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Justinian I · The Digest of Justinian §23.2.16.pr-23.2.16.2

Status Limits, Grandchildren's Consent, and Madness

Passage 3322 of 9271 · Latin

Summary

Paulus states the rule invalidating marriages between daughters of senators and freedmen, explains the consent requirements for the marriage of grandchildren, and discusses the effect of madness on contracting and maintaining a marriage.

[PAULUS libro trigesimo quinto ad edictum. ] §23.2.16.prOratione diui Marci cauetur, ut, si senatoris filia libertino nupsisset, nec nuptiae essent: quam et senatus consultum secutum est.
[PAULUS in the thirty-fifth book on the Edict.] It is provided by an oration of the divine Marcus that, if the daughter of a senator should marry a freedman, there should be no marriage; which also a decree of the senate followed.
§23.2.16.1Nepote uxorem ducente et filius consentire debet: neptis uero si nubat, uoluntas et auctoritas aui sufficiet.
When a grandson marries, the son also must consent; but if a granddaughter marries, the will and authority of the grandfather will suffice.
§23.2.16.2Furor contrahi matrimonium non sinit, quia consensu opus est, sed recte contractum non impedit.
Madness does not allow a marriage to be contracted, because there is need of consent, but it does not invalidate one that has been validly contracted.

Notes

  1. §23.2.16.prquam et senatus consultum secutum est — The relative pronoun quam (feminine singular accusative) refers back to the feminine singular noun oratione. The subject of secutum est (perfect of sequor) is the neuter noun senatus consultum, meaning literally 'which [oration] also a decree of the senate followed.'
  2. §23.2.16.1filius — The term filius ('son') here refers to the father of the grandson, who is under the patria potestas of the grandfather (auus). In Roman law, when a grandson marries, any children born of the marriage will eventually become the direct heirs (suus heres) of the 'son' (their father) after the grandfather's death. Thus, to prevent having an unwanted heir forced upon him, the consent of the 'son' himself is required in addition to the grandfather's. Conversely, when a granddaughter (neptis) marries, her children do not enter her father's family, so the consent of the current paterfamilias (the grandfather) alone is sufficient.
  3. §23.2.16.2recte contractum — The phrase recte contractum is a perfect participle modifying the preceding neuter singular noun matrimonium. It refers to a marriage 'rightly (or validly) contracted' and serves as the direct object of the verb impedit ('hinders' or 'invalidates'). It expresses the legal principle that while madness prevents the initiation of a marriage, subsequent madness does not retroactively invalidate or dissolve an already validly contracted marriage.

Cite this passage

Justinian I, The Digest of Justinian §23.2.16.pr-23.2.16.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:23.2.16.pr-23.2.16.2

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