Guide A casebook on Roman property law

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  1. Bruce W. Frier | The University of Michigan Law School
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  4. Roman law: Printed modern sources

The Institutes of Justinian by Thomas, J. Call Number: Roman Ta. The Digest of Justinian by Watson, A. Call Number: Roman Mb.

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A comprehensive bibliographical index to a substantial corpus of primary and secondary Roman law resources. Coverage includes 31 Roman law sorurces, 12 journal and 11 Festchriften. Installed on a computer in the Graduate Reading Room. Call Number: Roman Ba4 1. Reserve Collection.

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Click on title for specific shelf mark. A casebook on Roman property law by Herbert Hausmaninger and Richard Gamauf ; translated with introduction, supplementary notes, and glossary by George A. Sheets Call Number: Roman Hb. Larger Image. Description Table of Contents Author Biography Goodreads reviews This book provides a thorough introduction to Roman property law by means of "cases," consisting of brief excerpts from Roman juristic sources in the original Latin with accompanying English translations.

The cases are selected and grouped so as to provide an overview of each topic and an orderly exposition of its parts. To each case is attached a set of questions that invite the reader to, e. The casebook also illustrates the survival and adaptation of elements of Roman property law in the modern European civil codes, especially the three most influential of those codes: the General Civil Code of Austria Allgemeines Burgerliches Gesetzbuch , the German Civil Code Burgerliches Gesetzbuch , and the Civil Code of Switzerland Zivilgesetzbuch.

All code excerpts are accompanied by English translations. For present purposes, we will generally assume that marriage is occurring between two sui iuris Roman citizens. For the most part, therefore, we will ignore here the potential inuence of the pater familias on the marriage process, since this inuence is better considered in relation to patria potestas see Cases ; but it is important to stress that a fathers approvalor at least the absence of his disapprovalwas often decisive in the marriage process.

As you read the Cases in this part, consider both the advantages and disadvantages of the Roman approach to marriage. It has often been argued that the Roman legal model of marriage was constructed entirely, or nearly entirely, on a contractual framework, in which, provided that the couple met certain formal capacity requirements, their mental agreement to marry created the marriage in essentially the same way that their agreement on the terms of a contract of sale would create a sale, with no further act required.

The Cases below should give you ample opportunity to consider whether this argument is correct. Ulpian in the second book On Adulteries A girl less than twelve years old was led into the home of her prospective husband and then committed adultery; soon thereafter she passed the age of marriage in his house and began to be his wife. He cannot use a husbands right to accuse her of an adultery which she committed when married before the legal age; but she can be accused as a betrothed woman sponsa , in accord with the rescript of the deied Emperor Severus that was set out above.

Hypothetical Situation. Sempronia, aged ten, is married to her anc Titius; in a wedding ceremony, she leaves her own home and moves into his.

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Before she reaches the age of twelve, she has sexual relations with a man other than Titius. After she reaches twelve and becomes legally married to Titius, can he accuse her of adultery? The Minimum Age. This rather sensational Case proceeds from the Roman denition of minimum age at marriage. Although the jurists frequently dene the minimum female age in terms of physical maturity she must be capable of sexual relations, viripotens; see Case 13 and also, e.

For the minimum male age at marriage, see Case 6 usually age fourteen or so. These ages are bound to seem young in a modern setting. What are the likely social implications? Prepubescent Marriage. A surprisingly large number of Roman legal sources suggest that in the case of women the minimum age was not always observed; see also, for instance, Case 26 below.

In the present Case, a girl younger than twelve has been led deducta in a wedding procession to the home of a man; such a leading from the home of the girls father into her husbands is one common form of marriage ceremony see Case It is not impossible that in this Case, as in Case 26, the man thought of himself as an actual husband; but such a view is rmly resisted by the jurists e.

So how is her status in the meantime to be legally described? The Case hinges on the answer to this question. Under the lex Iulia de adulteriis of 18 or 17 B. In Case 7, however, the wife has committed adultery before reaching the age of twelve! On betrothal, a formal engagement prior to marriage, see Section 2 below. Does this sort of extension seem sensible to you?

Study Aids Academic Materials A Casebook on Roman Property Law

But in this Case Ulpians solution requires a legal construction that the mans wife was actually his betrothed prior to her reaching the required age for marriage. Ulpian accepts this construction here and also, for example, at D. Given what you already know about Roman social conventions, does the outcome in Case 7 seem unfair? If so, to whom? On the assimilation of betrothal and marriage, see also Case Actual Age at Marriage. The sources on age at marriage among ordinary Romans, although poor in quality, suggest that women ordinarily entered their rst marriage in their middle to late teens, but men only in their mid- to late twenties; and Augustuss marriage legislation favored individuals who had children by about these ages Case age twenty for women, twenty-ve for men, reporting late classical law.

However, in the upper classes young girls were often used as dynastic pawns between powerful families, and for this and other reasons, they were often given in marriage at an extremely tender age.

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Do the jurists seem to have utilized law as a means to resist pressures for early marriage? Ulpian D. Is this line of thinking fanciful? Why Set an Age? What general legal purposes are served by setting a minimum age for marriage? A modern lawmaker might aim to set an age that will prevent unwise marriages of immature persons, as part of an effort to reduce the divorce rate and promote marital stability; or that will encourage young people and especially young women to complete their educations and become economically independent, perhaps as part of a larger effort to restrain population growth.

What policy aims might the Romans have had in setting the age where they did? Ulpian in the thirty-third book on the Edict If a woman marries a eunuch spado , I think a distinction should be drawn as to whether or not he was castrated. In the case of a castrated man, you should hold that there is no dowry; but in the case of someone who was not castrated, since there is a marriage, there is both a dowry and an action for the dowry.

In Case 6, Gaius describes eunuchs spadones as those who cannot undergo puberty; the age of majority for such men is set at the normal age of male puberty, probably meaning that they could marry at age fourteen. A eunuch lacks testicles either naturally or because of castration Ulpian, D. What is odd about the present Case is the distinction Ulpian draws between eunuchs who had been castrated and those who had not been.

As Ulpian holds, a castrated male lacks the capacity to marry, and so a dowry is impossible since there can be no valid marriage see Part B. What is the point of this distinction? In Case , Ulpian uses the same distinction in ruling that a castrated male cannot institute a posthumous child as an heir, although otherwise infertile males can; see also Justinian, Inst.

Roman law: Printed modern sources

Does this suggest that Ulpians primary objection was moral? Does Ulpian presume that the eunuchs castration was deliberate, not accidental? And if deliberate, who bears the blame? What if, for instance, a slave was castrated by his owner and subsequently freed; why should the freedman have no right to marry? In the Roman world, as in many other past and present societies, a strong tradition linked marriage to the procreation of children; for instance, it was commonly said as in Case 16 that marriages were concluded in order to beget children liberorum procreandorum causa ; and this tradition was considerably reinforced by imperial legislation devised to encourage childbirth see Case Nonetheless, as this Case shows, inability to beget children was not in itself necessarily a bar to marriage.

The elderly can also enter valid marriages even though they are no longer able to procreate Case See also Case Marriage and Procreation. Does the legal capacity of the impotent or infertile to marry undermine the rationale behind allowing men and women to marry as soon as they reach puberty see Case 7? Same-Sex Marriage.