SPONSALI. — This is the act by which the parties mutually bind themselves to contract marriage with each other at a later time, that is, the bilateral promise of marriage, which may precede its celebration, although it is not required to do so: «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 intended for marriage, and which later, as customs developed, was transformed into the consent given by the woman herself to the marriage to be contracted thereafter. In Roman law, the substance of the s. came definitively to be established in the agreement of the betrothed concerning their future union. This agreement did not, however, entail a legal obligation actually to contract marriage, in homage to the principle: in contrahendi nuptiis libera potestas esse debet (C. V, 1, 5, 6); consequently, even the penal clause—that is, the pact stipulating the payment of a penalty in the event of non-fulfilment—was declared devoid of effect.In Germanic law, by contrast, the s., established in a formal contract whose unjustified breach entailed pecuniary loss, constituted an essential element of marriage, which was effectively contracted as a legal relationship through the s. (desponsatio) and was consummated through the consequent traditio sponsae. In canon law the institution gradually assumed its own character, distinguishing itself both from Roman and from Germanic law. This occurred through a reaction against the characteristic feature of Roman s.—their failure to produce a legal obligation to contract marriage—by insisting on the mutual obligation that is the natural effect of a spontaneous promise, and by establishing an impediment of public propriety (v.) in relations with the first-degree blood relatives of the betrothed; as well as by distinguishing whether the sponsalicio consent was directed toward a future or a present marriage. A distinction was thus made 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 actual conclusion of the bond, when the consent contained the will thereby and immediately to bring marriage into existence.
Since the s. are an act disposing toward and preparing for the Sacrament of Matrimony, canon law claimed them for the jurisdiction of the Church, as Pius VI still defined them in proposition 58 of the bull Auctorem fidei against the Synod of Pistoia (Denz-U, 11, 1558).
The importance of the s. in the law of the Church was very great in the period preceding Trent; among their most characteristic effects was that of immediately bringing marriage into existence when copula carnalis took place between the betrothed. This gave rise to a presumption, iuris et de iure, of full and present matrimonial consent, whereby the sponsalia de futuro were immediately converted into sponsalia de praesenti, that is, into marriage, without the necessary intervention of any formality (v. MATRIMONIO).
Subsequently, as the distinction between the s. and marriage became ever clearer, and the institution of presumed marriage as an effect of the betrothed persons’ carnal union disappeared, the importance of the s. continually declined, until, under current law, the institution was essentially reduced, according to criteria analogous to those adopted in civil legislation, to a moral obligation to contract marriage, the effects of unjustified non-fulfilment being limited to an action against the fiancé for compensation for damages. Consequently, the legal doctrine concerning the s., which was of considerable importance in the past, like that concerning the promise of marriage in general, has now lost much of its practical interest. This is due not only to the optional character of the institution, but also to the rigorous formal discipline established by current law concerning the validity of the contract.
The CIC deals with it very briefly in can. 1017. It establishes that a promise of marriage, whether unilateral or bilateral, or sponsalicio, is invalid pro utroque foro unless it has been made in a document signed by the parties and, in addition, either by the parish priest or by the Ordinary of the place, or by at least two witnesses. If both parties, or even only one of them, do not know how or are unable to write, the validity of the document requires that this be mentioned in the document itself and, in addition, that another witness participate and sign the act together with the parish priest or the Ordinary, or with the two other witnesses mentioned above (can. 1017 §§ 1 and 2).
The strict necessity of the written form for the validity of the promise contract had been introduced as a norm of universal law, with regard to the s., by the decree Ne temere of 2 August 1907. The CIC extended it, as has been seen, also to the unilateral promise. These norms served to eliminate the disadvantages created by the freedom left by the earlier law concerning the form of the contract and its evidentiary proof. With regard to form, it should be recalled that even relatively recent authors held, on the basis of 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 a promise of marriage, whether unilateral or bilateral, or sponsalicio, are as follows: the obligation of the promisor or promisors to contract marriage at the appointed time or within the shortest reasonably possible time; the obligation of mutual fidelity; and the invalidity of the promisors’ promise of marriage to third parties.
Nevertheless, although the obligation of the promisors to contract marriage binds them under pain of grave sin, it in no case gives rise to a judicial action seeking the celebration of the marriage, nor does it produce any other canonical effect, except for the action—which is mixi fori, that is, within the competence of both the ecclesiastical and civil courts, Resp. 2–3 June 1918, Commiss. interpret. aut. CIC—in the event of unjustified non-fulfilment of a valid promise, to obtain compensation for damages (can. 1017 § 3). Thus the CIC greatly reduced, in comparison with the previous discipline, the juridical effects of the s., which also ceased to produce the diriment impediment of public propriety (v.) that previously existed with regard to the first-degree blood relatives of the other party. The CIC lays down no other norm concerning the promise-of-marriage contract beyond those recalled regarding its form and effects. It therefore says nothing about the capacity of the parties or the causes for dissolution of the contract.
To remedy this silence, doctrine generally refers, regarding the capacity of the parties, to the requirements common to every contract; but opinions differ as to the specific age at which the parties may validly enter into a promise. Some hold that, for the validity of the promise, the age of seven years is sufficient, as was maintained in ancient law, provided that the promisors possess the use of reason, which is presumed. Others, on the contrary, think that minors cannot enter into a promise of marriage, by analogy with other contracts. If, however, the notion of a minor is understood as set forth in can. 88 § 1, this certainly cannot be correct, since, if minors are not excluded from marriage itself within certain limits (can. 1067), there would be no reason to adopt a more restrictive criterion for the s. Still others, in an opinion that appears more reliable, require the promisor to have at least reached puberty, or the age required for marriage by can. 1067 § 1.
Obviously, it is also necessary that no impediments incapable of dispensation exist between the promisors. The case would seem to be different in the event of dispensable impediments, when the parties have attached to the promise a clause making the act conditional upon the granting of the dispensation; yet in practice, on several occasions, ante codicem, s. contracted under such conditions were declared invalid.
As regards release from the obligation to fulfill the promise, this may take place for just causes. In the silence of the CIC, doctrine considers the following as such: mutual consent; the occurrence of a diriment impediment from which dispensation cannot be granted; dispensation by the Pontiff; entry into religious life, or the clerical state, or the taking of perpetual vows by one of the parties. These causes produce, ipso facto, the dissolution of the contract.
The following circumstances—arising or newly discovered—which constitute a substantial modification of the situation existing at the time of the promise, and which, had they then been known or foreseen, would have prevented the promise from being made, give one of the parties the right to rescind it: such as a considerable change in bonis corporis, animi, in social or economic status, etc., or the culpable conduct of the other party (violatio factae promissio). Arnaldo Bertola
II. MORAL CONSIDERATIONS REGARDING THE OBLIGATIONS OF THE ENGAGED
In relations with parents. — In entering into an engagement, children are ordinarily obliged to seek their parents’ advice, since this concerns a decision of such far-reaching importance that it may have repercussions throughout their entire lives. Pius XI therefore rightly recommends in the encyclical Casti connubii that children, «when it is a question of choosing a future spouse, should not neglect to seek the prudent advice of their parents or make little account of it, so that, with their more mature view and experience of things, they may avoid pernicious errors in this matter and, on the eve of marriage, draw upon themselves the divine blessing of the Fourth Commandment» (AAS, 22 [1930], p. 386).There is, however, no genuine 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 may only induce them to do so for reasonable motives, also offering suggestions concerning the choice of the person. The more severe attitude of certain ancient moralists must be judged
Difetti, che rendano il matrimonio solo meno desiderabile, ma non nocivo o inutile, non vi è obbligo di manifestarli: ad es., i peccati della vita precedente.
In rapporto alla castità i fidanzati rimangono nella condizione di non-sposati fino al momento delle nozze e quindi hanno comuni doveri con tutti i celibi e nubili. Non esiste per i fidanzati nessun diritto ad esigere atti carnali di qualunque specie, né perfetti né imperfetti (v. LUSSURIA). Sono solo loro consentite le mutue manifestazioni di affetto in base alle consuetudini cristiane del luogo. Anche se da ciò provengano commozioni veneree involontarie, non vi è peccato, purché non siano acconsentite. Si comprende però come l'affetto crescente, la familiarità, la necessità di trovarsi insieme e queste manifestazioni di affetto, sia pur lecite in sé, costituiscono una occasione e pericolo di peccato. Occorrono perciò le necessarie cautele per rendere il pericolo da prossimo a remoto (v. OCCASIONE DI PECCATO); e soprattutto è consigliabile incominciare il fidanzamento soltanto quando vi sia la possibilità di sposarsi entro un tempo ragionevolmente breve.