SPONSALS. — These are the act by which the parties mutually bind themselves to contract marriage with each other in the future, that is, the bilateral promise of marriage, which may precede the celebration without being prescribed: *mutua futuri matrimonii promissio*.
I. LAW
The institution has its precedents in the *sponsio* which, in ancient rights, 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 in the future. In Roman law the content of the *sponsalia* was definitively fixed in the agreement of the betrothed on their future union. This agreement, however, did not impose a legal obligation to actually contract the marriage, in deference to the principle: *in contrahendis nuptiis libera potestas esse debet* (C. V., I, 5, 6); and therefore the penal clause, that is, the pact by which the payment of a penalty in case of non-performance was stipulated, was also declared ineffective.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 executed with the consequent *traditio sponsae*. In canon law the institution gradually assumed its own character, distinguishing itself from both Roman and Germanic law; and this was done by reacting against the characteristic of Roman *sponsalia* of not producing a legal obligation to contract marriage, by insisting on the mutual obligation which is the natural effect of the spontaneous promise and by instituting an impediment of public honesty (*v.* NAME) in relations with the first-degree blood relatives of the betrothed; as well as by distinguishing whether the betrothal consent was directed to a future or present marriage. Thus a distinction was made between *sponsalia per verba de futuro*, that is, the matrimonial promise concerning the future, and *sponsalia per verba de praesenti*, that is, the actual conclusion of the bond, when the consent contained the will to give life to the marriage forthwith.
Given then that the *sponsalia* are a disposing and preparatory act to the Sacrament of Matrimony, canon law claimed them for the jurisdiction of the Church, as Pius VI also defined in prop. 58 of the bull *Auctorem fidei* against the Synod of Pistoia (Denz-U, 11, 1558).
The importance of the *sponsalia* in Church law was very great in the period before Trent; among their most characteristic effects was that of giving rise forthwith to marriage when carnal intercourse took place between the betrothed. This gave rise to a presumption, *iuris et de iure*, of full and actual matrimonial consent, so that *sponsalia de futuro* were forthwith converted into *sponsalia de praesenti*, that is, into marriage, without the necessary intervention of any solemnity (*V. MATRIMONIO*).
Later, 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 declined, until in current law the institution is essentially reduced, in criteria analogous to those adopted in civil legislation, to a moral obligation to contract marriage, limiting the effects of unjustified non-performance to an action against the betrothed for compensation of damages. Hence the legal doctrine relating to the *sponsalia*, which was of considerable importance in the past, like that relating to the promise of marriage in general, has now lost much of its practical interest. This is also due, apart from the optional character of the institution, to the strict formal discipline established in this matter by current law for the validity of the contract.
The CIC deals with it very briefly in can. 1017. In this it is laid down that the promise of marriage, whether unilateral, bilateral or betrothal, is invalid for both forums if it has not been made in writing signed by the parties and moreover either by the parish priest or the Ordinary of the place, or by at least two witnesses. If either or both of the parties cannot write, the validity of the writing requires that mention be made of this in the document and moreover that another witness intervene who signs the act together with the parish priest or the Ordinary or the two other witnesses mentioned above (can. 1017 §§ 1 and 2).
The strict necessity of the written form for the validity of the contract of promise was 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 unilateral promise. These norms served to eliminate the inconveniences created by the freedom left by earlier law regarding the form of the contract and the related proof (it is to be recalled, as regards form, how even relatively recent authors, on the basis of Cap. un. *de despons. impub.* in 6°, held 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, bilateral or betrothal, are as follows: the obligation for the promisor or promisors to contract marriage at the time agreed or in the shortest reasonable time; the obligation of mutual fidelity; the invalidity of the promise of marriage of the promisors to third parties.
However, the obligation of the promisors to contract marriage, while binding them under grave sin, does not in any case give rise to a judicial action to demand the celebration, nor does it give rise to any other canonical effect, except the action (which is *mixti fori*, that is, of both ecclesiastical and civil competence, Resp. 2-3 June 1918, *Commiss. interpret. aut. CIC*), in the case of unjustified non-performance of a valid promise, to obtain compensation for damages (can. 1017 § 3). Thus the legal effects of the *sponsalia* have been greatly reduced by the CIC compared with earlier discipline, and they have also ceased to produce the impediment of public honesty (*v.* NAME) which previously had such extensive effects on the first-degree blood relatives of the other party. No other norm, beyond those recalled regarding form and effects, is laid down by the CIC concerning the contract of promise of marriage. It therefore passes over in silence what concerns the capacity of the parties and the causes for dissolution of the contract.
To supply this silence, doctrine, as regards the capacity of the parties, usually in general appeals to the common requirements of 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 that 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 the notion of minor is taken as laid down by can. 88 § 1, cannot certainly be exact, since if minors are not excluded from contracting marriage within certain limits (can. 1067), there would be no reason to adopt a more restrictive criterion for the *sponsalia*; others again, with an opinion which seems more reliable, require in the promisor at least puberty, or the age required for marriage by can. 1067 § 1.
Obviously, it is necessary that among those making a promise there should not be any impediments that cannot be dispensed. The case would seem different in the hypothesis of dispensable impediments and when the parties have expressly made the act dependent on the granting of a dispensation; however, in practice, many times before the Code, such contracts were declared invalid under these conditions.
As for the dissolution of the obligation to fulfill the promise, this can take place for just causes. In the absence of provisions in the CIC, doctrine considers the following as such: mutual consent; the subsequent occurrence of a diriment impediment that cannot be dispensed; the dispensation of the Pope; the entry into religious life, or into the clerical state, or the pronouncement of perpetual vows by one of the parties. These causes produce the dissolution of the contract ipso facto.
The following give one party the right to rescind it: events—whether subsequent or discovered—that constitute a substantial change in the situation existing at the time of the promise, and which, if known or foreseen then, would have prevented the contract from being made, such as a notable change in the goods of the body, mind, social or economic condition, etc., or the culpable conduct of the other party (violation of the promise made). Arnaldo Bertola
II. MORAL CONSIDERATIONS ON THE OBLIGATIONS OF THE ENGAGED
1. In relations with parents
In contracting marriage, children are ordinarily bound to seek the advice of their parents, since this is a decision of such great importance that it can have repercussions on their entire life. Justly, Pius XI in the encyclical *Casti connubii* exhorts children “that when it comes to choosing a future spouse, they should not neglect to seek the prudent advice of their parents nor hold it in little esteem, so that with their more mature vision and experience they may avoid pernicious errors in this matter and, on the verge of marriage, draw upon themselves the divine blessing of the Fourth Commandment” (AAS, 22 [1930], p. 586).There is, however, no strict obligation to follow such advice, apart from the respect always owed to parents. On the other hand, parents cannot compel their children to marry, but can only induce them to do so for reasonable motives, offering suggestions even regarding the choice of the person. The more severe attitude of some ancient moralists must be judged in the context of their time, when the choice of a spouse depended more on parents than on the future spouses themselves.
2. In mutual relations
Today, the greater freedom granted to those involved, which better corresponds to natural rights, also entails the need to form as complete a personal understanding as possible of the character and both psychic and moral qualities of the future spouse, and of the possibility of mutual harmony. Hence the necessity of frequent meetings. This, however, does not diminish the need for parental vigilance. Frequent contact can lead to knowledge of manifest qualities or defects, but not of hidden ones. For these, there is an obligation to spontaneously disclose those defects or vices that would render marriage harmful either to the offspring or to the other party or to both, such as venereal disease, tuberculosis, etc., or, under certain aspects, useless, e.g., sterility, etc. If one does not wish to disclose such defects, there is an obligation to withdraw from the engagement.Defects that render marriage merely less desirable but not harmful or useless do not need to be disclosed: e.g., sins from a previous life.
With regard to chastity, the engaged remain in the condition of the unmarried until the time of the wedding and thus share the common duties of all celibates and unmarried persons. The engaged have no right to demand any kind of carnal acts, whether complete or incomplete (v. Lust). They are only permitted mutual expressions of affection in accordance with the Christian customs of the place. Even if involuntary venereal stirrings result from this, there is no sin, provided they are not indulged. It is understood, however, that growing affection, familiarity, the necessity of being together, and these expressions of affection, even if licit in themselves, constitute an occasion and danger of sin. Therefore, the necessary precautions must be taken to render the danger remote rather than proximate (v. Occasion of sin); and above all, it is advisable to begin an engagement only when there is the possibility of marrying within a reasonably short time.