CASE 13: The Requirement of Agreement
Tituli ex Corpore Ulpiani 5.2
lustum matrimonium est, si inter eos qui nuptias contrahunt conubium sit, et tam masculus pubes quam femina potens sit, et utrique consentiant, si sui iuris sunt, aut etiam parentes eorum, si in potestate sunt.
(Excerpts from Ulpian’s Writings)
A marriage is legitimate (iustum) if (the following three conditions are met:) there is conubium between the parties who contract the marriage; the male has reached puberty and the female is capable (of sexual relations); and both parties agree (consentiant) if they are sui iuris, or also if they are in (a father’s) power, their parents (agree).
1. What Is Agreement? This Case gives a standard list of the requirements for Roman marriage: conubium; adulthood; and the agreement (consensus) of all relevant parties, which includes not just the bride and groom but also their patres familias if they are in power (see Cases 98-103; the requirement of parental consent is important!).
But even between the couple, what is meant by “agreement”? If we say that the parties must “agree” to the marriage, we may mean one of two things: either they must actually (inwardly) agree, even though an outside observer might not realize that they do (this is called subjective agreement); or they must appear to agree even though they may really not, so that an outside observer would conclude they agree (objective agreement). Or is some intermediate position preferable? As you read the following Cases, try to decide which view the Romans adopt. Note that the author of this Case says nothing about public licensing or registration of the marriage (the Romans had neither); and he also does not list a wedding ceremony among the essential requirements.2. style='font-weight:bold'>Insanity. Paul, D. 23.2.16.2: “Since agreement (consensus) is required, insanity (furor) prevents a marriage from being contracted; but it does not invalidate one that has been validly contracted.” So an insane person cannot marry initially; but if a spouse goes mad after marrying, this does not by itself dissolve the marriage. The jurists often hold that the insane are by definition unable to function in civil society; they cannot make contracts, write wills, or marry. As to marriage, does this rule help to decide between a subjective and an objective concept of agreement? Suppose, for instance, that a bride is unaware that she is marrying a man who is legally insane; is their marriage valid? On the guardianship of the insane, see Case 223.
3. Legal Exactitude. As you read the Cases that follow, try to decide whether it is always important that legal rules be absolutely clear and unequivocal in their application. Should room be deliberately left for judicial discretion in individual cases? If so, how much room?