D. 34 - On personal impediments

After the Master has considered marriage and determined its causes, here he considers those persons contracting marriage. And this is divided into two parts: in the first, he determines the impediments to marriage that do not make the persons entirely ineligible to contract it; in the second, those by which the persons are rendered entirely ineligible for marriage, in Distinction 37, at: for there are some orders in which marriage cannot be contracted at all. (Sententiae IV, 37.1 (212). 1.)

The first is divided into two: in the first, he considers a certain impediment to marriage which makes a person ineligible, not simply but in a certain respect. It consists in a defect of nature, namely, impotence; second, of the impediment of condition according to the customs and statutes of men, namely, servitude, in Distinction 36, at: now let us see whether condition can divide a marriage. (Sent. IV, 36.1 (208). 1.)

The first is divided into two: in the first part, he considers the impediment of impotence, which impedes the contracting of marriage; in the second, the impediment by which the act of a marriage already contracted is impeded, namely fornication, as it is a cause of separation, in Distinction 35, at: it is also to be noted, etc. (Sent. IV, 35.1 (204). 1.)

The first is divided into two parts. In the first, he pursues the impediments of the persons contracting marriage in general; in the second, he descends specifically to the impediment which he intends first to address, at: concerning those who cannot render the debt because of frigidity, blessed Gregory counsels that they remain together. (Sent. IV, 34.2 (199). 1.) And this is divided into two: in the first, he shows that impotence preceding the marriage impedes it from being contracted; in the second, he shows that something occurring unexpectedly during the marriage itself cannot dissolve it, at: it is also to be known, etc.

The first in two parts: in the first, he considers a natural effect that impedes matrimony by rendering a person incapable of physical intimacy; in the second, he considers an effect of sin, which renders a person unfit for it, and which also impedes marriage, namely, incest, where he states: as for those men who sleep with two sisters, or those women who do the same with two brothers, let us see what the canons decree. (Sent. IV, 34.5 (202). 1.)

The first in two parts: in the first, he considers the impediment in which a man is rendered by nature incapable of the sexual act; in the second, the impediment in which he is rendered incapable of consenting to conjugal intimacy, where it says: the insane, too, while they are in a demented state, cannot contract marriage. (Sent. IV, 34.4 (201). 1.)

The first in two parts: In the first, he considers inability to have intercourse from natural causes, which is impotence; in the second, the inability that results from a curse, where he states: but concerning the impediment of sorcery, it is decreed that the following be observed. (Sent. IV, 34.3 (200). 1.)

Question 1

On personal impediments

Here five questions arise:

first, concerning the impediments of marriage in general;

• second, whether impotence impedes matrimony;
• third, whether a curse does;
• fourth, whether insanity or mental handicap does;
• fifth, whether incest does.
• Article 1

Concerning the impediments of marriage in general

Obj. 1: To the first question, we proceed thus. It seems that the impediments to matrimony are not fittingly assigned. For marriage is a certain sacrament belonging to the same genus as the others. But to the others no impediments are ascribed. Therefore, neither should any be ascribed to matrimony.

Obj. 2: Furthermore, the less perfect something is, the fewer the ways in which it can be impeded. But marriage is the least perfect among the sacraments. Therefore, either no impediments or the fewest impediments should be assigned to it.

Obj. 3: Furthermore, wherever there is a sick person, it is necessary for there to be a remedy for the sickness. But concupiscence, for whose remedy marriage was granted, is in everyone. Therefore, there should not be any impediment that would make someone entirely ineligible for contracting it.

Obj. 4: Furthermore, something is called ineligible which is against the law. But impediments of this kind that are assigned to marriage are not against the law of nature, since they are not found in the same way in every condition of the human race, for more degrees of consanguinity are found to be prohibited at one time than at another. But human law cannot, it seems, lay down impediments to matrimony, for matrimony is not of human institution, but of divine, as also are the other sacraments. Therefore, there should not be assigned certain impediments to marriage making persons ineligible for contracting it.

Obj. 5: Furthermore, ineligible and eligible differ according to what is against the law or not against the law, between which there is no mean, since they are opposed according to affirmation and negation. Therefore, there cannot be certain impediments to marriage, by which persons are placed in the mean between eligible and ineligible.

Obj. 6: Furthermore, no impediment can remove from something what is included in its own definition. But indissolubility is included in the definition of marriage, as was evident above in Distinction 27, Question 1, Article 1, Quaestiuncula 3. Therefore, there cannot be certain impediments which nullify the marriage contract.

Obj. 7: Furthermore, the union of man and woman is only licit in matrimony. But every illicit union can be nullified. Therefore, if something should impede marriage from being contracted, this would invalidate the contract by that very fact; and thus there should not be some impediments listed which prevent marriage from being contracted but which do not invalidate the marriage contract.

On the contrary (8), it seems that there should be infinite impediments to matrimony. For matrimony is a certain good. But there are infinite ways of falling away from the good, as Dionysius says. (Pseudo-Dionysius, On the Divine Names, ch. 4, n. 32 (PG 3:732).) Therefore, the impediments to marriage are infinite.

Furthermore (9), the impediments to matrimony are taken according to the conditions of particular persons. But conditions of this kind are infinite. Therefore, so are the impediments to marriage.

I answer that, in marriage there are certain things that are of the essence of matrimony, and certain things that belong to its solemnity, as is the case also with the other sacraments. And since when those things are removed that are not necessary for the sacrament, the validity of the sacrament remains, therefore impediments which oppose those things that are of the solemnity of the sacrament, do not obstruct it from being a valid sacrament.

And such things are said to impede the contracting of marriage, but they do not invalidate the contract; for example, the prohibition of the Church, and the period of holy days. And this is where we get the verse: though the forbidding of the Church as well as the holy days impede it from happening, they permit those who have been joined together to remain bound. (See Raymond of Peñafort, Summa, Bk. 4, tit. 2, §9 (481a); Albertus Magnus, In Sent., Bk. 4, d. 34, a. 2, post tit. (BO XXX, 328).)

However, impediments that go against those things that are essential to matrimony prevent it from being a valid marriage. Therefore, they are said not only to impede the marriage from being contracted but to invalidate the contract; and these impediments are contained in the following verse: error, condition, vow, relationship, crime, disparity of cult, force, holy orders, previous bond, decency, if you are related by affinity, if perhaps you will be incapable of intercourse: these things taken together forbid marriage, or, when already done, annul it. (Ibid.)

Now, one can arrive at the number of impediments in this way. For marriage can be impeded on the part of the contract of matrimony, or on the part of the ones contracting. If in the first way, since the contract of marriage is made by voluntary consent, which is removed by ignorance or violence, there are two impediments to marriage, namely force, which is compulsion, and error, arising from ignorance. Therefore, the Master considered these two impediments above, where the causes of marriage were treated. (See Sentences, Bk. 4, d. 29 (QR II, 929); d. 30, ch. 1 (QR II, 930).)

But now he treats the impediments that are taken on the part of the persons contracting, which are distinguished thus. For someone can be impeded from contracting marriage either simply, or with respect to some certain person.

Simply, as when he cannot contract marriage with anyone; and this only happens because one is impeded from the marital act, which indeed may occur in one of two ways. First, if de facto one cannot; either because one cannot at all in any way, and thus is established the impediment of impotence in intercourse; or because one cannot freely, and thus is established the condition of servitude. Second, if one cannot licitly, because one is obligated to continence, which may happen in two ways, since one is either obligated by the office one has received, and thus it is the impediment of holy orders; or because of a vow taken, and in this way, the vow impedes marriage.

If, however, someone is impeded from marriage not simply, but with respect to some particular person, then it is either because of an obligation to another person, as someone who is joined to one person in marriage cannot be joined to another, and thus is a previous bond, namely, of marriage; or because the proper relation is lacking to the other person: and this happens three ways.

First, because the person is extremely distant from one, and thus is disparity of cult.

Second, because the person is extremely closely related, and thus three impediments are included: namely, family relation, which consists in a close relationship of two persons in themselves and affinity, which consists in a close relation of two persons by reason of a third person having been joined by marriage to one of them; and the justice of public decency, in which there is a close relation of two persons by reason of a third person having been joined by betrothal to one of them.

Third, because of an undue union already formed with that person; and thus the crime of adultery previously committed with the same woman impedes marriage with her.

Reply Obj. 1: Other sacraments can also be impeded, if something that is of the essence or of the solemnity of the sacrament is taken away, as was said. (See In IV Sent., d. 13, q. 1, a. 2, qa. 6.) But nevertheless, more impediments are assigned to marriage than to the other sacraments, for three reasons. First, because marriage exists in two persons, and therefore it can be impeded in more ways than other sacraments, which only involve one person individually. Second, because marriage has its cause in us, but the other sacraments only in God; for which reason the Master also assigned to penance, which has its cause in us in a certain way, certain impediments, like hypocrisy, joking, and things of this kind. (See Sentences, Bk. 4, d. 16, ch. 1 (QR II, 889).) Third, because there are precepts or counsels about the other sacraments, as concerning more perfect goods, but about marriage there is indulgence, as concerning a less perfect good; and therefore, that an occasion might be given for progressing to better things, more impediments are assigned to marriage than to the other sacraments.

Reply Obj. 2: More perfect things can be impeded in many ways, inasmuch as many things are required for them. If however, there were something imperfect for which many things were required, that thing would also have many impediments, and this is the way with marriage.

Reply Obj. 3: That argument would hold if there were not other remedies by which also the sickness of concupiscence could be relieved more effectively, which is false.

Reply Obj. 4: Those persons ineligible for contracting marriage are so named from the fact that they are against the law by which marriage is constituted. But marriage, inasmuch as it is an office of nature, is founded on natural law; inasmuch as it is a sacrament, it is founded on divine law; inasmuch as it is an office of the community, it is founded on civil law; and therefore, by any one of the laws named a certain person can be made ineligible for marriage. Nor is it similar with the other sacraments, which are only sacraments. And because natural law received diverse determinations according to diverse states, and positive law is also varied according to the diverse conditions of men in diverse times, therefore the Master counts different persons to have been ineligible in different times. (Sentences, Bk. 4, d. 34, ch. 1 (QR II, 953).)

Reply Obj. 5: Law can prohibit something either universally or in part with regard to certain cases; and therefore, between being completely legal and being completely against the law, which are opposed as contraries and not according to negation and affirmation, there falls the mean of being in a certain way according to the law and in a certain way against it. And for this reason, certain persons are counted a mean between simply eligible and simply ineligible.

Reply Obj. 6: The impediments mentioned are not said to destroy the marriage contract as though dissolving a valid marriage that has been contracted properly, but because they dissolve that marriage that has been contracted de facto and not de jure. This is why if an impediment arises in some marriage properly contracted it is not enough to dissolve it.

Reply Obj. 7: Those impediments that do not dissolve the marriage contract sometimes impede the contracting of the marriage, not so that it does not happen, but so that a valid marriage is not made licitly. And nonetheless, if it is made, the marriage is a valid contract, although those contracting it sin; just as if someone consecrated the Host without fasting, he would sin, acting against the statutes of the Church. Nevertheless, a valid sacrament would be performed, since the fast of the consecrator is not of necessity to the sacrament.

Reply Obj. 8: There are infinite impediments by which a certain good is impeded per accidens, as is the case with all incidental causes. But the causes that corrupt a certain good per se are determinate, as is the case with constituent causes; for causes of construction and destruction are from things that are opposed, or from the same thing taken in opposite modes.

Reply Obj. 9: The conditions of particular persons as individuals are infinite, but in general they can be reduced to a certain number, as is evident in medicine, and in all the practical arts, which consider conditions of the particulars, for actions are about particulars.

Article 2

Whether impotence impedes matrimony

Obj. 1: To the second question, we proceed thus. (Parallels: below, d. 36, a. 1; Quodl. XI, q. 9, a. 2.) It seems that impotence does not impede marriage from being contracted. For physical intimacy is not of the essence of marriage; since those marriages are more perfect in which the spouses take a mutual vow of continence, as was said above in Distinction 26. But impotence takes away nothing from marriage except physical intimacy. Therefore, it is not a diriment impediment to contracting marriage.

Obj. 2: Furthermore, just as extreme frigidity impedes physical intimacy, so also does extreme heat, which dries a man out. But heat is not counted among the impediments to marriage. Therefore, neither should the frigidity that causes impotence be counted as an impediment.

Obj. 3: Furthermore, all old men are impotent. But old men can contract marriage. Therefore, impotence does not impede marriage.

Obj. 4: Furthermore, if a woman knows a man to be impotent when she contracts marriage with him, it is a valid marriage. (See Gregory IX, Decretals, Bk. 4, tit. 15, ch. 4, “Consultationi tuae.”) Therefore, impotence in itself does not impede marriage.

Obj. 5: Furthermore, it sometimes happens that a man can have a healthy dryness sufficiently moving him to sexual intimacy with an experienced woman, but not with a virgin; for immediately the heat evaporates because of its own weakness, so that it is not sufficient for penetrating a virgin. And likewise, in a certain man there may be sufficient heat to move him with respect to a pretty girl, who inflames more his concupiscence, but not sufficient to move him toward an ugly girl. Therefore, it seems that impotence also may impede with respect to one person, but not simply speaking.

Obj. 6: Furthermore, a woman is universally more frigid than a man. But women are not impeded from marriage by this fact. Therefore, neither should impotent men be impeded.

On the contrary (1), it says in the Decretals, concerning the impotent and those under a spell: just as a child, who cannot render the debt, is not suited to this union, so also those who are incapable are considered least suited to contracting marriage. (Ibid., ch. 2, “Quod sedem.”) But the impotent are among these. Therefore, etc.

Furthermore (2), no one can oblige himself to the impossible. But in marriage man obliges himself to carnal intimacy, since he gives another power over his own body to this end. Therefore, the impotent, who cannot engage in sexual intercourse, cannot contract marriage.

I answer that, in marriage there is a certain contract, by which one person is obliged to the other to discharge the physical debt. Therefore just as in other contracts there is no fitting obligation if someone obliges himself to something that he cannot give or do, so it does not befit the marriage contract if it is made by someone who cannot discharge the marital obligation. And this impediment is called inability to have intercourse by the general name, which indeed can occur either by intrinsic and natural causes, or from extrinsic accidental causes, such as by a curse, which we will speak about later. (In the next article.) If, however, it is from natural causes, this can be in two ways: either it is temporary, which can be remedied by the benefits of medicine or the progress of time, and then it does not dissolve the marriage; or it is perpetual, and then it does dissolve the marriage, (Gregory IX, Decretals, Bk. 4, tit. 15, ch. 3, “Ex litteris.”) so that the one who is alleged to have the impediment remains perpetually without hope of marrying, while the other may marry whom he or she wills in the Lord.

However, in order to know whether the impediment is perpetual or not perpetual, the Church has employed a determined time in which this matter can be tested, namely, three years. (Ibid., ch. 5, “Laudabilem.”) Thus, if after three years in which both parties have faithfully applied themselves to the accomplishment of carnal intimacy, the marriage is found not to have been consummated, it is dissolved by the judgment of the Church. (Ibid.) However, in this the Church sometimes errs, since sometimes three years is not enough to prove perpetual impotence. Therefore, if the Church finds itself deceived by the fact that a certain man in whom there was formerly this impediment, is found to have accomplished carnal intimacy with the same woman or another woman, it may restore the preceding marriage and annul the second, even though it was made with the Church’s permission. (Ibid.)

Reply Obj. 1: Although the act of physical intimacy is not of the essence of matrimony, nevertheless the power for it belongs to marriage’s essence. For through marriage the power over the body of the other is given to both of the spouses with respect to physical intimacy.

Reply Obj. 2: An excessive heat can scarcely be a perpetual impediment. Yet if it were found that for three years it impeded physical intimacy, it would be judged perpetual. Still, since frigidity impedes in a greater way and more frequently (for it takes away not only the commingling of seeds but also the rigidity of the member by which the union of bodies occurs), for this reason frigidity is considered more of an impediment than excessive heat, since every natural defect may be traced back to frigidity.

Reply Obj. 3: Sometimes the elderly, although they may not have sufficient heat for generation, nevertheless have sufficient heat for sexual intimacy; and therefore marriage is granted to them, according as it is a remedy, although it is not their duty as an office of nature.

Reply Obj. 4: In any contract whatsoever, this is universally binding, that the person who is unable to fulfill something is not considered fit for the contract by which he obliges himself to its fulfillment. Yet someone can be incapable in three ways. In one way, if he cannot do something de jure. And in this way such an incapacity makes the contract null in every way, whether the one with whom the contract is made knows about this incapacity or not. In another way, when he cannot do it de facto; and then if the one with whom the contract is made should know about this incapability, and nevertheless agree to the contract, it reveals that in this contract the other party is seeking different end, and therefore the contract stands. However, if the other party does not know, then the contract is null. Therefore, impotence, which causes such an incapacity that a man cannot acquit his obligation de facto, and the condition of slavery, by which a man cannot render it freely de facto, both impede marriage when one spouse is ignorant that the other cannot render the debt. Yet the impediment by which someone cannot render the debt de jure, such as consanguinity, annuls the marital contract whether the other party knows or not; and because of this the Master (Sentences, Bk. 4, d. 34, ch. 1 (QR II, 954).) counts these two as impediments which make persons entirely ineligible. (A variant reading of “non omnino” is noted in both Parma and Vives; this variant was adopted in the Summa Supplement (see q. 58, a. 1, ad 4, in fine).)

Reply Obj. 5: There cannot be a perpetual natural impediment in the man with respect to one person and not to another; but if he were unable to complete the sexual act with a virgin, but he could with a woman who is not, then the hymen could be broken medically by some instrument, and they could be united. Nor would this be against matrimony, since it would not be done for the purpose of pleasure, but for a medical reason. However, loathing the woman is not a natural cause, but an extrinsic, accidental cause, and therefore it is adjudged the same as a curse, which will be discussed later. (In the following article.)

Reply Obj. 6: The male is the active principle in generation, but the female is the passive principle; and therefore, greater heat is required in the man than in the woman for the work of generation. This is why impotence makes a man incapable, but frigidity would not make a woman incapable. But in the woman there can be a natural impediment from another cause, namely, extreme tightness; and then the judgment of tightness in the woman is the same as that of impotence in the man.

Article 3

Whether a curse does

Obj. 1: To the third question, we proceed thus. (Parallel: Quodl. XI, q. 9, a. 1. Today this is impediment is listed in canon law as relative impotence with respect to one particular person (can. 1084), and is considered under the heading of a psychological problem.) It seems that a curse cannot impede marriage. For evil spells of this kind are the work of demons. But demons do not have the power of impeding the marital act any more than other bodily acts, which they cannot impede. For if this were so, the whole world could be disturbed—if eating and walking and other things like this were impeded. Therefore, marriage cannot be impeded by evil spells.

Obj. 2: Furthermore, the work of God is stronger than the work of the devil. But an evil spell is a work of the devil. Therefore it cannot impede marriage, which is a work of God.

Obj. 3: Furthermore, no impediment voids the marriage contract unless it is a perpetual impediment. But an evil spell cannot be a perpetual impediment: for since the devil only has power over sinners, when the sin was driven out it would remove the spell; or it could also be removed through another spell, or through the exorcisms of the Church, which are ordained to repressing the force of the demons. Therefore, an evil spell cannot impede marriage.

Obj. 4: Furthermore, physical intimacy cannot be impeded unless the power of generation, which is its principle, is also impeded. But the reproductive power of one man has the same capacity toward all women. Therefore, by an evil spell there cannot be an impediment in a man with respect to one woman, unless it were with respect to all women.

On the contrary (1), it says in the Decretals: if through sorcery or evil spells, and further: if they are not able to be cured, it is worthwhile that they be separated. (Gratian, Decretals, pt. 2, cause 33, q. 1, can. 4, “Si per sortiarias.”)

Furthermore (2), the power of the demons is greater than that of man: there is no power upon the earth which compares to it (Job 41:33). But by a human deed some man might be made incapable of carnal intimacy through some drink or through castration, and by this marriage is impeded. Therefore, much more can this be done by the power of the demons.

I answer that, certain people have said that witchcraft did not exist in the world, except in the impressions of men, who attribute to evil spells those natural effects whose causes are hidden. But this is against the authorities of the saints, (See Augustine, On the Literal Meaning of Genesis, Bk. 11, ch. 28; On the Trinity, Bk. 3, ch. 7.) who say that demons have power over bodies and over the imaginations of men, when they are permitted to by God. And this is how sorcerers can do certain works of magic through them. Now the opinion mentioned above proceeds from a root of lack of faith, or disbelief, for they do not believe that the demons exist except in the imagination of the common people alone, such that the terrors that a man makes for himself out of his own mind, he imputes to a demon; and also because from a vigorous imagination certain figures may appear to the senses just as a man thinks them, and then he believes that he sees demons. But these notions are repudiated by the true faith, by which we believe that angels fell from heaven, and that demons exist, and are capable from the subtlety of their nature of many things which we cannot do. Therefore, those men who summon them for doing these kinds of things are called sorcerers.

And therefore, others have said that through evil spells an impediment to carnal intimacy can be established, but nothing of this kind is perpetual, so that it does not void the marital contract, and they say that the laws that said so were revoked. But this is against experience, and against the new laws, (Gregory IX, Decretals, Bk. 4, tit. 15, ch. 7, “Litterae,” with Bernard of Parma, Glossa ordin. in Decretal. Gregor. IX on the same chapter (1083a).) which agree with the old ones. (Gratian, Decretals, pt. 2, cause 33, q. 1, can. 4, “Si per sortiarias.”)

And therefore a distinction must be drawn: for inability to have intercourse because of an evil spell is either perpetual, and then it invalidates the marriage, or it is not perpetual, and then it does not invalidate it. And to test this the Church has fixed a period of time in the same way, namely three years, just as was stated for impotence. Still, there is this difference between being under an evil spell and impotence, that someone who is incapacitated by impotence is just as incapable with one woman as with another. And therefore when the marriage is nullified, he is not granted permission to unite with another. But under a curse a man can be unable to unite with one woman and not with another; and therefore when by the judgment of the Church the marriage is nullified, both parties are granted permission to seek union with another.

Reply Obj. 1: Since the first corruption of sin, by which man was made slave to the devil, is passed on to us by the generative act, this is why the power of sorcery is permitted to the devil by God in this act more than in others; just as the power of witchcraft is displayed more in serpents than in other animals, as is said, (Augustine, On the Literal Meaning of Genesis, Bk. 11, ch. 28.) since through the serpent the devil tempted the woman.

Reply Obj. 2: The work of God can be impeded by the work of the devil by divine permission; not that the devil could be stronger than God such that he could destroy God’s work through violence.

Reply Obj. 3: Witchcraft is so enduring that it may not have a remedy in human action, although God may furnish the remedy by forcing out the demon, or the demon might even stop. For it is not always the case that what was done by one spell could be destroyed by another spell, as sorcerers themselves admit. But if the remedy could be applied by witchcraft, nevertheless it would be considered perpetual, since in no way should someone invoke the help of a demon through witchcraft. Likewise, it is not necessary that if because of some sin power was given to the devil over someone, this power should end when the sin ends: for sometimes punishment remains once guilt has passed away. Likewise also, the exorcisms of the Church are not strong enough to repress demons all the time as regards all corporeal troubles, when divine judgment requires this; but they are always strong enough against those infestations of demons that they were principally instituted against.

Reply Obj. 4: Sometimes witchcraft can establish an impediment with everyone, sometimes with just one person, since the devil is a voluntary cause, not acting from the necessity of nature. And furthermore the impediment of witchcraft can occur from the impression of a demon on the imagination of a man, removing the concupiscence that moves him toward a certain woman but not the concupiscence moving him toward another.

Article 4

Whether insanity or mental handicap does

Obj. 1: To the fourth question, we proceed thus. It seems that insanity does not impede marriage. For spiritual marriage, which is contracted in baptism, is nobler than physical marriage. But the insane can be baptized. Therefore, they can also marry.

Obj. 2: Furthermore, impotence impedes matrimony inasmuch as it impedes physical intimacy, which is not impeded by insanity. Therefore, neither is marriage.

Obj. 3: Furthermore, marriage is only invalidated by a perpetual impediment. But concerning insanity it is impossible to know if the impediment is perpetual. Therefore, it does not invalidate the marriage.

Obj. 4: Furthermore, these verses sufficiently contain the diriment impediments to matrimony. But no mention is made there of insanity. Therefore, etc.

On the contrary (1), insanity takes away the use of reason more than error. But error impedes marriage. Therefore, so does insanity.

Furthermore (2), the insane are not fit for making any contract. But marriage is a contract. Therefore, etc.

I answer that, insanity either precedes marriage or follows it. If it follows, it cannot invalidate the marriage in any way. But if it precedes, either the insane person has lucid intervals or not. If he does, then although while he is in that interval it is not safe for him to contract matrimony, since he is unable to educate the children; yet if he did contract a marriage, it is a marriage. If, however, he does not have lucid intervals, or if he should contract marriage while he is not having one, then since there can be no consent where the use of reason is lacking, it will not be a valid marriage. (See Gratian, Decretals, pt. 2, cause 32, q. 7, can. 26, “Neque furiosus,” with the Glossa ordin. in Decretum, ibidem (II, 1535b).)

Reply Obj. 1: The use of reason is not required for baptism as its cause, as it is required for matrimony. Therefore, there is no similarity. But concerning baptism of the insane, see above, Distinction 6. (See In IV Sent. d. 4, q. 3, a. 1, qa. 3 as well as d. 6, q. 1, a. 2, qa. 3, ad 2.)

Reply Obj. 2: Insanity impedes marriage in its cause, which is consent, although not in its act, as is the case with impotence. But nevertheless the Master considers it at the same time as impotence because both arise from defects of nature.

Reply Obj. 3: A temporary impediment that impedes the cause of marriage, namely, consent, completely voids matrimony. But an impediment that impedes the act must be perpetual in order to void matrimony.

Reply Obj. 4: This impediment is reduced to that of error: for on both sides there is a defect of consent on the part of reason.

Article 5

Whether incest does

Obj. 1: To the fifth question, we proceed thus. It seems that the incest by which someone knows the sister of his wife does not invalidate marriage. For the woman should not be punished for the sin of the man. But she would be punished if the marriage were dissolved. Therefore, etc.

Obj. 2: Furthermore, he sins more who knows his own relative than who knows the relative of his wife. But the first sin does not impede marriage. Therefore, neither does the second.

Obj. 3: Furthermore, if this is inflicted as punishment for sin, then it seems that also if, even once his wife is dead, the incestuous husband should contract with someone else, they should be separated too, which is not the case. (See Gregory IX, Decretals, Bk. 4, tit. 13, ch. 4, “Transmissae.”)

Obj. 4: Furthermore, this impediment is also not enumerated among the others listed above. Therefore, it does not invalidate matrimony.

On the contrary (1), by the fact that he has known the sister of his wife, the man forms an affinity with his wife. But affinity does invalidate the marriage contracted. Therefore, so does the incest described.

Furthermore (2), whoever sins in something is punished in that thing. But such a person sins against matrimony. Therefore, he should be punished by being deprived of his marriage.

I answer that, if someone knows the sister or another relative of his wife before the marriage is contracted, even after the betrothal, it is necessary for the marriage to be dissolved by reason of the affinity contracted. But if it occurs after the marriage is contracted and consummated, the spouses cannot be completely separated; but the man loses his right of requesting the marital debt, nor can he ask for it without sin. But he should still render the debt to his wife if she asks, (See Gregory IX, Decretals, Bk. 4, tit. 13, ch. 1, “Si quis filiastra” and ch. 4, “Transmissae.”) for she should not be punished for the sin of her husband. Yet after the death of his wife, he should remain entirely without hope of marriage, (Ibid., “Transmissae.”) unless he receives a dispensation from this due to his own fragility, because of which illicit intercourse is feared. If, however, he should contract marriage without the dispensation, he sins against the statutes of the Church by so doing. (See Glossa ordin. in Decretum, pt. 2, cause 27, q. 2, can. 30, “Qui dormierit,” and cause 32, q. 7, can. 21, “Qui dormierit.”) Still, this is not enough reason that the marriage should be broken up. (Gregory IX, Decretals, Bk. 4, tit. 13, ch. 4, “Transmissae.”)

And through this the answers to the objections are evident. For incest is considered an impediment to marriage not just by reason of the fault, but by reason of the affinity which it causes, and this is why it is not also enumerated among the other impediments, but is included in the impediment of affinity.

Exposition of the Text

“Let them both remain unmarried.” (Sententiae IV, 34.2 (199). 3, Cf. Gratian, Decretum, c27 q2 d. a. c29, c33 q1 c2.) This is understood when the impediment is alleged of both; otherwise, only that one should remain unmarried on whose part the impediment is brought forth.

But if “the woman complains, saying: I wish to be a mother and bear children.” (Sent. IV, 34.2 (199). 1, letter attributed to Gregory.) It seems from this that by reason of sterility marriage could be dissolved. And to this it must be said, no. For in the sterile, even if marriage does not attain its aim according to what it is in the office of nature, yet it does act as a remedy through physical intimacy. And that is why here ‘bearing children’ is said in place of physical intimacy, which women are too bashful to ask for.

“By the seven-handed oath of their relatives” [he] is to swear that “never” have they joined together carnally. (Sent. IV, 34.2 (199). 1, letter attributed to Gregory.) A separation should happen in this way. When impotence in intercourse is alleged, if both the husband and the wife should admit it, or if there is an evident impediment, as in the case of eunuchs, they can be separated immediately. But if it is not evident, it is to be commanded of them that they continue to live together, applying themselves to physical intimacy in good faith. For if it is unable to be done for three years, then both will swear that applying themselves in good faith, they were unable to be joined carnally. And so that a separation may not be granted too easily, it is required that seven of the closest relations, who can best know the truth of the matter by probable signs, swear that they believe that the two spoke the truth.

“Then those who took the oath are to be held guilty of perjury.” (Sent. IV, 34.2 (199). 3, Cf. Gratian, Decretum, c27 q2 d. a. c29, c33 q1 c2.) That is, let their testimony be so counted for nothing as if they were perjurers. But they would not incur the guilt or disrepute of perjurers, if they did believe they were speaking the truth.

But if the husband asserts that he has rendered the debt to his wife, and she denies it, it is properly asked to whom credence is to be extended. (Sent. IV, 34.2 (199). 4.) Likewise it must be known that when the man asserts that physical intimacy had occurred and the wife denies it, the oath of the man decides the case, unless the woman wishes to prove by an inspection of her body that the man has lied. But if the man swears falsely, and the wife cannot prove the contrary, she can protect herself by sleeping separately, lest by the attack of the man she should be provoked to sexual desire, and she should risk the danger of incontinence. If, however, the man should deny that physical intimacy had taken place and the wife affirms that it had, the case is not decided by his oath, even though he is the head of his wife: for then it would be easy for many men to send away their wives.

What is contained at the end of this chapter is to be understood to be said more from rigour than from canonical equity. (Sent. IV, 34.3 (200). 2.) It must be known that if a curse rendering someone impotent were universal with respect to anyone, then if he married another, the impediment would be shown to have been not perpetual, and so he should return to the prior union. However, if the impediment was personal, that is, directed at a particular person, since both were given permission to marry other people, then once this power to marry has been granted, they cannot return to the unconsummated marriage, since it was null, and the second is the valid marriage.

“But if it was contracted, they are not to be separated.” (Sent. IV, 34.4 (201). 1, Spurious; Gratian, Decretum, c33 q1 c26.) This is understood to mean, if it was contracted when they were having lucid intervals.

Also, it is not lawful for him to render the debt to his own wife. (Sent. IV, 34.5 (202). 2.) This is no longer held. Or it could be said that he calls all physical intimacy rendering the debt, which the man was deprived of on his part, although his wife’s right remains. For, although marriage cannot stand on one leg, yet the right of requesting the marital debt can exist in one and not in the other.