CASE 233: The Credit of Women
D. 16.1.1 (Paulus libro trigensimo ad edictum)
(pr.) Vellano senatus consulto plenissime comprehensum est, ne pro ullo feminae intercederent.
(1) Nam sicut moribus civilia officia adempta sunt feminis et pleraque ipso iure non valent, ita multo magis adimendum eis fuit id officium, in quo non sola opera nudumque ministerium earum versaretur, sed etiam periculum rei familiaris. (2) Aequum autem visum est ita mulieri succurri, ut in veterem debitorem aut in eum, qui pro se constituisset mulierem ream, actio daretur: magis enim ille quam creditor mulierem decepit.(Paul in the thirtieth book on the Edict)
(pr.) A prohibition against women interceding on behalf of another person was very fully prescribed in the SC Vellaeanum. (1) For since by convention public duties (civilia officia) have been denied to women and by operation of law they are generally rendered invalid (in their effects), it seemed for this reason all the more necessary to deny them this responsibility (as well), in which not (only) their mere effort and bare assistance were at stake but also a risk to their family property.
(2) Moreover, it seemed fair to help out a woman by making available (to her) an action against the prior debtor or against the person who had made the woman liable on his behalf, for it is he and not the creditor who more probably deceived the woman.
1. Intercession. “Intercession” is a technical term that includes many instances in which one person assumes another person's debt or liability.
A typical instance is suretyship, when a debtor owes money to a creditor, and a third party promises the creditor that he or she will pay the debt if the debtor does not. But there are many other ways in which such assumption can occur; for example, the third party, the creditor, and the debtor come to an arrangement whereby the debtors debt is extinguished and an equivalent debt from the third party arises in its place (novation); or the third party gives property to the creditor as security for the debt (pledge); or the third party borrows money from the creditor and then immediately hands it over to the debtor as a loan (a loan to the interest of a third party); and so on. In some instances such an intercession might occur without the creditors knowledge (Paul, D. 16.1.11, gives an example), but the SC Vellaeanum, which dates from the mid-first century A.D., is concerned only with situations where the creditor is aware that a woman is interposing her credit on behalf of a debtor; see Ulpian, D. 16.1.4 pr.2. Why Did the Senate Act? Paul gives three explanations, which somewhat overlap:
• Woman cannot perform “public duties” and so should not be permitted to intercede for others. This takes up the thought in Cases 229-231; and this explanation was mentioned in the wording of the SC Vellaeanum: Ulpian, D. 16.1.2.1. How might interposition of credit be regarded as a public or civic act?
• If women intercede for others, they risk their family property (res familiaris). This reason is doubtless related to the levitas animi theory that justifies permanent female tutelage (Case 225); Ulpian (D. 16.1.2.2) specifically mentions “the weakness of a womans sex” in this connection.
But women can freely engage in other transactions that may be very risky; for example, they can buy and sell their property. Why does intercession seem to present more problems? What is the real underlying fear here, do you think?• In section 2, Paul makes a subtle point: it is the debtor, and not the creditor, who is likely to “deceive” a woman into interceding. Paul may have a particular situation in mind. What sort of debtor might be particularly likely to pressure a woman into interceding? What sort of deception might Paul be thinking of?
Ulpian (D. 16.1.2 pr.) indicates that, even before this decree, imperial edicts had forbidden women from interceding on behalf of their own husbands. Does this help to clarify the problem that the Senate may have been addressing? At ibid. 5, Ulpian mentions a womans husband, son, and father as typifying the beneficiaries of intercession. Could it be that a woman might require more protection from her husband and his relatives than from her own relatives?
3. What about the Tutor? The prohibition is absolute, so even a tutor’s authorization will not help the woman. Why not? It was also usually ineffective for a woman to promise that she would not make use of the defenses provided by the statute (Paul and Pomponius, D. 16.1.31 and 32.4).
4. Generosity. Callistratus (D. 16.1.21.1) holds that a woman cannot use the senatusconsultum as a defense if she acts “out of generosity” (liberaliter), for example, if she has been emancipated and promises to pay her fathers debts so that his creditors will not foreclose; “for the Senate helps out (only) when women are burdened.” Why is she not burdened in this situation? How easy is this situation to distinguish from those that the senatusconsultum covers? In any case, says Ulpian (D.
16.1.4.1), the senatusconsultum was not meant to discourage a woman from giving gifts, even if they take an unusual form (e.g., a woman borrows money and gives it to Titius as a gift, or she uses her own money to pay off his creditors).size=1 color=black face="Book Antiqua">5. Self-Interest. According to Africanus (D. 16.1.17.2) a woman may intercede on behalf of a partner in a business enterprise when her own interest is at stake. Suppose a woman makes a profit from a deal where she incurred an obligation on behalf of someone else; would the senatusconsultum apply? See Callistratus, D. 16.1.21 pr. (no). Why not?
6. Deceit. Is the senatusconsultum of any help to a woman if she intercedes in order to deceive a creditor? See Paul, D. 16.1.30 pr. (= Sent. 2.11.3) (no). Does this ruling suggest any trial strategies for plaintiff creditors?