The financial side of marriage Dowry/Gifts/Family Economy
General divisionMarriages cum manu: wife ﬁliae-loco,inheritance expectativeMarriages sine manu: separate estates,possible bequests in the will of thehusband, otherwise nothing by the wayof succession (praetorian order ofintestate succession)
Dowry in classical law Tituli ex corpore Ulpiani, 6.1-2; 6.4; 6.6-7; 6.10; 6.12-13A dowry is either transferred, (dotis datio), declared bythe giver (dotis dictio) or promised (dotis promissio). Awoman who is about to be married can declare herdowry, and her debtor can do so, at her direction, amale ascendant of the woman related to her throughthe male sex, such as her father or paternalgrandfather, can likewise so do. Any person can give orpromise a dowry.
Dowry afterthe termination of marriage Archaic times: no restitution, unless a stipulation was made
Dowry afterthe termination of marriage Archaic times: no restitution, unless a stipulation was made Do you promise to give back the dowry when the marriage ends?
Dowry afterthe termination of marriage Archaic times: no restitution, unless a stipulation was made Do you promise to give back the dowry when the marriage ends? I do promise
Dowry afterthe termination of marriage Archaic times: no restitution, unless a stipulation was made Do you promise to give back the dowry when the marriage ends? I do promise Preclassical times: action for the wife’s things (actio rei uxoriae)
QUOD AULA AGERIA NUMERIO NEGIDIOMARITO DOTEM DEDIT, QUIDQUID OB EAMREM MELIUS AEQUIUS ERIT NUMERIUMNEGIDIUM AULIAE AGERIAE REDDI OPORTET,EIUS IUDEX NUMERIUM NEGIDIUM AULIAEAGERIAE CONDEMNATO, SI NON PARETABSOLVITO.BECAUSE THE PLAINTIFF HAS GIVEN A DOWRYTO THE DEFENDANT, WHATEVER BECAUSE OFTHIS CAUSE WILL BE BETTER AND MOREEQUITABLE, THAT THE DEFENDANT SHOULDRESTORE TO THE PLAINTIFF, LET THE JUDGECONDEMN THE DEFENDANT TO THISAMOUNT IN FAVOUR OF THE PLAINTIF, IF ITIS NOT PROVEN, LET THE JUDGE ACQUIT(HIM).
Dowry in classical law Tituli ex corpore Ulpiani, 6.1-2; 6.4; 6.6-7; 6.10; 6.12-13When a woman dies during the marriage, her dowry givenby her father reverts to him, a ﬁfth of the same for eachchild she leaves being retained by the husband, no matterwhat the number maybe. If her father is not living, thedowry remains in the hands of the husband.When a divorce takes place, if the woman is in her ownpower, she herself has the right to sue for the recovery ofthe dowry. If, however, she is under the power of her father,he having been joined with his daughter can bring theaction for recovery of the dowry …
Dowry in classical lawIf the woman dies after the divorce, no right ofaction will be granted to her heir, unless herhusband has been in default in restoring her dowry.A portion is retained on account of children, whenthe divorce took place either through the fault ofthe wife, or her father, if she is in his power. Forthen a sixth part of the dowry is retained in thename of each child, but not more than three-sixthsaltogether…
Dowry in classical lawA sixth of the dowry is also retained on the groundof ﬂagrant breach of morals; an eighth, where theoffence is not so serious. Adultery alone comesunder the head of a ﬂagrant breach of morals allother improper acts are classed as less serious.The adultery of a husband is punished by requiringhim to return the dowry at once, if it was to havebeen returned after a certain time; if his offence isless grave, it must be returned within six months
A dowry contract from second half of secondcent.) (P. Mich. inv. 508+2217+ P Ryl IV 612) .P.Ryl. IV, 612: scriptura interior);;[- - -Nomissianus] in accordance with the Julian law,[which has enacted concerning marriagearrangements, has given his] maiden [daughter]Zenarion in marriage for the sake of begetting[children and M. Petronius Servillius has takenher as his wife]; and to him he has promised andhas given (by way) of dowry everything [that iswritten below for the same, above-mentioned(daughter)]
A dowry contract from second half of secondcent.) (P. Mich. inv. 508+2217+ P Ryl IV 612) .: of land inherited from his father [near thevillage of Philadelphia], two and one-half andone-half <;read: one-quarter>; iugera [ofcatoecic land in the place Cor- - -, and in thesame village], three and a half (iugera) [of sandyland inherited from his father], for the half [. . .used as vine land; and in gold objects a verylong earring] (of the weight) of two and one-halfquarters and some necklaces [(of the weight) ofone and one-half quarters, total 4 quarters, andone pair of silver . . . ]7 staters in weight, and
(in clothing by valuation [a tunic and a lightmantle and a Scyrian cloak for the value of 430Augustan drachmai], and as additional gifts, atunic and an [old] light mantle, [and aHeratianon, and a striped garment(?), and abronze Venus] and a bronze ﬂask (of the value)of 48 drachmai, [and a mirror and a chest . . .and two oil ﬂasks and another ﬂask] in weight 71/4 minae, [and a small wooden box, an easychair, a perfume box, a basket, and] the paternal[slave] Heraida.
[Likewise M. Petronius Servillius also said thathe himself had contributed as dowry gifts of hisown two paternal iugera of grain land located]near the village of Philadelphia [in the place - --];;(P.Mich. inv. 508 + 2217, verso);;(2nd hand) [- --];(3rd hand, in Greek) I, Marcus [- - -] . . ., havesealed.;(4th hand, in Greek) I, Marcus Varius(?) [-- -], have sealed.;(5th hand, in Greek) I, TitusFlavius Iulianus, have sealed.;(6th hand, inGreek) I, Lucius Valerius Lucretanas, havesealed.;(7th hand, in Greek) I, Publius M[- - -] [--]thinos, have sealed.;(8th hand, in Latin) [I, - --], have sealed
Dowry in theatre: Plautus, AsinariaPlautus, The Ass-dealerDIABOLUS Troth now, prithee, proceed and read them over to me. A PARASITE Are youattending? DIABOLUS Im all attention.A PARASITE (reads the agreement) . "Diabolus, the son of Glaucus, has made apresent to Cleæreta, the procuress, of twenty silver minæ, that Philenium may bewith him night and day for this whole year." (...) "And not admit any other manwhatever, because either her friend or her patron, she may choose to call him” (...)"Or because she may say that he is the lover of a female friend of hers. The doormust be closed to all men except to yourself. On the door she must write that she isengaged. Or, because she may afﬁrm that the letter has been brought from abroad,there is not to be even any letter in the house, nor so much as a waxed tablet; and ifthere is any useless picture , let her sell it; if she does not part with it, within fourdays from the time when she has received the money of you, let it be considered asyour own; you to burn it if you like; so that she may have no wax, with which shemay be able to make a letter. She is to invite no guest; you are to invite them. On noone of them is she to cast her eyes: if she looks upon any other person, she must beblind forthwith3. Then she is to drink cup by cup equally with yourself. She is toreceive it from you; she is to hand it to you for you to drink. She is not to have arelish for less or for more than yourself."
A PARASITE (reading) . “She is to remove all causes of suspicion from her, nor is sheto tread on any man’s foot with her foot; when she rises she is neither to step upon thenext couch, nor when she gets down from the couch is she thence to extend her handto any one; she is not to give to nor ask of any one a ring for her to look at; she is not topresent dice to any man whatever except to yourself; when she throws them, she is notto say, You I call upon,’ she is to mention your name. She may call on any Goddess thatshe pleases as propitious to her, but on no God: if she should chance to be very full ofdevotion, she is to tell you, and you are to pray to him that he may be propitious. She isneither to nod at any man, wink, or make a sign. In ﬁne, if the lamp goes out, she is notto move a single joint of herself in the dark.”.... “And she is not to use any shufﬂingwords, nor is she to know how to speak in any tongue but the Attic. If perchance sheshould begin to cough, she is not to cough so as to expose her tongue to any one incoughing. But if she should pretend as though she had a running at the nose , eventhen she is not to do so; you yourself must wipe her lips rather than that she shouldopen her mouth before another person. And her mother, the procuress, is not to comein in the middle of the wine, nor is she to utter a word of abuse to any one; if she doesso speak, let this be her ﬁne, to go for twenty days without wine.... “Then, if she bids hermaid-servant carry chaplets, garlands, or unguents, to Venus or to Cupid, your servant isto watch whether she gives them to Venus or to a man. If perchance she should say shewishes to keep herself in purity, let her account for as many nights as she has keptherself in purity. These are no triﬂes; for they are no funeral dirge”
Gifts: the legal principleD. 24.1.1 (Ulpian): It has been accepted among us by customthat gifts between husband and wife are not valid. Moreoverit has been accepted for this reason, that they not bereciprocally despoiled from love for each other, by not actingwith restraint in their gifts, but by acting with immoderategood-nature towards each other.D. 24.1.2 (Paulus) and so that they not be remiss in their zealfor bringing up children. Sextus Caecilius added anotherreason as well, because it would often occur, that marriageswould be torn apart, if the one who was able to give did not,and so in this way it would come about that marriages wouldbe up for sale.
Gifts: the legal principleD. 24.1.3 pr. (Ulpian) The Reason has been taken fromthe speech of our emperor Antoninus (Caracalla)Augustus, for he spoke thus „Our ancestors prohibitedgifts between husband and wife, valuing honourablelove by feelings alone, and also considering thereputation of the couples, so that they not appear to beunited in marital harmony for a price, nor should thebetter partner fall into poverty and the worse partnerbecome richer‘.
Gifts: the practical side 1. Domestic LifeD. 24.1.18 (Pomponius) If a husband has used the slavesor clothing of his wife or a wife has used the slaves orclothing of her husband, or has lived for free in theother’s house, the gift is valid.
Gifts: the practical side 2. Travel ExpensesD. 24.1.21 pr. (Ulpian) If someone had paid out on hiswife’s behalf the tolls which is usual to pay on ajourney, would there be a demand for repayment by heras if she had been made richer by this, or would this bea gift? And I rather think that this is not forbidden,especially if she set out on the journey for his sake.
Gifts: the practical side 3. Honourable MaintenanceD. 220.127.116.11 (Pomponius) If a man had given his wife anextravagant gift on Kalends of March or on her birthday, it isa gift. 9. But if he covered expenses which she had made inorder to maintain herself in a more honourable way, theopposite is the case. For a woman does not seem to havebeen made richer, if she has spent money given to her onvictuals or perfumes or on food for her slave-household
Gifts: the practical side 4. Husband’s CareerD. 24.1.40 (Ulpian): That which was brought by a wife toher husband for the purpose of acquiring ofﬁce is valid tothe extent that it was necessary for fulﬁlling the ofﬁce;.D. 24.1.41 (Licinnius Rufus): for the emperorAntoninus also decided that a wife could give a gift forher husband’s advancement.
Gifts: the practical side 4. Husband’s CareerD. 24.1.42 (Gaius) Recently from the indulgence of theemperor Antoninus another reason for a gift has beenaccepted, which we call “for the sake of honour“ as forinstance, if a wife makes a gift to her husband who isseeking the senatorial stripe or in order that hebecome a member of the equestrian order or for thesake of giving games
Management of thematrimonial estate severed and joint property?
Severed in law....C. 9.12.1 (Severus/Antoninus to Pelia(206): Those to seize the property of thewife as a pledge on account of a debt ofher husband or because of some publiccivic burden which he has incurred, areconsidered to have done it with violence.
Severed in law....D. 24.1.31 pr.-1 (Pomponius, on Sabinus, book 4): Where ahusband makes clothing for his wife out of his own wool,although this is done for his wife and through solicitudefor her, the clothing, nevertheless, will belong to thehusband; nor does it make any difference whether the wifeassisted in preparing the wool and attended to the matterfor her husband. 1. When a wife used her own wool butmakes women’s clothes for herself with the aid of femaleslaves belonging to the husband, the garments will be her,and she will owe her husband nothing for the labour of theslaves; but where the clothing is made for her husband, itwill belong to him, if he paid his wife the value of the wool.
The case: SpeciﬁcatioDifferences between Schools
The case: SpeciﬁcatioDifferences between SchoolsSabinians/Proculeians
The case: SpeciﬁcatioDifferences between SchoolsSabinians/Proculeiansthe so-called media-sententia: if thenew thing could be returned to thestate of material, ownership remainswith the owner of the material, elsethe new thing becomes the propertyof the producer
... real life: joint!Kalokairos to Euphrosyne his sister,greetings. Please sister, if you want to dome a favour, enquire what my wife Aleisis doing. Even if I had not written toyou, you ought of your own accord tohave written to me, as I am yourbrother. Not that I care about her, but allthat I posses is under her control. Andthe fact that she doesn’t write to me –fram that I have a presentiment oftrouble about her. Salut Thaïsos mysistet and tell her, if she needs anythinghere, to write to me. I pray for yourhealth. Verso: give it to Euphrosyne
P Cair Isid. 62 (297) a .terrible step-mother!seizure of property towarrant the dowryrecoverythe plaintiffs mention theduty to evaluate the dowryby a goldsmith and taylor.
To Aurelius Leontius also called Isidorus ... on duty inthe Arsinoite nome, from Aurelia Thaesion and AureliaKyrillous, both daughters of Kopres and Sarapias, ofthe village of Karanis, acting through our guardian andrelative, our maternal uncle Aurelius Ammonius, son ofIsidorus of the same village of Karanis. Manifold arethe covetous acts of men; but when they are detectedtherein, it remains for his Highness’ severity to punishwhat they have dared to do. Our aforesaid father afterour mother’s death married another woman, and aftersuffering a painful injury in an assault, he lingered fora time. When he was about to depart this life, we calledin his aforesaid wife and asked her whether our father
did not perhaps owe something to her or to someoneelse, and she acknowledged that he owed nothing. Butafter his death the wretched woman ﬁrst suborned herown father and compelled him to remove twenty-sevensheep out of our father’s ﬂock. And when she hadsucceeded in this, she then alleged that our fatherowed her one gold mina. Having made this claim withthe support of witnesses but not having established itsatisfactorily, she has now taken another approach andhas asserted against us a document supposedly drawnby our aforesaid father, in which he stated that he, ourfather, had given her in hypallagma half-share of afemale slave as security for her dowry which he had
used up; but she will not be able to provide the proofs. For this isrequired by the laws, that the dowries recorded in written agreementsbe evaluated by a goldsmith and a tailor; and she will produce neithertheir dowry agreement nor the deed of security which he drew up forthe half interest in the slave girl, probably foreseeing that these werenot properly drawn. Since we intend to inform his Highness the mostrenowned Corrector Aurelius Achilles about this matter, we aresubmitting this petition with our testimony on this very point,requesting that she be compelled by you to furnish us with copies ofthe contracts which she has claimed to have, that is, both the dowryagreement and the deed of security, so that thus having traced themthrough the record-ofﬁces we may be able to answer her claims beforehis Highness. For not few are the burdens both public and privatewhich we now pay and have previously discharged on behalf of ouraforesaid father on account of the very large amount of both publicand private land which was registered in his name. Farewell. Year 2 ofour lord Lucius Domitius Domitianus Augustus, Thoth 8.
Laudatio TuriaeLaudatio Turiae, I.37-39We preserved all your patrimony receivedfrom your parents with shared diligence, foryou had no concern for acquiring that whichyou handed over completely to me. Wedivided our duties so that I bore theguardianship of your fortune and yousustained the care of mine.
SenatusconsultumVelleianum: prehistoryUlpian, Edict, book 29, D. 16,1,2pr.-3:Now, ﬁrst in the reign of the deiﬁedAugustus, and then soon afterward inthat of Claudius, it was forbidden byimperial edict for women to intercedeon behalf of their husbands.
Management D. 35.2.95.pr Scaevola, Digest, Book XXI.A husband had charge of the property of his wife, whichdid not include her dowry, and she, having died before herhusband had rendered her an account of hisadministration, left him heir to her entire estate, andcharged him, when he died, to deliver ten shares of thesame to their common son, and to deliver two shares to hergrandson. The question arose whether what was found tohave remained in the hands of her husband from hisadministration of the property should be transferred to theson, along with the other assets, in proportion to ten sharesof the estate. The answer was that what the husband owedthe estate would also be included in the distribution.
ManagementD. 3.5.33 Papinian,, Opinions X.The heir of a deceased husband cannot bringsuit against his wife (who during marriage hadthe property of her husband under her control)for plundering an estate; and he will act morewisely if he should sue her for production ofproperty on the ground of business transacted,if she actually attended to the affairs of herhusband.
Wife’s Brining in property andrecovering it.D. 18.104.22.168 (Ulpian) Again where property is given aswhat the Greeks call parapherna and the Gaulspeculium, let us see whether the right to it at oncevests in the husband. I think that if it is given tobecome his, it at once passes to the husband; and ifthe marriage should be dissolved, the woman cannotclaim it as hers, but should bring a personal actionfor its recovery, and not institute proceedings by anaction on dowry as the Divine Marcus, our Emperor,and his father, stated in a Rescript.
It is evident that if a schedule of the property of thewife is given to her husband, as is generally done atRome, for a wife is accustomed to place in aschedule the property which she is to make use ofin the house of her husband, and which she doesnot give as a dowry, in order that he may sign it, ashaving received said property, and that she mayretain possession of the document which contains adescription of what she brought into his house.
Let us consider whether this belongs to the husband. I do notthink that it does, not for the reason that it is not delivered tohim, for what difference will it make whether it is delivered to himor not, if it is brought into his house with his consent; but becauseI do not believe that it was agreed between husband and wife thatthe ownership of said property would be transferred to him, butrather as it is certain that, in case of a separation, this cannot bedenied; and because frequently the husband assumesresponsibility for such articles unless they are left in charge of hiswife.Let us see whether, if such articles should not be returned, thewoman can bring an action on the ground of property removed, oron deposit, or on mandate. Where the safe-keeping of the effectswas entrusted to the husband, she can bring an action on deposit,or mandate; otherwise, an action for property removed will lie, ifthe husband retains it with the intention of appropriating it, orsuit for production can be brought, if he has not attempted toremove the property.