Family, Law, and Society: from Roman Law to the Present Day

The question of sea voyages was raised in one of the consilia,¹⁹ in which a consultant considered the case of a certain Andriola, daughter of Bonaguita of Pesaro, and her husband Franciscus Viti, who moved to Venice, taking his wife’s dowry while she stayed in her homeland. This matter is multi-faceted, but we will be interested in the topic of maritime investments here. The wife wanted her dowry back, referring to a fragment of the Code of Justinian—ubi adhuc and the fact that her husband was a sea merchant. The author of the consilium stated that it is not enough that the husband has transported the dowry from Pesaro to Venice and is at sea, so there is a risk of losing his fortune, because he must actually start losing something in this situation.²⁰ It is not enough that the husband’s belongings are in a dangerous place, which is the sea. Moreover, the transfer of the dowry under l. ubi adhuc cannot take place, since it has not been proved that Franciscus began to misuse his property after the marriage. Mere trade by sea does not justify the return of the dowry, unless the husband’s property is diminished.²¹

4. Actions that can be brought by the wife and the limitations associated with them

The sources analyzed by J. Kirshner show that the right included in Roman law, which allows a wife to act against her husband in the event of imminent insolvency, has not been fundamentally questioned by medieval lawyers. As J. Kirshner writes, all leading medieval civilists such as Accursius, Odofredus, Jacobus de Arena, Dinus Mugellanus, Cinus Pistoriensis, Bartolus de Saxoferrato, Jacobus Butrigarius and Albericus de Rosate accepted the possibility of a woman taking legal action against her husband, who was on the brink of bankruptcy, in order to recover her dowry, nondotal property and prenuptial donation.²² From a practical point of view, the question of the means by which the wife was able to take over her property is important. Kirshner also noted that “By the mid-fourteenth century, a consensus had been reached on the series of legal actions a wife could institute against a husband squandering the dowry and simultaneously approaching insolvency.”²³ Among the actions that could be used by a wife in such a situation was a personal action for the return of the dowry (actio personalis de dote), if the dowry, as Bartolus wants, consisted of things designated as to species characteristics.²⁴ If the husband acquired some things with the dowry money or the dowry was estimated, the wife could use actio utilis in rem and rei vindicatio utilis. The wife could also bring the rei vindicatio. In the case of dos inestimata, it was possible to put the dowry in a sequestration deposit (remedium sequestrationis). The wife was also entitled to a hypothecary action (actio hypothecaria), which could, as J. Kirshner noted, prove to be the most effective remedy, since in Italian cities such as Florence, Siena, Pisa and Bologna in the time of Paulus de Castro, dowries consisted largely of money. A wife was entitled to an implied and privileged hypothec on her husband’s property, proportional to her marital contributions, thus a dowry, trousseau, as well as donatio propter nuptias.²⁵

The issue of the type of action a wife can bring was also raised by Paulus de Castro, who stated that in addition to a personal action, she was also entitled to a hypothecary action to recover her husband’s property from any possessor.²⁶ It may be doubted whether in this case using a hypothecary action the wife has the privilege of priority (privilegium prioritatis), as in the case of actions taken after the dissolution of marriage. Paulus held that she could make a claim unless it was for creditors who had a prior and express hypothec on her husband’s property.²⁷ This problem was also raised in advice 6, included in the third volume of Paulus de Castro’s consilia, which is discussed in more detail later in this work.

The commentator also wondered about the scope of the property obtained from the husband on the basis of the mortgage claim, since all the husband’s goods were pledged to secure the dowry. His deliberations went along the following lines: it follows from the nature of a hypotheca that, by bringing an action, one can obtain all the pledged property, no matter how much more it is worth than the debt. So if the husband’s fortune is worth 40, and the dowry is 10, then the woman should be able to claim all his pledged goods.²⁸ He referred here to C. 8, 27, 6.²⁹ He combined this thought with his consideration of whether other creditors could offer a dowry to the wife. According to Cinus Pistoriensis, who followed the views of Jacobus de Arena, creditors would not be able to offer a dowry to a woman as long as the marriage still existed. On the other hand, there was a risk that the husband’s creditors would be cheated, because as soon as the husband began to abuse his wealth, no matter how rich and solvent he might be, the woman would be able to seize all his assets.³⁰ As a solution to this dilemma, Paulus gave the opinion of the Doctors, according to which, although the mortgage in the light of the ius commune has just such a character, as stated above, in this case, since it is a special right, the woman will be able to obtain through the hypothecary action only enough for the dowry, while the rest must be returned to the creditors.³¹

Paulus eventually accepted, following Baldus and Angelus de Ubaldis, that the husband’s creditors could offer the woman a dowry. If this is done, she will be obliged to give them her husband’s property in her possession, if the dowry’s benefits are sufficient to feed her family. Indeed, a woman should be content with her dowry. Otherwise, if the fruits from the dowry were not enough, she will be able to receive from her husband’s estate as much as she needs to support herself.³² This solution made it possible to protect the wife’s rights while taking into account the interests of creditors.

5. Who could demand a dowry for the wife

Paulus devoted a relatively large amount of space in his commentary on the si constante passage to entities that could potentially claim the return of the dowry. Thus, he wondered if and when a woman, being a filia familias, for whom her father had established a dowry, could claim it without her father’s consent (sine voluntate patris). The commentator concluded, that based on a fragment of Justinian’s novella, Illud quoque sancire, the possibility of action depends on the size of the dowry. A dowry of considerable size enables a daughter who is under her father’s authority to act independently. Paulus, however, referring to another fragment of Justinian’s compilation, namely D. 3, 3, 8 pr.,³³ decided that the daughter could act independently also in the case of a small dowry.³⁴ This was in line with Bartolus’ view, according to which a daughter could demand the return of a small dowry without her father’s consent, if he could not afford to give her a dowry if she wanted to enter a second marriage. This also applied to the situation when the father was not a man who behaved shamefully (persona turpis).³⁵

He also considered the opposite situation, namely the possibility of the father demanding a dowry without the daughter’s consent. According to the Glossa, the father has this possibility, as it is in his interest that the dowry is not lost, since it is incumbent on him to establish a dowry for his daughter in the event of remarriage.³⁶ Besides, as Bartolus rightly pointed out, the dowry will not be returned to the father himself, nor will it end up in his hands, but will be transferred and deposited to serve the good of the marriage.³⁷ Paulus here refutes Bartolus’ arguments that a father cannot act against his daughter’s will and apply for the return of the dowry himself. The return of the dowry does not harm the daughter, but works in her favor. Therefore, it should always be assumed that the daughter consents to the father’s action to take the dowry out of her husband’s hands, even if the daughter opposes it and the father is a despicable person (turpis persona) because the dowry does not end up in his hands. It is in the daughter’s interest for someone else to demand the return of the dowry on her behalf. Paulus also used the argument that, since the daughter can demand the return of the dowry without the father’s consent, the father can also demand it without her will.³⁸

The case is different from that of a dowry established by the pater familias when the dowry was established by someone else. In the case where the dowry was established by someone outside the family (extraneus), who stipulated that it was to be returned to him after the dissolution of the marriage, according to the view expressed in Glossa, he cannot claim its return due to the husband’s poverty during the marriage. The rationale for this, according to Paulus de Castro, is that there is no obligation for an outsider of the family to establish a dowry in the event of a woman’s remarriage. The extraneus, however, has the option of claiming security for the return of the dowry in the event of the dissolution of the marriage.³⁹

Paulus de Castro also questioned whether, in turn, a woman for whom an extraneus has established a dowry has the ability to demand its return during the marriage because of her husband’s poverty. This may seem doubtful, since after the dissolution of the marriage, an action for the return of a dowry established by an extraneous person who has reserved the return is vested in that person, not the woman. The author of the Glossa ordinaria took a different position, holding that a woman cannot be allowed to starve to death or be left without a dowry. Paulus’ contribution to this issue is to clarify the legal remedy that a woman can use, which is not mentioned in the Glossa or in the writings of the doctors. She can ask for help from a judge to decide the case taking into account the principles of equity.⁴⁰

6. Persons from whom the dowry can be claimed back

The primary subject from whom a wife could demand the return of her dowry in the event of her husband’s financial problems is precisely the husband, as emphasized in consilium No. 8 found in Volume II of Paulus de Castro’s legal advice.⁴¹ There we read that the wife must first file a complaint against her husband and demand the transfer of her dowry, citing the fact that the husband is approaching insolvency or beginning to misuse his property. If she fails to do so, she cannot stop creditors who want to seize her husband’s assets.⁴²

Paulus de Castro also considered who, besides the husband, could be considered as a defendant in a lawsuit to recover a dowry during the marriage. The first place to be mentioned here is his pater familias, which is usually the father, and therefore the woman’s father-in-law. This is because under his control comes the dowry in the event that the son is under his authority. In such a situation, one would expect that when the father-in-law, in possession of his daughter-in-law’s dowry, was approaching insolvency, she could seek the return of the dowry through the courts. Paulus here cited the position in the Glossa Ordinaria. The general rule is that the return of the dowry can be sought after the dissolution of the marriage, and the passage in the Digest in question constituting an exception to this rule only mentions the husband approaching insolvency, and therefore does not seem to apply to the father-in-law. However, the Glossa took the opposite position and allowed action also against the father-in-law.⁴³ Paulus also mentioned Bartolus’ extensive deliberations on the subject,⁴⁴ but chose not to summarize them. Paulus allowed the possibility of suing the father-in-law for the return of the dowry, writing that when the provision is just and useful, it should be extended from person to person or from case to similar case, even if there are specific words in the text, precisely specifying something.⁴⁵ As is the case in the passage si constante, where only the husband is mentioned. So what applies to a husband on the brink of poverty also applies to a father-in-law.

According to what J. Kirshner stated, in cities such as Florence it was customary for a son to accept a dowry with the consent of his father, as long as the latter was alive. In the Florence mentioned above, this accounted for nearly 1/3 of marriages.⁴⁶ This resulted in their joint and several liability for the return of the dowry in all situations in which the dowry should be returned. Paulus wondered how to claim the transfer of the dowry in a situation where two people were jointly and severally liable to return the dowry and only one of them was approaching insolvency. Traditionally, he began by referring to the views expressed in the Glossa Ordinaria, according to which such a possibility is provided by the illud quoque sancire fragment, although neither the Codex of Justinian nor the Digests provide it.⁴⁷ On the other hand, according to Cinus, expressed in the commentary on l. ubi adhuc (C. 5, 12, 29), he can demand in any case, because it is advantageous for a woman to have more debtors.⁴⁸ Referring to Bartolus’ view, Paulus said that in his opinion he could undoubtedly demand the return of the dowry from one who stood on the brink of poverty or began to misuse his property. As for the possibility of claiming repayment from a person who is not burdened by the abovementioned situations, Bartolus mentions two cases: if he is a partner, because the act of one partner harms the other, and if he is a co-debtor, because the poverty of one harms the other, as he loses the beneficum divisionis, and therefore the power to distribute the debt to all. This, however, has not gained the approval of the jurist, because the action of a partner harms the other partner in the case of acquisition, not in the loss of acquisitions.⁴⁹

Paulus de Castro made the possibility of action dependent on two elements. The first is falling into poverty or starting to squander his property, and the second is bearing the burdens of marriage. If these two elements are met, a woman can demand to be entrusted with things from his property, and if that is not enough, also from the other person’s property. This is done for two reasons, so that she can support herself and her family, and so that she can be sure of her dowry. The condition, however, is that neither of them is cheated.⁵⁰ If, on the other hand, it is not the one who bears the burdens of marriage but the other who falls into poverty, then there is no need to demand the return of the dowry, since the woman is not cheated by either of them. It should not be assumed that he too can fall into poverty one must take into account the case of both chance and unfavorable and favorable fate.⁵¹

The problem of co-responsibility for the return of the dowry during the marriage is dealt with in advice 6 in the third volume of Paulus de Castro’s consilia.⁵² In the time of Paulus, the groom and someone in his family made a promise that the dowry would be returned to the woman whenever it should be returned. Such a promise to return the dowry in all cases in which it should be returned both after the dissolution of the marriage and during the marriage was made by Antonia together with her sons Andrea and Laurentius to the wife of the former, Matthia. The question is whether, as Andrea approached poverty and began to misuse his property, which is presumed to have squandered the dowry he received, his wife could institute a hypothecary action against his mother Antonia? There were three estates at stake, from which the assets corresponding to the dowry could go to the wife. Firstly, the property belonging to Antonia’s sons, which they received from their father, and which she currently held on their behalf, secondly, her dowry goods, secured by her husband’s belongings, for which her sons were now responsible as his heirs, and thirdly, Antonia’s own property, that is, nondotal possessions. The basis for this was supposed to be a fragment of Justinian’s Code ubi adhuc [C. 5, 12, 29]. Paulus responded positively as to the share of the plaintiff’s husband in the first of the abovementioned estates, insofar as his mother held them without just cause. Hypothecary action is generally brought against any possessor of property, unless it is someone who has an earlier and better lien on it, insofar as he is not personally obligated. Antonia had a prior and better right to the property that her sons inherited from their father, her husband, as he secured the return of her dowry. The question to be decided was whether Antonia had a personal obligation to her daughter-in-law under the promise of restitutio dotis made to her. If so, a hypothecary action may be brought against her for delivery of her property, as well as the property of her sons, for which she is entitled to a hypotheca on the same basis as her daughter-in-law. At this point, Paulus analyzed what is implied by the phrase restitutio dotis, since this is the only thing that Antonia’s commitment refers to. During the marriage there can be no real restitution because of poverty because the dowry should continue to support the burdens of the marriage. Real restitution may sometimes occur during marriage when there is a separation between the spouses for some just cause or when dowry is returned for a reason other than poverty. Paulus de Castro held that if the mother-in-law obligated in casu restituenda dotis, this does not include restitution due to her husband’s falling into poverty, since restitutio dotis cannot be extended to the case of poverty due to the meaning of the word restitutio. The proper meaning of the word restitutio does not extend to the case of poverty, for which consignatio is a more appropriate word. In this case, it also does not seem that the parties had the opposite intention, that is, that they included in the promise of the return of the dowry also the case of the husband’s poverty.⁵³