Abstract

The artkle sets out to exiplain and clarify the notion of „discretio iudicii", Le. due discretion regarding the object of matr:imonial consent and the purpose of marriage in the light of Canon Law. It seems that St. Thomas Aquinas was the first to draw attention to „discretio", discretion, as a requirement of natura! law regarding the validity of consent. Very few people understood that this constituted progress in the development of Canon Law. It is only in recent years that canonists have really become interested in the topie, owing to the growing incidence of mental diseases that can throw into doubt the validity of matrimonial consent. The article shovvs, from the viewpoint of the essential components of a Iegal act, that due dis,cretion is a necessary elemelilt ,of a fully valid act. Due discretion is discussed from the subjectlive point of view, with an empi}lasis on the insufficiency of the knowledge of the object of consent and on the fact that „discretio iudicii" is a criterion of the psychological capacity for marriage. The latter point is conffrmel in Canon 1095.2 of the present Code. As discretiion conce:rns the object of consent and the purpose of marriage, both these points are discussed. The object of consent is first shown as „ius in corpus" (the Code of 1917) and then new elements are indicated, including the new Code, which stresses, the mutual self-giving and the creaiion of a community of life as the object of con~sent. The purpose of marriage is presented in a similar way, with emphasis en new elements in the development of the Law. The new Code no longer has a hierarchy of ends, and Canon 1055 says that the essential purpose of marriage is the good of the spouses and the procreation and education of children. Furthermore, the maximum and the minimum of the object of consent is discussed. In the next section the article deals with factors that affect discretion. The effect of some mental disorders on the functioning of the intellectual faculties is discussed (in view of the great variety of disorders only the ,examip'les of schizophrenia and alcoholism are taken up). In evaluating the capacity of the parties for marriage it is important not so much to ascertain the presence of an illness as to evaluate the degree of impairment of personality. Error and fraudulent deception as factors affecting discretion are also discuss,ed; in these cases the intention of one party is in effect directed towards a different person