CASE 99: Compelling a Child's Consent

D. 23.2.21 (Terentius Clemens libro tertio ad legem luliam et Papiam)

Non cogitur filius familias uxorem ducere.

D.

Si patre cogente ducit uxorem, quam non duceret, si sui arbitrii esset, contraxit tamen matrimonium, quod inter invitos non contrahitur: maluisse hoc videtur.

(Terentius Clemens in the third book on the lex lulia et Papia)

A son-in-power cannot be compelled to marry.

(Celsus in the fifteenth book of Digests)

If a man is compelled by his father to marry a woman whom he would not have married were it up to him, he has nonetheless contracted a (valid) marriage since the parties to it were not unwilling; he (the son) is held to have preferred this course.

1.      Contradiction or Construction? In these two texts, the issue is the reality of the consent that a child gives while he or she is in the power of a pater famil­ias. Do Terentius Clemens and Celsus contradict each other? Or does Celsus accept the circumstances he describes as a case of constructive consent? On the requirement that the couple agree to their marriage, see also Cases 13-18.

2.      Rationale for the Holding. In any case, does the wording of Celsuss holding seem peculiar to you? What do you think is the motive for his decision? Does it seem to arise from a practical concern or is he simply following a legal pol­icy of favoring marriage (favor matrimonii)?

3.      Can You Marry Off an Insane Daughter? Suppose that a pater familias has a mad daughter. Plainly, she cannot herself give a valid consent to marriage (see Discussion 2 on Case 13); but can her father assent on her behalf? Ulpian (D. 24.3.2.2) discusses a somewhat comparable situation where a father is suing for recovery of dowry after the dissolution of his daughter’s marriage; ordi­narily her consent to his lawsuit would be required (Case 82), but in this in­stance she is insane and obviously unable to consent. The jurists therefore re­sort to a legal fiction: “when, because of madness, she cannot object, we correctly regard her as agreeing.” Is it likely that a similar fiction would have been applied also in the case of a marriage? What crucial factor makes these two situations different?