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].