One issue that marriage always raises centers on property: if two persons from different families form a household, what effect will that have not only on the property they each own at the time the marriage is contracted but also on what they acquire during the marriage?
Here Roman law accepts a radical analysis: marriage has virtually no effect on the individual property rights of the two parties, both when they marry and afterward.
In principle, both husband and wife retain their separate estates. The result is a remarkable simplicity, an institution that one of our students once described as “the pre-nup from hell.” The analogy here is apt, for the chief purpose of modern prenuptial agreements is to prevent one party (usually the economically weaker) from obtaining access to the present and future assets of the other. Roman law seems to achieve this result through law itself, and with such thoroughness that husband and wife are even prevented, at least as a general rule, from exchanging gifts that would tend to alter their relative wealth.style='font-size:8.0pt;line-height:120%'>It is possible to object to this arrangement on many grounds. First, it often seems impractical to anticipate that husband and wife will live together, in the same house, like roommates, without shared ownership of the property they tend to use in common. Even the jurists seem to recognize the difficulties here, although they still cling to the notion that it will eventually be possible to separate the couples property. But second, the very effort to preserve the barrier between the estates of the two spouses may seem to defeat the core purpose of marriage, by making it altogether too easy to end marriages at will; however, the Roman insistence on separate estates at least meant that many of the ugly scenes associated with modern divorce courts could be largely (although not entirely) avoided.
In the end, though, the most substantial problem with the Roman system is that it seems to extend unduly narrow protection to the economically weaker partner, who, it can be assumed, was usually the wife.
In the modern world, women have access to opportunities that were unheard of in the Roman world, and accordingly they may, in some instances, be willing to forgo a share of their husbands' income and wealth—and today, in many cases, vice versa as well. By contrast, Roman women had sharply limited career chances; and, as we shall see, within marriage they could not even legally require their husbands to maintain them. Much, then, came to depend on the leverage that their dowries provided them—a question to which we turn in Section 5.D. 29.5.1.15 (Ulpianus libro quinquagesimo ad edictum)
Si vir aut uxor occisi esse proponantur, de servis eorum quaestio habetur, quamquam neque viri servi proprie uxoris dicantur neque uxoris proprie viri: sed quia commixta familia est et una domus est, ita vindicandum atque in propriis servis senatus censuit.
(Ulpian in the fiftieth book on the Edict)
In the event that a husband or wife is killed, their slaves are questioned (under torture), even though the husband’s slaves are not properly described as the wife’s, nor the wife’s as the husband’s. But because their slave household (familia) is intermingled and they have a single home, the Senate voted the same punishment as for their own slaves.
1. Murder Most Foul. This Case relates to the SC Silanianum, a decree that the Senate passed in A.D. 10. This decree, along with some subsequent legislation, provided that when a master or mistress was killed, this persons coresident slaves—all of them!—were to be subjected to torture and eventually executed, without regard to their actual guilt, so long as they could have prevented the murder.
Ulpian (D. 29.5.1 pr.) explains the purpose of the legislation: “Since otherwise no home can be safe unless slaves are forced, upon peril of their lives, to protect their masters from both internal and external threats, senatusconsulta were introduced as to public questioning of the slave household of murder victims.” Should measures such as these be regarded as an indication that Roman slave owners lived in constant terror of their slaves? In this Case, Ulpian points to a problem that arose from the actual character of many upper-class households; how was the problem solved?2. The Intermixed Household. The importance of this Case for our immediate purposes is that it points up two fundamental aspects of Roman marriage. First, unlike in modern law, there is no automatic or even normal community of property between husband and wife. Instead, to the extent that they have any property of their own, the husband retains both ownership and control over his property, and the wife over hers, throughout the marriage. (The dowry is an important exception here, to which we will come in Section 5.) Second, in practice their personal property, in particular, was not infrequently intermingled within a single home, creating large sources of potential confusion if and when the time came to separate the two estates. With regard to larger holdings, such as real estate, this confusion was considerably less likely to arise; and doubtless the Roman law on the subject would have been much simpler if their insistence on separate estates had been limited to larger or more expensive assets. Instead, as we shall see, the Romans tried to preserve the separation even down to relatively insignificant items, with results that can, on occasion, be somewhat unsettling. As you read the Cases that follow, try to figure out the Romans' reasons for setting up the marital property regime in this way.
3. Obligations.
From the separation of their property, it follows that Roman spouses are, as a rule, not liable for each others debts to third parties, whether these arise from contracts or from civil wrongs (delicts). With respect to one another, obligations arise much as they would between any two Romans; marriage has relatively little effect on this aspect of their legal relationship. Thus, for instance, a wife is liable if she borrows pearls from her husband and then damages them (Ulpian, D. 9.2.27.30); however, out of respect for marriage, infaming actions are generally disallowed (Case 45). As to contracts, legal sources frequently mention loans of money between spouses; for example, Scaevola (D. 34.3.28.13) describes a large business loan by a wife to her husband. (If this loan was interest free, would it be a gift?) Less frequent are references to other transactions, such as sales (e.g., Proculus, D. 19.5.12: a man sells farms to his wife, with an option to repurchase them if they divorce).4. A Shared Household. In modern law, couples often try to keep their estates separate, at least to some extent, through prenuptial agreements that prevent mingling. In Roman law, agreements between husband and wife might be used for exactly the opposite purpose. Scaevola (D. 34.1.16.3) reports on a household in which husband and wife had preserved a total partnership of property (societas omnium bonorum) for more than forty years. Upon his death, the husband left half to each of his heirs: his wife and his grandson. Most probably the wife was entitled to receive, in the settlement, half of whatever belonged to her and her husband (this was her share of the partnership), plus, under the will, half of her deceased husbands share. This agreement, which in some respects actually looks more modern than ordinary Roman law, was a purely contractual arrangement between husband and wife, which either party was free to dissolve even while their marriage persisted.
Our sources give no sign that arrangements of this type were ever other than exceptional.D. 35.2.95 pr. (Scaevola libro vicesimo primo Digestorum)
Maritus uxoris res extra dotem constitutas administravit eaque decedens ante rationem sibi redditam administrationis ex asse eundem maritum heredem reliquit eiusque fidei commisit, ut decem uncias filio communi cum moreretur restitueret, duas autem uncias nepoti. quaesitum est, an id quoque, quod ex administratione rerum apud maritum resedisse constiterit, cum ceteris bonis pro rata decem unciarum filio restitui debeat. respondit id, quod debuisset hereditati, in rationem venire debere.
(Scaevola in the twenty-first book of his Digests)
A husband administered his wife’s nondowry property. She died before receiving an accounting (from him) of his administration. She left her husband as heir to everything, but (in her will) entrusted it to his faith (fidei commisit) that on his death he restore five-sixths (of the estate) to their common son and one-sixth to their grandson.
Question was raised whether the five-sixths share that must be restored to the son includes not only the rest of the estate but also the amount that the husband is discovered to have retained from his administration of her property. He (Scaevola) responded that what he had owed to her estate must be taken account of.
1. Maladministration? Here, the wife apparently entered marriage with considerable property of her own, “outside the dowry” (extra dotem). Although she was not obliged to (see Chapter III.A.3 on the ability of sui iuris women to conduct their own business affairs), she allowed her husband to administer her property; and he did so, without accounting to her for his administration.
When she died leaving him as heir, he might have avoided an accounting; but her additional request created a “trust” (fideicommissum; see Chapter IVC.2) in favor of her son and grandson, meaning that they acquired what we would call a future interest in her estate. Accordingly, as Scaevola holds, what her husband may have owed to the wife’s estate (presumably as a result of his commingling his own assets with his wife’s) must be paid. How easy will it be to determine the amount that is due? The husbands position here is not substantially different, in Roman law, from that of any third-party administrator of another’s property.2. Wives as Administrators. Legal sources also mention the reverse arrangement. Papinian (D. 3.5.32) discusses a situation in which, during their marriage, the wife had her husbands property “in her power” (in sua potestate); after the husband died, his heir, suspecting mismanagement, sought an accounting.
D. 23.3.9.2-3 (Ulpianus libro trigesimo primo ad Sabinum)
(2) Dotis autem causa data accipere debemus ea, quae in dotem dantur. (3) Ceterum si res dentur in ea, quae Graeci parapherna dicunt quaeque Galli peculium appellant, videamus, an statim efficiuntur mariti. et putem, si sic dentur ut fiant, effici mariti, et cum distractum fuerit matrimonium, non vindicari oportet, sed condici, nec dotis actione peti, ut divus Marcus et imperator noster cum patre rescripserunt. plane si rerum libellus marito detur, ut Romae volgo fieri videmus (nam mulier res, quas solet in usu habere in domo mariti neque in dotem dat, in libellum solet conferre eumque libellum marito offerre, ut is subscribat, quasi res acceperit, et velut chirographum eius uxor retinet res quae libello continentur in domum eius se intulisse): hae igitur res an mariti fiant, videamus. et non puto, non quod non ei traduntur (quid enim interest, inferantur volente eo in domum eius an ei tradantur?), sed quia non puto hoc agi inter virum et uxorem, ut dominium ad eum transferatur, sed magis ut certum sit in domum eius illata, ne, si quandoque separatio fiat, negetur: et plerumque custodiam earum maritus repromittit, nisi mulieri commissae sint. videbimus harum rerum nomine, si non reddantur, utrum rerum amotarum an depositi an mandati mulier agere possit. et si custodia marito committitur, depositi vel mandati agi poterit: si minus, agetur rerum amotarum, si animo amoventis maritus eas retineat, aut ad exhibendum, si non amovere eas connisus est.
(Ulpian in the thirty-first book on Sabinus)
(2) The term “property given because of the dowry” we should take to mean the property placed into the dowry. (3) But if the property is placed into what is called parapherna (supplemental property) by the Greeks and a peculium by the Gauls, let us see whether it belongs to the husband at once. I would think that if it was given for this purpose, then it does belong to the husband. And (so) when the marriage has broken up, she should claim it not as owned by her but as owed to her, nor should an action on dowry be brought; this is held in rescripts from the deified Emperor Marcus Aurelius (reign: A.D. 161-180) and our Emperor Caracalla with his father Septimius Severus (coreign: A.D. 197-211).
Clearly, if the husband is given an inventory of the property, as we often see occurring at Rome—for the wife usually writes out the things that she commonly uses in her husband’s home and that she does not put into the dowry, and she provides the list to her husband for his signature, on the basis that he received the property; and the wife (then) retains, as it were, his signed document that she bore into his house the things listed—let us see whether these things belong to the husband. I think they don’t, not because they weren’t handed over to him—for what difference does it make whether they are handed over to him or carried into his house with his consent?—but because I think husband and wife arranged, not the transfer of ownership to him, but (only) that it be certain what was brought into his house, so there is no denial if a separation (of their property) ever occurs. Frequently the husband guarantees safekeeping (custodia) of such property, unless it was entrusted (on a day-to-day basis) to the wife.
As to this property, we will (now) examine whether, if it is not returned, the wife can sue on removal of property or on deposit or on mandate. If its safekeeping (custodia) is entrusted to the husband, she can sue on deposit or mandate. If not, suit lies on removal of property if the husband kept it with the intent to remove it, or for production if he did not attempt to remove it.
1. Supplemental Property. This extended passage begins to suggest some of the practical difficulties that might intrude in Roman marriage. Over and above her dowry, a wife could bring personal property of her own into her husband's house. This Case indicates that she could, if she wished, consign ownership of this property to him for the duration of the marriage, in which case she would have to reclaim it as “owed” to her at the end of the marriage— rather as though it had been loaned to him for his use. But more frequently, it seems, a wife chose to retain ownership and control—hence the signed documents that Roman women used to prevent these items from “inadvertently” becoming part of their husbands' property. Still, as the last paragraph of the Case shows, even where the wife retained ownership, her husband might still “receive” the property and promise to safeguard it. What does all of this suggest about the realism of Roman law in insisting on separate property for the spouses? In any case, as a postclassical rescript states (Theodosius and Valen- tinian, C. 5.14.8; A.D. 450), the husband was not allowed to have dealings with this property unless his wife permitted. On the wife's supplemental property, Papinian (D. 39.5.31.1 = Frag. Vat. 254) discusses nondowry property contributed by a husband's mother-in-law; by a legal fiction, ownership of the property is treated as passing to the wife, who then hands it over to her husband. A wife who was still in her father's power could also have a peculium given to her by her father, distinct from her dowry (Papinian, D. 6.1.65.1); on thepeculium, see Chapter III.B.3. How likely is it that these various categories of property will remain distinguishable?
2. The Wife's “Property.” Correspondingly, certain items that belong to the husband may, during the marriage, be effectively under the wife's control. We learn about such property mainly from legal sources interpreting wills in which husbands leave their wives some or all of this property, sometimes described as “things acquired for the wife's use” (uxoris causa parata). Other sources discuss toiletries (mundus; see Ulpian, D. 34.2.25.10, who mentions mirrors, jars, perfumes, perfume bottles, and other items associated with the bath or the dresser), jewelry, clothing, furniture (supellex; see D. 33.10), kitchen stores (penus; see Ulpian, D. 33.9.3 pr.: “things for eating and drinking”), and so on. Separating out such property from the testator's estate was often difficult and rather arbitrary. For an example, see Case 202.