CASE 24: Arranging a Betrothal
D. 23.1.4 (Ulpianus libro trigesimo quinto ad Sabinum)
(pr.) Sufficit nudus consensus ad constituenda sponsalia.
(1) Denique constat et absenti absentem desponderi posse, et hoc cottidie fieri:D. 23.1.5 (Pomponius libro sexto decimo ad Sabinum)
haec ita, si scientibus his qui absint sponsalia fiant aut si postea ratum habuerint.
D. 23.1.18 (Ulpianus libro sexto ad edictum)
In sponsalibus constituendis parvi refert, per se (et coram an per internuntium vel per epistulam) an per alium hoc factum est: et fere plerumque condiciones interpositis personis expediuntur.
(Ulpian in the thirty-fifth book on Sabinus)
(pr.) Bare agreement (nudus consensus) is enough to bring about a betrothal. (1) So it is settled that an absent person can become betrothed to an absent person, something that occurs every day,
(Pomponius in the sixteenth book on Sabinus)
provided that the absent parties know the betrothal is being arranged, or that they ratify it later.
(Ulpian in the sixth book on the Edict)
It matters little whether betrothal is arranged through the parties themselves—in their presence or by messenger or by letter—or through someone else. Quite frequently the conditions (of the betrothal) are settled by intermediaries.
1. Betrothal.
Betrothal (sponsalia) is a formal kind of engagement. In D. 23.1.1-3, the jurists Florentinus and Ulpian define it as “the proposal and the mutual promise of a future marriage” and derive the word sponsalia from an earlier custom of exchanging formal promises (sponsiones); if one party then called off the marriage, these promises may once have made possible an action for “breach of promise.” In classical law this is no longer true (see Case 28).2. Bare Agreement. The concept of agreement (consensus), explored previously in relation to marriage, returns for betrothal. If marriage is impossible when the bride is absent (Case 20), why then can betrothal be arranged between absent parties? Could it be that the amount of objective evidence required for establishing the existence of agreement varies depending on the importance and finality of the act in question? No witnesses are required, nor is any oral formality or written proof of the betrothal (Paul, D. 23.1.7 pr.). However, Paul (D. 24.1.36.1) describes a betrothal in which a man gave his intended a ring, a common practice among the Romans (as with us) to symbolize their agreement; the ring actually belonged to someone else, but he then gave her his own ring after their marriage. Quite exceptionally, this second gift is held not to contravene the prohibition on gifts between spouses, since it merely “confirms” the earlier ring.
3. Intermediaries. As Case 103 suggests, the pater familias of a woman was regarded as having a duty to find a husband for his daughter; and in general, as Case 25 shows, the older generation, where it survived, is likely to have had an especially large influence on a womans first marriage. However, the Romans may also have made use of marriage brokers. In C. 5.1.6 (an imperial rescript of unknown authorship and date but probably from the sixth century A.D.) the maximum fee a broker can charge for arranging a marriage is discussed: 5 percent of the dowry, provided this fee is agreed to in advance. Is the brides family or the grooms likelier to have paid this fee?