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Incapacity for giving valid matrimonial consent, deriving from some notable defect of the person's psychic faculties, is dealt with in c. 1095 of the 1983 Code: "They are incapable of contracting marriage: 1º who lack sufficient use of reason; 2º who suffer from a grave lack of discretion of judgment concerning the essential matrimonial rights and duties which are to be mutually given and accepted; 3º who are not capable of assuming the essential obligations of matrimony due to causes of a psychic nature".

            Doctrine and jurisprudence are agreed that three distinct grounds of consensual incapacity are indicated in the canon. "If [in c. 1095] the Legislator has determined three different incapacities for contracting matrimony, ... we must conclude that the Legislator is treating of three distinct incapacities" (M.F. Pompedda: "Incapacity to assume the essential obligations of marriage", in AA.VV. Incapacity for Marriage, Rome 1987, p. 195). While the fact that the grounds are different is clear, perhaps one can look more deeply into the reason for the difference between them.

            The basic structure of the canon as we now have it, was already settled in 1971. Then the Commission for the revision of the 1917 Code offered the following comment on the three types of incapacity proposed: "While in the first two cases the subjective psychological act of consent labors under some substantial defect, in the last case it can perhaps be elicited in its integrity ['forte integer elici potest'] by the contracting party, but he or she is incapable of fulfilling the object of consent, and hence incapable also of fulfilling the obligation assumed" (Communicationes III, (1971), p. 77).

            It is a clear juridic principle that a contract between two persons is invalid, if the object of the contract does not lie within their legal right and power of disposal; or, a fortiori, if the object itself does not exist. Considerable use of this principle marked the development of the idea of consensual incapacity. So, in a Sentence of Feb. 25, 1969, insisting on the 'consortium vitae' aspect of the matrimonial contract, Lucien Anné argued that if the 'consortium' fails in its very principles, "in such a case the very object of matrimonial consent is lacking" (RRD, vol. 61, p. 185). Doctrine and jurisprudence have tended to make this principle central to the analysis of the "incapacitas assumendi", as we now find it in c. 1095, 3.

"Ex parte subiecti: ex parte obiecti"?

            Working from the above, it has become common to say that the difference between the three numbers of c. 1095 is that the defect in consent is on the part of the person or subject consenting ("ex parte subiecti") in no. 1 and no. 2, but on the part of the object consented to ("ex parte obiecti") in no. 3. In the latter case, the consent given is thus held to be sufficient of itself but ineffective, for it lacks its proper object, and so is null. Therefore the "incapacitas assumendi" does not necessarily imply an inadequacy inhering in the very act of consent, since the psychic faculties of the subject - mind and will - need not suffer from any disorder. Thus in an earlier decision, Mons. Anné had written that an incapacitating condition (nymphomania in the case in question) "does not touch the very formal elements of matrimonial consent; in other words, it does not undermine the estimative knowledge and the will of the one giving consent, as far as their operation is concerned; but it does affect the object of consent" (Jan. 17, 1967: RRD, vol. 59, pp. 28-29).

            It is true that this analysis follows juridic thought relating to contracts in general. Yet it offers no small difficulty when applied to capacity for marriage. Properly considered, it focuses attention on an incapacity of being assumed on the part of the object, rather than on an incapacity to assume on the part of the subject. It thus tends to make something external to the person, rather than anything internal, the cause of invalid consent. In other words, consensual incapacity under c. 1095, 3, appears to arise not out of a defect of the human act itself, as occurs in nos. 1 and 2, but rather to have an origin which is extrinsic to the agent.

            One wonders if this is the meaning of the canon as finally intended by the legislator. Can the act of consent of a person proposing to marry be in fact integral or sound ("integer") ("that act can perhaps be elicited in its integrity..."), if he or she finds [the obligations of] marriage impossible to fulfil? Is it tenable that a person can be consensually incapable without his or her act of consent being intrinsically defective? In the end, the issue is whether the impossibility dealt with in c. 1095, 3º is external or internal to the subject.

"Ad impossibile nemo teneatur"

            While the frequently invoked principle, "ad impossibile nemo teneatur" (no one can be bound to what is impossible), is unquestioned in the law of contracts, its application to marital consent calls for no little care. It is quite clear that certain impossibilities can be said to inhere totally in the object, without there being any defect in the elective or executive faculties of the subject. The impossibility of drawing a square circle, for instance; or, to take a more frequent example in law, that of acquiring a particular object which no longer exists (as in a contract to buy or sell a horse which, unknown to the contractants, has just died). In such cases, one can rightly say that the object of the intended contract fails. If the parties' consent - free and adequate of itself - is reduced to juridic ineffectiveness (not unilaterally, but on both sides, be it noted), this is totally and simply a consequence of this "defect of the object".

            Now it is not clear that the above-mentioned principle - properly applied in such cases - can be similarly applied to the contracting of marriage. The object of matrimonial consent is marriage, with its essential rights and obligations. If a person cannot assume the inherent natural obligations of marriage, this is not due to a lack of object - for the object is there - ; it is due to a lack of capacity in the subject, with regard to the object. It is not in the object (marriage), that the impossibility of contracting arises, but in some defect of the person purporting to contract marriage. It is on his or her part, not on its part, that marriage fails. The incapacity lies totally in the subject. Canon 1095 is not speaking of marriages that cannot be undertaken, but of persons who cannot consent to marriage: "They are incapable of contracting marriage:..."

Need for a different analysis

            That consensual incapacity for marriage is always therefore a defect in the subject, who fails in some aspect of the consent he or she gives, is no less true of c. 1095, 3º than of nos. 1 and 2 of the canon. The canon in its entirety is concerned precisely with factors internal to the subject which impede valid consent.

            Each of the three heads under which c. 1095 considers consensual incapacity is therefore characterized by the presence of an invalidating defect or insufficiency in the subject (the contracting party), regarding the object (matrimony) which he or she purports to choose. The whole of the canon deals with an inadequacy of subject in relation to object. If this is so, the division into three heads must indicate that the defect of the subject is internally configured in a different way in each of the three cases. The analysis of the canon therefore calls for a more exact determination of the distinctive nature and root of the defect, as contemplated in each number of the canon.

            In no. 1, the matrimonial incapacity of the subject arises from his or her absolute incapacity (at least in the moment of consent) for any human act, due to lack of sufficient use of reason. Nos. 2 and 3 deal, however, not with incapacity for any human choice, but with an incapacity relating to the essential rights/obligations of marriage ("... who suffer from a grave lack of discretion of judgment concerning the essential matrimonial rights and duties"; "... who are not capable of assuming the essential obligations of matrimony").

            It could therefore be said that, insofar as one can speak of the object of the choice under no. 1, it is marriage considered "simpliciter"; whereas in nos. 2 and 3, it is marriage considered from the angle of its essential rights/obligations. If the lack of use of reason contemplated in no. 1 is verified, the marriage is always null. But even if a grave lack of discretion or an incapacity to assume are proved under nos. 2 or 3, consensual incapacity does not ensue unless it is also shown that the anomaly in question incapacitated the person precisely in relation to a right/obligation which is essential to marriage.

            If we now focus attention on nos. 2 & 3 of the canon from this viewpoint - that both treat of a defect of the subject vis-à-vis the object - , we can repropose the question: what is the main reason for the distinction between the two grounds? One possible answer might be that 1095, 2º deals with consensual incapacity which is rooted in the estimative powers of the subject, while 1095, 3 considers such incapacity when it affects his or her executive powers, always in relation to the essential rights/obligations of marriage.

Defect in the mind; defect in the will

            According to this hypothesis, the defect of the subject (at the moment of consent) in relation to the object would be rooted in the mind, in the case of 1095, 2º; and in the will, in the case of 1095, 3º. As we read in a recent Decree, this attribution has considerable logical consistency: "just as the mind and the will are inter-connected, each in its own specific way, in matrimonial consent, so in canon 1095, an incapacity in the intellective sphere is related to a defect of discretion of judgment (no. 2 of the canon), and an incapacity of assuming the obligations promised pertains to the volitive sphere (no. 3 of the canon): so the two numbers of the canon, each in its own way, are inter-related in the matrimonial consent given" (c. De Lanversin, Decree of Jan. 13, 1993, no. 6).

            If one takes this approach, cases of consensual incapacity attributable to anomalies or defects of the mind are covered by c. 1095, 2, while c. 1095, 3 covers those where the incapacity is rooted in defects of the will. Under no. 3 of the canon, then, a person understands the essential obligations sufficiently but, due to weakness of the will, is unable to carry them out; and therefore cannot validly assume them. He or she lacks executive ability.

            Analysis along these lines might reasonably take another step which would bring out the logic of the canon and facilitate its application; that is, to assign all cases of incapacity due to defect of the will to c. 1095, no. 3. From the volitive viewpoint, one must in fact consider not just possible executive inability - inadequacy of the will to dispose of the object chosen or to fulfil the obligations consented to - but the prior and even more radical hypothesis of elective inability: i.e. absolute incapacity for making any choice whatsoever.

            In other words, a person can be volitively incapable of valid matrimonial consent:

            a) because, while he retains his will power, it exists in such a weakened state that it is not up to the measure of the object choosen. He is able to choose, but is not able to fulfil (always remembering that a real impossibility, and not just a difficulty must be proved). Nymphomania could be a case in point;

            b) or because he has totally lost his will power, his very power of free choice. His internal freedom has been so undermined that his actions are no longer human choices at all. He is not able to fulfill, because he is no longer even able to choose. A pathology such as drug-addiction can reduce a person to such a state.

            In the first case, his incapacity derives from the inadequacy of his executive power; he is unable to assume because he is unable to fulfil. In the second case, it is the very elective power itself that is missing; he is unable to assume simply because he is unable to make any true human choice.

            Thus all cases of incapacity with a volitive origin - will existent, but too weak; and non-existent will - would be dealt with under c. 1095, 3º. And so we would have reached a consistent analysis of the difference between no. 2 and no. 3 of the canon:

            1095, 2º: defects of the mind; of the estimative-critical faculty;

            1095, 3º: defects of the will; of the elective-executive faculty.

            This might give a better picture of the logical unity and division of the canon. While it has one topic - consensual incapacity of a person purporting to marry - it contemplates it from three angles: a) invalid consent because of absolute incapacity for any human choice; b) invalid consent deriving from defects of the mind, in respect to the essential rights/obligations of marriage; c) invalid consent deriving from defects of the will, in the same respect.

            This moreover could bring the juridic use of the term "discretion of judgment" into greater harmony with its more properly philosophic sense, where it possesses an intellective, not a volitive, connotation.