C Pre-nuptial gifts, arrhae sponsaliciae, and dowry

Often pre-nuptial arrangements in the Roman world had included the giving of gifts from one party to the other.

Legislation on pre-nuptial gifts begins with Constantine, who enacted two laws regulating the fate of gifts given by a betrothed person to his or her future spouse, in the event that the couple did not marry after all. In the first law, addressed to the urban prefect of Rome, the rule is that whoever is responsible for breaking a betrothal has to give back any gifts he or she received and forfeits any he or she gave. Note especially paragraph (2), which refuses to recog­nize any reasons for breaking off the betrothal once it had been made — any objections to the prospective spouse should have been brought up in advance [Evans Grubbs 1995, 159—64].

Cod.

Emperor Constantine Augustus to Maximus, urban prefect:

Because the opinion of the ancients is displeasing, which decreed that gifts to a fiancee were valid even when marriage did not follow, we order that those things that are customarily done by law between betrothed persons with the intent of bestowing gifts be regulated according to the following conditions: whether they appear to be under paternal power or in any way under their own legal authority and they bestow something, on their own account or with the mutual consent of their parents, as if for the sake of a future marriage, if by his own will the man should be unwilling to receive his wife (in marriage), that which had been given by him is not to be taken back once it has been handed over and, if anything still remains in the possession of the giver, it is to be transferred to his fiancee without attempts at evasion.

(1)But if it should be revealed that the cause of the marriage not being contracted is the betrothed woman (sponsa) or (the person) in whose power she is, then (the gifts) are to be returned in full to the betrothed man (sponsus) or to his heirs.

(2) The same should be observed if the gift was made on the part of the fiancee to her fiance. Nor should the reasons (for breaking off the match) be inquired into further, lest by chance character or birth be alleged, or anything else which anyone thinks is not suitable for himself or herself be brought forth as an objection, since all these things should have been fore­seen long before the betrothals were contracted. Therefore only the desire (to break off the betrothal) is to be looked into, and a change of mind (on the part of the person breaking the betrothal) is to be sufficient for the return or retrieval of the things given, since, after all pretexts have been discarded, nothing more ought to be established except to make clear who said that contracting the marriage was displeasing.

(3) And since it can happen that one partner dies before the marriage is contracted with the desire (to marry) still unimpaired, we have considered it fitting that if the person to whom a gift had been made died before the marriage day, those things which were either given under the name of betrothal gifts or bestowed under any description, are to be returned to the giver.

[The fourth paragraph says that the heirs who can retrieve the gifts are restricted to parents and children by a former marriage; if there aren't any parents or children surviving the deceased, the person to whom the betrothal gifts were given may keep them.]

Given on the seventeenth day before the Kalends of November, posted at Rome on the sixth day before the afore-mentioned Kalends, in the fifth consulship of Constantine Augustus and the consulship of Licinius Caesar.⁵²

Seventeen years later, Constantine enacted new regulations for the return of betrothal gifts if a marriage did not take place because one of the partners died, modifying the policy set forth in paragraph (3) of Cod. Theod. 3.5.2 (above). Here the disposition of the gifts rests on whether or not a kiss has been exchanged by the couple (presumably during the betrothal ceremony, unless the “kiss” is a euphemism for more intimate relations). Note the remark that betrothed women “rarely” give betrothal gifts — and the emperor's insistence that what­ever a woman has given is to be returned to her or her heirs, whether or not a kiss has been exchanged [see Evans Grubbs 1995, 170—1]. This law took nine months to get from Constantinople (Istanbul, Turkey), where Constantine was, to its recipient in Spain!

Cod. Theod. 3.5.6, 15 July, 334/18 April, 335

Emperor Constantine Aug. to Tiberianus, the Vicar of Spain:

If it should happen, after gifts have been given by a betrothed man to his fiancee and a kiss has been exchanged, that either he or she dies before the wedding, we order that half of the things given belong to the survivor, (and) half to the heirs of the deceased man or woman, whatever degree of relation­ship they are and by whatever right they have succeeded, so that the gift appear to be half-valid and half-cancelled.

(1)But if the betrothed woman has given anything to her fiance under the name of betrothal gifts — which rarely occurs — if it should happen that he or she dies before the wedding, whether or not a kiss has been exchanged, the whole gift is invalidated and possession of the things given is transferred to the betrothed woman who gave it or to her successors.

Given on the Ides of July at Constantinople. Received on the fourteenth day before the Kalends of May at Hispalis in the consulship of Nepotianus and Facundus.⁵³

The fourth century also saw the introduction into Roman law of another purpose of pre­nuptial gifts: as the exchange of sureties (arrhae) to guarantee that the marriage would take place. These sureties, called arrhae sponsaliciae, would have to be returned if the marriage did not occur, with a penalty of four times the amount originally given (later reduced to double the original amount). The origin of arrhae sponsaliciae has been much debated; some scholars have thought the practice had its beginnings in eastern law and custom, but the evidence is very weak [Evans Grubbs 1995, 174—82]. Although the first mention of the term arrhae spon­saliciae in Roman law is in 380 (see below), it is likely that earlier fourth-century legislation, now lost, had already dealt with the idea of such sureties. The idea is already adumbrated in Constantine’s law of 319 [Cod. Theod. 3.5.2, above]. But whereas in Constantine’s law all pre-nuptial gifts were to be returned in full if a marriage did not take place, later arrhae spon­saliciae made up only part of the total pre-nuptial gifts given [Arjava 1996, 55—9].

The earliest extant law explicitly to address arrhae sponsaliciae was a long constitution of the emperor Theodosius I in 380.⁵⁴ Pieces of this law survive in the Theodosian and the Justinianic Codes; like many laws, it was broken up into separate parts by the codes’ compilers.

Cod. Theod. 3.5.11, 17 June, 380

Emperors Gratian, Valentinian (II) and Theodosius (I) Augusti to Eutropius, praetorian prefect:

We remit the penalty of fourfold from the father, mother, tutor or what­ever (relative) of a girl when betrothal gifts have been given before her tenth year.

(1) But a father or any other person who is concerned with the affairs of a girl in her tenth year or beyond, (but) before twelve years old, that is up to the limits of her eleventh year, if he has believed that the pledges that were undertaken should be retained, ceasing from his good faith as the time of marriage approaches, he shall be liable for the fourfold penalty.

(2)There is a different rule for a widow, however, who is not supported by the aid of her age, namely that she, if she does not complete the marriage, shall be held to the quadruple penalty according to the old law.

(3) Moreover, if she has fulfilled her twelfth year, whoever is making the agreement about her marriage, if indeed her father puts himself under obli­gation, or her mother or curator or other relatives, the girl shall be liable.

(4)But an action on the grounds of fairness and justness for the full amount of those pledges which she returned out of her own property according to the penalty of the law, shall be reserved for her against her mother, tutor, curator, or any relative, if she has shown that she had been forced by them to consent to accepting the arrhae.

Given at Thessalonica on the fifteenth day before the Kalends of June in the fifth consulship of Gratian and the first consulship of Theodosius.⁵⁵

It is interesting that different rules for penalizing broken betrothals operate depending on the girl’s age: if she is under ten, there is no penalty.

Another part of the law of 380 said that if either of the betrothed couple died before the marriage, arrhae sponsaliciae were to be returned, unless the giver had given cause for not cele­brating the marriage.⁵⁶ This modified Constantine’s last ruling [Cod. Theod. 3.5.6, above] on pre-nuptial gifts (not called arrhae sponsaliciae), which had made the fate of the gifts depen­dent on whether or not a kiss had been exchanged.

Late Roman legislation on the dowry brought to a marriage by the wife tends to be over­shadowed by the large number of laws relating to pre-nuptial gifts and arrhae sponsaliciae, but dowry was still a matter of interest to Roman law-givers. The following law of the western emperor Honorius says that if the husband dies during the marriage, his widow is to receive back her entire dowry. There is no longer a distinction between adventitious dowry (contributed by those other than the wife’s father), which would have been kept by the husband’s heirs, and profectitious dowry (contributed by the wife’s father), which would have returned to him or his daughter [see Part I.D.4]. Honorius’ law also notes that a husband would sometimes return his wife’s dowry to her during the marriage, which was illegal, since it would then appear to be a gift given during the marriage [see Part I.E]. There was classical precedent for this, however [see D.23.3.73.1 in Part I.D.4].

Cod. Theod. 3.13.3, 3 November, 422

Emperors Honorius and Theodosius (II) Augusti to Marinianus, praetorian prefect:

(After other matters) If, while a marriage is stable, a husband has been consumed by a fatal lot, the dowry which is said to have been given or promised from the resources of his wife reverts to the woman, and the heir of the dead man shall dare to claim nothing from it for himself, because her husband’s death has made it return to the woman.

(1)And if by chance, while a marriage is stable, the dowry has been restored to the wife by the husband — which is not able to stand in law, since it is perceived that she obtains it like a gift — when the same wife has died it shall be given back to the husband by her heirs with its income from the day on which the dowry was restored (to the wife), in such a way that ownership of the (dowry) shall not be able to be alienated by the husband from the children born from the same woman. (And other matters)

Given at Ravenna on the third day before the Nones of November in the thirteenth consulship of Honorius Augustus and the tenth consulship of Theodosius Augustus.⁵⁷

In classical Roman law, dowry was not necessary for a marriage to be valid, but it provided a safeguard for the wife, and demonstrated to outside parties that a union was legiti­mate marriage and not concubinage [Part I.D]. In the fifth century there were attempts by western emperors to make dowry a requisite of iustum matrimonium, but this was resisted by the more classically-oriented legislation of the eastern Empire.⁵⁸ This eastern law⁵⁹ of Theodosius II responded to and refuted a law recently enacted in the west that had described “natural” (i.e. illegitimate) children as those “begotten without an honorable celebration of marriage” [Cod. Theod. 4.6.7; in Chapter 3, Part II.B.3]. It reaffirms the classical idea that a valid marriage rested on the consent of both parties, as long as there were no legal impedi­ments [Wolff 1950, 291-2; cf. Novel 12 of Theodosius II, in Chapter 4, Part II].

Cod. Theod. 3.7.3, 20 February, 428

Emperors Theodosius (II) and Valentinian (III) Augusti to Hierius, praeto­rian prefect:

If instruments of pre-nuptial gifts or dowry have been lacking, (or) a procession or other celebration of marriage should also be omitted, let no one think that for this reason legal validity is lacking, if the marriage has otherwise been begun in a correct way, nor that the rights of legitimate (heirs) can be taken away from children born from that (marriage). Since no law impedes, between persons equal in honor (there is) marriage (consortium), which is confirmed by the consent of the parties themselves and by the belief of friends. (And other matters)

Given at Constantinople on the tenth day before the Kalends of March in the consulship of Felix and Taurus.⁶⁰

Theodosius II’s law of 428 suggests that by the fifth century, pre-nuptial gifts [donatio ante nuptias) and dowry (dos) tended to be considered in tandem, with the donatio ante nuptias being the bridegroom’s contribution and the dos being the bride's [Arjava 1996, 56-60]. This tendency appears in several later laws, which assume (or require) that the two contributions be equal and be governed by the same rules.

The following law, also of Theodosius II, ruled that if a husband died during the marriage, his wife was to pass on the pre-nuptial gift he had given her to their children, and likewise, if the wife died first, her husband was to pass on her dowry to their children in common. Even if the spouse who died had still been under paternal power, his or her paterfa­milias did not get the pre-nuptial gift or dowry, but it was transmitted instead to the couple’s children. This is part of a trend in late Roman law to safeguard the inheritance that children received from their mother (called bona materna, “maternal goods”) from exploitation by their father, particularly if he remarried [Arjava 1996, 98-105]. Theodosius is reiterating a law of his grandfather, Theodosius I [Cod. Theod. 3.8.2, in Chapter 5, Part I.B], that a woman was to preserve the pre-nuptial gift she had received from her husband for her children by him and could have only the usufruct of it, and is expanding it to apply to men also. This law also notes that wives often converted the pre-nuptial gift they received from their husbands into dowry, an interesting detail.

Novel 14 of Theodosius II, 7 September, 439

Emperors Theodosius (II) and Valentinian (III) Augusti to Florentius, praeto­rian prefect:

It is the duty of the imperial majesty to look out for even those who have not yet been born, and to provide, in the contracts of parents, the fruit owed to nature for future children also.

(1)   Past laws have ordered that when a marriage has been dissolved by the husband's death and there are children in common, the woman preserve, under certain conditions, the pre-nuptial gift and other properties which devolved to her in certain ways from the person of her husband, for these same children.

(2)The divine grandfather of Our Gentleness with humane mind had also urged that men too, when the marriage has been dissolved by the wife's death and there are children, observe these things, under the same condi­tions, in regard to the dowry and other properties devolving to him (sic) from the person of the wife.⁶¹

(3) We felicitously decree by the bonds of law, that these things are to be observed by men. For, in general, in whatever situation constitutions before this law have decreed that the wife preserve for their common children those things which devolved upon her from her husband's property when a marriage has been dissolved by the husband's death, in those same situations we decree also that the husband preserve for their common children those things which devolved upon him from his wife's property, when the marriage was dissolved by the wife's death. Nor do we want it to make any difference, if someone else has believed he should offer a pre-nuptial gift on behalf of the husband or a dowry on behalf of the woman. We order these things to be observed even if the properties given before marriage should be converted into dowry, as usually happens.

(4)Furthermore, even if the marriage has been dissolved by a notice of divorce (repudium) by the woman's fault, the husband will retain the gift in full, not in part as in the case of the other dowry.⁶²

[Paragraphs 5—7, omitted here, are concerned with the fate of properties which one deceased spouse has left to the other, and refer to the rule laid down by Theodosius I, that a remarried widow was to preserve what she had inherited from her first husband for her chil­dren by him [see Chapter 5, Part I.B].]

(8)Moreover, we confirm what is contained in earlier laws, that a father not acquire the pre-nuptial gift from a daughter who is in his power, nor the dowry from a son, with this addition, that if they have died while still in their father's power and there are children, these same properties are to be transmitted to their children by the right of inheritance, not to the father by the right ofpeculium nor, of course, to the grandfather through his grandchil­dren, dearest and most beloved parent Florentius.⁶³

(9) And so your illustrious and magnificent authority shall see that this most salubriously promulgated law come to the notice of all peoples by the posting of edicts.

Given at Constantinople on the seventh day before the Ides of September in the seventeenth consulship of our lord Theodosius Augustus and the consulship of Festus, v.c.⁶⁴

Another law of Theodosius II addressed the question of the husband’s power over non- dotal property that a wife brought into the marriage, specifically the personal items called by the Greek inhabitants of the Empire parapherna. This had also been discussed by the third- century jurist Ulpian [see Part I.E.2]. Theodosius, a promoter of “classical” law, was willing to abide by the opinions of earlier law-givers, even though he thought it was preferable for a wife to allow her husband to manage all her property.

Cod. Just. 5.14.8, 9 January, 450

Emperors Theodosius (II) and Valentinianus (III) Augusti to Hormisdas, praetorian prefect:

By this law we decree, that if his wife forbids it, a husband has no right of sharing in the possessions his wife has in addition to the dowry, (possessions) which the Greeks call parapherna, nor may he impose any constraint upon her. For though it would be good for a woman, who entrusts her very self to her husband, to allow her property also to be guided under his control, however, since it is fitting that the founders of the laws be supporters of equity, in no way, as was said (above), do we wish a husband to be involved in the parapherna if his wife forbids it.

Subscribed (by the emperor) on the fifth day before the Ides of January in the year after the consulship of Protogenis and Asterius.⁶⁵

In the western Empire, legal attitudes were less attached to classical precedents, and prob­ably more in tune with contemporary mores. Thus the western emperor Valentinian III (cousin of Theodosius II and like him, a grandson of Theodosius I) professed himself shocked that a widowed mother could bring a legal claim against her own children for expenses incurred on her property during the marriage. He pointed out that it was impossible to deter­mine who had owned what in a marriage where the spouses had an “equality of living in common” and shared resources, and was contemptuous of the uses to which wives put their wealth, which he thought went mainly for “feminine adornment.”

The first paragraph of Valentinian’s law fulsomely thanks the Senate (of Rome, not Constantinople, which had its own Senate) for asking certain imperial officials⁶⁶ to bring the matter to the emperor's attention. No doubt the senatorial aristocracy, who would be those most likely to inherit substantial wealth and property from both parents, were particularly concerned about preserving patrimonies.⁶⁷

Novel 14 of Valentinian III, 11 September, 444

Our lords the Emperors Theodosius (II) and Valentinian (III) Augusti to Albinus, praetorian prefect for the second time:

We joyfully acknowledge the most magnificent Senate, mindful of its own authority, whose counsel always runs counter to wicked matters. Hence it is that (the Senate) recently enjoined upon illustrious and sublime men, whom the utility of public necessity demanded be recalled to the most sacred imperial retinue, that (a law) be suggested to us, so that a usurpation abhorrent to all honorable intercourse no longer have force.

(1)lang=EN-US>For we learn that certain women, after their husband’s death, have denuded their own children by proposing a dishonorable legal action, since they sought from them (their children) the profits of their own patrimony; (profits) which, while the marriage is in existence, it is agreed are considered consumed in that equality of living in common, and whose tangled and confused computation we do not believe can be discerned with regard to the credibility of truth. And since we know that it happens rather frequently that matronly adornment demands the greater part of the expenses, and since men, after their wife's death, never believe that anything of this kind should be brought against their common children, it is hard that such things are allowed only to female license.

(2)And so, dearest and most loving parent Albinus, your illustrious and lofty greatness shall know that with this edictal law we have decided that the partner surviving from a conjugal joining is not to think that heirs of the deceased should be struck with a lawsuit over this reclaiming of expenses. Indeed, we wish both wives and husbands to be held by this condition. For whether dowry has intervened or whether it was not offered, all dispute over this reclaiming and accounting is to be silent.

(3)Moreover, your greatness shall make this law, which is to benefit the utility and concord of the human race, arrive at the notice of all by means of edicts posted throughout the provinces.

Given at Ravenna on the third day before the Ides of September in the sixteenth consulship of our lord Theodosius Augustus and the consulship of Albinus, v.c.

Several years later, Valentinian III dealt with the disposition of pre-nuptial gifts and dowry when there were no children from a marriage, applying the same policy to both. This introduces a change to the ruling of Valentinian’s uncle, Honorius, that a widow was to receive back all of her dowry [Cod. Theod. 3.13.3, above]. The following is an excerpt from Valentinian’s Novel 35, a very long law which also legislated on bona materna, divorce, and the conducting of lawsuits.⁶⁸

Novel 35.8-9 of Valentinian III, 15 April, 452

(8) We have considered it opportune, on the occasion of this law, to decree about succession these things which were not clearly expressed in earlier decisions. Therefore, if a man should die without children, with his wife surviving him, the woman shall restore half of the betrothal gift which she received to the father or mother of the deceased and shall keep the remaining portion for herself. If the persons of whom we speak are lacking, everything she received in return for her modesty⁶⁹ shall go to her gain, since it ought not to be diminished when such dear and devout names are not extant.⁷⁰

(9) There will be a similar condition concerning the dowry. The authority of the present oracle decrees that in the event of the wife's death, the husband is to return to the father or mother of the deceased woman half of the dowry he received, if it was contributed to the husband with no inter­vening conditions and is able to be to his gain. But the wife's side ought to give back (to the widowed husband) as much as the husband had brought (to the wife) in betrothal gifts, so that there be an equal condition of giving and receiving, lest an acceptable future marriage be a source of gain to one, but a detriment to the other.⁷¹

By the mid-fifth century, the size of the pre-nuptial gift offered by prospective husbands had become so important a part of the marriage negotiations that parents of marriageable girls were trying to extort as much as they could out of eager suitors. So, at least, was the opinion of the western emperor Majorian, who ruled in 458 that dowries must equal pre­nuptial gifts in size. Elsewhere in the same long novella, Majorian had condemned parents who forced their nubile daughters into a life of Christian celibacy; the law as a whole reveals cynical mistrust of the marital politics of the Roman elite of his day [see Part I.B and Chapter 5, Part I.B for other excerpts from this law].

Majorian also decreed that unions made without dowry were not valid marriages. Earlier in the fifth century, the eastern emperor Theodosius II had explicitly stated that lack of dowry or pre-nuptial gifts did not invalidate an otherwise legal marriage [Cod. Theod. 3.7.3, above]; his law was probably a response to a declaration by the western emperor Valentinian III that children born from unions “without honorable celebration of matrimony” would be considered illegitimate [Cod. Theod. 4.6.7, in Chapter 3, Part II.B.4]. There appears to have been a difference between eastern and western legal attitudes on this point, with western rulers requiring some sort of external evidence of marriage while eastern law upheld the clas­sical Roman policy that neither dowry nor ceremony was necessary for a valid marriage.

Novel 6.9-10 of Majorian, 26 October, 458

(9) What is advantageous for children is of concern to us, and we wish that they be begotten more numerously for the increase of the Roman name and do not allow benefits for those who have been begotten to be lost. Therefore, as a necessary consequence, we have considered that precautions must be taken so that an equal condition on both sides constrain the male and female who are to be joined by the nuptial bond; that is, that a future wife should know that she will never bring less under the title of dowry than she demands as pre-nuptial munificence. And girls and the parents of girls, or whatever persons are about to marry, shall know that both parties who have been joined without a dowry are to be branded with the stains of infamy, with the result that it shall not be judged a marriage nor shall legitimate children be born from them.

Roman">(10) Of course, we must resist the greediness of some people, who exhaust the resources of their sons-in-law either for themselves or for their daughters or for certain persons whom they have suborned, before they make any settlement concerning a marriage pact. They arrange by secret fraud for many things to be conferred upon them by heedless young men aroused by the desire of future marriage, which they refund to their daughters after the solemnity of marriage vows has ensued,⁷² or perhaps, by a greater love of perfidy, they think (the gifts) have been acquired for themselves. Wherefore we order that none of this clever and frivolous scheme shall have effect, so that after the sham of such a contract has been voided, a son-in-law who is legally independent may afterwards assert his claim and confidently seek back, by publicly stated legal action, whatever he was compelled to give over through a specious contract that is henceforth illegal.

By the later fifth century, both eastern and western emperors felt that the husband's contribution to the marriage (the pre-nuptial gift) and the wife's (the dowry) ought to be equal, while realizing that this was not always the case. The eastern emperor Leo addressed the same situation as Valentinian Ill’s law of 452 [Novel 35.8—9, above], but reached a some­what different solution. Leo’s law evidently held for all cases when one spouse predeceased the other, whether or not there were children (who are not mentioned). The law suggests that mothers could also make valid betrothal pacts on behalf of their sons or daughters (though presumably only widowed mothers; if the father were still alive and had potestas over his child, it would certainly be his responsibility).

Cod. Just. 5.14.9, 18 August, 468

Emperors Leo and Anthemius Augusti to Nicostratus, praetorian prefect:

We decree that after the death of whichever person, whether the husband or the wife, the husband acquires as much from the dowry as the wife does from the pre-nuptial gift — the same portion, not the amount of money (that he or she originally contributed).

(1) For example, if the husband has contributed a thousand solidi before the marriage as the gift, the woman will be permitted to offer a dowry of lesser or greater amount. However, the following must be observed: that as great a portion as the wife stipulates to go to her profit from the pre-nuptial gift, if it should happen that her husband dies first, so great a portion — not the amount of money — shall the husband stipulate (goes to him) from the dowry if, while the marriage is intact, the woman has fallen to her fate first.

(2)   And if a pact has followed against the prohibition, we give notice that it is ineffectual and invalid, so that no enforcement can proceed from it.

(3) We think the same (rule) is maintained, whether the father has given the pre-nuptial gift to the bride on behalf of his son or the mother (has given the gift), or the one who will marry, after he has become legally inde­pendent (has given it), or anyone else (has given it) on his behalf. (4) Also in a similar way, whether the father has given the dowry or promised it to the man about to marry on behalf of his daughter, or the mother (has given it), or (the daughter) herself, that is, after she has become legally independent, on her own behalf, or anyone else on her behalf — since also, if another offers the dowry on her behalf, she herself seems to offer it on her own behalf.

(5) Which indeed is so true, that she herself may seek back for her own gain the dowry offered by another on her behalf, unless by chance he who offered it immediately (that is, at the time of offering or of promising) stipu­lated or made an agreement that the afore-mentioned dowry would be returned to him.

Given on the fifteenth day before the Kalends of September in the second consulship of Anthemius Augustus.

In the law below, Leo returned to the subject of arrhae sponsaliciae, the sureties given by each party before marriage to guarantee that it would take place [see Cod. Theod. 3.5.11, above]. This was part of a much longer law, which also discussed whether women could claim ignorance of the law [see Chapter 1, Part IV.A].⁷³

By Leo's day the fourfold penalty for breaking a betrothal had been reduced to double the original amount of arrhae. Like Theodosius I's law of 380 on arrhae sponsaliciae [Cod. Theod. 3.5.11], Leo's law sets different liabilities for women who broke betrothals depending on their age, but whereas for Theodosius I, the age of liability was twelve, for Leo it is twenty- five, the age of majority in late antiquity [see Chapter 1, Parts II.C and III.E and cf. Cod. Theod. 3.7.1 and Cod. Just. 5.4.20 in Part I.A].

This law also mentions several causes for which a betrothal could be broken without penalty (that is, merely by giving back the arrhae received from the other party): if it was learned after the engagement was made that the other party was of shameful character or different religious persuasion, or (in the case of a male) impotent.

Cod. Just. 5.1.5, 1 July, 472

Emperors Leo and Anthemius Augusti Erythrius, praetorian prefect:

A woman who has become legally independent shall be held to the double penalty for arrhae sponsaliciae (made) in her name, that is, for that which she received and just so much else and no more, if, after the comple­tion of her twenty-fifth year or after having been granted the “indulgence of age” as confirmed in a competent court,⁷⁴ she has received arrhae of this kind. However, (she shall be held) to the onefold penalty, that is, only as much as she received, if she is of lesser age, whether she is a virgin or a widow, or whether she received these arrhae through herself or through a tutor or curator or another person.

(1) But it has been agreed that a father or mother, who of course are of legal age, whether they undertook the arrhae on behalf of their daughter together or separately, are held just as much to the double penalty; more­over, (so is) a grandfather or great-grandfather on behalf of his granddaughter or great-granddaughter.⁷⁵

(2)We think these (rules) are to be thus followed, if the future marriage is not prohibited from existing on account of the person or status or other cause forbidden by laws or general constitutions. For then we warn that by no means, seeing as (the broken betrothal) is without cause, does it follow that these arrhae, when they have been offered, can be merely returned (onefold).⁷⁶

(3) We add this only to this, that even if the intended marriages were not prohibited by law, but after the (exchange of) arrhae sponsaliciae, the betrothed woman refused marriage with her fiance on account of his shame­less or unchaste behavior, or a difference of religion or religious sect, or for the reason that he would not have been able to have intercourse like a man, from which the hope of offspring arises, or on account of any other just excuse, if indeed it has been proven that the woman or her parents knew this before the arrhae sponsaliciae were given, they ought to accept their loss.

(4)But if they undertook the arrhae sponsaliciae in ignorance of these things or, after the arrhae had been given, a just cause for repentance arose, having returned only these same (arrhae), they shall be kept free (from any penalty) beyond the onefold penalty of the other..,⁷⁷

III