The policy of the senatus consultum

But what was this policy underlying the senatus consultum Vellae- anum? According to Fritz Schulz, it was "an outspokenly reactionary enactment in conformity with the general attitude of the Senate which at that period was the centre of reaction".^[765] Since the time of the Punic wars the increasing emancipation of women^[766] had led to a deplorable decay of the good old mores maiorum, and the Senate now tried to reverse this development by preventing women from indulging in business transactions and by bringing them back to their proper place, which, according to traditional opinion, is, of course, at home.^[767] But even though some of the senators may indeed have thought so, the predominant intention of the enactment was a less sinister one: if the senate took "intercedere" to be a matter for men only ("virile officium"), this seems to have been primarily an assessment (possibly a paternalistic one) of what was in the women's best interest.

In other words, the senatus consultum was designed to be an instrument of protection, and in that sense a privilege—or, in the words of Hugo Grotius: a "voordeel" for "vrou-menschen".^[768] This appears from the enactment itself^[769] and is also, for instance, borne out by the way in which the condictio was handled: where a woman had actually performed what she had promised in violation of the senatus consultum, and had done so in full knowledge of the legal position, she was not able to claim her performance back.^[770] Obviously, under these circumstances, she did not need to be protected by the law. Thus, there was no necessity for the lawyers to deviate from the normal rule that no enrichment claim can be brought where the person performing knew that he or she was not bound to effect the performance.^[771]

However, this way of looking at the enactment raises two questions: why did the enactment relate to women only, and why did it prevent women from "intercedere" rather than, for instance, from incurring obligations in their own interest too? The answer is to be found in what the Roman lawyers described as sexus imbecilhtas,^[772]"⁷ inflrmitas^[773] or fragilitas feminarum.^[774] Even though the realities of Roman life had, to a certain extent, left behind the stage at which women were "content to sit at the distaff or the weaving loom",^[775] and even though a lawyer such as Gaius — albeit a good hundred years later!—regarded the common idea of levitas animi feminarum as more specious than true,^[776] these arguments should not simply be discounted as rhetorical phraseology or the professorial wisdom of reactionary philistines.^[777] As a rule, it was the paterfamilias who administered the property of the family, and as a result of this and of tutela mulierum, the average Roman woman did in fact lack business experience. That made it particularly difficult for her coolly to assess the risks involved in those transactions which did not immediately affect her own affairs.

The senatus consultum Vellaeanum dealt with situations where the woman acted in the interest of somebody else; this third party was the "true" debtor, who was to be ultimately responsible for the debt incurred. Thus, the woman could easily be tempted to think of her own obligation as a mere formality which she would never be required to fulfil. Emotionally inclined to rush to somebody else's help when required to do so, acting with undue confidence in this other person's ability and readiness to honour his promise, unable, especially, to withstand the importunacy of their husbands or friends, and generally prone to be influenced by unscrupulous or well-meant but unsound advice—so one probably thought—women tend to be somewhat frivolous, over-optimistic and reckless of their own interests. The danger therefore existed that they would all too readily bind themselves for others (pro aliis reas fieri), and it was this specific danger that the Senate set out to combat.^[778] ^{^[779] 3.}

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

The policy of the senatus consultum

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