Decision (Holy Roman Rota, 1360 X 1365)

[Peter has made his wife the testamentary tutor of their children with benefit of inventory.  This means that she can make an inventory of what is theirs and will be held responsible only for what is in the inventory.  The issue is what to do about property that she argues is hers because (1) he gave it to her, or (2) she acquired it during the marriage by her own efforts, or (3) her husband’s relatives and friends had given to her.  These three issues lead to four holdings:]

It seems that it ought to be said that he did not seem to give them to her, because the necessity of supporting and administering such things for her falls on the husband, and therefore the laws favor the husband, so that he is understood to have handed them over to her only for current use … .

So far as what was acquired by her industry and diligence is concerned, it seems that it ought to be said that if they were acquired by her efforts [operis], they ought to pertain to the husband or to the man and his heirs after him, because the wife is held to work for the husband [citations omitted].  If however she acquires other things otherwise and can show whence and from whom or in what way, then they ought to pertain to her and not to the husband, even if she acquired with the money of the man, for example, in trading or in keeping it in the bank … . For the woman is free, except as to the carnal debt and working.

So far as the vessels and jewels and clothing and other ornaments are concerned, which of necessity the man is not held to minister to her, if it appears that they were handed over to her with the intention of making a gift, although the gift is not valid, as one made between husband and wife, then, because the husband did not expressly revoke it, I would say that it was confirmed by the death of the man, and that they ought to pertain to her and not to the heirs of the husband, as [citation omitted].  But in the aforesaid case of handing over, I do not believe that by these words which the husband said to the wife, ‘You may hold this’, he seems to have made a gift, but rather that she keep it and to commend it to her use indiscriminately, because in a doubtful matter someone is not presumed to have made a gift nor to have cast aside what is his [citations omitted] especially lest in so presuming they despoil themselves by mutual love, and because a gift between husband and wife is prohibited by law, and in a doubtful matter one is not presumed to have done something against the disposition and prohibition of law.

So far as the other things given to the wife by others with the man looking on are concerned, I believe that a distinction ought to be made, whether these intended chiefly to give to the man and wanted them to be his acquests, although they handed them over to the wife, and then I believe that such things ought to pertain to the man and to his heirs and not to the wife … .  If, however, those who gave to the wife with the man looking on intended principally to give to the wife, and they wanted the things given to be acquired by her and not by the man, although they did this with him looking on, then I would believe that such gifts were acquests of the wife and not of the man, for she is a free person who can acquire for herself, nor are they acquired for him, because they are not acquired by her efforts. …  In a doubtful case I would believe that recourse must be had to conjecture and to the type of thing given, whether it is more fitting for a man than for a wife and vice versa, so that according to this it may be presumed whether the givers wanted it to be acquired by the man or by the wife.  …

Panormitanus on Marriage

Nicholaus de Tudeschis (Abbas Panormitanus), Consilium Stante statuto (2.79), in Materials § 14C1

There is a statute that provides that a man is enriched with a third part of his wife’s dowry if she dies before him without children, if a man leads a wife to his house and lives with her or goes to live with her.  It is asked if he who led a wife by words of the present tense and brought her to the house of his usual habitation and had her there in his family enjoys the benefit of the statute, the aforesaid consort or spouse dying in the house of the same man before the marriage was consummated by carnal coupling.

[1.]  It seems first that not: because the statute makes mention of a wife and man, but the name ‘wife and man’ sometimes is understood to be only those who have consummated the marriage by carnal coupling.  [How do you think that Panormitanus comes out on this one?]

[2.] The statute requires three things: (a) That the woman be a wife, (b) that the woman was led to the house, and (c) that she have lived with her husband. All of these requirements are met in this case.

[3.] There cannot be assigned any good reason to the law unless it be that the husband in sustaining the burdens of the marriage incurs many losses, and although he has dowry for supporting them, the expenses for clothing and ornaments are so great that the dowry is consumed in them.

Nicholaus de Tudeschis (Abbas Panormitanus), Consilium Facti contingentia (1.1), in Materials § 14C2

A. contracted spousals by words of the present tense with B. and received from her a dowry of 1000 lire.  B. died before A. had led her to his house or had otherwise consummated the marriage, and the question was whether he was entitled to one-half of the dowry under a statute that said “If any woman dies without children from the man to whom she is married (viro cui nupta est), a half of the dowry at the time of her death shall remain to the husband ... .”

[1.] The statute should be strictly construed.

[2.] The statute is not intended to apply to virgins.

[3.] Viro cui nupta est (“from the man to whom she is married”) is not intended to apply to a man who had not led his wife into his house.

[4.] The purpose of the statute is to compensate the husband for the expenses of the marriage celebration and of maintaining his wife in his household.

And yet, there’s always an “and yet” in these stories, I think it would be wrong to think that the notion that unconsummated present consent marriages were completely and truly marriages was totally accepted in this period even among those who were committed to the primacy of canon law in this area. The issue was whether such marriages were always indissoluble. The answer to that question was ‘no’. Alexander III had allowed for their dissolution in certain circumstances, among them being the situation where one of the couple chose the religious life. Canonists and theologians continued to debate the issue. In the thirteenth century the power of the pope to dissolve an unconsummated present consent marriage was more of a theoretical than a practical possibility. While there were a number of instances of such dissolutions in the twelfth century, even an attempt to develop rules under what circumstances they would be allowed, Innocent III, at the beginning of the thirteenth century, had held that the only instance in which an unconsummated present consent marriage would be dissolved was in the case of entry into religion (X 3.32.14). By the fifteenth century, however, the situation had changed. The pope was dissolving unconsummated present consent marriages, though the papal curia was not publicizing the fact that this was happening. Because the curia was not publicizing the fact that this was happening, we do not know how many canonists knew about it, and how it might have affected their thought. Suffice it to say here that I think that there is evidence that Panormitanus knew that it was happening, but also that he did not think that it was a good idea.

Liability for Damages Caused by the “Ball Game” (Florentine Rota, 1780)