#3562 - Persons - Roman Law

• Gaius says all men are either free or slaves – rights depended entirely on status.

• Classifications to consider:

  • Free or unfree (note that there were quasi-servile conditions e.g. civil bondage)

  • Sui juris (in his own power) or alieni juris (in another’s power)

  • Under guardianship or not under guardianship

Capitis deminutio

• The process by which status was reduced was capitis deminutio.

• It had a threefold role, affecting the three pillars of Roman life:

  • Status familiae – family rights

  • Status libertatis – freedom

  • Status civitatus – citizenship.

Types of capitis deminutio:

• Minima – Family rights changed, but freedom and citizenship were retained. Could not enjoy the rights of his previous family. Note that while capitis deminutio carries negative connotations, this could occur as a result of normal things such as emancipation etc.

• Minor vel media – Loss of citizenship, but freedom was retained – banishment/deportation etc. Loss of commercium, connumbium and the ability to make a will.

• Maxima – All rights were lost – enslavement.

Patriapotestas – Family

• Patria potestas means paternal power. The paterfamilias of a family had almost absolute control over those in his control and their property.

• The paterfamilias was the representative of the family – one roof, one purse etc. Only he could sue and be sued on contracts etc.

• The lineage of paterfamilias was determined through agnatic ties – male blood lines.

• Note that this concept was a fundamentally Roman one, and in many ways made little sense even to them. The Greeks, from whom the Romans took a lot from, granted sons a lot more power than the Romans.

Effect of patriapotestas on family members:

• His power was huge and in early times he could put his children to death.

• The paterfamilias was expected to act out of ‘love and not cruelty’ – the censor could punish a paterfamilias who abused his powers.

• The paterfamilias was liable for delicts of those in his power. However, he was liable only up to value of the wrongdoer, otherwise he could surrender the individual concerned (noxal surrender).

Effect on the family’s property:

• All family property (even that of, say, a middle aged married man) belonged to the paterfamilias.

• Some exceptions:

  • Peculium – property that belonged to a son indepently. It may have been gained through a gift by his father, from the State through property obtained on military service, and of certain officials. Note that a peculium given by the father remained his property.

  • Bona materna – a son could independently inherit from his mother (subject to a usufruct held by his father).

  • Bona adventicia – the right to inherit was extended, but the father could retain one half of the value on emancipation.

The creation of potestas

• Potestas was created:

  • By birth (if under a valid marriage between Roman citizens)

  • By marriage (a manus marriage meant a woman changed family, but a free marriage meant she kept the same paterfamilias)

  • By legitimation of a child

  • By adoption (this was often to prevent a family dying out)

  • By imperial rescript (on extensions of citizenship)

  • On error of marriage (where a man accidentally married a woman he thought to be an error. On proof of the error citizenship was extended and potestas created)

Termination of potestas:

• Death – where a father died his children became sui juris. Where a grandfather died, the status of paterfamilias may have passed to father.

• Variations on status – where there was a loss of status, where a wife had a manus marriage, where there was an adoption.

• On attainment of certain prestigious positions.

• Note the paterfamilias could not renounce potestas by throwing someone out of the house. Would require enslavement or death.

Adoption

• Two types of adoption:

  • Adrogatio: the person adopted was sui juris. Required an investigation by various committees, and a requirement to show that the adoptee had a brother to carry on the family line. Imperial Rescript became the usual way of conferring this adoption. Confirmation extinguished the debts of the person being adopted and brought him and anyone in his power under the power of the new paterfamilias.

  • Adoptio: the person adopted was alieni juris. Under the Twelve Tables this was done by a legal fiction of ‘selling’ the child to the adopter three times by mancipatio. After this a magistrate would give the child to the adopter. Under Justinian it was done by declaration before a magistrate. The child became a part of the new family.

Marriage

• There was a religious duty to marry. The general act of marriage was more informal than may have been expected.

• Augustus sought to penalise the unmarried and childless – he put men 25-60 and women 20-50 under a duty to marry, as well as divorced and widowed.

• There was little juristic interpretation of marriage and its legal effects.

Sponsalia

• Translates as betrothal. Was done through stipulatio between two paterfamiliases. In ancient times it involved the promise of money which could be recovered if the marriage did not occur.

• The above practice died out in the Republic – sponsalia could be dissolved by declaration.

• In the later Empire the groom would give his bride a gift as a promise of betrothal, payable in duplum if the marriage did not occur.

Requisites of marriage:

• Age for marriage was 14 from men and 12 for women.

• Consent of the paterfamilias. The magistrate could order consent if he withheld it without good reason.

• Legal right of connubium (generally citizens)

• Intention to marry

Disqualifications:

• Blood relations. In the classical period the ban was on brother and sister, uncle and niece, aunt and nephew.

• Step family and family-in-law.

• Justinian prohibited godparents and godchildren from marrying.

• Existing marriage – no bigamy.

• A woman could not marry for 10 months after becoming a widow. Doing so brought infamia on the woman.

• Guardians and wards.

• Other random ones: Christian and Jew, men on military service.

Types of marriage:

• Manus marriage – Could be done through a formal ceremony, by a sort of transferring mancipation, or living together for one year ‘under his hand’.

  • The wife joined the husband’s family and was under potestas. Her property became his/the paterfamilias’.

  • The year of cohabitation had to be continuous – max three nights apart.

• Free marriage – Could be made without any ceremony, so long as the requirements for marriage existed. The wife stayed in control of her own paterfamilias.

Concubinage – union between man and a woman that was not marriage. A man could not have a wife and concubine, two concubines, or take a man’s wife as his.

Dissolution of marriage:

• Death

• Prolonged absence

• Enslavement

• Adoptive incest that invalidated marriage by family ties.

• Divorce:

  • Manus marriage required formal ceremonies.

  • In free marriage a father could take his daughter back against her will.

  • Divorce was only allowed if justified e.g. spousal misconduct.

  • Divorce was done by mere declaration (but not manus).

Matrimonial property:

• Gifts between spouses were not permitted. Nor were gifts between the two families permitted. This was to prevent hiding property etc. There were a few exceptions e.g. a gift anticipating divorce/death.

• Donatio was made by the husband to cover his share of the marriage. Done before the marriage took place.

• Dos – gift of anything of value towards matrimonial expenses. It’s sort of like a dowry. Non-fungibles had to be returned immediately, while fungibles could be repaid in 3 annual instalments. The wife could reclaim it on divorce (if she was the innocent party) or on her husband’s death (maybe). If the wife died first the husband was given a usufruct in the dos.

  • Note that it is different to a dowry and survived the dowry.

Children

• Children followed the status of their father at the time of conception. If they were conceived out of wedlock they followed the mother.

• Illegitimate children were born sui juris and had a cognatic tie with their mother – they could succeed her.

• Children born out of concubinage could be legitimated by: subsequent marriage, Imperial rescript, or by making an offering to the Municipal Council given by the father.

Tutors and Curators

Legal capacity of children:

• Childhood is split into four stages for legal purposes:

  • Infantia. Could not speak – not legal capacity.

  • Infantie proximus – can speake but has no intellect or powers of judgement. Intellect taken to exist at 7 years.

  • Pubertati Proximus – has intellect but no power of judgement.

  • Pubertus: 14 for a male and 12 for female. Full legal capacity.

Legal capacity of women – could not hold public office. In the early Classical period they could not enter into formal transactions without a tutor’s permission

Legal capacity of prodigals – required a curator. But how do you assess someone as a prodigal?

Legal capacity of lunatics – in the Classical period contracts entered into by lunatics when lucid were valid. They required a curator.

Tutelage of Children

• Children under puberty and who were not subject to patria potestas required a tutor. Cared for his financial affairs

• Those under 25, slaves, dead and dumb, and monks couldn’t tutor.

• Sometimes a tutor would be personally liable to make good a deficiency in his pupil’s legal acts. He was also liable for loss by his negligence.

• Tutors could not gain in any way from their role – they were obliged under public duty to do it. There grew a number of excuses/exceptions from tutorship including old age, distance from the pupil etc.

Types of tutor:

• Appointed by will to look after people in potestas of the deceased.

• Appointed by...