Single Question. Whether Consent Alone, Expressed in Words about the Present, is Cause of Matrimony

1. “Here it is wont to be asked etc.” [Lombard, Sent. IV d.28 ch.1 n.1].

2. About this twenty eighth distinction I ask whether consent alone expressed in words about the present is cause of matrimony.

3. It seems that it is not:

Because every bond or contract on which carnal union can licitly follow is matrimony, or a contract of matrimony; but after consent expressed in words about the future, carnal union licitly follows, for such persons are not said to be fornicators or adulterers; because when carnal union follows a contract in words about the future, the Church says simply that matrimony is there, and the parties cannot be separated;     therefore etc     . There is confirmation too in Gregory IX, Decretals IV tit.1 ch.30, ‘About espousals’

4. Again, every indissoluble bond, if on it carnal union licitly follow, is matrimony; but of this sort is the bond that comes from a contract through words about the future;     therefore etc     . Proof of the minor, because the fulfilment of a promise, as also fidelity, belongs to the law of nature; but what belongs to the law of nature cannot be dissolved; and [the bond] is not by the act following, because that act is neither a form of contracting nor a form of sacrament; therefore the promise is the indissoluble bond, and especially if it be confirmed by an oath, because to keep an oath belongs to the law of nature. Therefore it was indissoluble before; therefore after it there was matrimony.

5. Again, there is no middle (as concerns this contract) between espousals and matrimony; but when an oath is added to espousals, the contract goes beyond the firmness of espousals, because espousals have their firmness without oath; therefore, when an oath is added there is a contract of matrimony; from the promise, then, along with the oath, there arises an indissoluble bond; therefore matrimony.

6. To the opposite is the Master in the text [Lombard, Sent. IV d.28 ch.2 n.1].

I. To the Question

7. I reply: From the second conclusion of the first solution [d.26 nn.34-37], it is plain that the contract of matrimony, which of course introduces the obligation or bond (which is called the marital bond), is a giving; and if it is not free, still, because ‘giving on behalf of another’ is what substituting is, it at least is a mutual handing over of the power of bodies. But no one in promising hands over what he promises; indeed, this would be a contradiction, because a promise is about a handing over in the future. Now consent about the future expressed in signs suitable to that consent is only a promise; therefore, it is impossible for such consent to be a handing over, nor consequently a matrimony.

8. But if someone in this case wanted to apply force concerning the sacrament accompanying the contract, one could say that the proper form of this sacrament, whether it consist in words only or in other signs, consists in a representative sign only and not in a prognostic one. Nor is it the minister’s intention, which is sufficient for ministering this sacrament, to intend for the future, but he must intend it for the present, as the sign signifies; because in sacraments of truth the minister does not suitably minister if he is lying. There is, then, no sacrament there if the consent is only about the future, because of the defect in the intention of the minister; and it is a lie if he use a representative sign. But if he use a prognostic sign, although he not be lying, yet the requisite intention is lacking, and the requisite due sign.

9. To the first argument [n.3] I say that the major is not true, unless it be understood of an indissoluble bond before the act of carnal union, but not if it be made indissoluble through the carnal union, because matrimony is of its nature an indissoluble bond; but if the bond be made indissoluble through this act, yet it is not indissoluble beforehand.

10. And if you ask, on the supposition that, according to the Church’s presumption, this sort of thing is matrimony, what must be said according to the truth, whether the following act cause the bond to be indissoluble - I reply: truth prevails over presumption, both simply and in any court, if the truth can be known as equally as that whence the presumption arises. In truth, therefore, if he in the act following espousals not change consent of espousals into matrimonial consent, a matrimony is not effected by the act, because that act neither by the nature of the thing nor by the divine law is the proper form of the sacrament; nor is it matrimony in the issue at hand. The Church, however, to which the mind of the one performing the act cannot be known, presumes it, supposing that he does not want to sin mortally and therefore that he is departing from the consent of espousals and knows her with a new matrimonial consent or affection.

11. And by this is plain the answer to what is added in confirmation from Gregory IX, Decretals: I concede that, if the prior consent is not changed into a matrimonial consent, it is not in truth a matrimony, though the Church presumes it. For I do not see that presumptions of the Church could make a true matrimony.

12. To the second argument [n.4] I say that the promise, although by the law of nature it should be kept, does not yet reach to a contract of giving; and therefore, however much he may be bound to pay the promise, the thing remains his own. And therefore, if he give it to another, it is given, nor can he afterwards take it away from the one to whom he gave it so as to return what was promised; but he should be penitent about the impossibility of returning it. So it is here. If anyone, after he has contracted with another, through the words about the future, by contracting only espousals with her - if he later contracts with someone else by words about the present, it is impossible that he fulfill the promise that he had made to the first one. And because of this he should be penitent about the breaking of the promise and the impossibility of paying it; but he is not bound to make restitution to her, because the promise took nothing from her. Therefore, by words about the future there is no giving, but a promise about future giving. The major proposition, therefore, that ‘an indissoluble bond.. .is matrimony’ is true of the indissoluble bond both in law and in fact. However, in law it is indissoluble, in fact it is sometimes soluble. And so this promise, which in law is indissoluble, is in fact dissolved by a subsequent giving.

13. To the third [n.5], I say that in espousals there are degrees of firmness, and though the firmness of an oath, applied to espousals by consent about the future, make them more certain, yet it does not go beyond the certitude and firmness of espousals.