CASE150: Age Requirements

D. 1.7.16 (lavolenus libro sexto ex Cassio)

Adoptio enim in his personis locum habet, in quibus etiam natura potest habere.

D.

Non tantum cum quis adoptat, sed et cum adrogat, maior esse debet eo, quem sibi per adrogationem vel per adoptionem filium facit, et utique plenae pubertatis: id est decem et octo annis eum praecedere debet.

(Javolenus in the sixth book from Cassius)

Adoption is appropriate in the case of those persons between whom a natural re­lationship can also exist as well.

(Modestinus in the first book of Distinctions)

Not only when someone adopts, but also when he adrogates, he ought to be older than the person whom he makes his son either through adrogation or adoption, and certainly he should be of full legal majority; that is, he ought to be older than the other by (at least) eighteen years.

1.      Adoption of Minors. Unlike in adrogation, adoption of minors was always permitted. What explains this difference? Why require a minimum age differ­ence of eighteen years in either case? Does Javolenus's remark about biologi­cal relationship (he uses the word natura, “nature”) help explain this rule?

2.      Forbidden Marriage. Persons adrogated or adopted could not marry persons whom they would be forbidden to marry if related biologically (Gaius, Inst.

3.      Biology. As the previous Case shows, persons incapable of bearing children were preferred as adrogators. The jurists point out that persons absolutely in­capable of producing children, such as eunuchs (spadones), can both adrogate and adopt (Gaius, Inst. 1.103; Modestinus, D. 1.7.40.2). How does this square with Javolenus's comment about “persons between whom a natural re­lationship can also exist”? But Justinian (Inst. 1.11.9) draws a distinction: spadones who are unable to beget children can adopt, but castrati cannot (compare Cases 8, 184). Would Javolenus accept this distinction?

4.      Unmarried Men. Can unmarried men adopt? See Paul, D. 1.7.30 (yes). Is this logical in light of the present Case?

D. 1.7.23 (Paulus libro trigensimo quinto ad edictum)

Qui in adoptionem datur, his quibus adgnascitur et cognatus fit, quibus vero non adgnascitur nec cognatus fit: adoptio enim non ius sanguinis, sed ius adgnationis adfert. et ideo si filium adoptavero, uxor mea illi matris loco non est, neque enim adgnascitur ei, propter quod nec cognata eius fit: item nec mater mea aviae loco illi est, quoniam his, qui extra familiam meam sunt, non adgnascitur: sed filiae meae is quem adoptavi frater fit, quoniam in familia mea est filia: nuptiis tamen etiam eorum prohibitis.

(Paul in the thirty-fifth book on the Edict)

A person given in adoption becomes a relative (cognatus) of those to whom he is (now) related agnatically; but he does not become a relative (cognatus) of those to whom he is not related agnatically.

And for this reason, if I adopt a son, my wife is not in position of a mother to him, since she is not agnatically related to him, and for this reason she is not his relative (cognata) either. Likewise, my mother is not in position of a grand­mother to him, because he has no agnatic relationship to those outside my household (familia). But the person I adopt does become a brother to my daugh­ter, since my daughter is in my household (familia). All the same, marriage be­tween such (nonrelated) persons is prohibited.

1.      Agnates. Agnates are relatives traced only through males; cognates are all rel­atives, including those related through females (see Case 3). Because adop­tion and adrogation depend upon passing into someone's potestas, they create kinship only through the holder of that potestas, and therefore only agnatic ties count. Do you see why an adopted son is not related to his adoptive “mother” or “grandmother”? Do you see why he does, however, become the brother of his adoptive sister? What does this suggest about the purpose be­hind adoption?

2.      Forbidden Marriage. If a pater familias dies, his adopted son is not permitted to marry the paters widow even though she is not technically his mother; why is this so? Why is he not permitted to marry the pater’s mother, when by law she is not his grandmother? Is this rule founded on any consistent under­standing of incestuous marriage?

3.      Why Does It Matter? The main issue underlying this Case is the inheritance rights an adoptive child acquires with respect to the estates of those in the adopted family. According to Ulpian (D. 38.8.1.4), the adopted child also re­mains a “relative” (cognatus) to all those in his former household. On the in­heritance rights of cognati, see Chapter IVA.1-2.