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SOME SENTENCES ON EXCLUSIO BONI PROLIS Klaus Lüdicke* The theme that I have chosen for this article might sound a bit boring! Exclusio boni prolis—the exclusion of the good of children—is a standard ground of nullity elucidated with a standard jurisprudence. Yet, it seems disputed questions remain concerning this ground; for instance, whether the temporary exclusion of offspring is a ground of nullity or whether it is still helpful to distinguish between the ius and the exercitium iuris—the right and the exercise of the right—and between the voluntas se obligandi and the voluntas adimplendi—the will to assume the obligation and the will to fulfill it. Besides this, however, it also appears that there is common agreement about the constans et firma iurisprudentia of the Roman Rota and lower level tribunals concerning various aspects of this ground of nullity. Despite this common jurisprudence, it is somewhat surprising that, although everything seems to be clear with regard to this ground of nullity, there are still very long sentences about it.1 Jurisprudence has apparently yet to find a simply formulated explanation for the nullity of marriage due to the exclusion of children. And, in fact, a few problems have not been plausibly resolved. For instance: —On what criteria should one judge whether the pre-matrimonial deliberation of partners concerning the number of children they will have was legitimately based on the call of the council in Gaudium et spes 50, 2 for parents to be responsible for the number and timing of their children? In such cases, the marriage cannot be invalid due to a defect in the will if ecclesial marriage law is to be congruent with the conciliar teaching on marriage. —Why is the marriage of a couple that cannot have children (even when the couple knows this before the marriage)2 judged as valid, while the marriage of a couple who do not wish to have children is held as invalid? The Jurist 69 (2009) 562–582 562 * Professor of Canon Law, Westfälische Wilhelms-Universität Münster. This article was translated from the original German by Rev. Msgr. Ronny Jenkins. 1 For instance, see the 11.12.2003 Rotal decision coram Bottone in Ius Ecclesiae 17 (2005) 163–182. 2 See c.1084 § 3: “Sterilitas matrimonium nec prohibet nec dirimit, firmo praescripto can. 1098.” I would like to approach this issue according to the following steps: First, I would like briefly to summarize the arguments that justify the traditional jurisprudence on the nullity of marriage due to the exclusion of children. Most of these are already known to you; however, it still might be helpful to examine them once more at the start. Second, I will address the new criteria for the nullity of marriage found in a few authors and also in a few more recent sentences from the Roman Rota. And third, I will comment on what problems are resolved by the new argumentation regarding this ground. This involves an approach that does not cause the system of canonical marriage law to suffer any longer from an inner contradiction. This contradiction has long been evident in the canonical system, and it became even more evident when the Second Vatican Council chose to avoid a purely procreative presentation of its understanding of marriage. This, then, is the outline we will follow: 1. The traditional foundation for the nullity of marriage based on an intentio contra bonum prolis 2. New criteria for the nullity of marriage due to an exclusion of offspring a) Rotal jurisprudence b) Opinions of authors c) An evaluation d) Brief sketch of a simple theory 3. The possibility of resolving yet unresolved problems 1. The traditional foundation for the nullity of marriage based on an intentio contra bonum prolis I regret to have to say it, but to speak about the traditional methods of argumentation with regard to this ground of marriage nullity means speaking immediately about inconsistencies. The first issue is the naming of this ground of nullity, which in jurisprudence is referred to simply as an intentio contra bonum prolis. It is fairly clear what an intention is: simulation must be a positive act of...

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