CASE 21: The Significance of Ceremony

D. 24.1.66 pr. (Scaevola libro nono Digestorum)

Seia Sempronio cum certa die nuptura esset, antequam domum deduceretur tabu­laeque dotis signarentur, donavit tot aureos: quaero, an ea donatio rata sit.

C. 5.3.6 (Imp. Aurelianus A. Donatae)

Cum in te simplicem donationem dicas factam esse die nuptiarum et in ambiguo possit venire, utrum a sponso an marito donatum sit, sic distinguendum est, ut, si in tua domo donum acceptum est, ante nuptias videatur facta esse donatio, quod si penes se dedit sponsus, retrahi possit: uxor enim fuisti.

(Scaevola in the ninth book of his Digests)

Seia was about to marry Sempronius on a preset day. Before she was led into his house and the dowry documents were signed, she gave him a sum of gold coins. I ask whether this gift is valid.

(Scaevola responded:) It is irrelevant whether the gift was made before she was led into his house, or that an inquiry has established the (exact) time when the documents were signed, since this often occurs even after a marriage is con­tracted. So the gift is invalid unless it was made before the marriage was con­tracted, a time established on the basis of their agreement (consensus).

(The Emperor Aurelian to Donata; A.D. 270-274)

You say that on your marriage day an outright gift was made to you, and that it could be uncertain whether it was given by (him as) your betrothed or as your husband.

1.      An Uncertain Gift. In both these texts, the same problem is raised: On their marriage day, one party has given the other a gift. If the gift was received prior to the couples marriage, then the gift is irrevocable; but if after the marriage, then it is revocable, since husbands and wives usually could not exchange gifts (see Case 61). The issue, then, concerns when they were married. To what extent do the jurist Scaevola and the Emperor Aurelian approach this issue differently? What do their differences indicate about the interrelation­ship between the couples agreement and the ceremony through which they execute their agreement?

2.      Responses. Scaevola's opinion has the literary form of a juristic response (re­sponsum): fact situation; question; answer. This text may or may not be based on an actual inquiry, but the names are typical “John Doe” names and the sit­uation is deliberately kept hypothetical.