Lecture
Engagement (also collusion, engagement, handshaking ) - a preliminary contract of marriage (Latin mentio et repromissio nuptiarum futurarum - the definition of the Roman jurist Florentin), which had previously and retained in part still not only domestic, but also legal.
The origin of the betrothal must be attributed to the moment when the payment of the price for a girl ceased to be accompanied by the immediate issuance of her fiancé or head of his family, and the marriage broke up into several separate everyday rituals, religious ceremonies and legal acts. Unlike the wedding (solemn transfer of the girl), the betrothal, from now on, becomes a contract in which the heads of the bride and groom’s families finally agree to marry the latter, establish its conditions, exchange real or symbolic security for their agreement (deposit, arrha, which usually there was a ring) and perform other solemn actions, which generally accompanied the ancient treaties (handicrafts, litky, prayer, etc.).
See also: Arra
In this form, the betrothal gets the value of the grounds for marriage ; the wedding is only an act of execution of the contract. Hence the ancient result of betrothal - the enforcement of a marriage or the payment of a penalty, which was generally subject to non-performance of contracts.
In the further development, when the agreement during the wedding, as a more secure freedom of marriage, begins to give more and more importance, the legal role of engagement gradually fades into the background, and it becomes an agreement that has no direct influence on the independent act of the wedding , the strength of which is already in a special agreement (lat. consensus facit nuptias ), and not in the previous betrothal. Only some of the side obligations, which are not in themselves related to the essence of marriage, are now the last to be conditional.
In the later Roman law (we have no information about the earlier one), the betrayal passed on to this last stage, although it still retains many remnants of the old view. Engaged to commit each other loyalty; the groom gets the right to a lawsuit about the offense of his bride by outsiders; a bride for violation of chastity is punished the same way as a wife for adultery; between the close relatives of both parties are established as if the relationship of kinship. Breaking the old betrothal and entering into a new one with another person leads to infamy, but the parties do not receive a claim for marriage or a right to a penalty for non-performance of the contract. The penalty in this case, the Romans were generally considered opposed to "good morals."
The civil law consequences of the dissolution of the betrayal were reduced only to the loss of arr or, for the party that received it, to double it, as well as to the return of gifts received from each other. The latter persisted, however, for the bride, if the betrothal was sealed with a kiss. The household value of betrothal in Rome was apparently more legal.
In ancient German law, betrothal had the meaning of the necessary moment of marriage. It was a contract of buying power over a wife from the head of her family; His failure violated the interests of the latter. According to some barbarous rights, therefore, marriage without a betrothal was not only punished, but also invalid (the wife may be demanded back by her father, her children are illegal and deprived of inheritance); where he was valid, he was a marriage without mundium.
A single betrothal was not enough to complete the marriage; For legal and contractual reasons, it could have been terminated, but termination for illegal reasons was punishable by lawful or contractual penalty; the marriage of the betrothed to another person was terminated, and he pledged to be married in accordance with the terms of the old betrothal. The betrotheds were obliged to mutual loyalty, the violation of which was adultery.
The Western Church, bringing with it the Roman rule of marriage: Latin. consensus facit nuptias , for a long time could not decide at what point the time of the effect of this rule in the German household method of marriage; the introduction of the Roman order would violate the well-established practice in life. Therefore, some canonists supported the decisive importance of the engagement and saw the wedding as the completion of the engagement. According to this view, betrothal, even secret, if it later passed into marital cohabitation, was considered legal marriage (Gratian’s opinion). Others, in conjunction with decisive significance for the betrothal, broke it into two concepts: lat. sponsalia de futuro and lat. sponsalia de praesenti (engagement for the sake of a future marriage and engagement for the sake of the marriage that is performed immediately), according to the words being pronounced by the spouses: accipiam te in meum maritum or meam uxorem - and accipio etc. Only the second betrothal entailed all the consequences of marriage.
At the end of the 12th century, Pope Alexander IV introduced the second doctrine into general practice: out of two marriages concluded by the same person by different types of sponsalia, the one that was concluded for the direct fulfillment of marriage had the advantage. According to the rules of the Trientsky Cathedral, the sponsalium de praesenti finally supersedes the meaning of the sponsalii de futuro: the latter, in French law, turns into an agreement on the property relations of the spouses. At the first stages of the development of the Protestant church, the old Germanic view of engagement, which lost little of its original meaning and turned into a contract on the conditions of marriage, comes to life again. Luther teaches that the solemnly perfect betrothal has the consequences of legal marriage. On this basis, many of the German legislation until recently, attached great importance to the betrothal: it could be terminated only by a decision of the consistory or a court sentence. Unauthorized termination led to a claim for coercion to marry, carried out directly, by forcible wedding, or mediocre, by fine or arrest.
Other laws allowed and partly allow now, until the new all-German code of laws came into force, to recover penalties, to pay property losses and to return gifts. Cohabitation with a betrothed, if it had a consequence of pregnancy, led to the recognition of the bride’s rights as a legal wife, despite the groom’s refusal to marry. The last rule, in an even stricter form, was retained in the Russian Empire in Eastern Law. According to art. 158 sv. places knot., “fornication between betrotheds gives a seduced bride the right to ask for marriage. If, upon acknowledging the request of her substantive, it is decided to make the marriage, and meanwhile the groom, despite not starting to commit it within three months, then the subject court, in the case of the bride’s special request, should declare her divorced married wife with her, with the provision to search for the relevant rights of the secular court. "
The newest German law denies a lawsuit to marry and prohibits penalties for violation of the betrothal. For cohabitation with a betrothed, not resulting in marriage, there is a fair remuneration. Departing from the engagement without an important reason is obliged to reimburse the costs incurred by the other party in anticipation of marriage, and the damages that the other party suffered from their dispositions on property made in view of the marriage. Gifts are returned on the basis of claims of unlawful enrichment.
In the ancient Russian law, like the German one, the contract of betrothal belonged to the most important role in entering into a marriage: it bears the same character of purchase here and leads to the obligatory conclusion of marriage. Later, it is strengthened by the establishment of a penalty (“charge”) and the making of a row record , giving the right of action to marry.
In the customary law of the peasantry of the late XIX century, this view is held, in many places, with full force. The peasants see the main force of marriage as a civil contract, which has preserved numerous remnants of the bride's purchase; the contract is concluded with symbolic rites (handicrafts, casts, etc.) and is provided with penalties, makings and pledges; the refusal of betrothal is considered a dishonorable affair, which must bring to the culprit both the heavenly and the earthly punishment, in the form of collecting expenses, gifts, payment for dishonor, and sometimes - criminal punishment. In many localities, and now the betrothed begin to lead a marriage life before the wedding. The ecclesiastical outlook in ancient Russia adapted itself to the popular one in the sense that it consecrated the blessing of the church with the betrothal, which was often performed long before the marriage, and recognized its indissolubility; but the church saw the decisive moment in the marriage in the wedding, for the strengthening of which in the life of the church strenuously fought.
Peter the Great entered into a decisive struggle against the popular understanding of the role of betrothal, which led to many abuses and annihilated the free will of the spouses in marriage, especially in cases of the betrothal of minors. In 1702, he declared religious betrothal optional and destroyed monetary liabilities and penalties, which were appointed in line records; the latter received from that moment the value of simple contracts on dowry. More than once, however, even after Peter the consistory, complaints of violation of betrothal were considered and the offender was forbidden from marrying another person. This happened after 1775, when the Holy Synod ordered to perform church engagement at the same time as the marriage and, therefore, destroyed the betrothal as an independent part of marriage (there were cases of marriage being forbidden on the basis of a promise to marry another).
The current Russian law completely denies the validity of the betrothal. “A promise to marry has a purely moral character and can be freely changed at any time before the marriage ... A promise to marry cannot be conditional on any obligation, cannot be subject to a civil deal and does not entail property consequences in the event of failure to enter into marriage. Refusal from the word or promise made by the bridegroom, bride or their parents, as well as failure to notify about the rejection of the word or promise does not give the right to claim compensation for damages incurred in preparing for the wedding "- this is a well-established, on the basis of Russian laws, view Senate (Dec. 69/292, 70/403 , 71/761, 77/230, 89/124). Many Russian lawyers find this point of view unfounded and want to establish rules similar to those adopted by the all-German civil code (IG Orshansky, Efimenko, Dashkevich), referring to the popular belief and to the injustice of imposing damages resulting from a violation of the promise, to the side that stayed true to her word. But, thus defending the property benefits of the injured party, they forget about the personal right of the betrothed to marry only with such a person with whom, in his opinion, he can find happiness. Any monetary claims related to the dissolution of the betrothal are an indirect compulsion to enter into marriage, especially in the lower, poor classes of society, and it is absolutely impossible to eliminate such a nature of the claim for damages, contrary to the opinion of Orshansky. Such a claim can, therefore, be recognized only in the case of malicious use, under the pretext of a future marriage, of the property of the betrothed and his relatives.
V. H. The betrothal (churches) - the rite preceding the wedding in the Christian sacrament of marriage. This ancient Russian name derives from the word hoops, meaning in this case rings or rings, the presentation of which to the spouses constitutes an essential part of the ceremony, or, more likely, from The composition of the ceremony of joining hands of marrying. In the Greco-Roman Empire, from the earliest times of Christianity, the betrothal of Christians was the same civil-legal act, contract, like that of the pagans.
Naturally, however, that Christians, accustomed to do everything with a church blessing, could attach special prayers performed by the clergy to the civil law act. Whether these prayers were a matter of personal arbitrariness of the spouses or an indispensable church affiliation of a civil marriage contract cannot be accurately determined; the rule of the 11th Ancyra Cathedral (314), the Pope Syricius, a contemporary of John Chrysostom (in the Epistle to Himeria), and the 98th rule of the VIth Ecumenical Council testify only to the fact that if the engagement was performed by the church, it was inviolable and was equally valid with a civil marriage contract. Constantinople Cathedral 1066–67 he equalized church engagement with civil marriage, so that if the betrothed entered into the first marriage, but not with the persons with whom they were engaged, they were already recognized as second marriage.
Under Emperor Alexey Komnin, for the full establishment of a marriage union, not only the wedding, but also the church engagement was made mandatory , along with and simultaneously with a civil contract. Until the 12th century, church engagement was often performed long before the wedding, sometimes at the age of seven. A written statement of the rite of betrothal in the Orthodox Church does not rise earlier than the eighth century. (“Barberin list”, containing only two short prayers and not having a third, extensive prayer of the current order, neither litany nor the words: “the servant of God is engaged ...”, “the servant of God is engaged ...”). In the crypto-Ferrara list (XIII century) there is already the current beginning of the order, and the present first litany, putting on rings to those engaged and pronouncing the words: “the servant of God is engaged”, etc., with all the present instructions of the priest’s actions during the ceremony. In the XV century. the rite of engagement is set forth by Simeon of Thessalonica (it does not have our third prayer; the putting on of the rings takes place after the first prayer). In Metropolitan Cyprian's (The Fourths Servant), (XIVth century), there are no words: “the servant of God is engaged”.
Regarding the rings of Simeon of Thessalonica, it is said that an iron ring is worn to the bridegroom, as a sign of “the strength of the husband”, and the bride — gold, as a sign of “her tenderness and integrity. In the Russian church, from 1775, the betrothal began to unite with the wedding, immediately preceding it (St. Law. No. 14351), although his order in the "Trebnik" is still printed separately. Only for persons of the Imperial family, when they enter into marriage with foreign persons, the betrothal is performed separately from the wedding, and can even be performed in absentia. According to the "Book of Traders", the bridegroom gives the bride a gold ring - as a sign that he gives her the right to manage the property, and the bride gives the bridegroom a silver one, as a sign of her purity. Now, this rule does not hold and both rings are usually the same metal. Of the countless rings, which were among the ancient Christians, apparently, in much more use than among the pagans, and collected by archaeologists during excavations in the tombs of Rome, a significant part is recognized as engagement rings. In the city of Perusia, amethyst is shown, which, allegedly, was in the marriage ring of the Most Holy Theotokos. According to Baronius, this ring is recognized by St.. Anne in Rome.
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Interpersonal relationships
Terms: Interpersonal relationships