- Consentement Matrimonial et Fiction du Droit: Étude sur L'efficacité Juridique du Consentement Après L'introduction de la Fiction en Droit Canonique
This volume, a doctoral thesis defended at the Gregorian University in Rome, is a historical and juridical study of the notion of the fiction of law (fictio iuris) and its applicability to the canon law of marriage. The work is divided into three parts and subdivided into six chapters. Part One is primarily historical, treating the topic in Roman law, the Decretals, and the commentators. Petit concludes the first part by attempting a categorization of the fictions in the 1983 code. His three categories—which he presents tentatively as being only indicative, not definitive—are persons, institutions, and procedures. He lists the respective canons in each category but without any explanation of them, since his focus is to be exclusively on the fictions in marriage law.
Part Two treats the fictions of matrimonial law with retroactive effect, namely, the legitimation of children by subsequent valid or putative marriage of the parents or by rescript of the Holy See (c. 1139) and the sanatio in radice. The former has scant importance, since there are no practical consequences [End Page 282] of illegitimacy in contemporary canon law. The radical sanation of an invalid marriage, on the other hand, remains a significant juridical fiction by which the law recognizes the effects of an invalid marriage retroactively to the moment when consent was given (c. 1161). These effects are not just the legitimization of the children but of the marriage itself. Upon the grant of the sanatio, the spouses are considered in canon law to have been validly married since the moment of consent.
Part Three treats two additional fictions of matrimonial law. The first is the fiction by which the law considers legitimate the children of a putative marriage, that is, an invalid marriage in which at least one of the parties believes in good faith that he or she is validly married (cc. 1061, §3; 1137). The second fiction is the supply of jurisdiction by the law in common error of fact or of law and in positive and probable doubt of law or of fact (c. 144, §1). Although assistance at marriage is not an act of the power of governance, authors and judges traditionally have analogously applied to it the institute of the supply of jurisdiction, and this is explicitly acknowledged in the 1983 code (c. 144, §2). The value of this fiction lies chiefly in limiting the number of marriages that are invalid due to a defect of form. Petit devotes particular attention to the question whether canon 144 is applicable to cases where special delegation is lacking, and he concludes from a survey of authors and Rotal jurisprudence that this is possible but rare because it must be verified that the minister was in the habitual or at least temporary service of the parish. While this has been the prevailing view, I think it is in need of revision because what is required for the supply of the faculty is a public fact that is capable of inducing objective error. While this public fact, in the case of the lack of special delegation, normally pertains to the status of the minister (residence in the rectory, ministry in the parish, etc.), it is possible to envision other public facts, even if very rare, that could induce such error.
The originality of this work lies not in the novelty of its content, which is ground well trod by many others, but in its sustained analysis and reflection on the modes of operation of the fictio iuris. Well researched and documented, it is clearly written, informative, and interesting. [End Page 283]
Faculty of Canon Law