CASE 101: Impaired Consent: Madness

D. 23.2.9 pr. (Ulpianus libro vicesimo sexto ad Sabinum)

Si nepos uxorem velit ducere avo furente, omnimodo patris auctoritas erit neces­saria: sed si pater furit, avus sapiat, sufficit avi voluntas.

(Ulpian in the twenty-sixth book on Sabinus)

If a grandson wishes to marry and his grandfather is insane, his father’s authori­zation will be absolutely necessary.

1.      No Consent. Insanity of a prospective spouse was a bar to marriage because it negated consent, an essential requirement (see Paul, D. 23.2.16.2, quoted in the Discussion on Case 13). Here the same problem arises over the insan­ity of a paterfamilias. With which of the two positions stated by Paul in Case 98 does Ulpian agree?

2.      The Whole Family’s Crazy. Suppose both father and grandfather were in­sane; could the son go ahead with the marriage? Does the following Case sug­gest a possible answer to this question?

3.      Justinian’s Solution. In a constitution of A.D. 530 (C. 5.4.25; see Justinian, Inst. 1.10 pr.), Justinian weighed in on the more general problem. As he ac­knowledges, the classical jurists had debated whether the children of an in­sane father could marry. Virtually all the jurists had agreed that a daughter could marry; they held it sufficient if the father did not object. But there was much more doubt in the case of a son. Why would this case be more difficult? Finally, in the mid-second century A.D., imperial intervention allowed sons of senile fathers to marry, an outcome that Justinian confirms and extends. To what extent do you think it likely that Justinian's solution has influenced the way in which Justinian's Digest reports on controversies among the classical jurists?