CASE 72: Statutory Limits on a Husband's Power

Gaius, Institutiones 2.62-63

(62) Accidit aliquando, ut qui dominus sit, alienandae rei potestatem non habeat, et qui dominus non sit, alienare possit.

(Gaius in the second book of his Institutes')

(62) It sometimes happens that the owner of property does not have the power to alienate it, while a nonowner can alienate it. (63) For by the lex Iulia (on adul­tery), a husband is forbidden to alienate dowry land if his wife is unwilling, even though the property is his own either through mancipation to him for the dowry or through cession in court or usucapion. It is disputed whether this rule applies only to Italian land or also to provincial (land).

1.      Alienating Land. For reasons that are not entirely clear, this exception was in­troduced by Augustus’s adultery law of 18 B.C.; see also Paul, Sent. 2.21b.2. The exception is significant as the first major statutory restraint on the hus­band’s free disposition of the dowry. The husband was not only forbidden to alienate Italian dowry land without his wife’s consent but also could not use it as security even with her consent (Justinian, Inst. 2.8 pr., citing C. 5.13.1.15, from A.D. 530). What do you think was the likeliest reason for the original law? Justinian, in imposing even more sweeping restrictions on the husbands power (and thereby ending the dispute that Gaius mentions by including the provinces), says that Augustus had feared that female weakness (sexus muliebris fragilitas) would be played upon in order to waste their property. Misogyny aside (on which, see Chapter VB.1-2), what point is he getting at? Papinian (D.

2.      Manumitting Slaves. Augustus’s marriage legislation also prohibited the hus­band from manumitting dowry slaves without his wife’s consent (D. 24.3.61-64). However, a nonconforming manumission is not void but only exposes him to liability if his wife continues to object. One aim of these statutes was evidently to encourage the husband to consult with his wife about important decisions concerning the dowry; see also Case 86. Why might this have been regarded as desirable?

3.      Ownership of the Dowry. Incidentally, in this Case, Gaius makes clear what, for the most part, Justinianic sources leave obscure: that the husband usually acquires ownership of the dowry either through formal transfer of title from the bride’s side (mancipation or cession in court) or through long-term pos­session (usucapion). See Case 66.