CASE 45: No Infamy
D. 25.2.1 (Paulus libro septimo ad Sabinum)
Rerum amotarum iudicium singulare introductum est adversus eam quae uxor fuit, quia non placuit cum ea furti agere posse: quibusdam existimantibus ne quidem furtum eam facere, ut Nerva Cassio, quia societas vitae quodammodo dominam eam faceret: aliis, ut Sabino et Proculo, furtum quidem eam facere, sicuti filia patri faciat, sed furti non esse actionem constituto iure, in qua sententia et Iulianus rectissime est:
D.
25.2.2 (Gaius libro ad edictum praetoris titulo de re iudicata) nam in honorem matrimonii turpis actio adversus uxorem negatur.(Paul in the seventh book on Sabinus)
The special lawsuit concerning removal of property (rerum amotarum iudicium) was introduced against an ex-wife, since it was unacceptable to be able to sue her for theft. Some jurists, like Nerva and Cassius, think that she does not commit theft at all, since a partnership for life (in marriage) makes her in a sense an owner (of her husband’s property). Others, like Sabinus and Proculus, (think) that she does commit theft, like a daughter does to her father, but that by established law there is no action on theft. Julian is quite rightly of this (second) view,
(Gaius in the tenth book on the praetor’s Edict, the title on Judicial Decisions) for a degrading lawsuit against a wife is dismissed in order to respect the marriage.
1. Can a Wife Steal from her Husband? The problem here might most commonly have arisen when a couple divorced and the departing wife took with her property that the husband believed to be his own. A defendant who was found liable in a private action for the delict of theft (furtum) was compelled to pay a penalty that was a multiple of the value of the object stolen; but a convicted defendant was also labeled with infamia, a public label of shame with some adverse consequences in private law.
For ex-wives, however, Roman law used the much milder action described here. The issue that divides the jurists is how to explain the exception: is it that she cannot steal during and after the marriage, or that she can steal but the infaming action of theft is inappropriate in her case? Which view seems likelier? Ulpian (D. 25.2.19) holds there is no action on theft even if she hired professional thieves to help her remove the property.2. Infaming Lawsuits. In classical law, no broad rule prevented spouses from bringing infaming lawsuits against one another, but such suits were increasingly discouraged. See, for example, Marcian, D. 11.3.17 (a reduction in the penalty for corrupting a spouse's slave); Septimius Severus and Caracalla, C. 5.12.1.2 (A.D. 201; no action on deceit, dolus). The Emperors Diocletian and Maximian (C. 5.21.2; A.D. 290 or 293) generalized the rule. What considerations are likely to have motivated this trend?
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