Habitatio

According to classical Roman law, habitatio was the right to reside in someone else’s house usually free of rent. The right of habitatio was usually granted by will, strictly personal, and could not be transferred to another person. But habitatio could be granted also inter vivos in exchange for money, in one or several payments. What defines habitatio in Roman law and distinguishes it from lease is that the habitator had a “right in rem” (real property right) and therefore a claim that was not restricted to the person who granted him/her the right, but could be raised against anyone.

Habitatio was usually granted for a certain period of time or for life. The imperial Roman jurists such as Gaius, Paulus, and Ulpian understood habitatio as a limited right of usus, not to be confused with usufruct.² Usus and usufruct, according to the Roman jurists, were personal use rights which, however, never turned into ownership of the property. In Roman law usufruct was the right to use or enjoy a thing and without altering or alienating it. It included, however, the right to derive profit from it, for instance, by renting out an apartment, leasing a piece of land, selling the crops, etc. without impairing the substance. Usus was defined as the right to use or enjoy a thing and its fruits, without, however, the right to renting or leasing it out or selling the fruits.³

Habitatio in Roman law followed thus the limited right of usus: The legatee, man or woman, could live in the house together with other persons, be they family members, enslaved household members, workmen, or even a new spouse, for as long as the recipient of the habitatio remained the main resident. But the beneficiary could not rent the property: “Parties who have a right to use cannot lease the premises and give up their residence there, nor can they sell the use of the same.”⁴

While habitatio was originally a personal privilege, Justinian later responded to preexisting practice and extended the legal right of habitatio and assimilated it to usufruct, following an opinion that the second-century Roman jurist Marcellus had already expressed in disputes about the construction of habitatio. From then on, Roman law permitted the grantee either to live in the house, or to let it as a place of residence to someone else: “By a constitution which we have published in accordance with the opinion of Marcellus, and in the interests of utility, we have permitted persons possessed of this right not only to live in the building themselves, but also to let it out to others.”⁵ This constitution published in 530 CE said:

Emperor Justinian to Julian, Praetorian Prefect: As a doubt arose in ancient times, when the usufruct of a house was bequeathed, in the first place (as the instances are similar), whether the right of lodging referred to the use and usufruct or to neither of them, that is to say, to a peculiar right and a special privilege, and whether the person to whom the right of lodging had been bequeathed could afterwards lease the same, or claim for himself the ownership of the property, We, for the purpose of disposing of the disputes of litigants, have removed all such doubts by the following concise opinion. Where anyone has bequeathed a lodging, it appears to Us to be the more humane opinion to also grant to the legatee the right to lease it, for what difference does it make whether the legatee himself remains there, or gives it up to another for the purpose of receiving compensation? This is much more apparent if he left the usufruct of the dwelling, as it gives rise to greater difficulty where the name usufruct is added, for We do not desire that the lodging should take precedence of the usufruct. The legatee should not expect to obtain the ownership of the right of residence, unless he can prove by the clearest evidence that the ownership of the house was also left to him, for then the will of the testator must in every respect be obeyed. We decree that this decision shall apply to all places in which a right of habitation can be established.⁶

Habitatio in Greco-Roman Egypt

The house in Roman Egypt was the center of everyday family life, a location of production and reproduction, and therefore held central symbolic and literal meaning for the social functions of the village and urban family unit.⁷ The guarantee of a right of residence for those members of the family who did not have a proper right of possession of the family home was therefore of the utmost importance. In the Roman papyri, the right of habitatio—or in Greek, enoikēsis—was often granted by will in the form of a legacy from which widows, in particular, profited. While children—daughters as well as sons—were the main heirs and inherited equally in Roman and Greco-Egyptian law, a widow did not inherit from her deceased husband. To protect the widow and give her the option of not having to return to her natal family or remarry, a testator could grant a right of residence in the familial house to his widow. Habitatio did not necessarily encompass the entire house, but could also be limited just to a part or even just a room of a house. This right could extend either for a certain number of years until the children reached majority, or for as long as the widow lived.⁸ Widowhood was a common fate for women in Greco-Roman Egypt, and many experienced it for the first time as early as their twenties.⁹ It was only the demographic transition in the nineteenth century that reduced the numbers of young widows and created the association between widowhood and old age.¹⁰ When children were still minors, widows were even granted an extended usufruct of their late husbands’ estates on condition that they took responsibility for the administration of the property for the benefit of their common children until they came of age.¹¹ In such a situation, the widowed mother stepped into her late husband’s role as the head of the household and experienced a degree of independence usually not granted to women in Greco-Hellenistic and Roman times.

This arrangement, leaving everything to the children with the widow only inheriting a right of residence in the family house, was meant to protect the family house and land from alienation. The same pattern has been described for many other premodern patriarchal societies.¹² The restricted nature of the right of habitatio, that is, the impossibility of leasing or selling the right, makes sense in this context: a widow who wanted to lease or sell her right of residence would introduce a complete stranger into the home that she shared with her children and with other family members from her husband’s side of the family.¹³

Furthermore, if these widows remarried, they lost this privilege.¹⁴ Some widows, particularly those with small children, found themselves in a quandary as a result of this condition: they needed to remarry for financial reasons in order to be able to feed and clothe their children, but if they did, they were no longer entitled to retain their right of residence and to remain the guardians of their own children. The care and guardianship would then regularly go to the father’s closest relatives.¹⁵

The testator leaving his widow a habitatio had in mind—apart from the latter’s well-being—also the interest of his heirs in the family estate. Under Roman law as well as local legal traditions, widows were entitled to receive back the dowry that they had brought with them into the marriage. Since the dowry had often been invested by the husband into the family estate, the heirs were obligated to liquidate enough of their patrimony to return the widow’s portion to her. Assigning to the widow a habitatio, with or without usufruct, made it possible to avoid the liquidation of the family estate. However, had the couple been living in a multigenerational patrilocal household with the husband’s parents, such an arrangement was not sought. The widow received back her dowry, left her children in their paternal family’s care, and returned to her own natal household—often to remarry in due course.¹⁶

For the widow to be able to enjoy the right of habitatio and to manage the patrimony for her underage children, particular living arrangements had to be in place as a precondition for such a legal arrangement to make sense. The deceased husband needed to have been the head of the household, since only in this case would he have been able to grant these rights to his wife. If the family had been part of an extended household, and the husband’s father or his brothers were still alive and all property was held in common,¹⁷ this arrangement would not have been possible.¹⁸ Neither was there a place for an unattached woman in a household consisting of several couples and their children, or a role for such a woman as manager of part of the household’s property.¹⁹

A Right of Residence for the Widow Cleopatra

Let us have a look at a few cases in more detail.²⁰ The first case is a donatio mortis causa, a gift made with a view to the donor’s impending death. The papyrus text was drawn up during the reign of Hadrian in the village of Tebtunis in the Fayum. Anticipating his death, the fifty-year old testator, whose name is lost, promises to his two sons, Ammonios and Herakleides, his estate in two equal shares. His property consisted of one aroura of vineyard and a half share of a house and courtyard held in joint ownership with the testator’s brother, Moschion. The testator wishes:

[N.N.] the elder, son of Didas son of Didymos, his mother being Dioskorous, daughter of Moschion, from the metropolis … fifty years old, with a scar on his upper lip on the left, acknowledges that he has agreed that after his death there shall belong to his two sons, Ammonios and Herakleides, born of his wife Kleopatra, daughter of Dionysios, to be shared by each of them equally, the one aroura of vineyard of the class paying one-sixth, that belongs to him near … formerly belonging to [?] … also called Areios, of the Archistratian tribe and the Althean deme, and also the half share of the house and courtyard that belongs to him and to his brother Moschion in common and undivided; and also whatever else he shall leave … or anything else, together with what shall come to him from any source whatsoever, as well as the household goods that shall be left by him … and the furnishings and what is owed to him in any way whatsoever.

To his widow, the testator left the right to reside on the property for as long as she lived on condition that she did not remarry. She was also to enjoy the services of the enslaved persons in their household and the harvest. His widow, in turn, was under the obligation to manage his property for their sons and to feed and clothe them until they reached majority.

Their aforesaid mother, Cleopatra, daughter of Dionysios … shall from the year in which he dies for as long as she lives and remains unmarried … to reside on the property and be served by the slaves that he shall leave … the said Cleopatra, she feeding and clothing their said children … and the said children shall not have the power on the strength of this document to manage anything … of their mother, so that there shall remain to her the crop and the residence and the service.

Further down in the text we read: “And she [i.e. Cleopatra, his widow] has agreed to all these conditions, as aforesaid, and I shall seal with the seal.”

While the widow Cleopatra seems to have enjoyed the right of residence in the entire house of her deceased husband, another widow received merely the right to reside in one of the rooms of a house whose ownership went to her sons.²¹ In a will dated to 117 CE, Diogenis, wife of Dionysius from Oxyrhynchus, is said to be entitled to choose one of the rooms in the house for herself (ἐνοίκησιν καὶ χρῆσιν χωρὶς ἐνοικίου οἴκο[υ] ἑ̣ν̣ὸς). She could also enjoy the furniture of the entire house and the service of the enslaved persons in their household as long as she fed and clothed the latter properly. The property itself was vested in their children, who would receive it after their mother’s death (μετὰ δὲ καὶ τὴν αὐτῆς τελευτὴν εἶναι τὰ πάντα μου [μόνων τῶν ἐξ ἀλλήλων τέκν]ω̣ν).

The Right of Residence for the Widower Hatres

It was, however, not just widows who could enjoy habitatio in a deceased person’s house. The fact that women inherited equally with their brothers from their parents meant that a considerable share of the land and houses in the Egyptian chora was in the hands of women.²² And commonly enough, it was the wife’s house in which a married couple lived and raised their children. If a woman did not have brothers, she would inherit the paternal estate. In the absence of sons of their own, her parents would make sure to search for a husband for her who would move into their home to take care of them in their old age and to continue the family line.²³ Such an arrangement was particularly interesting for a young man from an impoverished family background or with many siblings at home. If his wife died before him, however, he was left with nothing. Just as widows did not inherit from their husbands, widowers did not inherit from their wives. Everything went to the couple’s children, or to the natal family of the deceased if the couple was childless. So it comes as no surprise that women contemplating death also made sure that their husbands could remain in the family home.

A case like this comes from Oxyrhynchus from during the reign of Domitian.²⁴ Soeris, daughter of Harpochras, leaves to her son Hareotes—or to the latter’s heirs, in case he dies before her—her house and all its appurtenances. Soeris describes Hareotes quite simply as “my son.” No patronymic is given; he is apparently a “fatherless” child, legally designated simply by his mother’s name (l. 10: τοῦ υ[ἱ]οῦ μου Ἀρεώτου χρηματίζοντος μητρὸς ἐμα̣υ̣τῆς τῆς Σοήριος).²⁵ Soeris further includes the condition that her current husband Hatres retains the right of residence for life and receives from his stepson, Soeris’s son, a yearly payment of forty-eight drachmas in silver until three hundred drachmas in silver are reached.²⁶ Soeris also makes provision for her daughter Tnepheros, her child with her husband Hatres. Her daughter was already married and seems to have received her share of the inheritance already in the form of a dowry. On the death of their father, Soeris’s son from a previous union, Hareotes, was to pay an additional forty silver drachmas to his half-sister within thirty days. Furthermore, should Soeris’s daughter separate from her husband and wish to return home, the testatrix made sure to include a right of residence, free of rent, for her daughter in a ground-floor single room at the gatehouse for this eventuality. Widowed or divorced women usually enjoyed a place of recourse in the form of their natal homes.²⁷ Soeris makes sure to consider both of her children from different unions and also grants her current life partner the right to remain in the familial home. A similar case comes from the same city, Oxyrhynchus, a few decades later. Here the testatrix, named Taharpaesis Isidora, leaves all her property to her three children and grants her partner and probably father of her children, among other things, a lifelong right of residence in her home.²⁸

Habitatio for the Mother-in-law

In late summer of 136 CE, the widow Aphrodite married off her daughter Aphroditous and gave her as dowry not only jewelry and clothes, but also a half share of a house in the metropolis Arsinoe and three arouras of land.²⁹ Aphrodite, however, reserves for herself—stipulated in the marriage contract—a right of residence in the house and the usufruct of half of the land as long as she lived. The widowed mother-in-law concluded the marriage contract with her son-in-law. Her daughter already owned the other half of that same house, which she had inherited from her father. The contract now stipulated that the mother of the bride had a right of residence in the entire house. Most likely it was the house the daughter Aphroditous had grown up in, and the mother asked for the right to stay where she had lived during her married life with her husband and raised her children. The mother also reserved for herself the usufruct of half of the three arouras she left her daughter as dowry in the village of Metrodoros.

l. 8–20: Aphrodite declares to have given to her daughter irrevocably as dowry 3 arouras of katoecic land in the village of Metrodoros which belong to her, as proven by two official documents; in addition, the half share of a house with courtyard that belongs as well to her on the main street (plateia street) of the metropolis Arsinoe… . The mother declares to have given this dowry under the condition that she keeps for her remaining lifetime a right of residence and usufruct of the entire house with courtyard on the main street and furthermore the usufruct of half of the three katoecic arouras in the village of Metrodoros. In return the mother of the bride will deliver 4 artabas of wheat for the running year to the couple in Arsinoe.

The marriage contract Aphrodite drew up with her son-in-law thus formed for her some kind of retirement contract for her old age. While she already transferred the ownership of the entire house and the land to her daughter, she reserves herself the usufruct of both.³⁰ Retirement contracts in Greek and Roman Egypt could take on different forms; they could be—as in the case above—part of a marriage contract, a deed of gift, or part of a will. Many old parents would not have felt very comfortable relinquishing all their power and property to their children during their lifetime, since such an act left them with little security by making them dependent on their children’s goodwill and sense of moral obligation. For these reasons, Aphrodite reserves herself the usufruct of house and land and warns her daughter not to contest her mother’s rights.³¹

Habitatio for a Creditor

We also find another form of habitatio recorded among the papyri from Hellenistic, Roman, and Byzantine Egypt that did involve a right of residence, but not granted by will, and not necessarily to a family member.³² A loan contract from Arsinoe, the capital of the Arsinoite nome, dating to the first half of the third century, provides an example.³³ This contract, housed today in the papyrus collection of Princeton University, reads as follows:

In the third year of the Emperor Pius Felix Augustus, Pauni, at Ptolemais Euergetis in the Arsinoite nome. Aurelios Diogenes, aged about seventy and with a scar, acknowledges to Aurelios Serenos, also called Isidoros, son of Olympos, that he has received from him a loan of two hundred drachmas in silver, and in lieu of interest Serenos has the right to inhabit the half part of a house belonging to Diogenes near the village of Philadelphia … from the current month Epeiph of the current year. If the aforesaid sum is not paid back … Serenos will have the ownership of the aforesaid half portion of the house … nor shall Diogenes alienate this property until he pays back the aforesaid loan. Whenever he wishes, Serenos may register this contract in the record-office of Apollinarios … Aurelios Serenos has the right of exaction from Aurelios Diogenes in person and from the half part of the house and from all his possessions as if legal decision had been given. Aurelios Diogenes, veteran, … acknowledges that he has borrowed two hundred drachmas with the right of habitation in lieu of interest on the aforesaid principal as stated above.

Aurelius Diogenes received a loan of two hundred silver drachmas from Aurelius Serenus. Instead of interest rates payable by Aurelius Diogenes, Serenus was allowed to claim the right to take up residence in the half of the house that Diogenes owned near the village of Philadelphia. If Diogenes failed to repay the loan, the ownership of this half house would fall to Serenus. This habitatio arrangement most closely resembles a mortgage agreement, a temporary transfer of an interest in real estate to a lender as a security on a loan of money. If the borrower failed to meet his payment obligations, the property was foreclosed and went to the lender. The amount paid by Serenus to Diogenes can hardly be interpreted as a down payment on purchasing the house. Nor should we see this loan as a kind of security for any damage incurred over the rental period, since the amount borrowed vastly exceeded the price of any interior furnishings. Nonetheless, in our modern understanding of a mortgage, the lender would not move into the house himself, nor would he be in a position to rent the house to someone else. In most cases, it is the debtor himself who lives in the property he has borrowed the money to purchase in the first place.

Habitatio in this form resembles an antichretic loan. Antichresis under Roman law was a contract whereby a debtor pledged real property to a creditor. Instead of receiving interest on the loan, the creditor was allowed to use the pledged property. Even though it conveyed possession but not title, such an arrangement was subject to a property transfer tax.³⁴ However, we might rightly ask why a creditor would be interested in such an arrangement. If he had the money, why would he not buy the house in which he wanted to live? In an antichretic loan arrangement, he even had to pay the property transfer tax without becoming the owner. If he had just rented the place, no property transfer tax would have been due. The reason might be that the Roman authorities in Roman Egypt had limited the amount of interest rates that could be charged to 12 percent per year. The maximum the borrower could exact on a loan of 200 drachmas was thus 24 drachmas per year.³⁵ Moreover, Roman law specified that the total of the interest payable could never exceed the capital borrowed. The right to habitatio for a certain period of time thus allowed circumvention of this restriction.

Let us look at rent prices, which varied, of course, depending on the time, location, and size of the rented property. While a house somewhere in the Arsinoite at the end of the first century was rented for 40 drachmas a year,³⁶ a house with all its appurtenances in the village of Tebtunis was rented in 141 CE for an annual rent of 25 drachmas.³⁷ Rental agreements for houses in the metropoleis speak of considerably higher prices, however. A house in Oxyrhynchus was rented for an annual payment of 200 drachmas in 164 CE,³⁸ and just one upper room with a pigeon-cote was rented in 183 CE at an annual rent of 60 drachmas.³⁹ Another house in Oxyrhynchus was rented in 274 CE at a yearly rent of 400 drachmas.⁴⁰ In 280 CE, another house in Oxyrhynchus was rented for an annual rent of 1,000 drachmas.⁴¹ In 323 CE, a share of the house in Oxyrhynchus was rented for the annual payment of 3,000 silver drachmas.⁴² Twenty-four drachmas as annual rent in the early third century for a house in the metropolis Arsinoe thus seems ridiculously low. The creditor therefore secured a rental deal far below market value, probably at one-tenth of the amount he could have legally enacted on his loan of 200 drachmas. The creditor was probably able to strike this sensational deal because the debtor was in urgent need of cash. Furthermore, if the borrower was not able to repay the loan within the agreed-on time period, the lender even became the owner of the house. For a mere 200 drachmas he would have acquired a house in the metropolis whose actual worth by far exceeded this amount.

Most of the loans were “peer to peer” loans; professional pawnbrokers and lenders played an insignificant role in these transactions. The aim behind these antichretic loans involving a right of residence might be thus to circumvent the law, exacting considerably higher interest rates or even acquiring a house far below market level.⁴³

However, since the recipient of habitatio had to live in the house himself, the creditor could not enter into several loans of this kind. It remains unknown which considerations led late antique lawgivers to change the regulations for previously inalienable habitatio in order to allow the possibility of selling or leasing habitatio rights, but it was certainly creditors who profited from these antichretic loans. Papyrological evidence from the early seventh century CE shows that the recipient of habitatio under a loan was then also allowed to let someone else live in the house and at times even entered into the arrangement with the intention of immediately leasing out the acquired right to a third party. A certain Aurelia Maria rents out an entire house, which she calls her own, to a purple dyer.⁴⁴ The truth was that she just owned two-thirds of it. Just the day before, on October 31, she had received the habitatio of the remaining one-third of the house under an antichretic pledge from her sister. This kind of arrangement had only become possible after the change in the law concerning habitatio.

Synthesizing the Evidence on Habitatio

The overview of the documentary evidence shows that habitatio in Roman and late antique Egypt was a limited right, basically the right of usus but not usufruct. The holders of the right could occupy the house alone or with their dependents. The holders of a habitatio could only live there themselves; they could not lease or sell their right—the right of habitatio was inalienable. Widows did not inherit from their deceased husbands, but were often granted a habitatio, a lifelong right of residence in the familial home. The husband regularly added a condition to the effect that his widow was not allowed to remarry if she wanted to retain this right for the duration of her lifetime. As long as the children were not yet of age, the widowed mother was given the task of administering her deceased husband's estate until her children reached the age of majority. This arrangement—with the widow remaining in the family home and functioning as the trustee of the conjugal financial resources—was, however, only possible if her late husband and his brothers had already divided up their parents’ estate and the couple had thus already established their own household. If the couple had still resided in the husband's family home when he died, the widow often simply received her dowry back and was then faced with the choice of either remarrying or returning, at least temporarily, to her own natal family. According to the view of the time, her children belonged to the paternal family and also remained with the father's family when the mother moved out.

Since sons and daughters had the same inheritance entitlements, a considerable share of the land and real estate in Roman Egypt was in female hands. It thus occurred not rarely that a couple lived in a house that belonged to the wife. These women sometimes granted their widowers a right to remain living in the family home after their deaths. The woman’s heirs, however, were her children. It is understandable that this form of habitatio was designed to be inalienable, since otherwise a complete stranger could have been introduced into a family home.

Some elderly parents also included a right of residence in intergenerational contracts concluded with their children. These contracts enabled the parents to secure a place of residence for their old age while already transferring the property rights to their children during their own lifetime—thereby probably avoiding the payment of the inheritance tax.

In parallel to these situations, however, habitatio, the right of residence, was also used in creditor-debtor arrangements in Ptolemaic, Roman, and later Roman Egypt, a practice that is otherwise not attested in the legal writings on Roman law. The earliest example from the papyri dates to 133 BCE, the latest one to 607 CE. Instead of receiving interest, some creditors preferred to receive a house or apartment rent-free for a fixed period of time from their debtors, with this right of residence ending when the debtor had repaid the loan.

Notes

1I am grateful to José Luis Alonso (Zurich) for his revisions and advice in Roman legal matters.

2Dig. 7.8, concerning use and habitation. Cf. Dig. 39 tit. 5.27 and 32. However, this matter was under discussion among the Roman jurists, where the question was whether habitatio is to be taken as comprising only usus or the entire usufruct.

3E.g. Inst. 2.5.1–2 from 533 CE (transl. J. B. Moyle, The Institutes of Justinian, 5th ed. Oxford: 1913): “A use is a less right than a usufruct; for if a man has a bare use of an estate, he is deemed entitled to use the vegetables, fruit, flowers, hay, straw, and wood upon it only so far as his daily needs require: he may remain on the land only so long as he does not inconvenience its owner, or impede those who are engaged in its cultivation; but he cannot let or sell or give away his right to a third person, whereas a usufructuary may. Again, a man who has the use of a house is deemed entitled only to live in it himself; he cannot transfer his right to a third person, and it scarcely seems to be agreed that he may take in a guest; but besides himself he may lodge there his wife, children, and freedmen, and other free persons who form as regular a part of his establishment as his slaves. Similarly, if a woman has the use of a house, her husband may dwell there with her.” Again, however, this was not undisputed among the classical jurists; it was even discussed whether the usuary could be completely excluded from the fruits.

4Dig. 7.8.8.

5Inst. 2.5.5 from 533 CE (transl. J. B. Moyle, The Institutes of Justinian, 5th ed. Oxford: 1913).

6Given on the eighteenth of the Kalends of October, during the fifth Consulate of Lampadius and Orestes, 530. (CIust. 3.33.13 from 530 CE, trans. S. P. Scott, The Civil Law, XII. Cincinnati: 1932).

7See the contribution of Alston, chapter 7, this volume.

8Cic. Caec. 11; Dig. 22.1.48; 33.2.32.2–4 (house and all contents), 33.2.35 (villa for five years), 33.2.37 (goods until daughter reaches age eighteen). See for usus: Dig. 7.9.11 (house); for fructus Dig 33.2.24 pr.; 33.2.25. Cf. Kreller 1919, 18–19.

9For widows in the Roman Egyptian census returns see Bagnall and Frier 2006, 33-Ar-2 (mother acts as declarant of the entire household for the census officials); 103-Ar-9 (mother is declarant); 117-Ar-1 (lodgers); 117-Ar-5 (mother is declarant); 117-Ar-6 (son is declarant); 117-Ar-7 (son is declarant); 117-Ar-12 (mother is declarant); 131-Ar-12 (mother is declarant); 131-Ar-13 (mother is declarant); 131-He-2 (son is declarant); 145-Ar-1 (mother is declarant); 145-Ar-2 (mother is declarant); 145-Ar-3 (mother and daughter; daughter is declarant); (145-Ar-20: son is declarant); 145-Ar-22 (mother is declarant); 145-Ly-1 (mother is declarant); 159-Ar-10 (son is declarant); 173-Ar-9 (two apparently unrelated widows with children; one widow’s son is declarant); 173-Ar-11 (mother and daughter; daughter is declarant); 173-Pr-4 (son is declarant); 173-Pr-11 (son is declarant); 173-Pr-14 (mother is declarant); 173-Pr-15 (mother is declarant); 173-Pr-17 (son is declarant); 187-Ar-29 (mother is declarant); 187-Ar-34 (mother is declarant); 187-Ar-39 (mother is declarant); 187-Me-1 (mother is declarant); 187-Ox-4 (mother is declarant); 201-Ar-1 (mother is declarant); 201-Ar-8 (mother is declarant); 201-Ar-9 (mother is declarant); 215-Ar-1 (son is declarant); 215-Ar-5 (son is declarant); 243-Ar-1 (mother is declarant); 243-Ar-3 (mother is declarant); 243-Ar-4 (mother is declarant); 257-Ar-1 (mother is declarant); ???-Ar-2 (mother is declarant); P.Oxy.Census (Bagnall et al. 1997): 89-Pt-27 (son is declarant); 89-Pt-28? (son is declarant); 89-Pt-36 (son is declarant); 89-Pt-37 (son is declarant); 89-Pt-42 (son is declarant); 89-Pt-51 (son is declarant). Whether a widow acted as head of a household obviously did not depend on the age of her children or whether or not she had sons. We have widows in their seventies with sons in their fifties who nevertheless filed their census returns as household heads (e.g., Bagnall and Frier 2006, 201-Ar-9). Cf. Huebner 2009; Huebner 2013, chap. 4.

10The census records from fifteenth-century Florence show that one-fourth of the adult female population above the age of twelve was widowed. The model life tables that Richard Saller adduces for Roman society certainly err on the positive side when they claim a rate of more than 90 percent for women between the ages of twenty-five to fifty-five (Saller 1994, 49, table 3.1.b: Female, “ordinary,” Level 3 West).

11Cf. P.Cair.Masp. 2.67156 (570 CE); Yiftach-Firanko 2006. Cf. Dig. 7.2.8 (Ulpian); 33.2.37 (Scaevola). For mothers in the Greek East serving as guardians of their minor children, cf. Evans Grubbs 2002: 248, 254–60. Yiftach-Firanko sees in this arrangement not a new entity after the husband’s death but a continuation of the wife’s rights as “mistress” (kyrieuousa) of the family estate, which she had already enjoyed during her husband’s lifetime (Yiftach-Firanko 2003, 122–23, 242–43).

12Agmon 2006, 162, for late Ottoman Palestine; Fridell 2003, 156, for twentieth-century Iran; Mann 1987, 44, for ancient China (Qing dynasty); Sommer 2000, 191, for late Imperial China; Wolf 1981, 140; and Holmgren 1985, 2, for nineteenth- and twentieth-century China. Cf. in general Palmore 1987, 101–2; Goody 1990, 202–3.

13Huebner 2013, chaps. 4 and 5.

14CPR 6.1 (125 CE); P.Diog. 9 (186–224 CE); SB 8.9642 (11–38 CE); Chr.Mitt. 306 (155 CE); cf. Dig. 35.1.62.2 (Clementius).

15Huebner 2009.

16Huebner 2009; Huebner 2013, 93–106.

17Cf. P.Oxy. 34.2713 (297 CE): “For all that was left to us by the foregoing inheritance—being one household and one family—was in that very house in which they lived in partnership, I mean because the slaves and lands and household and moveable goods were all held in common.”

18Cuno (1995, 491) notes for instance for nineteenth-century Egypt that households were managed by a widow only when the couple had been living in a nuclear household before the husband’s death and no other male adult was available within the household to take over the headship. Likewise in traditional India, a wife could only be entrusted with managing her late husband’s household when her husband did not own property in common with his joint family (Altekar 1959, 261). Breschi comes to the same conclusion for nineteenth-century Italian sharecropping families who lived predominantly in joint households: if a couple was still living with the husband’s family, the likelihood that his widow would remarry after his death was significantly higher than if the couple had been living on their own (Breschi, Manfredini, and Fornasin 2007).

19Cf. Huebner 2013, 102–3.

20SB VIII 9642 = P.Mich.inv. 5579 from 117/118 CE.

21P.Oxy. 3.489.

22Cf. Rowlandson 1998. For Roman Republican times, see Bannon 1998, 29–30; on late Republican and early Imperial Italy, Garnsey 2004, 112–13; Huebner 2013, 50–53. For later Roman society, see Tate 2008, 1–36; for inheritance rights of Roman daughters to an equal share, see Thomas 1991, 134. For Roman Egypt, see Huebner 2013, 123–24.

23Huebner 2007; Huebner 2013.

24P.Oxy. 1.104 from 96 CE. See for a detailed discussion, Steinsky 2004, 281–94.

25On “fatherless” children in Roman Egypt, see Malouta 2009, 120–38.

26Soeris owed her husband Hatres six hundred silver drachmas and Hareotes was supposed to repay to her husband half the money, i.e., three hundred drachmas (l. 17–22).

27Huebner 2013, 100–103.

28P.Köln 2.100 after 24. Aug. 133 CE. See for a discussion, Klamp 1968, 81–150; Rowlandson, 1998, no. 170.

29SPP 20.5 = CPR 1.24 from 136 CE.

30Cf. for intergenerational contracts Kreller 1919, 204–7; Pestman 1995, 80–81; Huebner 2013, chap. 5.

31We find multiple parallels among the surviving papyri from the Roman Period. In a comparable case, a certain Hermione from early second-century Oxyrhynchus bestowed on her daughter her property in exchange for a pension until her death (ἡ δ' ἵνα μὴ καὶ ζω̂σα ἡ μήτηρ τούτων στερη̂ται δίδωσι ἀντὶ τόκου κατ' ἐνιαυτὸν τὴν χορηγίαν ταύτην καὶ του̂το αὐτὸ γέγραπται κατὰ τὸ κοινὸν ὁμολόγημα.) (P.Oxy. 3.472 from ca. 130 CE; cf. Kreller 1919, 365). In another document from 244–48 CE, a father during his lifetime transfers his complete property to his two sons. The relevant part of the document is heavily destroyed and not readable, but Kreller assumes that we have here similar provisions for the father’s maintenance during the last years of his life (Grenf. 2.71 from 244–48 CE; cf. Kreller 1919, 212–13). In a very late sixth-century papyrus, a mother transfers to her son the right of property over some land but stipulates that she would retain the usufruct as long as she was alive (P.Lond. 1044; cf. Kreller 1919, 214).

32BGU 4.1115 (from 133 BCE); P.Lond. 3.1168 (from 44 CE); P.Oxy. 14.1641 (from 68 CE); P.Mich. 12.635 (from 71 CE); P.Mich.inv. 87 (from 74 CE); P.Mich. 10.585 (87 CE); P.Hamb. 1.30 (from 89 CE); P.Oxy. 8.1105 (81–96 CE); BGU 1.260 (from 90 CE); P.Oxy. 1.104 (from 96 CE); SB 5.7664 (from 109 CE); P.Oslo 3.118 (from 111–112 CE); P.Mich. 11.605 (from 117 CE); P.Mich. 11.625 (from 121 CE); SB 22.15849 (from 121 CE); SB 28.17056 (from 126 CE); P.Cair.Masp. 2.67131 (from 566/7 CE); SB 1.5285 (607 CE). Cf. Taubenschlag 1944, 172; 316; Claytor 2013.

33P.Princ. 3.144 from 219/20 CE or 239/40 CE.

34SB 28.17056; SB 22.15849; P.Oslo 3.118; P.Mich. 11.625. Cf. Manigk 1910; Taubenschlag 1944, 216–20; Kupiszewski 1974, 133–49; Rupprecht 1992, 271–89. Antichretic loans were also popular in ancient Mesopotamia, but there they usually involved enslaved people or land rather than a right of residence (Westbrook 2001, 329–33; Lipiński 2000, 587).

35Bogaert 2000, 135–269.

36P.Mich. 14 678.

37P.Tebt. 2.372.

38P.Oxy. 3.502.

39P.Oxy. 8 1127.

40P.Oxy. 7.1036.

41P.Oxy. 14.1694.

42P.Oslo 3.138.

43Cf. Modrzejewski 1997, 118.

44SB 1.5286. See also Urbanik 2013, 167–68.

Works Cited

Agmon, I. 2006. Family and Court: Legal Culture and Modernity in Late Ottoman Palestine. Syracuse, NY: Syracuse University Press.

Altekar, A.S. 1959. The Position of Women in Hindu Civilization, from Prehistoric Times to the Present Day. Delhi: Motilal Banarsidass.

Bagnall, R.S., and B.W. Frier. 2006. The Demography of Roman Egypt. 2nd ed. Cambridge: Cambridge University Press.

Bagnall, R.S., B.W. Frier, and I.C. Rutherford. 1997. The Census Register P.Oxy. 984: The Reverse of Pindar’s Paeans. Papyrologica Bruxellensia 29. Brussels: Fondation Égyptologique Reine Élisabeth.

Bannon, C.J. 1998. The Brothers of Romulus: Fraternal ‘Pietas’ in Roman Law, Literature, and Society. Princeton: Princeton University Press.

Bogaert, R. 2000. “Les opérations des banques de l’Égypte romaine.” Ancient Society 30: 135–269.

Breschi, M., M. Manfredini, and A. Fornasin. 2007. “Remarriage in a Pretransitional Italian Community.” Continuity and Change 22: 407–28.

Claytor, W.G. 2013. “Loan of Wheat with Antichresis.” Archiv für Papyrusforschung und verwandte Gebiete 59: 138–42.

Cuno, K.M. 1995. “Joint Family Households and Rural Notables in Nineteenth-Century Egypt.” International Journal of Middle East Studies 27: 485–502.

Evans Grubbs, J. 2002. Women and Law in the Roman Empire. A Sourcebook on Marriage, Divorce and Widowhood. London: Psychology Press.

Fridell, E. 2003. “Tribal Enterprises and Marriage Issues in Twentieth-Century Iran.” In Family History in the Middle East: Household, Property, and Gender, edited by B. Doumani, 151–71. Albany, NY: SUNY Press:

Garnsey, P. 2004. Cities, Peasants, and Food in Classical Antiquity: Essays in Social and Economic History. Cambridge: Cambridge University Press.

Goody, J. 1990. The Oriental, the Ancient, and the Primitive. Cambridge: Cambridge University Press.

Holmgren, J. 1985. “The Economic Foundations of Virtue: Widow-Remarriage in Early and Modern China.” Australian Journal of Chinese Affairs 13: 1–27.

Huebner, S.R. 2007. “Brother-Sister Marriage in Roman Egypt: a Curiosity of Humankind or a Widespread Family Strategy.” Journal of Roman Studies 97: 21–49.

Huebner, S.R. 2009. “Callirhoe’s Dilemma: Remarriage and Stepfathers in the Graeco-Roman East.” In Growing up Fatherless in Antiquity, edited by S.R Huebner and D.M. Ratzan, 61–82. Cambridge: Cambridge University Press.

Huebner, S.R. 2013. The Family in Roman Egypt. A Comparative Approach to Intergenerational Solidarity and Conflict. Cambridge: Cambridge University Press.

Huebner, S.R. 2014. “ ‘It is a difficult matter to be wronged by strangers, but to be wronged by kin is worst of all’—Inheritance and Conflict in Graeco-Roman Egypt.” In Inheritance, Law and Religion in the Ancient and Medieval Worlds, edited by S.R. Huebner and B. Caseau, 99–108. Paris: Peeters.

Justel, J.J. 2015. “An Unpublished Nuzi-Type Antichretic Loan Contract in the British Museum.” Iraq 77: 129–42.

Klamp, D. 1968. “Das Testament der Taharpaesis: Eröffnungsprotokoll eines griechischen Testaments: P. Colon. inv. 2382.” Zeitschrift für Papyrologie und Epigraphik 2: 81–150.

Kreller, H. 1919. Erbrechtliche Untersuchungen auf Grund der graeco-ägyptischen Papyrusurkunden. Leipzig: B. G. Teubner.

Kupiszewski, H. 1974. “Quelques remarques sur les vocabula ἀντιχρήσις, ἄρῥα, παραφήρνα dans le Digeste.” Journal of Juristic Papyrology 18: 133–49.

Lipiński, E. 2000. The Aramaeans: Their Ancient History, Culture, Religion. Leuven: Peeters.

Malouta, M. 2009. “Fatherlessness and Formal Identification in Roman Egypt.” In Growing Up Fatherless in Antiquity, edited by S.R. Huebner and D. M. Ratzan, 120–38. Cambridge: Cambridge University Press.

Manigk, A. 1910. Gläubigerbefriedigung durch Nutzung: ein Institut der antiken Rechte. Berlin: Vahlen.

Mann, S. 1987. “Widows in the Kinship, Class, and Community Structures of Qing Dynasty China.” Journal of Asian Studies 46: 37–56.

Modrzejewski, J.M. 1997. The Jews of Egypt: From Rameses II to Emperor Hadrian. Princeton: Princeton University Press.

Palmore, E. 1987. “Cross-Cultural Perspectives on Widowhood.” Journal of Cross-Cultural Gerontology 2: 93–105.

Pestman, P.W. 1995. “Appearance and Reality in Written Contracts: Evidence from Bilingual Family Archives.” In Legal Documents of the Hellenistic World, edited by M. Geller, H. Maehler, and A. Lewis, 79–87. London: Warburg Institute.

Rowlandson, J. 1998. Women and Society in Greek and Roman Egypt: A Sourcebook. Cambridge: Cambridge University Press.

Rupprecht, H.-A. 1992. “Zur Antichrese in den griechischen Papyri bis Diokletian.” In Proceedings of the XIXth International Congress of Papyrology, edited by S.H.S. El-Mosalamy, 271–89. Cairo: Center of Papyrological Studies, Ain Shams University.

Saller, R.P. 1994. Patriarchy, Property and Death in the Roman Family. Cambridge: Cambridge University Press.

Sommer, M.H. 2000. Sex, Law, and Society inLate Imperial China. Stanford, CA: Stanford University Press.

Steinsky, P. 2004. “Ein Beitrag zum Erbrecht des Mannes nach seiner Ehegattin.” Revue Internationale des droits de l’Antiquité 51: 281–94.

Tate, J.C. 2008. “Inheritance Rights of Nonmarital Children in Late Roman Law.” Roman Legal Tradition 4: 1–36.

Taubenschlag, R. 1944. The Law of Graeco-Roman Egypt in Light of the Papyri. New York: Herald Square Press.

Thomas, Y. 1991. “The Division of the Sexes in Roman Law.” In A History of Women from Ancient Goddesses to Christian Saints, edited by P. Schmitt Pantel, 83–137. Cambridge, MA: Harvard University Press.

Urbanik, J. 2013. “Tapia’s Banquet Hall and Eulogios’ Cell: Transfer of Ownership as a Security in Some Late Byzantine Papyri.” In New Frontiers: Law and Society in the Roman World, edited by P. J. du Plessis, 151–74. Edinburgh: Edinburgh University Press.

Westbrook, R. 2001. “Conclusions.” In Security for Debt in Ancient Near Eastern Law, edited by R. Jasnow and R. Westbrook, 327–40. Leiden: Brill.

Wolf, A.P. 1981. “Women, Widowhood and Fertility in Pre-Modern China.” In Marriage and Remarriage in Populations of the Past, edited by J. Dupâquier, E. Hélin, P. Laslett, M. Livi-Bacci, and S. Sogner, 139–47. London: Academic Press.

Yiftach-Firanko, U. 2003. Marriage and Marital Arrangements. A History of the Greek Marriage Document in Egypt. 4th Century BCE—4th Century CE. Munich: C.H. Beck.

Yiftach-Firanko, U. 2006. “Spouses in Wills: A Diachronic Survey (III BC-IV AD).” Journal of Juristic Papyrology 36: 153–66.