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Customary Law in the Aegean

      Εθιμικό δίκαιο στο Αιγαίο κατά τους Νεότερους Χρόνους (5/3/2006 v.1) Customary Law in the Aegean (5/4/2006 v.1)

Author(s) : Fragouli Dimitra (9/10/2005)
Translation : Dovletis Onoufrios (3/23/2007)

For citation: Fragouli Dimitra, "Customary Law in the Aegean", 2007,
Cultural Portal of the Aegean Archipelago

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1. Introduction

Customary law in the Aegean had been a major regulatory factor for the function of local societies until recently. Customary regulations had in some cases been written down, either as communal rules on certain practical matters of people’s lives or – later on – as literary texts regulating in detail communal administration, transactions and the function of island communities in general.

If someone attempted finding a common denominator for the Aegean, they would be surprised at the number and variety of forms customary practices took. They would find a mosaic of written and unwritten laws, created by legislations in force at the same time (e.g. Christian and Islamic or Ottoman and Venetian), their tendency to outrun one another and their interaction.

2. Notaries, community and transfers

During Ottoman rule, several island communities kept an organized notaries system, a result of the Venetian and Genoese influence. This system served both the people and the communities of the islands. It had to do with the institutionalized tradition of islanders appealing to the notary in order to bequeath, transfer, sell, give as a gift or trade any part of their real estate.

On the other hand, residents’ assets were under the superintendence of the community, so that it could put taxes imposed by the Ottoman authorities. Islanders established thus their assets and could therefore face any possible challenges or claims.

Under these circumstances, men and women appeared to be selling, buying and transferring in general their real estate in any way. Save transfers pertinent to endowment and heritage, real estate could also be transferred when bought or traded with another landed property or asset.

2. 1. The institution of favoring (protimisi)

The institution of favoring was decisive for the formation and formation of landed property in the Aegean. It was followed with consistency and was officially annulled with a law of the Greek state only in 1856.

According to the favoring law, in cases of selling landed property, that property could not be freely transferred to anyone. In contrast, relatives of the owner (prosimi or idiki) could be favored if they wanted to, as well as those with landed property adjacent to this asset (symplii). If not, the owner could sell his estate to anyone interested.

Favoring was the way to avoid fragmentation of property and unify those already fragmented. Besides, it’s notable that recorded purchases and trades covered up transfers within family boundaries. Therefore, they followed the favoring law in order to avoid fragmentation, since all children were entitled to the heritage and properties were thus fragmented into small pieces.

3. Family Law

Without overseeing significant differentiations of each place, the following are the common characteristics recorded among Aegean islands: a distinct separation of the parents’ lineages, name transfers so that both sides could be pleased and the power of settling at the mother’s house or at a new one later on combined with local inbreeding within distinct social groups and with the endowment of the parents’ house to the first-born daughter or the others as well.

3. 1. Property transfers during marriages

In the past, the variety of endowment practices was an essential difference among residents of different islands or among social groups of the island itself. Although the institution of dowry is not always easily discerned from other inheritance strategies, it has been a part of certain economic and social structures in societies of the past, while there are also peculiarities in clarifying the term from one time to another and from place to place.

In matters of endowment, there have been local differentiations on the Aegean islands. For instance, according to customary law, dowry on many islands could be given not only to girls but also to boys. The influence of the ByzantineHexabiblos law book has also been noted, despite local customary adaptation and latter reformations. In particular, this refers to stipulations of the Byzantine and post-Byzantine law on the matters of children’s inheritance rights, as well as to those allowing a special treatment of the parents towards some of their children, so that latter-born ones could also have what we call legal share (mandatory heritage succession favoring close relatives of the devisor).

Dowry has been defined as “transfer of assets from the bride’s family to the newly wedded couple’s property” and “apportioned property transfer or a kind of heritage before the parents’ death”. The latter is more suitable for island populations.

They would often transfer residences (at villages or the country), gardens, land and everyday objects (clothing, household utensils). Giving money as dowry was not common, though attested mostly in the second half of the 19th century. Even in the 20th century though, it was considered to undermine heritage practices that had effectively contributed to preserving family and social coherence.

From the late 19th century on, it’s more common having both parents contributing to the endowment. This seems to confirm the idea that only when girls got married they could have their entire share of the parents’ property.

After getting married, women owned their dowry, since this way they balanced out their minor role within family and society. The dowry could not be sold without the wife’s consent, although it was the husband who had the usufruct of the dowry assets throughout his life. In cases of prodigal administration though, he had to make up for the loss with assets of his own.

Husbands frequently made what we call “prenuptial donation” towards their future wives. This belonged to the bride both after the nuptials and even after their marriage ended. Prenuptial donations, which we also find in the Byzantine and post-Byzantine legislation, in many marriage contracts of the Ottoman period counterbalanced the dowry (namely, the groom’s family offered something too) and were typically equal to it.

Marriage contracts came within the Church’s jurisdiction. On southeastern Aegean islands, we see that marriage contracts, the eglavi (from a verb meaning “to receive”), were made by the parish priest or the notary of the elders, each time according to the local communal administration regime of Christian populations. Other close relatives as well, mostly the bride’s brothers, often endowed the bride or the groom with the eglavi. Along with it, they also signed the gerontomiria, the shares with which the parents would live until their death. They transferred the house to the first-born daughter according to the “balanced reciprocity”, since they had to follow the principles of the law of inheritance and the “reciprocal donation”, a strategy of the parents in order to be looked after: the daughter inheriting the house was obliged to look after them when they were old. The obligation to look after one’s parents and the family property transfer were connected on many Aegean islands.

Expanded families were common since parents used to live with one of their married children, when they were old; mostly their daughter. They would live in the katoi, the ground floor, while on the first floor (anoi) lived the new family. Condominium, especially in the Cyclads, has been noted long ago and has been mentioned in the common law since the Ottoman Rule period: the lack of space led to the peculiar institution of ownership per floor, which was pertinent to the –normally separate– ground and first floor residences.

Gradually, especially from the early 20th century on, new potential, mostly economic, made settling to a new house even more common. When possible, those two generations would not live together.

3. 2. Kanakaria

Transferring the house in the capital of the island to first-born daughters and the country house to first-born sons was common. First-born daughters would receive the family house with all of its furniture and at least one third of the mother’s property. Latter-born daughters would have smaller shares on the family’s property, while on some Aegean islands we would also find the phenomenon of self-endowment.

The phenomenon above should not be confused with that of the kanakaria and the kanakaris on Karpathos, according to which first-born sons inherited all of their father’s property and first-born daughters inherited all of their mother’s. This practice, expressing a defensive mechanism of accumulating and retaining the family’s property was highly frowned upon by the Church in the past as destructive and unjust to the other children of the family. Therefore, the Church would take pertinent measures by issuing circulars and would also intervene in the settlement of heritage issues. The kadi, the muslim judge, would often interfere as well.

Both cases though express a remarkable tendency noted on the Cyclads (Naxos, Mykonos, Kea, Paros, Santorini, Sifnos) and the southeastern Aegean islands (Karpathos, Kasos, Tilos, Nisyros), and also Lesvos and Skopelos. It was also consummated with a symbolic arrangement of bearing a name. The transfer of property to next generations was preordained. They would do that according to how names had been passed on: first-born sons would take their grandfather’s name from the father’s side and first-born daughters would take their grandmother’s name from the mother’s side. This strategy added social status to the lineage of both families.

3. 3. Property transfer after death

Save marriages, property in the Aegean was also inherited when parents died.

By being endowed, both daughters and sons –when that happened–would no longer have any claims on their parents’ property through other ways of transferring property, nor the devisor’s will, or the legal share in case there was no will. In the law of inheritance on the Aegean islands, especially the Cyclads, there were numerous arrangements aiming to protect the family property and prevent landed property from being given away, so that family members could keep it. That kind of heritage transfer favored blood relatives, putting aside the wife or husband, especially when there were no offspring.

The main procedure followed for dividing assets on the Dodecanese islands (e.g. Kos, Leros, Symi, Chalki, Patmos, Karpathos), save Rhodes, as well as on Chios, Mykonos and Naxos, was decided based on the principle of bequeathing one’s property to their children according to their sex, namely the mother’s to the daughter and the father’s to the son (“female to female, male to male”). According to the above, there were some restrictions when it came to bequeathing and giving the parents’ property as dowry or gift. That was aimed to keep assets in the lineage they came from (the father’s or the mother’s). In case there were no children, after the wife died these assets should be returned to her parents, who had endowed her.

We should also mention the trimiria (“three shares”), according to which the property of the deceased was divided into three. The trimiria, a Byzantine constitution already in action since the 14th century, was followed in the case when one of the spouses and the children died. Close blood relatives, inherited one third of that property; the surviving spouse inherited another and the other one was offered for the psichika (related to the Greek word for “soul”), offerings to the church in order to save one’s soul.

When they died, parents generally had the right to distribute their property with a will, nevertheless we find no arrangement whatsoever cutting children off for any reason. Moreover, adopted children had no claims on the heritage, although it is a common customary practice for foster-fathers to make sure the adopted child had a share of the property either with a will or immediately after the adoption.

People with offspring, normally could not make a will to distribute their property to a third party. Most of the property was usually inherited by the offspring. Devisors only had the right to bequeath a small part of their property to the church, in order to be commemorated after death and their sins could be forgiven. Save the church, we also find endowments towards educational institutions or generally a third party from the 19th century on.

4. Collectivities

Intense trade activities of the Greek-orthodox in the Aegean after the 17th century caused the need for prescriptive institutions and law rules. The most distinctive associations were guilds, also known by the Turkish words “esnaf” and “rufet”, as well as tradesmen associations known by the Byzantine term “systems”.

Guilds and systems were of strictly professional nature. In some areas though, some economic activities came under the community through the guild. There were also associations of a mixed nature, communal and economic, e.g. on Chios among villagers who produced silk fabric and mastic. The Mastic Villages of Chios, as well as other islands organized in guilds, enjoyed privileges ceded by the Ottomans. They were also the exclusive producers of their products paying a lump tax or offering part of their products.

Save administrative, tax, police and judicatory jurisdiction, guilds had also developed and codified similar law rules, a kind of unwritten customary trade law. Such regulations, pertinent mainly to naval matters, were created mostly on the Aegean islands, especially Santorini, Hydra and Spetses.




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