This document discusses legal definitions and concepts of gender in Roman law. It provides sources from Roman jurists and legal texts that defined legal terms and addressed questions around how legal concepts applied to both men and women. For example, it discusses how terms like "father of the family" (paterfamilias) included women as beginning and ending their own family, and how terms like "son" were understood to include all children. It also examines debates around whether terms like "man" legally included women, as well as discussions of guardianship for women and how necessary that was considered.

1. Legal standing
in the Classical Times
meeting 4

2. Legal condition:
generally worse?
• Dig.1.5.9 Papinianus 31 quaest. In multis iuris nostri articulis
deterior est condicio feminarum quam masculorum. Dig.1.5.10
Ulpianus 1 ad Sab. Quaeritur: hermaphroditum cui
comparamus? et magis puto eius sexus aestimandum, qui in eo
praevalet.
• Papinian, Questions, book 31: There are many points in
our law in which the condition of females is inferior to
that of males. Ulpian, Sabinus, book 1: Question: with
whom is a hermaphrodite comparable? I rather think each
one should be ascribed to that sex which is prevalent in
his or her form.

3. Legal gender definitions
• D. 50.16.1 (Ulpianus, Commentary on the Edict, book 1) This
expression ‘if anyone’ embraces males as well as females (Verbum
hoc ‘si quis’ tam masculos quam feminas complectitur.)
• D. 50.16.152 (Gaius, On the Julian and Papian Law, book 10): There
is no doubt that in the name ‘man’ (homo), the feminine as well as
the masculine is included
• D. 50.16.195 pr. (Ulpianus, Commentary on the Edict, book 46)
An expression of language in terms of masculine sex is generally
extended to both sexes.
•D. 50.16.52 (Ulpianus, Commentary on the Edict, book 46): In
the name ‘patron’, a patroness is also included.
• D. 50.16.84 (Paul, On works of Vitellius, book 2): In the name
‘son’ (filius) we understand all children.

4. Legal gender definitions
D. 32.62. Julianus, On Ambiguities.
A certain man who had two mules bequeathed them as follows, "Let
my heir give to Seius my two male mules, when I die." The testator
had no male mules, but left two female mules. Servius rendered the
opinion that the legacy should be paid, because female mules are
included in the term "mules," just as female slaves are generally
included in the term "slaves." Hence it comes that the male sex
always includes the female

5. Legal gender definitions
Man = Woman?
D. 31.45. Pomponius, On Quintus Mucius, Book VIII.
Where the following was inserted into a will, "I give a hundred aurei
to my daughters," will the legacy be considered to have been equally
bequeathed to the male and female children ? For if it had been left
as follows, "I appoint So-and-So guardians of my sons," it has been
held that guardians were also appointed for the daughters. On the
other hand, it should be understood that males are not included
under the term "daughters," for it would establish a very bad
precedent for males to be included in a word which designates
females.

6. Legal gender definitions
• D. 50.16.116 (Iavolenus, Letters, book 4) “quisquis mihi alius
filii filiusve heres sit” Labeo non videri filiam contineri,
Proculus contra. mihi Labeo videtur verborum figuram
sequi, Proculus mentem testantis. respondit: non dubito,
quin Labeonis sententia vera non sit.
• D. 50.16.116 (Iavolenus, Letters, book 4): In ‘whatever other
son or son of my son be my heir’: Labeo thinks a daughter is
not covered, Proculus the opposite. Labeo seems to me to be
paying attention to the literal meaning of the words, Proculus
to the intention of the testator. He replied ‘I do not doubt
that the opinion of Labeo is not true’.

7. XII Tables, Table V
• 4. – If he dies intestate, to whom there be no suus
heres, the nearest agnate is to have the familia ?and
goods? (Auct., Her., 1, 13, 23; Cic., de inv., 2, 148; Ulp.,
Reg., 26, 1 = Coll., 16, 4, 1; Paul., D., 28, 2, 9, 2; Ulp.,
D., 50, 16, 195, 1).
• 5. – If there be no agnate, the gentiles are to have the
familia . ?and goods? (Ulp., Reg., 26, 1 a = Coll., 16, 4,
2).
• 6. – <<<If there be no guardian, the nearest agnate is
to have guardianship.>>> (Gaius 1, 155; Paul., D., 26, 4, 6;
Gai., D., 26, 4, 9).

8. Pater familias & familia
(D. 50.16.195.2-5)
• (Ulpianus, Commentary on the Edict, book 46): Strictly speaking we
call a familia several persons, who are subjected under the power of
one person, either by nature or by law, as for instance the father of the
family (paterfamilias), the mother of the family (materfamilias), the son
of the family (filiusfamilias), the daughter of the family (filiafamilias)
and those who follow them in succession, ad for instance, the
grandsons and granddaughters and so on. However, he who has
dominion in the home is called paterfamilias, and he is called by this
name correctly, even though he does not have a son, for we are
describing not only the person, but also the legal status (…) And when
paterfamilias dies all persons (capita: heads) that were his subjects
begin to have their individual families: for individuals succeed to the
name of fathers of family. And it will happen likewise in the case of he
who has been emancipated, for even this one, having been legally
made independent (sui iuris, autonomous), has his own family (…)

9. Pater
Familias
FILIUS FILIUS Filia Uxor in
FAMILIAS FAMILIAS FAMILIAS Manu

10. Pater Pater
FAMILIAS FAMILIAS SUI IURIS
Uxor in
Manu
FILIUS FILIUS
FAMILIASFAMILIAS

11. 3. We also customarily describe slaves as familia (...)
5. However, a woman is both the beginning (caput: head)
and the end (finis) of her family.

12. The Tomb
of Navoleia Tyche
NAEVOLEIA . L LIB TYCHE SIBI ET
C. MVNATIO FAVSTO AVG ET PAGANO
CVI DECVRIONES CONSENSV POPVLI
BISELLIVM OB MERITA EIVS DECREVERVNT
HOC MONIMENTVM NAEVOLEIA TYCHE LIBERTIS SVIS
LIBERTABVSQ ET C. MVNATI FAVSTI VIVA FECIT.

13. The Tomb
of Navoleia Tyche
Naevoleia L(uci) lib(erta) Tyche sibi et
C(aio) Munatio Fausto Aug(ustali) et pagano
cui decuriones consensu populi
bisellium ob merita eius decreverunt
hoc monimentum Naevoleia Tyche libertis suis
libertabusq(ue) et C(ai) Munati Fausti viva fecit
[CIL X 1030]

14. The Tomb
of Navoleia Tyche
Naevoleia Tyche, freedwoman of Lucius Naevoleius,
for herself and for Gaius Munatius Faustus, member
of the Brotherhood of Augustus and suburban
official, to whom on account of his distinguished
services the city council, with the approval of the
people, granted a seat of double width.
This monument Naevoleia Tyche built in her lifetime
also for the freedmen and freedwomen of herself and
of Gaius Munatius Faustus.

15. The Tomb of Navoleia Tyche

16. The Tomb of Navoleia Tyche

17. Guardianship
1. – A Vestal virgin <<<is to be free of tutela.>>> (Gaius
1, 144. 145 ; Gell., 1, 12, 9. 18)..
2. – <<<To a woman her guardian is to be auctor.>>>
(Gaius, 2, 47 ; 2, 80). (2. – The conveyable possessions of a
woman who is under guardianship of male agnates shall not
be acquired by prescriptive right unless they are transferred
by the woman herself with the authorization of her guardian)
6. If there be no guardian, the nearest agnate is to have
guardianship.>>> (Gaius 1, 155 ; Paul., D., 26, 4, 6 ; Gai., D.,
26, 4, 9)

18. Guardianship
Gaius 1.144 Where the head of a family has children in his
power he is allowed to appoint guardians for them by will.
That is, for males while under puberty but for females
however old they are, even when they are married. For it was
the wish of the old lawyers that women, even those of full
age, should be in guardianship as being scatterbrained
(propter animi levitatem).
193. Women are not held in guardianship among foreigners
as they are with us; still, they are generally, as it were, in a
state of tutelage; as, for example, the law of the Bythinians
directs that if a woman enters into a contract it must be
authorized either by her husband or by a son who has reached
the age of puberty.

19. Guardianship
•G. 1.185. If there should be no lawful guardian for
a person, one is appointed for him under the Lex
Atilia, in the City of Rome by the Urban Praetor
and a majority of the tribunes of the people, who is
styled an "Atilian guardian"; and in the provinces
he is appointed by the Governor under the Lex
Julia et Titia.

20. Guardians
• Ways of Appointment:
• Will
• By the Law (Agnates)
• By praetors/governor’s decree

21. Guardianship: reality
•G. 1.190 There seems, on the other hand, to have been no
very worthwhile reason why women who have reached the
age of maturity should be in guardianship; for the argument
which is commonly believed, that because they are
scatterbrained they are frequently subject to deception and
that it was proper for them to be under guardians’
authority, seems to be specious rather than true. For
women of full age deal with their own affairs for
themselves, and while in certain instances that guardian
interposes his authorization for form’s sake, he is often
compelled by the praetor to give authorization, even
against his wishes.

22. Guardianship: reality
•(191) For this reason, a woman is not granted any action
against her guardian on account of the guardianship; but
where guardians are dealing with the affairs of male or
female children, when the wards grown up the action on
guardianship calls the guardians to account.

23. Guardians: how necessary?
Tit. ex corpore Ulpiani: 11.27. The authorization of the
guardian is necessary for women in the following instances:
when they sue someone on a basis of a statute or a
statutory claim, when they oblige themselves, when they
transact a legal transaction based on ius civile,when they
allow their freedwoman to stay in an informal relation with
a slave belonging to someone else, when they alienate a
mancipable thing. Minor wards need authorization in more
cases: as well in the case of alienation of non-mancipable
things.
Iudicia legittima v.s iudicia imperium continens
(lex Iulia de iudicis privatis: legittima are only these which are 1)in
Rome, 2) between Roman citizens and with iudex unus: so just by
the way the women do not need to ask their tutor for many of of
the possible suits

24. Guardians: how necessary?
80. We must next call attention to the fact that neither a woman nor
a ward can alienate property by mancipation without the authority of
their guardians, but a woman can alienate property not subject to
mancipation without such authority, which a ward cannot do.
81. Hence, if a woman lends money to anyone without the authority
of her guardian, for the reason that she transfers it to him, and as
money is not subject to sale, the borrower contracts an obligation.
82. If, however, a ward should do this, as he does not transfer the
money to the borrower, the latter does not contract an obligation;
and therefore the ward can recover his money, provided it is in
existence; that is to say he can claim it as his under quiritarian right,
but a woman can only recover the money by an action for debt.
Hence the question arises whether the ward who lent the money can,
in any action whatever recover it from the person who borrowed it if
it has been expended, as recovery must be had for a party in
possession.

25. Guardians: how necessary?
84. Hence if a debtor pays any money to a ward, he transfers
the ownership of the same to him, but he himself is not released
from liability, for the reason that a ward cannot release a debtor
from an obligation without the authority of his guardian, as he is
not permitted to alienate any property without his guardian's
consent; still, if he receives any benefit from the money, and
continues to demand payment of the debt, he can be barred by
an exception on the ground of fraud.
85. A woman, however, may be legally paid without the
authority of her guardian; and he who makes payment is released
from liability, because, as we have previously stated, women can,
even without the authority of their guardians, alienate property
not mancipable. Although this rule only applies where she
actually received the money, still if she did not receive it, but
merely says that she has, and wishes to discharge her debtor by
giving him a formal release without the authority of her
guardian, she cannot do so.

26. Guardians: how necessary?
G. 2. 118. Moreover, it should be observed that if a
woman, who is under guardianship, makes a will, she must
do so with the consent of her guardian; otherwise her will
is void by the Civil Law.
119. The Praetor, however, promises the heirs mentioned in
the will to place them in possession of the estate in
accordance with the provisions of the same, if the will is
attested by the seals of seven witnesses, and if there is no one
to whom the estate will belong as heir-at-law under the rule
of intestacy; as, for example, a brother by the same father, or
a paternal uncle, or the son of a brother, the heirs
mentioned, in the will can retain the estate; "for the same
rule of law applies as in the case where a will is not valid for
some other reason, for instance because the estate was not
sold, or the testator did not utter the words required for the
declaration.

27. Limitations…
Agnates excluded
• G. 1.157 Indeed in the past, so far as pertains to
the law of the XII Tables, even women had agnate
tutors. But afterwards, the Claudian law was
enacted, which, as pertains to women, removed
the tutela of agnates. And so indeed a male minor
has his grown brother or uncle as a tutor, but a
woman is not able to have such a tutor (Evans-
Grubbs)

28. Guardianship: Release
(145) And so if someone appoints a guardian in his will for
his son and his daughter and both of them reach puberty,
the son ceases to have a guardian but the daughter still
continues in guardianship. It is only under the Julian and
Papian-Poppaean Acts that women are released from
guardianship by the privilege of children. We speak,
however, with the exception of the Vestal Virgins, whom
even the old lawyers wished to be free of restraint in
recognition of their priesthood; this is also provided in
the Twelve Tables.

29. Guardians
• Optio tutoris in wills

30. Guardianship: ways out
Coemptio fiduciae causa
114. By this act of sale a woman can not only make
a coemption to her husband but also to a stranger,
that is to say, the sale takes place either on account
of marriage or by way of trust; for a woman who
disposes of herself in this way to her husband for
the purpose of occupying the place of his daughter
is said to have done so on account of matrimony;
but where she does this for some other purpose,
either to a husband or to a stranger, as for instance
in order to avoid a guardianship, she is said to have
made a coemption by way of trust.

31. Guardianship: ways out
Coemptio fiduciae causa
115. The method by which this is done is as
follows: if anyone wishes to get rid of the tutors,
she has and find another, she makes a mock sale
with their authorization. Then having been
transferred back again from the other partying
the sale to the man whom she wants and having
been mancipated by him, she begins to have as
her tutor the man by whom she was
manumitted, who is called a fiduciary tutor.

32. Guardianship: ways out
Coemptio fiduciae causa
Cicero, Pro Murena 27
For though many things have been excellently
settled by the laws, yet most of them have been
depraved and corrupted by the genius of the
lawyers. Our ancestors determined that all women,
on account of the inferiority of their
understanding, should be under the protection of
tutors. These men have found out classes of
trustees, whose power is subordinate to that of the
women. Through their invention, old men have
been used for coemptiones to abolish the holy rites.

33. Guardianship: ways out
The Absent Guardian
•173: Besides it has been permitted to women by a
decree of the Senate to request another tutor in place
of one who is absent, and when this is requested, the
first one ceases to be tutor. It does not make any
difference how far away that first tutor is.

34. P.Oxy. XII 720
5 Jan. AD 247
C(aio) Ualerio Firm[o praef(ecto) Aeg(ypti)]
ab Aurelia{e} Ammo[nario].
rogo, domine, des mi[hi]
auctorem Aurel(ium) P[lutammonem]
5 ẹ ḷege Iulia Titia eṭ ẹ ṣ(enatus(?)) c(onsulto(?)).
dat(um) d(ominis) n(ostris) Philippo Aug(usto) ii [et]
Philippo Caesari[s] c[o(n)s(ulibus)].
(hand 2) [Α]ὐρηλία Ἀμμωνάριον [ἐπιδέδωκα.]
(hand 3) [Α]ὐρήλι(ο)ς Πλουτάμμ̣[ω(ν) εὐδοκῶ τῇ]
10 αἰτήσει.
(hand 1?) (ἔτους) δ Τῦβι ι.
(hand 4) quo ne ab [iusto tutore tutela]
abeat Pl[utammonem]
e leg(e) Iul(ia) et [Titia et ex s(enatus) c(onsulto) tutorem]
15 do. (hand 5) legi.

35. P.Oxy. XII 720
5 Jan. AD 247
To Claudius Valerius Firimus, praefect of Egypt
from Aurelia Ammonarion. I beg, my lord, that
you will grant me as my guardian Aurelius
Plutammon in accordance with lex Iulia and
Titia and the senatusconsultum. Dated in the
consulship of our lords Philippus Agustus for
the second time and Philippus Ceasar.
I Aurelia Ammonarion have presented the
petition. I Aurelius Plutammon, assent to the
request. The year 4, Tybi 10. Provided that the
legitimate guardian is not excluded I give
Plutammon as guardian in accordance with lex
Iulia and Titia and the senatusconsultum.
I have read.

36. SB III 6623
• B,ext
(hand 3) G(aii) Juli Heraclae.
G(aii) Longini Prisci.
Q(uintus) Aemilius Saturninus praef(ectus) Aeg(ypti)
20P(ublii) Octavi Theophili.
postulante G(aio) Terentio
M(arci) Aureli Marci.
2/3Sarapammone
M(arci) Juli Felicis.
Meviae Dionusario e lege Julia et
G(aii) Domiti Claudiani.
Ti<ti>a et ex s(enatus) c(onsulto) M(arcum) Julium
G(aii) Terenti
Alexandrum,
24/25Sarapammonis.
5quo ne ab iusto tutore tutela abeat,
25 (hand 4) Q(uintus) Aemilius Saturninus praef(ectus) Aeg(ypti)
tutorem dedit. d(escriptum) e(t) r(ecognitum) e(x) e(xemplisi)
postulante G(aio) Terentio Sarapammone
b(inis) t(abulae) s(upra )s(criptae)
Meviae Dionusario e lege Julia
actum Alex(andriae) ad Aeg(yptum) VIIII Kal(endas)
et Titia et ex s(enatus) c(onsulto) M(arcum) Julium
Octobre<s>,
Alexandrum, quo ne ab iusto
Saturnino et Gallo co(n)s(ulibus), anno VII imp(eratorum)
30 tutore tutela abeat, tutorem dedit.
L(ucii) Septimi Severi Pii
A,ext
Pertinacis arabici Adiabenici
d(escriptum) e(t) r(ecognitum) e(x) e(xemplari) b(ibliothecae) t(abul )
B,int
s(uper)s(cripto)
Parthici maximi et M(arci) Aureli
actum Alex(andriae) ad Aeg(yptum), VIIII Kal(endas) Octobr(es),
Antonini Aug(ustorum), mense Thot, die
Saturnino et Gallo co(n)s(ulibus) anno VII
XXVI.
35imp(eratorum) Caesarum L(ucii) Septimi Severi
——
Pii Pertinacis arabici Adiabenici
(hand 2) Μηουία Διονυσάριον ᾐτησάμη<ν> <κύριον>
Parthici maximi et M(arci) Aureli Antonini
ἐπιγρα-
Aug(ustorum), mense Thoth, die XXVI.
15φόμενον Ἰούλιον Ἀλέξανδρον, ὡς πρόκι-
(hand 4) Μηουία Διονυσάριον ᾐτησάμην κύριον ἐπιγραφό-
ται. Γάιος Ἰούλιος Ἡρακλᾶς ἔγραψα ὑπὲρ αὐτῆς
40μενον Ἰούλιον Ἀλέξανδρον, ὡς πρόκειται. Γάιος Ἰούλιος
γράμματα μὴ εἰδυίης.
Ἡρακλᾶς ἔγραψα ὑπὲρ αὐτῆς γράμματα μὴ εἰδυίης.
(hand 5) Μεβίας Διονυσαρίου αἰτουμένης
κύριον Γάϊον Ἰούλιον Ἀλέξανδρον.

38. • Q. Aemilius Saturninus, praefect of Egypt with C.
Terentius Sarapammon bringing the request, gave as
tutor to Mevia Dionysarion, according to Julian and
Titian law and the decree of the Senate, M. Julius
Alexander, provided that the tutela does not pass from
legitimate tutor. Transcribed and authenticated from
two copies of this tablet written above. Transacted in
Alexandria in Egypt on the ninth day before the
Kalends of October in the consulship of Saturninus and
Gallus, in the seventh year of our Emperors Caesars L.
Septimus Severus Pius Pertinax Arabicus Adiabenicus
Parthicus Maximus and M. Aurelius Antoninus the
Agusut in the month of Thoth on the 26th.

39. • I Mevia Dionysarion, have requested as registered
guardian Julius Alexander, as above. I Gaius Julius
Heraklas have written on her behalf as she does
not know letters.

40. Ius trium liberorum
• Augustean marriage legislation (Leges Iulia et
Pappia): practical effects
• D. 50.16.137 Paulus libro secundo ad legem Iuliam
et Papiam ‘Ter enixa’ videtur etiam quae
trigeminos pepererit (Paulus the second book on
the Julian and Papian law): The women is
understood to “thrice bore” also who has given
birth to triplets.

41. POxy XII 1467 (263 AD)
• [There have been laws] most eminent prefect, which give power
to women who have been adorned with the right of three
children to have control over their own affairs and to act without
guardian in the transactions they undertake, and much more so
to women who know letters. And therefore I myself, having
been blessed with the honour of a goodly number of children
and also being literate and especially being able to write with
ease, with exceptional assurance address your greatness through
this petition of mine in regard to carry out without hindrance
those transactions which I undertake henceforth. I ask you to
keep this petition without verifying it beforehand in your
eminences office, in order that I may be aided by you and
acknowledge always my gratitude to you. Farewell. I Aurelia
Thaisous also known as Lolliane, have sent his for handing in.
Year 10, Epeiph 2.
• Your petition will be kept in the office

42. Ius trium liberorum
• P. Charite 34 (348AD?): Aurelia Charite, daugher
of Amazonios, from splendid Hermoupolis, a
knower of letters, acting without guardian and
with the right of three children ... I, Aurelia
Charite, declare to have received and weighted
from your hands and out of the house (in ready
money) an usuary loan of silver money of imperial
standard one thousand three hundred talents...

43. Ignorantia iuris nocet

44. ignorantia iuris nocet?
• D. 1.16.9.5 (Ulpian) A provincial governor should in general
grant advocates to those requesting them: to women, or
wards or those weak in other respects, or to those who are
not in their right mind, if someone else requests on their
behalf.
• D. 2.13.1.5 (Ulpian) Aid will be given to those, who having
made a mistake on account of their age or rusticity, or on
account of their sex, have not given formal notice
• D. 2.8.8.2 (Paulus) … Help must be given to the minor under
25 years, and perhaps also to a woman on account of her
inexperience.

45. ignorantia iuris nocet?
D. 22.6.9 pr. (Paulus) The rule is that ignorance of the law
does hurt a person, but ignorance of fact does not. Let us
see therefore, in what types of situation this can hold true,
having mentioned in advance that minors under 25 are
allowed to be ignorant of the law. This is also said in regard
to women in certain cases, on account of the weakness of
their sex; and so wherever there is not a delict but
ignorance of law they are not harmed.

46. How does it work?

47. How does it work?
Two situations:

48. How does it work?
Two situations:
The protected person has obliged herself or
himself to dispose of his or her goods to his or her
detriment

49. How does it work?
Two situations:
The protected person has obliged herself or
himself to dispose of his or her goods to his or her
detriment
Estate of the protected person has already been
diminishedo his or her detriment

50. How does it work?

51. How does it work?
• Restitutio in integrum (restitution
to the former state of affairs)

52. How does it work?
• Restitutio in integrum (restitution
to the former state of affairs)
• Praetor (magistrate’s) role in
proceedings

53. How does it work?
• Restitutio in integrum (restitution
to the former state of affairs)
• Praetor (magistrate’s) role in
proceedings
• The praetor allows the trial to be
started granting or denying an
action

54. How does it work?
• Restitutio in integrum (restitution
to the former state of affairs)
• Praetor (magistrate’s) role in
proceedings
• The praetor allows the trial to be
started granting or denying an
action
• Action denied

55. How does it work?
• Restitutio in integrum (restitution
to the former state of affairs)
• Praetor (magistrate’s) role in
proceedings
• The praetor allows the trial to be
started granting or denying an
action
• Action denied
• Granted with a defence for the
defendant

57. Ignorant or skilful?
D. 50.17.110.4 Paulus: Aid must be given to women,
so they are being defended (in court), not so that
they more easily practice legal chicanery!

58. Senatusconsultum Ve$eianum
Ulpian, Edict, book 29, D. 16,1,2pr.-3: Now,
first in the reign of the deified Augustus, and
then soon afterward in that of Claudius, it
was forbidden by imperial edict for women to
intercede on behalf of their husbands.
Thereafter a senatus consultum was enacted
by which help was given in a very full manner
to all women; the wording of the senatus
consultum follows:

59. Personal Collateral

60. Personal Collateral
• Principal Creditor: Do you promise to give me 10,000 sesterti?

61. Personal Collateral
• Principal Creditor: Do you promise to give me 10,000 sesterti?
• Debtor: I do promise

62. Personal Collateral
• Principal Creditor: Do you promise to give me 10,000 sesterti?
• Debtor: I do promise
• Principal Creditor to Guarantor: Do you promise to give me the
same?

63. Personal Collateral
• Principal Creditor: Do you promise to give me 10,000 sesterti?
• Debtor: I do promise
• Principal Creditor to Guarantor: Do you promise to give me the
same?
• Guarantor: I do promise

64. Personal Collateral
• Principal Creditor: Do you promise to give me 10,000 sesterti?
• Debtor: I do promise
• Principal Creditor to Guarantor: Do you promise to give me the
same?
• Guarantor: I do promise
Two obligations parallel are created. The Principal
Debtor and the Guarantor are JOINTLY and
SEVERELY liabile

65. Senatusconsultum Ve$eianum
"Because Marcus Silanus and Velleus Tutor, the consuls,
had written what ought to be done concerning the
obligations of women who became debtors on behalf of
others, the senate lays down the following: Although the
law seems to have said before what pertains to the giving
of verbal guarantees and loans of money on behalf of
others for whom women have interceded, which is that
neither a claim by these persons nor an action against the
women should be given, since it is not fair that they
perform male duties and are bound by obligations of this
kind, the senate considers that they before whom the
claim would be brought on this matter would act rightly
and consistently if they took care that with regard to this
matter the will of the senate was observed".

66. Senatusconsultum Ve$eianum
And so let us examine the terms of the senatus
consultum, having first praised the foresight of the most
distinguished order [the senate], because it brought help
to women, seduced and deceived in many cases of this
kind, on account of the weakness of their sex.
But relief is only granted to them if they have not been
guilty of deceit; for this the deified Pius and Severus have
laid down by rescript. This is because relief is given to
those who have been deceived, not to those who deceive.
This has also been stated in a Greek rescript of Severus
in the following terms: "The decree of the senate
does not give assistance to women who are guilty
of deception"; for it was the vulnerability of women,
not their cunning that deserved assistance.

67. Senatusconsultum Ve$eianum
For just as by custom the undertaking of civil duties by
them has been denied to women, and these
[undertakings] for the most part are not valid by
operation of law, so much the more had that power to
be taken away from them in which not only their work
and mere employment was concerned but even the risk
of the family property.

68. Senatusconsultum Ve$eianum
• D. 16.1.21 Calisstratus: If a woman has interceded on behalf
of another, but that which was received was turned to her
profit the exception of the Senate’s decree does not apply,
because she does not become poor.
• D. 16.1.30. Paulus, Sentences, Book II. Where a woman
becomes surety for another with the intention to deceive, or
when she knew that she could not be held liable, an
exception based on the Decree of the Senate will not be
granted her; for the most Noble Order of the Senate does
not exclude the action which will lie on account of fraud
committed by a woman.

69. How does it work?
• THE FORMULA condictio certae creditae pecuniae
with DEFENCE on the grounds of SENATUS
CONSULTUM

70. CAIUS AQUILIUS IUDEX ESTO. SI PARET NEGIDIA
AULO AGERIO DECEM MILIA SESTERTIUM DARE
OPORTERE, QUA DE RE AGITUR, CAIUS AQUILIUS
IUDEX NEGIDIAM AULO AGERIO DECEM MILIA
SESTERIUM CONDAMNATO, SI NON PARET
ABSOLVITO.
LET CAIUS AQUILIUS BE JUDGE. IF IT APPEARS
THAT NEGIDIA OUGHT TO GIVE ACCORDING TO
CIVIL LAW TO AULUS AGERIUS 10,000
SESTERTII, WHICH IS THE CASE MATTER HERE, LET
THE JUDGE CAIUS AQUILIUS CONDEMN
NUMERIA FOR 10,000 IN FAVOUR OF AULUS
AGERIUS. IF IT DOES NOT APPEAR, LET HIM
ABSOLVE

71. CAIUS AQUILIUS IUDEX ESTO. SI PARET NEGIDIA
AULO AGERIO DECEM MILIA SESTERTIUM DARE
OPORTERE, QUA DE RE AGITUR, SI QUID CONTRA
SENATUS CONSULTUM VELLEIANUM
FACTUM ESSE DICETUR, CAIUS AQUILIUS IUDEX
NEGIDIAM AULO AGERIO DECEM MILIA
SESTERIUM CONDAMNATO, SI NON PARET
ABSOLVITO.
LET CAIUS AQUILIUS BE JUDGE. IF IT APPEARS
THAT NEGIDIA OUGHT TO GIVE ACCORDING TO
CIVIL LAW TO AULUS AGERIUS 10,000
SESTERTII, WHICH IS THE CASE MATTER HERE,
UNLESS ANYTHING IS SAID TO HAVE HAPPENED
AGAINST SENATUS CONSULTUM VELLEIANUM
LET THE JUDGE CAIUS AQUILIUS CONDEMN
NUMERIA FOR 10,000 IN FAVOUR OF AULUS
AGERIUS. IF IT DOES NOT APPEAR, LET HIM
ABSOLVE

72. Women in courts?
Nor should I be silent even about those women
whose nature and matron’s sense of shame did not
avail them so that they would be silent in the forum
and in legal cases.
1. Maesia of Sentunum, a defendant, pled her own
case with the Praetor Lucius Titius, convening the
court and a very great gathering of the people being
present. She pursued all the manners and points of
her defence not only diligently but also bravely, and
she was acquitted on the first actio and by almost all
voted. They called her Androgyne, because she bore a
manly spirit under the appearance of a woman.

73. Women in courts?
2. But Carfania, the wife of senator Licinius Buccio,
quick to engage in lawsuits, always made speeches on
her own behalf before the Praetor, not because she
lacked advocates, but because she abounded in
impudence. And so by her unusual barking in the
forum in continually harassing the tribunals, she
ended up being the most notorious example of female
calumnia, to the point where the name of Carfania is
thrown at women of shameless habits and a reproach.

74. Women in courts?
D. 3.1.1.5 (Ulpian) In the second section, an edict is
published in regard to those who are not to bring a
request on behalf of others. In this edict the praetor
made particular mention of sex and misfortune, and
likewise he marked with infamy persons conspicuous
due to shameful behaviour. in regard to sex: he
prohibits women from bringing a request on behalf of
others. And indeed there is a reason for prohibiting
them: so that women not get themselves mixed up in
other people’s lawsuits contrary to the modesty
suitable for their sex, and so that woman not discharge
men’s duties. But the origin (of the prohibition) was
introduced by Carfania, a very wicked woman, who by
bringing requests without shame and disturbing
magistrate, provided the reason for the edict...

75. Women in Courts
Sent. Pauli 1.2.2: A woman is not prohibited from
undertaking a legal representation in the court
(cognitoria opera) in her own affair.
D. 3.3.41 (Paulus) it is permitted for women to
act sometimes on behalf of their parents, when
there is a legal hearing, if by change illness or age
impedes theirs parents, or they do not have
anyone else who can act for them.

76. Criminal Proceeding:
Accusing of husband
Codex 9.9.1, Severus & Caracalla to Cassia, ad
197): The Julian Law declares that wives have no
right to bring criminal accusations for adultery,
even as regards their own marriage, for while the
law grants this privilege to men, it does not
concede it to women.

77. Legal Capacity
Freedom citizenship
position in the family
Capacity to legal
transactions
Sex - state of mind - age - spendthrifts

78. Limited
capacity
Onerous / beneficial legal transactions