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

by Ewa Dawidziuk (Volume editor) Patricia Panero (Volume editor) Anna Tarwacka (Volume editor)
©2024 Edited Collection 520 Pages
Series: Ius, Lex et Res Publica, Volume 28


Throughout history, the family has been considered the primary nucleus of social organization, and the law has played a crucial role in the regulation and protection of its members’ rights and obligations.
This book seeks to explore and analyse the importance of family law from multiple perspectives. Changes in the forms of cohabitation, new family conceptions, new reproductive technologies and gender equality are current unresolved legal challenges, where a historical view has much to offer. It sheds light on the interactions between family, law, and society over the centuries, exploring the tensions, contradictions and changes that have defined this complex relationship. It contributes to the current debate on the legal challenges and dilemmas facing the family institution in the twenty-first century.
This book is a thought-provoking and critical analysis, offering a panoramic look at the evolution of family law and its impact on today’s society.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Contents
  • Introduction
  • Chapter I. Family: Origin and historical evolution
  • Protection of a wife’s assets in the event of her husband’s financial problems in Paulus de Castro’s printed commentaries and collections of consilia
  • Some assumptions of ius adscrescendi in the material necessary succession of ius civile
  • “Hominis” appellatione tam feminam quam masculum contineri non dubitatur. Interpretation of Gai. D. 50.16.152
  • Adoption under the scrutiny of the censors in Republican Rome
  • Family: A brief legal historical reflection
  • Family in historical perspective: Yesterday and today—Rhapsodic peeks between the past and a bit of the present
  • The Roman-Christian roots of the modern institution of marriage: Historical evolution in Europe
  • Chapter II. The family as the foundation of society
  • The secularization of marriage in Europe
  • The family as the basis of the richness of civil society: That is, the need to (change) the method of interpreting civil law in Poland
  • Protecting children online
  • Social transformations: The family as the fundamental nucleus for education in values
  • Chapter III. Family, constitution and fundamental rights
  • The paradigm of the family in the Spanish Constitution of 1931
  • Changes in Polish labor law to support parents on the labor market
  • The community interview in Polish civil proceedings: Selected issues
  • The lengthiness of court proceedings in Poland as more than a systemic problem
  • The existence of filiation between a woman and a child born of another pregnant woman from the Roman juridical experience
  • Application for the Court’s authorisation to perform, on behalf of a minor, an act exceeding the scope of ordinary administration of the child’s property in the light of Polish law: Practical remarks
  • Chapter IV. The family in an inclusive and global society: Changes in the family structures
  • The intestate succession of “half-brothers” in the current family structure: A proposal for a return to the original Roman regulation
  • Prisoners’ contact with their families: Current problems based on the 2022 amendment of the Executive Penal Code and penitentiary practice in Poland
  • New problem in family law: “Animal family members” after divorce—Reflections in the context of Polish and Spanish law
  • Psychoanalysis in the field of law: The analysis of the notion of ownership and its limits
  • Datafication, family and the protection of children’s privacy
  • Toward a new family-friendly tax system: Which tax regime?
  • Chapter V. The family of the 21 century and the crisis of values
  • Family, new vulnerabilities and metaverse between protection needs and opportunities
  • The approach of family and succession law to digital assets
  • Division of joint property of spouses after termination of marital property: Selected practical problems
  • European Union environmental policy toward society
  • Series Index


It is an honor and a satisfaction for me to introduce this monograph which incorporates a complex and interdisciplinary vision of a subject that, although it is constantly present in our positive law, it still is the result of the impact that Roman Law has had on our European legal tradition.

Indeed, the greatness, meaning and usefulness of this law does not suffer a substantial decline with the end of its practical application. It is well-known, the unique ability of the Roman Law to develop equitable fair principles, which exceed its own space-time coordinates and adapts to the new realities of many years in which in one way or another will continue in force, providing solutions to various social interactions. These concepts postulated by Roman Law are the axis of the juridical history of the European continent.

Despite the scientific value that everything historical entails, the work we present here is a proof of this, and as its title indicates, it is not limited to showing a historical vision of some institutions of family law. This work shows precisely how Roman Law has adapted to a rapidly changing world, especially in the field of the family, an institution considered one of the three basic pillars of law and society.

In the vast legal system framework, few areas are as fundamental and complex as those involving family and its relationship with society. Throughout history, the family has been considered the primary nucleus of social organization, and the law has played a crucial role in the regulation and protection of its member’s rights and obligations.

In this book, this intricate relationship is discussed throughout time, from the beginnings of Roman Law to nowadays. Through an in-depth and rigorous analysis, we examine how family conceptions and its legal rules and regulations have evolved, adapted to social, cultural and political changes.

We can’t ignore the challenges facing Family Law in Europe. Demographic transformations, technological advances, changes in family patterns and social inequalities raise questions and ethical dilemmas that require a constant adaptation and updating of family laws. It is imperative that legislators, academics, legal practitioners and society as a whole, actively collaborate to address these challenges and ensure that family law remains a driver of justice and fairness in Europe.

In this context, this book seeks to explore and analyze the importance of family law from multiple perspectives. Changes in the forms of cohabitation, new family conceptions, new reproductive technologies and gender equality are current unresolved legal challenges, where a historical view has much to offer.

Through a careful reflection, this work is structured in five topics: the first one deals with the origin of family and its historical evolution. It studies traditional institutions such as adoption, marriage and its patrimonial effects, divorce and certain institutions of inheritance law reviewed from the Roman legal experience, and through intermediate law and civil codifications.

The second part is entitled: The Family as the Foundation of Society, and it includes papers dealing with the role of the family in civil society in its material aspect, or the family as a method or alternative system of social control as opposed to criminal law, to current issues such as the protection of minors in an absolutely digitalized society, or the role of the family in the education of children, in the light of the new social transformations.

In the third part, we find papers related to the constitution and fundamental rights: Thus, the family is studied as the fundamental nucleus of society, reflected in the various constitutions throughout history, and there are papers referring to the changes in the labor market in the European context, motivated by the dramatic demographic situation in Europe that aim to support families; the procedural importance of vetting in family matters, an extremely important issue from the perspective of the values protected by the court, such as the welfare of children, or the protection of the family, and there is also talk of such a current issue as surrogate motherhood, and the filiation problems arising from it in Spain. A paper on the problems derived from the obligation of the parents to administer with due diligence the assets of the minor under their parental authority closes this section.

Another section, referred to The Family in an Inclusive and Global Society: Changes in the Family Structures, focuses on conceptualizing and contextualizing some figures as current as digital assets, presenting the basic dilemmas they pose, their possible concept and some proposals for necessary solutions, or the maintenance of such Roman terms as “half-siblings,” present in some Civil Codes. There are also references to the new modern families, in which animals are treated as members of the family, or to the problems posed by Polish prison law and practice in relation to contact between prisoners and their families, or such current works as those referring to the risks derived from the circulation of data of minors on the Internet, or proposals for possible new tax systems more favorable to the new family models, specifically in Italy.

A fifth and final section, entitled: The Family of the 21st Century and the Crisis of Values, closes the work we are presenting and includes aspects of great interest related to the new challenges faced by families in the digital era. Thus, it seems necessary to protect the members of the family nucleus from the new aggressions generated by virtual environments, while at the same time a reflection on whether family and inheritance legislation should be adapted to address the protection and distribution of these assets in cases of inheritance, divorce, or death. Thus, in the case of alimony, it must adapt to contemporary challenges and provide effective responses to the needs of families as reflected in the proposed changes to the Family and Guardianship Code in Poland.

Ultimately, this book seeks to shed light on the interactions between family, law, and society over the centuries, exploring the tensions, contradictions and changes that have defined this complex relationship. In doing so, we hope to contribute to the current debate on the legal challenges and dilemmas facing the family institution in the 21st century.

This book, is a thought-provoking and critical analysis, offering a panoramic look at the evolution of family law and its impact on today’s society.

Patricia Panero Oria

Aleksandra Szymańska

Protection of a wife’s assets in the event of her husband’s financial problems in Paulus de Castro’s printed commentaries and collections of consilia

Abstract: Since much of the wife’s property passed into the husband’s management upon marriage, the law should provide for measures to prevent the loss or diminution of that property. These measures should effectively protect her both against risky or irresponsible actions of her husband and against the resulting claims of his creditors. However, resorting to such measures constituted an extraordinary situation, since the wife, as socia domi mariti, should in principle share not only the auspicious moments with him, but also any adversity. Temporary failures in the management of the family’s assets, arguably not uncommon in the merchant societies of Italian cities, were certainly not a pretext for taking extraordinary precautions. However, if a husband was on the brink of insolvency, a wife could demand that her husband be deprived of control over her dowry property and also her non-dowry property if she had also entrusted it to him. This paper concerns the protection of a wife’s assets against her husband’s insolvency in the commentaries and consilia by Paulus de Castro.

Keywords: Paulus de Castro, consilia, commentary, bankruptcy, dowry, dos, Paraphernalia, bona non dotalia, married woman, matrimonial property regimes, ius commune

1. Introduction

The subject of this paper is the protection of a wife’s assets in the event of her husband’s financial problems in light of the commentaries and consilia found in the collection of Paulus de Castro,1 one of the most prominent jurists of the so-called school of commentators. The source, therefore, is legal literature related to academic activities, namely his commentaries on the Corpus iuris civilis, as well as legal advice resulting from his advisory work, taking into account both the statutes of the Italian communes and Roman law in its Justinian form. Legal advice was sought from legal experts to clarify legal issues including concerns arising from ambiguities in statutes, gaps in them, as well as contradictions between statutory norms. In order to resolve the problems and disputes arising from the poor financial situation of the husband, lawyers analyzed dowry contracts and other contracts between spouses, city statutes, as well as ius commune, that is, earlier legal literature concerning mainly the texts of the Justinian compilation—above all the summa to the Code of Justinian by Azo, the Gloss of Accursius and various commentaries of their predecessors. Both the commentaries and the consilia of many lawyers have been published in print. The problem of wives’ claims against insolvent husbands in late-medieval Italy has been generally analyzed based on the sources mentioned above by Julius Kirshner in his inspiring article.2 In this paper, the works of one of the outstanding commentators of the 15th century—Paulus de Castro—will be subjected to a detailed analysis in this regard.

Paulus de Castro’s considerations on the possibility of recovering the dowry due to the husband’s impoverishment can be found in his commentary on l. si constante (D. 24, 3, 24 pr3) and in consilia.4

As the commentator has written, lex si constante states the well-known principle that, if the husband has become so poor that, after deducting his debts, he does not have enough property left to repay the dowry, the woman may also claim it back during the marriage by instituting a personal action (actio personalis de dote).5 The passage provides an opportunity for him to consider more broadly the issue of a wife taking control of her property due to her husband’s financial problems and to take into account other passages in the Justinian compilation regarding this matter. As he noticed, there are few of them—besides the abovementioned passage from the Digest, there is the passage from Justinian’s Code l. ubi adhuc (C. 5, 12, 296) and the passage from the Justinianic novella l. illud quoque sancire (Auth. 7, 8 = N. 97, 67)—but this issue raises many questions.8 Paulus, aware that many of his predecessors had considered the issues involved, decided to limit himself to only the five main issues raised by the Gloss of Accursius. He found it unnecessary to dwell on the secondary issues, since they had been thoroughly investigated by Bartolus de Saxoferrato and other scholars.9 Indeed, Bartolus, being the master of Baldus de Ubaldis, who in turn was the teacher of Paulus de Castro, left an extensive commentary on which others who analyzed the issue of the possible actions of a wife in the case of her husband’s financial problems were based, including Paulus de Castro.10

As mentioned above, Paulus de Castro based his commentary on l. si constante on the Gloss of Accursius, which raised five issues, three of which relate to from whom the dowry is to be received and two of which relate to the persons who may demand its return.11 In the first respect, the husband himself and his pater familias, that is, most often the woman’s father-in-law, and generally those jointly and severally obligated to return the dowry are considered, while in the second, the wife herself, her pater familias and another person who established the dowry without being obligated to do so (extraneus). The subject of consideration in this paper will also be the actions that the wife may have instituted, the determination of the husband’s financial situation and the moment when the wife could make efforts to return the property, the consequences of returning the dowry and other property of the wife.

2. Types of wife’s assets

According to customs in Italy at the time of the commentators, a wife marrying would bring a dowry to the newly established family. Since the purpose of the dowry estate was to assist the husband in bearing onera matrimonii, the income should be used to support the family and run the household. For this purpose, the husband was in charge of administering the dowry. While the dowry was the most important asset a wife brought into the marriage, it was not the only asset. In addition to the dowry, the wife could also have nondotal property, which, according to commentators, was divided into two types: paraphernalia,12 that is, things brought into the husband’s home apart from the dowry, and nondotal things (bona non dotalia), which were not brought into the husband’s house.13

Things constituting paraphernalia, like the dowry, were brought into marriage. According to these jurists, the primary difference between a dowry and nondotal assets concerned the issue of ownership, which in the case of the dowry during the marriage passed to the husband. The owner of the paraphernalia was his wife. Unlike the dowry, however, the husband’s use of paraphernalia depended on his wife’s consent. The husband should not interfere in matters related to the wife’s paraphernalia if she objected to it. However, wives customarily gave their husbands this type of property or entrusted it to their management, hence the presumption that the husband was the wife’s procurator in the field of paraphernalia. In managing his wife’s affairs, the husband should exercise even higher diligence than in his own affairs. A wife who allowed her husband to manage parafernalia could demand that he stop dealing with her property at any time.14 The husband handled the management of paraphernalia at his own risk. If these assets were diminished, he was obliged to compensate, guaranteed by his own belongings.

The second type of nondotal assets, called res extra dotem, differed from the first in that they were not contributed to the husband’s household. The wife retained both ownership and the ability to administer this category of property. Like paraphernalia, it could include both movable and immovable goods. In principle, the benefits of this property were to be enjoyed by the wife, but with her explicit consent. These benefits, it should be emphasized, could also accrue to the husband. Thus, in the case of the third type of wife’s property, which was neither dowry nor paraphernalia, there was no presumption that the husband was entitled to management of it. The jurists assumed in this respect that there was no consent for management and use. If it was not known whether the wife had consented, it was assumed that she had not.

If the husband had sufficient resources to support the family, the wife was not obliged to support him financially from her own nondotal assets. The husband’s plight was a special situation. The source of his sustenance, when he fell into poverty, should be the benefits of dowry property and donatio propter nuptias, not the benefits of nondotal property. According to communis opinio, if the benefits from the dowry were not sufficient, were consumed or were lost in some way, the poor husband should be supported from paraphernalia or other property of the wife.

Paulus de Castro mentions that in the case of the husband’s poverty, the wife, in addition to the possibility of regaining her dowry or securing it, also has the possibility of obtaining a marital donation, which she hopes to obtain, and paraphernalia entrusted to her husband. The donatio propter nuptias and the paraphernalia are secured by a privileged hypothec on the husband’s property, as is the dowry.15

3. Determining the financial situation of the husband and the moment when the wife can try to recover the assets

There could be many reasons for insolvency, from reprehensible actions of husbands to unfortunate coincidence. Bankruptcy was a constant feature of life in Italian cities, not only because of the instability of the economy, but also because of onerous taxes.16 Add to this numerous armed conflicts that destabilize the situation, as well as the specter of confiscation of property due to taking the wrong political side.

One of the basic issues in the matter of interest is to determine the financial condition of the husband and when the wife can claim the dowry during the marriage. Although the passage of the Digest under review says that it refers to a husband’s falling into such financial difficulties when, after deducting all debts, there is not enough money to repay the dowry, Paulus de Castro, taking into account other passages of the Justinian compilation, stated that the transfer of a dowry to a wife is justified when, although the goods are sufficient to satisfy creditors and guarantee a livelihood and even the return of the dowry, they do not leave sufficient funds for a life adequate to his personal status.17 Paulus also discussed the provisions in the Justinian novella, which extend the possibility of action to a situation where the husband, while still actually rich (because, after paying off all debts and dowry, he would be left with assets from which he could live with dignity), nevertheless began to misuse his assets. The misuse of his wealth may have involved gambling or incurring more expenses than his financial situation would allow, for example, when, having no experience, he took up seafaring and, although he was losing out on this business, he still stubbornly stuck to it.18

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

In addition, a promise to return a dowry made by one to whom it did not accrue can be extended only to the extent permitted by the words of the promise. Since the dowry fell to Anthony’s son and not to her, an extensional interpretation cannot be applied.54 Recognition of the guarantee of return applies only in the case in which she undertook to return the dowry.55

In his conclusion, Paulus de Castro stated that in the case under review, the daughter-in-law cannot bring a hypothecary action against her mother-in-law to hand over her own belongings or the property of her sons, mortgaged for dowry, since she herself is entitled to a hypothec of a prior and better kind against these things. And her promise, which she gave in connection with her son receiving a dowry, does not cover the case of returning the dowry during the marriage due to poverty. Nor is she harmed by her son’s obligations in relation to the things indicated, and the fact that her daughter-in-law may take legal action against him.56

It is not known whether, in the above-described case, the wife acted in concert with her husband, who had run out of funds and wanted to take over the property, which was his father’s inheritance and which was inaccessible to him and his brother due to the fact that their mother had a hypothec on it to secure the return of her dowry.

In a similar vein is brief advice 230 found in Volume I of Paulus de Castro’s legal advice. The case analyzed there was commented on by another legal adviser, Ardignius, and concerned the possibility of a certain woman suing Michael and Johannes for the equivalent of her dowry, as these men had promised to return it (restitutio). The author of the consilium referred here to the considerations of Bartolus, who stated that the promise to return the dowry in any case in which it should be returned does not include the case in which it should be given because of the husband’s poverty.57 Michael and Johannes are only responsible for what the words of their promise contained, regardless of whether we say they are guarantors or co-debtors. Michael and Johannes are only responsible for what is contained in the words of their promise, whether we say they are guarantors or co-debtors. Since the promise concerned only the restitution of the dowry in the event of dissolution of the marriage, the author of the consilium stated in the conclusion that the woman could not demand that the abovementioned men transfer her dowry.58

7. Consequences of returning a dowry

During the marriage, the wife’s dowry assets, and generally the wife’s nondotal assets as well, while remaining in the husband’s possession, provided support for the obligation to bear the burdens of marriage. The husband was responsible for the proper administration of this property and used the benefits derived from it to maintain a common household. Since the basic function of bona mulieris was to facilitate the burden of marriage, which rested on the shoulders of the man, their return took place after the dissolution of the marriage bond. Their earlier return made this function impossible to fulfill. Temporary failures in managing the family’s property, probably not uncommon in the merchant societies of Italian cities, certainly did not constitute a pretext for taking extraordinary precautions. However, if the husband was on the brink of insolvency, the wife could demand that control of her dowry and non-dowry property be taken away from him, if she also entrusted it to him. The wife was obliged to use the fruits from the dowry taken from her husband to support herself, her husband, and her children. Since the purpose of the dowry was to support the burdens of marriage, the wife was forbidden to alienate the returned property.

This was also the position of Glossa, according to which, having regained her dowry, a woman cannot do with it freely, for example, make some alienation. After regaining the dowry, the fruits from it should serve the burdens of the marriage. Not only should she be supported by them, but also her husband and the whole family. Paulus noted, however, that from the passage under scrutiny it appears that this is a judicial assertion of the dowry due, which should be given to the woman to do with it what she wants, as can be inferred from the word exactione. And this provision seemed more just and reasonable to Paulus.59

The protective measures taken into account by the commentator, which consisted of the possibility to sue for the return of the dowry during the marriage due to the impending insolvency of the husband, were aimed at safeguarding the livelihood of the spouses and their offspring. It was also about securing another function of the dowry, namely, to provide for the wife’s livelihood after the husband’s death.

8. Conclusion

Since much of the wife’s property passed into the husband’s management upon marriage, the law should provide for measures to prevent the loss or diminution of that property. These measures should effectively protect her both against risky or irresponsible actions of her husband and against the resulting claims of his creditors. However, resorting to such measures constituted an extraordinary situation, since the wife, as socia domi mariti, should in principle share not only the auspicious moments with him, but also any adversity.

Since Paulus de Castro was one of the highest-paid law professors of his time, as well as a sought-after legal consultant, his wife, who was the granddaughter of canon law professor Petrus Ancharanus, was unlikely to have to face the need to reclaim her dowry propter inopia mariti. In turn, the problems of insolvency and bankruptcy were encountered by Paulus in his legal practice. He also encountered them in theory, analyzing the provisions of Roman law contained in the Corpus iuris civilis. Three passages from the Digests, the Codex and the Novels of Justinian are of key importance for the possibility of the wife demanding the return of her property. Unfortunately, we do not have Paulus de Castro’s commentary on Book 5 of the Code of Justinian or Novels, in which the fragments of interest to us are found.

The commentary on l. si constante from Digest and consilia in Paulus de Castro’s collection of legal advice contain considerations about who might have been involved in the recovery of his wife’s property. A wife whose husband mismanaged his affairs and wasted his fortune could, in order to regain her dowry, act alone or jointly with her father, if she was under his authority. Appropriate legal steps could also be taken by her pater familias. Failure to take any steps could have unpleasant consequences in the future. On the other hand, as entities from which a woman could demand the surrender of her property, her father-in-law, his brothers and creditors, and even her mother-in-law were also taken into account. The commentator saw the need to protect the property interests of the wife, but he also had to take into account the interests of the husband’s creditors and members of his family.

The commentaries and consilia, found in the collection of Paulus de Castro, have been published in print several times in various places in Europe. His work was invoked by later jurists, referring to his views in their commentaries and legal advice, which, through the medium of print, were increasingly disseminated, influencing European judicature and legal thought in the early modern era.


ISBN (Hardcover)
Publication date
2023 (December)
Family evolution matrimonial property roman law models of different family matrimonium contract of marriage European civil law Protecting children baby influencer labor law judicial decisions surrogacy artificial intelligence
Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2024. 520 pp., 3 fig. b/w, 1 table.

Biographical notes

Ewa Dawidziuk (Volume editor) Patricia Panero (Volume editor) Anna Tarwacka (Volume editor)

Ewa Dawidziuk is an Assistant Professor at the Faculty of Law at SWPS University in Warsaw, Poland. Her research focuses on executive criminal law, the functioning of various types of places of detention. She she has been serving as Vice-Dean of the Faculty and Director of the Criminal Executive Law Department within the Ombudsman Office. Patricia Panero is a Professor of Roman Law at the Faculty of Law at University of Barcelona (Spain). She is also a member of the research Trajan University of Barcelona, and member of the research group on Conflict Management. In addition, her work always takes into account the possible influence that the Institutions of Roman Law may have on current law. Anna Tarwacka is a Professor of Roman Law at Cardinal Stefan Wyszynski University in Warsaw, Poland. Her research focuses on the legal aspects of ancient literary texts. She also popularises Roman law through her blog and YouTube channel and is a children’s book author. She served as Vice-Dean of the Faculty from 2016 to 2020, and currently is the Editor-in-Chief of the journal Zeszyty Prawnicze.


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