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[14] Johannes Faventinus on Marriage (With an Appendix Revisiting the Question of the Dating of Alexander III’s Marriage Decretals) Charles Donahue, Jr. n The Summa decretorum of Johannes Faventinus has not received a very good press. It is largely, as the author himself admits, a ‘scissors-and-paste job’, a compilation of quotations and near quotations from the summae of Rufinus and Stephen of Tournai.1 It is perhaps for this reason that, so far as I am aware, no one has seriously looked at what Johannes has to say about marriage. What he has to say about marriage under the rubric of C.27 q.2 (the sponsa duorum) is not what either Rufinus or Stephen said on the topic, although Johannes borrows from both. What Johannes says, we will suggest, is of some importance for the story of the development of the classical canon law on the formation of marriage. More broadly, it may mean that the emphasis that the dedicatee of this piece has placed throughout his career on the role of the schools in the development of the classical canon law is closer to the mark than the emphasis that the author of this piece has placed on the role of the pope, particularly Alexander III. First, a brief sketch of the background: Gratian’s Decretum (C.27 q.2) asks whether a woman espoused to one man may leave her espoused and marry another. Gratian’s answer to the question, at least as it was reported by his followers, was that she might do so so long as she had not sexual intercourse with the first man.2 Espousal creates marriage initiate (coniugium initiatum); intercourse following espousal creates ‘com179 1. Kuttner, Repertorium 145. 2. C.27 q.2 d.p.c.50 (in the first recension; see A. Winroth, The Making of Gratian’s Decretum [Cambridge 2000] 222) seems to suggest that the result might be different if the first espousals were solemn, even if not consummated . The decretists, by and large, ignored this suggestion or held that it was not supported by the custom of the church. plete’ marriage (coniugium ratum).3 Only the second is indissoluble. The arguments that Gratian uses to reach this result are complicated. Suffice it say here that the distinction that he drew explained a number of conflicting rulings in the tradition, among which were those about entry into religion (it could be done without the consent of the spouse before consummation but not after), impotence or frigidity (it was a cause for dissolution of the marriage if it arose before the marriage was consummated but not after), and the prohibition on ‘bigamists’ taking higher orders (a clerk who married a widow whose marriage had not been consummated was not a ‘bigamist’, but one who married a widow whose marriage had been consummated was a ‘bigamist’). Gratian’s resolution did not, however, fit very well with the Roman-law tradition, which seems quite insistent that consummation has nothing to do with the formation of marriage, nor with the doctrine that Mary and Joseph were truly husband and wife, even though they were believed never to have had intercourse. Although Gratian was unaware of it, at approximately the same time that he was writing or slightly later, Hugh of St. Victor and others in what was to become the theological tradition were also addressing the question of what made a marriage.4 Hugh made a tripartite division. First, he distinguished between promises to marry and the marriage itself. The promise is a promise, but only a promise. To break it is a sin, but if one promises to marry one person and then marries another, it is the second marriage that is to be held inviolate. In marriage itself, Hugh continued, there are two sacraments . The first arises when the couple presently consent to take each other as husband and wife. This is the sacrament of the yearning of the soul for God and the love of God for the soul. The second arises when the couple has intercourse. This is the sacrament of Christ and the Church, spoken of in the letter to the Ephesians.5 Writing after Gratian’s first recension, probably in the mid- to late-1150s, Peter Lombard adopted Hugh’s ideas (and those of Walter of Mortagne) and explicitly rejected Gratian’s. Peter, too, distinguished between present and future consent and attributed to them the same consequences that Hugh of St. Victor had attributed...

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