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Use of proper terminology. The years 1968-1983 witnessed the revision of the old Code of Canon Law, so as to bring the law of the Church more in line with the ecclesial spirit of the Second Vatican Council. It was a period when many new ideas, being proposed and debated in doctrine or jurisprudence, were considered in depth by the Pontifical Commisssion charged with the revision. Concepts, phrases and formulae were weighed and sifted; many were passed over or rejected; others were molded and developed until they reached a final configuration in which they were approved and incorporated into the new Code.

                                                                                A certain provisionality marked this period, which was brought to an end with the promulgation of the new Code in 1983. As the Pope said to the Rota in 1984, "after the promulgation of the Code, it cannot be forgotten that the period of ius condendum is over, and that now the law, even with the possible limitations and defects that may accompany it, is an option already made by the legislator after deep reflection, which therefore calls for full acceptance. Now is no longer the time of discussion, but of application" (AAS 76 (1984) 646).

                                                                                In the same discourse, the Pope did indeed say that ""In the new Code... there are canons of special importance for matrimonial law which have of necessity been formulated in a generic way and await further determination, to which solid rotal jurisprudence above all can validly contribute"; and he referred concretely to the determination of the "defectus gravis discretionis iudicii", the "officia matrimonialia essentialia", and the "obligationes matrimonii essentiales", mentioned in can. 1095 (ib. 648). With reference therefore to the question of consensual capacity for marriage, and taking the first instance which the Pope gives - "grave lack of discretion of judgment" - , c. 1095 gives clear legal entitlement to one particular term, in deliberate preference to others used before the Code as more or less equivalent ("[simple] lack of discretion", "lack of maturity of judgment", "immaturity", "lack of internal freedom"...). The post-Code moment, then, "non è più tempo di discussione" regarding the merits of various expressions formerly used to formulate or judge grounds of consensual incapacity, but of "ulteriore determinazione" or more precise analysis of the scope and application of those actually incorporated into c. 1095.

                                                                                Sound tribunal practice will bear this in mind, very specially too in the formulations used for the joinder of the issue in specific cases, and in the judicial decision which responds to the doubt so formulated. The utilization of terms superseded by the Code, in drafting doubts or in judicially resolving them, neither coresponds to good practice nor represents a contribution to the more accurate determination of what is at least for the moment our given frame of reference. Grounds of consensual incapacity should therefore be expressly formulated following the literal tenor of one or other of the hypotheses indicated in c. 1095.

                                                                                Fear, freedom and consent. Fear and marital consent can be related in three main ways. In the first place, fear may be the immediate cause of a person's consent. Secondly the presence of fear can lead a person to internally reject the marital commitment (in its entirety or one of its essential aspects) which, through external consent, he or she apparently accepts. Thirdly, fear may so undermine a person's psychic faculties that he or she becomes incapable of consenting.

                                                                                In the first case, there is true and conscious consent, although in certain circumstances (cf. c. 1103) the law will declare it null. In the second case, true and adequate consent is consciously excluded. In the third case, consent is consciously given, but is unconsciously inadequate. In both these latter cases, consent is per se invalid.

                                                                                A person is not always master of his external actions; and so he may utter an external profession of conjugal self-commitment, without this self-giving being real. It is real only if he has made (and is able to make) it his own by an internal deliberate and free choice. Force or fear may so affect a person that he performs some external act which is contrary to his will. No pressure, however great, can force a person to give free (and therefore truly human) internal consent to his external actions. A person under grave pressure to contract marriage may say "I do" externally; but his will remains free, and if the real internal choice of his will is "I do not", then he simulates, and his consent is null, i.e. is totally non-existent. Gasparri, recalling the dictum "coacta voluntas est semper voluntas", goes on to add: "E contrario, matrimonium est evidenter nullum, si pars metum passa in ipso matrimonii actu simulat consensum" (Gasparri, P.: De Matrimonio, Ed. tertia, 1904, n. 927-929).

                                                                                Thus the presupposition behind c. 1103 is that of a person who neither consciously simulates consent (c. 1101), nor is unconsciously incapable of validly consenting (c. 1095), but does give actual consent which is valid of itself, although positive law, in consonance with what would seem to be the demands of the natural law, is prepared to nullify it (cf. decis. Austinien. coram infrascripto, d. 6 aprilis 1995, n. 2).

                                                                                Freedom and motivation. These elementary distinctions seem relevant in considering a statement made by the Judges in the first instance judgment in the case before us: "la actividad que constituye el acto de elección voluntaria será libre en cuanto no esté predeterminada por las fuerzas externas o por motivos internos" (Acts, p. 59). One accepts the first part of this statement (a human choice "será libre en cuanto no esté predeterminada por las fuerzas externas") with no difficulty. The same however cannot be said of the second part: that the act of consent is free only if it is not determined "por motivos internos".

                                                                                "A motive can indeed be described as an interior stimulus or psychological pressure urging a person to a particular choice. But internal motives in themselves, unlike certain pressures coming from outside, do not take away freedom. If one holds that freedom means unmotivated decisions, one easily comes to regard the presence of motives as "proof" of some form of internal coercion which, just as external coercion (cf. c. 1103), would involve a violation of human dignity and freedom. This is not sound psychology" (cfr. decis. coram infrascripto d. 5 novembris 1992: RRD, vol 84, p. 524).

                                                                                Indetermination and determination are stages in the process of choosing. Freedom initially calls for indetermination. If a person's initial position, regarding a possible choice, were one of pre-determination, he would then in fact have no freedom in choosing. On the other hand, if he were so inhibited in choosing as to be incapable of emerging from his initial indetermination, his freedom would be paralysed and illusory. The person who can never make his mind up, never chooses; he may be free, but his indecision renders his freedom useless. To be effectively free, one must be capable of passing from indetermination to determination; one must be capable of self-determination. Now such a passage from indetermination to determination, if it is to be rational and human, must always be based on motives. If it were not, if it were based on no motive or reason, it would be random or irrational; the very absence of motivation would point to a lack of discretion of judgment.

                                                                                "The indetermination which must be introduced into freedom has nothing in common with that other indetermination characterizing freedom of indifference, i.e. a reasonless choice, a motiveless willing. Freedom of indifference is something non-sensical..." (R. Zavalloni: La libertà personale. Psicologia della condotta umana, Milan, 1973, p. 237).

                                                                                Any rational act of the will is the result of a process marked by "the appearance of motives. The appearance of motives should lead to a decision. Frequently, however, in the course of the process of the will, a weighing or even a conflict of motives must take place. The result of such a weighing or conflict of motives is the victory of some one motive, followed by a choice made by the will" Wojtyla: Person & Comm*, p. 12). Hence motive in conflict wiht igitur inter se repugnantia confundi non debent cum absentia libertatis; signum potius sunt eius praesentiae.

                                                                                The motives presenting themselves to a person faced with a decision, are not always in harmony; they do not always incline a person in the same direction. On the contrary it frequently happens (and especially in important choices) that some motives point one way, and others another. In the end when a person chooses to be swayed by one set of motives rather than another, it is not always because they point to the easiest or the surest decision, or to one not colored by some misgivings. Few options involving a serious commitment (such as is certainly the case in choosing to marry) are taken without doubts or questionings, since some residual considerations against even what seems to be the best choice almost always remain in the mind. But reluctant choosing does not per se cease to be free choosing.

                                                                                It is through a process of discovering motives that a person abandons his position of indifference, and is enabled to come to a choice for or against a particular action, so exercising his freedom. It is an elementary mistake therefore to think that because a choice is motivated, it is less free. And yet some people do entertain "the false supposition that freedom implies the exclusion of all motivation" (ibid. 66). No one makes a true human choice without a motive. Actions without motives would not be free; they would be irrational. "Freedom is not in fact something anarchical or irrational; it does not consist in the absence of causality or of motivation" (ibid. 231).

                                                                                "Daily experience teaches us, even more effectively than scientific discourse, that we are all prompted by countless urges, whether rational or irrational in nature, and by so many circumstances that move us to act. But no clear-thinking person concludes that man is therefore determined by these impulses in his actions, or that they deprive him of his freedom. It is by his discernment that man exercises control over them, accepting some, and rejecting or overcoming others" (c. Agustoni, May 27, 1980: RRD, vol. 72, p. 402).

                                                                                The judges of first instance could have expressed themselves more exactly by recalling the distinction so finely expressed by Vatican II in Gaudium et Spes (no. 17): "man's dignity demands that he act according to a knowing and free choice that is personally motivated and prompted from within, not under blind internal impulse nor by mere external pressure". Internal motivation does not take from human dignity in choosing; a blind interior impulse that is both irrational and irresistible, does. No normal person is dominated by blind impulses, at least in relation to any serious decision in life, such - we repeat - as marriage certainly is. Whoever "consents" to marriage under a blind impulse is not normal; on the contrary, he or she exhibits a gravely disturbed personality, at least in that moment.

                                                                                Certainly an anomalous psychic situation, where one is no longer master of his actions, could be precipitated by external circumstances which are of such impact as to completely unbalance a person inside, leaving him at the mercy of impulse. But the blinding and de-rationalizing effect of those circumstances must be proved in order to successfully advance a plea of nullity under c. 1095, 2° .

                                                                                Regarding the role of Defender of the Bond in matrimonial processes, we should note the following words of Pope John Paul II in his 1988 Address to the Rota: "When his participation in the process goes no farther than the presentation of mere rote observations, then there would be serious motives to deduce that he is guilty of an unacceptable ignorance or a grave neglect of duty, which must weigh on his conscience, and make him responsible with regard to the administration of justice in church tribunals, since his attitude would weaken the effective search for the truth which is the basis and the law of justice" (AAS vol. 80 (1988) 1185).

                                                                                We would finally draw attention to the procedural norm that should be observed in first instance at the very start of the case: the need, that is, of weighing whether the petitioner's petition appears to offer basis for a claim in law. The tribunal is bound to examine the petition to decide whether it rests on some at least minimal juridical basis, whether, that is, there is at least some small possibility that it be upheld after a formal judicial process (c. 1505 § 2, 4º), since it is an abuse to admit to full examination a case that quite certainly lacks any foundation. We recall the words of Pope Paul VI in his address to the Roman Rota in 1965: "In accepting or rejecting a libellus, one needs a vigilant sense of justice so that cases that lack any foundation or which are manifestly based on false claims, or even on true facts but juridically incapable of producing the desired effect, should be rejected with courageous firmness" (AAS **)

                                                                                Moreover, as regards cases presented under c. 1095, 2º, the petition is not to be accepted unless the allegations made offer some basis for thinking that a notable defect of discretion of judgment concerning some essential right or obligation of marriage indicating also some serious psychic anomaly was present at the moment of matrimonial consent, and not merely slight or moderate pathologies or mere defects of character (cfr. Allocutions of Pope John Paul II to the Roman Rota in 1987 and 1988: AAS, vol. 79, 1457; vol. 80, 1181).

The Argument

                                                                                Before we enter on the merit of the present case, two points in the procedure in first instance deserve a brief comment. We note a lack of desirable rigor in the way in which the sentence of first instance answers the doubt before it. The doubt was concorded according to the literal tenor of c. 1095 2° ; while the Sentence concludes "al Dubio tal como se propuso hemos de contestar en sentido afirmativo, es decir, consta la nulidad del matrimonio debido a: falta de libertad interna al contraer en la persona del demandante". Recalling the legal considerations made above, we must add that not only should doubts be formulated according to the precise terms of the canons, but a decision itself should respond clearly to the doubt as actually formulated.

                                                                                The Observations of the Defender of the Bond consist of five very brief paragraphs, and contain no argument whatsoever in defence of the bond itself (Summ. 49). This cannot be regarded as an adequate or responsible fulfilment of the mission of the Defender; cf. the words of Pope John Paul II noted in our "In Iure" section.

                                                                                Nothing adduced to explain how the father, a good Catholic, should have wished to impose a loveless marriage on son. Furthermore, no evidence regarding aversion to the marriage is produced.