CASE 112: Maintenance of Relatives
D. 25.3.5 pr.-4 (Ulpianus libro secundo de Officio Consulis)
(pr.) Si quis a liberis ali desideret vel si liberi, ut a parente exhibeantur, iudex de ea re cognoscet.
(1) Sed utrum eos tantum liberos qui sunt in potestate cogatur quis exhibere, an vero etiam emancipatos vel ex alia causa sui iuris constitutos, videndum est. et magis puto, etiamsi non sunt liberi in potestate, alendos a parentibus et vice mutua alere parentes debere. (2) Utrum autem tantum patrem avumve paternum proavumve paterni avi patrem ceterosque virilis sexus parentes alere cogamur, an vero etiam matrem ceterosque parentes et per illum sexum contigentes cogamur alere, videndum. et magis est, ut utrubique se iudex interponat, quorundam necessitatibus facilius succursurus, quorundam aegritudini: et cum ex aequitate haec res descendat caritateque sanguinis, singulorum desideria perpendere iudicem oportet. (3) Idem in liberis quoque exhibendis a parentibus dicendum est. (4) Ergo et matrem cogemus praesertim volgo quaesitos liberos alere nec non ipsos eam.(Ulpian in the second book On the Duties of the Consul)
(pr.) If someone seeks support from (his or her) children, or if children (ask) that they be maintained by a parent, a judge will investigate the matter. (1) But we must examine whether a person is compelled to support only children who are in his power or rather also emancipated (children) or those who became sui iuris for some other reason. The better view, I think, is that even if children are not in power, they must be supported by their parents, and conversely they should support their parents.
(2) But let us examine whether we are compelled to support only a father or a paternal grandfather or a great-grandfather on the paternal side and other male antecedents or rather also a mother and other antecedents and relatives through that (female) sex. The better view is that the judge should intervene generally, so as to relieve the financial needs of some and the infirmity of others; and since this matter derives from fairness and from affection for blood relatives, the judge must weigh the claims of (all) individuals.
(3) The same should be said also for the maintenance of children by their parents.
(4) Therefore, we also compel a mother to support especially her illegitimate children; and (conversely) them (to support) her.
1. Descent and the Duty of Maintenance. This text is from Ulpian's commentary on the duties of the consul, a magistrate charged by the emperors with a variety of judicial duties in areas related to private law. Here, he is evidently directed to determine whether one family member is obliged to maintain another. This duty was established in a series of imperial enactments that begin in the reign of Antoninus Pius (A.D. 138-161); C. 5.25.1 quotes one of these (“It is right that children provide for the needs of their parents”). Gradually the duty was enlarged, but as the present text shows, its exact extent remained controversial. The following points should be noted: (1) The duty extends only to linear ascendants and descendants, not to collateral relatives; hence a parent or a child may have this duty to one another but not, for example, to siblings or first cousins, to say nothing of spouses (see Case 60). (2) The duty runs in both directions, from ascendants to descendants and vice versa. (3) Jurists disputed whether the duty included only agnates or all blood relatives; in section 2, Ulpian opts for the more generous interpretation, which, it should be noted, oversteps the ancient insistence on agnatic kinship as the basic organizing principle of family duties.
(4) A closely related issue arose over whether the duty was limited only to persons linked by patria potestas or extended also to legitimate children released from their fathers power through emancipation (on which, see below, Part C.3), or even further to illegitimate children; in section 1 and 4, Ulpian opts for the more generous interpretation. What arguments might other jurists have made in favor of a more restrictive view? Does it make any sense to include an emancipated child but exclude a brother?2. Illegitimacy. The duty of maintenance, says Ulpian in section 2, “derives from fairness (aequitate) and from affection for blood relatives”; and a rescript of Septimius Severus (C. 5.25.4; A.D. 197) indicates that the law only provides what family members normally do of their free will. How compelling is this justification? Is it wise to use legal sanctions to enforce ordinary family obligations? In any case, one of the most striking applications of the duty concerns illegitimate children. In section 4, Ulpian holds the mother responsible for maintenance, but a rescript of Marcus Aurelius (C. 5.25.3; A.D. 162), addressed to a woman named Tatiana, indicates that the father, if he could be identified, was also responsible: “If you prove to a competent judge that this boy, whom you allege you gave birth to from Claudius, is (in fact) his son, he (the judge) will order that maintenance be provided to him in proportion to his (the fathers) means. He will also assess whether he should be raised in his (the fathers) house.” The boy is fairly clearly illegitimate and hence not subject to the fathers potestas; but the law requires only that the fathers parentage be proven (Ulpian, D. 25.3.5.8), not also legitimacy. Which prevails in this rescript, fairness or affection for blood relatives?
3. Measuring Maintenance.
The formula used over and over again is that maintenance is owed “in proportion to (the defendants) means” (pro modo facul- tatium). This is a flexible standard; however, as the rescript quoted in the previous note makes clear, not only physical sustenance but also other needs are covered (compare Ulpian, D. 25.3.5.12). (However, a son need not pay his father's debts: ibid. 16.) Maintenance was only awarded when the relative was in actual need, for instance, because he could not practice a trade owing to illness (ibid. 7); and though past practice might help determine the amount, it need not be lavish (ibid. 14). A rescript of Septimius Severus (C. 5.25.4; A.D. 197) indicates that a son-in-power whose father had declined him basic support could apply for maintenance like any other entitled relative. Do these sources indicate that maintenance involves more than providing subsistence? On enforcement, see Ulpian, D. 25.3.5.10: if the relative refuses, his property is sold at public auction.4. Ingratitude. A judge was also expected to assess whether a relative might have good reason for not providing support. Thus, a father can properly refuse support if his son has informed on him to the authorities (Ulpian, D. 25.3.5.11).