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.