Note 941 — Chapter VII · RISE OF ECCLESIASTICAL MARRIAGE: THE CHURCH ACCEPTS THE LAY CONTRACT AND CEREMONIAL

But Sohm, Eheschliessung, 110, who was preceded by Glück, Güterrecht, 1, 97 ff., contends, against the common interpretation of the maxim consensus facit nuptias, that a merely "formless" consensus not followed by actual wedded life is not sufficient to constitute a Roman marriage. That would be practically a consensus sponsalitius or Roman betrothal. On the other hand, Sehling, Unterscheidung der Verlöbnisse, 7 ff., 138 ff., 157 ff., insists that by the Roman law a formless nuptial contract, whether followed by cohabitation or not, constitutes a binding marriage. Such also is the view of Dieckhoff, Kirch. Trauung, 15; Schubert, Die evangel. Trauung, 4 ff., 11; and Scheurl, Entwicklung, 11. But Scheurl, "Consensus facit nuptias," ZKR., XXII, 269 ff., agrees with Sohm, in effect, though not avowedly. For, while he says that marriage by confarreatio, for example, would be a valid marriage, even if the parties never lived together, yet the Roman law, he points out, does not reveal the evils of clandestine unions, because the formless nuptial promise implied the common wedded life. Cf. also Bierling, "Kleine Beiträge," ZKR., XVI, 288 ff., who criticises Scheurl; Freisen, Geschichte des can. Eherechts, 101 ff.; and Rein, Das röm. Privatrecht (1836), 188, 189.