Dist. 27, Art. 2, Q. 2
by St. Bonaventure
Source text: Public Domain Mark 1.0. English translation/apparatus/encoding: CC BY-NC 4.0, Wroot Press.
https://bonaventure.wrootpress.com/browse/4/d/27/q/bon-sent-IV-d27-a2-q2
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### Question II. *Whether for contracting marriage vocal consent suffices without mental consent.*

Secondly it is asked whether for contracting marriage vocal consent suffices without mental consent. And that it does, seems [to be shown]:

1. *First*, from what the Master says in the text: « If they express in words what nonetheless they do not will in their heart, that obligation of the words by which they consent, saying: *I take thee as husband*, makes the marriage ».

2. Likewise, this is shown *by reasoning* in a similar case, namely in an oath: because, « by whatever craft of words one swears, God takes it in that meaning in which he takes it to whom the oath is sworn », as Isidore says: therefore in marriage likewise it seems that God accepts it in that intention in which the spouse accepts it: therefore if the spouse believes that by those words he is truly consenting, such consent makes the marriage, and so on.

3. Likewise, the Church judges that there is a marriage whenever someone contracts with a woman through words of the present tense in public; and if he says that he did not intend it, nonetheless it decrees that he ought to render what the law of marriage exacts: therefore if the Church judges rightly and does not believe him, since a man bearing testimony against himself ought to be believed; then without the consent of the heart, by the exterior consent alone there is a marriage.

4. Likewise, this is held as a rule in the canon, that « fraud and deceit ought to be a protection to no one »: if therefore this man acts deceitfully in consenting with his mouth, not with his heart; his deceit ought not to be of advantage to him: therefore he is bound just as if he had consented with heart and mouth.

5. Likewise, this seems [to follow] from a *reasoning* leading *to an absurdity*: for if interior consent is required; since no one is or can be certain of it, no one knows whether he has contracted a marriage: therefore whenever he asks for or renders the debt, he exposes himself to peril.

6. Likewise, suppose that someone contracts with two women through words of the present tense, first with one and afterwards with another; he does not know which of them consented interiorly: therefore he does not know which is his true wife; but he is bound to render the debt to his true wife: therefore such a man seems to be in a quandary.

**On the contrary:** 1. Innocent, in a certain decretal, *On Betrothals*, in the fourth book, answering a certain case in this matter, where interior consent was lacking and the man changed his own name, says that it is not a marriage; and the reason which he assigns at the end is contained in these words: « Because deceit was present, and consent, without which the rest cannot perfect the conjugal covenant, was entirely lacking ».

2. Likewise, in another decretal next before that one he says: « Children before the lawful years do not contract through words alone, since they are understood to consent least of all ».

3. Likewise, this seems [to follow] *by reasoning*: because in the other Sacraments, as in baptism, for it to be a Sacrament, the intention of the one dispensing is necessarily required, as was shown above concerning baptism in the case of those who baptize in jest: therefore with equal, indeed with much stronger reason in marriage, since for this Sacrament consent of the greatest freedom is required.

4. Likewise, whenever in a Sacrament there fails that which holds the character of a mean between the reality and the sign, nothing is done — as for instance, if in baptism the character is not imprinted, and in the Eucharist the true body of Christ is not present; but in this Sacrament the consent of minds holds the place of the mean: therefore when it fails, the marriage is void.

5. Likewise, whenever something is constituted out of one thing as material and out of another as formal, whichever fails, the thing itself also fails; but the Sacrament of marriage is such: therefore, since the consent of minds alone is the disposition, and the form of words is the completion, whichever fails, there will be no Sacrament: therefore etc.

### Conclusion.

> *If interior consent is lacking, there is no true marriage in the forum of conscience and the penitential forum; although in the judicial forum, according to what is alleged, it is judged that this is a marriage.*

**I respond:** It must be said that marriage may be spoken of in two ways: either *in the face of the Church*, or *in the forum of conscience*, according to the twofold forum, namely the *judicial* and the *penitential*; and according to this there is a twofold way of judging: because in the *judicial* forum judgment is made according to what is *alleged*, in the *penitential* forum according to *truth* and conscience. If therefore we speak of the *penitential* forum, since this is judgment according to truth and in the sight of God; it must be said that, as our doctors say, it is neither a marriage nor to be judged a marriage. And though the reason is manifold, this nonetheless is the principal one: because in all the Sacraments there is required a voluntary intention of doing what the Church does; since therefore such a person according to the truth did not intend to contract marriage, it was not a Sacrament. — But if we speak in the *judicial* forum, where judgment must be made according to what is *alleged*, and consent can be proved through the exterior words, in which no evident deceit appeared; it is judged a marriage. But nevertheless the Church is deceived, yet the deception is not *against justice*, because there is not there an ignorance of *law*, but of *fact*. Therefore if there be exterior consent without the interior, it is not a marriage according to truth, nor according to the divine judgment, nor according to the forum of conscience; although it may seem to be one and be adjudged one according to the ecclesiastical judgment.

1. To that which is objected first concerning the Master, the answer is plain, since he speaks according to the ecclesiastical forum.

2. To that, then, which is objected concerning the oath, it can similarly be said that according to human judgment he is bound; if however it be said that he is bound according to God, this is on this account, that God reckons such a man worthy of the penalty of perjury, just as also the man who does not fulfill his oath, and this on account of his fraud.

3. To that which is objected concerning the judgment of the Church, it must be said that the Church is deceived; and although it happens that she is led astray *from the truth of the matter*, nevertheless she does not depart *from the truth of justice*, because she must judge according to what is alleged. And *if you object* to me that in the judicial forum a man alleges against himself, and everyone bearing testimony against himself ought to be believed; it must be said that, because the Church has testimony to the contrary, and because also such testimony of certitude is to the prejudice of the matrimonial cause, which is most favorable; therefore such a man's testimony is not heard, yet he is believed in the forum of penance or of conscience, where a man is believed when confessing his own baseness, because nothing is to be said there except baseness.

4. To that which is objected, that fraud ought not to be a protection to anyone; it must be said that there are two things there, namely the *deceitfulness of the word* or falsity and the true *lack of consent*. The *deceitfulness of the word* is no protection, nay it is a hindrance in every forum, whether judicial or penitential, because in either it is either punished or reckoned as an obligation. But the true *lack* is this, which avails in the sight of God, so that there is no true marriage.

5. 6. To that, that no one knows whether interior consent is given; it must be said that, because concerning anyone the good is to be presumed, unless manifest deceit appear; concerning anyone it is to be presumed that he consents in his heart if he expresses it with his mouth, nor is anything else to be believed. And if it be not so, ignorance of fact in the other person, who is unaware, excuses the intercourse — just as Jacob is excused in this, that he knew Leah, because he believed he was knowing his own [wife] — nor does he expose himself to peril nor to a quandary. For since the first woman ought to be believed to have consented, therefore he must adhere to her and the debt must be rendered. And thus the whole is plain.

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