Marriage and Conventio in Manum
In the historical evolution marriage was the subject of different considerations relating to its nature and various forms of constitution, fundamentally different from those of modern marriage, which is governed by the civil law that is legal transaction which is brought into being by the will of the parties and the state. Canon law considers marriage a sacrament and a contract at the same time, while the Roman law sees it as a state of affairs (res facti), although production of important legal consequences. *
The oldest marriage is a legal act "under which a woman, sui (a person under patria potestas) or alieni iuris (a person autonomous of patria potestas), comes from the family of origin and enters into a new family, in a position of subject and the particular function of procreation of paterfamilias (a head of the household) or his subordinate free legitimate offspring."
Marriage and Conventio in Manum (from Latin - to be placed in the hand of the husband, i.e. to be married)
The power of the paterfamilias is predominant in marriage: the union between a man and a woman is obscured by the potestativus ratio that is created in favor of men over women, that is, the manus.
Gaius (1, 110) stated that in Roman law there were three ways in which a woman could come into the manus of her husband: tribus modis in manum conveniebant: usus, farreo, coemptione.
Usus allows to go back to the concept of the oldest marriage: occurred during the first uninterrupted year of married life, a condition which gave the right to the "acquisition" of his wife by usucapion or acquisitive prescription.
Gaius handed ***: A woman who retained her position as a married woman for an uninterrupted year came into manus by usus; for the reason that, as if she was obtained by possession for a year (usucapio), she transferred into the household of her husband and took the place of a daughter. Accordingly, it was decreed by the Law of the Twelve Tables that if a woman was unwilling to come into the manus of her husband in this way, she should be absent every year for three successive nights, and in this manner she would interrupt the usus of each year. But this whole law has been partly abolished by statutes, and partly cancelled by its very disuse.
Conventio in manum with farro, also called conferreatio, was accomplished with a sacrifice in honor of Jupiter Farreo, saying some solemn formulas in front of Pontifex Maximus of flamen Dialis, and ten witnesses: it seems that it was the most ancient and solemn rite, on the one hand it was a propitiatory rite, on the other hand – a religious one, it gave the beginning of the married life and celebration of the entry of women in the family of her husband. **** This form of marriage declined at the end of the republic.
Coemptio is the most "recent" in the conventio manum, it was going through a sham transaction, concluded solemnly with the shape of mancipatio: in a fictional way the husband buys the wife by mancipatio, i.e. pretending to weigh the price with the balance in bronze and asserting his power over the woman who takes in marriage, in the presence of five witnesses, Roman pubescent citizens and with the assistance of libripens (who holds the scales in a ceremony of mancipatio).
- Salvatore Terranova - Noto
*Cfr. Sanfilippo C., “Istituzioni di diritto romano”, Catania,1964 p. 145.
**Cfr. Arangio – Ruiz V., “Istituzioni di Diritto Romano”, XIV, Napoli, 1989, p. 434.
***Gaio (1,111).
****Serrao F., “Diritto privato economia e società nella storia di Roma”, Napoli 1987, p.186: “E’ opinione diffusa e verosimile che tale tipo di conventio in manum, sorta nella società gentilizia, sia rimasta sempre riservata ai patrizi”.
