CASE 15: Not Standing on Ceremony
Quintilianus, Institutio Oratorio. 5.11.32
Nihil obstat quominus iustum matrimonium sit mente coeuntium, etiamsi tabulae signatae non fuerint: nihil enim proderit signasse tabulas, si mentem matrimonii non fuisse constabit.
(Quintilian in the fifth book of his Rhetorical Institutes)
Nothing prevents a marriage from being legitimate (solely) through the will of the partners, even if no (marriage) documents are signed, since (conversely) the fact that they signed documents will be of no use if it (later) emerges that they had no will to marry.
1. An Argument ex Contrario.
Quintilian, a renowned late-first-century A.D. teacher of rhetoric, was not a jurist, although he often argued civil cases in Roman courts. He uses this particular example to illustrate what he calls an argumentum ex contrario iure. Do you follow his reasoning? The second half of this sentence (from “since” on) seems correct: going through the form of a marriage does not lead to a marriage if the parties do not actually want to marry. (Compare Papinian, D. 39.5.31 pr.: “Documents don't make a marriage.”) But does it necessarily or even reasonably follow that a marriage can arise “through the will of the partners” alone, without any further objective evidence? That is, if the parties' intent (what Quintilian calls their “will,” mens) is always required for a valid marriage, does that mean that there is not, or that there should not be, any further requirement of form? Think about this question in relation to marriage in modern law as well.2. “A Sham Marriage.” With the second part of this Case, compare Gaius, D. 23.2.30: “A sham marriage (simulatae nuptiae) has no effect.” What does Gaius mean by “sham marriage”? Consider the following examples: a marriage ceremony performed onstage during a play; or as a joke at a party; or simply to escape the effects of laws penalizing failure to marry (Case 12), by two persons who do not intend to have sexual relations or to raise children; or between two persons who know that, under Roman law, they cannot be married even if they wish to be (e.g., two persons of the same sex).
Are these four situations entirely equivalent? What about a marriage that arises as a result of fraud (e.g., the groom has lied about his solvency or his ability to sire children; the bride has lied about being pregnant), duress (e.g., a shotgun wedding), or mistake (the groom believes he is marrying a different woman)? Since divorce was so easy in Roman law, the jurists rarely worry about problems stemming from defective agreement to marriage.3. Unequal Marriages. Although this was evidently not the position of classical Roman law, in the later Empire a view arose, perhaps under Greek influence, that a marriage between persons of unequal social rank was valid only if confirmed by dowry documents; Justinian (C. 5.4.23.7; A.D. 520-523) repeals this “law.” Why would marriages of this kind seem to call for more than usual proof?
More on the topic CASE 15: Not Standing on Ceremony:
- From Pastoral Chiefdoms to Nomadic Empire
- 4 THE FIRST WORLD WARS AND THE ‘CLASSICAL’ AGE 494 BCE–404 BCE
- The Validation of Signs