CASE 27: An Affront to the Fiancée
D. 47.10.1.9 (Ulpianus libro quinquagensimo sexto ad edictum)
Idem ait Neratius ex una iniuria interdum tribus oriri iniuriarum actionem neque ullius actionem per alium consumi.
ut puta uxori meae filiae familias iniuria facta est: et mihi et patri eius et ipsi iniuriarum actio incipiet competere.D. 47.10.15.24 (Ulpianus libro septimo ad edictum)
Sponsum quoque ad iniuriarum actionem admittendum puto: etenim spectat ad contumeliam eius iniuria, quaecumque sponsae eius fiat.
(Ulpian in the fifty-sixth book on the Edict)
Neratius likewise says that sometimes a single affront (iniuria) results in three persons having the action on affront; nor is one person’s action lost through another person (bringing suit). If, for example, an affront is inflicted on my wife who is (also) a daughter-in-power, the action on outrage becomes available to me, to her father, and to her.
(Ulpian in the fifty-seventh book on the Edict)
In my view, a betrothed man should also be allowed an action on affront. For any affront to his fiancee results in insult to him (as well).
1. Affront. An affront (iniuria) is a deliberate affront to one's personal standing, for example, a physical assault or a defamation; in the case of a respectable woman, it can arise from indecent sexual suggestions. Normally not only the affronted woman but also her father or husband or both are allowed to sue on the affront (Gaius, Inst.
3.221). In this Case, the privilege is extended also to betrothed men. What is the rationale? See also Case 44.2. Assimilating Betrothal to Marriage. Many sources suggest that the jurists came to regard betrothal as a quasi-legal institution subject to many of the same rules as marriage. Thus, for instance, just as a husband could not be involuntarily compelled to testify against his wife's father, so also a betrothed man could not be compelled to testify against his intendeds father (Gaius, D. 22.5.5); and just as it was “parricide,” not ordinary murder, for a man to slay his father-in-law, so too if he slew his intended's father (Marcian, D. 48.9.3-4). Incest rules came to be applied within the context of betrothal (e.g., a man cannot marry his son's intended bride: Ulpian, D. 23.2.12.2); and so too did rules forbidding certain types of marriage (e.g., the mere betrothal of a senator to a freedwoman is void: Ulpian, D. 23.1.16). See also Case 7, on the application of the adultery law to fiancees. What might explain this legalization of an essentially informal relationship? One factor to consider is that a betrothed man was treated as married for purposes of escaping the penalties on celibacy in the Augustan marriage legislation, although under the law such an engagement was allowed to run for no more than two years.