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[7] Neither Slave nor Free Theology and Law in Gratian’s Thoughts on the Definition of Marriage and Unfree Persons Anders Winroth n In Causa 29, Gratian discusses the case of a bride who by mistake married the wrong man. To make things worse, the imposter was not a free man, but a slave. In a meanderingdiscussion ,Gratiantreatsthelegalramificationsofthissituation.1 C.29isamongthe shortest in the first recension of the Decretum. It contains three canons and five dicta, and its first question is unusual for not containing any canons at all. It is an interesting causa for what it reveals about Gratian’s background, outlook, and attitudes. On the evidence of C.29, Gratian was a legal scholar with a strong theological bent, some radical opinions, and a firm belief in the primacy of eternal natural law over the whims of human legislation. In his introductory case statement, Gratian tells of an aristocratic woman who has agreed to marry the son of a nobleman. A different man, however, turns up for the wedding, one who is a servus and certainly not noble, but she marries him, thinking he is her fiancé. When the latter eventually shows up, she discovers that she has been tricked. She complains and wants to marry the man she originally agreed to marry. Gratian poses two questions. First, whether she in fact is married to the imposter. Sec97 I wish to thank Paul Freedman and, especially, John Dillon for their kind comments and suggestions. 1. J. T. Noonan, ‘Catholic Law School—a.d. 1150’, Catholic University Law Review 47 (1998) 1189–1205, examined the argument of C.29. An analysis of the Causa and the decretist commentary on it appears in A. N. Sahaydachny , ‘De coniugio seruorum: A Study of the Legal Debate about the Marriage of Unfree Persons among Decretists and Decretalists from a.d. 1140–1215’ (Ph.D. diss.; Columbia University 1994). The Gratian that I discuss is the author of the first recension, ‘Gratian 1’, see A. Winroth, The Making of Gratian’s Decretum (Cambridge 2000). ond, whether the servile status of her husband gives her the right to divorce him, if she did not know of it when they got married. In the first question, Gratian begins by pointing out that marriage, according to its definition, comes about through the consent of the two parties. Since in the example both consented, there is a valid marriage between them. Gratian then objects that the woman did not in fact consent, since she made an error. He then explains that there are four kinds of errors and that only two of them invalidate the marriage. Those are error of person (Plato or Virgil) and error of condition (free or unfree), while error of fortune (rich or poor) and error of quality (chaste or unchaste) do not nullify consent. Gratian provides several examples of these errors, both in the context of marriage and otherwise. The second question addresses error of condition (error condicionis). The woman of the case statement made an error not only about the identity of the person she married but also in thinking him a free man when he in fact was unfree. Gratian explains first, with reference to scriptural passages from the Pauline letters and a single canon (c.1), that unfree persons are capable of marriage. He then explains, with the support of two canons (c.4 and c.5), that a free person who marries an unfree person believed to be free may get a divorce. Gratian begins his discussion in question 1 by quoting, without identifying it, the Roman law definition of marriage from Justinian’s Institutes (Inst. 1.9.1): ‘Wedlock or marriage is the union of man and woman entailing that they live inseparably together’. This introduction to the subject led many of Gratian’s readers to expect that the rest of the discussion of marriage law in this questio would be based on romanistic principles. In the Glossa ordinaria, Johannes Teutonicus noted several parallels between Gratian’s discussion and Roman law, which has led modern scholars to assume, mistakenly, that Gratian was inspired by these romanistic passages when he wrote C.29.2 In fact, the similarities between Gratian’s discussion and the relevant paragraphs in Justinian’s Corpus are due either to a coincidental use of similar language or simply to literary commonplaces. An example of the former is Gratian’s definition of consent (C.29 q.1 c.1 §1): ‘Consensus est duorum vel plurium...

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