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b. |
The lex romana burgundionum (Gundobad 506) |
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c. |
The so-called edictum Theodorici (?Theodoric the Ostrogoth, 493–507) |
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3. |
1100–1300 — The glossators - Irnerius to Accursius |
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4. |
1300–1500 — The commentators — Bartolus, Baldus, Josephus Mascardus, mid–16th century |
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5. |
1500–1600 — The humanists — Faber, Cujas, Godofredus |
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6. |
1600–1750 — The natural law school — Grotius, Pufendorf |
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7. |
1750–1850 — The usus modernus pandectarum->the pandectists — Voet, Glück, Savigny, Windscheid |
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8. |
1800–1900 — Codification of European law, code Napoléon, Bürgerliches Gesetzbuch |
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9. |
1825–1925 — The historical school — Savigny, Ihering, Gierke, Mommsen |
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10. |
1925–present — The modern historical school — Watson, Pescani, D’Ors, Corbett, Orestano |
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5. Pomponius, Sabinus, book 4: It is settled that a woman can be married by a man in his absence, either by letter or by messenger, if she is led to his house. But where she is absent, she cannot be married by letter or by messenger because she must be led to her husband’s house, not her own, since the former is, as it were, the domicile of the marriage. 6. Ulpian,
Sabinus, book 85: Finally
according to Cinna, where a man married a woman in her absence, and on his
way back from dinner by the side of the 7. Paul, Lex Falcidia, sole book: So it is possible here for a virgin to have a dowry and an action for dowry. 5. Pomponius 4 ad sab. Mulierem absenti per litteras eius vel per nuntium posse nubere placet, si in domum eius deduceretur: eam vero quae abesset ex litteris vel nuntio suo duci a marito non posse: deductione enim opus esse in mariti, non in uxoris domum, quasi in domicilium matrimonii. 6. Ulpianus 35 ad sab. Denique cinna scribit: eum, qui absentem accepit uxorem, deinde rediens a cena iuxta tiberim perisset, ab uxore lugendum responsum est. 7. Paulus l.S. ad l. falcid. Ideoque potest fieri, ut in hoc casu aliqua virgo et dotem
et de dote habeat actionem. |
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Corpus Iuris Civilis cum Glossis D.23.2.5: Rubric:
Words of the future tense having been proferred lead to matrimony if the
woman is led to the house of the man; otherwise if the man goes to the
house of the wife. This notable law
says this. Bartolus. D.23.2.5: Casus: The
woman Berta was my wife by words of the future tense; I sent a letter for
her, and she came to my house. She
is now presumed [to be my] wife. But
if she sent for me and I went to her house, she is not presumed [to be my]
wife. For an espoused woman
frequently goes to the house of her espoused as wife, but the man does not
go to the house of his espoused as husband.
He proves the first [point] by a quite like [case], for a certain Cinna
contracted with Berta espousals of the future tense. At length he sent for her and she went to
the house of her espoused, and the spouse had dinner and left by chance
separately and fell into the river and perished. It is asked if he is to be mourned by her
as husband. And he says yes. She is therefore wife by presumption of
law and nonetheless she is a virgin.
It says this with the two following laws. Vivianus. 5.
POMPONIUS,
Sabinus, book 4: It is settled that a woman can be married by a man in his
absence, either by letter1 or by messenger,
if she is led to his house. But
where she is absent,2
she cannot3 be married by letter or by
messenger because she must be led4 to her
husband’s house, not her own, since the former is, as it were, the domicile
of the marriage. 6.
ULPIAN,
Sabinus, book 85: Finally according to Cinna, where a man married a woman
in her absence,5 and
on his way back from dinner6 by the side of
the |
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1 by means of a letter—Understand
of the husband. And the sense *of this law is that a man can lead a wife by his
messenger of by letters.* A woman, however, cannot marry by her own
messenger. For it is necessary that
she be led into the house of the husband, and by that fact she is presumed** to have been made wife, if it does not appear clearly
other wise. A husband,*** however, is not said to be made
by the fact alone, that he has gone to the espoused’s house, since laws are
fitted to those things which happen more often, according to R[offredus
Beneventanus ?, probably Rogerius], as above, [D.1.3.5: Celsus, Digest 17. “For laws ought to be adapted to events
which frequently and readily occur, rather than to such as rarely happen.”] * A man can lead a wife by or through a letter. [Godefroy] ** She is presumed to have been made
wife who after espousals of the future tense has been lead into the house
of the man. [Godefroy] *** Someone is not presumed to be a
husband by a leading into the house of the espoused woman. [Godefroy] 2 remains absent—Understand
from the house of the husband and her own.
Azo. 3 cannot—That
she be a wife before she has come to the house of the man, although he goes
to the house of the wife. 4 she must be brought—Understand
that the bringing may be adequate testimony of the nuptials.* * By leading or handing over to the house of the man after
espousals of the future tense, marriage is presumed, as here and D.35.1.15
vo ducta [Ulpian, On Sabinus, 35: “Where a legacy is bequeathed under the
following condition, ‘If she should marry in my family,’ the condition is
held to have been complied with as soon as the marriage ceremony has been
performed (ducta), although the
woman has not yet entered the bed-chamber of her husband, for consent and
not cohabitation constitutes marriage.”; see more about this in
[Josephus] Mascardus [d. 1588], On
conclusive proofs, lib. 2, p. 1031. [Godefroy] 5 absent*—For by his friends he had her led to his house, as above
preceding law. * absent—Thus
in the Florentinus. There are those who think that “man who
is absent” is the more correct reading. [Godefroy] 6 from a banquet—Held
in the house of the man according to the first [law]. 7 it is held—Even
if his body does not appear, as D.3.2.25.
[“If anyone falls in battle, he will be mourned even if his body
doesn’t appear.”] Accursius. |
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