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Dig. 23.3.0. De iure dotium.
23.2.0. On the rite of nuptials.
Dig. 23.3.0. On the law of dowries.
Quaesitum est apud iulianum, an sponsalia sint, ante duodecimum annum si fuerint nuptiae collatae. et semper labeonis sententiam probavi existimantis, si quidem praecesserint sponsalia, durare ea, quamvis in domo loco nuptae esse coeperit: si vero non praecesserint, hoc ipso quod in domum deducta est non videri sponsalia facta. quam sententiam papinianus quoque probat.
It was asked of Julian whether they are sponsalia, if, before the twelfth year, the nuptials have been concluded. And I have always approved Labeo’s opinion, who thought that, if indeed sponsalia had preceded, they endure, although she has begun to be in the house in the place of a wife; but if they had not preceded, by the very fact that she was led into the house, sponsalia are not considered to have been made. Which opinion Papinian also approves.
In potestate manente filia pater sponso nuntium remittere potest et sponsalia dissolvere. enimvero si emancipata est, non potest neque nuntium remittere neque quae dotis causa data sunt condicere: ipsa enim filia nubendo efficiet dotem esse condictionemque extinguet, quae causa non secuta nasci poterit. nisi forte quis proponat ita dotem patrem pro emancipata filia dedisse, ut, si nuptiis non consentiret, vel contractis vel non contractis repeteret quae dederat: tunc enim habebit repetitionem.
While the daughter remains in paternal power, the father can send notice to the fiancé and dissolve the sponsals. But indeed, if she has been emancipated, he can neither send notice nor bring a claim to recover the things that were given for the sake of the dowry: for the daughter herself, by marrying, will make it a dowry and will extinguish the action for recovery, which could arise on the ground of failure of cause. Unless perhaps one should propose that the father gave the dowry for his emancipated daughter on this footing: that, if he did not consent to the marriage, whether contracted or not contracted, he would reclaim what he had given; for then he will have repetition.
Oratio imperatorum antonini et commodi, quae quasdam nuptias in personam senatorum inhibuit, de sponsalibus nihil locuta est. recte tamen dicitur etiam sponsalia in his casibus ipso iure nullius esse momenti, ut suppleatur quod orationi deest.
The oration of the emperors Antoninus and Commodus, which inhibited certain nuptials as to the person of senators, said nothing about sponsals. rightly, nevertheless, it is said that even sponsals in these cases are by the law itself of no moment, so that what is lacking to the oration may be supplied.
Saepe iustae ac necessariae causae non solum annum vel biennium, sed etiam triennium et quadriennium et ulterius trahunt sponsalia, veluti valetudo sponsi sponsaeve vel mortes parentium aut capitalia crimina aut longiores peregrinationes quae ex necessitate fiunt.
Often just and necessary causes protract the sponsals not only for a year or a biennium, but even for a triennium and a quadriennium and further, for example the state of health of the bridegroom or bride, or the deaths of parents, or capital crimes, or more prolonged peregrinations which are undertaken from necessity.
Mulierem absenti per litteras eius vel per nuntium posse nubere placet, si in domum eius deduceretur: eam vero quae abesset ex litteris vel nuntio suo duci a marito non posse: deductione enim opus esse in mariti, non in uxoris domum, quasi in domicilium matrimonii.
It is held that a woman can marry an absent man by his letters or by his messenger, if she is led into his house; but that a woman who is absent cannot, by her own letters or messenger, be led by the husband: for a leading-in (deductio) is required into the husband’s, not the wife’s, house, as into the domicile of the marriage.
Si ita pater absit, ut ignoretur ubi sit et an sit, quid faciendum est, merito dubitatur. et si triennium effluxerit, postquam apertissime fuerit pater ignotus, ubi degit et an superstes sit, non prohibentur liberi eius utriusque sexus matrimonium vel nuptias legitimas contrahere.
If the father is so absent that it is unknown where he is and whether he is, what is to be done is rightly a matter of doubt. And if three years have elapsed, after it has been most plainly the case that the father is unknown as to where he resides and whether he survives, his children of either sex are not prohibited from contracting matrimony or legitimate nuptials.
Si filius eius qui apud hostes est vel absit ante triennium captivitatis vel absentiae patris uxorem duxit vel si filia nupserit, puto recte matrimonium vel nuptias contrahi, dummodo eam filius ducat uxorem vel filia tali nubat, cuius condicionem certum sit patrem non repudiaturum.
If the son of one who is among the enemy or is absent, before the three-year period of the father’s captivity or absence, has taken a wife, or if the daughter has married, I think the matrimony or nuptials are rightly contracted, provided that the son takes as wife, or the daughter marries, such a person whose condition it is certain the father would not repudiate.
Adoptivae sororis filiam possum uxorem ducere: cognata enim mea non est filia eius, quia avunculus nemo fit per adoptionem et eae demum cognationes contrahuntur in adoptionibus, quae legitimae essent, id est quae adgnatorum ius haberent. pari ratione et sororem patris mei adoptivi possum ducere, si non fuit eodem patre nata.
I can take as wife the daughter of my adoptive sister: for her daughter is not my cognate, because no one becomes an uncle through adoption, and only those cognations are contracted in adoptions which would be legitimate, that is, which would have the right of agnates. By the same reasoning I can also take as wife the sister of my adoptive father, if she was not born from the same father.
Serviles quoque cognationes in hoc iure observandae sunt. igitur suam matrem manumissus non ducet uxorem: tantundem iuris est et in sorore et sororis filia. idem e contrario dicendum est, ut pater filiam non possit ducere, si ex servitute manumissi sint, etsi dubitetur patrem eum esse.
Servile cognations also are to be observed under this law. Accordingly, a manumitted person will not take his own mother as wife: the same rule of law applies also to a sister and a sister’s daughter. The same, conversely, must be said, that a father cannot take his daughter to wife, if they have been manumitted from slavery, even if it is in doubt that he is the father.
Idem tamen, quod in servilibus cognationibus constitutum est, etiam in servilibus adfinitatibus servandum est, veluti ut eam, quae in contubernio patris fuerit, quasi novercam non possim ducere, et contra eam, quae in contubernio filii fuerit, patrem quasi nurum non ducere: aeque nec matrem eius, quam quis in servitute uxorem habuit, quasi socrum. cum enim cognatio servilis intellegitur, quare non et adfinitas intellegatur? sed in re dubia certius et modestius est huiusmodi nuptiis abstinere.
The same, however, which has been established in servile kinships must also be observed in servile affinities, for example, that I cannot marry her who was in my father’s contubernium, as though a stepmother; and conversely, that the father cannot marry her who was in the son’s contubernium, as though a daughter‑in‑law; likewise neither the mother of her whom someone had as a wife in servitude, as though a mother‑in‑law. For since servile kinship is understood, why should not affinity also be understood? But in a doubtful matter it is more certain and more modest to abstain from marriages of this kind.
Nunc videamus, quomodo noverca et privigna et socrus et nurus intellegantur, ut sciamus, quas non liceat ducere. quidam novercam per se patris uxorem et nurum filii uxorem et privignam uxoris ex alio marito filiam intellegunt: sed quod ad hanc causam verius est nec avi uxorem nec proavi duci posse. duas ergo vel plures novercas ducere non poterit: non mirum, nam et is qui adoptivus est nec naturalis patris nec adoptivi uxorem ducere potest: sed et si plures uxores pater habuerit, nullam earum ducere possum.
Now let us see how stepmother and stepdaughter and mother-in-law and daughter-in-law are to be understood, so that we may know whom it is not permitted to marry. Some understand a stepmother strictly as the father’s wife, a daughter-in-law as the son’s wife, and a stepdaughter as the wife’s daughter from another husband: but what is truer for this case is that neither a grandfather’s wife nor a great-grandfather’s can be married. Therefore he will not be able to marry two or more stepmothers: no wonder, for even he who is adoptive cannot marry the wife of either his natural father or his adoptive father: but even if the father has had several wives, I can marry none of them.
accordingly, by the appellation of mother-in-law there is understood not only the mother of my wife, but also a grandmother and great-grandmother, so that I can marry none of them. by the appellation of daughter-in-law there is contained not only the wife of my son, but also that of my grandson and great-grandson, although some call these great-daughters-in-law. likewise, stepdaughter is understood by me not only as she who is the daughter of my wife, but also a granddaughter and great-granddaughter, so that I can marry none of them.
Per adoptionem quaesita fraternitas eousque impedit nuptias, donec manet adoptio: ideoque eam, quam pater meus adoptavit et emancipavit, potero uxorem ducere. aeque et si me emancipato illam in potestate retinuerit, poterimus iungi matrimonio.
Fraternity acquired through adoption impedes nuptials so long as the adoption remains: and therefore the woman whom my father adopted and emancipated I shall be able to take as a wife. Likewise, even if, I having been emancipated, he has retained her under his power, we shall be able to be joined in matrimony.
Amitam quoque et materteram, item magnam quoque amitam et materteram magnam prohibemur uxorem ducere, quamvis magna amita et matertera quarto gradu sint. utique autem amitam et amitam magnam prohibemur uxorem ducere, etsi per adoptionem nobis coniunctae sint.
We are also forbidden to take as a wife a paternal aunt (amita) and a maternal aunt (matertera), likewise also a great paternal aunt and a great maternal aunt, although the great paternal aunt and the great maternal aunt are in the 4th degree. And in any case we are forbidden to take a paternal aunt and a great paternal aunt as a wife, even if they are connected to us through adoption.
Capite trigesimo quinto legis iuliae qui liberos quos habent in potestate iniuria prohibuerint ducere uxores vel nubere, vel qui dotem dare non volunt ex constitutione divorum severi et antonini, per proconsules praesidesque provinciarum coguntur in matrimonium collocare et dotare. prohibere autem videtur et qui condicionem non quaerit.
In the thirty-fifth chapter of the Julian law, those who have unjustly prohibited the children whom they have in their power from taking wives or from marrying, or those who are unwilling to give a dowry, by the constitution of the deified Severus and Antoninus, are compelled through the proconsuls and the governors of the provinces to settle them in marriage and to endow them with a dowry. Moreover, he too is deemed to be prohibiting who does not seek out a match.
Sciendum est ad officium curatoris non pertinere, nubat pupilla an non, quia officium eius in administratione negotiorum constat: et ita severus et antoninus rescripserunt in haec verba: " ad officium curatoris administratio pupillae pertinet: nubere autem pupilla suo arbitrio potest".
It should be known that it does not pertain to the office of the curator whether the girl ward marries or not, because his office consists in the administration of affairs: and thus severus and antoninus rescripted in these words: " to the office of the curator pertains the administration of the girl ward: however, the girl ward can marry by her own discretion".
Si quis officium in aliqua provincia administrat, inde oriundam vel ibi domicilium habentem uxorem ducere non potest, quamvis sponsare non prohibeatur, ita scilicet, ut, si post officium depositum noluerit mulier nuptias contrahere, liceat ^ libeat^ ei hoc facere arris tantummodo redditis quas acceperat.
If anyone administers an office in some province, he cannot take as a wife a woman originating from there or having her domicile there, although he is not prohibited from betrothing; namely, on the condition that, if after the office has been laid down the woman is unwilling to contract marriage, let it be permitted ^ let it please^ her to do this by only returning the earnest-money (arrhae) which she had received.
Quae in adulterio deprehensa est, quasi publico iudicio damnata est. proinde si adulterii condemnata esse proponatur, non tantum quia deprehensa est erit notata, sed quia et publico iudicio damnata est. quod si non sit deprehensa, damnata autem, idcirco notetur, quia publico iudicio damnata est, at si deprehensa quidem sit, damnata autem non sit, notata erit?
She who has been apprehended in adultery is as if condemned by public judgment. Accordingly, if it is alleged that she has been condemned of adultery, she will be marked not only because she was apprehended, but also because she was condemned by public judgment. But if she has not been apprehended, yet has been condemned, let her on that account be marked, because she has been condemned by public judgment; but if indeed she has been apprehended, yet has not been condemned, will she be marked?
Non adicitur hic ut in lege iulia de adulteriis a quo vel ubi deprehensam: proinde sive maritus sive quis alius deprehendisse proponatur, videtur notata: sed et si non in domo mariti vel patris sui deprehensa sit, erit notata secundum verba legis.
It is not added here, as in the Julian law on adulteries, by whom or where she was apprehended; accordingly, whether it be proposed that the husband or someone else apprehended her, she is deemed marked (noted); and even if she was apprehended not in the house of her husband or of her father, she will be marked according to the words of the law.
Lege iulia ita cavetur: " qui senator est quive filius neposve ex filio proneposve ex filio nato cuius eorum est erit, ne quis eorum sponsam uxoremve sciens dolo malo habeto libertinam aut eam, quae ipsa cuiusve pater materve artem ludicram facit fecerit. neve senatoris filia neptisve ex filio proneptisve ex nepote filio nato nata libertino eive qui ipse cuiusve pater materve artem ludicram facit fecerit, sponsa nuptave sciens dolo malo esto neve quis eorum dolo malo sciens sponsam uxoremve eam habeto".
By the Julian law it is thus provided: "whoever is a senator, or whose son, grandson from a son, or great-grandson from a son is or shall be, let none of them, knowingly and with fraudulent intent, have as betrothed or wife a freedwoman, or one who herself, or whose father or mother, practices or has practiced a theatrical art. And let not a senator’s daughter, granddaughter from a son, or great-granddaughter from a grandson born from a son, knowingly and with fraudulent intent, be betrothed or married to a freedman, or to one who himself, or whose father or mother, practices or has practiced a theatrical art; and let none of them, knowingly and with fraudulent intent, have her as betrothed or wife".
In eo iure, quod dicit invito patrono libertam, quae ei nupta est, alii nubere non posse, patronum accipimus ( ut rescripto imperatoris nostri et divi patris eius continetur) et eum qui hac lege emit, ut manumittat, quia manumissa liberta emptoris habetur.
In that law which says that, the patron being unwilling, a freedwoman who is married to him cannot marry another, we understand “patron” to include ( as is contained in the rescript of our emperor and his deified father) also him who bought under this law in order to manumit, because, once manumitted, the freedwoman is considered the purchaser’s freedwoman.
Deinde ait lex " invito patrono": invitum accipere debemus eum, qui non consentit ad divortium: idcirco nec a furioso divertendo solvit se huius legis necessitate nec si ab ignorante divorterit: rectius enim hic invitus dicitur quam qui dissensit.
Then the law says “with the patron unwilling”: we ought to take “unwilling” as one who does not consent to the divorce; therefore neither by divorcing from an insane person does one release oneself from the necessity of this law, nor if one divorces from one who is ignorant; for here “unwilling” is more correctly said than “one who dissented.”
Si ab hostibus patronus captus esse proponatur, vereor ne possit ista conubium habere nubendo, quemadmodum haberet, si mortuus esset. et qui iuliani sententiam probant, dicerent non habituram conubium: putat enim iulianus durare eius libertae matrimonium etiam in captivitate propter patroni reverentiam. certe si in aliam servitutem patronus sit deductus, procul dubio dissolutum esset matrimonium.
If it be proposed that a patron has been captured by the enemy, I fear that she cannot have connubium by marrying, just as she would have if he were dead. And those who approve Julianus’s opinion would say that she will not have connubium: for Julianus thinks that his freedwoman’s matrimony endures even in captivity on account of reverence for the patron. Certainly, if the patron has been reduced into another servitude, without doubt the matrimony would be dissolved.
Illud dubitationis est, an et qui communem libertam uxorem duxerit ad hoc ius admittatur. iavolenus negavit, quia non proprie videtur eius liberta, quae etiam alterius sit: aliis contra visum est, quia libertam eius esse negari non potest, licet alterius quoque sit liberta: quam sententiam plerique recte probaverunt.
The matter is one of doubt, whether even he who has taken as wife a freedwoman held in common is to be admitted to this right. Javolenus denied it, because she does not properly seem to be his freedwoman who is also another’s; others thought the contrary, because it cannot be denied that she is his freedwoman, although she is also the freedwoman of another; which opinion the majority rightly approved.
Observandum est, ut inferioris gradus homines ducant uxores eas, quas hi qui altioris dignitatis sunt ducere legibus propter dignitatem prohibentur: at contra antecedentis gradus homines non possunt eas ducere, quas his qui inferioris dignitatis sunt ducere non licet.
It must be observed that men of an inferior grade may take as wives those whom those of higher dignity are prohibited by the laws, on account of their dignity, from taking: but on the contrary, men of the antecedent grade cannot take those whom it is not permitted to those of inferior dignity to take.
Proxime constitutum dicitur, ut, cum quis libertam suam duxerit uxorem, quam ex fideicommissi causa manumiserit, liceat libertae invito eo nuptias contrahere: puto, quia non erat ferendus is qui ex necessitate manumisit, non suo arbitrio: magis enim debitam libertatem praestitit quam ullum beneficium in mulierem contulit.
It is said to have been established most recently that, when someone has taken his freedwoman as his wife, whom he has manumitted on account of a fideicommissum, it is permitted to the freedwoman, against his will, to contract nuptials; I think this because the man who manumitted out of necessity, not by his own choice, was not to be tolerated: for he provided rather the liberty that was owed than conferred any beneficium upon the woman.
Divus marcus et lucius imperatores flaviae tertullae per mensorem libertum ita rescripserunt: " movemur et temporis diuturnitate, quo ignara iuris in matrimonio avunculi tui fuisti, et quod ab avia tua collocata es, et numero liberorum vestrorum: idcircoque cum haec omnia in unum concurrunt, confirmamus statum liberorum vestrorum in eo matrimonio quaesitorum, quod ante annos quadraginta contractum est, perinde atque si legitime concepti fuissent".
The deified Marcus and Lucius, emperors, to Flavia Tertulla, through a mensor, a freedman, thus wrote in a rescript: " we are moved both by the long duration of time, during which you, ignorant of the law, were in marriage with your maternal uncle, and by the fact that you were settled in marriage by your grandmother, and by the number of your children: and therefore, since all these things run together into one, we confirm the status of your children begotten in that marriage, which was contracted forty years ago, just as if they had been conceived legitimately".
Si quis tutor quidem non sit, periculum tamen tutelae ad eum pertineat, an sententia orationis contineatur? veluti si pupilla ab hostibus capta fuerit aut falsis allegationibus a tutela se excusaverit, ut ex sacris constitutionibus periculum ad eum pertineat? et dicendum est hos quoque ad senatus consultum pertinere: nam et huiusmodi periculum in numerum trium tutelarum computari comprobatum est.
If someone is indeed not a guardian, yet the peril of the guardianship pertains to him, is he contained within the purport of the oration? for example, if a girl-ward has been captured by enemies, or (by false allegations) he has excused himself from the guardianship, so that by the sacred constitutions the peril pertains to him? and it must be said that these also pertain to the senatus consultum: for the peril of this kind has been approved to be computed in the number of three guardianships.
Sed si propter alterius personam periculum ad eum pervenit, videamus ne extra sententiam senatus consulti sit: veluti si magistratus in in tutelae periculum incidit vel fideiusserit quis pro tutore vel curatore, quia nec in numerum trium tutelarum haec imputantur: et consequens est hoc probare.
But if, on account of another’s person, the peril comes upon him, let us consider whether this is not outside the meaning of the senatus consultum: for example, if a magistrate has fallen into peril in respect of a guardianship, or if someone has stood as fidejussor for a tutor or curator, since these are not counted into the number of three guardianships; and it is a consequent inference to establish this.
Quid ergo si honoris causa tutor datus sit? quatenus nec huiusmodi tutela in numerum computatur, numquid idem sit? sed ratio in contrarium ducit, quod dictum est et honorarium tutorem periculum solere pati, si male passus sit administrari tutelam.
What then if a guardian has been appointed for the sake of honor? Since a tutela of this sort is not counted in the number, would it be the same? But reason leads to the contrary, because it has been said that even an honorary guardian is wont to incur liability, if he has allowed the guardianship to be administered badly.
Quid ergo si, cum se vellet excusare aliquo titulo nec in promptu probationes haberet, excusationis negotium fuerit dilatum et inter moras pupilla adoleverit, an ad senatus consultum pertineat? quaestio in eo est, an et post pubertatem officio finito excusationem eius recipi oporteat: nam si recipitur et excusaverit, impune potest ducere: si vero non debeat recipi post officium finitum, non recte ducit. et ait papinianus libro quinto responsorum officio finito excusationem recipi non oportere et ideo exacti temporis periculum ad eum pertinere.
What then, if, when he wished to excuse himself by some title and did not have proofs at the ready, the business of the excuse has been deferred, and in the delays the girl-ward has reached puberty—does it pertain to the senatus consultum? The question is in this: whether even after puberty, the office having been finished, his excuse ought to be received. For if it is received and he has excused himself, he can lead her with impunity; but if indeed it ought not to be received after the office is finished, he does not lead rightly. And Papinian says in the fifth book of the Responses that, the office having been finished, the excuse ought not to be received, and therefore the peril of the elapsed time pertains to him.
Quamvis verbis orationis cautum sit, ne uxorem tutor pupillam suam ducat, tamen intellegendum est ne desponderi quidem posse: nam cum qua nuptiae contrahi non possunt, haec plerumque ne quidem desponderi potest: nam quae duci potest, iure despondetur.
Although it is provided by the words of the oration that a guardian is not to take his own female ward to wife, nevertheless it must be understood that she cannot even be betrothed: for with one with whom nuptials cannot be contracted, she for the most part cannot even be betrothed: for she who can be led in marriage is by right betrothed.
Quamquam in arbitrio matris pater esse voluerit, cui nuptum filia communis collocaretur, frustra tamen ab ea tutor datus eligetur: neque enim intellegitur pater de persona tutoris cogitasse, cum ideo maxime matrem praetulit, ne filiae nuptias tutori committeret.
Although the father wished it to be in the mother’s discretion to whom the common daughter should be settled in marriage, nevertheless a tutor appointed by her will be chosen in vain: for the father is not understood to have thought about the person of a tutor, since for this very reason he preferred the mother, lest he entrust the daughter’s nuptials to a tutor.
Praefectus cohortis vel equitum aut tribunus contra interdictum eius provinciae duxit uxorem, in qua officium gerebat: matrimonium non erit: quae species pupillae comparanda est, cum ratio potentatus nuptias prohibuerit. sed an huic quoque si virgo nupsit, non sit auferendum quod testamento relictum est, deliberari potest: exemplo tamen pupillae nuptae tutori, quod relictum est potest mulier consequi. pecuniam tamen in dotem datam mulieris heredi restitui necesse est.
A prefect of a cohort or of cavalry, or a tribune, contrary to the interdict of that province, took a wife in the province in which he was holding office: the marriage will not exist; this kind is to be compared to that of a female ward (pupilla), since the rationale of power (potentate’s authority) has prohibited the nuptials. But whether for her also, if as a virgin she married, what was left by testament should not be taken away may be deliberated; nevertheless, by the example of a pupilla married to her tutor, the woman can obtain what was left. The money, however, given into dowry must be restored to the woman’s heir.
Senatus consulti, quo prohibentur tutores et filii eorum pupillas suas ducere, puto heredem quoque tutoris extraneum sententia adprehendi, cum ideo prohibuerit huiusmodi nuptias, ne pupillae in re familiari circumscribantur ab his, qui rationes eis gestae tutelae reddere compelluntur.
By the senatorial decree by which guardians and their sons are forbidden to marry their female wards, I think that even the stranger heir of the guardian is encompassed by the tenor; since it prohibited such nuptials for this reason, lest the wards be overreached in patrimonial matters by those who are compelled to render to them the accounts of the guardianship transacted.
Idem eodem. respondit mihi placere, etsi contra mandata contractum sit matrimonium in provincia, tamen post depositum officium, si in eadem voluntate perseverat, iustas nuptias effici: et ideo postea liberos natos ex iusto matrimonio legitimos esse
The same, in the same. He replied to me that he approved that, although a marriage had been contracted in the province contrary to the mandates, nevertheless after the office has been laid down, if he perseveres in the same intention, lawful nuptials are effected: and therefore thereafter children born from a lawful marriage are legitimate.
Non est matrimonium, si tutor vel curator pupillam suam intra vicesimum et sextum annum non desponsam a patre nec testamento destinatam ducat uxorem vel eam filio suo iungat: quo facto uterque infamatur et pro dignitate pupillae extra ordinem coercetur. nec interest, filius sui iuris an in patris potestate sit.
There is no marriage, if a tutor or curator takes his own ward, within her twenty-sixth year, not betrothed by her father nor designated by testament, as a wife, or joins her to his son: by this act each incurs infamy and, according to the standing of the ward, is punished extra ordinem. Nor does it matter whether the son is sui iuris or under his father's power.
Non solum vivo tutore, sed et post mortem eius filius tutoris ducere uxorem prohibetur eam, cuius tutelae rationi obstrictus pater fuit: nec puto interesse, exstiterit ei heres filius an abstinuerit paterna hereditate an nec heres fuit ( forte exheredatus aut praeteritus emancipatus): nam et fieri potest, ut per fraudem in eum collocata bona patris propter tutelam revocari oporteat.
Not only with the tutor alive, but even after his death, the tutor’s son is prohibited from taking as wife the woman to whose account of tutelage the father was bound: nor do I think it makes a difference whether the son became his heir, or abstained from the paternal inheritance, or was not even heir ( perhaps disinherited or passed over, being emancipated): for it can also happen that the father’s goods, settled upon him by fraud on account of the tutelage, ought to be recalled.
De uno dubitari potest, si avus tutelam gessit neptis ex filio emancipato natae, an nepoti ex altero filio eam collocare possit sive emancipato sive manenti in potestate, quia par affectionis causa suspicionem fraudis amovet. sed etsi senatus consultum stricto iure contra omnes tutores nititur, attamen summae affectionis avitae intuitu huiusmodi nuptiae concedendae sunt.
About one point doubt can arise: if a grandfather has exercised the tutelage of a granddaughter born from a son who has been emancipated, whether he can settle her in marriage to a grandson from another son, whether emancipated or remaining under power, because the parity of affection removes the suspicion of fraud. But although the senatus consultum, by strict law, bears against all tutors, nevertheless, in consideration of the highest grandfatherly affection, nuptials of this kind are to be conceded.
Sed videamus, si titii filius duxerit uxorem eam, quae tua pupilla fuit, deinde titium vel filium eius adoptaveris, an peremuntur nuptiae ( ut in genero adoptato dictum est) an adoptio impeditur? quod magis dicendum est et si curator, dum gerit curam, adoptaverit maritum eius puellae, cuius curator est. nam finita iam tutela et nupta puella alii vereor, ne longum sit adoptionem mariti eius impedire, quasi propter hoc interponatur, ut ratio tutelae reddendae cohibeatur, quam causam prohibitionis nuptiarum contrahendarum oratio divi marci continet.
But let us see: if the son of Titius has led to wife her who was your ward, then you have adopted Titius or his son, are the nuptials extinguished ( as was said in the case of an adopted son-in-law) or is the adoption impeded? the latter is rather to be said; and likewise if a curator, while he is administering the cura, has adopted the husband of that girl of whom he is curator. for, with the tutela now finished and the girl married to another, I fear lest it be a stretch to hinder the adoption of her husband, as though it were interposed for this purpose, that the accounting of the tutela to be rendered be restrained, which cause for the prohibition of contracting nuptials the oratio of the deified Marcus contains.
Et si quis curator ventri bonisque datus sit, prohibitionem eiusdem senatus consulti inducit: nam et hic debet rationem reddere. nec spatium administrationis movere nos debet, quia nec in tutore nec curatore discrimen maioris aut minoris temporis, quo in huiusmodi munere quis fuerit, habitum esse.
And if someone has been appointed as curator for the womb and the goods (estate), the prohibition of that same senatus-consultum is brought in; for he too must render an account. Nor ought the span of the administration to move us, since neither in a tutor nor in a curator has a distinction been held between a greater or lesser time during which someone has been in such an office.
Si puellae tutelam titius administravit vel curator negotia gessit eaque nondum recepta ratione decessit filia herede relicta, quaerenti, an eam filio suo posset titius collocare in matrimonium, dixi posse, quia ratio hereditaria esset et sit simplex debitum: alioquin omnis debitor eam, cui obligatus esset ex aliqua ratione, prohibetur sibi filioque suo coniungere.
If Titius administered the guardianship of a girl, or as curator managed her affairs, and she, the account not yet rendered, died, a daughter having been left as heir, to one asking whether Titius could place her in marriage to his son, I said he could, because the claim is hereditary and is a simple debt; otherwise every debtor is prohibited from joining to himself and to his son the woman to whom he was obligated on any account.
Sed et is, qui pupillam abstinet bonis patris sui, rationem eius rei praestare debet et fieri potest, ut etsi inconsultius hoc fecerit, et hoc nomine condemnari debeat. sed et si optimo consilio usus sit auxilio praetoriae iurisdictionis, quia non solvendo pater eius decesserat, nihilo minus tamen, quia iudicio hoc probari oportet, impediuntur nuptiae: nam qui bene tutelam et ex fide administravit, nihilo minus prohibetur.
But also he who causes a female ward to abstain from her father’s goods must render an account of that matter; and it can come about that, even if he did this rather incautiously, he ought on this ground to be condemned. But even if, with the best counsel, he has used the aid of praetorian jurisdiction, because her father had died insolvent, nonetheless, since this must be proved by judgment, the nuptials are impeded: for he who has administered the guardianship well and in good faith is nonetheless prohibited.
Iure gentium incestum committit, qui ex gradu ascendentium vel descendentium uxorem duxerit. qui vero ex latere eam duxerit quam vetatur, vel adfinem quam impeditur, si quidem palam fecerit, levius, si vero clam hoc commiserit, gravius punitur. cuius diversitatis illa ratio est: circa matrimonium quod ex latere non bene contrahitur palam delinquentes ut errantes maiore poena excusantur, clam committentes ut contumaces plectuntur.
By the law of nations, he commits incest who has taken as wife one from the degree of ascendants or descendants. But he who from the side has taken her whom he is forbidden, or an affine whom he is prevented [to marry], if indeed he has done it openly, is punished more lightly; but if he has committed this secretly, he is punished more severely. The reason for this difference is this: in the matter of a marriage which from the side is not properly contracted, those offending openly, as erring, are excused from the greater penalty; those committing it secretly are punished as contumacious.
Si pater repudiaverit hereditatem dotis constituendae causa ( forte quod maritus erat substitutus aut qui potuit ab intestato hereditatem vindicare), dotem profecticiam non esse iulianus ait. sed et si legatum in hoc repudiaverit pater, ut apud generum heredem remaneat dotis constituendae causa, iulianus probat non esse profectum id de bonis, quia nihil erogavit de suo pater, sed non adquisivit.
If a father has repudiated an inheritance for the purpose of establishing a dowry (perhaps because the husband had been appointed as substitute heir, or was someone who could vindicate the inheritance ab intestato), Julian says that the dowry is not profectitious. But also, if the father has repudiated a legacy to this end, that it remain with the son-in-law as heir for the purpose of establishing a dowry, Julian approves that this has not proceeded from his goods, because the father disbursed nothing of his own, but merely failed to acquire it.
Si filius familias mutuatus creditorem delegavit, ut daret pro filia dotem, vel etiam ipse accepit et dedit, videri dotem ab avo profectam neratius ait hactenus, quatenus avus esset dotaturus neptem suam: id enim in rem avi videri versum.
If a son in paternal power, having borrowed, delegated his creditor to give a dowry on behalf of his daughter, or even himself received it and gave it, Neratius says that the dowry is deemed to have proceeded from the grandfather only to this extent: insofar as the grandfather was going to endow his granddaughter; for that is considered to have been turned to the advantage of the grandfather.
Si quis certam quantitatem patri donaverit ita, ut hanc pro filia daret, non esse dotem profecticiam iulianus libro septimo decimo digestorum scripsit: obstrictus est enim ut det aut, si non dederit, condictione tenetur. hoc et in matre iuris esse ait, si forte sub ea condicione uxor marito det, ut pro filia genero in dotem daret, nec videri uxorem marito donasse rectissime ergo ait, ut non sit interdicta donatio iure civili: non enim ad hoc dedit, ut ipse habeat, sed ut genero pro filia expendat: denique si non dederit, condictione tenetur. esse igitur dotem istam adventiciam iulianus ait: et ita utimur.
If someone has donated a fixed amount to the father on the condition that he give this for his daughter, Julian wrote in the seventeenth book of the Digest that it is not a profectitious dowry: for he is bound to give it, or, if he does not give it, he is held by a condiction. He says that this is also the law in the case of the mother, if perhaps under that condition a wife gives to her husband, that he should give it as a dowry to the son-in-law for the daughter, and that the wife is not to be seen to have made a donation to her husband; therefore he very rightly says that the donation is not interdicted by civil law: for she did not give it for this, that he himself should have it, but that he should expend it upon the son-in-law for the daughter: finally, if he has not given it, he is held by a condiction. Therefore Julian says that this dowry is adventitious; and thus we practice.
Si pater pro filia emancipata dotem dederit, profecticiam nihilo minus dotem esse nemini dubium est, quia non ius potestatis, sed parentis nomen dotem profecticiam facit: sed ita demum, si ut parens dederit: ceterum si, cum deberet filiae, voluntate eius dedit, adventicia dos est.
If a father has given a dowry on behalf of an emancipated daughter, there is no doubt that the dowry is nonetheless profectitious, because it is not the right of power, but the name of parent that makes a dowry profectitious; but only so, if he gave it as a parent. Otherwise, if, when he was debtor to the daughter, he gave it by her will, it is an adventitious dowry.
Si quis pro aliena filia dotem promiserit et promissori pater heres exstiterit, iulianus distinguit interesse, ante nuptias pater heres exstiterit et dotem dederit an postea: si ante, videri dotem ab eo profectam ( potuit enim nuntium remittendo resolvere dotem), quod si post nuptias, non esse profecticiam.
If someone has promised a dowry for another man’s daughter, and the father has become the heir to the promisor, Julianus distinguishes whether it makes a difference whether the father became heir and gave the dowry before the marriage or afterwards: if before, the dowry is seen as having proceeded from him ( for he could, by sending a notice, rescind the dowry), but if after the marriage, it is not profectitious.
Si fructus constante matrimonio percepti sint, dotis non erunt: si vero ante nuptias percepti fuerint, in dotem convertuntur, nisi forte aliquid inter maritum futurum et destinatam uxorem convenit: tunc enim quasi donatione facta fructus non redduntur.
If fruits (revenues) have been collected while the marriage is subsisting, they will not belong to the dowry; but if they have been collected before the nuptials, they are converted into the dowry, unless perhaps something was agreed between the future husband and the intended wife: for then, as if a donation had been made, the fruits are not returned.
Si usus fructus in dotem datus sit, videamus, utrum fructus reddendi sunt nec ne. et celsus libro decimo digestorum ait interesse, quid acti sit, et nisi appareat aliud actum, putare se ius ipsum in dote esse, non etiam fructus qui percipiuntur.
If a usufruct has been given as dowry, let us see whether the fruits are to be returned or not. And Celsus in the tenth book of the Digest says it matters what was transacted; and, unless it appears that something else was done, he thinks that the right itself is in the dowry, not also the fruits that are collected.
Si res in dote dentur, puto in bonis mariti fieri accessionemque temporis marito ex persona mulieris concedendam. fiunt autem res mariti, si constante matrimonio in dotem dentur. quid ergo, si ante matrimonium?
If things are given in dowry, I think they become in the husband’s goods, and that an accession of time should be conceded to the husband from the woman’s person. they become, moreover, the husband’s property, if, while the marriage is subsisting, they are given into dowry. what then, if before marriage?
if indeed the woman gave in such a way that they become his at once, they are effected; but if she gave on this condition, that they become his when she has married, without doubt we shall say that they become his when the nuptials have followed. accordingly, if perchance the nuptials do not follow, the notice having been sent back, if indeed the woman gave in such a way that they at once become the man’s property, upon the notice being sent she ought to bring a condictio for them; but if she gave in such a way that, the nuptials having followed, they begin to be his, with the notice sent back she will at once vindicate them. but if before the notice is sent back she brings a vindication, an exception either of fraud (dolus) or in factum can harm the claimant: for things destined for a dowry ought not to be vindicated.
Si ego seiae res dedero, ut ipsa suo nomine in dotem det, efficientur eius, licet non in dotem sint datae: sed condictione tenebitur. quod si pro ea res ego dem, si quidem ante nuptias, interest qua condicione dedi, utrum ut statim fiant accipientis an secutis nuptiis: si statim, nuntio misso condicam: sin vero non statim, potero vindicare, quia meae res sunt. quare et si sequi nuptiae non possunt propter matrimonii interdictionem, ex posteriore casu res meae remanebunt.
If I give things to Seia, that she herself may give them into dowry in her own name, they become hers, although they were not given into dowry; but she will be liable under a condictio. But if I give things on her behalf, if indeed before the nuptials, it makes a difference under what condition I gave, whether that they become the recipient’s at once or upon the nuptials’ ensuing: if at once, once notice has been sent I will sue by condictio; but if not at once, I shall be able to vindicate, because the things are mine. Wherefore even if the nuptials cannot follow on account of an interdiction of matrimony, in the latter case my things will remain mine.
Si res alicui tradidero, ut nuptiis secutis dotis efficiantur, et ante nuptias decessero, an secutis nuptiis dotis esse incipiant? et vereor, ne non possint in dominio eius effici cui datae sunt, quia post mortem incipiat dominium discedere ab eo qui dedit, quia pendet donatio in diem nuptiarum et cum sequitur condicio nuptiarum, iam heredis dominium est, a quo discedere rerum non posse dominium invito eo fatendum est. sed benignius est favore dotium necessitatem imponi heredi consentire ei quod defunctus fecit aut, si distulerit vel absit, etiam nolente vel absente eo dominium ad maritum ipso iure transferri, ne mulier maneat indotata.
If I have delivered things to someone, that, the nuptials having followed, they might become a dowry, and I die before the nuptials, do they begin to be a dowry once the nuptials have followed? And I fear that they cannot be effected in the dominion of him to whom they were given, because after death the dominion begins to depart from the one who gave, since the donation hangs upon the day of the nuptials; and when the condition of the nuptials ensues, already it is the heir’s dominion, from which we must admit that the dominion of things cannot depart with him unwilling. But more benignly, in favor of dowries, it is that a necessity be imposed on the heir to consent to what the deceased did; or, if he should defer or be absent, even with him unwilling or absent, the dominion is transferred to the husband by the law itself, lest the woman remain undowered.
Ceterum si res dentur in ea, quae graeci paraferna dicunt quaeque galli peculium appellant, videamus, an statim efficiuntur mariti. et putem, si sic dentur ut fiant, effici mariti, et cum distractum fuerit matrimonium, non vindicari oportet, sed condici, nec dotis actione peti, ut divus marcus et imperator noster cum patre rescripserunt. plane si rerum libellus marito detur, ut romae volgo fieri videmus ( nam mulier res, quas solet in usu habere in domo mariti neque in dotem dat, in libellum solet conferre eumque libellum marito offerre, ut is subscribat, quasi res acceperit, et velut chirographum eius uxor retinet res quae libello continentur in domum eius se intulisse): hae igitur res an mariti fiant, videamus.
further, if things are given into that category which the greeks call parapherna and which the gauls call peculium, let us see whether they at once become the husband’s. and I think that, if they are given in such a way as to become [his], they do become the husband’s; and, when the marriage has been dissolved, they ought not to be vindicated, but to be claimed by condictio, nor sought by an action for dowry, as the deified marcus and our emperor with his father wrote back. clearly, if a little list of the things is given to the husband, as we commonly see done at rome (for a woman is accustomed to gather into a little list the things which she is wont to have in use in the husband’s house and does not give into the dowry, and to present that little list to the husband, that he may subscribe, as if he had received the things, and the wife retains the little list, as it were his chirograph, that the things contained in the list she brought into his house): these things, then—whether they become the husband’s—let us consider.
and I do not think so, not because they are not delivered to him (for what difference is there, whether they are brought into his house with him willing, or are delivered to him?), but because I do not think this is transacted between husband and wife, that ownership be transferred to him, but rather that it be certain that they were brought into his house, lest, if ever a separation occur, it be denied: and for the most part the husband promises the custody of them, unless they have been entrusted to the woman. we shall see, in the name of these things, if they are not returned, whether the woman can bring the action for things removed or of deposit or of mandate. and if custody is committed to the husband, it will be possible to proceed by the action of deposit or of mandate: if not, the action for things removed will be brought, if the husband retains them with the intention of removing them, or the action ad exhibendum (for production), if he has not attempted to remove them.
Plerumque interest viri res non esse aestimatas idcirco, ne periculum rerum ad eum pertineat, maxime si animalia in dotem acceperit vel vestem, qua mulier utitur: eveniet enim, si aestimata sit et eam mulier adtrivit, ut nihilo minus maritus aestimationem eorum praestet. quotiens igitur non aestimatae res in dotem dantur, et meliores et deteriores mulieri fiunt.
For the most part it is in the husband’s interest that the things not be appraised, so that the peril of the things not pertain to him, especially if he has received animals in dowry or clothing which the woman uses: for it will come about, if it has been appraised and the woman has worn it down, that nonetheless the husband must furnish their appraisal. Whenever therefore things not appraised are given in dowry, both improvement and deterioration accrue to the woman.
Sed fetus dotalium pecorum ad maritum pertinent, quia fructibus computantur, sic tamen, ut suppleri proprietatem prius oporteat et summissis in locum mortuorum capitum ex adgnatis residuum in fructum maritus habeat, quia fructus dotis ad eum pertineat.
But the offspring of dowry cattle pertain to the husband, because they are reckoned as fruits; yet in such a way that the ownership must first be made whole, and, replacements from the newborn having been supplied in the place of the dead heads, the husband has the remainder as fruit, because the fruits of the dowry pertain to him.
Inde quaeri potest, si ante nuptias mancipia aestimata deperierint, an mulieris damnum sit, et hoc consequens est dicere: nam cum sit condicionalis venditio, pendente autem condicione mors contingens exstinguat venditionem, consequens est dicere mulieri perisse, quia nondum erat impleta venditio, quia aestimatio venditio est.
From this it can be asked, if before the nuptials slaves that had been appraised have perished, whether the loss is the woman’s; and it is consequent to say so: for since it is a conditional sale, and while the condition is pending a death occurring extinguishes the sale, it is consequent to say that they perished to the woman’s loss, because the sale had not yet been fulfilled, since the appraisal is the sale.
Si res in dotem datae fuerint quamvis aestimatae, verum convenerit, ut aut aestimatio aut res praestentur, si quidem fuerit adiectum " utrum mulier velit", ipsa eliget, utrum malit petere rem aestimationem: verum si ita fuerit adiectum " utrum maritus velit", ipsius erit electio. aut si nihil de electione adiciatur, electionem habebit maritus, utrum malit res offerre an pretium earum: nam et cum illa aut illa res promittitur, rei electio est, utram praestet. sed si res non exstet, aestimationem omnimodo maritus praestabit.
If things have been given into dowry, although appraised, but it has been agreed that either the valuation or the things be rendered, if indeed there has been added " whichever the woman wishes", she herself will choose whether she prefers to demand the thing or the valuation: but if it has been added thus " whichever the husband wishes", the choice will be his. Or if nothing is added about the choice, the husband will have the choice, whether he prefers to offer the things or their price: for even when this or that thing is promised, it is a choice of the thing, which of the two he should provide. But if the thing does not exist, the husband will in every case provide the valuation.
Si res aestimata post contractum matrimonium donationis causa adprobetur, nulla est aestimatio, quia nec res distrahi donationis causa potest, cum effectum inter virum et uxorem non habeat: res igitur in dote remanebit. sed si ante matrimonium, magis est, ut in matrimonii tempus collata donatio videatur: atque ideo non valet.
If a thing, having been appraised, is approved after the marriage has been contracted for the sake of a donation, the appraisal is null, because a thing cannot be alienated for the sake of a donation, since it has no effect between husband and wife: therefore the thing will remain in the dowry. But if before the marriage, it is rather that the donation be seen as having been conferred for the time of the marriage: and for that reason it is not valid.
Si mulier se dicat circumventam minoris rem aestimasse, ut puta servum, si quidem in hoc circumventa est, quod servum dedit, non tantum in hoc, quod minoris aestimavit: in eo acturam, ut servus sibi restituatur. enimvero si in aestimationis modo circumventa est, erit arbitrium mariti, utrum iustam aestimationem an potius servum praestet. et haec, si servus vivit.
If a woman says that she was circumvented into having estimated a thing at a lesser value, for example a slave, then if she was circumvented in this respect, that she delivered the slave, not merely in this, that she estimated him at less, she will bring an action to the effect that the slave be restored to her. But if she was circumvented only in the measure of the estimation, it will be at the husband’s option whether he provide the just estimation or rather the slave. And this, if the slave is alive.
but if he has died, Marcellus says that rather the valuation must be provided—yet not the just one, but that which was made—because the woman ought to take in good part what was appraised; otherwise, if she had simply delivered it, without doubt it would perish at her risk, not the husband’s. And Marcellus approves the same even where she was circumvented for a lesser amount. Clearly, if the woman had a buyer at a just price, then it must be said that the just valuation is to be provided—and Marcellus writes that this is to be provided only to a wife who is minor in years; but Scaevola notes, as to the husband, that if his fraud was present, the just valuation is to be provided; and I think truer is what Scaevola says.
Quotiens res aestimata in dotem datur, evicta ea virum ex empto contra uxorem agere et quidquid eo nomine fuerit consecutus, dotis actione soluto matrimonio ei praestare oportet. quare et si duplum forte ad virum pervenerit, id quoque ad mulierem redigetur. quae sententia habet aequitatem, quia non simplex venditio sit, sed dotis causa, nec debeat maritus lucrari ex damno mulieris: sufficit enim maritum indemnem praestari, non etiam lucrum sentire.
Whenever valued property is given in dowry, if it is evicted, the husband may proceed by the action ex empto (from purchase) against the wife; and whatever under that head he has recovered, upon the marriage being dissolved he ought, by the dowry action, to render to her. Therefore even if perchance the double has come to the husband, that too shall be restored to the woman. This opinion has equity, because it is not a simple sale, but for the sake of dowry, nor ought the husband to profit from the woman’s loss: for it suffices that the husband be kept unharmed, not also to experience profit.
Si re aestimata data nuptiae secutae non sint, videndum est, quid repeti debeat, utrum res an aestimatio. sed id agi videtur, ut ita demum aestimatio rata sit, si nuptiae sequantur, quia nec alia causa contrahendi fuerit, res igitur repeti debeat, non pretium.
If, a thing having been given with a valuation, the nuptials did not follow, it must be seen what ought to be recovered—whether the thing or the valuation. But it seems to be arranged that only then is the valuation ratified if the nuptials follow, since there would have been no other cause for contracting; therefore the thing ought to be recovered, not the price.
Iulianus scribit valere talem stipulationem: " cum morieris, dotis nomine tot dari?" quia et pacisci soleant, ne a viva exhibeatur. quod non esse simile accepi: aliud est enim differre exactionem, aliud ab initio in id tempus stipulari, quo matrimonium futurum non sit. idque et aristoni et neratio et pomponio placet.
Julianus writes that such a stipulation is valid: "when you die, is so much to be given by way of dowry?" because they are also accustomed to make an agreement that it not be produced while she is alive. Which I have understood is not similar: for it is one thing to defer the exaction, another from the beginning to stipulate for that time at which the marriage will not be in existence. And this pleases both aristo and neratius and pomponius.
Stipulationem, quae propter causam dotis fiat, constat habere in se condicionem hanc " si nuptiae fuerint secutae", et ita demum ex ea agi posse ( quamvis non sit expressa condicio), si nuptiae, constat: quare si nuntius remittatur, defecisse condicio stipulationis videtur.
A stipulation which is made on account of the cause of a dowry is understood to have in itself this condition, " if the nuptials shall have followed", and only then can action be brought on it (although the condition is not expressed), if it is established that the nuptials took place: wherefore, if the engagement is rescinded, the condition of the stipulation is deemed to have failed.
Si ei nuptura mulier, qui stichum debebat, ita cum eo pacta est: " pro sticho, quem mihi debes, decem tibi doti erunt", secundum id quod placuit rem pro re solvi posse et liberatio contingit et decem in dotem erunt, quia et permutatio dotium conventione fieri potest.
If a woman about to marry him, who owed Stichus, thus made a pact with him: "in lieu of Stichus, whom you owe me, ten shall be for you as dowry," then, according to the principle that a thing can be paid for a thing, both discharge occurs and the ten will be in dowry, since a permutation (exchange) of dowries can also be effected by agreement.
Cum pater dotem pro filia promittit et dotem legat, si quidem marito legavit, videndum est, an legatum valeat, et non puto valere: nam cum creditori debitor legat id quod debet, nullum legatum est. quod si filiae legavit, valet legatum: dos enim ex promissione marito debetur, legatum filiae. et si quidem hoc animo testatorem esse filia ostenderit, ut duplicaret ei legatum, habebit utrumque, dotem quam maritus persecutus fuerit et legatum ex causa legati.
When a father promises a dowry on behalf of his daughter and bequeaths a dowry, if indeed he has bequeathed it to the husband, it must be considered whether the legacy is valid, and I do not think it is valid: for when a debtor bequeaths to a creditor that which he owes, there is no legacy. But if he has bequeathed it to the daughter, the legacy is valid: for the dowry is owed to the husband from the promise, the legacy to the daughter. And if indeed the daughter shall have shown that the testator was of this mind, to duplicate the legacy for her, she will have both, the dowry which the husband has pursued and the legacy by reason of the legacy.
but if she wished to have one or the other: if the woman seeks the legacy, with the exception of fraud interposed, the heir will not otherwise be compelled to pay the legacy to her than if she gives security that, under this head, the heir will be kept indemnite against the husband suing on the promise. but if the husband sues, he will have to give no security as to indemnity; rather, the woman, suing after him, will be repelled by an exception, because the dowry has been once rendered.
Si extraneus sit qui dotem promisit isque defectus sit facultatibus, imputabitur marito, cur eum non convenerit, maxime si ex necessitate, non ex voluntate dotem promiserat: nam si donavit, utcumque parcendum marito, qui eum non praecipitavit ad solutionem qui donaverat quemque in id quod facere posset, si convenisset, condemnaverat. hoc enim divus pius rescripsit eos, qui ex liberalitate conveniuntur, in id quod facere possunt condemnandos. sed si vel pater vel ipsa promiserunt, iulianus quidem libro sexto decimo digestorum scribit etiam si pater promisit, periculum respicere ad maritum: quod ferendum non est.
If the person who promised the dowry is an outsider and he has failed in resources, it will be imputed to the husband, for not having proceeded against him, especially if he had promised the dowry from necessity, not from will: for if he made a gift, the husband is in some measure to be spared, since he did not hurl the donor headlong into payment, and would, if he had brought suit, have had him condemned to that which he could perform. For the deified Pius rescripted that those who are proceeded against on account of liberality are to be condemned to that which they can do. But if either the father or she herself promised, Julian, indeed, in the sixteenth book of the Digest, writes that even if the father promised, the risk looks to the husband: which is not to be borne.
Therefore the risk ought to be the woman’s: for the judge will in no way hear with his own ears the woman saying why he did not press her father, who promised the dowry out of his own, to effect payment, much less why he did not sue her herself. Therefore Sabinus rightly laid it down, to say that what the father or the woman herself promised is not at the husband’s peril; that what the debtor [promised], that is the husband’s; that what another, namely a donor-to-be, [promised], is at the peril of the one to whom it is acquired: moreover, we will understand it to be acquired to the woman, to whom the advantage of the matter has regard.
Mater cum filiae aurum dedisset utendum, pater puellae id aurum in dotem viro adpendit: dein mortua est mater. si inscia invitave uxore vir id aurum in dotem dedisset, manet id aurum heredis matris vindicarique potest et eo minorem dotem viro datam esse placuit: quia res evicta est, marito competit adversus socerum actio.
After the mother had given gold to her daughter for use, the girl’s father weighed out that gold into the dowry for the husband; then the mother died. If, with the wife unaware or unwilling, the husband had given that gold into the dowry, that gold remains claimable by the mother’s heir and can be vindicated, and it was decided that thereby a smaller dowry was given to the husband: because the thing has been evicted, an action lies to the husband against his father-in-law.
Sane videndum est, an marito mulier, quae iussit accepto ferri, obligetur. et putem obligari mandati actione et hoc ipsum in dotem converti, quod mulier mandati iudicio obligata est. et quod dicitur rem mulieri perire, consequens est: nam si coeperit velle de dote agere, ipsa secum debebit compensare iussum suum.
Indeed it must be considered whether a woman, who ordered it to be entered to her credit as received, is obligated to her husband. And I think she is bound by the action of mandate, and that this very thing is converted into the dowry, namely that the woman is bound by the judgment in a mandate. And what is said—that the thing perishes to the woman—follows: for if she begins to wish to sue concerning the dowry, she will have to set off against herself her own order.
Si serva servo quasi dotem dederit, deinde constante coniunctione ad libertatem ambo pervenerint peculio eis non adempto et in eadem coniunctione permanserint, ita res moderetur, ut, si quae ex rebus corporalibus velut in dotem tempore servitutis datis exstiterint, videantur ea tacite in dotem conversa, ut earum aestimatio mulieri debeatur.
If a female slave has given to a male slave, as if a dowry, and thereafter, with the union continuing, both have attained to liberty, their peculium not being taken from them, and have remained in the same union, let the matter be regulated thus: that, if any items from corporeal things given, as it were, into dowry in the time of servitude are found to exist, they are deemed tacitly converted into dowry, so that the valuation of them is owed to the woman.
Divus severus rescripsit pontio lucriano in haec verba: " si mulier, quae dotem dederat, post divortium rursus in matrimonium redit non revocatis instrumentis, non dubitabit is, apud quem res agetur, secundum voluntatem mulieris, quae utique non indotata redire in matrimonium voluit, partibus suis fungi quasi renovata dote".
The Deified Severus issued a rescript to Pontius Lucrianus in these words: " if a woman who had given a dowry, after a divorce returns again into marriage, the instruments not having been revoked, he before whom the matter will be conducted will not hesitate, according to the will of the woman—who certainly wished not to return into marriage undowered—to discharge his functions as if the dowry had been renewed".
Si a debitore mulieris sub condicione dos promittatur et postea, sed antequam maritus petere posset, debitor solvendo esse desierit, magis periculum ad mulierem pertinere placet: nec enim videri maritum nomen secutum eo tempore, quo exigere non poterit. quod si iam tunc debitor, cum sub condicione promitteret, solvendo non fuerit, periculum viri esse, quod sciens tale nomen secutus videretur, quale initio obligationis fuerit.
If from the woman’s debtor a dowry is promised under a condition, and afterwards, but before the husband could sue, the debtor has ceased to be solvent, it is held rather that the risk pertains to the woman: for the husband does not seem to have taken over the claim at a time when he could not exact it. But if already at that time the debtor, when he promised under a condition, was not solvent, the risk is the husband’s, because he would seem to have knowingly taken over such a claim as it was at the inception of the obligation.
Si debitor mulieris dotem promiserit et mulierem heredem reliquerit, labeo perinde habendum ait, ac si mulier ipsa dotem promisisset. cuius sententiam iulianus quoque probat: nec enim aequum esse ait, ut ei damnetur eius pecuniae nomine, quam ipsa debeat, et satis esse acceptilatione eam liberari.
If the debtor of a woman has promised a dowry and has left the woman as heir, Labeo says it is to be regarded just as if the woman herself had promised the dowry. Julian also approves this opinion: for he says it is not equitable that she be condemned under the heading of that money which she herself owes, and that it is sufficient for her to be released by acceptilation.
Res in dotem datae, quae pondere numero mensura constant, mariti periculo sunt, quia in hoc dantur, ut eas maritus ad arbitrium suum distrahat et quandoque soluto matrimonio eiusdem generis et qualitatis alias restituat vel ipse vel heres eius.
Things given in dowry, which consist by weight, number, or measure, are at the husband’s peril, because they are given for this purpose: that the husband may at his arbitrament dispose of them, and, when at some time the marriage is dissolved, he or his heir may restore others of the same kind and quality.
Licet soleat dos per acceptilationem constitui, tamen, si ante matrimonium acceptilatio fuerit interposita nec nuptiae secutae, scaevola ait matrimonii causa acceptilationem interpositam non secutis nuptiis nullam esse atque ideo suo loco manere obligationem: quae sententia vera est.
Although a dowry is accustomed to be constituted by acceptilation, nevertheless, if before marriage an acceptilation has been interposed and the nuptials did not follow, Scaevola says that an acceptilation interposed for the sake of marriage, the nuptials not having followed, is null, and therefore the obligation remains in its place (remains in force): which opinion is true.
Quotiens autem extraneus accepto fert debitori dotis constituendae causa, si quidem nuptiae insecutae non fuerint, liberatio non sequetur: nisi forte sic accepto tulit, ut velit mulieri in totum donatum: tunc enim credendum est brevi manu acceptum a muliere et marito datum: ceterum mulieri per liberam personam condictio adquiri non potest.
Whenever, however, a stranger performs acceptilation to the debtor for the sake of a dowry being constituted, if indeed the nuptials do not ensue, release will not follow: unless perhaps he has so performed the acceptilation as to will it to have been donated to the woman in its entirety: for then it is to be believed that, brevi manu, the accepted sum was received from the woman and given to the husband: moreover, a condictio cannot be acquired for a woman through a free person.
Plane secutis nuptiis mulier soluto matrimonio dotis exactionem habebit, nisi forte sic accepto tulit extraneus, ut ipse, quoquo modo solutum fuerit matrimonium, condictionem habeat: tunc enim non habebit mulier actionem. secundum quae constituta dote per acceptilationem et secutis nuptiis is effectus erit dotis exactioni, ut, si quidem pura sit obligatio quae accepto lata est, non ipsa iam restituenda sit, sed solvenda dos secundum sua tempora. sin vero obligatio in diem fuit nec ante solutum matrimonium dies obligationis praeteriit, restauranda est in diem pristinum obligatio et, si debitum cum satisdatione fuerit, satisdatio renovanda est.
Clearly, once the nuptials have followed, the woman, the marriage being dissolved, will have the exaction of the dowry, unless perhaps a third party so received a release by acceptilation that he himself, however the marriage may have been dissolved, has the condiction: for then the woman will not have an action. Accordingly, with the dowry constituted by acceptilation and the nuptials following, this will be the effect for the exaction of the dowry: that, if indeed the obligation which was discharged by acceptilation is pure, it is no longer itself to be restored, but the dowry is to be paid according to its times. But if the obligation was for a day (in diem) and, before the marriage was dissolved, the day of the obligation had not passed, the obligation is to be restored to its former day, and, if the debt was with suretyship (satisdatio), the suretyship is to be renewed.
and in like manner, if the obligation which was converted into dowry was conditional, and, with the obligation pending, a divorce ensued, the truer view is that the obligation ought to be restored under the same condition; but if the condition came to pass while the marriage was subsisting, from the day of the divorce the periods of exaction are counted.
Quae debitorem filium familias habet, si patri eius ita dotem promiserit: " quod mihi debes vel quod mihi filius tuus debet, doti tibi erunt", non obligatur, sed efficit, ut id, quod actione de peculio servari a patre poterat, in dote sit. Marcellus. sive igitur cum filio post hac sive cum patre agere instituerit, exceptione pacti conventi summovebitur: actione autem de dote si experietur, consequetur quod in peculio fuisse apparuerit eo tempore quo dos promittebatur: utique si post nuptias promissa dos est.
She who has as debtor a son-in-power, if she has promised a dowry to his father in this way: "what you owe me or what your son owes me shall be for you as dowry," is not bound, but brings it about that that which could be obtained from the father by the action de peculio is in the dowry. Marcellus. Therefore, whether thereafter she has set about to sue the son or the father, she will be warded off by the exception of a settled pact; but if she proceeds by an action for dowry, she will obtain what shall have appeared to have been in the peculium at the time when the dowry was being promised—certainly if the dowry was promised after the nuptials.
Quemadmodum invito domino servus stipulatus adquirit, ita, si dotem domini nomine sibi promitti patiatur, obligatio domino adquiritur. sed neque periculum dominus praestare debebit ( si forte debitor mulieris dotem promiserit) neque culpam. traditione quoque rei dotalis in persona servi vel filii familias facta dos constituitur ita, ut neque periculum nec culpam dominus aut pater praestet.
Just as, with the master unwilling, a slave who has stipulated acquires, so too, if he allows a dowry to be promised to himself in the master’s name, the obligation is acquired to the master. But the master will have to furnish neither risk nor fault (if perchance the woman’s debtor has promised the dowry). Likewise, by delivery (traditio) of the dowry-thing made to the person of the slave or of a son in power, the dowry is constituted, in such a way that neither the master nor the father bears risk or fault.
therefore I say that this dowry is at the peril of the woman, so long as the master or the father shall have held the promise or the donation ratified: and therefore, even with the marriage remaining, she will recover by condiction the things which she has delivered, likewise she will obtain by a condiction of an uncertain thing, so that she may be freed from the promise.
Si debitori suo mulier nuptura ita dotem promisisset: " quod mihi debes aut fundus sempronianus doti tibi erit", utrum mulier vellet, id in dote erit: et si quidem debitum maluisset dotis nomine apud virum remanere, potest ea exceptione se tueri adversus petentem fundum: quod si fundum dedisset, pecuniam marito condicet.
If a woman about to marry had thus promised a dowry to her debtor: "what you owe me, or the Sempronian farm, shall be to you for dowry," whichever the woman should choose, that will be in the dowry; and if indeed she preferred that the debt remain with the husband under the name of dowry, she can protect herself by that exception against one claiming the farm; but if she gave the farm, she will bring a condictio for the money against her husband.
Tali facta stipulatione: " decem in anno proximo dotis nomine dare spondes?" quaesitum est, annus ex quo tempore esset numerandus, utrum ex die stipulationis factae an ex eo die, quo dos esse potuisset, id est nuptiarum. et responsum est ex die nuptiarum annum esse numerandum, ne, si aliter observaremus, si intra annum nuptiae factae non sint, videri possit dos ex ea obligatione deberi.
With such a stipulation having been made: " do you promise to give ten by way of dowry in the next year?" it was asked from what time the year should be counted, whether from the day the stipulation was made or from that day on which the dowry could have come to be—that is, the nuptials. And it was answered that the year is to be counted from the day of the nuptials, lest, if we were to observe otherwise, if the nuptials have not taken place within the year, it might seem that a dowry is owed under that obligation.
Socer genero suo sic legaverat: " lucio titio filiae meae nomine centum heres meus damnas esto dare". hanc pecuniam generum petere debere, exactam acceptam legatis referri, sed divortio facto de dote actione mulieri reddendam proculus respondit et nihilo minus dotis esse factam. iulianus notat: immo nec filiae, si voluerit, deneganda est huiusmodi actio.
The father-in-law had thus bequeathed to his son-in-law: " lucius titius, in my daughter's name, let my heir be under obligation to give one hundred." Proculus replied that the son-in-law ought to demand this money, that, when exacted and received, it should be accounted to the legacies; but that, once a divorce has occurred, it must be returned to the woman by an action for dowry, and nonetheless it has been made part of the dowry. Julian notes: nay, not even to the daughter, if she should wish, is such an action to be denied.
Vir ab eo, qui uxori eius dotem facere volebat, certam pecuniam eo nomine stipulatus est, deinde acceptam eam fecit: quaerebatur, essetne ea pecunia in dotem. respondit, si acceptam non fecisset et promissor solvendo esse desisset, quaereremus, an culpa mariti ea pecunia exacta non esset: cum vero acceptam fecit, omnimodo periculum ad eum pertinebit: perinde enim est, ac si acceperit pecuniam et eandem promissori donaverit.
the husband, from the man who wished to make a dowry for his wife, stipulated a certain sum of money under that title, then entered it as accepted: it was asked whether that money was in the dowry. he answered that, if he had not entered it as accepted and the promisor had ceased to be solvent, we would inquire whether through the husband’s fault that money had not been exacted; but since he did make it accepted, in every way the risk will pertain to him: for it is just as if he had received the money and had donated the same to the promisor.
Quae fundum in dote habebat, divortio facto cum in matrimonium rediret, pacta est cum viro, uti decem in dotem acciperet et fundum sibi restitueret, ac datis decem, priusquam fundus ei restitueretur, in matrimonio decessit. illud ex bona fide est et negotio contracto convenit, ut fundus, quasi sine causa penes maritum esse coeperit, condicatur.
She, who had an estate in her dowry, a divorce having been effected, when she returned into marriage, made a pact with the man that she should receive ten in dowry and that the estate be restored to herself; and, the ten having been given, before the estate was restored to her, she died in marriage. It accords with good faith and with the contracted transaction that the estate, as if it had begun to be in the husband’s possession without cause, be recoverable by condictio.
Et hoc evidentius circa actionem pigneraticiam apparebit. etenim si, cum fundum cornelianum pignoris causa tibi tradidissem, postea ex conventione fundum titianum in hoc tibi tradiderim, ut cornelianum mihi restitueres: minime puto dubitandum erit, quin statim recte pigneraticia ad recipiendum cornelianum agere possim.
And this will appear more evident with respect to the pigneratic action. For indeed, if, when I had delivered the Cornelian estate to you for the cause of pledge, afterward by convention I delivered to you the Titian estate for this, that you would restore the Cornelian to me: I think there will be by no means any doubt that I can at once properly sue by the pigneratic action to receive back the Cornelian.
Non solum si aestimatus fundus, sed etiam si non aestimatus in dotem datus est et alias, cum necesse non habeat mulier duplum promittere, promisit: quia ipse fundus est in dote, quodcumque propter eum consecutus fuerit a muliere maritus, quandoque restituet mulieri de dote agenti.
Not only if an appraised landed estate, but even if a not-appraised one has been given into dowry, and, moreover, in other cases when, although the woman need not promise the double, she has promised it: since the estate itself is in the dowry, whatever by reason of it the husband shall have obtained from the woman, he will at some point restore to the woman bringing an action concerning the dowry.
Cum vir uxori donare vellet, debitor mulieris qui solvendo non erat dotem ei promisit. ad id dumtaxat, ad quod solvendo fuit, viri periculo ea res est: et si quid debitori ad solvendum facultatis accesserit, periculum ad eam summam quae accesserit crescet permanebitque etiam, si rursus pauperior factus erit: quia neque tum, cum dos promitteretur, donatio facta est nisi eius pecuniae quae a debitore servari non poterat, neque cum solvendo is esse coepit, donationis causa permaneat, cum eo loco res sit, quo esset, si tum quoque, cum promitteretur dos, locuples fuisset.
When a husband wished to make a gift to his wife, the woman’s debtor, who was not solvent, promised the dowry to him. Only to that extent, to which he was solvent, is the matter at the husband’s peril; and if any capacity to pay accrues to the debtor, the peril will increase to the sum that has accrued and will remain even if he again becomes poorer: because neither then, when the dowry was promised, was a donation made except of that money which could not be recovered from the debtor; nor, when he began to be solvent, does the causa of the donation persist, since the matter stands in that position in which it would be if also then, when the dowry was promised, he had been solvent.
Si is qui stichum mulieri debet in dotem delegatus sit et antequam solveret debitor, stichus decesserit, cum neque per debitorem stetisset quo minus solveret, neque maritus in agendo moram fecisset: periculo mulieris stichus morietur: quamquam etiamsi moram maritus fecerit in exigendo, si tamen etiam apud maritum moriturus stichus fuerit, actione dotis maritus non teneatur.
If the person who owes Stichus to the woman as a dowry has been delegated, and before the debtor paid Stichus died, since it was neither due to the debtor that he failed to pay nor had the husband made delay in proceeding: at the woman’s risk Stichus will die: although even if the husband has made delay in exacting, nevertheless if Stichus would have been going to die even while in the husband’s keeping, the husband is not held by the action for dowry.
Quod dicitur necessarias impensas ipso iure dotem minuere, non eo pertinet, ut, si forte fundus in dote sit, desinat aliqua ex parte dotalis esse, sed, nisi impensa reddatur, aut pars fundi aut totus retineatur. sed si tantum in fundum dotalem impensum sit per partes, quanti fundus est, desinere eum dotalem esse scaevola noster dicebat, nisi mulier sponte marito intra annum impensas obtulerit. si pecunia et fundus in dote sint et necessariae impensae in fundum factae, nerva ait dotem pecuniariam minui.
The statement that necessary expenses by the law itself diminish the dowry does not mean that, if perchance a farm is in the dowry, it ceases in some part to be dotal, but that, unless the expense is repaid, either a part of the farm or the whole is retained. But if so much has been expended upon the dotal farm, by parts, as the farm is worth, our Scaevola said that it ceases to be dotal, unless the woman of her own accord has tendered the expenses to her husband within a year. If money and a farm are in the dowry and necessary expenses have been made upon the farm, Nerva says the pecuniary dowry is diminished.
What then if the woman pays the expenses to the husband—will the dowry increase, or will it be seen as given afresh in its entirety? The clearer inequity of this matter appears in the case of the estate, according to the opinion of our Scaevola: for if it ceases to be dotal, it can be alienated; again, how can it become dotal upon money being paid? Or will the money now be seen to be in the dowry?
Nuptura filio familias si socero dotem ita promiserit: " quod filius tuus mihi debet, id doti tibi erit", interesse puto, utrum filii obligatio an patris persecutio et in rem versum promissioni contineatur. nam si id quod filium dare oportet significatum est, tota pecunia, in quam filius obligatus est, promissioni dotis continebitur: sin autem id, quod patrem de peculio vel in rem verso praestare oportebit, aestimare debebit quantum sit eo tempore id quod promittitur, ut ea summa dotis esse videatur, qua patrem eo tempore filii nomine condemnari oportebit. quod si non evidenter apparuit, de cuius mulier obligatione sensit, praesumptionem ad filii debitum spectare verisimile est, nisi evidentissime contrarium adprobetur.
If a woman about to marry a son under paternal power should promise a dowry to her father-in-law thus: "what your son owes to me, that shall be to you for the dowry," I think it matters whether the son’s obligation or the father’s right of pursuit and the in rem versum are encompassed in the promise. For if that which it behooves the son to give is indicated, the whole money in which the son is obligated will be contained in the promise of the dowry; but if it is that which the father ought to render de peculio or in rem versum, it must be assessed how much that which is promised amounts to at that time, so that that sum may be seen to be the dowry, in which sum at that time the father ought to be condemned in the son’s name. But if it has not clearly appeared with respect to whose obligation the woman meant, it is plausible that the presumption looks to the son’s debt, unless the contrary is most manifestly proved.
Si mulier ancillam pamphilam a titio stipulata, deinde ei nuptura quod is sibi debebat doti habere permisit, etiamsi non erit viri pamphila, an ipsa tamen pamphila in dote et mulieris periculo erit? an et quod ea pepererit, reddi mulieri debebit? quia si in sua causa prior stipulatio mansisset, non redderetur.
If a woman, having stipulated from Titius for the slave-girl Pamphila, then, being about to marry him, permitted that what he owed her be held for the dowry, even if Pamphila will not be the husband’s, will Pamphila herself nevertheless be in the dowry and at the woman’s peril? Or must even what she has borne be returned to the woman? For if the prior stipulation had remained in its own case, it would not be returned.
unless perhaps it matters whether the husband had the thing which he owed at the time when the dowry was being constituted: for thus it could seem that the thing itself had come to him: or that he did not have it: for if he did not have it, it is rather the case that a liberation of the obligation, rather than the thing itself, is seen to have thus come to him, and therefore its offspring is not owed.
Si mulier ita dotem promiserit: " decem tibi aut titio doti erunt", hoc casu dici potest vel titio dari posse, sed de dote virum teneri, quemadmodum si titio iussisset dari. nec mirum, cum etiam promissura viro dotem possit delegante eo alteri promittere, etsi dici solet alii quam marito dotis nomine mulierem non posse obligari. his enim casibus viro dos quaeritur.
If a woman has thus promised a dowry: " ten to you or to Titius shall be for dowry," in this case it can be said that it may also be given to Titius, but as to the dowry the husband is the one bound, just as if she had ordered it to be given to Titius. Nor is this surprising, since even when about to promise a dowry to her husband she can, with him delegating, promise it to another, although it is commonly said that a woman cannot be obligated under the name of dowry to anyone other than her husband. For in these cases the dowry is being procured for the husband.
Ex asse heres institutus rogatusque mulieri dodrantem hereditatis restituere iussu eius quod debet doti promisit marito. vereor, non sit obligatus: nam mulieri in hoc tenetur, ut hereditatem restituendo transferat actiones et quas habet et quibus est obstrictus, quas transferre ad alium, quam cui debet fideicommissum, non potest. aliquis dixerit incerti cum eo agi posse, fideicommissi praestet aestimationem.
An heir instituted for the whole share and requested to restore to the woman three-quarters (dodrans) of the inheritance, at her order promised to the husband that which is owed for dowry. I fear he is not obligated: for he is held to the woman in this—that by restoring the inheritance he transfer the actions both which he has and by which he is bound, which he cannot transfer to any other than the one to whom he owes the fideicommiss. Someone might say that an incerti action can be brought against him, so that he furnish the valuation of the fideicommiss.
I cannot consent to this: for it is equitable that the debtor of the woman be obligated only thus, if the husband can receive that very thing which is owed to her. But lest the woman appear undowered, it must be said that, under the Trebellianic rule, the part of the inheritance that was left to her is to be restored to the woman herself, so that with it she might pay it to her husband as dowry; because both the fideicommissum and its burdens pertain to her, the delegation by no means obtaining, on account of excessive subtlety and the necessity of the case.
Eius nomine quae libera videbatur decem in dote dedisti: eo casu habebis condictionem, quo habere potuisses, si mulieris liberae nomine dedisses nec nuptiae secutae essent. si manumissa nupserit, ita demum dos erit, si ea mente dedisti, ut quandoque secutis nuptiis dos esset. igitur si mulieri donaturus dedisti, dominus condicet, quemadmodum si eum qui sibi donaturus esset mulier ipsam donare iussisset.
In the name of her who appeared free you gave ten as dowry: you will have a condiction in the same case in which you would have had it, if you had given in the name of a free woman and the nuptials had not followed. If, when manumitted, she marries, then and only then will it be a dowry, if you gave with that intention, that whenever nuptials followed it would be a dowry. Therefore, if you gave intending to make a gift to the woman, the master will bring a condiction, just as if the woman had ordered him who was going to make a gift to her to give to herself.
Sive generalis curator sive dotis dandae causa constitutus sit et amplius doti promissum est quam facultates mulieris valent, ipso iure promissio non valet, quia lege rata non habetur auctoritas dolo malo facta. quaerendum tamen est, utrum tota obligatio an quod amplius promissum est, quam promitti oportuit, infirmetur? et utilius est dicere id quod superfluum est tantummodo infirmare.
Whether a general curator or one appointed for the purpose of giving a dowry has been constituted, and more has been promised to the dowry than the woman’s means can bear, by operation of law the promise is not valid, because by law an authorization brought about by malicious fraud is not held ratified. Yet the question is to be asked whether the whole obligation is invalidated, or only that which has been promised beyond what ought to have been promised; and it is more useful to say that only what is superfluous is infirmed.
Iste autem curator res dotis nomine tradere debet, non etiam ut vendat cuilibet et pretium eius in dotem det. dubitari autem potest, an hoc verum sit: quid enim si aliter honeste nubere non possit, quam ut pecuniam in dotem det idque ei magis expediat? atquin possunt res in dotem datae plerumque alienari et pecunia in dotem converti.
This curator, moreover, ought to hand over the property under the title of dowry, not moreover to sell it to anyone at all and pay its price into the dowry. Yet it can be doubted whether this is true: for what if she cannot otherwise marry honorably than by giving money as a dowry, and that is more expedient for her? And indeed the things given into dowry can for the most part be alienated, and money converted into dowry.
but in order that the question may be expedited, if indeed the husband has preferred to receive the things as a dowry, nothing further is to be sought: but if the man does not allow the marriage to be contracted otherwise than with monies given into dowry, then it is the duty of the curator to go before that same judge who appointed him, so that, the case having been examined again, even with the man absent, he may permit, once the sale of the things has been carried through, the dowry to be constituted.
Titia cum esset minor viginti quinque annis, quartam hereditatis matris suae communem sibi cum fratribus mutavit et accepit pro ea parte fundum quasi emptione inter se facta: hunc fundum cum aliis rebus doti dedit. quaero, si in integrum restituatur et partem suam accipiat quartam et reddat fundum, quid debeat maritus facere? an contentus esse debeat aliis rebus in dotem datis?
Titia, since she was under twenty-five years old, exchanged the fourth share of her mother’s inheritance, which was common to her with her brothers, and in return for that share received a farm (fundus), as if by a sale made between themselves: she gave this farm, together with other things, as dowry. I ask, if she is restored in full (in integrum restitutio) and receives her own quarter-share and returns the farm, what ought the husband to do? or ought he to be content with the other things given in dowry?
likewise I ask, if she has died and her heirs seek in integrum restitution on her behalf and they themselves demand the fourth part and the others the farm, whether the husband is compelled to restore the farm, being content with the retention of the profit of the dowry in the other things? modestinus responded that nothing is set forth why the dowry should be taken away from the husband: but the woman or her heirs are to be condemned to the true valuation of the estate, to be referred to the time at which it was given into dowry.
Stipulatio de dote reddenda ab extraneo interposita facto divortio statim committitur nec redintegrato matrimonio actio stipulatori quaesita intercidit: denuo igitur consentiente stipulatore dos constituenda est, ne sequenti matrimonio mulier indotata sit: si modo ea dos non ab ipsa profecta sit, quam alius permissu eius stipulatus est, tunc enim consensus eius non est necessarius.
A stipulation concerning the dowry to be returned, interposed by a third party, is immediately incurred upon a divorce, nor, when the marriage has been redintegrated, does the action acquired by the stipulator lapse: therefore, with the stipulator consenting, the dowry must be constituted anew, lest in the subsequent marriage the woman be without a dowry: provided only that that dowry did not proceed from herself, which another stipulated with her permission; for then her consent is not necessary.
Si usus fructus fundi, cuius proprietatem mulier non habebat, dotis nomine mihi a domino proprietatis detur, difficultas erit post divortium circa reddendum ius mulieri, quoniam diximus usum fructum a fructuario cedi non posse nisi domino proprietatis et, si extraneo cedatur, id est ei qui proprietatem non habeat, nihil ad eum transire, sed ad dominum proprietatis reversurum usum fructum. quidam ergo remedii loco recte putaverunt introducendum, ut vel locet hunc usum fructum mulieri maritus vel vendat nummo uno, ut ipsum quidem ius remaneat penes maritum, perceptio vero fructuum ad mulierem pertineat.
If the usufruct of a farm, the ownership of which the woman did not have, is given to me by the owner of the property in the name of a dowry, there will be difficulty after a divorce concerning returning the right to the woman, since we have said that a usufruct cannot be ceded by the usufructuary except to the owner of the property, and, if it is ceded to an outsider, that is, to one who does not have ownership, nothing passes to him, but the usufruct will return to the owner of the property. Therefore some, as a remedy, thought it right to introduce this: that the husband either lease this usufruct to the woman or sell it for a single coin, so that the right itself remains with the husband, but the perception of the fruits pertains to the woman.
Proculus nepoti suo salutem. ancilla quae nupsit dotisque nomine pecuniam viro tradidit, sive sciat se ancillam esse sive ignoret, non poterit eam pecuniam viri facere eaque nihilo minus mansit eius cuius fuerat antequam eo nomine viro traderetur, nisi forte usucapta est. nec postea quam apud eundem virum libera facta est, eius pecuniae causam mutare potuit.
Proculus to his grandson, greetings. A female slave who has married and, in the name of a dowry, has handed over money to her husband, whether she knows herself to be a slave or is ignorant of it, cannot make that money the husband’s; and nonetheless it remained the property of the person to whom it had belonged before it was, under that title, delivered to the husband, unless perhaps it has been acquired by usucapion. Nor, after she was made free while with the same husband, could she change the cause (title) of that money.
accordingly, not even with a divorce having been effected can she rightly recover it either by the right of dowry or by a condiction; but he whose money it is rightly vindicates it. But if the husband, by possessing that money as his own, has usucapted it—namely because he supposed the woman to be free—it is nearer to the mark that I judge he has made a gain, especially if he usucapted it before the marriage began to be. And I am of the same opinion if he procured anything from that money before it became a dowry, even if he does not possess it, provided that he did not act by fraud to the effect that he not possess it.
Dotis promissio non ideo minus valebit, quod ignorante initio patre nuptiae non fuerint, si postea consenserit, cum omnis dotis promissio futuri matrimonii tacitam condicionem accipiat. nam et si minor annis duodecim ut maior deducta sit, tunc primum petetur, cum maior annis apud eundem esse coeperit: quod enim volgatum est dotis promissionem in primis dumtaxat nuptiis destinare neque durare obligationem, si post alterius matrimonium ei nubat cui dotem promiserat, tunc locum habet, cum intercesserunt aliae nuptiae.
A promise of dowry will not for that reason be less valid because, the father being ignorant at the outset, the nuptials did not occur, if he later consents, since every promise of dowry for a future marriage takes on the tacit condition of that marriage’s coming into being. For even if a girl under 12 years has been led home as though of full age, it will first be claimable when she has begun to be of full years in the same household. For the commonplace saying that a promise of dowry is destined for the first nuptials only, and that the obligation does not endure if, after another marriage, she weds the one to whom the dowry had been promised, has its place when other nuptials have intervened.
Cum post divortium viro sciente mulier in possessionem praediorum quae in dotem promisit longo tempore fuerit, convenisse tacite videtur, ne dos quae promissa fuerat petatur, et, si petere ea coeperit, pacti exceptione a muliere repellitur.
When, after a divorce, with the husband aware, the woman has for a long time been in possession of the estates which she had promised as a dowry, it seems to have been tacitly agreed that the dowry which had been promised not be sought; and, if he begins to claim them, he is repelled by the woman through the defense of pact (exceptio pacti).
Gener a socero dotem arbitratu soceri certo die dari non demonstrata re vel quantitate stipulatus fuerat: arbitrio quoque detracto stipulationem valere placuit, nec videri simile, quod fundo non demonstrato nullum esse legatum vel stipulationem fundi constaret, cum inter modum constituendae dotis et corpus ignotum differentia magna sit: dotis etenim quantitas pro modo facultatium patris et dignitate mariti constitui potest.
The son-in-law had stipulated from his father-in-law that the dowry be given on a fixed day at the discretion (arbitrium) of the father-in-law, with neither the thing nor the quantity specified: it was decided that the stipulation is valid even with the discretion removed; nor did it seem similar to the case that, the fundus not specified, a legacy or stipulation of a fundus is null, since there is a great difference between the mode of constituting a dowry and an unknown corpus; for the quantity of the dowry can be constituted according to the measure of the father’s faculties and the dignity of the husband.
Cum res in dotem aestimatas soluto matrimonio reddi placuit, summa declaratur, non venditio contrahitur: ideoque rebus evictis, si mulier bona fide eas dederit, nulla est actio viro: alioquin de dolo tenetur.
When, upon the marriage being dissolved, it is agreed that things appraised for a dowry are to be returned, the sum is declared, not a sale contracted; and therefore, if the objects are evicted, if the woman has given them in good faith, there is no action for the husband; otherwise she is liable for fraud.
Mulier bona sua omnia in dotem dedit: quaero, an maritus quasi heres oneribus respondere cogatur. paulus respondit eum quidem, qui tota ex repromissione dotis bona mulieris retinuit, a creditoribus conveniri eius non posse, sed non plus esse in promissione bonorum quam quod superest deducto aere alieno.
A woman gave all her goods into dowry: I ask whether the husband is compelled to answer for the burdens as if an heir. Paulus answered that he who retained all the woman’s goods by virtue of the re-promise of the dowry cannot be proceeded against by her creditors, but that there is no more in the promise of the goods than what remains after deducting the debt owed to others.
Manente matrimonio non perditurae uxori ob has causas dos reddi potest: ut sese suosque alat, ut fundum idoneum emat, ut in exilium vel in insulam relegato parenti praestet alimonia, aut ut egentem virum fratrem sororemve sustineat.
With the marriage remaining in force, the dowry can be returned to a wife who is not going to forfeit it for these causes: that she may support herself and her own; that she may buy a suitable estate; that she may provide alimony to a parent relegated into exile or onto an island; or that she may sustain an indigent husband, brother, or sister.
Quamvis in bonis mariti dos sit, mulieris tamen est, et merito placuit, ut, si in dotem fundum inaestimatum dedit, cuius nomine duplae stipulatione cautum habuit, isque marito evictus sit, statim eam ex stipulatione agere posse. porro cuius interest non esse evictum quod in dote fuit quodque ipsa evictionem pati creditur ob id, quod eum in dotem habere desiit, huius etiam constante matrimonio, quamvis apud maritum dominium sit, emolumenti potestatem esse creditur, cuius etiam matrimonii onera maritus sustinet.
Although the dowry is among the husband’s goods, yet it is the woman’s; and it has rightly pleased (been settled) that, if she gave as dowry a fundus not appraised, in whose name she had security by a stipulation of double, and it has been evicted from the husband, she can at once proceed ex stipulatione. furthermore, since it is to the interest of the person that what was in the dowry not be evicted, and since she herself is deemed to suffer eviction for this reason, that she has ceased to have it in dowry, it is believed that this person, even while the marriage subsists, although the dominium is with the husband, has the power of the emolument, the husband also bearing the burdens of that marriage.
Si pater mulieris mortis suae causa dotem promiserit, valet promissio: nam et si in tempus, quo ipse moreretur, promisisset, obligaretur. sed si convaluerit, cur ei non remittatur obligatio per condictionem, atque si stipulanti quivis alius promisisset aut dotem alicuius nomine? nam ut corporis vel pecuniae translatae, ita obligationis constitutae mortis causa condictio est.
If the father of a woman, in contemplation of his own death, has promised a dowry, the promise is valid: for even if he had promised for the time at which he himself would die, he would be bound. But if he recovers, why should the obligation not be remitted to him by a condictio, just as if anyone else had promised to the stipulator or a dowry on someone’s behalf? For just as there is a condictio for a corporeal thing or money transferred mortis causa, so too there is one for an obligation constituted mortis causa.
Si mulier debitori suo, qui sub usuris debebat, nuptura dotem promisisset quod is sibi deberet, post contractas nuptias secuti temporis usuras non esse dotales, quia illa obligatio tota tolleretur, perinde ac si solutum debitum mulieri in dotem ab ea datum esse.
If a woman, being about to marry, had promised as dowry to her debtor—who owed under usuries (interest)—that which he owed to her, then after the nuptials have been contracted, the interest of the subsequent time is not dotal, because that obligation would be entirely removed, just as if the debt, once paid, had been given by her into dowry to the woman.
Cum in fundo mariti habens mulier usum fructum dotis causa eum marito dedit, quamvis ab ea usus fructus decesserit, maritus tamen non usum fructum habet, sed suo fundo quasi dominus utitur, consecutus per dotem plenam fundi proprietatem, non separatam usu fructu, nec est, quod non utendo maritus amittat. divortio autem facto constituet in eodem fundo usum fructum mulieri. quod si in matrimonio decesserit uxor, nihil emolumenti ob dotem habere videtur maritus, quia et si uxorem eam non duxisset, fructuariae morte finitus usus fructus ad proprietatem rediret: ideoque nec in funus confert mulieris.
When, in the husband’s estate, a woman, having a usufruct, for the sake of the dowry gave it to the husband, although the usufruct has lapsed for her, nevertheless the husband does not have a usufruct, but uses his own estate as if owner, having obtained through the dowry the full ownership of the estate, not separated by a usufruct; nor is there anything that the husband loses by not using it. But when a divorce has been effected, he will establish in the same estate a usufruct for the woman. But if the wife has died in marriage, the husband seems to have no emolument on account of the dowry, because even if he had not married her, upon the death of the usufructuary the usufruct, being ended, would return to the ownership: and therefore he does not contribute to the woman’s funeral.
Quod si mulier in fundo suo marito usum fructum dotis causa constituerit, tunc ex mariti persona erit usus fructus proprie, qui et non utendo ipsius pereat: quod si acciderit, videamus, an etiamnunc dotata sit mulier. et si quidem dominium apud mulierem est fundi, ad quem reversus est usus fructus, nihil iam in dote habet, quod actione dotis consequatur ab eo, cui quod non utendo amisit usum fructum imputari non potest, ex quo ipsa lucrum habet: ideoque indotata erit. quod si alienaverit uxor proprietatem, quae sine ullo mulieris emolumento plenior facta est: adhuc dotata est, quia dotis actione teneri debet maritus, qui quando licuit usu fructu uti amisit eum non utendo.
But if a woman, on her own estate, has constituted a usufruct for her husband for the sake of the dowry, then the usufruct will properly be in the husband’s person, and it will also perish for him by not using it. If that happens, let us see whether the woman is still endowed with a dowry. And if in fact the ownership of the estate, to which the usufruct has reverted, is with the woman, she now has nothing in the dowry which she could obtain by the dowry action from him, to whom it cannot be imputed that he lost the usufruct by not using it, seeing that she herself has profit from it; and therefore she will be without a dowry. But if the wife has alienated the ownership, which has been made fuller without any emolument to the woman, she is still endowed, because the husband ought to be held by the dowry action, he who, when it was permitted to use the usufruct, lost it by not using it.
for if he had persisted in holding the usufruct up to the divorce, its restitution would cede to the woman’s advantage, because although it would not pass to her at once, yet either for a price or by a beneficium, without the woman’s disadvantage, it will revert to the proprietorship. but if the husband has not lost the usufruct, on the woman’s death the usufruct is not terminated as regards the husband. however, when divorce has been effected, first let us consider, both in this and in the preceding case, whether the fruits are to be divided pro rata temporis of that year: which is to be approved.
But the restitution of it will take place in such a way, that to the woman who holds the estate the usufruct shall be ceded, and thus be consolidated with the proprietorship. And even if she is not the mistress of the estate, nonetheless the action of dowry is available, to the end that the husband relinquish from himself the usufruct: for either she is still bound by an action ex empto to furnish the usufruct, or she hopes to obtain its price, or it is civilly permitted to her to bestow favor upon anyone rather than to leave with an enemy the right that has been transferred to herself.
Uxor viro usum fructum dotis nomine dedit, manente matrimonio eidem fundum vendidit: quaesitum est, divortio facto quid dotis iudicio reciperare debeat. dixi referre, quanti fundus venisset: nam si nudae proprietatis aestimatio facta fuisset, mulier dotis iudicio pretium usus fructus reciperare debet. quid ergo est, si vir ante litem contestatam mortuus fuisset?
The wife gave to her husband the usufruct in the name of dowry, and, the marriage continuing, sold the estate to the same man: it was asked, when divorce had been effected, what she ought to recover by the dowry action. I said it depends on how much the estate had been sold for: for if an appraisal of the bare ownership had been made, the woman ought by the dowry action to recover the price of the usufruct. What then is the case, if the husband had died before joinder of issue?
his heirs will owe nothing: for even if any other purchaser of the proprietorship had existed, the husband’s heir would render nothing to the woman, namely with the usufruct having reverted to the proprietorship. moreover, if the entire estate had been sold, for as much as it ought to sell with the usufruct not deducted, it is understood that the woman received back her dowry while the marriage was still subsisting.
Si fundus communis in dotem datus erit et socius egerit cum marito communi dividundo adiudicatusque fundus socio fuerit, in dote erit quantitas, qua socius marito damnatus fuerit aut, si omissa licitatione extraneo addictus is ^ si^ fundus fuerit, pretii portio, quae distracta est, sed ita, ut non vice corporis habeatur nec divortio secuto praesenti die quod in numero est restituatur, sed statuto tempore solvi debeat. quod si marito fundus fuerit adiudicatus, pars utique data in dotem dotalis manebit: divortio autem facto sequetur restitutionem, propter quam ad maritum pervenit, etiam altera portio, scilicet ut recipiat tantum pretii nomine a muliere, quantum dedit ex condemnatione socio: nec audiri debebit alteruter eam aequitatem recusans, aut mulier in suscipienda parte altera quoque aut vir in restituenda. sed an constante matrimonio non sola pars dotalis sit, quae data fuit in dotem, sed etiam altera portio, videamus.
If a jointly owned estate is given in dowry, and the co-owner brings an action with the husband for dividing the common property and the estate is adjudicated to the co-owner, then in the dowry there will be the amount for which the co-owner was condemned to the husband; or, if, bidding having been omitted, it is assigned to a stranger, that ^ if^ the estate has been so assigned, the portion of the price that was sold off; but in such a way that it is not held in lieu of the corpus (the thing itself), nor, once divorce has followed, is that which is in number (a sum of money) restored on the very day, but it ought to be paid at the appointed time. But if the estate has been adjudicated to the husband, the part given in dowry will of course remain dotal; however, when divorce is effected, there will follow, along with the restitution on account of which it came to the husband, the other portion as well—namely, that he receive from the wife, under the name of price, as much as he paid by reason of the condemnation to the co-owner; nor should either party be heard if refusing that equity, whether the wife in taking upon herself the other portion also, or the husband in restoring it. But whether, while the marriage stands, not only the dotal part is that which was given as dowry, but also the other portion, let us consider.
Si marito dotis nomine stipulanti promisit per errorem is qui exceptione tutus erat ne solvat, cogetur ei solvere et habebit condictionem adversus mulierem aut patrem, uter eorum delegavit, ob id quod indebitum marito promisit aut solvit.
If, the husband stipulating in the name of the dowry, he who was protected by an exception not to pay promised through error, he will be compelled to pay him, and he will have a condiction against the woman or the father, whichever of them delegated, on account of that which, as not owed, he promised or paid to the husband.
Avus neptis nomine filio natae genero dotem dedit et moritur. negat servius dotem ad patrem reverti et ego cum servio sentio, quia non potest videri ab eo profecta, quia nihil ex his sui habuisset.
A grandfather, in the name of his granddaughter, gave a dowry to his daughter’s son-in-law and dies. Servius denies that the dowry reverts to the father, and I am of the same opinion as Servius, because it cannot be seen as having proceeded from him, since he would have had nothing of his own in these things.
Si debitor mulieris dotem sponso promiserit, posse mulierem ante nuptias a debitore eam pecuniam petere neque eo nomine postea debitorem viro obligatum futurum ait labeo. falsum est, quia ea promissio in pendenti esset, donec obligatio in ea causa est.
If a debtor of a woman has promised the dowry to her betrothed, Labeo says that the woman can, before the nuptials, demand that money from the debtor, and that on that account the debtor will not thereafter be obligated to the husband under that title. This is false, because that promise would be in suspense so long as the obligation is in that condition.
Cum uxor virum suum quam pecuniam sibi deberet in dotem filiae communis dare iusserit et id fecisse dicatur, puto animadvertendum esse, utrum eam dotem suo an uxoris nomine dedit: si suo, nihilo minus uxori eum debere pecuniam: si uxoris nomine dederit, ipsum ab uxore liberatum esse.
When a wife has ordered her husband to give, as dowry for their common daughter, the money that he owed to herself, and he is said to have done that, I think it must be considered whether he gave that dowry in his own name or in the wife’s name: if in his own, he owes the money to the wife nonetheless; if he gave it in the wife’s name, he himself is released from the wife.
Si de dote promissa agitur, non oportet in quantum facere potest condemnari eum qui promisit. paulus: immo quod ad extraneum attinet, semper hoc verum est. ceterum si manente adfinitate dotem promissam gener a socero petit, utique in quantum facere potest socer condemnabitur.
If it is a matter of a promised dowry, it is not proper that the one who promised be condemned in so far as he can perform. paulus: nay rather, as regards a stranger, this is always true. However, if, with the affinity still subsisting, the son-in-law seeks the promised dowry from his father-in-law, then indeed the father-in-law will be condemned in so far as he can perform.
if, with the marriage dissolved, it is sought, I think it ought to be granted according to the cause and the person: for what if the father-in-law, under the semblance of a future dowry, has induced the son-in-law, and, though he knew that he could not furnish the dowry, has acted thus in order to entrap the son-in-law?
Fundum filiae nomine pater in dotem dederat: huius heredi filiae ex asse creditoribus urguentibus patris utilius videtur potius fundum qui dotalis est distrahere, quod minus fructuosus sit, et alios hereditarios uberiore reditu retinere: maritus consentit, si nulla in ea re captio sit futura. quaero, an ea pars dotis, quae in hoc fundo est, mulieri manente matrimonio recte solvatur. respondit, si pretium creditori solvatur, recte solutum.
A father had given an estate in his daughter’s name as dowry: the creditors of the father pressing, it seems more advantageous to the daughter’s heir, as sole heir, rather to sell the estate which is dotal, because it is less fruitful, and to retain other hereditary estates with a richer return. The husband consents, provided that no legal prejudice will arise in the matter. I ask whether that part of the dowry which is in this estate is rightly discharged to the woman while the marriage endures. He answered: if the price is paid to the creditor, it is rightly paid.
Si convenerit, ut, quoquo modo dissolutum sit matrimonium, liberis intervenientibus dos apud virum remaneret, papinianus iuniano praetori respondit morte mariti finito matrimonio neque convenisse videri dotem remanere, et, si convenisset, non esse servandum pactum contra dotem, cum mariti mortalitas intervenit.
If it has been agreed that, however the marriage be dissolved, with children intervening the dowry should remain with the husband, Papinian replied to the praetor Iunianus that, when the marriage has been ended by the death of the husband, it does not appear to have been agreed that the dowry should remain; and, even if it had been agreed, the pact against the dowry is not to be observed, since the husband’s mortality has intervened.
Si convenerit, ut fructus in dotem converteretur, an valeat conventio? et Marcellus ait libro octavo digestorum conventionem non valere: prope enim indotatam mulierem hoc pacto fieri. sed ita distinguit, ut, si quidem fundum in dotem dederit mulier ita, ut maritus fructus redderet, non esse ratum pactum: idemque esse et si usum fructum in dotem hoc pacto dedit.
If it has been agreed that the fruits be converted into dowry, does the agreement have force? And Marcellus says in the eighth book of the Digests that the agreement is not valid: for by this pact the woman becomes almost undowered. But he distinguishes thus: if indeed the woman gave an estate into dowry on condition that the husband return the fruits, the pact is not valid; and the same holds if she gave a usufruct into dowry on this pact.
But if it was agreed concerning the rendering of the fruits, that is, that whatever fruits he had perceived should be in the dowry, and the estate or the usufruct was delivered for this—not that the estate or the fruits should become dotal, but that he should take the fruits as destined to become of the dowry—he must be compelled by the dowry action to render the fruits. Therefore the fruits will be in the dowry, and he will enjoy the interests which can be taken from fruits collected and reduced into principal. I, for my part, think in both situations it makes a difference with what contemplation the dowry was given, so that, if for this reason the woman gave him a greater dowry—because she wanted the fruits to belong to the dowry, the husband being content with that money which is collected from the interest of the revenues—the convention can be said to be valid; for the dowry does not seem to be sterile.
Suppose the annual revenues are forty; in the case of one who would not accept it into the dowry unless this had been agreed, it is worth more than three hundred, so that, having obtained so abundant a dowry, he would take it as a good thing. And what do we say, if such a pact intervened, that the husband should convert the fruits into the dowry and that the woman should support and protect herself and her own and discharge all her burdens? Why would you not say the agreement is valid?
Pomponius ait maritum non posse pacisci, ut dolum solummodo in dotem praestet, videlicet propter utilitatem nubentium: quamvis pacisci possit, ne sit periculo eius nomen debitoris qui ei dotem promisit: nam et ut sit dos periculo mulieris, pacisci eum posse probat, et per contrarium, ut ea dos quae periculo mulieris est sit periculo mariti.
Pomponius says that a husband cannot stipulate that he shall be liable only for fraud (dolus) in regard to the dowry, namely on account of the utility of brides; although he can stipulate that the claim against the debtor who promised him the dowry shall not be at his risk: for he also proves that he can stipulate that the dowry be at the woman’s risk, and, conversely, that a dowry which is at the woman’s risk be at the husband’s risk.
Cum dos filiae nomine datur, optimum est pactum conventum cum utroque generum facere, quamquam initio dotis dandae legem quam velit etiam citra personam mulieris is qui dat dicere possit. si vero post datam pacisci velit, utriusque persona in paciscendo necessaria est, quoniam iam adquisita mulieri dos tum esset. quo casu si solus pater pactus esset sine filia, sive solus agat sive adiuncta filiae persona, ei soli nocebit et proderit pactum conventum nec, si sola filia aget, neque proderit neque nocebit ei. si vero filia sola pacta fuerit, quo pacto melior condicio patris fiet, proderit et patri, quoniam per filiam patri adquiri potest, per patrem filiae non potest.
When a dowry is given in the name of a daughter, it is best to make an agreed pact (pactum conventum) with each son-in-law, although at the outset of giving the dowry the one who gives it can also, even without the woman’s person, declare whatever law (terms) of the dowry he wishes. But if he wishes to make terms after it has been given, the person of both is necessary in making the agreement, since by then the dowry would already have been acquired to the woman. In which case, if the father alone has made the pact without the daughter, whether he acts alone or with the daughter’s person joined, the agreed pact will harm and benefit him alone; nor, if the daughter alone brings an action, will it either benefit or harm him. But if the daughter alone has made the pact, to the extent that by the pact the father’s condition is made better, it will benefit the father as well, since through the daughter something can be acquired to the father, whereas through the father it cannot be acquired to the daughter.
If, however, the daughter has so bargained as to be harmful, the pact will at some time harm the daughter herself when she brings an action; but it will in no way harm the father, unless he too prosecutes with the daughter’s person joined. It must be said that by bargaining the daughter cannot make the father’s condition worse in the case in which, she having died in marriage, the dowry would revert to the father.
Si ita conveniat, ut, si vivo socero mortua sit filia, ipsi socero, si mortuo, filio eius, si filio quoque defuncto totum suo heredi reddatur, benigna interpretatione potest defendi utilem stipulationem esse.
If it be agreed thus: that, if the daughter should die with the father-in-law alive, it be returned to the father-in-law himself; if he be dead, to his son; and if the son too be deceased, the whole be rendered to his heir,—by a benign interpretation it can be defended that the stipulation is useful.
Avus pactus est, cum dotem pro nepote suscepisset, ne a se neve a filio dos peteretur, ab alio vero quam filio herede ut dos peteretur. exceptione conventionis filius tuendus erit, quippe heredi nostro cavere concessum est, nec quicquam obstat quo minus certae personae, si heres erit sibi, caveri possit, quod non idem et in ceteris heredibus cavetur: et ita celsus scribit.
The grandfather made a pact, when he had undertaken the dowry on behalf of his grandson, that the dowry should not be sought from himself nor from his son, but that it should be sought from an heir other than the son. By the exception of the convention the son will be protected, since it has been permitted to provide security for our heir; nor does anything obstruct that security be provided to a certain person—if he will be heir—for himself, although the same is not provided for the other heirs: and thus Celsus writes.
Cum pater dotem pollicitus fuerit et paciscatur, ne se vivo petatur neve constante matrimonio dos petatur, ita pactum interpretandum divus severus constituit, quasi adiectum esset se vivo: hoc enim ita accipiendum esse contemplatione paternae pietatis et contrahentium voluntatis, ut posterior quoque pars conventionis ad vitam patris relata videatur, ne diversa sententia fructum dotis ab oneribus matrimonii separet quodque indignissimum est, inducat ut non habuisse dotem existimetur. quo rescripto hoc effectum est, ut, si quidem vivo patre decesserit filia aut sine culpa sua divorterit, omnimodo dos peti non possit, constante autem matrimonio mortuo patre peti possit.
When a father has promised a dowry and makes a pact that it not be demanded from him while he lives, nor that the dowry be demanded while the marriage stands, the deified Severus established that the pact is to be interpreted as if “while he lives” had been added; for this is to be taken thus, in contemplation of paternal pietas and of the will of the contracting parties, so that the latter part also of the agreement appear to be referred to the father’s lifetime, lest a different opinion separate the fruit of the dowry from the burdens of marriage, and—what is most unworthy—bring it about that she is considered not to have had a dowry. By which rescript this has been effected: that, if indeed the daughter should die while her father is alive or should divorce without her own fault, in no way can the dowry be demanded; but, the marriage standing, after the father’s death it can be demanded.
Ex pactis conventis, quae ante nuptias vel post nuptias interponi solent, alia ad voluntatem pertinent, ut mulier dote promissa se alat et donec nupta sit, dos ab ea non petatur, aut certam summam viro praestet et ab eo alatur, et his similia: alia ad ius pertinent, veluti quando dos petatur, quemadmodum reddatur, in quibus non semper voluntas contrahentium servatur. ceterum si convenerit, ne omnino dos petatur, indotata erit mulier.
From the pacts and agreements which are wont to be interposed either before the nuptials or after the nuptials, some pertain to discretion, as that the woman, a dowry having been promised, support herself and, until she is married, the dowry not be demanded from her; or that she render a certain sum to the man and be maintained by him; and the like: others pertain to law, as when the dowry may be demanded, in what manner it is returned, in which matters the will of the contracting parties is not always observed. But if it is agreed that the dowry is not to be demanded at all, the woman will be without a dowry.
Si mulier pacta sit, ne amplius quam pars dimidia dotis a se petatur et poenam stipulata sit, mela ait alterutro eam contentam esse oportere: vel exceptione pacti et acceptam facere poenae obligationem, vel, si ex stipulatu agat, denegandam ei exceptionem.
If a woman has pacted that no more than a half part of the dowry be demanded from her and has stipulated a penalty, Mela says she ought to be content with one or the other: either with the defense of the pact and to acceptilate the obligation of the penalty; or, if she proceeds ex stipulatu, the exception must be denied her.
Atilicinus proculo suo salutem. cum inter virum et uxorem pactum conventum ante nuptias factum sit, ut quibus diebus dos data esset, isdem divortio facto redderetur, post quinquennium quam nuptiae factae sunt uxor viro dotem dedit: divortio facto quaero, utrum quinquennii die vir uxori dotem redderet an statuto legibus tempore. proculus respondit: quod ad diem reddendae dotis attinet, pacto existimo meliorem condicionem mulieris fieri posse, deteriorem non posse: itaque si cautum est, ut propiore tempore, quam legibus constitutum est, reddatur, stari eo debere, si ut longiore, nec valere id pactum conventum.
Atilicinus to his Proculus, greeting. Since between husband and wife a pact and agreement was made before the nuptials, that on whatever day(s) the dowry had been given, on the same, once a divorce had been effected, it should be returned, after a five-year period (quinquennium) from when the nuptials were made the wife gave the dowry to the husband: a divorce having been effected I ask whether on the day of the five-year period the husband should return the dowry to the wife, or at the time established by the laws. Proculus replied: as concerns the day for returning the dowry, I consider that by a pact the condition of the woman can be made better, not worse: and so if it has been provided that it be returned at an earlier time than is constituted by the laws, that ought to be stood by; if at a later time, that pact and agreement is not valid.
And it accords with that opinion to say: if by pact and convention it has been stipulated that the later any particular thing—and given after the nuptials—has been given, by so much later after the divorce it shall be returned, then, if it was given at a nearer time than has been constituted for returning the dowry, the pact and convention is valid; if at a longer time, it is not valid.
Aliud est, si pater pro filia dotem promisit, ut annua bima trima quadrima quinto anno dos a se redderetur, et convenit, ut isdem diebus dos soluto matrimonio redderetur: hoc enim pactum ita valet, si patri filia heres exstitisset et interveniente ea pactum conventum fuerit.
It is another matter, if a father, on behalf of his daughter, promised a dowry, to the effect that the dowry would be returned by himself in the first, second, third, and fourth year, and in the fifth year, and it was agreed that on the same days the dowry would be returned upon the marriage being dissolved: for this pact is valid in this way, if the daughter had become the father’s heir and, with her intervening, the pact had been agreed.
Si convenerit, ne a muliere neve a patre dos petatur, heres non habebit exceptionem. sed si convenerit, ne manente matrimonio vivo patre petatur, mortuo patre statim exigitur, et, si non petierit maritus, tenebitur huius culpae nomine, si dos exigi potuerit: nisi forte ante diremptum sit matrimonium, quam facultatem petendi haberet.
If it has been agreed that the dowry is not to be sought from the woman nor from the father, the heir will not have the exception. But if it has been agreed that it is not to be sought while the marriage endures and the father is alive, then, the father being dead, it is exacted at once; and, if the husband has not sought it, he will be held liable under the name of this fault, if the dowry could have been exacted—unless perhaps the marriage was dissolved before he had the faculty of seeking it.
Si mulier dotis causa promiserit certam summam et pro ea mancipia in dotem dederit ea condicione, ut periculo eius essent et si quid ex his natum esset ad eam pertineat, stari pacto convento oportebit: nam constat posse inter uxorem et virum conveniri, ut dos, quae in pecunia numerata esset, permutaretur et transferatur in corpora, cum mulieri prodest.
If a woman, for the sake of a dowry, has promised a definite sum and, in place of it, has given slaves into the dowry on this condition, that they be at her risk and that whatever from them is born should pertain to her, the agreed pact must be observed: for it is established that it can be agreed between wife and husband that a dowry which had been paid in counted money be exchanged and transferred into corporeal things, since it benefits the woman.
Quidam fundum dotis causa ab uxore sua acceperat interque eos convenerat, ut mercedes eius fundi vir uxori annui nomine daret: deinde eum fundum vir matri ^ marti^ mulieris certa pensione colendum locaverat eaque, cum mercedes eius fundi deberet, decesserat et filiam suam solam heredem reliquerat et divortium factum erat: vir deinde petebat a muliere mercedes, quas mater debuerat. placuit exceptionem mulieri dari non debere " ac si inter se et virum non convenisset, ut hae mercedes sibi alimentorum nomine darentur", cum futurum sit, ut quodammodo donationes inter virum et uxorem confirmentur: nam quod annui nomine datur, species est donationis.
A certain man had received an estate from his wife as a dowry, and it had been agreed between them that he would give the rents of that estate to his wife under the name of an annuity: thereafter the man had leased that estate to the woman’s mother to be cultivated for a fixed payment, and she, when she owed the rent of that estate, died and left her daughter her sole heir, and a divorce had been effected: the man then sought from the woman the rents which the mother had owed. It was decided that a defense ought not to be granted to the woman on the footing “as if it had been agreed between herself and her husband that these rents be given to her under the name of maintenance,” since it would result that, in a certain way, donations between husband and wife are confirmed; for what is given under the name of an annuity is a species of donation.
Pater cum filiae suae nomine dotem daret, pactus est, ut mortua filia uno pluribusve liberis superstitibus deducta parte tertia reliqua dos sibi aut post mortem suam illi aut illi filiis quos in potestate habebat reddatur: deinde haec ita fieri stipulatus est: post mortem eius mulier in matrimonio decesserat relictis filiis: quaesitum est, an ex stipulatione duas partes illi petere possint. respondi posse: etenim vim eius stipulationis hanc esse, ut, si in matrimonio mortua esset, dos patri redderetur, et perinde habendum, ac si talis stipulatio interposita fuisset: " si navis ex asia venerit, mihi aut post mortem meam lucio titio dari spondes?" nam et si post mortem stipulatoris navis venisset, heredi deberi.
When a father, in his daughter’s name, was giving a dowry, he bargained that, if the daughter died with one or more children surviving, with a third part deducted the remaining dowry should be returned to himself, or, after his death, to that man or to that man’s sons whom he had in his power: then he stipulated that this be done thus: after his death the woman died in marriage, leaving sons: it was asked whether from the stipulation they could demand two parts. I answered that they could: for the force of that stipulation is this, that, if she had died in marriage, the dowry be returned to the father, and it should be held just as if such a stipulation had been interposed: " if the ship comes from Asia, do you promise that it be given to me or, after my death, to Lucius Titius?" for even if the ship had come after the death of the stipulator, it would be owed to the heir.
Si inter virum et uxorem pactum est, ut certa pars dotis vel tota ob unum vel plures liberos intervenientes retineatur, etiam eorum liberorum nomine, qui ante nati sunt, quam dos daretur aut amplietur, conventio rata est: nam sufficit eos ex eo matrimonio nasci, in quo dos data est.
If between husband and wife it is pacted that a certain part of the dowry, or the whole, be retained on account of one or more intervening children, the convention is ratified even in the name of those children who were born before the dowry was given or amplified; for it suffices that they be born from that marriage in which the dowry was given.
Inter socerum et generum convenit, ut, si filia mortua superstitem anniculum filium habuisset, dos ad virum pertineret: quod si vivente matre filius obisset, vir dotis portionem uxore in matrimonio defuncta retineret. mulier naufragio cum anniculo filio periit. quia verisimile videbatur ante matrem infantem perisse, virum partem dotis retinere placuit.
Between the father-in-law and the son-in-law it was agreed that, if the daughter, having died, had had surviving a one-year-old son, the dowry should pertain to the husband; but if, while the mother was living, the son had deceased, the husband would retain a portion of the dowry, his wife having died in matrimony. The woman perished by shipwreck together with the one-year-old son. Because it seemed verisimilar that the infant had perished before the mother, it was decided that the husband retain a part of the dowry.
Vir dotem, quam ex pacto filiae nomine retinere potuit, si lapsus errore non retinuit, filiam, quae patris sola, matri pro parte heres exstiterit, apud arbitrum divisionis non improbe dotis perperam a patre solutae praeceptionem desiderare constitit.
It is established that, if a husband, who by pact could have retained the dowry in his daughter’s name, did not retain it through a lapse by error, the daughter—who has become the sole heir of her father and, as to her mother, an heir for a share—may not improperly seek before the arbiter of division the preemption of the dowry wrongly paid out by her father.
Cum inter patrem et generum convenit, ut in matrimonio sine liberis defuncta filia dos patri restituatur, id actum inter contrahentes intellegi debet, ut liberis superstitibus filia defuncta dos retineatur, nec separabitur portio dotis additamenti causa data, si postea nihil aliud conveniat.
When it is agreed between the father and the son-in-law that, if the daughter die in marriage without children, the dowry be restored to the father, it ought to be understood as transacted between the contracting parties that, if the daughter die with children surviving, the dowry is to be retained; nor will the portion of the dowry given by way of an additament be separated, if later nothing else be agreed.
Convenit, ut mulier viri sumptibus quoquo iret veheretur, atque ideo mulier pactum ad litteras viri secuta provinciam, in qua centurio merebat, petit. non servata fide conventionis licet directa actio nulla competit, utilis tamen in factum danda est.
It is agreed that a woman be conveyed at the husband’s expense wherever she might go, and therefore the woman, following the pact on the basis of the husband’s letter, seeks the province in which the centurion was serving. When the good faith of the convention has not been observed, although no direct action is available, nevertheless a useful action in factum is to be granted.
Filia cum pro se dotem promitteret, pepigit, ut, si in matrimonio sine liberis decessisset, matri suae dos solvatur. pacto filiae nulla matri quaeritur actio: si tamen heres puellae matri pecuniam dotis solverit, viro contra placita petenti dotem obstabit exceptio.
When a daughter, promising a dowry on her own account, stipulated that, if she should die in wedlock without children, the dowry be paid to her mother, by the daughter’s pact no action is available to the mother; however, if the girl’s heir has paid the money of the dowry to the mother, an exception will bar the husband who, contrary to the agreed terms, seeks the dowry.
Pater, si filia nupta mortem obisset, dotem dari stipulatus est: constante matrimonio capitali crimine damnatus est. divortio secuto vel morte viri soluto matrimonio stipulationis condicio deficit: quod si mulier in matrimonio decesserit, ex stipulato fisco dotis actio quaereretur: post verum autem divortium renovatis nuptiis non committitur fisco stipulatio, licet defuncta sit in matrimonio filia, quoniam ad primas nuptias pertinet.
The father stipulated that, if his daughter, being married, should have met death, the dowry be given: while the marriage was subsisting, he was condemned for a capital crime. upon a divorce ensuing or the marriage being dissolved by the husband’s death, the condition of the stipulation fails: but if the woman died in matrimony, an action for the dowry ex stipulatu would be sought for the fisc: after, however, a true divorce and the nuptials having been renewed, the stipulation is not committed to the fisc, although the daughter has died in matrimony, since it pertains to the first nuptials.
Quaeris, si pacta sit mulier vel ante nuptias vel post nuptias, ut ex fundi fructibus quem dedit in dotem creditor mulieris dimittatur, an valeat pactum? dico, si ante nuptias id convenerit, valere pactum eoque modo minorem dotem constitutam: post nuptias vero cum onera matrimonii fructus relevaturi sunt, iam de suo maritus paciscitur ut dimittat creditorem, et erit mera donatio.
You ask whether, if a woman has made a pact either before marriage or after marriage, that from the fruits of the estate which she gave in dowry the woman’s creditor be released, the pact is valid? I say, if this was agreed before marriage, the pact is valid and in this way a smaller dowry is constituted; after marriage, however, since the fruits are going to relieve the burdens of marriage, the husband is now making an agreement on his own account to release the creditor, and it will be a mere donation.
Cum maritus, qui aestimata praedia in dotem acceperat, manente matrimonio pactus est circumscribendae mulieris gratia, ut praedia inaestimata essent, ut sine periculo suo ea deteriora faceret: quaesitum est, an secundum priores dotales tabulas praedia aestimata remanerent et periculum eorum ad maritum pertineret. respondi non idcirco pactum de quo quaereretur impediri, quod in matrimonio factum esset, si deteriore loco dos non esset: nihilo minus eo pacto admisso, si deteriora praedia faceret, eo etiam nomine dotis eum actione teneri.
When a husband, who had received appraised estates as a dowry, while the marriage was ongoing made an agreement, for the sake of circumventing the woman, that the estates should be unappraised, so that without his own risk he might make them worse: the question was asked whether, according to the earlier dowry instruments, the estates would remain appraised and the risk of them would pertain to the husband. I replied that the pact in question is not for that reason impeded because it was made during the marriage, provided the dowry is not put in a worse condition; nonetheless, with that pact admitted, if he were to make the estates worse, he would be liable by a dowry action also on that ground.
Titius mulieris nomine dotem dedit et stipulatus est in casum mortis et divortii: divortio secuto non repetita dote titius decessit: mulier ex voluntate heredis eius redintegravit matrimonium: quaesitum est, an ex stipulatu dotem petere possit. respondi heredem titii, si consensisset, ut ea quantitas, quam ex stipulatu consequi potuerat, dotis reconciliato matrimonio fieret, posse pacti exceptione summoveri.
Titius gave a dowry in the woman’s name and stipulated for the contingency of death and divorce: a divorce having followed, with the dowry not reclaimed, Titius died. The woman, with the will of his heir, reintegrated the marriage. It was asked whether she could demand the dowry under the stipulation. I replied that Titius’s heir, if he had consented that the amount which she could have obtained under the stipulation should become dowry with the marriage reconciled, could avail himself of the exception of pact.
Mulier de dote quam dedit pacta est, ut, si in matrimonio decessisset, fratri eius redderetur isque in eum casum stipulatus est: mulier decedens quasdam res dotales marito legavit et aliis, quosdam ex servis dotalibus manumisit. quaesitum est, an maritus earum nomine, quas legavit mulier, et servorum, quos manumisit, fratri tenetur. respondi nihil proponi, cur non teneretur, cum et iam heredes defunctae tam legatariis quam libertatibus obnoxii sint.
A woman, concerning the dowry which she gave, made a pact that, if she should have died in matrimony, it be returned to his brother, and he stipulated for that case: the woman, when dying, bequeathed certain dowry-items to her husband and to others, and manumitted some of the dowry-slaves. It was asked whether the husband, on account of those things which the woman bequeathed and of the slaves whom she manumitted, is held to the brother. I answered that nothing is put forward why he should not be held, since already the heirs of the deceased are liable both to the legatees and to the manumissions.
Baebius Marcellus baebio marullo dotis filiae suae nomine centena promiserat et convenerat inter eos, ne ea dos constante matrimonio peteretur, vel si post mortem patris in matrimonio sine liberis filia decessisset, ut dimidia dos apud marullum remaneret, dimidia fratri mulieris restitueretur: eaque etiam in stipulationem deducta erant. mortuo Marcello, filio et filia superstitibus, dote universa filiae praelegata marullus nata filia diverterat et mulier decesserat fratre suo et filia ex partibus aequis heredibus relictis. apud petronium magnum praetorem marullus ab herede filio Marcelli ex dotis promissione universam dotem petebat illa coniectura, quasi inter duos placuisset nullo filiorum exstante mortua muliere partem dotis remanere apud maritum, magis convenisset utique totam eius esse dotem, si filium filiamve habuisset.
Baebius Marcellus had promised to Baebius Marullus, in the name of his daughter’s dowry, a hundred, and it had been agreed between them that that dowry should not be sought while the marriage stood, or, if after the father’s death the daughter should have died in marriage without children, that half the dowry should remain with Marullus and half be restored to the woman’s brother; and these matters also had been brought into stipulation. Marcellus having died, a son and a daughter surviving, the entire dowry having been prelegated to the daughter, Marullus had divorced, a daughter having been born, and the woman had died, her brother and her daughter being left as heirs in equal parts. Before Petronius Magnus, praetor, Marullus was demanding from the heir, the son of Marcellus, by virtue of the promise of dowry, the whole dowry, on this inference: that since it had pleased the two that, with none of the children existing and the woman dead, a part of the dowry should remain with the husband, so much the more would it surely have been agreed that the whole should be his dowry, if he had had a son or a daughter.
On the contrary it was answered that the exception of a common pact does indeed profit the heir as well; but in the particular case proposed, it is not as heir of the woman, defending himself by the exception from the person of the deceased, that he will be protected, but he himself was that person who, even with the woman alive, if the dowry were sought from him, could by that exception repel Marullus, because a divorce had been effected, and he retained the same defense even after the death of his sister. And so it was decided that he be absolved from that claim, with no derogation by this judgment made to the claim of the fideicommissum, which Marullus, as heir of his wife through the daughter by hereditary right, had as to a half share.
Uxor viro fundum aestimatum centum in dotem dederat, deinde cum viro pactum conventum fecerat, ut divortio facto eodem pretio uxori vir fundum restitueret: postea volente uxore vir eum fundum ducentorum vendiderat, et divortium erat factum. labeo putat viro potestatem fieri debere, utrum velit ducenta vel fundum reddere, neque ei pactum conventum remitti oportere. idcirco puto hoc labeonem respondisse, quoniam voluntate mulieris fundus veniit: alioquin omnimodo fundus erat restituendus.
The wife had given to her husband an estate appraised at one hundred as a dowry; then she had made a pact and convention with the husband, that, divorce having been effected, the husband would restore the estate to the wife at the same price. Afterwards, with the wife willing, the husband had sold that estate for two hundred, and the divorce was effected. Labeo thinks the husband ought to be given the power, whether he wishes to return two hundred or the estate, and that the pact and convention ought not to be remitted to him. I therefore think Labeo gave this response because the estate was sold with the woman’s consent; otherwise, in every way the estate had to be restored.
Si pater filiae nomine certam pecuniam in dotem promiserat et pactus est, ne invitus eam solveret: nihil ab eo exigendum puto, quia id, quod pacto convento ne invitus exigeretur convenerit, in dotis causam esse non videretur.
If a father, in his daughter’s name, had promised a fixed sum as a dowry and bargained that he should not pay it unwillingly: I think nothing is to be demanded from him, because that which by pact and covenant it was agreed should not be exacted against his will would not seem to be in the cause of dowry.
Interdum lex iulia de fundo dotali cessat: si ob id, quod maritus damni infecti non cavebat, missus sit vicinus in possessionem dotalis praedii, deinde iussus sit possidere: hic enim dominus vicinus fit, quia haec alienatio non est voluntaria.
Sometimes the Lex Julia concerning the dotal estate ceases: if, because the husband did not give security for threatened damage (damnum infectum), the neighbor was sent into possession of the dotal estate, and then was ordered to possess; for here the neighbor becomes owner, because this alienation is not voluntary.
Sed cum uxor fundum cui praedia viri servitutem debebant in dotem dat, fundus ad maritum pervenit amissa servitute et ideo non potest videri per maritum ius fundi deterius factum. quid ergo est? officio de dote iudicantis continebitur, ut redintegrata servitute iubeat fundum mulieri vel heredi eius reddi.
But when a wife gives as dowry a farm to which the husband’s lands owed a servitude, the farm comes to the husband with the servitude lost, and therefore it cannot seem that through the husband the right of the farm has been made worse. What then? It will be included within the duty of the judge adjudicating concerning dowry, to order that, the servitude having been reinstated, the farm be returned to the woman or to her heir.
Vir in fundo dotali uxoris rogatu olivetum succiderat ad hoc, ut novellum reponeret: postea vir mortuus erat et uxori dotem relegaverat. ligna, quae ex oliveto excisa essent, oportere mulieri reddi respondit.
A man, on his wife’s dotal estate, at her request had cut down an olive-grove for this purpose, that he might replant it with young trees; afterward the man died and had bequeathed the dowry to his wife. He responded that the wood which had been cut from the olive-grove ought to be returned to the woman.
His consequens esse ait, ut, si cornelianum aut sempronianum fundum debenti id quod debet doti promissum sit, utrum eorum dotalem esse malit. plane utrum velit, alienaturum: alterum alienari non posse. si tamen alienum rursus redimat, adhuc in eius potestate est, an eum, quem retinuisset, alienari velit.
He says it follows from these things that, if a Cornelian or a Sempronian estate has been promised as dowry to the person to whom he owes what he owes, he may choose which of them he prefers to be dotal. Clearly, whichever he wishes, he will alienate; the other cannot be alienated. If, however, he buys back the one alienated, it is still in his power whether he wishes the one which he had retained to be alienated.
Si uxore herede instituta fundus dotalis fuerit legatus, si quidem deductis legatis mulier quantitatem dotis in hereditatem habitura est, valet legatum, si minus, an non valeat, quaeritur. scaevola, et si non totus, sed vel aliqua pars ex eo vindicari possit, si modo aliqua pars ad dotem supplendam desit, id dumtaxat ex eo remanere apud mulierem ait, quod quantitati dotis deest.
If, the wife having been appointed heir, a dotal estate has been bequeathed, if indeed, with the legacies deducted, the woman will have in the inheritance the quantity of the dowry, the legacy is valid; if less, the question arises whether it is not valid. Scaevola says that even if not the whole, but at least some part of it can be claimed, provided that some part is lacking for supplementing the dowry, only that from it remains with the woman which is lacking to the amount of the dowry.
Si fundum, quem titius possidebat bona fide longi temporis possessione poterat sibi quaerere, mulier ut suum marito dedit in dotem eumque petere neglexerit vir, cum id facere posset, rem periculi sui fecit: nam licet lex iulia, quae vetat fundum dotalem alienari, pertineat etiam ad huiusmodi adquisitionem, non tamen interpellat eam possessionem, quae per longum tempus fit, si ante, quam constitueretur dotalis fundus, iam coeperat. plane si paucissimi dies ad perficiendam longi temporis possessionem superfuerunt, nihil erit, quod imputabitur marito.
If an estate, which Titius was possessing in good faith, he could have acquired for himself by long-term possession, and a woman, as her own, gave it to her husband as dowry, and the husband neglected to claim it, although he could have done so, he made the matter one of his own peril: for although the Lex Julia, which forbids a dotal estate to be alienated, extends also to an acquisition of this kind, nevertheless it does not interrupt that possession which is effected through a long time, if it had already begun before the estate was constituted as dotal. Clearly, if the very fewest days were left for completing the long-term possession, there will be nothing that is imputed to the husband.
Vir in fundo dotali lapidicinas marmoreas aperuerat: divortio facto quaeritur, marmor quod caesum neque exportatum esset cuius esset et impensam in lapidicinas factam mulier an vir praestare deberet. labeo marmor viri esse ait: ceterum viro negat quidquam praestandum esse a muliere, quia nec necessaria ea impensa esset et fundus deterior esset factus. ego non tantum necessarias, sed etiam utiles impensas praestandas a muliere existimo nec puto fundum deteriorem esse, si tales sunt lapidicinae, in quibus lapis crescere possit.
A husband had opened marble quarries on a dotal estate: with divorce effected, it is asked whose the marble would be which had been cut and not exported, and whether the expense made upon the quarries ought to be made good by the woman or by the man. Labeo says the marble is the husband’s; moreover, he denies that anything is to be made good to the man by the woman, because that expense was not necessary and the estate had been made worse. I, however, consider that not only necessary but also useful expenses are to be made good by the woman, nor do I think the estate is worse, if the quarries are such in which the stone can grow.
Si per mulierem mora fieret, quo minus aestimationem partis fundi viro solveret et fundum reciperet, cum hoc pactum erat: fructus interim perceptos ad virum pertinere ait labeo. puto potius pro portione fructus virum habiturum, reliquos mulieri restituturum: quo iure utimur.
If through the woman a delay arose, whereby she was prevented from paying to the husband the valuation of the share of the farm and from recovering the farm, when this had been agreed: Labeo says that the fruits meanwhile perceived belong to the husband. I think rather that the husband will have the fruits in proportion, and that the remainder will be restored to the woman: which is the rule we use.