Dist. 36, Art. 1, 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/36/q/bon-sent-IV-d36-a1-q2
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### Question II. *Whether the condition of servitude with error impedes marriage.*

Secondly it is asked whether the condition of servitude with error impedes marriage. And that it does not, it seems:

1. Because the condition of servitude is more tolerable in a spouse than the quality of leprosy: therefore if such an error of quality does not impede, much less does an error of condition.

2. Likewise, an error of fortune, as the laws say, does not impede marriage; but it is possible that servitude be *from fortune*, as someone is captured *by chance* in war and made a slave, or on account of poverty, which is *from fortune* according to the usage of speech, sells himself into slavery: therefore etc.

3. Likewise, a slave, as far as concerns himself, is a legitimate person for contracting; but the condition of servitude does not remove full consent, because, if she knows his substance and qualities and accidents, such knowledge suffices for this, that she consent: therefore there is neither illegitimacy of person nor defect of consent there: therefore the marriage is full.

4. Likewise, the condition of spiritual servitude is worse than corporeal; but an error of spiritual condition does not impede marriage: therefore etc.

**On the contrary:** 1. The laws say, Cause twenty-nine, question two, and the decretal, On the Marriage of Slaves, that an error of condition impedes a marriage from being contracted and dissolves one already contracted.

2. Likewise, it seems *by reason*: because that is an impediment of marriage which is against the good of marriage; but servitude is against the *good of offspring*, because, if a free man contracts with a bondwoman, the children are not free, but slaves, because, as the laws say, «the offspring follows the womb».

3. Likewise, it is against the *good of fidelity*, because a master can sell the wife to foreigners, the husband himself being unwilling, especially to unbelievers, where, if he follows her, danger to his faith threatens him; but if he does not follow, he cannot ask for the debt nor have it.

4. Likewise, no one ought to be punished without fault, himself unwilling and ignorant; but it is a reproach and disgrace to someone that he be a slave, or even subject to a servile person: therefore where an error of condition intervenes, there is no marriage.

It is asked therefore why and when an error of condition impedes marriage.

> **Conclusion.** *The condition of servitude with error dissolves marriage in that case when free persons contract with slaves.*

**I respond:** It must be said that an error of condition can be of three kinds: either of an equal, as when a male slave contracts with a female slave; or of a better, as when a male slave [contracts] with a free woman; or of a worse, as when a free man [contracts] with a bondwoman. In the first two cases the error does not impede marriage, but in the third it does impede marriage and dissolves it, unless after knowledge of the condition one has consented by word or by deed.

Now the reason for this is on account of two things, namely on account of favor for *liberty* and for *the matrimonial cause*, which is most favorable. Hence, because he who contracts with a bondwoman in some manner loses liberty—which is, as is said in the civil law, «an inestimable good», and which no one loses except unwillingly, since even one willing cannot recover it once lost—therefore in favor of liberty the law is kept for the one erring, so that, if he wills, he may forsake the bondwoman. — And *moreover*, servitude is against the *good of offspring* and *of fidelity*; and because the laws favor marriage, therefore they presume that one erring as to condition does not consent, and therefore that there is no marriage either. And therefore, that it impedes, this the constitution of the Church brings about, coming from the aforesaid reason.

1. To that which is objected concerning quality, it must be said that it is not alike: because no quality is so against the goods of marriage as servitude; nor does any so oppose the goods of marriage as servitude does, among those things which do not impede.

2. To the other it must be said that liberty is not counted among the goods of fortune, but rather outweighs all the others.

3. To that which is objected, that neither error nor servitude impedes; it must be said that *servitude in itself*

does not impede when it is known, because anyone, when he wills, can be made a slave; but *unknown* it does impede, because one ought not to be punished unwillingly.

4. To that which is objected last concerning spiritual servitude, it must be said that although it be worse for the slave himself, nevertheless it does not so redound upon another, namely upon the offspring, or even upon the wife; and moreover it can more easily be cast off.

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