WHY PROHIBIT DONATIONS BETWEEN HUSBAND AND WIFE IN MEDIEVAL EUROPE?

Abstract

Between the end of the eleventh century and the beginning of the twelfth century, following the rediscovery of Roman law in the West, the first Bolognese commentators stuck to the Roman principle prohibiting donations between spouses. Authors commented over and over again upon fragments of the writings of Roman jurists Paul and Ulpian that were integrated into the Digest of Emperor Justinian. According to these jurists of the Classical Age, fears of despoliation between spouses, of negligence in the children’s education and of marriage becoming venal were the main reasons found. Medieval canon law takes the subject of donations between spouses very seriously. Laurent of Spain († 1248), in the Glossa Palatina, worries about donations of cosmetics, which are seen as luxury enhancing. In Liber Extra (1234), a decretal signed by Gregory IX took up the subject, confirming the opinions expressed by Paul and Ulpian by expressing hostility to such donations on the basis of public morality. Following the Fourth Lateran Council (1215), a new literary form appeared: confession - or casuistic - manuals. In these aspects, the subject of gifts between spouses is closely assimilated to the question of sin, especially of luxury. Continental Europe’s common law (ius commune) shows similar spirit in that respect. Italian statutory laws, in conformity with the separatist spirit of Roman law, forbade them without distinction. They were outlawed in English law by unitas carnis which presides over conjugal relations. According to Jean Boutillier (1395), the author of La Somme rural, a famous French interpreter of law, donations between spouses are generally regarded as a result of fear, complacency or luxury, and so should be forbidden. The common theme between Roman or Canon law and different common laws is the upholding of a certain public morality and the control of couples as the mainstay of their respective families.

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