CASE 23: The Man Who Died beside the Tiber
D. 23.2.6 (Ulpianus libro trigesimo quinto ad Sabinum)
Denique Cinna scribit: eum, qui absen accepit uxorem, deinde rediens a cena iuxta Tiberim perisset, ab uxore lugendum responsum est.
D.
23.2.7 (Paulus libro singulari ad legem Falcidiam)Ideoque potest fieri, ut in hoc casu aliqua virgo et dotem et de dote habeat actionem.
(Ulpian in the thirty-fifth book on Sabinus)
Finally, (the jurist) Cinna writes: “It was responded that when in his absence a man received a wife, and then, while returning from a dinner, he had died beside the Tiber, he must be mourned by his wife.”
(Paul in his monograph on the lex Falcidia)
And so, in this instance, it can come about that a woman, (while still) a virgin, has both a dowry and an action for dowry.
1. What Happened? The facts are given in such abbreviated form that it is hard to determine exactly what happened. Apparently, while the man was away from Rome, he “received” his wife; this presumably means that she moved into his house (see Case 20). (The transmitted Latin text, however, is not absens but absentem, meaning that she is absent; but that reading seems to make no sense.) Ulpian does not expressly mention a deductio, but perhaps one can be inferred from “received” (accepit). Subsequently, as the man was “returning” (presumably, returning to his home) “from dinner” (a marriage dinner?), he “died beside the Tiber” in circumstances that are not further specified.
Was his death natural or accidental? Was he waylaid? Does it matter?2. Must She Mourn? Roman law prescribed a period of time during which close family members were required to mourn their relatives. Wives, in particular, were expected to mourn a deceased husband for ten months, a period of time that was understood mainly as clarifying the paternity of a posthumous child; thus, for instance, the widow could end her mourning and remarry at once if she gave birth before the end of the ten-month period (Ulpian, D. 3.2.11.2). In this Case, however, as it seems, the bride never had sex with her husband; indeed, given the Roman penchant for arranged marriages (see Case 24), she may not even have met him previously. Still, Ulpian holds that she is married and must mourn her husband. Does this view follow straightforwardly from what you have already learned about Roman marriage law?
3. So Where Do We Stand? Try at this point to summarize what was required to become married in Roman law. How clear are the requirements?