Dist. 33, Art. 3, Q. 3
Book IV: On the Sacraments · Distinction 33
Quaestio III. Utrum uxor post repudium debeat viro reconciliari.
Tertio quaeritur de reconciliatione, et quaeritur, utrum uxor post repudium debeat viro reconciliari. Et quod sic, videtur:
1. Quia peccatum fuit uxorem dimittere, ut supra2 ostensum est: ergo iustum est ipsam resumere.
2. Item, mulier cum repudiata, si contrahit cum alio, aut peccat, aut non. Si non peccat; ergo cum propter nullum peccatum eius fuerit repudiata, et non debeat infligi poena nisi propter culpam, manifestum est etc. Si peccat; ergo manet vinculum cum priori, ergo adhuc est uxor eius; sed Dominus3 vult, quod uxor sit cum viro: ergo etc.
3. Item, de omni malo licitum est poenitere; sed poenitentia retractat malum factum: ergo cum repudiare uxorem sit malum, ergo licitum est poenitere, ergo et retractare: ergo et uxorem sibi reconciliare.
4. Item, divisa per divortium potest reconciliari4: ergo et per repudium.
Contra: 1. Deuteronomii vigesimo quarto5 dicitur, quod non est recipienda post repudium, ne peccare faciat terram: ergo qui recipit facit peccare terram, ergo etc.
2. Item, Ieremiae tertio6: Vulgo dicitur: Si dimiserit vir uxorem, et illa recedens duxerit virum alterum, nunquid revertetur ad eam? quasi dicat non: ergo etc.
3. Item, iste repudiando uxorem, quantum in se est, amisit ius in eam tanquam in uxorem: ergo si recipit, accipit quod non est suum.
4. Item, sententia iudicis secundum legem debet irretractabiliter observari — iusta enim sententia non est retractanda7 — sed cum uxor dimittebatur, dato libello repudii, in conspectu Ecclesiae fiebat per sententiam legis repudium: ergo etc.
Conclusio.
Licebat, ut post repudium uxor viro reconciliaretur, nisi culpa adulterii intervenerit.
Respondeo: Dicendum, quod post repudium aliquid fuit licitum et concessum, ut ambos, scilicet virum et mulierem, manere innuptos, vel etiam ante nuptias alias invicem reconciliari. — Aliquid fuit illicitum, sed permissum8, ut scilicet vir, uxore repudiata, aliam duceret in uxorem; non enim fuit prohibitum, quia non erat prohibitum plures habere uxores. — Aliquid fuit illicitum et prohibitum, ut videlicet uxor repudiata, viro vivente, duceret alium. Quia enim nunquam licuit uni uxori habere plures viros; cum primus vir repudiatae vivat, non licet ei habere secundum. Hoc tamen non fuit prohibitum directe, sed oblique in poenam eius impositum, ut nunquam possit redire ad virum priorem, quia voluntarie se polluit cum secundo; et ideo dicitur Deuteronomii vigesimo quarto9 et Ieremiae tertio, quod polluta et contaminata est mulier illa, propter adulterium scilicet, quod commisit cum secundo. — Concedendum est igitur, quod licitum fuit, post repudium uxorem viro reconciliari, nisi culpa adulterii interveniat; propter quam puniendam prohibetur, ne ad virum redeat, quia tunc licite fiebat divortium. Unde miro modo, licet occulte, tamen vere ipsa Lex iudicabat, inseparabile esse coniugii Sacramentum; et hoc magis expresse tangit Ieremias tertio10.
1. 2. Quod ergo dicit Lex, quod non est recipienda; intelligitur propter adulterium commissum, non quia non sit uxor, sed quia contra matrimonium fecit. Magis autem punitur mulier quam vir rationibus praedictis11, quia in Lege inferior erat.
3. Ad illud quod obiicitur, quod nullo modo p. 762 licet, cum perdiderit ius; dicendum, quod non habet ius repetendi, postquam repudiavit. Si tamen uxor velit, de eius voluntate et consensu potest iterum licite fieri.
4. Ad illud quod obiicitur, quod sententia lata secundum legem non est retractanda; dicendum, quod lex quaedam praecipit, quaedam permittit. Sententia lata secundum legem praecipientem omnino iusta est et retractanda non est; si secundum legem permittentem, cum ibi sit aliquid iniustitiae1, sine omni peccato revocari potest, immo meritorie et licite2.
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Question III. Whether a wife after repudiation ought to be reconciled to her husband.
In the third place inquiry is made concerning reconciliation, and it is asked whether a wife after repudiation ought to be reconciled to her husband. And that she ought, it seems:
1. Because it was a sin to dismiss a wife, as was shown above2: therefore it is just to take her back.
2. Likewise, a woman, when repudiated, if she contracts [marriage] with another, either sins, or does not. If she does not sin; then, since she was repudiated for no sin of hers, and a penalty ought not to be inflicted except for a fault, it is manifest, etc. If she sins; then the bond with the former [husband] remains, therefore she is still his wife; but the Lord3 wills that a wife be with her husband: therefore etc.
3. Likewise, of every evil it is lawful to repent; but repentance retracts the evil deed: therefore, since to repudiate a wife is an evil, therefore it is lawful to repent, therefore also to retract: therefore also to reconcile the wife to oneself.
4. Likewise, a woman divided by divorce can be reconciled4: therefore also [one repudiated] by repudiation.
On the contrary: 1. In Deuteronomy chapter twenty-four5 it is said that she is not to be taken back after repudiation, lest she cause the land to sin: therefore he who takes her back makes the land to sin, therefore etc.
2. Likewise, in Jeremiah chapter three6: It is commonly said: If a man put away his wife, and she departing marry another man, shall he return to her again? as if to say no: therefore etc.
3. Likewise, this man, by repudiating his wife, as far as in him lies, has lost his right over her as over a wife: therefore if he takes her back, he receives what is not his own.
4. Likewise, the sentence of a judge according to law ought to be observed irretractably — for a just sentence is not to be retracted7 — but when a wife was being dismissed, a bill of repudiation having been given, the repudiation was made in the sight of the Church by the sentence of the law: therefore etc.
Conclusion.
It was permitted that after repudiation a wife be reconciled to her husband, unless the fault of adultery had intervened.
I respond: It must be said that after repudiation something was lawful and conceded, namely that both, that is, the man and the woman, remain unmarried, or even, before [any new] nuptials, be reconciled to one another. — Something was unlawful, but permitted8, namely that a man, his wife having been repudiated, take another as wife; for it was not prohibited, since it was not prohibited to have several wives. — Something was unlawful and prohibited, namely that a repudiated wife, her husband living, marry another. For since it was never lawful for one wife to have several husbands; since the first husband of the repudiated woman is living, it is not lawful for her to have a second. This, however, was not prohibited directly, but imposed obliquely as a penalty upon her, that she might never be able to return to the former husband, because she voluntarily defiled herself with the second; and therefore it is said in Deuteronomy chapter twenty-four9 and Jeremiah chapter three, that that woman is polluted and contaminated, namely on account of the adultery which she committed with the second. — It must therefore be conceded that it was lawful, after repudiation, for a wife to be reconciled to her husband, unless the fault of adultery intervene; for the punishing of which she is prohibited from returning to her husband, because at that time divorce was lawfully made. Hence in a wonderful way, though secretly, yet truly the Law itself judged the Sacrament of marriage to be inseparable; and this Jeremiah touches more expressly in chapter three10.
1. 2. As to what the Law says, that she is not to be taken back; it is understood on account of the adultery committed, not because she is not a wife, but because she acted against the marriage. But the woman is punished more than the man for the aforesaid reasons11, because in the Law she was inferior.
3. To that which is objected, that in no way p. 762 is it lawful, since he has lost his right; it must be said that he does not have the right of reclaiming, after he has repudiated [her]. If, however, the wife wishes, by her will and consent it can lawfully be done again.
4. To that which is objected, that a sentence passed according to law is not to be retracted; it must be said that a certain law commands, a certain [law] permits. A sentence passed according to a commanding law is wholly just and is not to be retracted; if according to a permitting law, since there is in it something of injustice1, it can be revoked without any sin, indeed meritoriously and lawfully2.
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- 2Quaest. 1.Question 1 [of this article].
- 3Matth. 5, 32. et 19, 9. Cfr. I. Cor. 7, 10. seq.Matthew 5:32 and 19:9. Cf. 1 Corinthians 7:10ff.
- 4Cfr. infra d. 35. q. 5.Cf. below, d. 35, q. 5.
- 5Vers. 4. Pro faciat Vulgata et edd. facias.Verse 4. For faciat the Vulgate and the editions [read] facias.
- 6Vers. 1. Vulgata et recedens ab eo pro et illa recedens.Verse 1. The Vulgate [reads] et recedens ab eo ("and departing from him") for et illa recedens ("and she departing").
- 7Vide infra d. 35. q. 5. arg. 1. ad oppos.See below, d. 35, q. 5, argument 1 to the contrary.
- 8Edd. Aliquid fuit licitum et permissum. Cfr. quaest. praeced.The editions [read] Aliquid fuit licitum et permissum ("Something was lawful and permitted"). Cf. the preceding question.
- 9Vers. 4: Quia polluta et abominabilis facta est coram Domino. Ier. 3, 1: Nunquid non polluta, et contaminata erit mulier illa? — Superius verbis ut nunquam in cod. X secunda manus interseruit si nubat.Verse 4: Because she has been made polluted and abominable before the Lord. Jer. 3:1: Shall not that woman be polluted and contaminated? — Above, at the words ut nunquam ("that... never"), in codex X a second hand inserted si nubat ("if she should marry").
- 10Vers. 1.Verse 1.
- 11Vat. addit: scilicet in solutione tertii argumenti praecedentis quaestionis.The Vatican [edition] adds: namely, in the solution of the third argument of the preceding question.
- 1Edd. iustitiae et mox reconciliari pro revocari.The editions [read] iustitiae ("of justice"), and shortly after reconciliari ("to be reconciled") for revocari ("to be revoked").
- 2Vide scholion ad 1. huius articuli quaest.See the scholion to question 1 of this article. ---