The interpretation of the senatus consultum by the Roman lawyers

(a) Protection of the woman

The senatus consultum Vellaeanum was interpreted and applied with this purpose in mind; in modern parlance, one might say that the Roman lawyers followed a purposive or teleological²¹* approach.

From another angle, however, we find the lawyers displaying a very restrictive tendency, willing to recognize exceptions where the requirements of the senatus consultum had, in a very literal sense, in actual fact been met.^{[787] [788] The common denominator of these situations appears to lie in the absence of a necessity to protect the interceding woman. Hence, for example, decisions such as Paul. D. 16, 1, 24 pr.; "Debitrix mulier a creditore delegata pro eo cui delegata est promisit: non utetur exceptione." Here the woman had incurred an obligation on behalf of, i.e. interceded for, a third party. However, she had been authorized to do so by her creditor by way of delegatio obligandi, which meant a change of creditor and involved a novation. Thus, by assuming the new obligation, the woman got rid of her old one, and this meant that her intercession did not entail a specific risk or danger.}

"Aliquando, licet alicnam obligationem suscipiat niniicr, non adiuvatur hoc senatus consulto: quod turn accidit, cum prima facie quidem alienam, re vera autem suam obligationem suscipiat. ut ecce si... pro fidciussore suo intercedat."^[789]

Here, the woman had interceded on behalf of a third party and therefore, prima facie, acted for the benefit of somebody else. But since this third party was her own surety, she had "re vera" incurred the obligation in her own interest. It was characteristic of their general approach to this enactment that the Roman lawyers looked at the real interest situation rather than contenting themselves with a formal classification of the transaction.^[790]

(b) Protection of the creditor

The lawyers, however, had to be concerned with the protection of the creditor too. To strengthen his position was not problematic as long as that did not affect the woman. According to the senatus consultum, any action against a woman who had interceded was barred by an exception^[791] That left the creditor in a very unsatisfactory position where this intercession had had the effect of releasing the debtor, or of saving the third party in whose interest the woman had incurred her obligation, from assuming any liability himself.

(c) Policy conflict

But the policies of protecting the woman and of avoiding unreasonable consequences for the creditor could clash. That was the case especially where a third party had interceded on behalf of the woman or where the woman had concluded a transaction that was not immediately recognizable as an intercession. This conflict of interests was resolved in favour of the creditor: the exceptio senatus consult! Vellaeani was to be employed only where the creditor had known of the intercessory nature of the woman's transaction (as, for instance, always in the case of suretyship).^{[794] [795] This, of course, limited the applicability of the senatus consultum quite drastically. Yet it was the only means not only of protecting the creditor but also of generally maintaining the creditwor­thiness of women: "Si mulier tamquam in usus suos pecuniam acceperit alii creditura, non est locus senatus consulto: alioquin nemo cum feminis contrahet, quia ignorari potest, quid acturae sint."23u The prospect of being faced with the exceptio even where the creditor had assumed that the woman had acted on her own behalf was not at all unlikely to curtail the willingness of cautious businessmen to grant credit to women, even if the latter did in actual fact act in their own interest.}

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