Seminar 3-4

Question 1

What was the role of the paterfamilias in Roman society?

Answer 1

The paterfamilias was the eldest male family member who exercised potestas (‘power’) over his descendants. He was always sui iuris, meaning legally independent, and had significant control over family members, including rights over property, life and death, and marriage.

Question 2

What is the meaning of potestas in Roman law?

Answer 2

Potestas refers to the legal power or authority that a paterfamilias had over all members of his family, including children, even if they were adults or held important public offices.

Question 3

What were the rights of the paterfamilias under potestas?

Answer 3

The paterfamilias had the right to ‘expose’ newborns, control life and death decisions (ius vitae ac necis), sell or surrender children into slavery, and make decisions about marriage and divorce for family members.

Question 4

What was exposure in Roman law?

Answer 4

Exposure was the right of a paterfamilias to abandon a newborn child, often in the wilderness, which could result in the child’s death from exposure to the elements, animals, or lack of care.

Question 5

What happened to Roman children when a paterfamilias died?

Answer 5

When a paterfamilias died, his sons would become sui iuris, meaning they were now legally independent and could become paterfamilias in their own right, gaining control over their own descendants.

Question 6

What was the punishment for parricide in Roman society?

Answer 6

Parricide, or the killing of one’s father, was punished severely by being sealed in a watertight sack with a rooster, a snake, a dog, and a monkey, and then thrown into the Tiber River.

Question 7

What was the peculium in Roman family law?

Answer 7

Peculium was property that a son-in-power (filiusfamilias) or a slave could manage as their own, even though legally it belonged to the paterfamilias. Augustus granted soldiers full rights over property they acquired during military service, known as peculium castrense.

Question 8

How could a child-in-power make contracts in Roman law?

Answer 8

A child-in-power could make contracts after reaching puberty, but the contract was not enforceable until they became sui iuris. Any benefits from the contract went to the paterfamilias.

Question 9

What was a manus marriage in Roman law?

Answer 9

In a manus marriage, the wife came under the legal authority (manus) of her husband, leaving her family and becoming part of his family. The husband or his paterfamilias controlled her property and decisions.

Question 10

What was free marriage (sine manu) in Roman society?

Answer 10

Free marriage was a type of marriage in which the wife remained legally independent and did not come under her husband’s authority. She retained control of her own property and legal decisions.

Question 11

What was the Lex Iulia de adulteriis?

Answer 11

The Lex Iulia de adulteriis was a law introduced by Augustus in 18 BC that made adultery by the wife a criminal offense. It established special courts to prosecute adultery, and a wife convicted of adultery lost half her dowry, one-third of her property, and could be exiled.

Question 12

What was the dowry (dos) in Roman marriages?

Answer 12

The dowry was a payment made by the wife’s family to the husband upon marriage. It represented her contribution to the household and became the husband’s property, although he was often expected to return it if the marriage ended.

Question 13

What was tutela mulierum in Roman law?

Answer 13

Tutela mulierum was the guardianship of women who were sui iuris (legally independent). These women required a guardian for certain legal transactions, though over time this system became less important, and women could manage most of their own affairs.

Question 14

What rights did the paterfamilias have over property in Roman law?

Answer 14

The paterfamilias had complete control over all property in the family. Any property acquired by his children (filii familias) legally belonged to him, but children could manage a peculium, a separate property they could use, though it still belonged to the paterfamilias.

Question 15

What was the ius vitae ac necis in Roman family law?

Answer 15

The ius vitae ac necis, or the right of life and death, was the power of the paterfamilias to kill any of his children. While this power was rarely used recklessly, it resembled the authority a master had over slaves.

Question 16

What changes did Constantine make to Roman family law?

Answer 16

Constantine abolished the paterfamilias’ right to kill his children (ius vitae ac necis), prohibited the sale of children into slavery, and introduced laws protecting children’s rights to inherit property, including the creation of the peculium castrense for military earnings.

Question 17

What was the noxae deditio in Roman law?

Answer 17

Noxae deditio was the practice by which a paterfamilias could surrender a child to a person harmed by the child’s wrongdoing as a form of compensation. The child would serve the injured party until the debt was paid.

Question 18

What was the peculium castrense?

Answer 18

The peculium castrense was property earned by a child (typically a son) during military service, which legally belonged to the child and not the paterfamilias. This was a special exception that granted children full ownership of their military spoils and earnings.

Question 19

What was a free marriage (sine manu) and how did it differ from a manus marriage?

Answer 19

In a free marriage (sine manu), the wife remained legally independent and retained control over her property. In a manus marriage, the wife became part of her husband’s family and was under his authority, with her property becoming part of the husband’s estate.

Question 20

What was the significance of betrothal in Roman marriage?

Answer 20

Betrothal was not legally necessary for marriage in Roman society but was a common custom, especially among the wealthy. It symbolized a formal agreement between families, often made by the fathers of the couple.

Question 21

What were the conditions for a valid Roman marriage?

Answer 21

For a valid Roman marriage, the couple needed to meet certain criteria: they had to reach the age of puberty (12 for girls, 14 for boys), both parties needed conubium (the legal capacity to marry), and there could be no prohibitions, such as close familial relations or social status restrictions.

Question 22

How was divorce handled in Roman law?

Answer 22

Divorce in Roman society was a private matter without legal formalities. It occurred when one or both parties expressed a clear desire to end the marriage. If there was no good reason for the divorce, the initiating party could suffer infamia (loss of reputation).

Question 23

What was the Lex Iulia et Papia and how did it impact marriage?

Answer 23

The Lex Iulia et Papia was a law that encouraged marriage and punished celibacy. It established a conventional age range for men and women to marry and allowed women who had three or more children to gain legal independence from guardianship (ius liberorum).

Question 24

What role did the praetor play in protecting women’s dowries in Roman law?

Answer 24

The praetor introduced the actio rei uxoriae, which allowed women to reclaim a fair percentage of their dowry in case of divorce. This ensured women’s financial security and prevented husbands from mismanaging or withholding dowries.

Question 25

How did the reforms of Justinian improve women’s legal rights in marriage?

Answer 25

Justinian’s reforms included forbidding the alienation of dotal property without the wife’s consent, allowing wives to raise claims for their dowry during the marriage, and abolishing the husband’s right to automatic deductions from the dowry. He also introduced an implied agreement that dowries would be returned if the marriage ended.

Question 26

What was the donatio propter nuptias in Roman marriage?

Answer 26

The donatio propter nuptias was a gift given by the husband to the wife before marriage. It was intended to support the wife in case of her husband’s death. In some regions, this became a legal requirement for marriage to protect the wife’s financial future.

Question 27

What was the tutela mulierum and how did it affect women in Roman society?

Answer 27

Tutela mulierum was a system of guardianship for legally independent women. These women required a guardian’s authorization for certain transactions, such as marriage or freeing slaves, though this system diminished over time and women increasingly managed their own affairs.

Question 28

How did adoption affect marriage in Roman law?

Answer 28

Adopted children were treated as biological children under Roman law, meaning they were subject to the same prohibitions on marriage due to consanguinity. If a child was emancipated, they could legally marry members of their adoptive family’s collateral relatives.

Question 29

What legal protections did Roman widows have concerning dowries?

Answer 29

Roman widows could recover their dowries through the actio rei uxoriae after the death of their husbands, subject to certain deductions. Justinian’s reforms further ensured that dowries were returned within one year (or immediately for land) and that widows had a claim over their husband’s estate through an implied hypothec.

Question 29

What was the difference between adgnati and cognati in Roman law?

Answer 29

Adgnati referred to individuals related through the male line who would have been under the same paterfamilias. Cognati referred to blood relatives, regardless of gender, and this kinship extended to both male and female descendants.