CHARAKTER ZAKAZU ALIENACJI NIERUCHOMOŚCI POSAGOWYCH W RZYMSKIM PRAWIE KLASYCZNYM

Agnieszka Stępkowska

DOI: http://dx.doi.org/10.21697/zp.2011.11.1.16

Abstrakt


LEGAL CHARACTER OF THE PROHIBITION AGAINST ALIENATION OF DOWRY IMMOVABLES IN THE CLASSICAL ROMAN LAW

Summary
The well known lex Iulia de fundo dotali prohibited alienation of a Italian land being part of a dowry without women’s consent. The very meaning of this prohibition attracted very much attention of the Roman law scholars in the 20th century. The problem was as follows: was the disposition in breach of the lex Julia null and void (absolute nullity), or was it only voidable by the woman (respective nullity) after the dissolution of her marriage. The later opinion seems to be dominating in 20th century writings on Roman law, since Pierre Noailles had advocated it in his book L’inaliénabilité dotale et la Novelle 61 (Grenoble, 1919). It was subsequently affirmated by such emminent authors like Fritz Pringsheim or Paul Koschaker and became ‘canonic’ oppinion among Roman law scholars. The problem in itself was alien to Romans knowing no difference between absoluteand respective nullity of a disposition, but it looks like, virtual position of Romanlaw in this respect, was not the most attractive to modern scholars. The present paper re-considers the issue taking slightly different departurepoint to that of Noailles and his followers. In the first instance, the category of leges – as regards sanctio of their prohibitory provisions – to which the lex Iulia de fundo dotali belongs is settled. Than the issue, who is entitled to vindicate the land alienated in breach of the lex Iulia, is analysed as well as possibility of convalidation of the invalid disposition. Finally it is considered, whether the statutory provision affected only real transfer of property or it frustrated already husband’s very ability to make a valid contract of sale. In effect, the argument of the present paper is as follows: alienation fundi dotalis without wife’s consent, was beyond any reasonable doubt null and void. Being still the owner of illegally alienated immovables, the husband was bound to vindicate them. For that very reason, he was not able to transfer free and unimpeded possession of the land to the unfortunate purchaser. Consequently, it was not only alienation of the land in dowry, which was null and void by virtue of the lex Iulia de fundo dotali, but also the very contract of it’s sale. Above findings require, the theory of “relative nullity” (i.e. voidability or rescindibility), as advocated by Noailles, Prinzheim and Koschaker, is to be rejected.


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