Le arrhae sponsaliciae in diritto romano e comparato

The subject of this thesis is a study of the historical-legal evolution of the institution of the at arrhae sponsaliciae in Europe law derived from a perspective of the link between the principles of matrimonial freedom and of "pacta sunt servanda". After historical- philological research of the word arra/arrha the Babylonian institutions of tirhatum and of Jewish mohar are examined, where the antecedent of the Roman arrhae sponsaliciae can be identified. Research into the origin of the arrhae sponsaliciae of Roman law follows, with a compareson of endogenous and exogenous theories relative to the exegesis of data sources. The key point of the research has been the Late Ancient age, through the study of the arrhae sponsaliciae in the imperial constitutions, in Christian sources and in the papyrus in order to identify the connections concerning the subject between Roman law and Christianity. Byzantine law has played an important part and has been studied in order to support with documentary evidence of the evolution, as an existing law, of Justinian Code in an increasingly close relation with future canon law, until the arrival of the unifying work by Leone the Philosopher. Legal European ensuing tradition, originated from the fusion betw;een Roman, Jewish and Christian civilizations, is proposed right through to our times in order "to see how finished, since Roman law, in the Justinian format, generously offered itself to the exploitation by Jurists all over Europe. The comparative analysis of the current legislation offers the starting- point, in the light, of the results of the historical-legal research, developed to formulate numerous considerations and to understand the prospects de jure condendo. Among these emerge the oscillation of the marriage promise between social reality and legal importance; the trend of modern law to limit as much as possible the effects of the marriage promise to safeguard the principle of freedom in marriage; the criticism of the consequent total sacrifice of the principle of reliance on the altar of freedom in marriage rendering useless any agreements made by consenting adults with full mental capacity to create legitimate expectations in the other party; the historical failure of models of contractual and extracontractual responsibility in describing the sanctions applicable to the breaking off of an engagement. In response to the above we suggest the identification, shared by the modern doctrine, of an ex lege responsibility for those who interrupt unilaterally, without just cause , a marriage promise, precluding furter sanctions to those envisaged by law, by private citizens in the case of broken engagements, with the result of safeguarding at the same time the two principles applied in the main defence of the same promise, those of "pacta sunt servanda" and of freedom in marriage.