secondly, about doubleness [n.3] that there will be a double relation and a double union, I concede it; and therefore is it called, not any union, but a mutual union, because the contract includes two parts, namely the consent of this person and of that, and in both persons also there are two acts, namely interior and exterior, or an intrinsic one and an extrinsic one signifying the intrinsic one.

Question Two. Whether Consent Expressed in Words is the Efficient Cause of Matrimony

8. Second I ask whether consent expressed in words is the efficient cause of matrimony.

9. It seems that it is not:

Because then no one could be certain of matrimony, just as neither of the consent of another, because not always is what the mind thinks expressed in the words. The consequent is unacceptable, because then no one could, in certitude, use the act of matrimony without danger.

10. From Gratian, Decretum, p.2 cause 32, q.2 ch.13, and Gloss, is it obtained that silent consent suffices for matrimony, along with expression by the parents on behalf of the children.

11. To the opposite is the Master in the text [Lombard, Sent. IV d.27 ch.3 n.1], and Gregory IX, Decretals IV tit.1 ch.26: consent is that ‘without which the other things are unable to complete a conjugal agreement’; also, tacit consent does not suffice for a sacrament, because it is not there a sensible sign.

12. Again, right over someone is not obtained by touch of the senses; but a right is acquired by matrimony, as is contained in I Corinthians 7.1-8;     therefore etc     .

I. To the Question

13. The solution of this question is plain from the second conclusion of the first question [d.26 nn.32-37], because it is contained there how the contract of mutual donation of power over bodies is honorable, and how it is disposed to the bond left remaining between the spouses.

14. And then to the form of the question, one must not say that it is the efficient cause of this bond but that it is a prior disposition, as ‘to be baptized’ or ‘to be ordained’ is a prior disposition for the character [d.26 n.67]. For the consent expressed in adequate words, including these two [sc. “I give,” ibid. n.36], is nothing other than the contract of matrimony, and therefore is it disposed to matrimony as that contract is.

15. Speaking of matrimony as it is a certain contract, it can be done and is done by mutual consent, expressed not only in certain words but in other definite signs; for if the signs there required are the words alone, than that alone is said to be a matrimony where there is a sacrament; but if there are signs other than words, as was perhaps so in the case of Abraham and the other ancient patriarchs, then it is said to be a true matrimony but not a sacrament according to the Church, though it could be called a sacrament of the Old Law.

II. To the Initial Arguments

16. To the first argument [n.9] I say that about the consent of another there can be the sort of certitude that is required in human acts. For in other contracts, as the selling and exchange of things, demonstrative certitude is not required, but probable certitude is enough, for the most part. And such is what there is in the issue at hand, on the supposition of the proposition ‘everyone about whom there is no sign of the opposite is truthful’. And this following one belongs to the law of nature (that is, consonant with the law of nature), that ‘truthful and faithful must each be held to be, until, through himself or through testimony of others, the opposite is with certitude or conjecture reckoned to be’. But if one say that he cheated the person contracting with him - about this below, d.30 nn.14-21.

17. To the other argument [n.10], when it is said that in the gloss one has it that there are spouses by tacit consent, I concede that they are true spouses because it suffices for a contract that the parents contract for the children, and a contract by letter without words would be sufficient, since indeed in other contracts (of buying and selling) a contract in writing is held to be firmer than one in bare words. But whether the idea of the sacrament would be preserved in signs other than words, or signs displayed by others than the contracting parties, was spoken about in the fourth conclusion of the first question about matrimony [d.26 nn.55-58].