Engagement, from the Latin fido meaning to trust someone/to rely on someone , are promises made publicly by two people in front of the Church, which receives and authorizes such promises.

The engagement is of propriety and not out of necessity.

It can be contracted by any kind of people who are able to express their will and consent, that is people of sound mind and of at least seven years of age, and the consent of those who have authority over them, and between people who could contract marriage together when they are of age, so that if there is anything to prevent the marriage, the engagement is void.

The practice of engagement is very old. It is mentioned in the digest, under the entry de sponsalibus (of the betrothal); in the Theodosian Code and the Justinian Code, [1] in the ruling by Gratius [2] and Papal decrees and in Emperor Leo’s Novelles 18, 93, and 109. [3]

This practice was put in place so that the future spouses may be sure of their mutual feelings in regards to marriage before being given the nuptial blessing, and to be sure that they would not enter too hastily a union which could have severe consequences if people are ill-matched.

There once was a type of engagement called sponsalia de proesenti [betrothal at present], which was sealed orally by the people present which was no different from a wedding except that it did not come with a clerical blessing. However, these types of engagements were prohibited by article 44 of the Blois Ordinance as it had been done earlier at the Council of Trente. It was mandated that no marriage will be valid unless a wedding announcement be published and it be made by a priest or anyone who would be committed by him and in presence of witnesses, so that no other engagements be valid other than the ones called in legal term sponsalia de futuro [the betrothal to come], that is the promise of taking one another as husband and wife.

The effects of the engagement are:

1. That it creates a reciprocal obligation for each party to contract marriage together. However, if one of the betrothed refuses to fulfill his or her obligation, neither the Church nor the civil judge may force him or her to do so and the obligation is resolved with damages on which only a civil and not a religious judge can give a ruling. These damages are estimated in view of the real prejudice suffered by the other fiancé and not in view of the benefits he or she may lose.

2. The engagement forms a sort of reciprocal affinity between each fiancé and the relatives of the other one called in canonic law justitia publicœ honestatis [justice of public honor], so that the male relatives of the betrothed girl may not marry her; and vice versa, the female relatives of the betrothed man may not marry him. However the Council of Trent narrowed this impediment to the [family of the] first degree and ruled that this affinity and consequently the impediment that results from it do not occur when the engagement is void.

The fiancée is not under the authority of her fiancé. Consequently, she does not need his permission to either enter into a contract with him or anyone else or to go to court. The betrothed may provide one another any benefits allowed by the law that are otherwise forbiden between spouses, granted it is done by marriage contract or the gift be done in the presence of all the parents who were present when the contract was made.

The committment resulting from the engagement can be terminated in several ways:

1. by [mutual] consent of each party

2. by the long absence of one of the fiancés; but if the fiancé goes away by necessity, the fiancée must wait for him for two years if he is in the same province and three years if in a different province.

3. by the monastic profession of the fiancés, or one of them; however, the mere vow of chastity does not dissolve the engagement.

4. when the fiancé enters holy orders

5. if one of the fiancés marries someone else, in which case the other one is left with a lawsuit for damages, assuming it had indeed occured.

6. by the fornication committed by one of the fiancés, or both of them with a third party before the engagement , and even before that, if it had been committed by the fiancée, and the fiancé was not aware of it at the time of the engagement. See Feyret, treaty on betrayal, lib. V. ch. i. n. 12. [4]

One must also note on this matter that if the fiancée commits such a wrong, she may be accused of adultery, since the engagement is like mariage. L. si uxor §. divus, and l. penult. ff. ad leg. jul. de adult . [5]

If the fiancé sexually abuses her fiancée, he must be punished pana sturpi [with pain of disgrace] , although the fiancée was closed to the age of puberty and she had consented to his desires. However, if violence had been committed by the fiancé, he must be punished as an abductor. See Franc, Marc, part. II. quest. 70 . Chorier; jurisprud. de Guipape, pag. 270 . [6]

The mere public bragging by the fiancé to have had a relation with his fiancée, may it be true or false, is a reason to break the engagment.

If the fiancé impregnates his fiancée and he dies before the wedding, the fiancée may not call herself his widow, and the child born from this relation is not seen as legitimate, nor proper to succeed. D'Olive, act. for. part. III. act. 13 .

7. If one of the fiancés had some serious vices of which the other one was not aware at the time of the engagement , this would be cause for dissolution. For instance, if the fiancée was to learn that her fiancé is bibulous or excessively brutal and violent, or if one of the fiancés sees in the other any cause for impotence, whether it be prior or after the engagement.

8. If one of the fiancés was prone to epilepsy or any great disability unknown to the other one.

9. If any great deformity had occured to one of the fiancés since the time of the engagement , as for instance he/she had become blind or lost sight in one eye, or if he/she became crippled.

10. Once the infamy happened

All mutual gifts and benefits made by both parties in view of the upcoming wedding are not validated by the engagement if the wedding does not follow.

The law si à sponso, cod. de donat. ant. nupt, states that if the fiancé passes away post osculum, that is [to say] after the kiss usually granted by the fiancée, she has valid cause to keep half the rings and jewelry, and anything else she has received from her fiancé, the reason being that osculo delibata censebatur virginitas [the kiss changes the state of the virginity]. However, in France where such kisses are seen as a mere civility, the fiancée is not entitled in such case to keep anything; and Godefroi, Mornac, Loüet, and Automne maintain that this law is not practiced.

Mr. de Catelan, however, quotes, l. IV. ch. ii. a ruling from the Parlament of Toulouse dated from April 11, 1656, which allowed the fiancée to keep clothes and linen given to her by her fiancé; but forced her to return pearls, diamonds and money, and clothes she had picked up at the tailor after her fiancé’s passing. [7] See Onselage.

See Cujas, ad cap. i. de sponsalibus; [8] Florent, de sponsal. pag. 114; Cironius, in paratit . Covarruvias, de sponsal . Franc. Marc. tom. II. quest. 709; Papon, liv. XXII. tit. vi. n. 6 . Louet, lett. F, n°. 18 . Cambolas, liv. V. ch. xvii. ( A ) [9]

Notes

1. The Theodosian Code or Codex Theodosianus was a compilation of laws passed by Christian emperors of the Roman Empire since 312 and published under Theodosius II in 438. The Justinian Code or Codex Justianus is a part of the Corpus Juris Civilis (Body of Civil Law), the codification of Roman law ordered by Emperor Justinian I and published in 534.

2. The ruling by Gratius, or Decretum Gratianus, refers to a collection of canon law compiled and written as a textbook in the 12 ^th century by the jurist named Gratian.

3. Byzantine Emperor Leo III the Isaurian undertook a reform of civil and criminal law and issued -in his name and that of his son Constantine- a new code, the Ecloga, to replace the Justinian Code.

4. Charles Fevret, Traité de l’Abus et du vrai sujet des appellations qualifiées du nom d’abus. → Publié à Dijon: Palliot, 1653.

5. This is a reference to the Lex Julia (plural Leges Juliae) on adultery. The Julian Law usually refers to moral legislation introduced by Augustus or any member of the Julian family. The Lex Julia on adultery was updated in the 6 ^th Century under Justinian.

6. Pape Guy Nicolas Chorier, La Jurisprudence Du célèbre Conseiller Guy Pape dans ses decisions. Avec plusieurs remarques importantes. Lyon: Jean Certe, 1692.

7. Jean de Catelan (1620-1700) was a Member of the Parliament of Toulouse who started collecting rulings passed by the parliament between 1664 till his death in 1700. This collection of rulings was published by his nephews François de Catelan in 1703. François de Catelan, Arrêts notables rendus par le parlement de Toulouse. Toulouse: 1703.

8. Jacques Cujas, Observationes et Emendationes (published between1556 and 1595) gathered in a collection of complete works “Cujacii Opera omonia” publié par Charles Annibal Fabrot, 1658.

9. See Jean Papon, Recueil d’arrests notables des courts souveraines de France, ordonnez par tiltres, en vingt-quatre livres ( 1556), 1559, 3ème edition 1565. See also Jean de Combolas, Décisions notables sur diverses questions du droit, jugées par plusieurs arrêts de la Cour de Parlement de Toulouse , Toulouse,1659.