Dist. 36, Art. 2, 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/36/q/bon-sent-IV-d36-a2-q3
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### Question III. *Whether betrothals contracted after the seventh year can be dissolved by mutual consent.*

Third, it is asked whether betrothals contracted after the seventh year can be dissolved by mutual consent. And that they cannot, it seems:

1. Because, as the age of those past puberty stands to the contracting of matrimony, so the age of those under puberty stands to the contracting of betrothals; but those past puberty who contract matrimony cannot dissolve it: therefore etc.

2. Likewise, just as the Lord ordained that matrimony not be dissolved, so He commanded not to perjure oneself and not to break faith: therefore if betrothals have been contracted through an interposed oath, it seems that the parties are necessarily bound to consummate.

3. Likewise, concerning Betrothals and matrimony it is said in the second decretal that "this can be tolerated": if therefore the permission is not of a good, but of an evil, it seems that this is evil.

4. Likewise, in the same [book], in the title, the decretal *Commissum* [holds] that, because he swore to take a certain woman to wife, on account of the oath, if he wishes to enter religion, he ought first to contract; but if it were permitted to anyone to pass over,

it would be permitted most of all to such a one: therefore if it is not permitted to him, much less to anyone else.

**On the contrary:** 1. If I promise to give you a hundred [coins] provided you release me, I am released and do not perjure myself if I do not give: therefore by parity of reasoning in the case at hand.

2. Likewise, if two swear to go together to Rome and afterwards repent and mutually release each other, they are released: therefore etc.

It is asked, therefore, in what manner betrothals are contracted, and by what modes they are dissolved, and thirdly, what is the effect of betrothals.

> **Conclusion.** Betrothals, even sworn ones, can be dissolved in many ways, and also by mutual and voluntary consent, when a reasonable cause is added.

**I respond:** It must be said that betrothals can be dissolved in many ways, as will now become clear; and one among those modes is when the parties mutually release each other. But concerning this mode some say, as Huguccio, that this mode is not *licit*, because it is not done without sin on account of the fidelity of the oath; but it is only *permitted*, because coerced marriages have bad outcomes, and he says this on account of that which the decretal says, "that it can be tolerated in patience." Others say that, since a binding oath never binds except to the will of the one to whom it is made, it seems that, after the manner of those who swear to go together to some place — as the decretal itself says — they can mutually release each other; and if it comes about from a cause reasonable in some way, they say it is licit, although it is of lesser perfection, as the decretal sounds; and this position seems more probable, whatever the *Apparatus* may say.

*To 1.* To that which is objected concerning matrimony, it must be said that it is not similar, on account of the signification.

*To 2.* To that which is objected concerning the oath, it must be said that it does not bind except under a condition.

To that which is asked, in what manner they are *contracted*; it must be said, in four modes: by a simple promise, by the giving of faith or the interposition of an oath, by the giving of betrothal-pledges, by the earnest-pledge of a ring.

To that which is asked, by what modes they are *dissolved*; it must be said, in eight cases. The first is, a solemn vow supervening, as if one of the betrothed entered religion. — The second, matrimony supervening, as if he contract with some other woman through words of the present [tense] after the betrothal. — The third, affinity supervening, as if he knew a blood-relation of the betrothed woman, and this can be proved by the deed or by report. — The fourth, an incurable infirmity supervening, such as leprosy, or the mutilation of some member. — The fifth, one party absenting himself, as when he goes into a distant region without leave. — The sixth, one party fornicating, as when one knows a woman other than his betrothed. — The seventh, both being willing, as when both consent. — The eighth is, the lesser party petitioning, as if betrothals have been contracted between two persons, of whom one is of the due age, the other is a minor.

By the first two modes betrothals are dissolved by the fact itself, by the others through the judgment of the Church.

To that which is asked, what is the *effect* of betrothals; it must be said that it is twofold: one is of obligation to matrimony, to which they are bound by the promise which is in betrothals — whence they are called from *spondeo, spondes* ("I pledge, you pledge") — whence they are to be compelled to contract matrimony, unless there be fear of wife-murder, or one of the said cases intervene. — The other effect is the justice of public honesty, which is, that no one of the blood-relations near to the betrothed man can contract with the betrothed woman, or conversely.

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