Exclusio propter dotem: los pactos de renuncia a la legítima futura en el derecho romano

Abstract

In mediaeval times, it was common in Catalonia and indeed in France and Italy to exclude dowered daughters from paternal succession. Exclusio propter dotem ran counter to the principles of Roman law. With the transposition of Roman law it was necessary to safeguard this stumbling block. In Catalonia, recourse to canon law was sought: the sixth decretal of Boniface VIII from 1298 determined that the covenant to waive a dowered daughter was valid if an oath was taken. In France, the development and Romanisation process in relation to said covenant differed in the region of droit non écrit (northern France) from the region of droit écrit (southern France). In the case of the former, custom formed the basis for legitimising the institution in northern France where droit coutumier prevailed; however, in southern France, the region of droit écrit, statutory law influenced by Roman law was in force. In Italy, as with southern France, the municipal statute afforded the legitimising source.