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I. Lack of authenticity: deceit or fraud in consent

            In the case of simulation, the lack of authenticity in marital self-giving is evident. The person going through the ceremony does not give himself conjugally. There is a constitutional lack of integrity in the marital donation made to the other.

            The new Code admits another type of invalidating lack of authenticity in marital self-giving. It is expressed in c. 1098, one of the new canons bearing a distinctively personalist character. "A person contracts invalidly who enters marriage deceived by fraud, perpetrated to obtain consent, concerning some quality of the other party which of its very nature can seriously disturb the partnership of conjugal life" [1]". Here the lack of authenticity does not lie in the impaired or vitiated nature of the marital bond, which one in fact consents to in its integrity, but in the radical and studied falseness of the image offered of one party's character or personality, through deliberate deception aimed at obtaining the other's consent.

            The simulator under c. 1101 seeks to avoid a true marriage; the person practicing fraud under c. 1098, seeks to bring it about. In the case of "dolus" then, as distinct from simulation, a person does intend to accept the essential elements and properties of matrimony. However, precisely so as to bring about the marriage, a conjugal self not corresponding to reality (in some serious respect) is deliberately projected to the other party.

            There have been few rotal cases so far on this new grounds. At this stage in fact it can be said to remain rather unexplored territory. Since I see it as a canon "with a future", let me offer some rather tentative ideas in its regard (cf. c. Burke: Oct. 25, 1990: R.R. Dec., vol. 82, pp. 722-733).

            As regards the "ratio iustitiae" or juridic justification for the nullity indicated by the canon, some see it in "the lack of real agreement between the wills of the two contracting parties" (cf. Jusdado, M.A.: El Dolo en el Matrimono Canónico, Bosch, Barcelona 1988, p. 268). This is perhaps too close to a merely contractualist analysis. To my mind, the "ratio iuris" is better placed in the "iniuria", the injustice, done to one of the parties: the violation of the strict right - possessed by each of the partners to the married covenant, in virtue of the equal dignity they share - that the conjugal gift of the other be made in truth and in fact. The violation of this right places the person deceived in a position where his consent is fraudulently directed to an object substantially different to the one he thought he was choosing; and so the freedom and authenticity of his consent is vitiated.

            Thus a sentence coram Serrano acutely remarks that the main reason why deceit invalidates is that it perturbs "the very substance of consent, emptying it not only of the true mutual gift and acceptance of the spouses by means of an adequate intentional image of each other, but also of the truth which corresponds to consent so that it be really such" [2].

            The provision of canon 1098 flows naturally from the new personalist idea of self-giving placed at the heart of matrimonial consent. One gives oneself as one is; and one also in particular accepts the other, as he or she is. It is clearly contrary to the dignity and freedom of this interpersonal commitment, if one person is deceitfully induced to accept a falsified image of the other. The unreserved nature of the marital commitment, in both giving and acceptance, calls for fundamental sincerity in this spousal interpersonal exchange.

            Certainly, no one has a right to find a husband or wife free from defects. But everyone has a right to a marital consent given by the other which represents a sincere and unfeigned gift of that person as he or she actually is (cf. coram Burke, Nov. 26, 1992, no. 17: RRD, vol. 84, p. 585; Studia canonica 27 (1993), p. 502). This is a point we will touch on again when we return to the "bonum coniugum".

            This new canon appears to me to be of very great interest. It covers cases not properly provided for hitherto, and lessens the danger of superficial or unwarranted application of other canonical grounds of nullity. As an expression of a sound juridic personalism, it permits a more accurate analysis of (and offers a more just remedy for) certain questions connected with condition and error, as we will consider in the next chapter.

            Nevertheless, c. 1098 (also in view of its newness) requires careful handling. Carelessly or abusively used, it could lead to injustice and to the discredit of canon law in its purpose of protecting the rights of the People of God. The tenor of the canon therefore needs to be carefully observed.

            In the first place, a certain reticence should not be mistaken for invalidating deceit. One can certainly maintain that the ideal relationship between spouses is one of total mutual openness, although some marriage counsellors would question whether this is so in every single situation. The spousal right to knowledge of one's partner, or the mutual obligation of self-revelation, should not however be absolutized. There is no positive obligation to reveal every aspect of one's life and character; there is a negative obligation - at least in relation to bringing about consent - not to conceal any major defect that "of its very nature" (suapte natura) can seriously disturb the conjugal partnership. This seems clearly to have been the mind of the Commission drafting the new Code. At one stage in its work, the concept of "dolus" was extended, so that the schema read "... who enters marriage deceived by fraud, even if perpetrated through reticence..." [3]. This was dropped in the very last session, apparently from a feeling that simple reticence is not sufficient grounds on which to invoke nullity. The Commission seems to have accepted the argument of one of the Consultors: "reticence corresponds to a personal right, and no one is bound to betray himself" ("reticentia pertinet ad ius personae et nemo tenetur tradere semetipsum": ibid). While the first point of this argument seems acceptable, the second phrase arouses some slight perplexity ("betray oneself"?). Basically however I feel the main point is properly made: that the law cannot regulate every aspect of the married consortium, or attribute juridic value to minor characterial defects in the spouses (e.g. the fact that one of them is of a more timorous spirit).

            As regards the scope of the fraud in question, it is explicitly said that it must have been "perpetrated in order to obtain consent". It must therefore be clearly proved that the purpose behind the deceit was precisely the eliciting of marriage consent. Deceit about some quality practiced for another motive - human respect, for instance, or vanity - does not invalidate. This confirms that simple "non-communicativeness" of character is not sufficient; there must be a deceitful intention.

            Greater difficulty is posed by questions related to gravity, in the various ways in which this concerns the matter. A triple consideration is called for: gravity of the deceit practiced; gravity of the quality causing harm; and gravity of the harm which the quality would naturally cause to the conjugal consortium. As regards the latter two, one particularly needs to examine whether the gravity in each case is to be evaluated according to objective or to subjective criteria.

            a) Gravity of the deceit. There is no requirement that the deceit must be grave. In the case of a very naïve person, very slight guile may perhaps be enough to deceive him or her; but the rights of ingenuous persons are also entitled to the protection of the law.

            b) Gravity of the quality. The careful wording of the canon makes it clear that invalidity results only where there has been concealment of a quality of some objective importance. The Legislator, by wishing to state that the quality must be perturbing "of its very nature" - "suapte natura" - seems to exclude specifically any merely subjective interpretation of the importance of the quality. It must be a quality or a condition of the other person which, according to some objective criterion (and there seems to be none other than common estimation, confirmed by jurisprudence), is both important in itself and capable, if deceitfully hidden, of seriously disturbing conjugal life. It is not difficult to list a few examples that would seem fairly obvious: e.g. concealment of some gravely infectious disease such as AIDS, or of pregnancy by a third party [4], or of intolerant hostility towards the religious faith of the other, etc.

            Confirmation of this view would seem to be offered by the one concrete example of invalidating deceit to which the Code makes specific reference: that of sterility. Canon 1084, § 3 states: "Sterility neither prohibits nor invalidates marriage, with due regard for the prescription of can. 1098". Marriage is of its nature ordered to procreation (c. 1055), and the vast majority of persons marry in the hope of having children. To deceive another about an actual condition of sterility is to mislead him or her about a quality central to the married relationship. For example, if a woman whose womb has been excised conceals the fact in order to bring about consent, the marriage can certainly be declared invalid.

            Perhaps the worst deceit of all would be about the existence of love itself; i.e. being misled into believing that one is loved by the other party, when this is not the case. So if it were clear that a person had deliberately feigned love, in order to obtain the other's consent, showing attitudes of generous tenderness before marriage which as soon as the wedding was over turned into a clear approach of indifference or even dislike, then the marriage could surely be declared null. This does not modify but does refine what we said about a "ius ad amorem (affectivum)". While there is no right to affective love as such, there is a right not be duped into marriage by the put-on appearance of such love.

            c) Gravity of the disturbance. The disturbance to the married "consortium" must affect central aspects of the conjugal partnership of life. A disturbance, however grave, to its accidental aspects is not material. The disturbance, to be relevant under c. 1098, must affect the marital partnership substantially, which means that it must be such as would gravely disturb the "consortium" in relation to its essence, properties or ends.

            Nevertheless, since deception about the contractant's intention regarding exclusiveness, procreativity or permanence of the bond, is already covered by simulation, the object of the deceit must be something different to the essential content of the three "bona". It has to be some quality that objectively - of its nature - tends to undermine in a substantial way the communion of married life between the spouses.

            Opinions about social or political matters, etc., easily provide a source of married harmony or discord, especially if one or other of the parties has a stubborn attachment to a particular viewpoint. Yet (unless one moves over into the strained hypothesis of an explicit condition), it seems questionable if deceit about such personal views can nullify the marriage, as for instance in the case where one of the parties is an earnest ecologist, while the other conceals the fact that he regards ecology as a fool's game; and later in married life his or her real views emerge and tend to disturb the home atmosphere.

            Certainly ordinary and universal traits like mere vanity or selfishness, or such mild and relative defects as laziness or lack of sense of humour, cannot be invalidating qualities under the canon. Minor defects, even if one of the parties finds them annoying, cannot be said of their nature to carry the potential for the serious disturbance of married life. If they become the occasion for difficulties in the married "consortium", this is probably more due to the nature of the party disturbed - to his or her over-irritability, etc. - than to the nature of the defect in itself. Before marriage, the person may indeed have made a deliberate attempt not to appear lazy, etc. precisely in order to "win" the other. But such "deceits" are part of the tactics and almost of the very nature of courtship. It does not frequently occur during married life that spouses find their partner to be much better, with far fewer defects, than he or she appeared during courtship. Not a few psychologists and married experts hold that mature happiness in marriage can only be achieved by those who manage to "get over" the let-downs of discovering their partner's defects (cf. C. Maltas: "Marital Crises of Midlife": Psychiatry, vol. 56 (1992), p. 126; see below, chapter 11, p. *).

            One must carefully distinguish a case of deliberate deceit from one of a simple pre-marriage faulty appreciation of one party made by the other. There is no basis in justice or law for sustaining that this mistaken judgment (which can in no way be taken for the grave lack of discretion contemplated in c. 1095, 2) can invalidate consent, thus releasing a person from his or her free commitment to marital acceptance of the other. It is only if there has been deliberate deceit about the existence of a grave defect, that one can discover a "ratio iuris" for saying that consent was constitutionally vitiated. Given no deceit or fraud, the presence - or the emergence - of such a defect is compatible with valid consent and a valid consortium (cf. Sentence of Nov. 26, 1992, coram Burke, no. 18: RRD. vol 84, p. 585).

II. The law regarding condition and error: a personalist reaction

            Canon 1098 seeks to protect a person against being held by the indissoluble interpersonal bond of marriage, when consent to the bond itself has been induced by deceit regarding an important quality of one's partner. The canon offers a noteworthy combination of personalist outlook and juridic sense. This suggests a criticism which, however delicate, I feel should be made. The very married personalism which so clearly inspires and justifies c. 1098, seems to militate quite strongly against grounds of nullity set forth in two other canons on defective consent: error regarding a personal quality (c. 1097, § 2), and condition (c. 1102).

            While I do not of course question that the two grounds are firmly established in matrimonial law, I do have difficulties with them, not only inasmuch as they seem to me open to substantial criticism from the viewpoint of married personalism, but also because in many cases where they are (perhaps unsuccessfully) invoked, a plea of "dolus" would to my mind be more apt and more likely to succeed. This may be more easily appreciated in relation to marital consent conditionally given, but also appears to be true where an error about a quality of the other party is invoked as grounds for nullity.

Condition

            "Marriage cannot be validly contracted subject to a condition concerning the future" (c. 1102, § 1). "Marriage entered into subject to a condition concerning the past or the present is valid or invalid, insofar as the subject matter of the condition exists or not" (ib. § 2).

            In the Preface to a recent work on rotal jurisprudence on this topic, the canonical concept of conditional consent is described in the following terms: "The figure of conditioned consent is verified whenever the man or the woman, instead of giving immediate effect to their matrimonial will, prefer to subordinate it to certain circumstances which permit them to satisfy a particular purpose of theirs. So, for instance, if those marrying intend to condition their marital consent to the absence of hereditary mental diseases, to the finding of a house, of a job... The peculiar purpose which the parties propose through the use of the conditional instrument is that of taking into consideration a situation (the presence, in the examples just given, of an hereditary mental illness or the absence of a house in which to live together or of an independent source of income for their maintenance) such as to be incompatible, at least to their mind, with conjugal life" (AA.VV.: Il consenso matrimoniale condizionato, Lib. Ed. Vaticana, 1993, p. 8).

            While allowing that this passage gives a fair analysis of the accepted doctrine on the point, one should note it speaks of conditioned consent as if were normally the choice of both parties in common accord ("they prefer", "the parties"...), whereas the condition in question is in most cases unilaterally and often hiddenly attached by just one party to his or her consent. In either case (although especially in the latter), I find a certain radical incompatibility between the very idea of conditional consent and the personalist concept of marriage.

            It is important to be clear about the point at issue. It is not that of a case where one might say to the other: "I will marry you on condition that we first buy a house to live in or that we both find steady jobs". This is a pre-condition - a pre-requisite - for getting married. It indeed indicates a certain calculation in approach but, provided the calculation is open and above-board, it does not necessarily show a lack of love (it might even be a prudent measure to ensure a situation favoring the growth of love).

            We are not speaking of such a pre-requisite or "postulatum", which leaves the other party free to accept the condition or not: to accept the marriage or not. What is being considered is a condition attached to consent in the very moment in which it is given, and on the basis of which the validity of the marriage can be subsequently impugned. For instance: "I marry you now, give myself to you here and now as husband or wife, and accept you as my partner, on condition that you are capable of giving me a child or are not infected by some serious illness. Therefore if after some time it is verified that the condition is not fulfilled, then our marriage will have been invalid from the start and, as far as I am concerned, our mutual self-gift and acceptance - despite our years together - will have been meaningless and null".

            Such a conditioned approach would seem to contradict the very essence of the marital commitment expressed in c. 1057: giving self and accepting the other, as each one is now, and as he or she may turn out to be in the future. The traditional words in which consent was and is couched, express that unconditional openness to the other, that readiness to share together what the "con-sortium" [the common fate or lot] of life may bring: "I take you to be my wife/husband. I promise to be true to you in sickness and in health, in good times and in bad, for better or for worse".

            Soon after the promulgation of the Code one of the main defenders of married interpersonalism advanced the following emphatic criticism of canonical law on conditioned consent: "it can certainly be said about condition that of itself it is a limitation that seems very foreign to the characteristics and presuppositions of the conjugal alliance, which today is presented to us more than ever as a mutual and absolute interpersonal donation and acceptance for a partnership of the whole of life; hence, once the decision to embrace it is taken, any reserve in the moment of its constitution is to be rejected" (J.M. Serrano, "Il consenso matrimoniale condizionato" in AA.VV.: La nuova legislazione matrimoniale canonica, Lib. Ed. Vaticana, 1986, p. 163 (emphasis added)). Msgr. Serrano's criticism, however, does not seem to have been seriously taken up, and less still has it been satisfactorily answered (See c. Serrano, June 1, 1990: R.R. Dec., vol. 82, pp. 467-468, with further reflections on the matter).

            Even if personalist considerations are left aside and one talks in terms of simple justice, the question can be posed whether church law should countenance having the validity of marriage - a fundamentally interpersonal relationship and commitment - subordinated to the unilateral interests of one party, as he or she sees them. If things do not in fact work out as that party wished, they have indeed been disappointed in their wishes or ambitions, but what right of theirs has been violated, what injustice have they suffered? The law has the mission to protect people's rights, not to provide a remedy for their disappointed (and perhaps quite self-centered) ambitions.

            One would readily agree that a gross injustice has certainly been done and a clear personal right violated if the case for instance were the deliberate concealment of a serious illness, accomplished so as to bring about consent. But, as we have seen, the remedy for rights violated in this way is now present in the Code, such cases being fully covered by c. 1098.

            A true sense of the dignity of marriage, and of what is due to the other party whom one accepts as spouse, demands that if doubts exist about personal or material factors, they be clarified before the decision to marry, or else be absorbed into that decision. No one can be forced or fooled into marriage. They are free to give themselves maritally or not. But no one has the right so to circumscribe his marital self-gift that, however genuine the self-giving marital response of the other, a legal way out is provided for unilateral calculation.

            Charles Dickens was never too tolerant of the many deficiencies he discovered in the laws of his times. One of his criticisms is interesting, and not only because it indicates that nineteenth century Protestant England also, for a period at least, had its provisions for annulments. David Copperfield, as an apprentice to legal work, notes a peculiar case: "a divorce suit, under an ingenious little statute (repealed now, I believe, but in virtue of which I have seen several marriages annulled), of which the merits were these. The husband, whose name was Thomas Benjamin, had taken out his marriage licence as Thomas only; suppressing the Benjamin, in case he should not find himself as comfortable as he expected. Not finding himself as comfortable as he expected, or being a little fatigued with his wife, poor fellow, he now came forward, after being married a year or two, and declared that his name was Thomas Benjamin, and therefore he was not married at all. Which the Court confirmed, to his great satisfaction". David finds this a bit strange: "I must say that I had my doubts about the strict justice of this..." (David Copperfield, Ch. 33)

            Where a condition appears to me as most anti-personalist is when it is applied to the possession of some quality by the other. One has a clear right to the other's sincerity in relation to anything substantial to the married covenant; i.e. a right not to be deceived about any important quality of the other ("provided you are not a thief"). But genuine matrimonial consent - "to mutually give and accept each other" - means accepting one's partner as he or she is, being prepared for the discovery later on that one's original estimate of one's chosen spouse was not totally accurate, for the emergence of unsuspected personal defects, etc. If one is not prepared for that, then marriage is lowered to the level of a "money-back-if-not-satisfied" commercial arrangement. Surely this instrumentalizes not only marriage but also the other person, involving a direct affront to his or her dignity? A true personalist approach to marriage is well expressed in the "for better or for worse" formula. In the absence of deceit, personalism demands an "I accept you", open to all the variations of the future. If two people sincerely give and accept each other as they are, then personalism demands a disposition of loyal mutual response which includes reciprocal and maintained understanding and patience. In these lies the best safeguard against ending in a psychological complex of "incompatibility" which - when it arises among two persons who once loved one another to the point of marrying - can scarcely be other than the end-result of voluntary (and therefore reversible) non-giving.

            I cannot therefore but feel that conditioned matrimonial consent allows the seriousness and dignity of the interpersonal marital covenant to be instrumentalized and subordinated to the one-sided interests or whims of one of the parties. One can certainly ask the other party to promise some action or behavior - not in itself essential to marriage. But there are no grounds in justice for making the validity of the bond depend on actual fulfillment of what was promised (the other may fail to live up to the promise because of some factor independent of his or her will; a breakdown in personal health, a deteriorated family or professional situation, etc. [5]. If the promise was sincere, then the bond is valid. If it was insincere, and if the matter promised was of objective importance to married life, then the canon on "dolus" should sufficiently cover the case of a possible declaration of nullity. To my mind, I repeat, if there is a real issue of justice or violated rights, the canon on condition has been rendered superfluous by the new provision regarding deceit.

            Conditioned consent was not allowed in roman law. Its introduction into church law, some 800 years ago, can be attributed to the dominance of contractualist concepts (Cf. L. Chiappetta: Il Matrimonio nella Nuova Legislazione, Rome, 1990, p. 241). While it is true that pleas for nullity based on the grounds of condition are becoming less frequent, I feel that the law would have followed a truer personalist philosophy and achieved a juridic formulation closer to the spirit of the Council, if it had provided that any condition attached to married consent would in all cases be held as ineffective ("pro non adiecta"), as was formerly the case of certain conditions "de futuro".

            It is therefore arguable that a major opportunity was lost in the process of revising the Code when it was decided to retain the canonical figure of "conditioned marriage" (cf. Communicationes, III (1971), pp. 77-78), instead of adopting the norm common in modern civil law that conditions attached to matrimonial consent are held "not to have been placed", i.e. are regarded as ineffectual [6]. While not considering (as some authors do) that "contractualism" and "personalism" are always and of necessity in opposition, I do feel that the decision of the Commission, afterwards incorporated into c. 1102, was a notable "give-away" to an over-contractualist approach.

Error

            The first paragraph of c. 1097 - "Error concerning the person renders marriage invalid" ("Error in persona invalidum reddit matrimonium") - offers no difficulty. It covers the case where A, intending to marry B, actually "marries" C instead. This might occur for instance in the case of an arranged marriage where a person agrees to marry the first-born son or daughter, while what happens is that the second-born is presented instead at the ceremony. This is a clear case of mistaken identity, a person being led (usually by fraud) into marrying the wrong person. By natural law, his or her consent is ineffective; there is no valid marriage. While it seems a very remote possibility nowadays, the justice of this canonical disposition is clear.

            Paragraph 2 of the canon says: "Error concerning a quality of a person, even if such error is the cause of the contract, does not invalidate matrimony unless this quality was directly and principally intended" ("Error in qualitatem personae, etsi det causam contractui, matrimonum irritum non reddit, nisi haec qualitas directe et principaliter intendatur"). The canon is worded negatively (error concerning a quality does not invalidate...), but its interest centers obviously on the exception provided: "unless...". This is a new formulation of an older provision, and offers grounds of nullity that are not infrequently invoked.

            The case contemplated here is very different to that dealt with under paragraph one. It is not a question of marrying the wrong person (C instead of B), but of marrying the wrong "sort" of person - a person not quite up to one's expectations. In other words, A does marry the very person chosen (B), but B then turns out to be different, in respect of some particular quality, to the estimation which A had formed of him or her.

            The case therefore is not one of mistaken identity (provoked most often by others), but of a mistaken psychological interpretation or assessment on A's part of the possession by B of some concrete quality.

            Marriage is invalid, says the canon, only when the quality was "directly and principally intended". In practice, jurisprudence has tended to interpret this as occurring when the quality is intended "more than the person" ("qualitas prae persona intenditur": c. Canals, Apr. 21, 1970: R.R.Dec., vol. 62, p. 371): in other words when the object of a person's marital consent is not so much the person of the other party, as some quality which - erroneously, as it turns out - is thought to be possessed by him or her: "an error about a quality has the same effect as an error about a person where the quality is intended more than the person, that is, where the contracting party aims his consent directly and principally to a particular quality or qualities, and indirectly and in a subordinate way to the person. Hence the quality shapes and specifies the person, to such an extent that the object of consent substantially contains that quality in its scope, and if the quality is missing the consent itself therefore disintegrates" [7].

            While it is generally conceded that the quality in question must be "substantial", views vary greatly as to what this really calls for. Qualities suggested in rotal judgments as possibly falling within the terms of the canon include those of being an "ideal partner" (vol. 82, p. 738); "a good life-companion" (vol. 83, p. 79), "supportive" (vol. 81, p. 339), "able to procreate" (vol. 81, p. 435; vol. 82, p. 713; ib., p. 853; vol. 83, p. 316), "moral, affectionate, hard-working" (vol. 83, p. 676), a "good wife and mother" (vol. 83, p. 837), "fond of children" (vol. 81, p. 779), "a virgin" (vol. 81, 388; vol. 82, p. 818) [8]; "a good Catholic" (vol. 80, p. 284).

            Some of these qualities seem too vague to allow of juridic evaluation or proof. Others are concrete enough ("a virgin", "able to procreate"), and proof could be forthcoming that they were in fact desired. In all cases, the practical difficulty remains of how one determines judicially that such a quality was in fact intended more than the person himself or herself.

            However, quite apart from this, the question arises of the juridic basis underpinning the principle that an erroneous appreciation of a quality - however much desired - nullifies the marital covenant. This is where grave difficulties of a legal nature can be found; and they are increased when one subjects the matter to a personalist analysis.

            I have never seen much point to the "covenant-versus-contract" debate about the nature of marriage, concretely in the canonical field. I consider marriage to be both and, insofar as it is a contract, one certainly to be treated as "sui generis". But, in my opinion, to abandon any type of contractual analysis of marriage would obscure the whole canonical treatment of the subject, ending in a "covenantism" just as abusive as any "contractualism". Having said this, I would suggest that the gradual expansion of the concept of invalidating error stands as a noteworthy example of abusive contractualism [9].

            It is a matter of opinion whether the efforts of the 1970s to give a new face to the "qualitas in errorem personae redundans" of earlier jurisprudence, so that it would cover cases where people "prefer a particular quality to a particular person", corresponds better to our modern sense of the dignity of the human person. Yet it is not seldom affirmed, also in jurisprudence, that c. 1097, § 2 reflects the heightened sensitivity towards this personal dignity as presented in the teaching of Vatican II [10]. It is held to correspond to the fact that the partners to marriage nowadays require very definite moral, social and individual qualities in each other, so that it may be possible to to set up a true "communio vitae". Stress is laid moreover on the possibility that the promise of fulfillment and satisfaction which marriage offers to one of the partners, can be frustrated by the absence of the desired qualities in the other.

            Neither the personalism of this reasoning, nor the "ratio iustitiae" or legal justification of the canonical norm itself, are evident to me. While a place may be found for the norm in strictly contractual law, one can question whether it is an acceptable principle to apply to marriage. I find no basis to the suggestion that the provision is a reflection of christian or married personalism.

            A recent rotal sentence speaks of the "contracting party who is said to be the victim of the error" ("contrahens qui erroris victima dicitur": Sent. of March 25, 1994, coram Civili). But has he or she been in fact victimized, if the error has not been induced by another? One may lament one's own mistake in such cases, but is one truly a victim of it, an object of misjustice, entitled to redress? What wrong has been inflicted on the petitioner? Against what violation of justice is he or she seeking remedy?

            What right exists to demand a quality in one's partner or, perhaps more precisely, to claim the rescission of the marital contract, if one has led oneself (and not been led by others) into an error about some quality of the other party? Why should my defective factual or psychological appreciation of the other party permit me to renege on a freely undertaken commitment to accept him or her "for better or for worse" (which lies at the heart of the mutual marital "sese tradere et acceptare"), unless there was bad faith on the other's part?

            I certainly do not see that to appreciate a quality more than a person is personalist (unless we wish to foster a very peculiar notion of "quality-marriages"!). Surely it rather means instrumentalizing the person for some unilateral, self-centered end, contrary to the shared venture of marriage? If so, it expresses individualism and subjectivism, not personalism. This instrumentalization of the other appears to me to reduce him or her to the level of a means, stripped of the personal dignity that corresponds to a chosen spouse.

            People do not want to be treated as "abstractions" but as real persons, and all the more in a relationship so committedly interpersonal as marriage. Yet the philosophical rationale behind the canon is expressed precisely as the abstracting from the person being married, so as to "marry" a quality instead. The words of Orio Giacchi, the well-known pre-conciliar Italian jurist, are frequently quoted to explain the point: "the subject wishes to marry, so to speak, an abstract type of person constituted by the abstraction of that quality (for example, 'a virgin', 'a nobleman', 'a diplomat', etc.)..." (Il Consenso nel Matrimonio Canonico, Milan, 1950, p. 52). Persons have qualities, good and bad; but marriage is surely the giving and accepting of two precise persons (defects and all), not the sorting and matching of acceptable qualities. Is it true personalism, or is it simply calculation, to seek to ensure a "user-friendly marriage" with the necessary legal guarantees of finding a spouse made to measure?

            Both c. 1097 and c. 1098 are about error regarding a quality. But in c. 1097 the error need not be fraudulently provoked; in c. 1098, it must. Under c. 1097, the error can relate to any quality of the other. The canon in fact is focussed not on the quality (alleged to be the object of the error), but on the effect of the error itself on the person's will; it must be such as to determine that will. In c. 1098, the quality is objectivised much more. The parameter is not the effect on the subject (who, as in all error, is deceived), but its natural capacity to gravely disturb the married consortium.

            The personalist concept of marriage - giving/accepting as one is - seems to be altogether ignored in c. 1097, § 2. Error in fact does not take from the authenticity of the gift of the other, unless it is induced. It is hard, I repeat, to avoid the impression that we have an "escape" clause here, a provision by which an important aspect of matrimony is submitted to a purely contractualist analyis, at odds with personalist self-giving. In not a few cases the application of this law could well exemplify the old adage of "summum ius, summa iniuria" for, while no right of the person making the mistake is violated, it is very arguable that a clear right of the other party ("dolo absente") is. On what grounds of justice should one party be penalised for the (uninduced) error of the other? In the case where both partners desire the marriage to be declared null, it would correspond better to both justice and personalism if the other party brought the petition. If it can be shown that the partner had married him or her not as a person but as a quality, it is more properly he or she who has the right to be impugn the bond.

            I find the instrumentalization of the person countenanced by c. 1097, § 2 particularly evident in cases of error about the capacity to procreate (which in practice is almost always attributed exclusively to the woman). Such cases arise frequently in the context of the Third World, where most people still marry with a strong desire to have children and barren marriage is considered a misfortune. Such barrenness, with the woman held to blame, was traditionally a major reason for an African husband to divorce, or to take a second wife.

            The instrumentalization of woman here, seen and chosen (or rejected) simply in terms or function of her procreative power, is obvious. The Church's consciousness of this threat to human rights and dignity is reflected in the long-standing prescription that sterility (unless fraudulently concealed) neither prohibits nor invalidates marriage [11]. Nevertheless, arguments developed from modern interpretations of the canon on error have been invoked and accepted as grounds for declaring the nullity of barren marriages. This in effect offers a way round c. 1084, § 3, and so tends to perpetuate the "woman-as-an-instrument-of-procreation" idea. Unfortunately, canonical theory and practice have shown a tendency to ignore this fundamental anthropological issue.

            Even if a couple marrying, or one of them, were strongly motivated by the desire to have children and their marriage turns out nevertheless to be barren, it is still valid according to c. 1084; and each is called to live the fullness of mutual conjugal love and fidelity. To invoke an "error circa capacitatem procreandi" as basis for a declaration of nullity under c. 1097, § 2, contradicts the mind of the legislator as expressed in c. 1084, § 3, and allows legal subtlety to be placed at the service of discrimination, particularly against women. Because, I repeat, when a declaration of nullity is sought on the grounds of "error about the capacity to generate", in nine cases out of ten it is invoked by the man, who claims to have made a mistake in the past (which he now pleads to his own advantage) - "I judged her to be capable of bearing a child"; and it is the woman who is held "guilty" of the barrenness afflicting the union, and one-sidedly penalized for it.

            Such cases are frequent in the Third World, but not restricted to it. Most Westerners too marry in the hope of having children (even if only one or two). In a recent case before a European church tribunal, the twelve years married life of a couple keen to have children had been marked by four pregnancies, each ending in a spontaneous abortion. The husband was the last of five children himself, and the only man among them. Under pressure from his family he took an action for nullity on the grounds of exclusion of indissolubility on his part, and of his error about his wife's procreative quality. She opposed the case throughout, testifying that she still loved him, and was ready to try for a fifth pregnancy. The court rejected his argument of exclusion of the "bonum sacramenti", but gave an affirmative decision on the grounds of error: in other words, the marriage was null because he, in marrying, made the mistake of believing that the woman he married was capable of giving him a child. The law may justify this; but common and christian sense would seem to be echoed in the words of the man's superior at work, called as a witness: "it is not a valid motive for an annulment, to repudiate one's wife because of the fact that she has not been able to give you children. That can happen only among the barbarians".

            Possibly the "error about capacity to procreate" issue might have been handled better if ecclesiastical judges had taken greater care to avoid the use of the expression "ius ad prolem", which can at times be found even in rotal sentences [12]. No doubt the phrase was carelessly used as equivalent to the "ius ad bonum prolis" or the "ius ad actus coniugales per se aptos..." (cf. c. 1086, § 2 of the 1917 Code); but it is not equivalent, and carelessness does not justify inexactitude. There is a right to sexual intimacy open to procreation, since the giving of this right lies within the power of each part. There is no right however to actual procreation, for the child is always a gift of God. Attention was already drawn to this in the past by several writers [13]. Moreover a proposal to include a "ius ad prolem" in the draft of what was to become our present c. 1101, was unanimously rejected by the Consultors for revising the old Code (Communicationes, 1977, 375). Some weightier authorities in jurisprudence also insisted that one cannot speak of such a "ius" (cf. c. Pinto, Oct. 28, 1983, vol. 75, p. 559; c. Agustoni, Nov. 7, 1986, n. 4; c. Pompedda, June 8, 1987: vol. 79, p. 368). Moreover, the new Catechism of the Catholic Church also insists on this: "A child is not something owed to one, but is a gift... A child may not be considered a piece of property, an idea to which an alleged 'right to a child' would lead" (no. 2378). Yet the phrase "ius ad prolem" is still occasionally to be found in rotal sentences (cf. vol. 79, p. 62; vol. 81, p. 11).

            The fact that rotal jurisprudence has traditionally ignored the question of "dolus", when dealing with pleas of nullity under "error qualitatis" (cf. Sent. coram Stankiewicz of Jan. 30, 1992, n. 7: Monitor Ecclesiasticus 118 (1993-IV), p. 532), was logical enough, given the dispositions of canon law up to 1983. At this stage, however, a thorough re-evaluation of c. 1097 in the light of c. 1098 would seem to be called for (cf. c. Stankiewicz, July 22, 1993: RRD, vol. 85, p. 594, n. 8).

            In fact, with the canonisation of doctrine on deceit, it is arguable that the canon on "error regarding a quality" could and should have been eliminated or greatly restricted. To my mind, for so long as it remains in force, it ought to be subjected to particularly strict interpretation.

            The Second Vatican Council clearly wished to present marriage in the terms of an interpersonal covenant, and not of a commercial deal. The juridic application of the spirit of the Council, as found in the 1983 Code, did not abandon the notion of marriage being a contract (cf c. 1055, § 2). Nevertheless it certainly gives much more emphasis to its unique character as such, being a contract "sui generis", not only in its properties (especially indissolubility) but in its nature and object - covenanted conjugal self-giving and other-accepting.

            Concepts drawn from the ordinary law of contracts, therefore, can only be applied to marriage law with the greatest care and refinement. A personalist view should have no difficulty in accepting the peculiar contractual nature of marriage, just as it should be firm in its rejection of the application of purely "contractualist" principles to the matrimonial institution. This is why I have suggested that any calculating approach to marriage (as in condition) should find little defense in law; and that error should not have its former legal force. The introduction of the canon on deceit seems to strengthen this criticism.

NOTES

[1] "Qui matrimonum init deceptus dolo, ad obtinendum consensum patrato, circa aliquam alterius partis qualitatem, quae suapte natura consortium vitae coniugalis graviter pertubare potest, invalide contrahit".

[2] "substantiam ipsissimam consensus, illum exuans non modo de vera utriusque coniugis ad invicem traditione et acceptatione per adaequatam alteriusutriusque imaginem intentionalem, sed etiam de veritate quae ipsimet consensui competit ut talis sit": unpublished Sentence of June 2, 1989, n. 8; cf. decision by the same Auditor of May 28, 1982: R.R.Dec., vol. 74, p. 319.

[3] "qui dolo, etiam per reticentiam patrato, deceptus": Acta Originalia, fol. 22; cf. Jusdado, op. cit. p. 205.

[4] How inadequate the previous legislation was is illustrated by the thesis of the well-known canonist of pre-conciliar times, Arturo C. Jemolo. In his work, Il Matrimonio nel Diritto Canonico (Milan, 1941, p. 247), he gives an example of the irrelevancy of deceit with regard to marital consent. According to Jemolo, marriage would be valid even if brought about by a woman deceiving a man into believing that she is pregnant by him, when she has actually conceived through another.

[5]"A girl seriously limited her matrimonial consent by the condition that the man sincerely undertake to help her father in his shop with a view to succeeding to the business. The evidence showed that it was a condition "de praesenti" (present sincere intention on the part of the man), and not merely the exaction of a promise from him. Upon proof that this condition was made and that it was not verified, the marriage was declared null" (Bouscaren-Ellis, Canon Law: text and commentary, 1957, p. 560). Even with the placing of the emphasis on his obligation to be sincere rather than on her right to place a condition, one wonders if marriage is to be instrumentalized so.

[6] cf. Chiappetta, loc. cit. Such an option was certainly before the legislator in 1917 (cf. O. Giacchi: Il Consenso nel Matrimonio Canonico, Milan, 1950, pp. 133ss), and could have been taken into greater account in 1983.

[7] "... ubi ipsa qualitas prae persona intenditur, idest ubi contrahens directe et principaliter suum consensum dirigit in qualitatem vel qualitates determinatas, indirecte autem et subordinate in personam; exinde qualitas refunditur in personam eamque specificat, adeo ut obiectum consensus substantialiter contineat in sua intentione illam qualitatem, qua proinde deficiente corruat oportet ipse consensus" (c. Pompedda, July 23, 1980: vol. 72, p. 524).

[8] A recent canonical-pastoral manual puts the following case: "A young man marries a girl, in the certainty that she is a virgin, though she is not. In this hypothesis, the error has been the cause of the matrimonial contract, because if he had known it before, he would not have married her in those conditions. Is the marriage valid or invalid?"; and answers: "The marriage is per se valid, except if the young man, before marrying and with an explicit (and not simply interpretative or hypothetical) will, had intended "directe et principaliter" to marry a virgin girl, making this a 'condicio sine qua non'": Chiappetta, loc. cit., p. 215.

[9] which would very doubtfully have had the support of St. Thomas. He taught: "the error that prevents a marriage must be about something that is of the essence of marriage", went on to say that this covers the identity of the person being married and his or her actual freedom to dispose of self (here he is thinking of slavery), and then concluded: "these two errors prevent a marriage; others do not" ("oportet quod error qui matrimonium impedit, sit alicuius eorum quae sunt de essentia matrimonii...; hi duo errores matrimonium impediunt, et non alii" Suppl., q. 51, art. 2).

[10] we read, for instance, that this approach "looks to the dignity of the human person in his or her totality... [for] "it is obvious that the new and broader interpretation fits in with the clearer recognition of the human person and the exercise of his rights, which we have achieved in our times" ("ad dignitatem personae humanae in sua totalitate vertit... Neminem [enim] fugit novam magis amplam interpretationem congruere cum firmiori personae humanae recognitione ad iura eorumque exercitium quod spectat, quam nostris temporibus assecuti sumus"): vol. 80, p. 145.

[11] cf. c. 1084, § 3 ("Sterility neither prohibits nor invalidates marriage, with due regard for the prescription of can. 1098"), repeating and enriching c. 1068, § 3 of the 1917 Code.

[12] cf. c. Heard, Feb. 2, 1946, vol. 38, p. 103; c. Felici, March 30, 1949, vol. 41, p. 140; c. De Jorio, June 17, 1964, vol. 56, p. 494; c. Fiore, March 13, 1973, vol. 65, p. 242; c. D. Felice, July 13, 1974, vol. 66, p. 535. Sometimes it is expressed as the "ius procreandi" (c. Doheny, March 11, 1957, vol. 49, p. 190) or the "ius ad procreationem" (c. Fiore, March 13, 1973, vol. 65, loc. cit.).

[13] "Offspring - effective procreation, that is - being an event of the natural order lying beyond total human control, evidently cannot form the object of a right or the content of an obligation" (Graziani, E.: "La cosidetta esclusione dell'esercizio del diritto", Il Diritto Ecclesiastico 60 (1949), p. 165); "only a fact depending on the actio hominis, not one depending also on the actio naturae such as is the procreation of offspring, can constitute the content of a subjective right and of an obligation, and therefore the object of matrimonial consent" (Fedele, P.: "L'ordinatio ad prolem' nel matrimonio in diritto canonico", Ephemerides Iuris Canonici, 13 (1957), p. 199).