Dist. 28, Art. 1, Q. 3
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/28/q/bon-sent-IV-d28-a1-q3
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### Question III. *Whether conditioned consent makes a marriage.*

Thirdly it is asked, whether conditioned consent makes a marriage, as: "I take you as mine, if you shall have given me a hundred pounds." And that it does, it seems:

1. By a like case: because a conditioned vow is [still] a vow: therefore it seems likewise that conditioned consent makes a marriage.

2. Likewise, someone consenting in the hope of having some money contracts a marriage: therefore if such a consent is competent to marriage, then its expression is not repugnant [to marriage]: therefore if he should say: "I consent, if you shall have given [it]," it is plain, etc.

3. Likewise, when someone promises something under a condition; if the condition stands, the obligation and the promise stand; but it is possible for the condition to stand: therefore also the consent and the obligation and the marriage [stand].

**On the contrary:**

1. He who promises simply for the future obligates himself more than he who [promises] under a condition — for the first is an obligation simply, but the second is not — but consent expressed by words of the future does not make marriage: therefore, etc.

2. Likewise, after this consent, either she is his wife or not. If she is his wife; but it is possible for the condition not to stand, and he had not consented except under the condition: therefore she is his wife without consent. But she is not his wife: therefore such a consent does not effect a marriage.

3. Likewise, marriage is a bond in no way dissoluble; but every obligation or pact made under a condition is dissoluble: therefore, etc.

> **Conclusion.** Conditioned consent expressed by words of the future produces only a betrothal, but it is of no force at all if the condition is by way of a penalty, or is a stipulation of the contract that is dishonorable and against the substance of marriage; but if it is expressed by words of the present, even then it does not make marriage, if the condition is of a future contingent thing.

**I respond:** It must be said that conditioned consent, if it is made by words of the future, is to be judged to hold in the same way as consent for the future [simply]: it does not make marriage, but a betrothal or espousal; so too neither does such a consent under a condition.

It must be noted, however, that a condition is attached either by way of a penalty, or as a stipulation of the contract. If it is by way of a penalty, it is of no force, on the ground that marriages ought to be free. Hence if someone should propose: "I promise to contract with you under penalty of a hundred marks, or if I do not contract, I will give you a hundred [marks]"; even if he does not contract, he neither owes nor is bound to that penalty. — But if it is attached as a stipulation of the contract or of the consent, a distinction must be made: for either the condition is honorable, or dishonorable. If it is honorable, while the condition stands the betrothal stands; when it does not stand, [the betrothal] does not stand, as if someone should say: "I will contract with you, if it should please my father," or "if you should be willing to convert to the faith." — But if it is dishonorable, it is twofold: either it is against the substance of marriage, or not. If it is against the substance of marriage, then there is no obligation at all, as if he should say: "I will contract with you, if you procure poisons of sterility," or something of this kind. But if it is dishonorable and not against the substance of marriage, as if it should be said: "I will contract with you if you shall have committed theft, or if you shall have offended God," such a condition is to be held as not attached [at all]. And all this is proved through those things which are said in the Decretals, in the fourth book, *On Conditions Attached in a Betrothal*.

But if the consent is made by words of the present; either the condition is past, or present, or future. If the condition is past, as: "I take you as mine, if your father is dead"; or present, as: "I take you as mine, if you are a virgin"; while the condition stands, the marriage stands. But if the condition is of the future; either of a necessary future, or of a contingent future. If of a necessary future, as: "I take you as mine if the sun shall rise tomorrow," then it is marriage. But if the condition is contingent, I say that it is not marriage, because the consent hangs upon the future, just as the condition does; and therefore it must be judged then, just as

concerning the future, it is not marriage either, unless carnal intercourse should follow, because then it is understood that [the marriage] has receded from the condition attached.

To that, then, which is objected as to the second part, that marriage does not stand through conditioned consent; it must be said that this is true where the condition is of a future contingent thing, because then the consent hangs upon the future.

**To the arguments for the affirmative side:**

*To 1.* To that which is objected, that it holds simply, by the like case of the vow; it must be said that it is not alike: because a vow is a pure obligation, but marriage is a conjoining; and there is no conjoining except through the present, whereas an obligation may well be through the future.

*To 2.* To that which is objected, that consent from the hope of money makes marriage; this is true, because a simple [consent] can be both actual and unconditional; but when it is expressed under a condition, it is not expressed as simple, nor as unconditional, nor as present; and therefore it is not alike.

*To 3.* To the other it must be said that marriage says more than an obligation. Hence I say that it does not follow: "this man is obligated to this woman, to take her [in marriage]: therefore he is her husband"; just as it does not follow: "he obligated himself to paying: therefore he has paid." Hence marriage is not only an obligation, but rather the union of an indissoluble bond itself.

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