BETROTHAL. - They are the act by which the parties mutually bind themselves to contract marriage with each other thereafter, that is, the bilateral promise of marriage, which may precede, though without being prescribed, its celebration: "mutua futuri matrimonii promissio".
I. LAW
The institution has its antecedents in the sponsio which, in ancient legal systems, was the promise made to the future husband by the father of the daughter destined for marriage, and which later, with the progress of custom, was transformed into the consent given by the interested party herself to the marriage to be contracted subsequently. In Roman law the content of the sponsalia definitively came to be fixed in the agreement of the betrothed concerning their future union. This agreement did not, however, entail a legal obligation actually to contract marriage, in deference to the principle: in contrahendi nuptiis libera potestas esse debet (C. V, 1, 5, 6); and therefore even the penal clause, that is, the pact by which payment of a penalty was stipulated in the event of non-fulfillment, was declared to be without effect.
In Germanic law, on the other hand, the sponsalia, fixed in a formal contract, the unjustified breach of which entailed patrimonial damage, constituted an essential element of marriage, which was actually contracted as a legal relationship through the sponsalia (desponsatio) and was carried into execution by the consequent traditio sponsae. In canon law the institution gradually assumed a character of its own, distinguishing itself from Roman law as from Germanic law; and this by reacting against the characteristic of Roman sponsalia of not producing a legal obligation to contract marriage, by insisting on the mutual obligation that is the natural effect of the spontaneous promise and by instituting an impediment of public propriety (v.) in relations with the first-degree blood relatives of the betrothed; as well as by distinguishing whether the sponsal consent was directed to a future or a present marriage. Thus a distinction was drawn between the sponsalia per verba de futuro, that is, the marriage promise concerning the future, and the sponsalia per verba de praesenti, that is, the effective conclusion of the bond, when the consent contained the will to give rise thereby forthwith to marriage.
Since, moreover, the sponsalia are an act disposing toward and preparatory to the Sacrament of Matrimony, canon law claimed them for the jurisdiction of the Church, as Pius VI still defined at prop. 58 of the bull Auctorem fidei against the Synod of Pistoia (Denz-U, 11, 1558).
The importance of the sponsalia in the law of the Church was very great in the period prior to Trent; among their most characteristic effects was that of giving rise forthwith to marriage when the copula carnalis took place between the betrothed. This gave rise to the presumption, iuris et de iure, of a full and present matrimonial consent, whereby the sponsalia de futuro were forthwith converted into sponsalia de praesenti, that is, into marriage, without the necessary intervention of any solemnity (v. MATRIMONIO).
Subsequently, as the distinction between the sponsalia and marriage became ever clearer, and the institution of presumed marriage as an effect of the carnal union of the betrothed disappeared, the importance of the sponsalia steadily diminished, until in current law the institution is reduced essentially, by criteria analogous to those accepted in civil legislations, to a moral obligation to contract marriage, limiting the effects of unjustified non-fulfillment to giving an action against the spouse for compensation for damages. Therefore the juridical doctrine concerning the sponsalia, of notable importance in the past, like that concerning the promise of marriage in general, has now lost a great part of its practical interest. This is also due, besides the optional character of the institution, to the rigorous formal discipline established in the matter by current law for the validity of the contract.
The CIC treats it very briefly in can. 1017. In this it is established that the promise of marriage, whether unilateral or bilateral or sponsalitial, is invalid pro utroque foro, if it has not been made by means of a writing signed by the parties and, furthermore, either by the parish priest or by the local Ordinary, or by at least two witnesses. If both parties or even only one of them does not know how or is unable to write, it is required for the validity of the writing that mention be made of this in the same and furthermore another witness must intervene who signs the act together with the parish priest or with the Ordinary or with the two other witnesses mentioned above (can. 1017 §§ 1 and 2).
The rigorous necessity of the written form for the validity of the contract of promise had been introduced as a norm of universal law, as regards the sponsalia, by the decree Ne temere of 2 Aug. 1907. The CIC extended it, as has been seen, also to the unilateral promise. These norms served to eliminate the inconveniences created by the freedom left by earlier law concerning the form of the contract and the related proof (it should be recalled, as regards the form, how authors even relatively recent held, on the basis of the Cap. un. de despons. impub. in 6°, that «sola taciturnitas in filiis signum est sufficiens ad sponsalia de futuro ineunda, si eorum parentes pro eis praesentibus et non contradicentibus palam sponsalia stipulentur »).
The effects of the promise of marriage, whether unilateral or bilateral or sponsalitial, are the following: the obligation for the promisor or promisors to contract marriage at the established time or in the shortest time reasonably possible; the obligation of mutual fidelity; the invalidity of the promise of marriage of the promisors toward third persons.
However, the obligation of the promisors to contract marriage, if it binds them under grave sin, does not in any case give a judicial action to demand the celebration, nor does it give rise to any other canonical effect, save the action (which is mixi fori, that is, of competence both ecclesiastical and civil, Resp. 2-3 June 1918, Commiss. interpret. aut. CIC), in the case of unjustified non-fulfillment of a valid promise, to obtain compensation for damages (can. 1017 § 3). Thus the juridical effects of the sponsalia have been greatly reduced by the CIC, compared with the previous discipline, and they have also ceased to produce the diriment impediment of public propriety (v.) that formerly existed with the first-degree blood relatives of the other party. No other norm, beyond those recalled concerning the form and the effects, does the CIC lay down in regard to the contract of promise of marriage. It therefore passes over in silence what concerns the capacity of the parties and the causes of dissolution of the contract.
To supply this silence, doctrine, as regards the capacity of the parties, is generally accustomed to recall the requirements common to any contract; but opinions differ in the concrete determination of the age at which the parties can validly contract the promise. Some hold that for the validity of the promise the age of seven years suffices, as was affirmed in ancient law, provided the promisors have the use of reason, which is presumed; others think instead that minors cannot contract the promise of marriage, in analogy with other contracts, which, if one takes the notion of minor as laid down by can. 88 § 1, certainly cannot be exact, since if minors are not excluded from marriage itself within certain limits (can. 1067), there would be no reason to accept a more restrictive criterion for the sponsalia; still others, with an opinion that seems more reliable, require in the promisor at least puberty, or the age required for marriage by can. 1067 § 1.
Obviously, it is then necessary that between the promisors there exist no impediments not susceptible of dispensation. The case would seem different in the hypothesis of dispensable impediments and when the parties have attached to the promise the clause subordinating the act to the granting of the dispensation; however, in practice, several times, ante codicem, the sponsalia contracted under such conditions were declared invalid.
As for release from the obligation to fulfill the promise, it may take place for just causes. In the silence of the CIC, doctrine considers as such: mutual consent; the supervening of a diriment impediment that cannot be dispensed; the dispensation of the Pontiff; entry into religion, or into the clerical state, or the pronouncing of perpetual vows by one of the parties. These causes produce ipso facto the dissolution of the contract.
The facts — supervening or discovered — that constitute a substantial modification of the situation existing at the time of the promise, and which, had they been known or foreseen then, would not have led to its being contracted, such as a notable change in bonis corporis, animi, in social or economic condition, etc., or the culpable conduct of the other party (violatio factae promissio), give one of the parties the right to rescind it.
Arnaldo Bertola
II. MORAL CONSIDERATIONS ON THE OBLIGATIONS OF ENGAGED COUPLES
In relations with parents. — In contracting an engagement, children are ordinarily bound to seek the advice of their parents, since it is a decision of such great importance that it can have repercussions on their entire life. Pius XI rightly recommends in the encyclical Casti connubii that children, "when it is a matter of choosing a future spouse, not neglect to ask the prudent advice of their parents and not make little of it, so that with their more mature vision and experience of things they may avoid pernicious errors in the matter and, on the threshold of marriage, draw upon themselves the divine blessing of the Fourth Commandment" (AAS, 22 [1930], p. 386).
There is, however, no true obligation to follow such advice, apart from the respect always owed to parents. On the other hand, parents cannot force their children into marriage, but only induce them to it for reasonable motives, giving suggestions also about the choice of the person. The more severe attitude of certain ancient moralists must be judged in the milieu of the time, when the choice of a spouse depended more on the parents than on the future bride and groom.
2. In mutual relationships
Today the greater freedom granted to those concerned, better responding to the rights of nature, also brings with it the need to form personally as complete an idea as possible of the character and the psychic and moral qualities of the future spouse, and of the possibility of mutual harmony. Hence the need for frequent meetings. This does not, however, authorize doing less than the vigilance of the parents. Frequent contacts can lead to knowledge of manifest qualities or defects, but not of hidden ones. For these there is an obligation to manifest spontaneously those defects or vices that would make the marriage harmful either to the offspring or to the other party or to both, such as venereal diseases, tuberculosis, etc., or under certain considerations useless, for example, sterility, etc. If one does not wish to arrive at the manifestation of such defects, there is an obligation to withdraw from the s.
Defects that make the marriage only less desirable, but not harmful or useless, there is no obligation to manifest: for example, the sins of one's previous life.
In relation to chastity, the betrothed remain in the condition of non-spouses until the moment of the wedding and therefore have duties in common with all celibate men and unmarried women. There exists for the betrothed no right to demand carnal acts of any kind, whether perfect or imperfect (v. LUSSURIA). Only mutual manifestations of affection are permitted to them, in accordance with the Christian customs of the place. Even if involuntary venereal excitements proceed from this, there is no sin, provided they are not consented to. It is understood, however, how growing affection, familiarity, the necessity of being together and these manifestations of affection, although lawful in themselves, constitute an occasion and danger of sin. The necessary precautions are therefore required to render the danger from proximate to remote (v. OCCASIONE DI PECCATO); and above all it is advisable to begin the engagement only when there is the possibility of marrying within a reasonably short time.
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Andrea Gennaro