A History of Matrimonial Institutions, Vol. 1 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 1 of 3
Howard, George Elliott
Families; Marriage -- History
At a very early day it became customary--instead of the _weotuma_ to
pay to the guardian a small sum at the betrothal, called in general
_arrha_[862]--the _Hand-geld_ of the German writers--accompanied by
promises and sureties for the payment of the price of the bride at
the _gifta_, or nuptials. Strictly speaking, the _arrha_ was neither
a part payment nor even a symbolical payment of the _weotuma_; it
was an act by which the real obligation implied by the contract of
sale was engendered.[863] The practice of paying the _arrha_ instead
of the bride-money at the betrothal led to a change in the character
of the marriage contract. "In the time of the folk-laws--from the
sixth to the ninth century--we see among all the German tribes a
change take place: the witthum, that is the purchase price, is
no longer paid to the guardian, that is the seller, but to the
bride herself; so that the right of the guardian was practically
limited to the receipt of the handgeld, that is to a merely formal
fulfilment."[864] Thus, since the property of the wife was subject
to the husband's control during his lifetime, the _weotuma_ was
really transformed into a provision for the widow, payable only
after death from the husband's goods.[865] The _beweddung_ was still
a "real contract," but not a "contract of sale."[866]
[862] Latin _arrha_, _arra_, or _arrhabo_; Greek ἀρῥᾰβων;
Lombard _launichild_, _launegild_, perhaps the same as the
German _Lohngeld_. It means "earnest money," and was used
by the Romans in connection with bargains; also in general
with other real contracts. _Cf._ SMITH, _Dict.
Greek and Roman Ant._, I, 193; BINGHAM, _Orig.
Ecc._, VII, 311; SCHROEDER, _Rechtsgeschichte_, 290,
295; _idem_, _Güterrecht_, I, 39, 55 ff.; HEUSLER,
_Institutionen_, I, 80 ff.; SOHM, _Eheschliessung_, 28;
ZOEPFL, _Deutsche Rechtsgeschichte_, III, 8 ff., 12-14;
DAVOUD-OGHLOU, II, 59 n. 3; LUDLOW, in _Dict.
Christ. Ant._, I, 142-44. "Subarrare" is used in the ritual of
the Greek church for disposing in marriage: see the ritual in
BURN, _Parish Registers_, 141, 142.
[863] SOHM, _Eheschliessung_, 28-32, maintains
this view against SCHROEDER, _Güterrecht_, I, 39,
40, 55, and others, who regard the _arrha_ as a symbolical
payment--a _Scheinpreis_ or _symbolischer Muntschatz_. _Cf._
FRIEDBERG, _Eheschliessung_, 19; "Zur Gesch. der
Eheschliessung," _ZKR._, I, 364 ff.
[864] SOHM, _op. cit._, 33.
[865] _Ibid._
[866] _Ibid._, 34. But FRIEDBERG, _Verlobung und
Trauung_, 8-10, insists on the long survival of the sale-contract.
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