CASE 25: Agreement to Betrothal
D. 23.1.11 (lulianus libro sexto decimo Digestorum)
Sponsalia sicut nuptiae consensu contrahentium fiunt: et ideo sicut nuptiis, ita sponsalibus filiam familias consentire oportet:
D.
23.1.12 (Ulpianus libro singulari de Sponsalibus)(pr.) sed quae patris voluntati non repugnat, consentire intellegitur. (1) Tunc autem solum dissentiendi a patre licentia filiae conceditur, si indignum moribus vel turpem sponsum ei pater eligat.
D. 23.1.14 (Modestinus libro quarto Differentiarum)
In sponsalibus contrahendis aetas contrahentium definita non est ut in matrimoniis. quapropter et a primordio aetatis sponsalia effici possunt, si modo id fieri ab utraque persona intellegatur, id est, si non sint minores quam septem annis.
(Julian in the sixteenth book of his Digests)
Like marriage, betrothal occurs by the agreement (consensus) of the contracting parties; and, as in marriage, so too in betrothal a daughter-in-power must agree.
(Ulpian in his monograph On Betrothals)
(pr.) But if she does not resist her father’s wish, she is understood to agree. (1) Still, a daughter is granted the privilege (licentia) of dissenting from her father only if he chooses for her a betrothed who is morally unfit or degraded.
(Modestinus in the fourth book of his Distinctions)
In arranging betrothal, the (minimum) age of the contracting parties is not defined, as it is in marriage. Therefore, betrothal can be brought about from a very early age, provided each party understands what is happening, that is, if they are not less than seven years old.
1. The Reality of Agreement. The jurists insist that the betrothed couple must both agree to the betrothal (for males, see Paul, D. 23.1.13), and, as with marriage, insanity makes agreement impossible (Gaius, D. 23.1.8). This Case, however, suggests that at least the agreement of a daughter-in-power could often be implied, and her right to refuse might even be understood as a “privilege” she could exercise only in extreme circumstances. As to the minimum age for agreement to betrothal, the ending of this Case may be a Justinianic addition to the original text. Paul (Sent. 2.19.1) states: “Betrothal can be contracted between adults (puberes) as well as among children (impuberes)”; this text gives no minimum age, and we learn elsewhere that some girls were betrothed almost at birth. What justifies a degree of casualness in handling agreement to betrothal?
More on the topic CASE 25: Agreement to Betrothal:
- CASE 25: Agreement to Betrothal
- Contents
- CASE 26: Betrothal and Marriage
- CASE 24: Arranging a Betrothal
- CASE 13: The Requirement of Agreement
- C Preliminaries to marriage: age, betrothal, and consent
- CASE 100: A Father's Consent
- Frier Bruce W., McGinn Thomas A.J.. A casebook on Roman family law. Oxford University Press,2004. — xxi+506 p., 2004
- CASE 119: As Though He Were a Pater Familias
- Marriage and marriage dissolution