АВАНСНА ВЕРИДБА У РИМСКОМ ПОСТКЛАСИЧНОМ ПРАВУ
Arrae Sponsalia in the Roman Post-classical Law

Summary/Abstract: In the classical Roman period, the institute of sponsalia (espousal, engagement, betrothal) was based on the principle of fiancés’ autonomy (freedom of choice and voluntary consent to marry). Although the obligation to marry the betrothed fiancé was in this period considered to have been an uncivilized attainment from the preclassical period, this practice subsisted in the post-classical period as well, primarily in the provinces on the Eastern Mediterranean coast. In these provinces, there was a special kind of engagement (arrae sponsalia) which involved paying earnest money as a promise of marriage; this specific institute created a legal obligation to enter into marriage by assuming an obligation to give relevant consideration, i.e. earnest payment (arrae); this amount was either irretrievably lost or doubled in case the marriage had fallen through for some reason. The Roman law of the post-classical period recognized this form of engagement, which was used as the basis for developing the principle of final and irrevocable engagement, under which the engagement marked the beginning of marriage. Thus, the post-classical Roman law excluded the principle of the fiancés’ autonomy which was the governing principle in the classical period. The engagement involving an earnest payment was a classical example of pre-marital property relations which used to be quite common among the Christians. However, it was not the only form of pre-marital property relations recoreded in the early Byzantine period. Namely, the historical documents from the 8th century provide evidence that the Christians who did not pay the earnest money could also get engaged by entering into a special written agreement. Thus, the fiancés were formally obliged to marry either by giving an earnest payment or by entering into a special pre-marital agreement. Therefore, we may conclude that the Byzantine law recognized the custom (which had already existed in Justinian’s legislation) that the fiancés could exchange solemn vows and confirm the promise to marry in the ceremony of the solemn kiss even without being obliged to pay earnest money. It brings us to the main conclusion that the Roman law of the post-classical period favoured the engagement with earnest payment and its many advantages but, towards the end of this period, there were reactions against this form of engagement particularly in terms of the limitations which had been intoduced by the arrae sponsalia on the freedom of choice in the right to marry.

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