Dist. 41, Divisio Textus
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/41/q/bon-sent-IV-d41-divisio
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### COMMENTARY ON DISTINCTION XLI.

#### *On the impediment of affinity.*

> Now affinity must be considered.

### DIVISION OF THE TEXT.

Above the Master treated of consanguinity; here he treats of affinity, and this part is divided into two. In the first he determines the degrees of affinity. In the second he treats of the separation of persons joined within the aforesaid degrees, there: *And it must be known that the Church, within the aforesaid degrees, etc.*

The first part has three parts. In the first he determines the degrees of affinity according to common law. In the second he determines according to a special dispensation, there: *But others seem to concede, etc.* In the third, concerning the second kind of affinity, showing that the second kind of affinity impedes matrimony, there: *This too is not to be passed over.*

Likewise the second part has three [parts]. In the first he shows that they ought to be separated. In the second, that they ought not to be separated without testimony by which the nearness [of kin] may be proved; and he determines who can testify to this, there: *If two or three men [attest] the consanguinity, etc.* In the third, [showing] that those joined within the prohibited degrees commit incest, he there determines the kinds of sins concerning the act of the flesh, there: *Here it must be said that fornication is one thing, another [something else], etc.*

### TREATMENT OF THE QUESTIONS.

#### PRELIMINARY NOTES.

For the understanding of the present distinction, in which affinity is treated, one must proceed first by way of *narration*, second by way of *inquiry*. As regards the first, then, first the *difference* is to be noted, and second a *threefold observation*.

First, therefore, it must be attended to that to be an *in-law* (affinis) and to be a *blood-relative* (consanguineus) differ. For *consanguinity* comes from the propagation of the flesh, but *affinity* from carnal intercourse, consanguinity nevertheless being presupposed. Hence *affinity* is defined thus: «Affinity is a nearness of persons arising from carnal union, lacking all parentage», understand: as far as it is of itself; yet it presupposes consanguinity. Hence if someone knows a woman, he is made an in-law to all the blood-relatives of the woman through that intercourse, and conversely [it is] in the woman.

Second, it must be understood that in affinity *kind* (genus) and *degree* (gradus) differ. For *kind* is reckoned according to the multiplication of intercourse, or on the side of the intercourse, but *degree* on the side of the blood and of propagation; on account of which it is said:

> *The wedded woman changes the kind, but the [daughter] begotten the degree.*

Hence in antiquity there were wont to be three *kinds* of affinity. The first arises from consanguinity and the first

carnal intercourse; the second arises from affinity and a second carnal intercourse; the third arises from a second affinity and a third carnal intercourse. An example is: if your brother contracts [marriage] with Mary, she is an in-law to you in the first kind; if, your brother having died, she contracts with another, he will be an in-law to you in the second kind; if, she having died, that man contracts with another woman, that woman would be an in-law to you in the third kind. — But generation or propagation changes the *degree* of affinity, just as [it does that] of consanguinity. — But these three kinds were wont to exist in antiquity; now, however, as will be clear afterward, only the first kind of affinity stands, the others having ceased.

Third, it must be understood that there is a difference whether an in-law woman begets offspring by a *blood-relative* of mine, or by an *outsider*. If by a blood-relative, the offspring begotten is not bound to me by the bond of affinity, but of consanguinity; but if by another, according to modern laws it is reckoned to pertain to me in no way at all. In antiquity, however, as is clear from the decree of Gregory, and is contained in the text, [such a one] was judged an in-law, not in the first kind, but in the second, as is expressly touched upon in the text; and for that time especially this verse is understood:

> *The wedded woman changes the kind, but the [daughter] begotten the degree,*

because a woman [who is] an in-law to me, because she was the wife of my brother, if she marries another, begets for me an in-law in another kind of affinity. But if she begets offspring, then she begets for me an in-law, not in another kind, but in degree; this, however, has been revoked as to both by the new law, *Extra*, On Consanguinity and Affinity, *Non debet*, and in the decretal issued in the general Council both are expressly retracted.

These things having been seen, certain rules are to be noted. — The first is that in the *first kind of affinity* it is not licit to contract [marriage] up to the fourth degree inclusive, as also in consanguinity. But if you wish to know the fourth degree, have recourse to the person through whom the affinity was contracted, and by however many degrees you are distant from her, by that many degrees you are distant from the person to whom you are an in-law; so that if you have contracted with a woman, you are made an in-law to her blood-relatives, and by whatever degree someone is a blood-relative of your wife, by that degree he is an in-law to you; and if he is related to her in the fourth degree, he is related also to you; and just as it would not be licit for your wife to contract in such a degree, so neither for you.

The second observation [is] that from the time affinity has been contracted, even the person through whom it was contracted having died, the affinity nonetheless remains, for the reason that it is a perpetual bond, as consanguinity also is; and therefore [marriage] can by no means be contracted with an in-law person, Cause thirty-five, question ten, *Fraternitatis*.

The third observation is that affinity is contracted not only through matrimony, but also through fornicatory intercourse, as is said [in] *Extra*, On Consanguinity, *Fraternitati tuae, etc.*; but since this is doubtful, therefore the reasoning of this [matter] is left to the inquiry.

These things having been set forth beforehand, so that we may proceed in the manner of inquiry, three things can here be asked.

First it is asked, whether affinity is contracted through every [act of] intercourse.

Second, whether affinity passes from one to another.

Third, whether affinity impedes matrimony.

### SOLE ARTICLE.

#### *On the impediment of affinity.*

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