CASE 28: Jilting Your Intended
C. 5.1.1 (Impp. Diocletianus et Maximianus AA. et CC. Bianori)
Alii desponsata renuntiare condicioni ac nubere alii non prohibetur.
D. 23.1.10 (Ulpianus libro tertio Disputationum)
size=1 color=black face="Book Antiqua">In potestate manente filia pater sponso nuntium remittere potest et sponsalia dissolvere.
enimvero si emancipata est, non potest neque nuntium remittere neque quae dotis causa data sunt condicere: ipsa enim filia nubendo efficiet dotem esse condictionemque extinguet, quae causa non secuta nasci poterit. nisi forte quis proponat ita dotem patrem pro emancipata filia dedisse, ut, si nuptiis non consentiret, vel contractis vel non contractis repeteret quae dederat: tunc enim habebit repetitionem.(The Emperors Diocletian and Maximian to Bianor; A.D. 293)
A woman betrothed to one man is not forbidden from calling off the proposal and marrying another man.
(Ulpian in the third book of his Disputations)
As long as a daughter remains in (her father’s) power, the father can give notice to the betrothed and end the betrothal. If she was emancipated, however, he cannot give notice nor reclaim what was given (by him) for her dowry. For the daughter herself, by marrying, will bring it about that this is a dowry and (so) will eliminate a recovery claim that could arise if the cause (for giving a dowry) were not carried out. But now suppose that the father gave a dowry for his emancipated daughter on the condition that if he did not agree to the marriage, he might reclaim what he had given whether or not the marriage was contracted. In this case he will have a claim for recovery.
1. No Form Required. A betrothal is usually repudiated by giving notice (literally, “sending back a message,” remittere nuntium), as here. There is no formality, but some care is necessary, since official disgrace (infamia) is inflicted on anyone who, while betrothed to one person, becomes engaged to or marries another: D. 3.2.1 (quoting the Edict). As this Case indicates, a daughter-inpower, but not an emancipated daughter, can have her impending marriage called off by her father (see also Cases 100, 105; on emancipation, Cases 155-159); but the guardians of a sui iuris adult woman do not have this power (see Ulpian, D. 23.1.6). Unless specially so arranged, a dowry given for a sui iuris woman cannot be reclaimed before the marriage ends.
2. No Penalty. Breach of promise to marry is not actionable. Attempts to create actionability by stipulating penalties if the marriage does not take place are void; as Paul (D. 45.1.134 pr.), explains, such a stipulation is “contrary to good morals (non secundum bonos mores), since it has seemed dishonest that a present or future marriage be constrained by the bond of a penalty.” Why do you think this rule was created?