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2. Theory and Contracting of Marriage
1. Influence of Roman Law
a divine command defined the form of
contracting marriage, though it always
regarded it as a necessary expression
of Christian piety not to marry with
out ecclesiastical approval and without "thanks
giving and sanctification through the word of God
and prayer." On the other hand, it never made
the legal status of marriage dependent on the fulfilment
of these demands of Christian piety. Like
the Roman law, the Church regarded the consent
of the parties as the sole necessary condition for
marriage. Though the Roman practise was essentially
adopted, the distinction between betrothal
and marriage was drawn less sharply, even while
betrothals were blessed, and while marriage after
betrothal was regarded as stronger than had been
the case among the Romans. Moreover, the Bible
terms the marriage of Mary and Joseph a betrothal,
and for these reasons the Fathers distinguished betrothal
and marriage less clearly. Necessity, however,
demanded a distinction. Betrothal was soluble,
whereas marriage was regarded by the Church
as indissoluble; betrothal was no sacrament but
marriage was, though the precise reason was doubtful,
since the existence of non-sacramental marriages
was also acknowledged. The questions whether
marriage is a sacrament, and whether or for what
reasons marriage is indissoluble, were much disputed,
and formed the basis of profound differences
of opinion.
To substantiate their views, the schoolmen and
canonists found themselves obliged to adduce citations,
especially those passages of the Bible in which
Joseph and Mary are called sponsus and
sponsa.
The difficulties of the interpretation were overcome
by distinctions. Gratian distinguished between the
desponsatione (i.e., consensu) initiatum and the
copula perfectum coniugium (only the latter being sacramental
and indissoluble); while the schoolmen,
beginning with Hugo of St. Victor, distinguished
two kinds of espousals, one having the effect of
the Roman betrothal, and the other that of the Roman
marriage, sponsalia de futuro and sponsalia de
præsenti (the latter being sacramental and indissoluble
even without a copula
2. Teutonic Elements
state and law, and it is a vain
effort to deduce a uniform picture from
the many tribal laws. Nevertheless,
certain general characteristics can be fixed. According
to these, the marriage contract
diminished
from an actual purchase of the wife to a purchase
of mund, or power (mundium), over the wife from
him who had it. Thus the marriage normally followed
in consequence of the surrender of the mund
and the payment of the purchase money. The contract,
or betrothal, preceding the marriage, as to
the future surrender of the bride and the amount
of the purchase money, indeed had its effect, which
was greater than in the case of the Roman betrothal,
so that the betrothal could not be dissolved
without monetary damages, although it was not
considered a real marriage. Whereas the marriage
originally took place by the acquisition of the
mund (normally by its transfer from its owner to
the groom), while the will of the bride was a matter
of no concern, her wishes became more and more
important, until they, and not the acquisition of
the mund, were the decisive factor. Thus the actual
purchase became fictitious. The Teutonic development
accordingly came to coincide with the
Roman principle that the consent of the parties
brings about the marriage.
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