Thirtieth Distinction

Question One. Whether for Contract of Matrimony a Consent is Required that Follows a Non-erroneous Apprehension

1. “And not only coercion” [Lombard, Sent. IV d.30 ch.1 n.1].

2. About this thirtieth distinction I ask two questions: first whether for contract of matrimony a consent is required that follows a non-erroneous apprehension.

3. That it is not:

In Genesis 29.18-35 is the story of Jacob and Leah, to whom he did not consent save by error, believing her to be Rachel; and yet it seems that there was a matrimony there, otherwise the carnal union between them would have been fornication. And if you excuse him through ignorance, though perhaps not sufficient because not invincible - on the contrary: then on the morrow at least he could have repudiated her as not his own.

4. Again, in Genesis 27.27-29, 33, Isaac by error blessed Jacob, believing him to be Esau, and yet Jacob was blessed because afterwards Isaac said, “I have blessed him and he will be blessed;” therefore similarly here.

5. Again, if a priest, believing he is baptizing one person, baptize another, whether free or slave, the person is baptized; therefore, error is not an impediment there, and by parity of reason neither will it be an impediment here.

6. Again, more of an obstacle to a spouse is moral malice in the other spouse against the divine law than is the condition of servitude; but erroneous apprehension as to that malice, if consent to this person follow it, does not impede contract of matrimony; therefore, neither does error in condition of servitude.

7. To the opposite is Gratian, Decretum, p.2 cause 29 q.1, and the Master in the text [Lombard, Sent. IV d.30 ch.1 n.2], who sets down an example about gold and brass.

I. To the Question

A. Solution of the Question

8. To this question I reply that it is clear from the second conclusion of the first question of d.26 above [nn.32-36] that this contract is a contract of free and voluntary giving (and as was also said in the preceding distinction [d.29 nn.29-31]). But ignorance, and especially of the condition that is required for an act of will, causes the involuntary, Ethics 3.2.1111a2, and according to Augustine On the Trinity 10 ch1 n.1 [also 15 chs.27, 50], “nothing is loved or willed unless it is known” [cf. Ord. I d.3 n.589].

B. Corollary

9. From this follows a short corollary, that error or erroneous apprehension as to any condition per se required for a contract makes the contract null. And there are in general three conditions, two on the part of the persons: one, namely, when this person is thought to be that person, the other when an enslaved person is thought to be free. The third condition is the corresponding error on the part of the contract, as when one person were to believe that the other person was contracting with him in a like contract although, however, in the truth of the matter the other person is not contracting, because he does not intend to give as that person intends to receive.

10. As to the first error, it is plain that it impedes all buying and selling of things, as that if gold is bought and the seller is selling brass. So here, if someone intend to give to b power over his body and he give it to a, nothing from such a comes to be.

11. The second condition is a special one here, because here there is a substitution of power over a body for power over a body; but a slave cannot give power over his body to a free woman, as she conversely can; and she, not knowing his servitude and consequently not consenting knowingly to a slave, does not want to exchange power over her body for a power over a body that the slave does not have. And from this follows something else, that error of a better condition is not an impediment - and servitude likewise is not an impediment, if it is not unknown.

12. The third condition is general to every contract, because if one of the two is contracting with a straight mind and the other is only using signs of a contract without a mind to contract, there is no contract; because the more principal cause is lacking, namely the mutual act of will, and the less principal one that is in place, namely the extrinsic sign, does not suffice.

13. This contract [of matrimony] therefore, when it limps on one side, is dissolved; for a contract of matrimony cannot limp since there is a transfer of equivalence there -just as there is a likeness between things that are alike, for one thing cannot be like another thing if the other is not like it.

C. Doubts

14. But here there are some doubts.

First: let it be that someone, in order forcibly to sate hisLatin words, while rife with grammatical gender, can often be left ambiguous as to biological gender, and Scotus’ Latin here is ambiguous as to whether the lustful person in this doubt, or the deceiving person in the next doubt [n.15], is the male or female partner. It could in principle be either, of course, but the Latin becomes clear enough later, especially in nn.19ff., to show that Scotus is thinking primarily of the male party as the deceiving party, and therefore also, one presumes, as the lustful party. The English translation accordingly follows this presumption from the beginning, even where the Latin remains ambiguous. ⁸³ lust, say the words but not be intending in his mind to make a contract - is the other person, who contracts with single mind, obligated? It seems so, because on her part there is both consent and words; therefore, the total cause for obligation remains in such a person consenting.

15. Again, let it be that he who contracts deceitfully make express to the other his deceit; that other person, who contracts with single mind, cannot withdraw from the contract because she would expose herself to peril of fornication. Nor yet can she abide on her own side, because she cannot with certitude demand the [marriage] debt, nor yet can she return it on the other side, because in abiding by it she would expose herself to peril of fornication. Therefore, it seems that in such a case the single-minded person is in perplexity.

16. To the first [n.14] I reply: a contract of matrimony does not limp, and therefore if the second person does not give, the contract does nothing. For (as said in the first question, the second conclusion [d.26 n.36]) “I give so that you may give” or “I give if you give;” although on the part of the one who contracts with single mind there is no impediment of fact, save as a consequence.

17. But about the second doubt [n.15] there is considerable dispute, with some saying [Richard of Middleton, Sent. IV princ.1 q.4] that this person cannot render the debt while her conscience about the other’s deceit remains, nor can she withdraw, because she would expose herself to fornication, as was said [n.15].

18. In brief I say there is no perplexity in the Divine Law, even with any act at all of one’s own in place - provided however that there not remain some mortal sin by which that perplexity come about. But she who, in single mind, contracts with another does not then have, and much more not afterwards either, any act because of which she may be perplexed; therefore the way of salvation lies simply open to her.

19. I say, therefore, that the safer way is that she settle in her conscience that the other is not deceitfully consenting, indeed that he then truly gave consent, but is now lying; and in this case let her do as a true wife does.

20. But if she cannot get rid of the conscience she has about the other spouse’s privative word [sc. the word that deprives the contract of validity], then, while that conscience remains, she mortally sins in rendering the [marital] debt, because it is fornication.

In not rendering it, too, and much more in withdrawing, she is exposing herself to the peril of mortal sin - that he is lying [sc. now]. And this is more probable than that he lied in the main contract; and then she is denying him what is his own, or if she withdraw, she commits adultery, according to the Gospel [Matthew 5.32]. Into a considerable penalty, then, is she dismissed who treats with one who makes a contract deceitfully.

22. But surely the deceiver will not be immune?

I say that, while the deceit remains in the forum of his conscience, he must be told that in no way should he render or ask for the [marital] debt, because it would be fornication; and, along with this, he must be told that he is bound by necessity of salvation to make satisfaction to the person harmed; but he cannot make satisfaction unless he render to her as much of his own as, without doubt, he took from her; for it seems that his body is not [sc. not yet] the body of the wounded woman, that he exchanged his body for her body, and therefore that he is necessarily bound to change the deceit into a true contract.

23. But let it be that in the meantime he contract with another woman, what then is to be done?

I reply: that contract is to be kept and, as to the impossibility of rendering to the former woman what is due her, he must be penitent, along with the exterior satisfaction possible, as by procuring a suitable matrimony, as is found in Exodus 22.16-17 about him who sleeps with a virgin, that he is bound to a definite restitution for her, according to the custom of the dowry that virgins are wont to receive in that country.

24. If against this solution an argument be made about the error, which solution consists in this, that exchange is only according to the apprehension of the value of the thing exchanged relative to what it is exchanged for - against this solution, that someone can give something or exchange something expecting something greater to be returned to him, for which however nothing will be given in return, nor yet is the first giving null for this reason.

I reply: some giving, expecting a future return, is not a generous one; and some giving demands a preceding or concomitant giving, which is exchange properly. The first does well hold, although afterwards the expected return not follow, because the transfer is made there only under hope of future return. The second never exists save where there is at once a concomitant return, because the contract is conditioned (even if not with an expressed condition, yet one universally understood implicitly by the nature of a contract), and a conditioned contract does not stand save when the condition stands.

II. To the Initial Arguments

25. To the first argument [n.3], whether Jacob could be excused of sin if he knew Lean on the first night or not, is no great concern, for he was not confirmed [sc. about her identity]; but I say that after he apprehended she was Leah he consented to her with a new consent, perhaps because of the words of Laban [Genesis 29.26], “It is not the custom in this place that the younger are handed over to marriage first;” and from then was she his wife; otherwise I concede that he could well have repudiated her as not his own.

26. To the second [n.4] I say that after the departure of Jacob and the entry of Esau, it is added there [Genesis 27.33] that Isaac trembled violently and wondering beyond what can be believed he says, “Who was it etc.;” and about the blessing of Jacob he added, “And I have blessed him, and he will be blessed,” where, consequentially and in accordance with the text, Isaac is understood to have been rapt in that ecstasy wherein he saw that Jacob justly and according to the will of God had to be blessed, and therefore the first blessing - although extorted by man and human precaution, yet afterwards, because in that ecstasy and wonder Isaac saw it approved - he pronounced as firm, adding “and he will be blessed.”

27. As to the third [n.5], there is no similarity with a baptism unknowingly conferred, because there is no mutual contract there.

28. If however, for the solution of this question, someone were to take an argument from the idea of a sacrament, that it could not be conferred by someone in error, it seems probable that he who errs about the person would not, in baptizing, baptize him, just as neither in the case of matrimony.

29. But this argument is not set down for solution of the question, nor does such error about the person (that it is a or b, provided however he intend to confer this sacrament on this person who is present) seem to prevent conferring of baptism, or of the other sacraments. But here such error is an impediment, not because it impedes first the sacrament, but because it impedes the contract of making gift to him to whom one does not want to give that which is here given.

30. I say that there can be error in baptism about the person, but not in joint giving, because servitude does nothing there [sc. nothing for contracting matrimony, n.11]; for if he were to intend to baptize some determinate person and he does not baptize that person, then it is nothing.

31. To the last argument, about moral malice [n.6], I say that moral goodness is not something per se required for a contract of matrimony, and this neither when preceding nor concomitant nor following; nor similarly the opposed malice. And so error in this condition does not prevent the contract. But it is otherwise about the condition of servitude, on account of the reason stated in the solution of the question [n.11].

Question Two. Whether between Mary and Joseph there was True Matrimony

32. Second [n.2] I ask whether between Mary and Joseph there was true matrimony.

33. That there was not:

Gratian, Decretum, p.2 cause 17 q.1 ch.2, “For those who vow chastity not only marrying but wanting to marry is damnable;” but the Blessed Virgin had vowed chastity; therefore, she did not contract matrimony with Joseph; otherwise she would have mortally sinned.

34. Again, in Numbers 36.7-8 is contained that according to the Law women ought to marry men of their tribe; therefore, Mary was only able to marry a man of her tribe; but Joseph was of the tribe of Judah, Luke 2.4, because he was “of the house of David,” but Mary was of the tribe of Levi, Luke 1.36, because “her kinswoman, Elizabeth.”

35. Again, one who contracts matrimony consents to something; not only to cohabitation, because brother and sister can consent thus; therefore, to carnal union, because matrimony seems to add nothing else over and above cohabitation; but the Blessed Virgin could not have consented to that union, because she had vowed virginity.

36. To the opposite is the Master in the text [Lombard, Sent. IV d.30 ch.2 n.1], and it is taken from Matthew 1.18, “Since she was betrothed etc.”

I. To the Question

37. Here two things need looking at: first, that it was so; second, how it could have been so.

A. Between Mary and Joseph there was True Matrimony

38. The first point is plain from the authorities that the Master puts in the text [Lombard, Sent. IV d.30 ch.2 nn.2-5, from Ambrose and Augustine].

39. And there is a fitting reason for this, because either there was a divine precept universal for everyone in the Law about contracting matrimony, not yet revoked at the time when the Blessed Virgin contracted matrimony, since indeed fecundity was held a blessing in the Law and sterility a curse (as is plain in many places of Scripture [Genesis, Deuteronomy, I Kings, Psalms, Proverbs]) - or if there was not a general precept, which is seen from the fact that Jeremiah and John the Baptist remained virgins, and Elijah and perhaps many others (for whom however we do not read that a special dispensation about this was made), then a special command was given to the Blessed Virgin about making a contract with Joseph.

40. There can for this be the fitting reasons assigned by Ambrose [Exposition of Luke II nn.1-13], namely so that her husband would be witness to Mary’s virginity, who would also have been able, were he not to recognize the oath [sacramentum: ?of virginity], to lament injury and avenge scandal. Thus too is greater faith ascribed to the words of Mary, and cause for lying removed. For a pregnant unmarried woman would seem to have wanted to hide her fault with a lie; and a non-betrothed woman had a reason for lying, a betrothed woman did not, since the reward of marriage and the grace of nuptials is women’s offspring. And thus, both from testimony and from presumption, she would be more believed about her virginity and the matrimonial conception of her Son.

41. It was also congruous for her to be believed about her virginity lest she be marked for ill repute, because Christ did not think faith about his own origin needed to be built on injuries to his Mother; for he knew the Virgin’s sense of shame was tender and reputation for modesty fleeting.

42. Another reason too is so that her husband would be of service also to the boy, whether going into Egypt or returning thence; which reason Origen touches on [as quoted by Deacon Winfred homily 17 On the Vigils of the Nativity] in his commentary on Matthew 1.18, “Since she was betrothed.”

43. Another reason is assigned by Ambrose [ibid. n.40], namely so that the devil be deceived. - But this reason seems of little moment; for how could the devil not see the virginity of Mary if she had Joseph as husband than if she did not have him? But it needs to be understood that he could not see this because he was not allowed to, though by the natural power of his intellect he could have seen integrity in her, both of mind and body. But, being prohibited, he was unable to approach her in place or in intellect. This also does Bernard say [On the Praises of the Virgin Mother hom.2 n.13], that he could not approach her; but neither did he care to, because he saw her betrothed to a husband. This reason, therefore, does not seem to be of great moment, because he could have been as equally prohibited if she had not had a husband.

44. But the other reasons do seem well fitting to the issue at hand: that Christ would [otherwise] take his beginning from injury to the Law, that he not give occasion to Jews and to Herod to persecute Christ, since the offspring of an unmarried woman is condemned by the Law; so that too he not leave to virgins living under sinister opinion a veil of excuse, because the Mother of the Lord would also be seen to be defamed.

B. How there Could have been a True Matrimony between Mary and Joseph

1. Opinion of Others

45. On the second main point [n.37], some say [Thomas Aquinas, Sent. IV d.30 q.2 a.1; Richard of Middleton, Sent. IV d.30 princ. 2 q.1] that the Blessed Virgin vowed virginity under a condition, namely unless God were to dispose differently; and therefore it was licit for her to contract matrimony.

46. On the contrary: in every vow, however absolute, this condition ‘if it please God’ is understood, because no one should offer anything to God regardless of whether God wants it or not; nor would he who intends so intend in ordered manner. Therefore, an absolute vow stands along with this condition, so understood; and if the condition be added, it counts as not added, because in no respect does it diminish the idea of a vow.

2. Scotus’ own Opinion

47. I say, therefore, along with the saints, that she absolutely and simply vowed virginity, which the saints [Augustine, Bede, Bernard] also put together from the words of her question or query to Gabriel [Luke 1.34], “How will this be since I know not man?” For if she had not known man only in act without a firm resolve never to know man, there would have been no question, because she could, being known later, have conceived, since she was not sterile. But for this reason was the question reasonable, and about something beyond marvelous for her, because she had most firmly pledged or vowed that she was never to be known by man. And to this understanding did the angel reply: “The Holy Spirit will come upon you etc.” [Luke 1.35]

48. How then was she able to contract matrimony?

I reply: in a matrimonial contract there is a mutual giving of bodies for carnal union only under a condition, namely if it is asked for. Hence those who contract with the resolve at once to vow chastity do truly contract. Now this condition is not prejudicial to a vow of chastity, even when a contract of matrimony is in place, unless the condition were put into effect; therefore, when there is certitude simply that it would never be put into effect, a contract of matrimony does not at all prejudice a vow of chastity. But here there was such assurance, at least by inspiration or perhaps by revelation; for from the fact we have it in Matthew 1.20 that the Angel instructed Joseph saying, “Do not be afraid to take Mary your wife,” much more indubitably must we believe that she, by an angel or immediately by God (before she was espoused to Joseph), was taught with certitude as follows, ‘Do not be afraid to take Joseph for your spouse; for behold the Holy Spirit will give him as both guardian and witness of your virginity, who is to be continent along with you by equal vow, and who is to serve you in many things that are becoming to the guardianship of your virginity’. Nor is there wonder about this probability, since whatever was done in Joseph by the angelic vision was all done by reason of Mary, who was immediate in that ineffable and admirable conception of the only begotten Son of God. And many things are read in her life about how Mary and Joseph came together with each other [Jacob de Varagine, Golden Legends, ch.6, Jerome, Bernard]

49. An example of this can be taken from Boniface VIII Decretals Book Six V tit.12 ch.3, ‘On the signification of words’, where is read compendiously that ‘to concede to others the use, while retaining the lordship, is not useless; indeed such concession is fruitful to the owner, since it is meritorious for things eternal and opportune for the profession of the poor’. So in the issue at hand, to give to another power over one’s body for such act, if it be asked for, having retained however the use for oneself, because it will not be asked for by the other, is not useless.

50. However this example is subject to evasion, because it does not seem that use could be kept back while ownership is handed over as ownership could be kept while use is handed over, because the latter can more be handed over without the former than conversely. But as far as this is concerned, it seems that one without the other can belong to anyone. However, in the issue at hand neither did she retain the use by her own authority, but she was certain that the Holy Spirit would retain the use, because never would the other, to whom that use was due, demand the use.

51. Another example is: if someone had contracted espousals with an oath and had afterwards vowed virginity, it would seem that she should be advised that she should complete the espousals by contracting matrimony in fact and yet should keep her vow, because immediately before consummation of matrimony she should fly off to Religion; therefore it is licit for her to give power over her body to her spouse, by contracting matrimony truly ratified, and yet the intention of never giving the use, and this on her own part, without knowing that the other person would never ask for the use; therefore much more would it be licit to contract matrimony thus, if she knew with certitude that her spouse would never ask for the aforesaid use.

52. Again, an adulteress has power over her husband’s body, because through matrimony was it given to her indissolubly; and yet she does not have, nor can have, as concerns her own part, the use of his body, because of her sin. Therefore, sin can perpetually prohibit use, while the power given in matrimony stands. Therefore, much more does the Holy Spirit have power for this on account of some honorable cause.

II. To the Initial Arguments

53. To the first argument [n.33] I say that the authority must be understood of those who want to marry according to the common law, for whom, of course, it is not settled with certitude that the use consequent to such act would never be asked for.

54. As to the second [n.34] it can be said that that law was given because of the daughters of Salphaad, and this, it is plain from Numbers 36.6-10, so that property not be transferred from tribe to tribe. Therefore, it only obligates those women on whom the inheritance devolved (as the paternal inheritance had devolved on those women, because their father was dead). But Mary was not an heiress, therefore it was licit for her to marry someone of another tribe.

55. It can also be said in another way that Mary was of both tribes, both Judah and Levi: of the tribe of Judah on the part of her father, of the tribe of Levi on the part of her mother. For indeed Joachim was descended from Nathan, the son of David, as is plain from Damascene Orthodox Faith ch.90, where he sets down the generation of the holy Mother of God. But Anna, the mother of Mary, is presumed to have been of the tribe of Levi, so that Elizabeth through her would be Mary’s kinswoman. The first point, too, that Mary was of the tribe and kinship of Judah, can be proved by the fact that the Gospel deduces that Christ was of the tribe of Judah by deducing that Joseph was of that tribe, which would only be the case if Mary were of that tribe, because Christ was not of the tribe of Judah on account of Joseph but on account of Mary. And this reason Jerome touches on at the beginning of Matthew [Commentary on Matthew 1.1.18]

56. To the final argument [n.35] the answer is plain in the solution of the question, the second article [n.48], that this consent lies in the handing over of the mutual power of bodies for procreating offspring, and consequently for use if it be asked for; but there was certitude here that this use would never be asked for by her spouse, namely Joseph.