Justinian: DIGESTA

Moribus apud nos receptum est, ne inter virum et uxorem donationes valerent. hoc autem receptum est, ne mutuo amore invicem spoliarentur donationibus non temperantes, sed profusa erga se facilitate:

By custom it has been received among us that donations between husband and wife are not valid. Moreover, this has been received so that, through mutual love, they may not despoil each other, not restraining themselves in donations, but with profuse liberality toward one another:

Dig. 24.1.2

Digest 24.1.2

Paulus 7 ad sab.

Paul 7 on Sabinus.

Ne cesset eis studium liberos potius educendi. sextus caecilius et illam causam adiciebat, quia saepe futurum esset, ut discuterentur matrimonia, si non donaret is qui posset, atque ea ratione eventurum, ut venalicia essent matrimonia.

Let their zeal for rearing children rather not cease. sextus caecilius also added this reason: because it would often come about that marriages would be dissolved, if the one who was able did not donate, and that in that way it would result that marriages would be venal, for sale.

Dig. 24.1.3pr.

Digest 24.1.3pr.

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

Haec ratio et oratione imperatoris nostri antonini augusti electa est: nam ita ait: " maiores nostri inter virum et uxorem donationes prohibuerunt, amorem honestum solis animis aestimantes, famae etiam coniunctorum consulentes, ne concordia pretio conciliari viderentur neve melior in paupertatem incideret, deterior ditior fieret".

This rationale too was chosen in the oration of our emperor Antoninus Augustus: for thus he says: "Our ancestors prohibited donations between a man and his wife, estimating honorable love by minds alone, and also having regard to the reputation of those joined, lest concord should seem to be conciliated by a price, and lest the better fall into poverty, the worse become richer"

Dig. 24.1.3.1

Digest 24.1.3.1

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

Videamus, inter quos sunt prohibitae donationes. et quidem si matrimonium moribus legibusque nostris constat, donatio non valebit. sed si aliquod impedimentum interveniat, ne sit omnino matrimonium, donatio valebit: ergo si senatoris filia libertino contra senatus consultum nupserit, vel provincialis mulier ei, qui provinciam regit vel qui ibi meret, contra mandata, valebit donatio, quia nuptiae non sunt.

Let us see among whom donations are prohibited. And indeed, if matrimony stands by our mores and laws, the donation will not be valid. But if some impediment should intervene, so that there is not at all a marriage, the donation will be valid: therefore, if a senator’s daughter should wed a freedman contrary to the senatus-consult, or a provincial woman to him who governs a province or who serves there, contrary to the mandates, the donation will be valid, because there are no nuptials.

sed fas non est eas donationes ratas esse, ne melior sit condicio eorum, qui delinquerunt. divus tamen severus in liberta pontii paulini senatoris contra statuit, quia non erat affectione uxoris habita, sed magis concubinae.

but it is not right that those donations be ratified, lest the condition of those who have transgressed be better. however, the deified Severus ruled to the contrary in the case of the freedwoman of Pontius Paulinus, a senator, because she was not maintained with the affectio of a wife, but rather of a concubine.

Dig. 24.1.3.2

Digest 24.1.3.2

Ulpianus 32 ad sab.

Ulpian, 32 On Sabinus.

Qui in eiusdem potestate sunt, prohibentur sibi donare, ut puta frater mariti, qui est in soceri potestate.

Those who are under the power of the same person are prohibited from making gifts to one another, for example the husband's brother, who is under the father-in-law's power.

Dig. 24.1.3.3

Digest 24.1.3.3

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

Verbum potestatis non solum ad liberos trahimus, verum etiam ad servos: nam magis est, ut hi quoque, qui aliquo iure subiecti sunt marito, donare non possint.

We draw the term “power” not only to children, but also to slaves: for it is the more correct view that these too, who are subject to the husband by some right, cannot donate.

Dig. 24.1.3.4

Digest 24.1.3.4

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Secundum haec si mater filio, qui in patris potestate esset, donet, nullius momenti erit donatio, quia patri quaeritur: sed si in castra eunti filio dedit, videtur valere, quia filio quaeritur et est castrensis peculii. quare et si filius vel privignus vel quivis alius potestati mariti subiectus de castrensi suo peculio donavit, non erit irrita donatio.

Following these, if a mother gives to a son who is in his father’s power, the donation will be of no moment, because it is acquired for the father; but if she gave to a son going into camp, it is seen to be valid, because it is acquired for the son and belongs to the castrense peculium. Wherefore also, if a son or a stepson or whoever else subject to the husband’s power has made a gift from his own castrense peculium, the donation will not be void.

Dig. 24.1.3.5

Digest 24.1.3.5

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Prohibetur igitur et uxori et nurui donare etiam is, qui est in soceri potestate, si modo maritus sit in patris potestate.

Accordingly, it is prohibited to donate both to a wife and to a daughter-in-law even by one who is in the father-in-law’s power, provided that the husband is in his father’s power.

Dig. 24.1.3.6

Digest 24.1.3.6

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Ab uxoris nurusve parte prohibitum est donari viro vel genero. sed et his, qui sunt in eorum potestate si fuerit donatum, vel in quorum sunt potestate, non valebit donatio, si modo vir et socer in eiusdem sunt potestate vel vir in soceri: ceterum si in alia familia est maritus, neque socero neque ei qui est in eius potestate neque ei in cuius est donatione interdictum est.

From the wife’s or daughter-in-law’s side it is prohibited to donate to the husband or the son-in-law. But also if it has been donated to those who are in their power, or to those in whose power they are, the donation will not be valid—provided only that the husband and the father-in-law are under the same power, or the husband under the father-in-law’s. Otherwise, if the husband is in another family, the interdict of donation is not laid upon the father-in-law, nor upon him who is in his power, nor upon him in whose power he is.

Dig. 24.1.3.7

Digest 24.1.3.7

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

Socrui a nuru vel contra donari non est prohibitum, quia hic ius potestatis non vertitur.

It is not prohibited for a donation to be made to a mother-in-law by a daughter-in-law, or conversely, because here the right of power is not at issue.

Dig. 24.1.3.8

Digest 24.1.3.8

Ulpianus 32 ad sab.

Ulpian 32 to sab.

Si servus meus, cuius usus fructus alienus est, donet uxori meae ex eo peculio, quod ad me non pertinebat, vel homo liber bona fide mihi serviens, an valeat donatio, quaeritur. et in libera quidem persona utcumque admitti potest donatio: ceterae enim personae alienationem peculii ut donent non habent.

If my slave, whose usufruct is alien (belongs to another), makes a donation to my wife out of that peculium which did not pertain to me, or a free man serving me in good faith does so, the question is whether the donation is valid. And indeed, in the case of a free person a donation can in some way be admitted; for other persons do not have the alienation of a peculium so as to make donations.

Dig. 24.1.3.9

Digest 24.1.3.9

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Non tantum autem per se maritus et uxor ceteraeque personae dare non possunt sed nec per interpositam personam.

Not only can a husband and wife and the other persons not give by themselves, but neither can they do so through an interposed person.

Dig. 24.1.3.10

Digest 24.1.3.10

Ulpianus 32 ad sab.

Ulpian book 32 on Sabinus.

Sciendum autem est ita interdictam inter virum et uxorem donationem, ut ipso iure nihil valeat quod actum est: proinde si corpus sit quod donatur, nec traditio quicquam valet, et si stipulanti promissum sit vel accepto latum, nihil valet: ipso enim iure quae inter virum et uxorem donationis causa geruntur, nullius momenti sunt.

It must be known, moreover, that a donation between husband and wife is so interdicted that, by the law itself, nothing that has been done is valid: accordingly, if what is donated is a corporeal thing, not even delivery avails anything; and if it has been promised to the stipulator or an acceptilation has been made, it is of no effect: for by the law itself the things transacted between husband and wife for the sake of donation are of no moment.

Dig. 24.1.3.11

Digest 24.1.3.11

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Si quis igitur nummos uxori dederit, non fieri eius apparet, quia nihil corporis eius fieri palam est.

If, therefore, someone should give coins to his wife, it is apparent that they do not become hers, because it is plain that nothing of her substance is thereby made.

Dig. 24.1.3.12

Digest 24.1.3.12

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

Sed si debitorem suum ei solvere iusserit, hic quaeritur, an nummi fiant eius debitorque liberetur. et celsus libro quinto decimo digestorum scribit videndum esse, ne dici possit et debitorem liberatum et nummos factos mariti, non uxoris: nam et si donatio iure civili non impediretur, eum rei gestae ordinem futurum, ut pecunia ad te a debitore tuo, deinde a te ad mulierem perveniret: nam celeritate coniungendarum inter se actionum unam actionem occultari, ceterum debitorem creditori dare, creditorem uxori. nec novum aut mirum esse, quod per alium accipias, te accipere: nam et si is, qui creditoris tui se procuratorem esse simulaverit, a debitore tuo iubente te pecuniam acceperit, et furti actionem te habere constat et ipsam pecuniam tuam esse.

But if he has ordered his debtor to pay her, the question arises whether the coins become hers and the debtor is released. And Celsus in the fifteenth book of the Digest writes that it must be considered, lest it can be said both that the debtor has been liberated and that the coins have become the husband’s, not the wife’s: for even if the donation were not impeded by the civil law, the order of the res gesta would be this, that the money would come to you from your debtor, and then from you to the woman: for by the speed of conjoining the actions with one another a single action is concealed, but in fact the debtor gives to the creditor, the creditor to the wife. Nor is it new or wondrous that what you receive through another you are yourself receiving: for even if he who has pretended to be the procurator (agent) of your creditor has, at your bidding, received the money from your debtor, it is established both that you have the action of theft and that the money itself is yours.

Dig. 24.1.3.13

Digest 24.1.3.13

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

Huic sententiae consequens est, quod iulianus libro septimo decimo digestorum scripsit, si donaturum mihi iussero uxori meae dare: ait enim iulianus nullius esse momenti, perinde enim habendum, atque si ego acceptam et rem meam factam uxori meae dedissem: quae sententia vera est. ^ quod iulianus. . . . . . perinde ^ .

Consequent upon this opinion is what Julian wrote in the seventeenth book of the Digest, namely: if I order one who is going to make a gift to me to give it to my wife. For Julian says that it is of no moment, for it must be held just as if I, having received it and made it my property, had given it to my wife; which opinion is true. ^ quod iulianus. . . . . . perinde ^ .

Dig. 24.1.4

Digest 24.1.4

Iulianus 17 Dig.

Julian 17 Dig.

Idemque est et si mortis causa traditurum mihi iusserim uxori tradere, nec referre, convaluerit donator an mortuus sit. neque existimandum est, si dixerimus valere donationem, non fieri me pauperiorem, quia sive convaluerit donator, condictione tenebor, sive mortuus fuerit, rem, quam habiturus eram, in bonis meis desinam propter donationem habere.

And it is the same also if, in contemplation of death, I have ordered the one who was going to deliver to me to deliver to my wife; nor does it matter whether the donor has recovered or has died. Nor must it be thought that, if we say the donation is valid, I am not made poorer, because whether the donor has recovered, I shall be held by a condiction, or if he has died, the thing which I was going to have I cease, on account of the donation, to have among my goods.

Dig. 24.1.5pr.

Digest 24.1.5pr.

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Si sponsus sponsae donaturus tradiderit titio, ut is sponsae daret, deinde titius tradiderit post nuptias secutas: si quidem eum interposuerit maritus, donationem non valere, quae post contractas nuptias perficiatur: si vero mulier eum interposuerit, iamdudum ^ iamdum^ perfectam donationem, hoc est ante nuptias, atque ideo quamvis contractis nuptiis titius tradiderit, donationem valere.

If the bridegroom, intending to donate to the bride, should deliver to Titius so that he might give it to the bride, and then Titius should deliver after the nuptials have followed: if indeed the husband interposed him, the donation is not valid, since it is completed after the nuptials have been contracted; but if the woman interposed him, the donation is already ^ already^ perfected, that is, before the nuptials, and therefore although, with the nuptials contracted, Titius delivered, the donation is valid.

Dig. 24.1.5.1

Digest 24.1.5.1

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Si maritus duos reos habeat titium et mulierem et mulieri accepto tulerit donationis causa, neuter liberatur, quia acceptilatio non valet: et haec iulianus libro septimo decimo digestorum scribit. plane si mihi proponas titio accepto latum, ipse quidem liberabitur, mulier vero manebit obligata.

If a husband has two debtors, titius and the woman, and he has entered an acceptilation for the woman for the sake of a gift, neither is released, because the acceptilation is not valid; and julian writes these things in the seventeenth book of the Digest. Clearly, if you set before me that an acceptilation has been entered for titius, he indeed will be released, but the woman will remain bound.

Dig. 24.1.5.2

Digest 24.1.5.2

Ulpianus 32 ad sab.

Ulpian 32 to Sabinus.

Generaliter tenendum est, quod inter ipsos aut qui ad eos pertinent aut per interpositas personas donationis causa agatur, non valere: quod si aliarum extrinsecus rerum personarumve causa commixta sit, si separari non potest, nec donationem impediri, si separari possit, cetera valere, id quod donatum sit non valere.

Generally it is to be held that what is done between themselves, or by those who pertain to them, or through interposed persons, for the cause of a donation, is not valid: but if extrinsically the cause of other things or persons is commixed, if it cannot be separated, neither is the donation to be impeded, if it can be separated, let the rest be valid, that which has been donated not be valid.

Dig. 24.1.5.3

Digest 24.1.5.3

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

Si debitor viri pecuniam iussu mariti uxori promiserit, nihil agitur.

If a debtor of the husband has promised money to the wife at the husband’s order, nothing is effected.

Dig. 24.1.5.4

Digest 24.1.5.4

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Si uxor viri creditori donationis causa promiserit et fideiussorem dederit, neque virum liberari neque mulierem obligari vel fideiussorem eius iulianus ait, perindeque haberi ac si nihil promisisset.

If a wife has promised to her husband’s creditor for the cause of a donation and has given a surety, Julian says that neither is the husband liberated nor the woman obligated nor her surety, and it is to be held just as if she had promised nothing.

Dig. 24.1.5.5

Digest 24.1.5.5

Ulpianus 32 ad sab.

Ulpian, 32 on sab.

Circa venditionem quoque iulianus quidem minoris factam venditionem nullius esse momenti ait: neratius autem ( cuius opinionem pomponius non improbat) venditionem donationis causa inter virum et uxorem factam nullius esse momenti, si modo, cum animum maritus vendendi non haberet, idcirco venditionem commentus sit, ut donaret: enimvero si, cum animum vendendi haberet, ex pretio ei remisit, venditionem quidem valere, remissionem autem hactenus non valere, quatenus facta est locupletior: itaque si res quindecim venit quinque, nunc autem sit decem, quinque tantum praestanda sunt, quia in hoc locupletior videtur facta.

Concerning sale as well, Julianus indeed says that a sale made for less is of no moment: Neratius, however (whose opinion Pomponius does not disapprove), says that a sale made for the sake of a donation between husband and wife is of no moment, provided that, when the husband did not have the intention of selling, he therefore contrived the sale in order to donate; but indeed if, when he had the intention of selling, he remitted to her from the price, the sale is valid, but the remission is valid only thus far as she has been made more wealthy: accordingly, if a thing that goes for fifteen went for five, but now is ten, only five are to be paid, because in this she appears to have been made more wealthy.

Dig. 24.1.5.6

Digest 24.1.5.6

Ulpianus 32 ad sab.

Ulpian, book 32 on Sabinus.

Si donationis causa vir vel uxor servitute non utatur, puto amitti servitutem, verum post divortium condici posse.

If, for a donative cause, the husband or the wife does not make use of the servitude, I think the servitude is lost; however, after divorce it can be claimed by condictio.

Dig. 24.1.5.7

Digest 24.1.5.7

Ulpianus 32 ad sab.

Ulpian, book 32 on Sabinus.

Si uxor vel maritus exceptione quadam donationis causa summoveri voluerint, facta a iudice absolutione valebit quidem sententia, sed condicetur ei, cui donatum est.

If a wife or a husband should wish to be removed by a certain exception on account of a donation, once absolution has been made by the judge the sentence will indeed be valid, but a condictio will be brought against the one to whom it was donated.

Dig. 24.1.5.8

Digest 24.1.5.8

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Concessa donatio est sepulturae causa: nam sepulturae causa locum marito ab uxore vel contra posse donari constat et si quidem intulerit, faciet locum religiosum. hoc autem ex eo venit, quod definiri solet eam demum donationem impediri solere, quae et donantem pauperiorem et accipientem faciet locupletiorem: porro hic non videtur fieri locupletior in ea re quam religioni dicavit. nec movit quemquam, quod emeret, nisi a marito accepisset: nam etsi pauperior ea fieret, nisi maritus dedisset, non tamen idcirco fit locupletior, quod non expendit.

A donation is permitted for the purpose of sepulture: for it is established that, for the purpose of sepulture, a place can be donated to the husband by the wife, or the other way around; and if indeed an interment has been made, it will render the place religious. This, moreover, comes from the rule that it is usually defined that only that donation is wont to be impeded which will make both the donor poorer and the recipient richer: but here he does not seem to become richer in that thing which he has dedicated to religion. Nor did it move anyone to argue that she would have bought it, had she not received it from her husband: for although she would have become poorer unless the husband had given it, nevertheless she does not for that reason become richer because she did not expend it.

Dig. 24.1.5.9

Digest 24.1.5.9

Ulpianus 32 ad sab.

Ulpian, Book 32 on Sabinus.

Haec res et illud suadet, si uxori maritus sepulturae causa donaverit, ita demum locum fieri intellegi mulieris, cum corpus humatur: ceterum antequam fiet religiosus, donantis manet. proinde si distraxerit mulier, manet locus donatoris.

This matter likewise suggests that, if a husband has donated to his wife for the sake of sepulture, the place is to be understood to become the woman’s only when the body is interred; but before it becomes religious, it remains with the donor. Accordingly, if the woman has alienated it, the place remains the donor’s.

Dig. 24.1.5.10

Digest 24.1.5.10

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

Secundum haec si uxori suae monumentum purum maritus magni pretii donaverit, valebit donatio, sic tamen, ut, cum fit religiosus, valeat.

Accordingly, if a husband has donated to his wife a pure (unused) monument of great price, the donation will be valid, yet on this condition: that, when it becomes religious, it shall be valid.

Dig. 24.1.5.11

Digest 24.1.5.11

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Sed et si ipsa fuerit illo illata, licet morte eius finitum est matrimonium, favorabiliter tamen dicetur locum religiosum fieri.

But also, if she herself has been brought in there, although the marriage has been ended by his death, nevertheless it will be said favorably that the place becomes religious.

Dig. 24.1.5.12

Digest 24.1.5.12

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

Proinde et si maritus ad oblationem dei uxori donavit, vel locum, in quo opus publicum quod promiserat facere, velut aedem publicam, dedicaret, fiet locus sacer. sed et si quid ei det, ut donum deo detur vel consecretur, dubium non est, quin debeat valere: quare et si oleum pro ea in aede sacra posuerit, valet donatio.

Accordingly, even if a husband has given to his wife for an oblation to God, or a place in which he might dedicate the public work which he had promised to make—for example, a public shrine—the place will become sacred. But also if he gives her anything, in order that a gift may be given to God or be consecrated, there is no doubt that it ought to be valid: wherefore, even if he has placed oil on her behalf in a sacred temple, the donation is valid.

Dig. 24.1.5.13

Digest 24.1.5.13

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Si maritus heres institutus repudiet hereditatem donationis causa, iulianus scripsit libro septimo decimo digestorum donationem valere: neque enim pauperior fit, qui non adquirat, sed qui de patrimonio suo deposuit. repudiatio autem mariti mulieri prodest, si vel substituta sit mulier vel etiam ab intestato heres futura.

If a husband instituted as heir should repudiate the inheritance for the sake of the donation, Julian wrote in the seventeenth book of the Digests that the donation is valid: for he does not become poorer who does not acquire, but he who has laid down something from his own patrimony. Moreover, the husband’s repudiation benefits the woman, if either the woman has been substituted as heir or also is going to be heir ab intestato.

Dig. 24.1.5.14

Digest 24.1.5.14

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Simili modo et si legatum repudiet, placet nobis valere donationem, si mulier substituta sit in legato vel etiam si proponas eam heredem institutam.

Similarly, even if she should repudiate the legacy, it pleases us that the donation is valid, if the woman has been substituted in the legacy, or even if you suppose her to have been instituted as heir.

Dig. 24.1.5.15

Digest 24.1.5.15

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Si quis rogatus sit praecepta certa quantitate uxori suae hereditatem restituere et is sine deductione restituerit, celsus libro decimo digestorum scripsit magis pleniore officio fidei praestandae functum maritum quam donasse videri: et rectam rationem huic sententiae celsus adiecit, quod plerique magis fidem exsolvunt in hunc casum quam donant nec de suo putant proficisci, quod de alieno plenius restituunt voluntatem defuncti secuti: nec immerito saepe credimus aliquid defunctum voluisse et tamen non rogasse. quae sententia habet rationem magis in eo, qui non erat deducta quarta rogatus restituere et tamen integram fidem praestitit omisso senatus consulti commodo: hic enim vere fidem exsolvit voluntatem testatoris obsecutus. hoc ita, si non per errorem calculi fecit: ceterum indebiti fideicommissi esse repetitionem nulla dubitatio est.

If someone has been asked to restore the inheritance to his wife with a certain amount to be pre‑taken, and he has restored it without any deduction, Celsus in the tenth book of the Digest wrote that the husband appears to have performed the fuller duty of faith to be rendered rather than to have made a donation; and Celsus added a right reason for this opinion, namely that in this case most people discharge the trust rather than make a gift, and they do not think it proceeds from their own property, because they restore more fully from another’s, following the will of the deceased; nor without cause do we often believe that the deceased wished something and yet did not expressly request it. This opinion has greater reason especially in the case of one who was asked to restore when the fourth had not been deducted and yet rendered complete faith, foregoing the benefit of the senatus consultum; for here he truly discharges the trust, having obeyed the will of the testator. This is so, if he did not do it through an error of calculation; otherwise there is no doubt that there is a recovery of an undue fideicommissum.

Dig. 24.1.5.16

Digest 24.1.5.16

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Cum igitur nihil de bonis erogatur, recte dicitur valere donationem. ubicumque igitur non deminuit de facultatibus suis qui donavit, valet, vel, etiamsi deminuat, locupletior tamen non fit qui accepit, donatio valet.

Since therefore nothing is disbursed from the goods, it is rightly said that the donation is valid. wherever therefore the one who donated does not diminish from his own resources, it is valid; or, even if he does diminish, nevertheless the one who received does not become more wealthy, the donation is valid.

Dig. 24.1.5.17

Digest 24.1.5.17

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Marcellus libro septimo digestorum quaerit, si mulier acceptam a marito pecuniam in sportulas pro cognato suo ordini erogaverit, an donatio valeat? et ait valere nec videri locupletiorem mulierem factam, quamvis mutuam pecuniam esset acceptura et pro adfine erogatura.

Marcellus, in the seventh book of the Digests, asks whether, if a woman has disbursed money received from her husband into sportulae for the order on behalf of her kinsman, the donation is valid; and he says it is valid, nor does the woman seem to have been made more wealthy, although she was going to receive money as a loan and to disburse it for her affine (relative by marriage).

Dig. 24.1.5.18

Digest 24.1.5.18

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

In donationibus autem iure civili impeditis hactenus revocatur donum ab eo ab eave cui donatum est, ut, si quidem exstet res, vindicetur, si consumpta sit, condicatur hactenus, quatenus locupletior quis eorum factus est:

But in the case of donations impeded by the civil law, the gift is revoked from the man or from the woman to whom it was given only to this extent, that, if indeed the thing still exists, it is vindicated; if it has been consumed, a condiction is brought to this extent, in so far as whichever of them has been made more wealthy:

Dig. 24.1.6

Digest 24.1.6

Gaius 11 ad ed. provinc.

Gaius 11 on the Provincial Edict.

Quia quod ex non concessa donatione retinetur, id aut sine causa aut ex iniusta causa retineri intellegitur: ex quibus causis condictio nasci solet.

Because what is retained on the basis of a donation not conceded is understood to be retained either without cause or from an unjust cause: from which causes a condictio is wont to arise.

Dig. 24.1.7pr.

Digest 24.1.7, pr.

Ulpianus 31 ad sab.

Ulpian 31 on Sabinus.

Quod autem spectetur tempus, an locupletiores sint facti, utrum tempus litis contestatae an rei iudicatae? et verum est litis contestatae tempus spectari oportere idque imperator noster cum patre rescripsit.

But as to which point of time is to be considered—whether they have become more wealthy—whether the time of the litis contestatio or of the res judicata? And it is true that the time of the litis contestatio ought to be regarded, and this our emperor, together with his father, answered by rescript.

Dig. 24.1.7.1

Digest 24.1.7.1

Ulpianus 31 ad sab.

Ulpian, 31 on Sabinus.

Si maritus pecuniam uxori in unguenta dederit eaque eam pecuniam creditori suo solverit, mox ea de sua pecunia unguenta emerit, non videri locupletiorem factam Marcellus libro septimo digestorum scribit. idemque et si lancem ob eandem causam ei dederit eaque lancem retinuerit, de sua autem pecunia unguenta emerit, vindicationem cassare, quia non est locupletior, quae tantundem in re mortua impendit.

If a husband has given money to his wife for unguents, and she has paid that money to her own creditor, and soon thereafter has bought unguents with her own money, Marcellus writes in the seventh book of the Digesta that she is not considered to have been made more wealthy. And likewise, if he has given her a dish for the same cause and she has kept the dish, but has bought unguents with her own money, the vindication is quashed, because she is not more wealthy, she who has expended the same amount on a dead thing.

Dig. 24.1.7.2

Digest 24.1.7.2

Ulpianus 31 ad sab.

Ulpian 31 on Sabinus.

Si vir et uxor quina invicem sibi donaverint et maritus servaverit, uxor consumpserit, recte placuit compensationem fieri donationum et hoc divus hadrianus constituit. aestimari oportere, in quantum locupletior facta sit mulier. proinde et si praedia hodie vilissimo sunt, consequenter dicemus litis contestatae tempore aestimationem eorum spectandam.

If a husband and a wife have given gifts to each other, and the husband has preserved his, the wife has consumed hers, it has been rightly decided that there be a set-off (compensation) of the donations, and the deified Hadrian established this. It ought to be assessed to what extent the woman has been made more wealthy. Accordingly, even if the estates today are at a rock-bottom price, we will consistently say that their valuation is to be regarded at the time of the joinder of issue.

plane si magni pretii praedia sunt, summa tantum numerata erit restituenda, non etiam usurae pretii.

plainly, if the estates are of great price, only the sum counted out will have to be restored, not also the interest of the price.

Dig. 24.1.7.4

Digest 24.1.7.4

Ulpianus 31 ad sab.

Ulpian 31 on Sabinus.

Eleganter tractabitur, si mulier quindecim praedia emerit et maritus non totum pretium numeraverit, sed duas partes pretii, hoc est decem, uxor de suo quinque, deinde haec praedia valeant nunc decem, maritus quantum consequatur. et magis est, ut consequi debeat duas partes decem, ut quod periit ex pretio, utrique perierit et marito et uxori.

It will be handled elegantly, if a woman has purchased 15 estates and the husband has not paid the whole price, but two parts of the price, that is 10, the wife from her own 5; then these estates are now worth 10, how much the husband should recover. And the more correct view is that he ought to recover two parts of the 10, so that what has perished out of the price has perished for both, both the husband and the wife.

Dig. 24.1.7.5

Digest 24.1.7.5

Ulpianus 31 ad sab.

Ulpian 31 on Sabinus.

Si maritus aestimationem rerum quas in dotem accepit dicat se donationis causa auxisse, remedium monstravit imperator noster cum divo patre suo rescripto, cuius verba haec sunt: " cum donationis causa pretium auctum adfirmes, qui super ea re cogniturus erit, si pecuniae modum recusabis, ipsa praedia restitui debere sumptuum deductis rationibus arbitrabitur". in arbitrio igitur mariti erit, quid praestitum malit. idem iuris est et si e contrario mulier de minore aestimatione queratur. nec aliud in commodato aestimato dato observari solet, ut pomponius libro quarto variarum lectionum scribit.

If a husband says that he has increased the appraisal of the things which he received in dowry for the sake of donation, our emperor, together with his deified father, showed a remedy by a rescript, the words of which are these: " since you affirm that the price was increased for the cause of donation, the one who will take cognizance over this matter, if you refuse the amount of money, will judge that the estates themselves ought to be restored, the accounts of expenses being deducted". Therefore it will be in the husband’s discretion which performance he prefers. The same law holds also if conversely the woman complains of a lesser appraisal. Nor is anything else usually observed in a commodatum given with valuation, as Pomponius writes in the fourth book of Various Readings.

Dig. 24.1.7.6

Digest 24.1.7.6

Ulpianus 31 ad sab.

Ulpian, 31 On Sabinus.

Si uxor a marito suo praedia, quae ob dotem pignori acceperat, emerit eaque emptio donationis causa facta dicatur, nullius esse momenti, pignoris tamen obligationem durare imperator noster cum patre suo rescripsit, cuius rescripti verba ideo rettuli, ut appareat venditionem inter virum et uxorem bona fide gestam non retractari. " si tibi maritus pignora propter dotem et pecuniam creditam data non donationis causa vendidit, quod bona fide gestum est, manebit ratum. at si titulus donationis quaesitus ostenditur atque ideo venditionem irritam esse constabit, iure publico causam pignorum integram obtinebis".

If a wife should buy from her husband the estates which she had received in pledge on account of the dowry, and that purchase is said to have been made for the sake of donation, it is of no moment; yet the obligation of the pledge endures, our emperor together with his father has written in a rescript, the words of which rescript I have therefore set down, so that it may appear that a sale transacted in good faith between husband and wife is not rescinded. " if your husband sold to you the pledges given on account of the dowry and the money lent, not for the sake of donation, what has been done in good faith will remain ratified. but if a title of donation is shown to have been sought and therefore it is established that the sale is void, by public law you will obtain the cause of the pledges intact".

Dig. 24.1.7.7

Digest 24.1.7.7

Ulpianus 31 ad sab.

Ulpian 31 on Sabinus.

Si uxor rem emit et maritus pretium pro ea numeravit, interdum dicendum est totum a muliere repetendum, quasi locupletior ex ea in solidum facta sit: ut puta si emit quidem rem mulier et debebat pecuniam, maritus autem a venditore eam liberavit: quid enim interest, creditori solvat an venditori?

If a wife buys a thing and the husband has counted out the price for her, sometimes it must be said that the whole is to be recovered from the woman, as though she had been enriched by it in full: for example, if the woman did indeed buy the thing and owed the money, but the husband released her from the seller; for what difference is there whether he pays the creditor or the seller?

Dig. 24.1.7.8

Digest 24.1.7.8

Ulpianus 31 ad sab.

Ulpian 31 on sab.

Uxori quis donavit servum ita, ut eum intra annum manumitteret: an, si mulier non obtemperet voluntati, constitutio divi marci imponat ei libertatem, si vir vel vivit vel etiam diem suum obierit? et ait papinianus, cum sabini sit sententia recepta, qui putat tunc fieri servum eius cui donatur, cum coeperit libertas imponi ideoque nec si velit mulier post exactum tempus possit manumittere, recte dici non esse constitutioni locum nec voluntatem mariti posse constitutioni locum facere, cum proprium servum possit manumittere: quae sententia mihi quoque probatur, quia venditor sive donatur non sibi vult legem imponi nec potest, sed ei qui accepit: dominio igitur penes se remanente nequaquam effectum habebit constitutio.

Someone donated a slave to his wife on the condition that she manumit him within a year: the question is, if the woman does not obey the will, does the constitution of the deified Marcus impose liberty upon him, whether the husband is alive or has even died? And Papinian says that, since the opinion of Sabinus has been received—who thinks that the slave then becomes the slave of him to whom he is donated when liberty begins to be imposed, and therefore that not even if the woman wishes, after the time has elapsed, can she manumit—it is rightly said that there is no place for the constitution, nor can the husband’s will make room for the constitution, since he can manumit his own slave: which opinion is approved by me also, because the seller or donor does not wish, nor can he, to have a law imposed upon himself, but upon the one who has received; therefore, with ownership remaining with himself, the constitution will by no means have effect.

Dig. 24.1.7.9

Digest 24.1.7.9

Ulpianus 31 ad sab.

Ulpian, 31 On Sabinus.

Manumissionis causa donatio facta valet, licet non hoc agatur, ut statim ad libertatem, sed quandoque perducatur. proinde si, ut post certum tempus manumittat, uxori suae tradidit, tunc demum eius fiet, cum tempore impleto manumittere coeperit: quare antea manumittendo nihil agit. nam et illud sciendum est: si uxori quis suae donaverit, ut intra annum manumittat, deinde non manumiserit ea intra annum, postea manumittendo nihil agit.

A donation made for the sake of manumission is valid, even though the aim is not that he be brought immediately to liberty, but that he be led to it at some time. Accordingly, if he delivered him to his wife, to the end that she manumit after a fixed time, then only will it become hers when, the time having been completed, she has begun to manumit: wherefore, by attempting manumission earlier, she does nothing. For this, too, must be known: if one has donated to his wife that she manumit within a year, and then she has not manumitted within the year, afterward by manumitting she does nothing.

Dig. 24.1.8

Digest 24.1.8

Gaius 11 ad ed. provinc.

Gaius 11 on the provincial edict.

Si, antequam servus manumittatur, morte aut divortio solutum fuerit matrimonium, resolvitur donatio: inesse enim condicio donationi videtur, ut manente matrimonio manumittatur.

If, before the slave is manumitted, the marriage has been dissolved by death or by divorce, the donation is rescinded: for a condition is seen to inhere in the donation, namely that he be manumitted while the marriage endures.

Dig. 24.1.9pr.

Digest 24.1.9, beginning.

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Si eum uxori donet maritus, qui eius erat condicionis, ne umquam ad libertatem perduci possit, dicendum est omnino nihil agi hac donatione.

If a husband donates to his wife one who was of such a condition that he could never be brought to liberty, it must be said that absolutely nothing is effected by this donation.

Dig. 24.1.9.1

Digest 24.1.9.1

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Si pecunia accepta mulier manumiserit vel operas ei imposuerit, ait iulianus operas quidem eam licito iure imposituram et tenere obligationem nec videri mulierem ex re viri locupletiorem fieri, cum eas libertus promittat: quod si pretium ob manumissionem acceperit mulier et sic manumiserit, si quidem ex peculio suo dedit, nummos mariti manere, si vero alius pro eo dedit, fient nummi mulieris: quae sententia recte se habet.

If, after receiving money, the woman has manumitted or has imposed services upon him, Julian says that she will indeed impose the services by lawful right and that the obligation holds, nor does the woman appear to become richer from her husband’s property, since the freedman promises them; but if the woman has received a price for manumission and so has manumitted, then, if he gave it out of his own peculium, the coins remain the husband’s, whereas if someone else gave it on his behalf, the coins become the woman’s: which opinion is correct.

Dig. 24.1.9.2

Digest 24.1.9.2

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

Inter virum et uxorem mortis causa donationes receptae sunt,

Between husband and wife, donations mortis causa have been accepted,

Dig. 24.1.10

Digest 24.1.10

Gaius 11 ad ed. provinc.

Gaius 11 on the provincial edict.

Quia in hoc tempus excurrit donationis eventus, quo vir et uxor esse desinunt.

Because the event of the donation extends to that time when husband and wife cease to be.

Dig. 24.1.11pr.

Digest 24.1.11, preface.

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Sed interim res non statim fiunt eius cui donatae sunt, sed tunc demum, cum mors insecuta est: medio igitur tempore dominium remanet apud eum qui donavit.

But in the meantime, things do not immediately become the property of the one to whom they have been donated, but only then, when death has followed: therefore in the intervening time dominion (ownership) remains with the one who donated.

Dig. 24.1.11.1

Digest 24.1.11.1

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Sed quod dicitur mortis causa donationem inter virum et uxorem valere, ita verum est, ut non solum ea donatio valeat secundum iulianum, quae hoc animo fit, ut tunc res fiat uxoris vel mariti, cum mors insequetur, sed omnis mortis causa donatio.

But as to what is said, that a donation mortis causa between husband and wife is valid, it is true in this way: not only is that donation valid, according to Julian, which is made with this intention, that the thing then becomes the wife’s or the husband’s when death ensues, but every donation mortis causa.

Dig. 24.1.11.2

Digest 24.1.11.2

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Quando itaque non retro agatur donatio, emergunt vitia, ut Marcellus animadvertit in specie huiusmodi. maritus uxori mortis causa donatum voluit: interposuit mulier filium familias, qui a marito acciperet eique traderet: deinde, cum moritur maritus, pater familias invenitur: an valeat traditio? et ait consequens esse dici traditionem valere, quia sui iuris effectus est eo tempore, ad quod traditio redigitur, id est cum maritus moriebatur.

Accordingly, when a donation is not dealt with retroactively, defects emerge, as Marcellus observes in a case of this kind. A husband wished a mortis causa gift to be given to his wife: the woman interposed a filius familias, who would receive it from the husband and deliver it to her: then, when the husband dies, he is found to be a pater familias: does the delivery have force? And he says it is consequent to say that the delivery is valid, because he had become sui iuris at the time to which the delivery is referred back, that is, when the husband was dying.

Dig. 24.1.11.3

Digest 24.1.11.3

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

Idem ait: placuisse scio sabinianis, si filiae familias uxori maritus tradet, donationem eius cum omni suo emolumento fieri, si vivo adhuc marito sui iuris fuerit effecta. quod et iulianus libro septimo decimo digestorum probat.

He says the same: I know that it pleased the Sabinians, that if the husband delivers to a wife who is a filia familias, the donation in her favor is made with all its own emolument, if, while the husband is still alive, she has become sui iuris. Which Julian also approves in the seventeenth book of the Digest.

Dig. 24.1.11.4

Digest 24.1.11.4

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Proinde et si uxor marito filio familias mortis causa tradat et is sui iuris effectus sit, sine dubio dicemus ipsius fieri ^ fierit^.

Accordingly, even if a wife transfers, mortis causa, to her husband, a filius familias, and he has become sui iuris, without doubt we shall say that it becomes his ^ has become his^.

Dig. 24.1.11.5

Digest 24.1.11.5

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Per contrarium quoque si uxor donaverit mortis causa patri familias marito et mortis eius tempore filius familias inveniatur, patri erit nunc emolumentum quaesitum.

Conversely also, if a wife has donated mortis causa to her husband, a paterfamilias, and at the time of her death he is found to be a filius familias, the emolument will now be acquired to his father.

Dig. 24.1.11.6

Digest 24.1.11.6

Ulpianus 32 ad sab.

Ulpian 32 on sab.

Consequenter scaevola apud Marcellum notat, si servum interposuit mulier, ut ei tradatur mortis causa, isque adhuc servus dederit mulieri, deinde mortis tempore liber inveniatur, tantundem esse dicendum.

Consequently Scaevola notes in Marcellus that, if a woman interposed a slave so that something be delivered to her as a mortis causa gift, and he, while still a slave, delivered it to the woman, then is afterward found free at the time of death, the same is to be said.

Dig. 24.1.11.7

Digest 24.1.11.7

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Idem Marcellus tractat, si is qui interpositus est, posteaquam dederit mulieri, decesserit vivo adhuc donatore, donationem evanescere, quia debeat aliquo momento interposito fieri et sic ad mulierem transire: quod ita procedit, si ea cui donabatur eum interposuit, non is qui donabat. porro si a marito interpositus est, et res ipsius statim facta est et, si ante mortem mariti tradiderit et decesserit, traditio eius egit aliquid, ut tamen haec traditio pendeat, donec mors sequatur.

The same Marcellus discusses that, if the one who has been interposed, after he has given to the woman, has died while the donor is still alive, the donation evaporates, because it ought to be made with some moment interposed and thus pass to the woman: which proceeds thus, if she to whom it was being donated interposed him, not the one who was donating. Moreover, if he was interposed by the husband, the thing at once became his; and if, before the husband’s death, he delivered and then died, his delivery accomplished something, yet this delivery hangs in suspense until death follows.

Dig. 24.1.11.8

Digest 24.1.11.8

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

Si uxor rem titio dederit, ut is marito mortis causa traderet eaque defuncta invitis heredibus eius titius marito dederit, interest, utrum a muliere sit interpositus titius an vero a marito cui donabatur: si a muliere interpositus est, obligabit se condictione, si marito tradiderit, si autem a marito sit interpositus, mortua muliere confestim fundus efficietur eius quem maritus interposuit et actionem ipse maritus cum eo habebit.

If a wife has given a thing to Titius, so that he should deliver it to her husband mortis causa, and she having died, with her heirs unwilling, Titius has given it to the husband, it matters whether Titius was interposed by the woman or rather by the husband to whom it was being donated: if he was interposed by the woman, he will bind himself by a condictio if he delivers it to the husband; but if he was interposed by the husband, with the woman dead the estate will at once become that of the one whom the husband interposed, and the husband himself will have an action with him.

Dig. 24.1.11.9

Digest 24.1.11.9

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Si uxor rem, quam a marito suo mortis causa acceperat, vivo eo alii tradiderit, nihil agitur ea traditione, quia non ante ultimum vitae tempus mulieris fuit. plane in quibus casibus placeat retro agi donationem, etiam sequens traditio a muliere facta in pendenti habebitur.

If a wife, while he is still alive, has delivered to another the thing which she had received from her husband mortis causa, nothing is effected by that delivery, because it was not the woman’s before the last period of life. Plainly, in those cases in which it is approved that the donation be carried back retroactively, even a subsequent delivery made by the woman will be held in suspense.

Dig. 24.1.11.10

Digest 24.1.11.10

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Si maritus uxori donaverit mortis causa eaque diverterit, an dissolvatur donatio? iulianus scripsit infirmari donationem nec impendere.

If a husband has made a donation mortis causa to his wife and she has separated (by divorce), is the donation dissolved? iulianus wrote that the donation is invalidated and does not take effect.

Dig. 24.1.11.11

Digest 24.1.11.11

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

Idem ait, si divortii causa facta sit donatio, valere:

The same says that, if a donation has been made on account of divorce, it is valid:

Dig. 24.1.12

Digest 24.1.12

Paulus 7 ad sab.

Paulus 7 on Sabinus.

Quae tamen sub ipso divortii tempore, non quae ex cogitatione quandoque futuri divortii fiant:

Yet those which are at the very time of the divorce, not those which are made out of a contemplation of a divorce that may someday occur:

Dig. 24.1.13pr.

Digest 24.1.13 pr.

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

Sed si mors sit insecuta, non videri factas res mulieris, quia donatio in alium casum facta est.

But if death should have followed, the things are not considered to have become the woman’s property, because the donation was made for a different contingency.

Dig. 24.1.13.1

Digest 24.1.13.1

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

Proinde et si mortis causa uxori donaverit et deportationem passus est, an donatio valeat, videamus. et alias placet in casum deportationis donationem factam valere, quemadmodum in causam divortii. cum igitur deportatione matrimonium minime dissolvatur et nihil vitium mulieris incurrit, humanum est donationem, quae mortis causa ab initio facta est, tali exilio subsecuto confirmari, tamquam si mortuo marito rata habebatur, ita tamen, ut non adimatur licentia marito eam revocare, quia et mors eius exspectanda est, ut tunc plenissimam habeat firmitatem, quando ab hac luce fuerit subtractus, sive reversus sive adhuc in poena constitutus.

Accordingly, even if he has given to his wife mortis causa and has suffered deportation, let us consider whether the donation is valid. And otherwise it is settled that in the case of deportation a donation made is valid, just as in the case of divorce. Since therefore by deportation the matrimony is by no means dissolved and the woman incurs no fault, it is humane that the donation, which from the beginning was made mortis causa, be confirmed upon such an exile ensuing, as though it were held ratified if the husband had died—yet in such a way that the license for the husband to revoke it is not taken away, because his death too must be awaited, so that then it may have the most complete firmness when he has been taken from this light, whether he has returned or is still under penalty.

Dig. 24.1.13.2

Digest 24.1.13.2

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Cum quis acceperit, ut in suo aedificet, condici ei id non potest, quia magis donari ei videtur: quae sententia neratii quoque fuit: ait enim datum ad villam extruendam vel agrum serendum, quod alioquin facturus non erat is qui accepit, in speciem donationis cadere. ergo inter virum et uxorem hae erunt interdictae.

When someone has received something in order that he may build on his own property, a recovery by condictio cannot be brought against him for that, because it appears rather to have been donated to him: which was also the opinion of Neratius; for he says that what is given for erecting a villa or for sowing a field—which the recipient otherwise was not going to do—falls into the species of donation. Therefore between husband and wife these will be interdicted.

Dig. 24.1.14

Digest 24.1.14

Paulus 71 ad ed.

Paulus 71 On the Edict.

Quod si vir uxori, cuius aedes incendio consumptae sunt, ad refectionem earum pecuniam donaverit, valet donatio in tantum, in quantum aedificii extructio postulat.

But if a husband has given money to his wife, whose house has been consumed by a conflagration, for its refection, the donation is valid only insofar as the erection of the building requires.

Dig. 24.1.15pr.

Digest 24.1.15 preface.

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Ex annuo vel menstruo, quod uxori maritus praestat, tunc quod superest revocabitur, si satis immodicum est, id est supra vires dotis.

From the annual or monthly allowance which the husband furnishes to the wife, then the excess will be called back, if it is sufficiently immoderate—that is, beyond the means of the dowry.

Dig. 24.1.15.1

Digest 24.1.15.1

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Si maritus uxori pecuniam donaverit eaque usuras ex donata pecunia perceperit, lucrabitur. haec ita iulianus in marito libro octavo decimo digestorum scribit.

If a husband has donated money to his wife and she has taken interest from the donated money, she will profit. Julianus thus writes this under “Husband” in the eighteenth book of the Digest.

Dig. 24.1.16

Digest 24.1.16

Tryphonus 10 disp.

Tryphonus 10 disputations.

Quid ergo si ex centum, quae vir uxori donavit, quinquaginta apud debitorem ex his perierint, et alia quinquaginta duplicata usuris uxor habet? non plus quinquaginta eius donationis nomine maritus ab ea consequetur.

What then, if out of one hundred which the husband donated to his wife, fifty have perished with the debtor, and the wife has the other fifty doubled by interest? The husband will not obtain from her more than fifty under the title of that donation.

Dig. 24.1.17pr.

Digest 24.1.17 pr.

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

De fructibus quoque videamus, si ex fructibus praediorum quae donata sunt locupletata sit, an in causam donationis cadant. et iulianus significat fructus quoque ut usuras licitam habere donationem.

Let us also consider the fruits, whether she has been enriched from the fruits of the estates that were donated, or whether they fall under the cause of the donation. And Julian indicates that fruits too, like interest, admit of a lawful donation.

Dig. 24.1.17.1

Digest 24.1.17.1

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Sed si quid servus donatus adquisiit, ad eum qui donavit pertinebit.

But if the donated slave has acquired anything, it will pertain to him who donated.

Dig. 24.1.18

Digest 24.1.18

Pomponius 4 ex var. lect.

Pomponius 4 from various readings.

Si vir uxoris aut uxor viri servis aut vestimentis usus vel usa fuerit vel in aedibus eius gratis habitaverit, valet donatio.

If the husband has used the wife’s slaves or garments, or the wife the husband’s, or has lived in his house gratis, the donation is valid.

Dig. 24.1.19pr.

Digest 24.1.19pr.

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

Si uxor filio donaverit servum, qui in patris mariti sit potestate, deinde is servus ancillam acceperit, dominium mulieri quaeretur: nec interesse iulianus ait, ex cuius pecunia haec ancilla empta sit, quia nec ex re sua quicquam adquiri potest per eum qui donatur ei cui donatur: hoc enim bonae fidei possessoribus concessum est, virum autem scientem alienum possidere.

If a wife has donated to her son a slave who is under the power of the husband (the father), and then that slave has received a maidservant, ownership will be acquired for the woman; and Julian says it is of no importance from whose money that maidservant was bought, since nothing can be acquired out of one’s own property through him who is given as a gift to the person to whom he is given: for this has been conceded to possessors in good faith, whereas the husband knows that he is possessing another’s property.

Dig. 24.1.19.1

Digest 24.1.19.1

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

Idem quaerit, si ex re mariti ea ancilla comparata fuerit, an adversus agentem mulierem de dote maritus pretium possit per exceptionem retinere. et dicendum est posse maritum et exceptionem habere, si dos ab eo petetur, secundum Marcelli sententiam et, si solverit, secundum iulianum condicere posse.

He likewise inquires, if that slave-girl was acquired from the husband’s assets, whether the husband can, by way of an exception, retain the price against the woman suing about the dowry. And it must be said that the husband both can have an exception, if the dowry is sought from him, according to Marcellus’s opinion, and, if he has paid, according to Julian, he can bring a condictio.

Dig. 24.1.20

Digest 24.1.20

Iavolenus 11 epist.

Iavolenus 11 epistles.

Si is servus, qui uxori mortis causa donatus est, prius quam vir decederet stipulatus est, in pendenti puto esse causam obligationis, donec vir aut moriatur aut suspicione mortis, propter quam donavit, liberetur: quidquid autem eorum inciderit, quod donationem aut peremat aut confirmet, id quoque causam stipulationis aut confirmabit aut resolvet.

If that slave who was donated to the wife mortis causa, before the husband passed away, entered into a stipulation, I consider the cause of the obligation to be in suspense until the husband either dies or is released from the apprehension of death on account of which he made the gift: and whatever of those events occurs which either extinguishes or confirms the donation, that likewise will either confirm or dissolve the cause of the stipulation.

Dig. 24.1.21pr.

Digest 24.1.21, preface.

Ulpianus 32 ad sab.

Ulpian 32 on Sabinus.

Si quis pro uxore sua vectigal, quod in itinere praestari solet, solvisset, an quasi locupletiore ea facta exactio fiat, an vero nulla sit donatio? et magis puto non interdictum hoc, maxime si ipsius causa profecta est. nam et papinianus libro quarto responsorum scripsit vecturas uxoris et ministeriorum eius virum itineris sui causa datas repetere non posse: iter autem fuisse videtur viri causa et cum uxor ad virum pervenit.

If someone had paid, on behalf of his wife, the toll which is accustomed to be exacted on a journey, is an exaction to be made as though she had been made more affluent, or indeed is there no donation? And I am more inclined to think this is not interdicted, especially if she set out for her own sake. For Papinian too, in the fourth book of his Responses, wrote that a husband cannot recover the wife’s carriage-fares and her ministrations (attendants’ services) furnished for the sake of his own journey: moreover, the journey seems to have been for the husband’s sake even when the wife comes to the husband.

nec interesse, an aliquid de vecturis in contrahendo matrimonio convenerit: non enim donat, qui necessariis oneribus succurrit. ergo et si consensu mariti profecta est mulier propter suas necessarias causas et aliquid maritus expensarum nomine ei praestiterit, hoc revocandum non est.

nor does it matter whether anything about the carriage-fares was agreed upon in contracting the marriage: for he does not donate who succors necessary burdens. therefore, even if with the husband’s consent the woman set out for her own necessary causes and the husband furnished her something under the name of expenses, this is not to be reclaimed.

Dig. 24.1.21.1

Digest 24.1.21.1

Ulpianus 32 ad sab.

Ulpian, 32 on Sabinus.

Si uxor viro dotem promiserit et dotis usuras, sine dubio dicendum est peti usuras posse, quia non est ista donatio, cum pro oneribus matrimonii petantur. quid tamen, si maritus uxori petitionem earum remiserit? eadem erit quaestio, an donatio sit illicita: et iulianus hoc diceret: quod verum est.

If a wife has promised a dowry to her husband and the interest on the dowry, without doubt it must be said that the interest can be sought, because this is not a donation, since they are sought for the burdens of marriage. What, however, if the husband has remitted to the wife his claim for them? The same question will arise, whether the donation is illicit: and Julian would say so—which is true.

plane si convenerat, uti se mulier pasceret suosque homines idcirco passus est eam dote sua frui, ut se suosque aleret, expeditum erit: puto enim non posse ab ea peti quasi donatum, quod compensatum est.

plainly, if it had been agreed that the woman should feed herself and her people, and for that reason he allowed her to enjoy her dowry, that she might maintain herself and her people, the matter will be straightforward: for I think that what has been compensated cannot be sought from her as if it were a gift.

Dig. 24.1.22

Digest 24.1.22

Ulpianus 3 ad sab.

Ulpian 3 on Sabinus.

Uxori suae quis mortis causa servum donavit eumque cum libertate heredem scripsit: an valeat institutio, quaeritur. et puto, si hoc animo eum scripsit heredem, quod donationis se dixit paenituisse, valere institutionem et necessarium heredem domino servum fieri: ceterum si, posteaquam heredem instituit, donavit, donatio praevalebit, vel si ante donavit, non tamen adimendi animo libertatem adscripsit.

Someone gave his slave to his wife by a mortis causa donation, and wrote him as heir with liberty: the question is whether the institution is valid. And I think that, if he wrote him heir with this intention, namely because he said he had repented of the donation, the institution is valid and the slave becomes the master’s necessary heir; but if, after he instituted him heir, he donated him, the donation will prevail, or if he donated before, he did not, however, ascribe the liberty with the purpose of taking it away.

Dig. 24.1.23

Digest 24.1.23

Ulpianus 6 ad sab.

Ulpian, 6 on Sabinus.

Papinianus recte putabat orationem divi severi ad rerum donationem pertinere: denique si stipulanti spopondisset uxori suae, non putabat conveniri posse heredem mariti, licet durante voluntate maritus decesserit.

Papinian rightly thought that the oration of the deified Severus pertained to the donation of things: finally, if he had promised by stipulation to his own wife, he did not think the husband’s heir could be sued, although the husband had died while his intention endured.

Dig. 24.1.24

Digest 24.1.24

Paulus 7 ad sab.

Paulus, 7 on Sabinus.

Si inter extraneos facta sit donatio et antequam per tempus legitimum dominium fuerit adquisitum, coierint, vel contra si inter virum et uxorem facta sit donatio et ante impletum tempus supradictum solutum sit matrimonium, nihilo minus procedere temporis suffragium constat, quia altero modo sine vitio tradita est possessio, altero quod fuerit vitium, amotum sit.

If a donation has been made between strangers and, before ownership has been acquired through the lawful period, they have come together in marriage; or, conversely, if a donation has been made between husband and wife and, before the aforesaid period has been completed, the marriage has been dissolved, nevertheless it is established that the benefit of time proceeds, because in the one case possession was delivered without defect, and in the other the defect that existed has been removed.

Dig. 24.1.25

Digest 24.1.25

Clementius 5 ad l. iul. et pap.

Clementius Book 5 on the Julian and Papian law.

Sed et si constante matrimonio res aliena uxori a marito donata fuerit, dicendum est confestim ad usucapionem eius uxorem admitti, quia et si non mortis causa donaverat ei, non impediretur usucapio. nam ius constitutum ad eas donationes pertinet, ex quibus et locupletior mulier et pauperior maritus in suis rebus fit: itaque licet mortis causa donatio interveniat, quasi inter extraneas personas fieri intellegenda est in ea re, quae quia aliena est usucapi potest.

But also if, while the marriage stands, another’s property has been given to the wife by the husband, it must be said that the wife is immediately admitted to usucapion of it, because even if he had given it to her not mortis causa, usucapion would not be impeded. For the law established pertains to those donations from which the woman becomes more wealthy and the husband poorer in his own goods: and so, although a mortis causa donation intervenes, it is to be understood as being done as if between extraneous persons in that matter which, because it is another’s, can be usucapt.

Dig. 24.1.26pr.

Digest 24.1.26, beginning.

Paulus 7 ad sab.

Paulus 7 on Sabinus.

Si eum, qui mihi vendiderit, iusserim eam rem uxori meae donationis causa dare et is possessionem iussu meo tradiderit, liberatus erit, quia, licet illa iure civili possidere non intellegatur, certe tamen venditor nihil habet quod tradat.

If I instruct the one who has sold to me to give that thing to my wife by way of donation, and he, by my order, has delivered possession, he will be discharged; for although she is not understood to possess by civil law, nevertheless the seller has nothing left that he can deliver.

Dig. 24.1.26.1

Digest 24.1.26.1

Paulus 7 ad sab.

Paulus 7 on Sabinus.

Ex quibus causis inter virum et uxorem concessae sunt donationes, ex isdem et inter socerum et generum nurumve concessas neratius ait. ergo socer genero mortis vel divortii causa donabit, sed et gener socero mortis suae vel divortii causa.

From the same causes for which donations are permitted between husband and wife, donations are, from those same causes, permitted also between a father-in-law and a son-in-law or daughter-in-law, neratius says. Therefore the father-in-law will make a donation to the son-in-law by reason of death or divorce, and likewise the son-in-law to the father-in-law by reason of his own death or of divorce.

Dig. 24.1.27

Digest 24.1.27

Modestinus 7 reg.

Modestinus 7 rules.

Inter eos, qui matrimonio coituri sunt, ante nuptias donatio facta iure consistit, etiamsi eodem die nuptiae fuerint consecutae.

Between those who are about to enter into matrimony, a donation made before the nuptials stands in law, even if the nuptials have followed on the same day.

Dig. 24.1.28pr.

Digest 24.1.28, preface.

Paulus 7 ad sab.

Paulus 7 on Sabinus.

Si id quod donatum sit perierit vel consumptum sit, eius qui dedit est detrimentum, merito, quia manet res eius qui dedit suamque rem perdit.

If that which was donated has perished or has been consumed, the detriment is the giver’s—rightly—because the thing remains the property of the one who gave it, and he loses his own property.

Dig. 24.1.28.1

Digest 24.1.28.1

Paulus 7 ad sab.

Paulus 7 to Sabinus.

Si quid in pueros ex ancillis dotalibus natos maritus impenderit aut in doctrinam aut alimenta, non servatur marito, quia ipse ministeriis eorum utitur: sed illud servatur quod nutrici datum est ad educendum, quia pro capite quid dedisset, quemadmodum si a praedonibus redemisset servos dotales.

If the husband has expended anything on children born from dowry maidservants, either for instruction or for aliment/maintenance, it is not reserved to the husband, because he himself makes use of their services: but that is reserved which was given to the nurse for rearing, because he would have given something per head, just as if he had ransomed dowry slaves from robbers.

Dig. 24.1.28.2

Digest 24.1.28.2

Paulus 7 ad sab.

Paulus book 7 on Sabinus.

Si quas servi operas viri uxori praestiterint vel contra, magis placuit, nullam habendam earum rationem: et sane non amare nec tamquam inter infestos ius prohibitae donationis tractandum est, sed ut inter coniunctos maximo affectu et solam inopiam timentes.

If any services of slaves the husband has provided to the wife, or conversely, it has been preferred that no account be taken of them: and indeed it is not to be handled bitterly, nor as though between hostile parties, under the law of prohibited donation, but as between persons conjoined with the greatest affection and fearing only indigence.

Dig. 24.1.28.3

Digest 24.1.28.3

Paulus 7 ad sab.

Paulus 7 on Sabinus.

Si ex decem donatis sibi mulier servum emerit et is quinque sit quinque petenda esse apud plautium placuit, quemadmodum, si mortuus est, nihil peteretur: si vero quindecim dignus sit, non plus quam decem potest peti, quoniam eatenus donator pauperior factus esset.

If, out of ten donated to her, a woman has bought a slave, and he be worth five, it has been decided by Plautius that five must be claimed, just as, if he has died, nothing would be claimed; but if he be worth fifteen, not more than ten can be claimed, since to that extent the donor would have been made poorer.

Dig. 24.1.28.4

Digest 24.1.28.4

Paulus 7 ad sab.

Paulus, 7 on Sabinus.

Quod si ex decem duos servos emerit et eorum alter mortuus sit, alter decem dignus sit, solet quaeri. et plerique et pomponius interesse putant, utrum uno pretio venierint an diversis: si uno, tota decem petenda, quemadmodum si una res empta deterior facta est, vel grex vel carrucha et aliqua pars inde perisset: si diversis, hoc solum petendum, quanti sit emptus qui superest.

But if for ten he has bought two slaves, and of them one has died, the other is worth ten, the question is usually raised. And most people, and Pomponius as well, think it makes a difference whether they were sold for one price or for different prices: if for one, the whole ten are to be claimed, just as when a single thing bought has become worse, or a flock or a carriage and some part thereof has perished; if for different prices, only this is to be claimed, as much as the one who survives was bought for.

Dig. 24.1.28.5

Digest 24.1.28.5

Paulus 7 ad sab.

Paulus 7 on Sabinus.

Iulianum putasse pomponius refert, si quid per eum servum, quem ex nummis a marito donatis mulier adquisisset ( forte legatum, hereditatem) aut partus editus esset, eo quoque nomine petitionem faciendam esse.

Pomponius reports that Julian had thought that, if anything through that slave—whom the woman had acquired from monies donated by her husband ( forte a legacy, an inheritance)—or if offspring had been brought forth, a petition ought to be made also under that title.

Dig. 24.1.28.6

Digest 24.1.28.6

Paulus 7 ad sab.

Paulus 7 On Sabinus.

Illud constat, si antequam a viro annuum acciperet, mulier ipsa de suo aut etiam mutuata impenderit, videri tantum iam ex annuo consumptum.

It is established that, if before she received the annual allowance from her husband the woman herself has expended from her own funds or even on a loan, only that amount is deemed already consumed from the annual allowance.

Dig. 24.1.28.7

Digest 24.1.28.7

Paulus 7 ad sab.

Paulus 7 to Sabinus.

Illud recte dictum celsus ait: si dotis usuras annuas uxor stipulata sit, licet ei non debeantur, quia tamen quasi de annuo convenerit, peti quidem dotis iudicio non possunt, compensari autem possunt: idem ergo dicemus in qualibet pactione annui nomine facta.

Celsus says that this was rightly stated: if the wife has stipulated for annual interest on the dowry, although it is not owed to her, yet because there has, as it were, been an agreement concerning an annuity, it cannot indeed be claimed by the dowry action, but it can be set off; therefore we will say the same in any pact made under the name of an annuity.

Dig. 24.1.29pr.

Digest 24.1.29pr.

Pomponius 14 ad sab.

Pomponius 14 On Sabinus.

Si mulier ex pecunia donata emptum servum vendidisset et alium emisset, posteriorem periculo mulieris esse fulcinius scripsit: quod non est verum, licet non ex re mariti emptus sit.

If a woman had sold a slave purchased with gifted money and had bought another, Fulcinius wrote that the later one was at the woman’s risk; which is not true, although he was not purchased out of the husband’s patrimony.

Dig. 24.1.29.1

Digest 24.1.29.1

Pomponius 14 ad sab.

Pomponius 14th book on Sabinus.

Si vir uxori lanam donavit et ex ea lana vestimenta sibi confecit, uxoris esse vestimenta labeo ait:

If a husband has given wool to his wife and from that wool made garments for himself, labeo says the garments belong to the wife:

Dig. 24.1.30

Digest 24.1.30

Gaius 11 ad ed. provinc.

Gaius 11 on the provincial edict

Utilem tamen viro competere.

Nevertheless a useful action is available to the man.

Dig. 24.1.31pr.

Digest 24.1.31 pr.

Pomponius 14 ad sab.

Pomponius Book 14 on Sabinus.

Sed si vir lana sua vestimentum mulieri confecerit, quamvis id uxori confectum fuerit et uxoris cura, tamen viri esse neque impedire, quod in ea re uxor tamquam lanipendia fuerit et viri negotium procurarit.

But if a man has made a garment for a woman from his own wool, although it was made for his wife and by the wife’s care, nevertheless it is the husband’s, and it is no impediment that in this matter the wife was, as it were, a lanipendia (wool-overseer) and managed the husband’s business.

Dig. 24.1.31.1

Digest 24.1.31.1

Pomponius 14 ad sab.

Pomponius 14 on Sabinus.

Si uxor lana sua, operis ancillarum viri, vestimenta sui nomine confecit muliebria, et vestimenta mulieris esse et pro operis ancillarum viro praestare nihil debere: sed viri nomine vestimenta confecta virilia viri esse, ut is lanae uxori praestet pretium: sed si non virilia vestimenta suo nomine mulier confecit, sed ea viro donavit, non valere donationem, cum illa valeat, cum viri nomine confecit: nec umquam operas viri ancillarum aestimari convenit.

If a wife, with her own wool and with the work of the husband’s slave-girls, has made women’s garments in her own name, both the garments are the woman’s and she ought to render nothing to the husband for the work of the slave-girls; but garments made in the husband’s name—the men’s garments—are the husband’s, so that he pays the wife the price for the wool; but if the woman made men’s garments in her own name and donated them to the husband, the donation is not valid, whereas it is valid when she made them in the husband’s name; nor is it ever proper that the services of the husband’s slave-girls be appraised.

Dig. 24.1.31.2

Digest 24.1.31.2

Pomponius 14 ad sab.

Pomponius 14 On Sabinus.

Si vir uxori aream donaverit et uxor in ea insulam aedificaverit, ea insula sine dubio mariti est, sed eam impensam mulierem servaturam placet: nam si maritus vindicet insulam, retentionem impensae mulierem facturam.

If a husband has donated a plot to his wife and the wife has built an apartment-house (insula) upon it, that insula is without doubt the husband’s; but it is settled that the woman will have that expenditure preserved: for if the husband vindicates the insula, the woman will make a retention for the expense.

Dig. 24.1.31.3

Digest 24.1.31.3

Pomponius 14 ad sab.

Pomponius 14th book on Sabinus.

Si duo mancipia fuerint singula quinis digna, sed utrumque unis quinque donationis causa a viro mulieri vel contra venierint, melius dicetur communia ea esse pro portione pretii nec tandem spectandum esse, quanti mancipia sint, sed quantum ex pretio donationis causa sit remissum: sine dubio licet a viro vel uxore minoris emere, si non sit animus donandi.

If two slaves were each worth five apiece, but both were sold for a single five, for cause of donation, by a man to a woman or the reverse, it will be better said that they are common property in proportion to the price; and, in the end, one should not look to how much the slaves are worth, but to how much of the price has been remitted for cause of donation: without doubt it is permitted to buy for less from a husband or a wife, if there is no intent of donating.

Dig. 24.1.31.4

Digest 24.1.31.4

Pomponius 14 ad sab.

Pomponius 14 on Sabinus.

Si vir uxori vel contra quid vendiderit vero pretio et donationis causa paciscantur, ne quid venditor ob eam rem praestet, videndum est, quid de ea venditione agatur, utrum res venierit et totum negotium valeat, an vero ut ea sola pactio irrita sit, quemadmodum irrita esset, si post contractam emptionem novo consilio inito id pacti fuisset actum. et verius est pactum dumtaxat irritum esse.

If a husband to his wife, or conversely, has sold something for a true price, and they make a pact, for the sake of a donation, that the seller shall not have to provide anything on account of that matter, it must be considered what is to be done about that sale—whether the thing has been sold and the whole transaction is valid, or rather that that pact alone is void, just as it would be void if, after the purchase had been contracted and a new plan undertaken, that agreement had been made. And the truer view is that only the pact is void.

Dig. 24.1.31.5

Digest 24.1.31.5

Pomponius 14 ad sab.

Pomponius 14 on Sabinus.

Idem dicemus, si donationis causa pacti sint, ne fugitivum aut erronem praestent, id est integras esse actiones aedilicias et ex empto.

We shall say the same, if for the sake of a donation they have agreed that they need not warrant against a runaway or vagrant, that is, that the Aedilician actions and the action ex empto remain intact.

Dig. 24.1.31.6

Digest 24.1.31.6

Pomponius 14 ad sab.

Pomponius 14 on Sabinus.

Quod vir uxori in diem debet, sine metu donationis praesens solvere potest, quamvis commodum temporis retenta pecunia sentire potuerit.

What a husband owes his wife as payable on a future day, he may pay at once without fear of donation, although by retaining the money he could have enjoyed the benefit of the time.

Dig. 24.1.31.7

Digest 24.1.31.7

Pomponius 14 ad sab.

Pomponius 14 on Sabinus.

Quod legaturus mihi aut hereditatis nomine relicturus es, potes rogatus a me uxori meae relinquere et non videtur ea esse donatio, quia nihil ex bonis meis deminuitur: in quo maxime maiores donanti succurrisse proculus ait, ne amore alterius alter despoliaretur, non quasi malivolos, ne alter locupletior fieret.

That which you are about to bequeath to me or leave under the name of inheritance, you can, at my request, leave to my wife, and this does not seem to be a donation, because nothing is diminished from my goods: in which matter especially, Proculus says, the elders came to the aid of the donor, lest by love of another a man be despoiled, not as though malevolent, to keep another from becoming richer.

Dig. 24.1.31.8

Digest 24.1.31.8

Pomponius 14 ad sab.

Pomponius 14 on Sabinus.

Si vir uxori munus immodicum calendis martiis aut natali die dedisset, donatio est: sed si impensas, quas faceret mulier, quo honestius se tueretur, contra est.

If a husband had given his wife an excessive gift on the Kalends of March or on her birthday, it is a donation; but if it were expenses which the woman would incur, that she might maintain herself more honorably, it is otherwise.

Dig. 24.1.31.9

Digest 24.1.31.9

Pomponius 14 ad sab.

Pomponius 14 on Sabinus.

Non videtur locupletior facta esse mulier, si aut in opsonio aut in unguentis aut in cibariis familiae donatam sibi pecuniam impenderit.

A woman does not appear to have become more opulent if she has expended money donated to her either on cooked dishes, or on unguents, or on the household’s rations.

Dig. 24.1.31.10

Digest 24.1.31.10

Pomponius 14 ad sab.

Pomponius 14 on Sabinus.

Quae vir cibaria uxoris familiae iumentisve praestiterit, quae in usu communi erant, non condicentur: quod si familiam domesticam uxoris aut venaliciam pavit, contra puto observari debere.

Provisions which the husband has supplied for the wife’s household or beasts of burden, insofar as they were in common use, are not to be entered to account; but if he fed the wife’s domestic household or her sale-slave gang, I think the contrary ought to be observed.

Dig. 24.1.32pr.

Digest 24.1.32pr.

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Cum hic status esset donationum inter virum et uxorem, quem antea rettulimus, imperator noster antoninus augustus ante excessum divi severi patris sui oratione in senatu habita auctor fuit senatui censendi fulvio aemiliano et nummio albino consulibus, ut aliquid laxaret ex iuris rigore.

Since this was the status of donations between husband and wife, which we have previously reported, our emperor Antoninus Augustus, before the passing of his deified father Severus, by an oration delivered in the senate, was the proponent that the senate should resolve, in the consulship of Fulvius Aemilianus and Nummius Albinus, that something be relaxed from the rigor of the law.

Dig. 24.1.32.1

Digest 24.1.32.1

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Oratio autem imperatoris nostri de confirmandis donationibus non solum ad ea pertinet, quae nomine uxoris a viro comparata sunt, sed ad omnes donationes inter virum et uxorem factas, ut et ipso iure res fiant eius cui donatae sunt et obligatio sit civilis et de falcidia ubi possit locum habere tractandum sit: cui locum ita fore opinor, quasi testamento sit confirmatum quod donatum est.

Moreover, the oration of our emperor concerning the confirming of donations pertains not only to those things which have been acquired by a husband in the name of his wife, but to all donations made between husband and wife, so that by the law itself the things become those of the person to whom they were donated, and the obligation is civil, and the matter of the Falcidian portion, wherever it may be able to have place, is to be treated: for which I think there will be scope as though what was donated were confirmed by a testament.

Dig. 24.1.32.2

Digest 24.1.32.2

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Ait oratio " fas esse eum quidem qui donavit paenitere: heredem vero eripere forsitan adversus voluntatem supremam eius qui donaverit durum et avarum esse".

The oration says " it is indeed permitted for him who has donated to repent; but to despoil the heir, perhaps contrary to the last will of the one who has donated, is harsh and avaricious".

Dig. 24.1.32.3

Digest 24.1.32.3

Ulpianus 33 ad sab.

Ulpian, 33 on Sabinus.

Paenitentiam accipere debemus supremam. proinde si uxori donavit, deinde eum paenituit, mox desiit paenitere, dicendum est donationem valere, ut supremum eius spectemus iudicium, quemadmodum circa fideicommissa solemus, vel in legatis cum de doli exceptione opposita tractamus, ut sit ambulatoria voluntas eius usque ad vitae supremum exitum.

We ought to accept the ultimate repentance. Accordingly, if he made a donation to his wife, then repented, and soon ceased to repent, it must be said that the donation is valid, so that we look to his supreme judgment, just as we are accustomed to do with fideicommissa, or in legacies when we deal with the exception of fraud interposed, so that his will is ambulatory up to the final end of life.

Dig. 24.1.32.4

Digest 24.1.32.4

Ulpianus 33 ad sab.

Ulpian 33 on sab.

Sed ubi semel donatorem paenituit, etiam heredi revocandi potestatem tribuimus, si appareat defunctum evidenter revocasse voluntatem: quod si in obscuro sit, proclivior esse debet iudex ad comprobandam donationem.

But once the donor has repented, we also grant to the heir the power of revoking, if it appears that the deceased has evidently revoked his intention: but if this is obscure, the judge ought to be more inclined to confirm the donation.

Dig. 24.1.32.5

Digest 24.1.32.5

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Si maritus ea quae donaverit pignori dederit, utique eum paenituisse dicemus, licet dominium retinuit. quid tamen, si hoc animo fuit, ut vellet adhuc donatum? finge in possessionem precariam mulierem remansisse paratamque esse satisfacere creditori.

If a husband has given in pledge those things which he had donated, we shall certainly say that he has repented, although he retained dominion. But what if he was of this mind, that he wished the donation still to stand? Imagine the woman has remained in precarial possession and is ready to satisfy the creditor.

dicendum est donationem valere: nam si ab initio ei rem obligatam hoc animo donasset, dicerem vim habere donationem, ut parata satisfacere mulier haberet doli exceptionem: quin immo et si satisfecisset, potuisse eam per doli exceptionem consequi, ut sibi mandentur actiones.

it must be said that the donation is valid: for if from the beginning he had donated to her a thing obligated (pledged) with this intention, I would say the donation has force, so that the woman, being ready to satisfy the creditor, would have the exception of fraud; indeed, even if she had satisfied, she could have achieved through the exception of fraud that the actions be assigned to herself.

Dig. 24.1.32.6

Digest 24.1.32.6

Ulpianus 33 ad sab.

Ulpian, 33 on Sabinus.

Si donator servus fuerit effectus privati, dicendum est non impletam, sed peremptam donationem, quamvis morti servitus comparetur: proinde et si ipsa in servitutem redigatur cui donatum est, extincta erit donatio.

If the donor has been made the slave of a private person, it must be said that the donation is not completed but perempted, although servitude is compared to death; accordingly, even if the very person to whom it was donated is reduced into servitude, the donation will be extinguished.

Dig. 24.1.32.7

Digest 24.1.32.7

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Si maritus uxori donaverit et mortem sibi ob sceleris conscientiam consciverit vel etiam post mortem memoria eius damnata sit, revocabitur donatio: quamvis ea quae aliis donaverit valeant, si non mortis causa donavit.

If a husband has made a donation to his wife and has procured death for himself on account of consciousness of a crime, or even if after death his memory has been condemned, the donation will be revoked; although those things which he has given to others shall be valid, provided he did not give them by reason of death (mortis causa).

Dig. 24.1.32.8

Digest 24.1.32.8

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Si miles uxori donaverit de castrensibus bonis et fuerit damnatus, quia permissum est ei de his testari ( si modo impetravit ut testetur cum damnaretur), donatio valebit: nam et mortis causa donare poterit, cui testari permissum est.

If a soldier has made a donation to his wife from castrense goods and has been condemned, since it is permitted to him to make a testament regarding these (provided he has obtained leave to make a testament upon being condemned), the donation will be valid: for he too will be able to donate mortis causa, to whom it has been permitted to make a testament.

Dig. 24.1.32.9

Digest 24.1.32.9

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Quod ait oratio " consumpsisse", sic accipere debemus, ne is, qui donationem accepit, locupletior factus sit: ceterum si factus est, orationis beneficium locum habebit. sed et si non sit factus locupletior, dederit tamen tantam quantitatem eaque exstet, dicendum est, si is decessit, qui factus est locupletior, posse repetere id quod dedit nec compensare id quod consumpsit, quamvis divortio secuto haec compensatio locum habeat.

What the oration says “to have consumed,” we ought to take thus, namely, so that the one who received the donation not be made more wealthy: however, if he has been made so, the benefit of the oration will have place. But also if he has not been made more wealthy, nevertheless he has given such a quantity and it is extant, it must be said that, if the one who was made more wealthy has died, he can recover what he gave and not compensate by what he consumed, although, a divorce having followed, this compensation has place.

Dig. 24.1.32.10

Digest 24.1.32.10

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Si divortium post donationem intercessit aut prior decesserit qui donum accepit, veteri iuri statur, hoc est, si maritus uxori: onatum vult, valeat donatio, quod si non vult, exstinguitur: plerique enim cum bona gratia discedunt, plerique cum ira sui animi et offensa.

If a divorce has intervened after the donation, or the one who received the gift has died first, the old law is observed; that is, if the husband wishes the thing given to the wife, let the donation be valid, but if he does not wish it, it is extinguished; for many depart with good grace, many with anger of their spirit and offense.

Dig. 24.1.32.11

Digest 24.1.32.11

Ulpianus 33 ad sab.

Ulpian, book 33 on Sabinus.

Quid ergo, si divortium factum est, deinde matrimonium restauratur, et in divortio vel mutata est voluntas vel eadem duravit, restaurato tamen matrimonio et voluntate donatoris reconciliata an donatio duret, si constante matrimonio donator decesserit? et potest defendi valere.

What then, if a divorce has been effected, then the marriage is restored, and in the divorce either the will was changed or the same endured; with the marriage restored, however, and the donor’s will reconciled, does the donation endure, if, the marriage subsisting, the donor has died? And it can be defended that it is valid.

Dig. 24.1.32.12

Digest 24.1.32.12

Ulpianus 33 ad sab.

Ulpian, 33 on Sabinus.

Quod si divortium non intercesserit, sed frivusculum, profecto valebit donatio, si frivusculum quievit.

But if a divorce has not intervened, but only a slight chill, surely the donation will be valid, if the slight chill has subsided.

Dig. 24.1.32.13

Digest 24.1.32.13

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Si mulier et maritus diu seorsum quidem habitaverint, sed honorem invicem matrimonii habebant ( quod scimus interdum et inter consulares personas subsecutum), puto donationes non valere, quasi duraverint nuptiae: non enim coitus matrimonium facit, sed maritalis affectio: si tamen donator prior decesserit, tunc donatio valebit.

If a woman and her husband have for a long time lived apart, yet maintained mutually the honor of matrimony ( which we know has sometimes occurred even among consular persons), I think donations are not valid, as though the nuptials had endured: for it is not coitus that makes matrimony, but marital affection: if, however, the donor has died first, then the donation will be valid.

Dig. 24.1.32.14

Digest 24.1.32.14

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Si ambo ab hostibus capti sint et qui donavit et cui donatum est, quid dicimus? et prius illud volo tractare. oratio, si ante mors contigerit ei cui donatum est, nullius momenti donationem esse voluit: ergo si ambo decesserint quid dicemus, naufragio forte vel ruina vel incendio?

If both have been captured by enemies, both he who donated and he to whom it was donated, what do we say? and first I wish to handle that point. the oration willed that, if death has beforehand befallen him to whom it was donated, the donation is of no moment: therefore if both have deceased what shall we say, by shipwreck perhaps or by ruin or by conflagration?

et si quidem possit apparere, quis ante spiritum posuit, expedita est quaestio: sin vero non appareat, difficilis quaestio est. et magis puto donationem valuisse et his ex verbis orationis defendimus: ait enim oratio " si prior vita decesserit qui donatum accepit": non videtur autem prior vita decessisse qui donatum accepit, cum simul decesserint. proinde rectissime dicetur utrasque donationes valere, si forte invicem donationibus factis simul decesserint, quia neuter alteri supervixerit, licet de commorientibus oratio non senserit: sed cum neuter alteri supervixerit, donationes mutuae valebunt: nam et circa mortis causa donationes mutuas id erat consequens dicere neutri datam condictionem: locupletes igitur heredes donationibus relinquent.

and if indeed it can appear who laid down his spirit first, the question is simple; but if it does not appear, the question is difficult. And I rather think the donation was valid, and we defend this from these words of the oratio: for the oratio says " if the life of the one who received the gift has departed first": however, he who received the gift does not seem to have departed life first, since they died together. Accordingly it will be said most correctly that both donations are valid, if perhaps, the donations having been made reciprocally, they died together, because neither survived the other, although the oratio did not have in view those who die together (commorientes): but since neither survived the other, the mutual donations will be valid. For also regarding donations mortis causa made mutually, it was the consequent thing to say that a condiction was given to neither; therefore the heirs will be left well-off by the donations.

secundum haec si ambo ab hostibus simul capti sint amboque ibi decesserint non simul, utrum captivitatis spectamus tempus, ut dicamus donationes valere, quasi simul decesserint? an neutram, quia vivis eis finitum est matrimonium? an spectamus, uter prius decesserit, ut in eius persona non valeat donatio?

Following these points, if both were captured by enemies at the same time and both died there not simultaneously, do we look to the time of captivity, so that we may say the donations are valid, as though they had died at the same time? Or neither donation, because the marriage was finished while they were alive? Or do we look to which one died first, so that in the person of that one the donation is not valid?

an uter rediit, ut eius valeat? mea tamen fert opinio, ubi non reverterunt, ut tempus spectandum sit captivitatis, quasi tunc defecerint: quod si alter redierit, eum videri supervixisse, quia redit.

or whether whichever one returned, that it should be valid for that one? however, my opinion holds that, where they did not return, the time of captivity should be looked to, as if they then had deceased: but if one returned, he is seen to have survived, because he returns.

Dig. 24.1.32.15

Digest 24.1.32.15

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Qui quasdam res ex his quas donaverat legasset, quasdam non, non videbitur ceteras noluisse ad uxorem pertinere: plerumque enim antea legat, postea donat: vel alia causa fuit legandi.

He who, out of the things which he had donated, had bequeathed some and not others, will not be seen as having wished the remaining ones not to pertain to the wife: for most often he bequeaths earlier, afterward he donates; or there was another reason for bequeathing.

Dig. 24.1.32.16

Digest 24.1.32.16

Ulpianus 33 ad sab.

Ulpian, 33 on Sabinus.

Oratio non solum virum et uxorem complectitur, sed etiam ceteros, qui propter matrimonium donare prohibentur: ut puta donat socer nurui vel contra, vel socer genero vel contra, vel consocer consocero qui copulatos matrimonio in potestate habent: nam ex mente orationis his quoque omnibus permissum est in eundem casum donare: et ita et papinianus libro quarto responsorum sensit: sic enim scribit: socer nurui vel genero donavit: postea filius eius vel filia constante matrimonio vita decessit: quamquam vitium donationis perseveret, tamen, si socer nullam quaestionem donationibus intulit, post mortem eius contra heredes orationis sententia videtur intervenire: nam quae ratio donationem prohibuit, eadem beneficium datum implorabit. ut igitur valeat donatio ista, papinianus exigit, ut et filius eius qui donavit ante decesserit, et socer postea durante voluntate.

The oration embraces not only husband and wife, but also the others who are prohibited to donate on account of marriage: for instance, a father-in-law donates to a daughter-in-law, or the reverse, or a father-in-law to a son-in-law or the reverse, or a co-father-in-law to a co-father-in-law, who have those coupled in marriage under their power: for by the mind of the oration it is permitted to all these likewise to donate in the same case: and so also Papinian in the fourth book of the Responses held: for thus he writes: the father-in-law donated to the daughter-in-law or to the son-in-law: afterwards his son or daughter, the marriage continuing, departed this life: although the defect of the donation persists, nevertheless, if the father-in-law brought no question against the donations, after his death the sentence of the oration seems to intervene against the heirs: for the same rationale which prohibited the donation will implore the benefit that was granted. Therefore, in order that that donation may be valid, Papinian requires that both his son (or daughter) has died earlier, and that the father-in-law later, his will continuing.

Dig. 24.1.32.17

Digest 24.1.32.17

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Si filius familias, qui castrense peculium habet vel quasi castrense, uxori donet, filii personam et mortem spectabimus.

If a filius familias, who has castrense peculium or quasi‑castrense, makes a gift to his wife, we will have regard to the son’s person and death.

Dig. 24.1.32.18

Digest 24.1.32.18

Ulpianus 33 ad sab.

Ulpian, 33 on Sabinus.

Si nurus socero donaverit, mortem nurus et perseverantem in supremam diem voluntatem spectare nos oportet. quod si socer ante decesserit, dicemus exstinctam donationem an, quia maritus vivit, si uxori suae supervixit, admittimus vim habere donationem? et si quidem maritus solus socero heres exstitit, quasi nova donatio potest servari in maritum collata, ut illa finita sit, alia coeperit: sin vero filius heres patri non est, finita erit donatio ratione nova.

If a daughter-in-law has made a donation to her father-in-law, we ought to look to the daughter-in-law’s death and to a will that perseveres to the last day. But if the father-in-law has predeceased, shall we say the donation is extinguished, or—because the husband is alive, if he has survived his wife—do we admit the donation to have force? And if indeed the husband alone has become heir to the father-in-law, as it were a new donation can be preserved as having been conferred upon the husband, so that that one is finished and another has begun; but if the son is not heir to the father, the donation will be terminated on a new ground.

Dig. 24.1.32.19

Digest 24.1.32.19

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Si socer nurui nuntium miserit, donatio erit irrita, quamvis matrimonium concordantibus viro et uxore secundum rescriptum imperatoris nostri cum patre comprobatum est: sed quod ad ipsos, inter quos donatio facta est, finitum est matrimonium.

If a father-in-law has sent notice to his daughter-in-law, the donation will be void, although the matrimony, with the husband and wife consenting, has been approved together with the father according to the rescript of our emperor; but as to the persons themselves between whom the donation was made, the matrimony has been terminated.

Dig. 24.1.32.20

Digest 24.1.32.20

Ulpianus 33 ad sab.

Ulpian, 33 on Sabinus.

Proinde et si duo consoceri invicem donaverint, idem erit dicendum, si invitis filiis nuntium remiserint, inter ipsos irritam esse donationem. in hac autem donatione inter soceros facta mors desideranda est eius qui donavit constante matrimonio et iure potestatis durante: idemque et in his qui sunt in eorum potestate.

accordingly, even if two co-fathers-in-law have donated to each other mutually, the same must be said: if, their sons being unwilling, they have sent notice (of divorce), the donation is null between them. but in this donation made between fathers-in-law, the death of the one who donated is to be awaited, with the marriage standing and the right of power continuing: and the same holds also for those who are in their power.

Dig. 24.1.32.21

Digest 24.1.32.21

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Si consocer consocero donaverit et alter eorum vel uterque copulatos emancipaverit, debet dici donationem ad orationem non pertinere et ideo infirmari donationem.

If a co-father-in-law has donated to a co-father-in-law, and either of them, or both, have emancipated the married couple, it ought to be said that the donation does not pertain to the oration and therefore the donation is invalidated.

Dig. 24.1.32.22

Digest 24.1.32.22

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Si sponsus sponsae donaverit in tempus matrimonii collata donatione, quamvis inter virum et uxorem donatio non videatur facta et verba orationis minus sufficiant, tamen donationem dicendum est ad sententiam orationis pertinere, ut, si duraverit voluntas usque ad mortem, valeat donatio.

If a bridegroom has donated to a bride for the time of the marriage, with the donation having been conferred, although between husband and wife a donation does not seem to have been made and the words of the oration are less sufficient, nevertheless it must be said that the donation pertains to the intent of the oration, so that, if the will endures up to death, the donation is valid.

Dig. 24.1.32.23

Digest 24.1.32.23

Ulpianus 33 ad sab.

Ulpian, 33 on Sabinus.

Sive autem res fuit quae donata est sive obligatio remissa, potest dici donationem effectum habituram: ut puta uxori acceptum tulit donationis causa quod debeat: potest dici pendere acceptilationem non ipsam, sed effectum eius. et generaliter universae donationes, quas impediri diximus, ex oratione valebunt.

Whether it was a thing that was donated or an obligation remitted, it can be said that the donation will have effect: for instance, he entered as received to his wife, for the sake of a donation, what he owes; it can be said that what is pending is not the acceptilation itself, but its effect. And generally all donations, which we have said are impeded, will be valid by virtue of the oratio.

Dig. 24.1.32.24

Digest 24.1.32.24

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Si inter virum et uxorem societas donationis causa contracta sit, iure vulgato nulla est, nec post decretum senatus emolumentum ea liberalitas, ut actio pro socio constituatur, habere poterit: quae tamen in commune tenuerunt fine praestituto, revocanda non sunt. idcirco igitur pro socio actio non erit, quia nulla societas est, quae donationis causa interponitur, nec inter ceteros et propter hoc nec inter virum et uxorem.

If between a husband and a wife a partnership is contracted for the sake of a donation, by the common law it is a nullity; nor, after the decree of the senate, will that liberality be able to have the emolument that an action pro socio be established: nevertheless, the things which they have held in common with a prescribed end are not to be revoked. Therefore there will not be an action pro socio, because there is no partnership that is interposed for the cause of a donation—neither among others, and for this reason not between a husband and a wife.

Dig. 24.1.32.25

Digest 24.1.32.25

Ulpianus 33 ad sab.

Ulpian, 33 on Sabinus.

Idem erit dicendum et si emptio contracta sit donationis causa: nam nulla erit.

The same will have to be said even if the purchase has been contracted for the purpose of a donation: for it will be null.

Dig. 24.1.32.26

Digest 24.1.32.26

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Plane si minoris res venierit donationis causa vel postea pretium sit remissum, admittemus donationem valere ad senatus consultum.

Clearly, if the thing has been sold for less for the sake of a donation, or afterwards the price has been remitted, we will admit the donation to be valid under the senatus consultum.

Dig. 24.1.32.27

Digest 24.1.32.27

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Si quis sponsam habuerit, deinde eandem uxorem duxerit cum non liceret, an donationes quasi in sponsalibus factae valeant, videamus. et iulianus tractat hanc quaestionem in minore duodecim annis, si in domum quasi mariti immatura sit deducta: ait enim hanc sponsam esse, etsi uxor non sit. sed est verius, quod labeoni videtur et a nobis et a papiniano libro decimo quaestionum probatum est, ut, si quidem praecesserint sponsalia, durent, quamvis iam uxorem esse putet qui duxit, si vero non praecesserint, neque sponsalia esse, quoniam non fuerunt, neque nuptias, quod nuptiae esse non potuerunt.

If someone shall have had a fiancée, then shall have taken the same woman as wife when it was not permitted, let us see whether donations as if made at betrothal are valid. And Julian treats this question regarding one under twelve years, if she was led into the house as if of a husband before maturity: for he says that she is a fiancée, even if she is not a wife. But what seems to Labeo is truer, and it has been approved both by us and by Papinian in book 10 of the Questions: namely, that if indeed betrothal had preceded, it endures, although the one who led her thinks that she is already a wife; but if it had not preceded, then neither is there betrothal, since it did not exist, nor nuptials, because nuptials could not exist.

ideoque si sponsalia antecesserint, valet donatio: si minus, nulla est, quia non quasi ad extraneam, sed quasi ad uxorem fecit et ideo nec oratio locum habebit.

and therefore, if the betrothal has preceded, the donation is valid: if not, it is none, because he made it not as if to an outsider, but as if to a wife, and therefore not even the oratio will have a place.

Dig. 24.1.32.28

Digest 24.1.32.28

Ulpianus 33 ad sab.

Ulpian 33 on sab.

Sed si senator libertinam desponderit vel tutor pupillam vel quis alius ex his, qui matrimonium copulare prohibentur, et duxerit, an donatio quasi in sponsalibus facta valeat? et putem etiam sponsalia improbanda et quasi ab indignis ea quae donata sunt ablata fisco vindicari.

But if a senator should have betrothed a freedwoman, or a tutor his pupil, or someone else from those who are prohibited from coupling in marriage, and has married her, is a donation as if made at betrothals valid? And I would think the betrothals too are to be disapproved, and that, as from the unworthy, the things that were donated, once seized, should be claimed by the fisc.

Dig. 24.1.33pr.

Digest 24.1.33, preface.

Ulpianus 36 ad sab.

Ulpian 36 on Sabinus.

Si stipulata fuerit mulier annuum, id ex stipulatu petere constante matrimonio non potest. sed si manente matrimonio decessisse maritus proponatur, puto, quia in annuo quoque donatio vertitur, posse dici stipulationem confirmari ex senatus consulto.

If a woman shall have stipulated for an annuity, she cannot seek it on the stipulation while the marriage is subsisting. But if it is alleged that the husband died with the marriage still continuing, I think, because in an annuity as well the matter is turned into a donation, it can be said that the stipulation is confirmed by the senatus consultum.

Dig. 24.1.33.1

Digest 24.1.33.1

Ulpianus 36 ad sab.

Ulpian 36 on Sabinus.

Si uxor marito annuum versa vice praestiterit, restituetur ei hoc et poterit vindicare id quod exstat: credo poterit et condicere, in quantum locupletior factus est, quia non tam sollemne est annuum, quod maritus uxori pendit et quod uxor marito praestat, immo incongruens est et contra sexus naturam.

If the wife, vice versa, has furnished an annuity to her husband, this will be restored to her, and she will be able to vindicate what is extant; I believe she will also be able to bring a condictio, insofar as he has been made more wealthy, because an annuity of this sort—which the husband pays to the wife and which the wife furnishes to the husband—is not so solemn; rather, it is incongruous and against the nature of the sexes.

Dig. 24.1.33.2

Digest 24.1.33.2

Ulpianus 36 ad sab.

Ulpian 36 on Sabinus.

Et si forte maritus ab uxore stipulatus sit id annuum decesseritque mulier constante matrimonio, dicendum erit ex oratione donationem convalescere.

And if by chance the husband has stipulated from his wife that annuity, and the woman has died while the marriage was subsisting, it must be said that by the Oratio the donation becomes valid.

Dig. 24.1.34

Digest 24.1.34

Ulpianus 43 ad sab.

Ulpian, 43 on sab.

Sive uxor marito res donasset isque eas in dotem pro communi filia dedisset, sive post donationem, quam in maritum contulit, uxor passa est eum pro filia in dotem dare, benigne dici potest, etsi prima donatio nullius momenti est, attamen ex sequenti consensu valere dotis dationem.

Whether the wife had donated things to her husband and he gave them as a dowry for their common daughter, or whether after the donation which she conferred upon her husband the wife allowed him to give them as a dowry for the daughter, it can be said leniently that, although the first donation is of no effect, nevertheless from the subsequent consent the giving of the dowry is valid.

Dig. 24.1.35

Digest 24.1.35

Ulpianus 34 ad ed.

Ulpian, 34 on the Edict.

Si non secundum legitimam observationem divortium factum sit, donationes post tale divortium factae nullius momenti sunt, cum non videatur solutum matrimonium.

If the divorce has not been effected according to legitimate observance, donations made after such a divorce are of no moment, since the marriage does not appear to have been dissolved.

Dig. 24.1.36pr.

Digest 24.1.36pr.

Paulus 36 ad ed.

Paul 36 on the Edict.

Si donatae res exstant, etiam vindicari poterunt: sed quia causam possidendi donatio praestitit, nisi reddatur res, aestimatio facienda est iusto pretio caverique possidenti debebit de evictione simpli, quanti ea res sit: idque etiam pedio videtur.

If the donated things exist, they too can be vindicated; but since the donation furnished the cause for possessing, unless the thing is returned, a valuation must be made at a just price, and security will have to be given to the possessor for eviction in the single amount, for how much that thing is worth; and this also seems so to pedio.

Dig. 24.1.36.1

Digest 24.1.36.1

Paulus 36 ad ed.

Paulus 36 On the Edict.

Sponsus alienum anulum sponsae muneri misit et post nuptias pro eo suum dedit: quidam et nerva putant fieri eum mulieris, quia tunc factam donationem confirmare videtur, non novam inchoare, quam sententiam veram esse accepi.

The bridegroom sent to the bride, as a gift, someone else’s ring, and after the marriage he gave his own in its place: some, and Nerva too, think that it becomes the woman’s, because then he seems to confirm a donation already made, not to initiate a new one—an opinion which I have accepted as true.

Dig. 24.1.37

Digest 24.1.37

Iulianus 17 Dig.

Julianus Digest 17.

Si mulier dolo fecerit, ne res exstaret sibi a marito donata, vel ad exhibendum vel damni iniuriae cum ea agi poterit, maxime si post divortium id commiserit.

If a woman has acted by fraud, so that the thing given to her by her husband would not be forthcoming, either an action ad exhibendum or for wrongful damage can be brought against her, especially if she committed this after divorce.

Dig. 24.1.38pr.

Digest 24.1.38, beginning.

Alfenus 3 Dig. a paulo epit.

Alfenus Digest 3 epitomized by Paulus.

Servus communis viri et fratris eius puerum donavit uxori fratris: pro qua parte is servus qui donasset viri esset, pro ea parte munus non esse factum mulieris respondit.

A slave common to a man and his brother gave a boy as a gift to the brother’s wife: as to the share in which the slave who had made the gift belonged to the husband, he answered that, for that share, the gift in favor of the woman had not been effected.

Dig. 24.1.38.1

Digest 24.1.38.1

Alfenus 3 Dig. a paulo epit.

Alfenus book 3 of the Digest epitomized by Paul.

Idem iuris erit, si ex tribus fratribus unus uxorem haberet et rem communem uxori donasset: nam ex tertia parte mulieris res facta non est, ex duabus autem partibus reliquis, si id scissent fratres aut posteaquam donata esset ratum habuissent, non debere mulierem reddere.

The same law will obtain, if out of three brothers one had a wife and had donated a common thing to the wife: for out of the third part the thing has not become the woman’s; but as to the two remaining parts, if the brothers knew of it or, after it had been donated, had ratified it, the woman ought not to return it.

Dig. 24.1.39

Digest 24.1.39

Iulianus 5 ex minic.

Julianus 5 from Minicius.

Vir uxori pecuniam cum donare vellet, permisit ei, ut a debitore suo stipuletur: illa cum id fecisset, priusquam pecuniam auferret, divortium fecit: quaero, utrum vir eam summam petere debeat an ea promissione propter donationis causam actio nulla esset. respondi inanem fuisse eam stipulationem. sed si promissor mulieri ignorans solvisset, si quidem pecunia exstat, vindicare eam debitor potest: sed si actiones suas marito praestare paratus est, doli mali exceptione se tuebitur ideoque maritus hanc pecuniam debitoris nomine vindicando consequetur.

A man, when he wished to donate money to his wife, permitted her to stipulate it from his debtor; when she had done this, before she took the money, she made a divorce. I inquire whether the husband ought to claim that sum, or whether, on that promise, because of the cause of donation, there would be no action. I answered that that stipulation was void. But if the promisor, being unaware, had paid to the woman, if indeed the money still exists, the debtor can vindicate it; but if he is prepared to cede his actions to the husband, he will protect himself by the exception of dolus malus, and for that reason the husband will obtain this money by vindicating it in the name of the debtor.

sed si pecunia non exstat et mulier locupletior facta est, maritus eam petet: intellegitur enim ex re mariti locupletior facta esse mulier, quoniam debitor doli mali exceptione se tueri potest.

but if the money is not extant and the woman has been enriched, the husband will claim it from her: for it is understood that the woman has been made richer from the husband’s property, since the debtor can defend himself by the exception of fraud (exceptio doli mali).

Dig. 24.1.40

Digest 24.1.40

Ulpianus 2 resp.

Ulpian 2 Responses.

Quod apiscendae dignitatis gratia ab uxore in maritum collatum est, eatenus ratum est, quatenus dignitati supplendae opus est:

What has been contributed by a wife to her husband for the sake of acquiring a dignity is valid only insofar as there is need for supplying that dignity:

Dig. 24.1.41

Digest 24.1.41

Licinius 6 reg.

Licinius book 6 of the Rules.

Nam et imperator antoninus constituit, ut ad processus viri uxor ei donare possit.

For the emperor Antoninus also decreed that, for the husband’s advancement, a wife may make a gift to him.

Dig. 24.1.42

Digest 24.1.42

Gaius 11 ad ed. provinc.

Gaius 11 on the provincial edict.

Nuper ex indulgentia principis antonini recepta est alia causa donationis, quam dicimus honoris causa: ut ecce si uxor viro lati clavii ^ clavi^ petenti gratia donet vel ut equestris ordinis fiat vel ludorum gratia.

Recently, by the indulgence of the emperor Antoninus, another cause of donation has been accepted, which we call for the sake of honor: as, for example, if a wife gives to her husband for the sake of petitioning for the broad stripe ^clavi^, or in order that he may become of the equestrian order, or for the sake of the games.

Dig. 24.1.43

Digest 24.1.43

Paulus l.S. reg.

Paulus, in the singular book of the Rules.

Inter virum et uxorem exilii causa donatio fieri potest.

Between husband and wife, a donation can be made by reason of exile.

Dig. 24.1.44

Digest 24.1.44

Nerva 5 membr.

Nerva, 5th notebook.

Si extraneus rem viri ignorans eius esse ignoranti uxori, ac ne viro quidem sciente eam suam esse, donaverit, mulier recte eam usucapiet. idemque iuris erit, si is, qui in potestate viri erat, credens se patrem familias esse uxori patris donaverit. sed si vir rescierit suam rem esse, priusquam usucapiatur, vindicareque eam poterit nec volet et hoc et mulier noverit, interrumpetur possessio, quia transiit in causam ab eo factae donationis.

If an outsider, not knowing the thing to be the husband’s, has made a gift to the wife who is ignorant of this, and with the husband himself not even knowing it to be his own, the woman will rightly acquire it by usucapion. And the same will be the law if one who was in the husband’s power, believing himself to be paterfamilias, has made a gift to his father’s wife. But if the husband learns that it is his thing before it is usucapted, and he will be able to vindicate it but is unwilling, and the woman knows this as well, the possession will be interrupted, because it has passed into the cause of a donation made by him.

ipsius mulieris scientia propius est, ut nullum adquisitioni dominii eius adferat impedimentum: non enim omnimodo uxores ex bonis virorum, sed ex causa donationis ab ipsis factae adquirere prohibitae sunt.

the woman’s own knowledge more properly brings no impediment to her acquisition of dominion: for wives are not in every way forbidden to acquire from the goods of their husbands, but from the cause of a donation made by the husbands themselves.

Dig. 24.1.45

Ulpianus 17 ad ed.

Ulpian, 17 on the Edict.

Marcellus libro septimo digestorum scribit etiam eum detrahere sine mulieris damno et citra metum senatus consulti, quod detrahentibus negotiationis causa occurrit.

Marcellus, in the seventh book of the Digest, writes that he too may deduct it without the woman’s loss and without fear of the senatorial decree, which occurs to those who make deductions for the sake of negotiation (commercial business).

Dig. 24.1.46

Digest 24.1.46

Ulpianus 72 ad ed.

Ulpian, 72 on the Edict.

Inter virum et uxorem nec possessionis ulla donatio est.

Between husband and wife there is no donation at all, not even of possession.

Dig. 24.1.47

Digest 24.1.47

Celsus 1 Dig.

Celsus 1 Digest.

Utrum negotium uxoris gerens an officio mariti ductus in rem eius impenderit vir, facti, non iuris est quaestio: coniectura eius rei ex modo et ex genere impensae non difficilis est.

Whether the husband expended upon her property as one managing his wife’s affairs, or led by the office of a husband, is a question of fact, not of law: the conjecture of that matter from the mode and the kind of expenditure is not difficult.

Dig. 24.1.48

Digest 24.1.48

Celsus 9 Dig.

Celsus 9 Digest.

Quae iam nuptae maritus donavit, viri manent et potest ea vindicare: nec quicquam refert, quod ampla legata ab uxore ei relicta sunt.

What the husband has donated to his now-wife remain the man's, and he can vindicate them; nor does it make any difference that ample legacies have been left to him by his wife.

Dig. 24.1.49

Digest 24.1.49

Marcellus 7 Dig.

Marcellus 7 Digest.

Sulpicius Marcello. mulier, quae ad communem filium volebat, qui in potestate patris erat, post mortem patris fundum pervenire, eum patri tradidit, uti post mortem restituatur filio. quaero, an donatio tibi videatur, ut nihil agatur, an valeat quidem, sed mulieri potestas datur, si noluerit, eum repetere respondit: si color vel titulus, ut sic dixerim, donationi quaesitus est, nihil valebit traditio, idem si hoc exigit uxor, ut aliquid ex ea re interim commodi sentiret maritus: alioquin si solo eius ministerio usa est et id egit, ut vel revocare sibi liceret vel ut res cum omni emolumento per patrem postea ad filium transiret, cur non idem perinde sit ratum ac si cum extraneo tale negotium contraxisset, hoc est extraneo in hanc causam tradidisset?

Sulpicius to Marcellus. A woman, who wanted a farm to come to the common son, who was in the father’s power, after the father’s death, delivered it to the father, so that after death it be restored to the son. I ask whether it seems to you a donation, such that nothing is effected, or whether indeed it is valid, but power is given to the woman, if she should be unwilling, to demand it back. He replied: if a color or title, so to speak, has been sought for the donation, the delivery (traditio) will be of no effect; the same, if the wife exacts this so that in the meantime the husband might feel some advantage from the matter. Otherwise, if she used only his ministry (agency) and aimed at this—that either it be permitted to her to revoke, or that the thing with all emolument should later pass through the father to the son—why should it not be ratified in the same way as if she had contracted such a business with a stranger, that is, had delivered to a stranger for this cause?

Dig. 24.1.50pr.

Digest 24.1.50pr.

Iavolenus 13 epist.

Javolenus 13 Epistles.

Si, cum mulier viginti servum emisset, in eam emptionem vir quinque venditori dedit, divortio facto omnimodo vir eam summam exiget neque ad rem pertinet, an is servus deterior factus sit: nam et si mortuus esset, quinque exactio ei competeret. quaeritur enim, an mulier ex viri patrimonio locupletior sit eo tempore, quo de dote agebatur: facta autem intellegitur, quae aere alieno suo interventu viri liberata est, quod potuisset adhuc debere, si vir pecuniam non solvisset: neque enim interest, ex qua causa mulier pecuniam debuit, utrum creditam an eam quam ex emptione praestare debeat.

If, when a woman had bought a slave for twenty, the husband gave five to the seller for that purchase, then, when divorce has occurred, the husband will in every way recover that sum, and it does not pertain to the matter whether that slave has become worse; for even if he had died, a claim for five would be available to him. For the question is whether the woman has been made wealthier from the husband’s patrimony at the time when the suit about the dowry was being pursued; and she is understood to have been made so who, by the husband’s intervention, was freed from a debt, which she could still have owed if the husband had not paid the money; nor does it matter from what cause the woman owed the money, whether a sum lent or that which she had to furnish from the purchase.

Dig. 24.1.50.1

Digest 24.1.50.1

Iavolenus 13 epist.

Javolenus 13 epistles.

Quod si mulier non emerat servum, sed ut emeret, a viro pecuniam accepit, tum vel mortuo vel deteriore facto servo damnum ad virum pertinebit: quia quod aliter emptura non fuit, nisi pecuniam a viro accepisset, hoc consumptum ei perit qui donavit, si modo in rerum natura esse desiit: nec videtur mulier locupletior esse, quae neque a creditore suo liberata est neque id possidet quod ex pecunia viri emerat.

But if the woman had not bought a slave, but, in order to buy, received money from her husband, then, if the slave has died or been made worse, the loss will pertain to the husband: because that which she would not otherwise have purchased unless she had received money from her husband, once consumed, is lost to the one who made the donation, provided that it has ceased to be in the nature of things; nor does the woman seem richer, who has neither been released from her creditor nor does she possess that which she bought with the husband’s money.

Dig. 24.1.51

Digest 24.1.51

Pomponius 5 ad q. muc.

Pomponius 5 on q. muc.

Quintus mucius ait, cum in controversiam venit, unde ad mulierem quid pervenerit, et verius et honestius est quod non demonstratur unde habeat existimari a viro aut qui in potestate eius esset ad eam pervenisse. evitandi autem turpis quaestus gratia circa uxorem hoc videtur quintus mucius probasse.

Quintus Mucius says that, when a controversy arises as to whence something has come to a woman, the truer and more honorable view is that, when it is not demonstrated whence she has it, it is to be thought to have come to her from her husband or from one who was in his power. Moreover, for the sake of avoiding shameful gain concerning a wife, quintus mucius seems to have approved this.

Dig. 24.1.52pr.

Digest 24.1.52, beginning.

Papinianus 10 quaest.

Papinian 10 questions.

Si vir uxori donationis causa rem vilius locaverit, locatio nulla est: cum autem depositum inter eas personas minoris donationis causa aestimatur, depositum est. haec ideo tam varie, quia locatio quidem sine mercede certa contrahi non potest, depositum autem et citra aestimationem quoque dari potest.

If a husband, for the sake of a donation, has let a thing to his wife at a cheaper rate, the letting is null; but when, between these persons, a deposit is valued at a lesser amount for the sake of a donation, it is a deposit. These matters are thus variously decided for this reason: a letting cannot be contracted without a fixed price, whereas a deposit can also be given even without any estimation.

Dig. 24.1.52.1

Digest 24.1.52.1

Papinianus 10 quaest.

Papinian, 10 Questions.

Uxor viro fructum fundi ab herede suo dari, quod si datus non fuisset, certam pecuniam mortis causa promitti curavit: defuncto viro viva muliere stipulatio solvitur, ut traditio, quae mandante uxore mortis causa facta est: nam quo casu inter exteros condictio nascitur, inter maritos nihil agitur.

A wife took care that the fruits of a farm be given to her husband by her own heir, and that, if they had not been given, a certain sum of money be promised mortis causa: upon the husband’s death, the woman being alive, the stipulatio is extinguished, as is the delivery (traditio) which was made mortis causa at the wife’s mandate: for in a case in which a condictio arises between strangers, between spouses no action lies.

Dig. 24.1.53pr.

Digest 24.1.53pr.

Papinianus 4 resp.

Papinian 4 Opinions

Mortis suae causa genero vel nurui socerum frustra donare convenit, quia mortuo socero nuptiae non solvuntur: nec interest, an pater filium vel filiam exheredaverit. divortii species eadem ratione diversa est.

It is agreed that a father-in-law, in contemplation of his own death, makes a donation in vain to a son-in-law or daughter-in-law, because upon the father-in-law’s death the marriage is not dissolved; nor does it matter whether the father has disinherited his son or daughter. The case of divorce is, by the same reasoning, different.

Dig. 24.1.53.1

Digest 24.1.53.1

Papinianus 4 resp.

Papinianus 4 responses.

Res in dotem aestimatas consentiente viro mulier in usu habuit: usu deteriores si fiant, damni compensatio non admittitur. easdem res non potest mulier sibi quasi donatas defendere ex illis verbis, quibus donationes ei a viro legatae sunt, cum eiusmodi species neque donari neque auferri videntur.

The things appraised into the dowry the woman had in use with the husband consenting: if they become worse through use, compensation for the damage is not admitted. The same things the woman cannot defend for herself as if donated, on the basis of those terms by which donations were bequeathed to her by her husband, since items of this sort are seen neither to be donable nor to be taken away.

Dig. 24.1.54

Digest 24.1.54

Papinianus 8 resp.

Papinian, Book 8 of the Responses

Vir usuras promissae dotis in stipulatum deduxerat easque non petierat: cum per omne tempus matrimonii sumptibus suis uxorem et eius familiam vir exhiberet, dote praelegata, sed et donationibus verbis fideicommissi confirmatis legato quidem dotis usuras non contineri videbatur, sed titulo donationis remissas.

A man had brought the interest of the promised dowry into stipulation and had not demanded it: since through the whole time of the marriage the husband maintained the wife and her household at his own expense, the dowry having been prelegated, and the donations also confirmed by words of fideicommissum, it seemed that the legacy did not include the interest of the dowry, but that it had been remitted under the title of donation.

Dig. 24.1.55

Digest 24.1.55

Paulus 6 quaest.

Paulus 6 questions.

Uxor marito suo pecuniam donavit: maritus ex pecunia sibi donata aut mobilem aut soli rem comparavit: solvendo non est et res extant: quaero, si mulier revocet donationem, an utiliter condicticia experiatur? videtur enim maritus, quamvis solvendo non sit, ex donatione locupletior effectus, cum pecunia mulieris comparata exstet. respondi: locupletiorem esse ex donatione negari non potest: non enim quaerimus, quid deducto aere alieno liberum habeat, sed quid ex re mulieris possideat.

A wife donated money to her husband: the husband, from the money donated to him, purchased either a movable or a piece of land: he is not solvent and the things exist: I ask, if the woman revokes the donation, whether she may usefully proceed by a condictitious action? for the husband seems, although he is not solvent, to have been made more wealthy by the donation, since what was bought with the woman’s money exists. I answered: that he is more wealthy from the donation cannot be denied: for we do not inquire what he has free after deducting alien debt, but what he possesses from the woman’s property.

solo enim separatur hic ab eo, cui res donata est, quod ibi res mulieris permanet et vindicare ^ vindicari^ directo potest: et erit deterior causa viri, si ei pecunia quatenus res valet, non ultra id tamen quod donatum est, condicatur, quam si dotis iudicio conveniatur. sed nihil prohibet etiam in rem utilem mulieri in ipsas res accommodare.

for only in this respect is he set apart from one to whom a thing is donated, that there the woman’s thing remains and can be vindicated directly; and the husband’s case will be worse if money, to the extent that the thing is worth—yet not beyond what was donated—is demanded from him by condictio, than if he is proceeded against by the action for dowry. But nothing prevents also granting to the woman a useful action in rem, accommodated against the things themselves.

Dig. 24.1.56

Digest 24.1.56

Scaevola 3 quaest.

Scaevola Book 3 of Questions.

Si quod mihi mortis causa donare vellet, ego pure uxori donare vellem, non valet quod uxori iubeo dari, quia illo convalescente condictione teneor, mortuo autem nihilo minus pauperior sum: non enim habeo quod habiturus essem.

If someone were to wish to give me something mortis causa, and I were to wish to give it outright to my wife, what I order to be given to my wife is not valid, because if he recovers I am held by a condictio; but if he dies, I am nonetheless no less poorer: for I do not have what I would have had.

Dig. 24.1.57

Digest 24.1.57

Paulus 7 resp.

Paulus 7 Responses.

Ea, quae a marito suo pecuniam ex causa donationis acceperat, litteras ad eum misit huiusmodi: " cum petenti mihi a te, domine carissime, adnuerit indulgentia tua viginti ad expediendas quasdam res meas, quae summa mihi numerata est sub ea condicione, ut, si per me meosque mores quid steterit, quo minus in diem vitae nostrae matrimonium permaneat, sive invito te discessero de domo tua vel repudium tibi sine ulla querella misero divortiumque factum per me probabitur, tunc viginti, quae mihi hac die donationis causa dare voluisti, daturam restituturam me sine ulla dilatione: spondeo". quaero, an, si eadem titio marito suo repudium miserit, pecuniam restituere debeat. paulus respondit pecuniam, quam vir uxori donavit, ex stipulatione proposita, si condicio eius exstitit, peti posse, quoniam ex donatione in pecuniam creditam conversa est: quod si stipulatio commissa non probetur, tunc tantum peti posse, quanto locupletior ex ea donatione facta probetur.

She, who had received money from her husband by reason of a donation, sent him a letter of this kind: " when, upon my asking from you, dearest lord, your indulgence assented to twenty to expedite certain of my affairs, which sum was counted out to me under this condition, that, if through me and my own conduct anything should stand in the way whereby the marriage not remain for the day of our life, whether I should depart from your house against your will or should send to you a repudiation without any complaint and it be proved that the divorce was effected by me, then the twenty which you wished to give me this day by cause of donation, I will give back, restore without any delay: I promise." I ask whether, if the same woman sent a repudiation to her husband, she ought to restore the money. Paulus responded that the money which the husband donated to the wife, by the proposed stipulation, if its condition arose, can be sought, since from a donation it has been converted into money on credit; but if it is not proved that the stipulation has been incurred, then only so much can be sought as she is proved to have been made more enriched by that donation.

Dig. 24.1.58pr.

Digest 24.1.58, beginning.

Scaevola 2 resp.

Scaevola 2 Responses.

Si praedia et mancipia seiae data effecta sint eius tempore concubinatus ac postea tempore matrimonii aliis acceptis reddita sunt, quid iuris est? respondit secundum ea quae proponerentur negotium potius gestum videri, quam donationem intervenisse.

If estates and slaves were made over to Seia during the time of concubinage, and later, during the time of marriage, after others had been received, were returned, what is the law? He answered that, according to what was proposed, the affair seems rather to have been a managed transaction than that a donation intervened.

Dig. 24.1.58.1

Digest 24.1.58.1

Scaevola 2 resp.

Scaevola 2 Responses.

Item cum quaereretur de cibariis mancipiorum, respondit: tempore quidem concubinatus data cibaria repeti non possunt, sed nec tempore matrimonii, si ea mancipia uxoris in communi usu fuerint.

Likewise, when inquiry was made about the provisions of slaves, he replied: during the time of concubinage, provisions that were given cannot be reclaimed; nor yet during the time of matrimony, if those slaves of the wife have been in common use.

Dig. 24.1.58.2

Digest 24.1.58.2

Scaevola 2 resp.

Scaevola Responses, book 2.

Filius rebus matris intervenire solitus pecunia matris consentiente ipsa mancipia et res mercatus emptionum instrumenta suo nomine confecit: decessit in patris potestate. quaesitum est, an mater cum marito suo experiri et qua actione uti possit. respondit, si mater obligatum filium in ea pecunia voluit esse, intra annum, quam filius decessit, de peculio cum patre, in cuius potestate fuisse proponatur, actionem habere: si donavit, repeti posse, quanto locupletior ex ea donatione pater factus est.

A son, accustomed to intervene in his mother’s affairs, with the mother’s money and with her herself consenting, bought slaves and other things, and drew up the instruments of purchases in his own name: he died under his father’s power. It was asked whether the mother could proceed with her husband and by what action she could avail herself. He replied that, if the mother wished the son to be obligated for that money, within a year from the time the son died she has an action de peculio against the father in whose power he is alleged to have been; but if she made a gift, it can be reclaimed to the extent that the father was made more enriched by that donation.

Dig. 24.1.59

Digest 24.1.59

Paulus 2 sent.

Paulus Book 2 of the Sentences.

Si quis uxori ea condicione donavit, ut quod donavit in dotem accipiat, defuncto eo donatio convalescit.

If anyone has donated to his wife on this condition, that what he donated he should receive into the dowry, upon his decease the donation is validated.

Dig. 24.1.60pr.

Digest 24.1.60, preface.

Hermogenianus 2 iuris epit.

Hermogenianus book 2 of the epitome of law.

Vitricus et privignus invicem sibi donare praetexto matrimonii non prohibentur.

A stepfather and a stepson are not prohibited, under the pretext of marriage, from donating to one another.

Dig. 24.1.60.1

Digest 24.1.60.1

Hermogenianus 2 iuris epit.

Hermogenianus book 2 of the epitome of law.

Divortii causa donationes inter virum et uxorem concessae sunt: saepe enim evenit, uti propter sacerdotium vel etiam sterilitatem.

Donations between husband and wife are permitted for the purpose of divorce: for it often happens, as for example on account of priesthood or even sterility.

Dig. 24.1.61

Digest 24.1.61

Gaius 11 ad ed. provinc.

Gaius 11 on the provincial edict.

Vel senectutem aut valetudinem aut militiam satis commode retineri matrimonium non possit:

Or if, on account of old age or health or military service, the marriage cannot be maintained sufficiently commodiously:

Dig. 24.1.62pr.

Digest 24.1.62pr.

Hermogenianus 2 iuris epit.

Hermogenianus 2 of the Epitome of Law.

Et ideo bona gratia matrimonium dissolvitur.

And therefore by good grace the marriage is dissolved.

Dig. 24.1.62.1

Digest 24.1.62.1

Hermogenianus 2 iuris epit.

Hermogenianus 2 epit. of law.

Divortio facto nec instaurato matrimonio non confirmabitur inter virum et uxorem facta donatio: nec inter patronum et libertam, si ab eo invito divertere non licet, facta donatio speratur, cum inter hos divortium intercedat. perinde enim id quod donatum est habetur divortio intercedente ac si donatum non fuisset.

Upon a divorce having been effected and the marriage not having been reinstated, a donation made between husband and wife will not be confirmed: nor, between a patron and a freedwoman, if it is not permitted to part from him against his will, is a donation that has been made to be expected, since a divorce intercedes between them. for what has been given is regarded, when a divorce intercedes, just as if it had not been given.

Dig. 24.1.63

Digest 24.1.63

Paulus 3 ad ner.

Paulus 3 on ner.

De eo, quod uxoris in aedificium viri ita coniunctum est, ut detractum alicuius usus esse possit, dicendum est agi posse, quia nulla actio est, ex lege duodecim tabularum, quamvis decemviros non sit credibile de his sensisse, quorum voluntate res eorum in alienum aedificium coniunctae essent. paulus notat: sed in hoc solum agi potest, ut sola vindicatio soluta re competat mulieri, non in duplum ex lege duodecim tabularum: neque enim furtivum est, quod sciente domino inclusum est.

Concerning that which belongs to a wife and has been so conjoined into the husband’s building that, if it were taken away, some use could be impaired, it must be said that an action can be brought, because there is no action under the Law of the Twelve Tables, although it is not believable that the decemvirs had intended this for those whose things were conjoined into another’s building with their own consent. Paul notes: but only this can be proceeded with, that only a vindication, once the thing has been released, belongs to the woman, not the double under the Law of the Twelve Tables: for it is not stolen, what has been built in with the owner knowing.

Dig. 24.1.64

Digest 24.1.64

Iavolenus 6 ex post. lab.

Iavolenus 6 from the Posteriora of Labeo.

Vir mulieri divortio facto quaedam idcirco dederat, ut ad se reverteretur: mulier reversa erat, deinde divortium fecerat. labeo: trebatius inter terentiam et maecenatem respondit si verum divortium fuisset, ratam esse donationem, si simulatum, contra. sed verum est, quod proculus et caecilius putant, tunc verum esse divortium et valere donationem divortii causa factam, si aliae nuptiae insecutae sunt aut tam longo tempore vidua fuisset, ut dubium non foret alterum esse matrimonium: alias nec donationem ullius esse momenti futuram.

After a divorce had been effected, a man had given certain things to a woman for this reason, that she might return to him: the woman had returned, then made a divorce. labeo: trebatius, in the case between terentia and maecenas, answered that if the divorce had been true, the donation was ratified; if simulated, the contrary. But the truth is, as proculus and caecilius think, that the divorce is then true and the donation made for the cause of the divorce is valid, if other nuptials have followed or if she had been a widow for so long a time that there would be no doubt that it was another marriage; otherwise the donation too would be of no moment.

Dig. 24.1.65

Digest 24.1.65

Labeo 6 post. a iav. epit.

Labeo Book 6 of the Later Books, epitomized by Javolenus.

Quod vir ei, quae nondum viripotens nupserit, donaverit, ratum futurum existimo.

I consider that whatever a husband has given to her who has married when not yet of husband-bearing age will be valid.

Dig. 24.1.66pr.

Digest 24.1.66 pr.

Scaevola 9 Dig.

Scaevola 9 Digest.

Seia sempronio cum certa die nuptura esset, antequam domum deduceretur tabulaeque dotis signarentur, donavit tot aureos: quaero, an ea donatio rata sit. non attinuisse tempus, an antequam domum deduceretur, donatio facta esset, aut tabularum consignatarum, quae plerumque et post contractum matrimonium fierent, in quaerendo exprimi: itaque nisi ante matrimonium contractum, quod consensu intellegitur, donatio facta esset, non valere.

when seia was about to marry sempronius on a fixed day, before she was led home and before the tablets of the dowry were signed, she donated so many aurei: I ask whether that donation is ratified. it does not pertain, in the inquiry, to specify the time—whether the donation was made before she was led home—or to press the point about the signed tablets, which for the most part were even executed after the marriage was contracted: therefore, unless the donation was made before the marriage was contracted, which is understood by consent, it is not valid.

Dig. 24.1.66.1

Digest 24.1.66.1

Scaevola 9 Dig.

Scaevola 9 Digest.

Virgini in hortos deductae ante diem tertium quam ibi nuptiae fierent, cum in separata diaeta ab eo esset, die nuptiarum, priusquam ad eum transiret et priusquam aqua et igni acciperetur, id est nuptiae celebrentur, optulit decem aureos dono: quaesitum est, post nuptias contractas divortio facto an summa donata repeti possit. respondit id, quod ante nuptias donatum proponeretur, non posse de dote deduci.

To a virgin who had been led into the gardens three days before the nuptials were to be held there, since she was in a separate apartment away from him, on the day of the nuptials, before she passed over to him and before she was received with water and fire—that is, before the nuptials were celebrated—he offered ten aurei as a gift. It was asked whether, after the nuptials had been contracted and a divorce effected, the sum given as a gift could be reclaimed. He answered that that which was alleged to have been given before the nuptials could not be deducted from the dowry.

Dig. 24.1.67

Digest 24.1.67

Labeo 2 pith. a paulo epit.

Labeo book 2 of the Pithanon, epitomized by paul.

Si uxor nummis a viro aut ab eo qui in eius potestate esset sibi donatis servum emerit, deinde, cum eius factus fuerit, eum ipsum donationis causa viro tradiderit, rata erit traditio, quamvis ea mente facta fuerit qua ceterae donationes, neque ulla actio eius nomine dari potest.

If a wife, with money donated to her by her husband or by someone who was in his power, purchases a slave, and then, when he has become hers, transfers that very slave to her husband for the sake of donation, the delivery (traditio) will be valid, although done with the same intention as other donations; and no action can be granted on its account.

Dig. 24.2.0. De divortiis et repudiis.

Digest 24.2.0. On divorces and repudiations.

Dig. 24.2.1

Digest 24.2.1

Paulus 35 ad ed.

Paulus 35 on the Edict.

Dirimitur matrimonium divortio morte captivitate vel alia contingente servitute utrius eorum.

Marriage is dissolved by divorce, death, captivity, or by another servitude befalling either of them.

Dig. 24.2.2pr.

Digest 24.2.2, preface.

Gaius 11 ad ed. provinc.

Gaius 11 on the provincial edict.

Divortium autem vel a diversitate mentium dictum est vel quia in diversas partes eunt, qui distrahunt matrimonium.

Divorce, however, is said either to be named from a diversity of minds, or because those who pull asunder the marriage go into diverse parts.

Dig. 24.2.2.1

Digest 24.2.2.1

Gaius 11 ad ed. provinc.

Gaius 11 on the provincial edict.

In repudiis autem, id est renuntiatione comprobata sunt haec verba: " tuas res tibi habeto", item haec: " tuas res tibi agito"

In repudiations, that is, in renunciation, the following words have been approved: " have your property for yourself", likewise these: " deal with your property yourself"

Dig. 24.2.2.2

Digest 24.2.2.2

Gaius 11 ad ed. provinc.

Gaius 11 on the provincial edict.

In sponsalibus quoque discutiendis placuit renuntiationem intervenire oportere: in qua re haec verba probata sunt: " condicione tua non utor".

In betrothals too, when they are being examined, it has been decided that a renunciation ought to intervene: in which matter these words have been approved: " condicione tua non utor".

Dig. 24.2.2.3

Digest 24.2.2.3

Gaius 11 ad ed. provinc.

Gaius 11 on the provincial edict.

Sive autem ipsi praesenti renuntietur sive absenti per eum, qui in potestate eius sit cuiusve is eave in potestate sit, nihil interest.

But whether it be notified to the person in person while present, or, if absent, through one who is in his power, or in whose power he or she is, it makes no difference.

Dig. 24.2.3

Digest 24.2.3

Paulus 35 ad ed.

Paulus 35 on the Edict.

Divortium non est nisi verum, quod animo perpetuam constituendi dissensionem fit. itaque quidquid in calore iracundiae vel fit vel dicitur, non prius ratum est, quam si perseverantia apparuit iudicium animi fuisse: ideoque per calorem misso repudio si brevi reversa uxor est, nec divortisse videtur.

Divorce is not, unless it is true, that which is done with the mind to constitute a perpetual dissension. And so whatever is either done or said in the heat of anger is not ratified until persistence has shown it to have been a judgment of the mind; and therefore, if a repudiation was sent in heat and the wife shortly returned, it does not appear that there was a divorce.

Dig. 24.2.4

Digest 24.2.4

Ulpianus 26 ad sab.

Ulpian, 26 on Sabinus.

Iulianus libro octavo decimo digestorum quaerit, an furiosa repudium mittere vel repudiari possit. et scribit furiosam repudiari posse, quia ignorantis loco habetur: repudiare autem non posse neque ipsam propter dementiam neque curatorem eius, patrem tamen eius nuntium mittere posse. quod non tractaret de repudio, nisi constaret retineri matrimonium: quae sententia mihi videtur vera.

Julian in the eighteenth book of the Digests asks whether a madwoman can send a repudiation or be repudiated. And he writes that a madwoman can be repudiated, because she is held in the place of one who is ignorant; but that she cannot repudiate—neither she herself on account of dementia nor her curator—however, her father can send the notice. For he would not be treating of repudiation unless it were settled that the marriage is retained; which opinion seems to me true.

Dig. 24.2.5

Digest 24.2.5

Ulpianus 34 ad ed.

Ulpian, 34 on the Edict.

Si filia emancipata idcirco diverterat, ut maritum lucro dotis adficiat, patrem fraudet, qui profecticiam dotem potuit petere, si constante matrimonio decessisset, ideo patri succurrendum est, ne dotem perdat: non enim minus patri quam marito succurrere praetorem oportet. danda igitur est ei dotis exactio, atque si constante matrimonio decessisset filia.

If an emancipated daughter had separated for this reason, in order to endow her husband with the profit of the dowry and to defraud her father, who could have sought the profectitious dowry if she had died with the marriage subsisting, therefore the father must be succored, lest he lose the dowry: for the praetor ought to assist the father no less than the husband. Therefore the claim to exact the dowry must be granted to him, just as if the daughter had died while the marriage was continuing.

Dig. 24.2.6

Digest 24.2.6

Iulianus 62 Dig.

Julian 62 Dig.

Uxores eorum, qui in hostium potestate pervenerunt, possunt videri nuptarum locum retinere eo solo, quod alii temere nubere non possunt. et generaliter definiendum est, donec certum est maritum vivere in captivitate constitutum, nullam habere licentiam uxores eorum migrare ad aliud matrimonium, nisi mallent ipsae mulieres causam repudii praestare. sin autem in incerto est, an vivus apud hostes teneatur vel morte praeventus, tunc, si quinquennium a tempore captivitatis excesserit, licentiam habet mulier ad alias migrare nuptias, ita tamen, ut bona gratia dissolutum videatur pristinum matrimonium et unusquisque suum ius habeat imminutum: eodem iure et in marito in civitate degente et uxore captiva observando.

The wives of those who have come into the power of the enemy can be seen to retain the status of married women for this sole reason, that they cannot rashly marry another. And, generally, it is to be defined that, so long as it is certain that the husband, set in captivity, is alive, their wives have no license to migrate to another marriage, unless the women themselves would prefer to furnish a cause of repudiation (divorce). But if it is uncertain whether he is held alive among the enemy or has been overtaken by death, then, if a five-year period has elapsed from the time of the captivity, the woman has license to migrate to other nuptials, provided, however, that the former marriage appears to have been dissolved in good grace and that each has his own right diminished: the same rule being observed also when the husband is dwelling in the city and the wife is captive.

Dig. 24.2.7

Digest 24.2.7

Papinianus 1 de adult.

Papinian, 1 On Adultery.

Si paenituit eum, qui libellum tradendum divortii dedit, isque per ignorantiam mutatae voluntatis oblatus est, durare matrimonium dicendum, nisi paenitentia cognita is qui accepit ipse voluit matrimonium dissolvere: tunc enim per eum qui accepit solvitur matrimonium.

If the one who gave a libellus of divorce to be delivered repented, and it was presented in ignorance of the change of will, the marriage is to be said to endure, unless, once the repentance was known, the recipient himself willed to dissolve the marriage: for then through the one who received it the marriage is dissolved.

Dig. 24.2.8

Digest 24.2.8

Papinianus 2 de adult.

Papinian 2 On Adultery.

Divus hadrianus eum, qui alienam uxorem ex itinere domum suam duxisset et inde marito eius repudium misisset, in triennium relegavit.

The deified Hadrian relegated for three years the man who had led another man’s wife off the road to his own house and from there had sent a repudiation to her husband.

Dig. 24.2.9

Digest 24.2.9

Paulus 2 de adult.

Paulus 2 on adultery.

Nullum divortium ratum est nisi septem civibus romanis puberibus adhibitis praeter libertum eius qui divortium faciet. libertum accipiemus etiam eum, qui a patre avo proavo et ceteris susum versum manumissus sit.

No divorce is valid unless seven Roman citizens of full age are brought in, except for the freedman of the one who will effect the divorce. we shall understand “freedman” to include also one who has been manumitted by the father, grandfather, great‑grandfather, and the rest upward.

Dig. 24.2.10

Digest 24.2.10

Modestinus 1 reg.

Modestinus 1 Rules.

Patrono invito liberta, quam in matrimonio habuit, ab eo discedere non potest, nisi ex causa fideicommissi manumissa sit: tunc enim potest, licet eius fit liberta.

With the patron unwilling, a freedwoman whom he had in marriage cannot depart from him, unless she has been manumitted on the ground of a fideicommissum: for then she can, although she becomes his freedwoman.

Dig. 24.2.11pr.

Digest 24.2.11pr.

Ulpianus 3 ad l. iul. et pap.

Ulpian 3 on the Julian and Papian law.

Quod ait lex: " divortii faciendi potestas libertae, quae nupta est patrono, ne esto", non infectum videtur effecisse divortium, quod iure civili dissolvere solet matrimonium. quare constare matrimonium dicere non possumus, cum sit separatum. denique scribit iulianus de dote hanc actionem non habere.

What the law says, "let there be no power of making divorce for a freedwoman who is married to her patron," does not seem to have rendered undone the divorce which by civil law is wont to dissolve a marriage. Wherefore we cannot say the marriage stands, since it has been separated. Finally, Julian writes that, concerning the dowry, this action is not available.

merito igitur, quamdiu patronus eius eam uxorem suam esse vult, cum nullo alio conubium ei est nam quia intellexit legis lator facto libertae quasi diremptum matrimonium, detraxit ei cum alio conubium. quare cuicumque nupserit, pro non nupta habebitur. iulianus quidem amplius putat nec in concubinatu eam alterius patroni esse posse.

Rightly therefore, so long as her patron wishes her to be his wife, she has conubium with no one else; for since the legislator understood that by the act the freedwoman’s matrimony was, as it were, severed, he withdrew from her conubium with another. Wherefore, whomever she may have married, she will be held as not married. Julian, indeed, goes further and thinks that she cannot even be in concubinage of another patron.

Dig. 24.2.11.1

Digest 24.2.11.1

Ulpianus 3 ad l. iul. et pap.

Ulpian, 3 on the Julian and Papian law.

Ait lex: " quamdiu patronus eam uxorem esse volet". et velle debet uxorem esse et patronus durare: si igitur aut patronus esse aut velle desierit, finita est legis auctoritas.

The law says: "so long as the patron wills her to be a wife." And he ought to will that she be a wife and that the patron continue: if therefore he has ceased either to be a patron or to will, the authority of the law is ended.

Dig. 24.2.11.2

Digest 24.2.11.2

Ulpianus 3 ad l. iul. et pap.

Ulpian 3 on the Julian and Papian law.

Illud rectissime placuit, qualiquali voluntate intellegi possit patronus animum habere desisse quasi in uxorem, finiri legis huius beneficium. proinde cum patronus rerum amotarum cum liberta, quae ab invito eo divorterat, vellet experiri, imperator noster cum divo patre suo rescripsit intellegi eum hoc ipso nolle nuptam sibi, qui eam actionem vel aliam importet, quae non solet nisi ex divortio oriri. quare si accusare eam adulterii coeperit vel alio crimine postulare, quod uxori nemo obicit, magis est, ut diremptum sit matrimonium: etenim meminisse oportet ideo adimi cum alio conubium, quia patronus sibi nuptam cupit.

It has most rightly been established that, whenever by whatever sort of manifestation of will it can be understood that the patron has ceased to have the intention as though toward a wife, the benefit of this law comes to an end. Accordingly, when a patron wished to bring an action for things removed against a freedwoman who had divorced against his will, our emperor, together with his deified father, rescripted that by this very fact it is understood that he does not wish her to be married to himself—he who brings that action, or another which is not wont to arise except from divorce. Therefore, if he begins to accuse her of adultery or to prosecute her on some other charge which no one brings against a wife, it is rather to be held that the marriage has been severed: for indeed one ought to remember that connubium with another is taken away for this reason, because the patron desires her to be married to himself.

ubicumque igitur vel tenuis intellectus videri potest nolentis nuptam, dicendum est iam incipere libertae cum alio esse conubium. proinde si patronus sibi desponderit aliam vel destinaverit vel matrimonium alterius appetierit, credendus est nolle hanc nuptam: et si concubinam sibi adhibuerit, idem erit probandum.

Wherever, therefore, even a slight indication can appear that he is unwilling to have her as his wife, it must be said that the freedwoman’s capacity for lawful marriage with another now begins. Accordingly, if the patron has betrothed another to himself, or has fixed upon one, or has sought the marriage of someone else, he is to be believed not to want this woman as his wife; and if he has taken a concubine to himself, the same will have to be proved.

Dig. 24.3.0. Soluto matrimonio dos quemadmodum petatur.

Digest 24.3.0. After the marriage is dissolved, how the dowry is to be claimed.

Dig. 24.3.1

Digest 24.3.1

Pomponius 15 ad sab.

Pomponius book 15 on Sabinus.

Dotium causa semper et ubique praecipua est: nam et publice interest dotes mulieribus conservari, cum dotatas esse feminas ad subolem procreandam replendamque liberis civitatem maxime sit necessarium.

The matter of dowries is always and everywhere of primary importance: for it is also of public interest that dowries be conserved for women, since it is most necessary that women be endowed for the procreation of offspring and for replenishing the commonwealth with children.

Dig. 24.3.2pr.

Digest 24.3.2pr.

Ulpianus 35 ad sab.

Ulpian 35 on Sabinus.

Soluto matrimonio solvi mulieri dos debet. nec cogitur maritus alii eam ab initio stipulanti promittere, nisi hoc ei nihil nocet: nam si incommodum aliquod maritus suspectum habet, non debere eum cogi alii quam uxori promittere dicendum est. haec si sui iuris mulier est.

With the marriage dissolved, the dowry ought to be paid to the woman. Nor is the husband compelled to promise it to another who from the beginning stipulated for it, unless this does him no harm: for if the husband suspects any detriment, it must be said that he ought not to be compelled to promise to anyone other than the wife. This, if the woman is sui iuris.

Dig. 24.3.2.1

Digest 24.3.2.1

Ulpianus 35 ad sab.

Ulpian 35 to Sabinus.

Quod si in patris potestate est et dos ab eo profecta sit, ipsius et filiae dos est: denique pater non aliter quam ex voluntate filiae petere dotem nec per se nec per procuratorem potest. sic ergo et promittendum sabinus ait. ei ergo promittendum erit, cui uterque iusserit.

But if she is in the father’s power and the dowry has proceeded from him, the dowry is of both himself and the daughter: finally, the father cannot demand the dowry otherwise than by the will of the daughter, neither by himself nor through a procurator. Thus therefore, Sabinus says, it is also to be promised. Therefore it will have to be promised to him whom both shall have ordered.

ceterum si pater solus iussit, dotis actio filiae non erit adempta, quandoque sui iuris filia fuerit facta. item si voluntate solius filiae promittatur, remanebit dotis actio integra patri: sed utrum ut et agat solus an et ut adiuncta quoque filiae persona experiri possit? et puto nec eam actionem amissam, quam adiuncta filiae persona potest habere.

Moreover, if the father alone ordered it, the action for the dowry will not be taken away from the daughter, whenever the daughter shall have been made sui iuris. Likewise, if it is promised by the will of the daughter alone, the action for the dowry will remain entire to the father: but is it so that he may sue alone, or also that, with the daughter’s persona adjoined, he may be able to proceed? And I think that neither is that action lost which can be had with the daughter’s persona adjoined.

quod si sui iuris fuerit facta filia, nocebit ei ista stipulatio.

but if the daughter has been made sui iuris, that stipulation will harm her.

Dig. 24.3.2.2

Digest 24.3.2.2

Ulpianus 35 ad sab.

Ulpian 35 on Sabinus.

Voluntatem autem filiae, cum pater agit de dote, utrum sic accipimus, ut consentiat an vero ne contradicat filia? et est ab imperatore antonino rescriptum filiam, nisi evidenter contradicat, videri consentire patri. et iulianus libro quadragesimo octavo digestorum scripsit quasi ex voluntate filiae videri experiri patrem, si furiosam filiam habeat: nam ubi non potest per dementiam contradicere, consentire quis eam merito credet.

But as to the will of the daughter, when the father brings an action concerning the dowry, do we take it thus, that she consents, or rather that the daughter does not contradict? And there is a rescript by Emperor Antoninus that the daughter, unless she plainly contradicts, is seen to consent to her father. And Julian, in the forty-eighth book of the Digest, wrote that the father is deemed to proceed as if from the will of the daughter, if he has an insane daughter: for where she cannot contradict by reason of dementia, one will rightly believe her to consent.

sed si absens filia sit, dicendum erit non ex voluntate eius id factum cavendumque ratam rem filiam habituram a patre: ubi enim sapit, scire eam exigimus, ut videatur non contradicere.

but if the daughter is absent, it must be said that this was not done by her will, and care must be taken that the daughter will have the matter ratified by the father; for when she has sense, we require that she know of it, in order that she may be seen not to contradict.

Dig. 24.3.3

Digest 24.3.3

Paulus 7 ad sab.

Paulus 7 on Sabinus.

Non solum autem in exigenda, sed etiam in solvenda dote, quae communis est patris et filiae, utriusque voluntas exquiritur nec alter alterius deteriorem condicionem facere potest. sed si pecunia ad patrem pervenit, quam filia accepit, actio de dote utrisque tolletur.

Not only, moreover, in exacting, but also in paying the dowry, which is common to father and daughter, the will of each is required, nor can the one make the other's condition worse. But if the money has come to the father, which the daughter received, the action concerning the dowry will be taken away from both.

Dig. 24.3.4

Digest 24.3.4

Pomponius 15 ad sab.

Pomponius 15 on Sabinus.

Si pater sine consensu filiae dotem a viro exegisset et eandem alii viro eius filiae nomine dedisset et mortuo patre filia cum priore viro ageret, doli mali exceptione repellitur.

If a father, without the daughter’s consent, had exacted the dowry from the husband and had given the same to another man in his daughter’s name, and, the father having died, the daughter were to bring an action against the former husband, she is repelled by the exception of dolus malus.

Dig. 24.3.5

Digest 24.3.5

Ulpianus 30 ad sab.

Ulpian 30 on sab.

De divisione anni eius, quo divortium factum est, quaeritur, ex die matrimonii an ex die traditi marito fundi maritus sibi computet tempus. et utique in fructibus a viro retinendis neque dies dotis constitutae neque nuptiarum observabitur, sed quo primum dotale praedium constitutum est id est tradita possessione.

Concerning the division of the year in which the divorce was effected, it is asked whether the husband should compute the time for himself from the day of the marriage or from the day on which the estate was delivered to the husband. And assuredly, in the fruits to be retained by the man, neither the day of the dowry having been constituted nor of the nuptials will be observed, but that on which the dotal estate was first constituted, that is, upon delivery of possession.

Dig. 24.3.6

Digest 24.3.6

Paulus 7 ad sab.

Paulus 7 to Sabinus.

Si ante nuptias fundus traditus est, ex die nuptiarum ad eundem diem sequentis anni computandus annus est: idem in ceteris annis servatur, donec divortium fiat. nam si ante nuptias traditus sit et fructus inde percepti, hi restituendi sunt quandoque divortio facto quasi dotis facti.

If the estate was delivered before the nuptials, the year is to be computed from the day of the marriage to the same day of the following year: the same is observed in the other years, until a divorce takes place. For if it was delivered before the nuptials and the fruits therefrom were taken, these must be restored whenever a divorce has been effected, as if they had been made part of the dowry.

Dig. 24.3.7pr.

Digest 24.3.7, beginning.

Ulpianus 31 ad sab.

Ulpian 31 on Sabinus.

Fructus eos esse constat, qui deducta impensa supererunt: quod scaevola et ad mariti et ad mulieris impensas refert. nam si mulier pridie vindemias doti dedit, mox sublatis a marito vindemiis divortit, non putat ei undecim dumtaxat mensum fructus restitui, sed et impensas, quae, antequam portiones fructuum fiant, deducendae sunt: igitur, si et maritus aliquid impendit in eundem annum, utriusque impensae concurrent. ita et, si impensarum a muliere factarum ratio habeatur, cum plurimis annis in matrimonio fuit, necesse est primi anni computari temporis quod sit ante datum praedium.

It is agreed that those are fruits which remain after the expense has been deducted: which Scaevola refers both to the husband’s and to the woman’s expenses. For if the woman gave the estate in dowry on the day before the vintages, and soon, after the vintages had been taken off by the husband, she divorced, he does not think that there should be restored to her the fruits for only eleven months, but also the expenses, which must be deducted before the portions of the fruits are made: therefore, if the husband also expended something in the same year, the expenses of both will concur. Likewise, if account is taken of the expenses made by the woman, when she was for very many years in marriage, it is necessary, for the first year, to compute the time which is before the estate was given.

Dig. 24.3.7.1

Digest 24.3.7.1

Ulpianus 31 ad sab.

Ulpian, 31 on Sabinus.

Papinianus autem libro undecimo quaestionum divortio facto fructus dividi ait non ex die locationis, sed habita ratione praecedentis temporis, quo mulier in matrimonio fuit: neque enim, si vindemiae tempore fundus in dotem datus sit eumque vir ex calendis novembribus primis fruendum locaverit, mensis ianuarii suprema die facto divortio, retinere virum et vindemiae fructus et eius anni, quo divortium factum est, quartam partem mercedis aequum est: alioquin si coactis vindemiis altera die divortium intercedat, fructus integros retinebit. itaque si fine mensis ianuarii divortium fiat et quattuor mensibus matrimonium steterit, vindemiae fructus et quarta portio mercedis instantis anni confundi debebunt, ut ex ea pecunia tertia portio viro relinquatur.

Papinian, however, in the eleventh book of the Questions, says that, when a divorce has been effected, the fruits are to be divided not from the day of the letting, but with regard had to the preceding time during which the woman was in marriage. For neither is it equitable, if at the time of the vintage the farm has been given as dowry and the husband has leased it to be enjoyed from the Kalends of November, that, with divorce made on the last day of January, the husband should retain both the fruits of the vintage and a fourth part of the rent of the year in which the divorce was made; otherwise, if, the vintage having been gathered, divorce intervenes on the following day, he will retain the fruits entire. And so, if at the end of January a divorce is made and the marriage has stood for four months, the fruits of the vintage and the fourth portion of the rent of the current year must be blended, so that from that money a third portion be left to the husband.

Dig. 24.3.7.2

Digest 24.3.7.2

Ulpianus 31 ad sab.

Ulpian, 31 on Sabinus.

E contrario quoque idem observandum est: nam si mulier percepta vindemia statim fundum viro in dotem dederit et vir ex calendis martiis eundem locaverit et calendis aprilibus primis divortium fuerit secutum, non solum partem duodecimam mercedis, sed pro modo temporis omnium mensum, quo dotale praedium fuit, ex mercede quae debebitur portionem retinebit.

Conversely, the same is to be observed: for if the woman, the vintage having been gathered, immediately gave the farm to the husband as a dowry, and the husband from the Kalends of March leased the same, and on the first Kalends of April a divorce ensued, he will retain not only the twelfth part of the rent, but, according to the measure of time of all the months during which the estate was dotal, he will retain a portion from the rent that will be due.

Dig. 24.3.7.3

Digest 24.3.7.3

Ulpianus 31 ad sab.

Ulpian, 31 On Sabinus.

Item si messes eius anni, quo divortium factum est, colonum ex forma locationis sequantur, ante vindemiam soluto matrimonio nihilo minus pecunia messium in computationem cum spe futurae vindemiae veniet.

Likewise, if the harvests of that year in which the divorce was effected follow the colonus according to the form of the lease, although the marriage was dissolved before the vintage, nonetheless the money of the harvests will come into the computation, together with the expectation of the future vintage.

Dig. 24.3.7.4

Digest 24.3.7.4

Ulpianus 31 ad sab.

Ulpian, 31 on Sabinus.

Apparet igitur ex his illos fructus, quos mulier percepit antequam nuberet, non debere in contributionem venire.

It therefore appears from these that those fruits, which the woman perceived/collected before she married, ought not to come into contribution.

Dig. 24.3.7.5

Digest 24.3.7.5

Ulpianus 31 ad sab.

Ulpian 31 on Sabinus.

Ob donationes, item ob res amotas ex his fructibus, qui post divortium percepti sunt, compensationes fieri possunt.

On account of donations, likewise on account of things removed from those fruits which were gathered after the divorce, compensations can be made.

Dig. 24.3.7.6

Digest 24.3.7.6

Ulpianus 31 ad sab.

Ulpian 31 on Sabinus.

Quod in anno dicitur, potest dici et in sex mensibus, si bis in anno fructus capientur, ut est in locis inriguis.

What is said in a year can also be said in six months, if the fruits are taken twice in a year, as is the case in irrigated places.

Dig. 24.3.7.7

Digest 24.3.7.7

Ulpianus 31 ad sab.

Ulpian 31 on Sabinus.

Et in pluribus annis idem dici potest, ut in silva caedua.

And in the case of several years the same can be said, as in a coppice-wood.

Dig. 24.3.7.8

Digest 24.3.7.8

Ulpianus 31 ad sab.

Ulpian 31 on Sabinus.

Item si locatio agri talis sit, ut super annuam mercedem quinquennio quoque aliquid amplius praestaretur: in eo enim quod amplius est tempus ad quinquennium computamus.

Likewise, if the leasing of a field is such that, over and above the annual rent, something additional is also to be rendered at each quinquennial term: for, as to that which is in excess, we compute the time up to the five-year term.

Dig. 24.3.7.9

Digest 24.3.7.9

Ulpianus 31 ad sab.

Ulpian, 31 on Sabinus.

Non solum autem de fundo, sed etiam de pecore idem dicemus, ut lana ovium fetusque pecorum praestaretur. quare enim, si maritus prope partum oves doti acceperit, item proximas tonsurae, post partum et tonsas oves protinus divortio facto nihil reddat? nam et hic fructus toto tempore quo curantur, non quo percipiuntur, rationem accipere debemus.

Not only, however, about an estate, but also about livestock we will say the same, namely that the wool of the sheep and the offspring of the herds be furnished. for why, if the husband has received sheep as dowry near to parturition, likewise near to shearing, should he, after parturition and after the sheep have been shorn, immediately upon divorce return nothing? for here too we ought to reckon the fruits (fructus) by the whole time during which they are cared for, not by the moment when they are taken.

Dig. 24.3.7.10

Digest 24.3.7.10

Ulpianus 31 ad sab.

Ulpian 31 on Sabinus.

In servo quoque anni ratio habetur, si in annum forte operae eius locatae sunt, ut praeteriti temporis ad maritum, post divortium autem ad mulierem operae pertineant.

In the case of a slave likewise, a reckoning of the year is observed, if perchance his services have been leased for a year, so that the services for the time elapsed pertain to the husband, but after the divorce they pertain to the woman.

Dig. 24.3.7.11

Digest 24.3.7.11

Ulpianus 31 ad sab.

Ulpian 31 on Sabinus.

De pensionibus quoque praediorum urbanorum idem est quod in fructibus rusticorum.

Concerning the rents of urban estates, the same is as with the fruits of rustic ones.

Dig. 24.3.7.12

Digest 24.3.7.12

Ulpianus 31 ad sab.

Ulpian 31 on Sabinus.

Si fundum viro uxor in dotem dederit isque inde arbores deciderit, si hae fructus intelleguntur, pro portione anni debent restitui ( puto autem, si arbores caeduae fuerunt vel gremiales, dici oportet in fructu cedere), si minus, quasi deteriorem fundum fecerit, maritus tenebitur. sed et si vi tempestatis ceciderunt, dici oportet pretium earum restituendum mulieri nec in fructum cedere non magis, quam si thensaurus fuerit inventus: in fructum enim non computabitur, sed pars eius dimidia restituetur quasi in alieno inventi.

If a wife has given an estate to her husband as dowry and he has cut down trees from it, if these are understood as fruits, they must be restored in proportion to the year ( I think, however, that if the trees were caeduae, that is, coppice-wood, or gremiales, i.e., orchard/nursery trees, it ought to be said that they fall under fruits); if not, the husband will be held liable as having made the estate worse. But even if they fell by the force of a storm, it ought to be said that their price must be restored to the woman, and that they do not fall under fruits any more than if a treasure had been found: for it will not be computed among fruits, but half of it will be restored as though found on another’s property.

Dig. 24.3.7.13

Digest 24.3.7.13

Ulpianus 31 ad sab.

Ulpian, 31 on Sabinus.

Si vir in fundo mulieris dotali lapidicinas marmoreas invenerit et fundum fructuosiorem fecerit, marmor, quod caesum neque exportatum est, mariti et impensa non est ei praestanda, quia nec in fructu est marmor: nisi tale sit, ut lapis ibi renascatur, quales sunt in gallia, sunt et in asia.

If a husband on a woman’s dotal estate has discovered marble quarries and made the estate more fruitful, the marble which has been cut and not exported is the husband’s, and the expense is not to be furnished to him, because marble is not among the fruits: unless it is of such a kind that the stone is reborn there, such as are in Gaul, and there are also in Asia.

Dig. 24.3.7.14

Digest 24.3.7.14

Ulpianus 31 ad sab.

Ulpian, 31 on Sabinus.

Sed si cretifodinae, argentifodinae vel auri vel cuius alterius materiae sint vel harenae, utique in fructu habebuntur.

But if there are chalk-pits, silver-mines, or mines of gold or of any other material, or sands, they will certainly be held among the fruits.

Dig. 24.3.7.15

Digest 24.3.7.15

Ulpianus 31 ad sab.

Ulpian, 31 on Sabinus.

Interdum marito de fructibus a muliere cavetur et nihil retinet, si fructibus stantibus fundum mulier recipiet: interdum retinebit tantum maritus et nihil restituet, id est si non plus erit, quam pro portione eum retinere oportet: interdum vero et reddet, si plus percepit quam eum retinere oportet. eadem condicio erit etiam, si cum socero vel cum herede alterutrius de dote agatur.

Sometimes provision is made in favor of the husband by the woman concerning the fruits, and he retains nothing, if the woman will recover the estate with the fruits standing: sometimes the husband will retain only so much and will restitute nothing, that is, if it will not be more than it is proper for him to retain according to his portion: sometimes indeed he will also give back, if he has received more than it is proper for him to retain. The same condition will also obtain, if there is action about the dowry with the father-in-law or with the heir of either party.

Dig. 24.3.7.16

Digest 24.3.7.16

Ulpianus 31 ad sab.

Ulpian, 31 to Sabinus.

Impendi autem fructuum percipiendorum pomponius ait, quod in arando serendoque agro impensum est, quodque in tutelam aedificiorum aegrumve servum curandum, scilicet si ex aedificio vel servo fructus aliqui percipiebantur. sed hae impensae non petentur, cum maritus fructum totum anni retinet, quia ex fructibus prius impensis satisfaciendum est. plane si novam villam necessario exstruxit vel veterem totam sine culpa sua collapsam restituerit, erit eius impensae petitio: simili modo et si pastina instituit.

Pomponius says, moreover, that for the perceiving of fruits the expenditure is that which has been laid out in plowing and sowing the field, and that which is for the maintenance of buildings or for the care of a sick slave—namely, if some fruits were being taken from the building or the slave. But these outlays are not to be claimed, since the husband retains the whole fruit of the year, because from the fruits the prior expenses must be satisfied. Clearly, if he has necessarily constructed a new villa, or has restored an old one that collapsed entirely without his fault, there will be an action for his expenditure; similarly also if he has instituted pastination (deep trenching for vines).

hae enim impensae aut in res necessarias aut utiles cedunt pariuntque marito actionem.

for these expenses either go to necessary or to useful things and give the husband an action.

Dig. 24.3.8pr.

Digest 24.3.8pr.

Paulus 7 ad sab.

Paulus 7 on Sabinus.

Si fundus in dotem datus sit, in quo lapis caeditur, lapidicinarum commodum ad maritum pertinere constat, quia palam sit eo animo dedisse mulierem fundum, ut iste fructus ad maritum pertineat, nisi si contrariam voluntatem in dote danda declaraverit mulier.

If an estate is given in dowry, on which stone is quarried, it is agreed that the profit of the quarries pertains to the husband, because it is clear that the woman gave the estate with that intention, that this fruit should pertain to the husband—unless the woman, in giving the dowry, declared a contrary will.

Dig. 24.3.8.1

Digest 24.3.8.1

Paulus 7 ad sab.

Paul 7 to Sabinus.

Quod in sementem erogatur, si non responderint messes, ex vindemia deducetur, quia totius anni unus fructus est.

What is disbursed for sowing, if the harvests do not answer, will be deducted from the vintage, because the whole year has a single yield.

Dig. 24.3.9

Digest 24.3.9

Pomponius 10 ad sab.

Pomponius 10 on Sabinus.

Si mora per mulierem fuit, quo minus dotem reciperet, dolum malum dumtaxat in ea re, non etiam culpam maritus praestare debet, ne facto mulieris in perpetuum agrum eius colere cogatur: fructus tamen, qui pervenissent ad virum, redduntur.

If the delay was through the woman, whereby she did not recover the dowry, the husband ought to be answerable for malicious fraud only in that matter, not also for fault, lest by the woman’s deed he be compelled to cultivate her field in perpetuity: the fruits, however, which had come to the man, are returned.

Dig. 24.3.10pr.

Digest 24.3.10, preface.

Pomponius 15 ad sab.

Pomponius 15 on Sabinus.

Si ab hostibus capta filia, quae nupta erat et dotem a patre profectam habebat, ibi decesserit, puto dicendum perinde observanda omnia ac si nupta decessisset, ut, etiamsi in potestate non fuerit patris, dos ab eo profecta reverti ad eum debeat.

If a daughter captured by the enemy, who was married and had a dowry proceeding from her father, has died there, I think it must be said that all things are to be observed just as if she had died married; namely, that even if she was not in the power of her father, the dowry proceeding from him ought to revert to him.

Dig. 24.3.10.1

Digest 24.3.10.1

Pomponius 15 ad sab.

Pomponius 15 to sabinus.

Si vir uxorem suam occiderit, dotis actionem heredibus uxoris dandam esse proculus ait, et recte: non enim aequum est virum ob facinus suum dotem sperare lucrifacere. idemque et e contrario statuendum est.

If a husband has killed his wife, Proculus says that the action for the dowry is to be given to the heirs of the wife, and rightly: for it is not equitable that a husband, on account of his own felony, should hope to profit from the dowry. And the same is to be established also conversely.

Dig. 24.3.11

Digest 24.3.11

Pomponius 16 ad sab.

Pomponius 16 on Sabinus.

Si alienam rem sciens mulier in dotem dederit, reddenda ei est, quasi suam dedisset, et fructus pro portione anni, quo divortium factum est.

If a woman, knowing it to be another’s property, has given a thing into dowry, it must be returned to her as if she had given her own, and the fruits pro rata for the portion of the year in which the divorce was effected.

Dig. 24.3.12

Digest 24.3.12

Ulpianus 36 ad sab.

Ulpian 36 on Sabinus.

Maritum in id quod facere potest condemnari exploratum est: sed hoc heredi non esse praestandum,

It has been ascertained that a husband is to be condemned to that which he can perform: but that this is not to be furnished by the heir,

Dig. 24.3.13

Digest 24.3.13

Paulus 7 ad sab.

Paulus 7 on Sabinus.

Quia tale beneficium personale est et cum persona exstinguitur.

Because such a beneficium is personal and is extinguished with the person.

Dig. 24.3.14pr.

Digest 24.3.14, at the beginning.

Ulpianus 36 ad sab.

Ulpian, 36 on Sabinus.

Alia causa est defensoris, quem placet sufficienter videri defendisse, si tantum uxori praestet, quantum consequeretur, si ipsum maritum convenisset.

It is a different case for the defender, who is considered to have sufficiently defended if he provides to the wife as much as she would obtain if she had sued the husband himself.

Dig. 24.3.14.1

Digest 24.3.14.1

Ulpianus 36 ad sab.

Ulpian, 36 on Sabinus.

Eleganter quaerit pomponius libro quinto decimo ex sabino, si paciscatur maritus, ne in id quod facere possit condemnetur, sed in solidum, an hoc pactum servandum sit? et negat servari oportere, quod quidem et mihi videtur verum: namque contra bonos mores id pactum esse melius est dicere, quippe cum contra receptam reverentiam, quae maritis exhibenda est, id esse apparet.

Pomponius, in the fifteenth book from Sabinus, elegantly inquires whether, if a husband makes a pact that he be not condemned only in that which he can do, but in solidum, this pact is to be observed? And he denies that it ought to be observed—which also seems true to me: for it is better to say that that pact is contrary to good morals, since it appears to be against the received reverence which must be exhibited to husbands.

Dig. 24.3.15pr.

Digest 24.3.15, preface.

Paulus 7 ad sab.

Paulus 7 on Sabinus.

Rei iudicatae tempus spectatur, quatenus maritus facere potest.

The time of the res judicata is considered, insofar as the husband is able to act.

Dig. 24.3.15.1

Digest 24.3.15.1

Paulus 7 ad sab.

Paulus 7 on Sabinus.

Heredi mariti, licet in solidum condemnetur, compensationes tamen, quae ad pecuniariam causam respiciunt, proderunt, ut hoc minus sit obligatus, veluti ob res donatas et amotas et impensas: morum vero coercitionem non habet.

To the husband's heir, although he may be condemned in solidum, nevertheless compensations which have regard to a pecuniary cause will be of benefit, so that by this he is less obligated, as, for instance, on account of things donated and removed and expenses: but he does not have coercition of morals.

Dig. 24.3.15.2

Digest 24.3.15.2

Paulus 7 ad sab.

Paul 7 on Sabinus.

Socero quoque, cum quo nurus de dote agit, idem honor habetur, ut in id damnetur quod facere potest,

To the father-in-law also, with whom the daughter-in-law brings suit concerning the dowry, the same honor is observed, that he be condemned only to the extent that he can perform,

Dig. 24.3.16

Digest 24.3.16

Pomponius 16 ad sab.

Pomponius 16 on Sabinus.

Quia parentis locum socer optinet.

Because the father-in-law holds the place of a parent.

Dig. 24.3.17pr.

Digest 24.3.17pr.

Paulus 7 ad sab.

Paulus 7 to Sabinus.

Ex diverso si socer ex promissione a marito conveniatur, solet quaeri, an idem ei honor habendus sit: neratius libris membranarum et proculus scribunt hoc iustum esse.

Conversely, if the father-in-law is convened on the basis of a promise by the husband, it is usually asked whether the same honor ought to be accorded to him: neratius in the membranae books and proculus write that this is just.

Dig. 24.3.17.1

Digest 24.3.17.1

Paulus 7 ad sab.

Paulus 7 on sab.

Item si mulier ex promissione conveniatur, magis placuit defendendam eam per exceptionem: idem et proculus ait: sicuti cum socia fuit, dabitur ei exceptio, quamvis iure civili sit obligata.

Likewise, if a woman is proceeded against on account of a promise, the prevailing view was that she should rather be defended by an exception; Proculus likewise says: just as when she was a partner, an exception will be granted to her, although she is obligated by civil law.

Dig. 24.3.17.2

Digest 24.3.17.2

Paulus 7 ad sab.

Paulus 7 to sab.

Si in iudicio dotis iudex ignorantia iuris lapsus condemnaverit maritum in solidum, neratius sabinus doli exceptione eum uti oportere aiunt eaque tutum fore.

If in a dowry action the judge, having slipped through ignorance of law, has condemned the husband in solidum, neratius and sabinus say that he ought to use the exception of fraud, and that by it he will be secure.

Dig. 24.3.18pr.

Digest 24.3.18 pr.

Pomponius 16 ad sab.

Pomponius Book 16 on Sabinus.

Etiam filios mulieris, qui patri heredes exstiterunt, in id quod facere possunt condemnandos labeo ait.

Labeo says that even the sons of the woman, who have become heirs to their father, are to be condemned to the extent that they are able to perform.

Dig. 24.3.18.1

Digest 24.3.18.1

Pomponius 16 ad sab.

Pomponius 16 On Sabinus.

Licet in dotalibus rebus non solum dolum, sed et culpam maritus praestet, cum tamen quaeritur in iudicio de dote an facere possit, dolus dumtaxat comprehenditur, quia in rerum ipsius administratione non erat ab eo culpa exigenda. quamquam eum dumtaxat dolum ei nocere putem, si facere non possit, quem propter uxorem adhibuit, ne ei solidum solveret, non propter quemlibet alium. ofilius autem aiebat, si dolo mariti res dotalis interisset et alioquin solvendo non esset, quamvis nihil dolo fecisset, quo minus solvendo esset, perinde tamen eum damnandum eius rei dotalis nomine in qua dolum fecisset, atque si dolo eius factum esset, quo minus facere possit.

Although in dotal matters the husband is liable not only for fraud but also for fault, nevertheless when in a suit about the dowry the question is whether he can perform, only fraud is encompassed, because in the administration of the very things fault was not to be demanded of him. Yet I think that only such fraud should harm him, if he cannot perform, as he employed on account of his wife, so as not to pay her the whole, and not on account of anyone else. Ofilius, however, said that if through the husband’s fraud a dotal thing had perished and otherwise he would not be solvent, although he had done nothing by fraud to make himself less solvent, nevertheless he must be condemned under the head of that dotal thing in which he committed fraud, just as if by his fraud it had been brought about that he could not perform.

ceterum si circa interitum rei dotalis dolus malus et culpa mariti absit, actiones solas, quas eo nomine quasi maritus habet, praestandas mulieri, veluti furti vel damni iniuriae.

But if, concerning the destruction of a dowry item, malicious fraud and fault of the husband are absent, the only actions which under that head, in his capacity as husband, he has are to be furnished to the woman, such as for theft or for wrongful damage.

Dig. 24.3.19

Digest 24.3.19

Ulpianus 36 ad sab.

Ulpian, 36 on Sabinus.

Si mulier diverterit et iudicio de dote contestato reversa fuerit in matrimonium, redintegrato matrimonio exspirat iudicium et omnia in statu pristino manent.

If a woman has separated, and, the lawsuit concerning the dowry having been formally joined, she has returned into marriage, once the marriage is reintegrated the action expires and all things remain in their pristine state.

Dig. 24.3.20

Digest 24.3.20

Paulus 7 ad sab.

Paulus 7 to Sab.

Quamvis mulier non in hoc accipiat constante matrimonio dotem, ut aes alienum solvat aut praedia idonea emat, sed ut liberis ex alio viro egentibus aut fratribus aut parentibus consuleret vel ut eos ex hostibus redimeret, quia iusta et honesta causa est, non videtur male accipere et ideo recte ei solvitur: idque et in filia familias observatur.

Although a woman does not, while the marriage subsists, receive a dowry for this purpose—that she pay debt or buy suitable estates—yet that she may provide for children in need by another man, or for her brothers or parents, or that she may redeem them from enemies, since the cause is just and honorable, she does not seem to receive it improperly, and therefore it is rightly paid to her: and this is observed also in the case of a daughter under paternal power.

Dig. 24.3.21

Digest 24.3.21

Ulpianus 3 disp.

Ulpian, Disputations, book 3.

Sed et si ideo maritus ex dote expendit, ut a latronibus redimeret necessarias mulieri personas vel ut mulier vinculis vindicet de necessariis suis aliquem, reputatur ei id quod expensum est sive pars dotis sit, pro ea parte, sive tota dos sit, actio dotis evanescit. et multo magis idem dicendum est, si socer agat de dote, debere rationem haberi eius quod in ipsum impensum est, sive ipse maritus hoc fecit sive filiae ut faciat dedit: sed et si non pater experiretur, sed post mortem eius filia sola de dote ageret, idem erit dicendum: cum enim doli exceptio insit de dote actioni ut in ceteris bonae fidei iudiciis, potest dici, ut et celso videtur, inesse hunc sumptum actioni de dote, maxime si ex voluntate filiae factus sit.

But also, if for this reason the husband expends out of the dowry, namely, to ransom from brigands persons necessary to the woman, or that the woman may vindicate from chains some one of her close kin, what has been expended is reckoned to his account; and whether it be a part of the dowry, as to that part, or the whole dowry, the action for dowry lapses. And much more must the same be said, if the father‑in‑law sues concerning the dowry, that account should be taken of what was expended upon him, whether the husband himself did this, or gave (money) to his daughter that she might do it; and even if the father did not bring suit, but after his death the daughter alone should sue concerning the dowry, the same must be said: for since the exceptio doli (exception of fraud) is inherent in the action for dowry, as in other good‑faith judgments, it can be said—as also seems to Celsus—that this expense is included within the action for dowry, especially if it was incurred with the daughter’s will.

Dig. 24.3.22pr.

Digest 24.3.22 pr.

Ulpianus 33 ad ed.

Ulpian 33 on the Edict.

Si, cum dotem daret pater vel extraneus pro muliere, in unum casum pepigit, vel in divortium vel in mortem, dicendum est eum in casum, in quem non pepigit, esse mulieri actionem.

If, when the father or an outsider was giving a dowry on behalf of the woman, he made a pact for a single contingency, either for divorce or for death, it must be said that, for the contingency for which he did not make a pact, the woman has an action against him.

Dig. 24.3.22.1

Digest 24.3.22.1

Ulpianus 33 ad ed.

Ulpian, 33 on the Edict.

Si post solutum matrimonium filia familias citra patris voluntatem exactam communem dotem consumat, patri et viva ea et mortua actio superest, ut dos ipsi solvatur. quod ita verum est, si perditurae solvatur: ceterum si non perditurae et ex iustis causis soluta sit, non supererit actio. sed mortuo patre nec etiam heredes agent nec mulier.

If, after the marriage has been dissolved, a daughter in her father's power, without the father’s will, consumes the common dowry that has been recovered, an action remains to the father, both while she is alive and when she is dead, that the dowry be paid to him. Which is true if it would be paid to one who is going to lose it; but if it is not to one who is going to lose it and it has been paid out for just causes, no action will remain. But, with the father dead, neither will the heirs sue nor the woman.

Dig. 24.3.22.2

Digest 24.3.22.2

Ulpianus 33 ad ed.

Ulpian 33 on the Edict.

Si mulier soluto matrimonio egentem reum dotis per novationem decepta accipiat, nihilo minus actio dotis ei manebit.

If, the marriage having been dissolved, a woman, deceived, accepts through novation an indigent debtor of the dowry, nonetheless the action for dowry will remain to her.

Dig. 24.3.22.3

Digest 24.3.22.3

Ulpianus 33 ad ed.

Ulpian Book 33 on the Edict.

Si pater filia absente de dote egerit, etsi omissa sit de rato satisdatio, filiae denegari debet actio, sive patri heres exstiterit, sive in legato tantum acceperit, quantum dotis satis esset. et ita iulianus pluribus locis scribit compensandum ei in dotem quod a patre datur lucroque eius cedit, si tantum ab eo consecuta sit, quantum ei dotis nomine debeatur a marito qui patri solvit.

If the father, with the daughter absent, has proceeded concerning the dowry, even if the de rato surety has been omitted, the action ought to be denied to the daughter, whether she has become heir to her father, or has received in a legacy only as much as would suffice for the dowry. And thus Julian writes in several places that there must be set off into the dowry what is given by the father and accrues to her profit, if she has obtained from him as much as is owed to her under the name of dowry from the husband who paid the father.

Dig. 24.3.22.4

Digest 24.3.22.4

Ulpianus 33 ad ed.

Ulpian 33 on the Edict.

Si patri propter condemnationem romae, ubi dos petatur, esse non liceat, filiae satis dotis fieri oportet, ita tamen, ut caveat ratam rem patrem habiturum.

If, because of a condemnation, it is not permitted for the father to be at Rome, where the dowry is being sought, the daughter ought to be furnished with surety for the dowry; provided, however, that she give a bond that her father will hold the matter ratified.

Dig. 24.3.22.5

Digest 24.3.22.5

Ulpianus 33 ad ed.

Ulpian, 33 on the Edict.

Eo autem tempore consentire filiam patri oportet, quo lis contestatur. secundum haec si filia dicat se patri consentire et ante litis contestationem mutaverit voluntatem vel etiam emancipata sit, frustra pater aget.

It is at that time that the daughter must consent to the father, at which the suit is contested. Accordingly, if the daughter says that she consents to her father and, before the contestation of the suit, has changed her intention or has even been emancipated, the father will bring an action in vain.

Dig. 24.3.22.6

Digest 24.3.22.6

Ulpianus 33 ad ed.

Ulpian 33 on the Edict.

Nec non illud quoque probamus, quod labeo probat, nonnumquam patri denegandam actionem, si tam turpis persona patris sit, ut verendum sit, ne acceptam dotem consumat: ideoque officium iudicis interponendum est, quatenus et filiae et patri competenter consuletur. sed si latitet filia, ne tali patri consentire cogatur, puto dari quidem patri actionem, sed causa cognita. quid enim, si filia verecunde per absentiam patri contradicat?

We also approve this as well, which Labeo approves: that sometimes the action is to be denied to the father, if the persona of the father be so base that it is to be feared lest he consume the dowry received; and therefore the office of the judge is to be interposed, to the extent that both the daughter and the father be competently provided for. But if the daughter lies hidden, lest she be compelled to consent to such a father, I think the action should indeed be given to the father, but with the case inquired into. For what if the daughter, modestly, by her absence, contradicts her father?

cur non dicamus patri non esse dandam actionem? quod si is pater sit, cui omnimodo consentire filiam decet, hoc est vitae probatae, filia levis mulier vel admodum iuvenis vel nimia circa maritum non merentem, dicendum est patri potius adquiescere praetorem oportere dareque ei actionem.

why should we not say that an action ought not to be given to the father? but if he is such a father as it in every way befits the daughter to consent to—that is, of approved life—while the daughter is a frivolous woman or very young, or not meriting excessive say concerning her husband, it must be said that the praetor ought rather to acquiesce to the father and give to him the action.

Dig. 24.3.22.7

Digest 24.3.22.7

Ulpianus 33 ad ed.

Ulpian 33 on the Edict.

Si maritus vel uxor constante matrimonio furere coeperint, quid faciendum sit, tractamus. et illud quidem dubio procul observatur eam personam, quae furore detenta est, quia sensum non habet, nuntium mittere non posse. an autem illa repudianda est, considerandum est.

If a husband or a wife, while the marriage is subsisting, should begin to be insane, we treat what must be done. And this indeed is observed beyond doubt: that the person who is held by madness, because they do not have sense, cannot send the notice of divorce. Whether, however, that person is to be repudiated must be considered.

et si quidem intervallum furor habeat vel perpetuus quidem morbus est, tamen ferendus his qui circa eam sunt, tunc nullo modo oportet dirimi matrimonium, sciente ea persona, quae, cum compos mentis esset, ita furenti quemadmodum diximus nuntium miserit, culpa sua nuptias esse diremptas: quid enim tam humanum est, quam ut fortuitis casibus mulieris maritum vel uxorem viri participem esse? sin autem tantus furor est, ita ferox, ita perniciosus, ut sanitatis nulla spes supersit, circa ministros terribilis, et forsitan altera persona vel propter saevitiam furoris vel, quia liberos non habet, procreandae subolis cupidine tenta est: licentia erit compoti mentis personae furenti nuntium mittere, ut nullius culpa videatur esse matrimonium dissolutum neque in damnum alterutra pars incidat.

and if indeed the fury has an interval, or the disease is in fact perpetual yet bearable for those around her, then in no way ought the marriage to be severed, the person who, when he was of sound mind, sent notice to one thus raving, as we have said, knowing that the nuptials are broken off by his own fault: for what is so humane as that the husband be a participant in the woman’s fortuitous misfortunes, or the wife in the man’s? but if, however, the fury is so great, so ferocious, so pernicious, that no hope of sanity remains, a terror to attendants, and perhaps the other person is tempted either on account of the savagery of the fury or, because he has no children, by a desire for begetting offspring: it will be permitted for the person of sound mind to send notice to the one raving, so that the marriage may seem to be dissolved by no one’s fault and that neither party fall into detriment.

Dig. 24.3.22.8

Digest 24.3.22.8

Ulpianus 33 ad ed.

Ulpian 33 on the Edict.

Sin autem in saevissimo furore muliere constituta maritus dirimere quidem matrimonium calliditate non vult, spernit autem infelicitatem uxoris et non ad eam flectitur nullamque ei competentem curam inferre manifestissimus est, sed abutitur dotem: tunc licentiam habeat vel curator furiosae vel cognati adire iudicem competentem, quatenus necessitas imponatur marito omnem talem mulieris sustentationem sufferre et alimenta praestare et medicinae eius succurrere et nihil praetermittere eorum, quae maritum uxori adferre decet secundum dotis quantitatem. sin vero dotem ita dissipaturus ita manifestus est, ut non hominem frugi oportet, tunc dotem sequestrari, quatenus ex ea mulier competens habeat solacium una cum sua familia, pactis videlicet dotalibus, quae inter eos ab initio nuptiarum inita fuerint, in suo statu durantibus et alterius exspectantibus sanitatem et mortis eventum.

But if, however, with the woman placed in most savage frenzy, the husband indeed does not wish by craft to dissolve the marriage, but scorns the unhappiness of his wife and is not bent toward her, and is most manifest in bringing to her no fitting care, but abuses the dowry: then let either the curator of the madwoman or the kinsmen have license to approach the competent judge, to the end that necessity be imposed upon the husband to bear all such sustentation of the woman, to furnish aliments, to succor her medicine, and to omit nothing of those things which it befits a husband to bring to a wife according to the quantity of the dowry. But if indeed he is so manifestly about to dissipate the dowry as is not proper for a frugal man, then let the dowry be sequestered, so that from it the woman may have fitting solace together with her household, the dotal pacts, namely, which between them from the beginning of the nuptials shall have been entered into, remaining in their own state and awaiting the health and the event of death of the other.

Dig. 24.3.22.9

Digest 24.3.22.9

Ulpianus 33 ad ed.

Ulpian 33 on the edict.

Item pater furiosae utiliter intendere sibi filiaeve suae reddi dotem potest: quamvis enim furiosa nuntium mittere non possit, patrem tamen eius posse certum est.

Likewise, the father of a madwoman can effectively bring an action that the dowry be returned to himself or to his daughter: although indeed the madwoman cannot send notice, yet it is certain that her father can.

Dig. 24.3.22.10

Digest 24.3.22.10

Ulpianus 33 ad ed.

Ulpian 33 on the Edict.

Si soluto matrimonio pater furiosus sit, curator eius voluntate filiae dotem petere poterit: aut si curatoris copia non sit, agere filiae permittendum erit caverique oportebit de rato.

If, the marriage having been dissolved, the father is deranged, he will be able, with the consent of his curator, to claim the daughter’s dowry; or, if there is no curator available, it must be permitted to the daughter to bring the action, and security must be taken for ratification.

Dig. 24.3.22.11

Digest 24.3.22.11

Ulpianus 33 ad ed.

Ulpian 33 on the Edict.

Idem decernendum est et si ab hostibus captus sit pater, puellae dandam actionem de dote repetenda.

The same is to be decreed even if the father has been captured by the enemy: an action for recovering the dowry is to be given to the girl.

Dig. 24.3.22.12

Digest 24.3.22.12

Ulpianus 33 ad ed.

Ulpian 33 on the Edict.

Transgrediamur nunc ad hunc articulum, ut quaeramus, adversus quos competit de dote actio. et adversus ipsum maritum competere palam est, sive ipsi dos data sit sive alii ex voluntate mariti vel subiecto iuri eius vel non subiecto. sed si filius familias sit maritus et dos socero data sit, adversus socerum agetur.

Let us now pass over to this article, to inquire against whom the action de dote lies. And it is plain that it lies against the husband himself, whether the dowry has been given to him or to another by the husband’s will, whether subject to his legal power or not subject. But if the husband is a filius familias and the dowry has been given to the father-in-law, action will be brought against the father-in-law.

plane si filio data sit, si quidem iussu soceri, adhuc absolute socer tenebitur: quod si filio data sit non iussu patris, sabinus et cassius responderunt nihilo minus cum patre agi oportere: videri enim ad eum pervenisse dotem, penes quem est peculium: sufficit autem ad id damnandum quod est in peculio vel si quid in rem patris versum est. sin autem socero dotem dederit, cum marito non poterit experiri, nisi patri heres exstiterit.

clearly, if it has been given to the son, if indeed by order of the father-in-law, the father-in-law will still be absolutely liable: but if it has been given to the son not by order of the father, Sabinus and Cassius answered that nonetheless one ought to proceed against the father; for the dowry is seen to have come to him in whose hands the peculium is; and for his condemnation it suffices what is in the peculium, or if anything has been converted to the father’s account. but if she has given the dowry to the father-in-law, she will not be able to proceed against the husband, unless he has become heir to his father.

Dig. 24.3.22.13

Digest 24.3.22.13

Ulpianus 33 ad ed.

Ulpian 33 on the Edict.

Si mulier in condicione mariti erraverit putaveritque esse liberum, cum servus esset, concedi oportet quasi privilegium in bonis viri mulieri, videlicet ut, si sint et alii creditores, haec praeferatur circa de peculio actionem et, si forte domino aliquid debeat servus, non praeferatur mulier nisi in his tantum rebus, quae vel in dote datae sunt vel ex dote comparatae, quasi et hae dotales sint.

If a woman has erred about her husband’s status and thought him to be free when he was a slave, it ought to be granted, as it were, a privilege to the woman in the husband’s goods, namely that, if there are other creditors as well, she is preferred with respect to the action de peculio; and if perchance the slave owes anything to his master, the woman is not preferred except only in those things which either were given in dowry or were purchased from the dowry, as if these too were dotal.

Dig. 24.3.23

Digest 24.3.23

Paulus 36 ad ed.

Paulus 36 on the Edict.

Et si quid in eam dotem impensum est nec a muliere reddetur, per doli mali exceptionem servabitur.

And if anything has been expended upon that dowry and will not be returned by the woman, it will be preserved by the exception of fraud.

Dig. 24.3.24pr.

Digest 24.3.24, preface.

Ulpianus 33 ad ed.

Ulpian 33 on the Edict.

Si constante matrimonio propter inopiam mariti mulier agere volet, unde exactionem dotis initium accipere ponamus? et constat exinde dotis exactionem competere, ex quo evidentissime apparuerit mariti facultates ad dotis exactionem non sufficere.

If, with the marriage remaining in being, the woman should wish to bring an action on account of the husband’s indigence, whence shall we set the beginning of the exaction of the dowry? And it is settled that the exaction of the dowry is competent from the point at which it has most evidently appeared that the husband’s means are not sufficient for the exaction of the dowry.

Dig. 24.3.24.1

Digest 24.3.24.1

Ulpianus 33 ad ed.

Ulpian, 33 on the edict.

Si exheredato marito mulier agat, magis est, ut ex die aditae patris hereditatis incipiat ei dotis exactio.

If, the husband having been disinherited, the woman brings suit, the better view is that from the day the father's inheritance is entered upon the exaction of the dowry begins for her.

Dig. 24.3.24.2

Digest 24.3.24.2

Ulpianus 33 ad ed.

Ulpian, 33 on the Edict.

Quotiens mulieri satisdandum est de solutione dotis post certum tempus, si maritus satisdare non possit, tunc deducto commodo temporis condemnatio residui repraesentatur: sed si, cum maritus satisdare posset, nollet, in solidum eum condemnandum mela ait non habita ratione commodi temporis. iudicis igitur officio convenit, ut aut satisdatione interposita absolvat maritum aut habita ratione compensationis eum condemnet, quod quidem hodie magis usurpatur: nec ferenda est mulier, si dicat magis se velle dilationem pati quam in repraesentatione deductionem.

Whenever a woman must be given security for the payment of the dowry after a fixed time, if the husband cannot furnish security, then, with the advantage of time deducted, the condemnation for the remainder is anticipated; but if, when the husband could have furnished security, he would not, he is to be condemned in solidum, Mela says, without regard to the advantage of time. Accordingly, it befits the judge’s office either to absolve the husband upon the interposition of security or, account being taken of compensation, to condemn him—which indeed is more in use today; nor is the woman to be tolerated if she says that she prefers to endure a delay rather than a deduction upon anticipation.

Dig. 24.3.24.3

Digest 24.3.24.3

Ulpianus 33 ad ed.

Ulpian 33 on the Edict.

Sive autem mariti sive uxoris periculo dos fuit, nihilo minus legitimo tempore debet solvere maritus.

Whether the dowry was at the peril of the husband or of the wife, nonetheless the husband ought to pay at the legitimate time.

Dig. 24.3.24.4

Digest 24.3.24.4

Ulpianus 33 ad ed.

Ulpian 33 on the edict.

Si vir voluntate mulieris servos dotales manumiserit, si quidem donare ei mulier voluit, nec de libertatis causa impositis ei praestandis tenebitur: quod si negotium inter eos gestum est, utique tenebitur, ut officio iudicis caveat restituturum se mulieri, quidquid ad eum ex bonis liberti vel ex obligatione pervenisset.

If a husband, with the woman’s will, has manumitted the dotal slaves, then, if indeed the woman wished to donate to him, he will not be held to perform the things imposed on account of the cause of liberty; but if a transaction was conducted between them, he will assuredly be bound, so that, by the judge’s office, he shall give security that he will restore to the woman whatever had come to him from the goods of the freedman or from an obligation.

Dig. 24.3.24.5

Digest 24.3.24.5

Ulpianus 33 ad ed.

Ulpian 33 on the Edict.

Si maritus saevus in servos dotales fuit, videndum, an de hoc possit conveniri. et si quidem tantum in servos uxoris saevus fuit, constat eum teneri hoc nomine: si vero et in suos est natura talis, adhuc dicendum est immoderatam eius saevitiam hoc iudicio coercendam: quamvis enim diligentiam uxor eam demum ab eo exigat, quam rebus suis exiget, nec plus possit, attamen saevitia, quae in propriis culpanda est, in alienis coercenda est, hoc est in dotalibus.

If a husband has been savage toward the dotal slaves, it must be considered whether he can be convened on this account. And if indeed he was savage only toward the wife’s slaves, it is established that he is held on this ground; but if by nature he is such even toward his own, still it must be said that his immoderate savagery is to be coerced by this judgment. For although the wife demands from him only that diligence which he will exact for his own property, nor can she demand more, nevertheless savagery, which is to be blamed in regard to one’s own, is to be restrained in regard to another’s—that is, in dotal property.

Dig. 24.3.24.6

Digest 24.3.24.6

Ulpianus 33 ad ed.

Ulpian, 33 on the Edict.

Si uxor viri rem commodaverit eaque perierit, videndum, an compensationem hoc nomine pati possit. et puto, si quidem prohibuit eam maritus commodare, statim deductionem fieri: si vero non prohibuit eam commodare arbitrio iudicis modicum tempus ei indulgeri cautionem praebenti.

If a wife has lent a thing of her husband and it has perished, it must be seen whether she can suffer set-off under this head. And I think that, if indeed her husband prohibited her from lending, a deduction is made immediately; but if he did not prohibit her from lending, at the arbitrament of the judge a moderate time is to be indulged to her upon her furnishing caution (security).

Dig. 24.3.24.7

Digest 24.3.24.7

Ulpianus 33 ad ed.

Ulpian 33 on the Edict.

Si bona mulieris pro parte sint publicata, superest mulieri reliquae partis dotis exactio: plus puto: et si post litem contestatam publicata sit pro parte dos, sufficiet arbitrium iudicis ad partis condemnationem faciendam. quod si tota dos publicata sit, exspirabit iudicium.

If the woman’s goods have been confiscated in part, the recovery of the remaining part of the dowry remains to the woman: I think further: even if, after issue has been joined, the dowry has been confiscated in part, the judge’s arbitrament will suffice to make a condemnation for the part. But if the whole dowry has been confiscated, the action will expire.

Dig. 24.3.25pr.

Digest 24.3.25, beginning.

Paulus 36 ad ed.

Paulus 36 on the Edict.

Si filio familias dos data sit iniussu patris, de peculio quidem agetur: sed sive propter impensas a filio familias factas sive propter res donatas a filio vel amotas ab uxore res peculiares hoc ipso, quod habet actionem pater ex persona filii, maius peculium fit, et sic totum est praestandum mulieri quod est in peculio, quia adhuc sit quod uxori debeatur.

If a dowry has been given to a filius familias without the father’s order, an action de peculio will indeed be brought: but whether on account of expenses incurred by the filius familias, or on account of things donated by the son, or of things removed by the wife, the peculium assets, by this very fact that the father has an action arising from the person of the son, become greater; and thus the whole of what is in the peculium is to be furnished to the woman, because there still remains what is owed to the wife.

Dig. 24.3.25.1

Digest 24.3.25.1

Paulus 36 ad ed.

Paulus 36 on the Edict.

Maritum in reddenda dote de dolo malo et culpa cavere oportet. quod si dolo malo fecerit, quo minus restituere possit, damnandum eum, quanti mulier in litem iuraverit, quia invitis nobis res nostras alius retinere non debeat.

A husband, in returning the dowry, ought to give security with respect to dolus malus and culpa. But if he has acted with dolus malus, whereby he is less able to restore it, he must be condemned in whatever amount the woman shall have sworn in litem, because, we being unwilling, another ought not to retain our property.

Dig. 24.3.25.2

Digest 24.3.25.2

Paulus 36 ad ed.

Paulus 36 on the Edict.

Si post divortium res dotales deteriores factae sint et vir in reddenda dote moram fecerit, omnimodo detrimentum ipse praestabit.

If after the divorce the dotal property has become worse, and the husband has caused delay in returning the dowry, he himself shall in all events make good the loss.

Dig. 24.3.25.3

Digest 24.3.25.3

Paulus 36 ad ed.

Paul 36 on the Edict.

Si qui dotalium servorum in fuga erunt, cavere debebit maritus se eos viri boni arbitratu persecuturum et restituturum.

If any of the dotal slaves are in flight, the husband ought to give security that he will pursue and restore them at the arbitrament of a good man.

Dig. 24.3.25.4

Digest 24.3.25.4

Paulus 36 ad ed.

Paulus 36 on the Edict.

Si vir in quinquennio locaverit fundum et post primum forte annum divortium intervenerit, sabinus ait non alias fundum mulieri reddi oportere, quam si caverit, si quid praeter unius anni locationem maritus damnatus sit, id se praestatum iri: sed et mulieri cavendum, quidquid praeter primum annum ex locatione vir consecutus fuerit, se ei restituturum.

If a man has leased an estate for five years, and, say, after the first year a divorce has intervened, Sabinus says that the estate ought not to be returned to the woman otherwise than if she has given security that, if the husband has been condemned for anything beyond the leasing of one year, it will be made good by her; but the woman too must give security that whatever beyond the first year the man has obtained from the lease, she will restore to him.

Dig. 24.3.26

Digest 24.3.26

Paulus 37 ad ed.

Paulus 37 on the edict.

Semel mora facta si servum dotalem postea offerente marito mulier accipere noluerit et ita is decesserit, non debebit pretium eius maritus vel heres eius, ne damnum sentiat, quod postea offerente eo mulier accipere noluit.

Once default has occurred, if, the husband later offering the dotal slave, the wife refuses to accept, and so he dies, the husband or his heir will not owe his price, lest he incur loss, because afterwards, with him offering, the woman refused to accept.

Dig. 24.3.27

Digest 24.3.27

Gaius 11 ad ed. provinc.

Gaius 11 on the provincial edict

Si post divortium mortua muliere heres eius cum viro parenteve eius agat, eadem videntur de restituenda dote intervenire, quae ipsa muliere agente observari solent.

If, after a divorce, the woman being dead, her heir brings suit against the husband or his parent, the same things seem to come into play concerning the restitution of the dowry as are wont to be observed when the woman herself is the plaintiff.

Dig. 24.3.28

Digest 24.3.28

Ulpianus 1 inst.

Ulpian 1 inst.

Facere posse maritus etiam id videtur, quod a muliere consequi potest: scilicet si iam ei aliquid absit, quod pro muliere aliquid expendit vel mandato eius praestitit: ceterum si nondum ei abest, ut puta sub condicione est obligatus, nondum videtur facere posse.

The husband too is considered able to do even that which he can obtain from the woman: namely, if already something is lacking to him, because he expended something on behalf of the woman or performed it at her mandate; but if nothing is yet lacking to him—for instance, he is obligated under a condition—he is not yet considered able to do it.

Dig. 24.3.29pr.

Digest 24.3.29pr.

Ulpianus 3 disp.

Ulpian Disputations 3

Quotiens pater dotem dat et stipulatur, ita demum in suam personam de dote actionem transfert, si ex continenti stipuletur: ceterum si interposito tempore stipulari velit, non nisi consentiente filia poterit, quamvis in potestate sit, quia deteriorem condicionem in dote filiae facere non potest nisi consentiat. plane si ante nuptias dotem dederit, poterit ex intervallo, ante nuptias tamen, et citra voluntatem quoque filiae stipulari.

Whenever a father gives a dowry and stipulates, only then does he transfer the action concerning the dowry to his own person, if he stipulates immediately (ex continenti): but if he wishes to stipulate with an interval of time interposed, he will not be able to do so except with the daughter’s consent, although she is in his power, because he cannot make the daughter’s condition in respect of the dowry worse unless she consents. Clearly, if he has given the dowry before the nuptials, he can, after an interval—yet before the nuptials nonetheless—stipulate even without the daughter’s will.

Dig. 24.3.29.1

Digest 24.3.29.1

Ulpianus 3 disp.

Ulpian 3 Disputations.

Si quis pro muliere dotem dederit conveneritque, ut quoquo modo dirempto matrimonio ipsi solveretur, postea maritus uxori dotem solverit, rectissime dicetur exactionem nihilo minus ei qui dedit contra maritum competere.

If someone has given a dowry on behalf of a woman, and it has been agreed that, however the marriage might be dissolved, it should be paid back to him, and afterwards the husband has paid the dowry to the wife, it will be most correct to say that the exaction nonetheless lies to the one who gave it against the husband.

Dig. 24.3.30pr.

Digest 24.3.30, beginning.

Iulianus 16 Dig.

Julian 16 Digest

Nupta non impeditur, quo minus cum priore marito de dote experiatur.

A married woman is not impeded from bringing suit against her former husband concerning the dowry.

Dig. 24.3.30.1

Digest 24.3.30.1

Iulianus 16 Dig.

Julian 16 Dig.

Quotiens culpa viri accidit, ne dos a socero aut a quolibet alio, qui mulieris nomine promiserat, exigeretur: si aut in matrimonio filia decesserit aut mater familias facta eum qui dotem repromiserat heredem instituerit, satis constat nihil amplius virum praestare debere, quam ut eos obligatione liberet.

Whenever the husband’s fault has occurred, lest the dowry be exacted from the father‑in‑law or from anyone else who had promised it in the woman’s name: if either the daughter has died in matrimony, or, having become materfamilias, has appointed as heir the one who had promised the dowry, it is well established that the husband ought to perform nothing further than to free them from the obligation.

Dig. 24.3.31pr.

Digest 24.3.31, beginning.

Iulianus 18 Dig.

Julian 18 Dig.

Si marito publico iudicio damnato pars aliqua bonorum eius publicetur, fiscus creditoribus eius satisfacere necesse habet: inter quos uxor quoque est.

If, upon a husband’s condemnation by public judgment, some part of his goods is confiscated to the State, the fisc is bound to satisfy his creditors: among whom the wife also is.

Dig. 24.3.31.1

Digest 24.3.31.1

Iulianus 18 Dig.

Julian 18 Digest.

Si pater, cum ducenta filiae suae nomine dotis gratia promisisset, pactus fuerit, ne amplius quam centum a se peterentur, et soluto matrimonio egerit, centum, de quibus convenit ne peterentur, nec intelleguntur dotis esse. quod si mortuo patre cum herede eius maritus agere coeperit, ista quoque pecunia in dote erit.

If a father, when he had promised two hundred in his daughter’s name for the sake of a dowry, has made a pact that not more than one hundred be demanded from himself, and, the marriage having been dissolved, the husband brings an action, the one hundred about which it was agreed that they not be demanded are not understood to belong to the dowry. But if, the father having died, the husband begins to sue his heir, this money also will be in the dowry.

Dig. 24.3.31.2

Digest 24.3.31.2

Iulianus 18 Dig.

Julian 18 Digest.

Si voluntate filiae procurator a patre datus litem de dote contestatus fuerit et re secundum eum iudicata pater decesserit, iudicati actionem filiae potius quam heredibus patris dari oportebit.

If, with the daughter’s will, a procurator appointed by the father has contested a suit concerning the dowry, and, the matter having been adjudged in his favor, the father has died, the action on the judgment ought to be given to the daughter rather than to the father’s heirs.

Dig. 24.3.31.3

Digest 24.3.31.3

Iulianus 18 Dig.

Julianus 18 Digest.

Cum patri dos data esset et ei filius ex aliqua parte heres sub condicione institutus fuerit et pendente condicione coheredes eius dotem pro sua portione mulieri solverint: hoc minus filius ex dote praestare debebit, quoniam nullam actionem eius pecuniae reciperandae gratia adversus coheredes habet.

When a dowry has been given to the father, and the son has been instituted heir to some part under a condition, and, while the condition is pending, his coheirs have paid the dowry to the woman according to their share: by so much less shall the son be bound to render out of the dowry, since he has no action against the coheirs for the sake of recovering that money.

Dig. 24.3.31.4

Digest 24.3.31.4

Iulianus 18 Dig.

Julian 18 Digest.

Si fundum dotalem recepisset mulier non habita ratione fructuum pro portione anni, quo nupta non fuisset, nihilo minus de dote agere potest, quia minorem dotem recepisset: hoc enim ad dotis augmentum pertinet, quemadmodum si partum ancillarum non recepisset, aut legata vel hereditates, quae post divortium per servos dotales adquisitae marito fuissent.

If a woman had received the dotal estate with no account taken of the fruits for the portion of the year during which she had not been married, nonetheless she can sue concerning the dowry, because she would have received a lesser dowry: for this pertains to the augmentation of the dowry, just as if she had not received the offspring of the maidservants, or the legacies or inheritances which, after the divorce, had been acquired for the husband through dotal slaves.

Dig. 24.3.32

Digest 24.3.32

Iulianus 2 ad urs. ferocem.

Julian 2 to Urseius Ferox.

Si prior maritus posteriori dotis nomine tamquam debitor mulieris dotem promiserit, non plus quam id quod facere possit dotis futurum esse.

If the prior husband has promised to the later one, under the name of a dowry, as though the woman’s debtor, a dowry, there will be of the dowry no more than that which he is able to perform.

Dig. 24.3.33

Digest 24.3.33

Africanus 7 quaest.

Africanus book 7 of Questions.

Quae dotis nomine certam pecuniam promiserat, quosdam adhibuerat, qui stipularentur partem dotis distracto matrimonio sibi solvi: ea nulla data dote obierat eodem marito suo herede relicto: is damnosam hereditatem eius adierat. nihilo minus stipulatoribus tenebitur, quoniam adeundo hereditatem debitricis intellegeretur secum pensasse: nec ad rem pertinere, quod solvendo non esset hereditas, quando ceteris etiam creditoribus teneatur.

She who had promised a fixed sum under the name of a dowry had brought in certain persons to stipulate that, the marriage being dissolved, a part of the dowry be paid to herself. She died with no dowry having been given, the same husband being left as her heir; he entered upon her burdensome inheritance. Nonetheless he will be held liable to the stipulators, since by entering upon the debtor’s inheritance he is understood to have reckoned the matter with himself; nor is it relevant that the inheritance was not solvent, since he is held even to the other creditors as well.

Dig. 24.3.34

Digest 24.3.34

Africanus 8 quaest.

Africanus 8 questions.

Titia divortium a seio fecit: hanc titius in sua potestate esse dicit et dotem sibi reddi postulat: ipsa se matrem familias dicit et de dote agere vult: quaesitum est, quae partes iudicis sint. respondi patri, nisi probet filiam non solum in sua potestate esse, sed etiam consentire sibi, denegandam actionem, sicuti denegaretur, etiamsi constaret eam in potestate esse.

Titia made a divorce from Seius: Titius says that she is in his power and demands that the dowry be returned to himself: she says she is a materfamilias and wishes to bring an action concerning the dowry: it was asked what the judge’s parts are. I answered that, to the father, unless he proves that his daughter is not only in his power, but also consents to him, the action must be denied, just as it would be denied even if it were established that she is in his power.

Dig. 24.3.35

Digest 24.3.35

Marcianus 10 inst.

Marcianus 10 Institutes.

Liberta, quae voluntate patroni discessit, de dote cum eo agere potest quam ei dedit.

A freedwoman, who departed with the consent of her patron, can bring an action against him concerning the dowry which she gave to him.

Dig. 24.3.36

Digest 24.3.36

Paulus 2 de adult.

Paulus 2 on adultery.

Si maritus minus facere potest et dos publicata sit, in id quod facere potest fisco maritus condemnandus est, ne in perniciem mariti mulier punita sit.

If the husband can do less and the dowry has been confiscated, the husband is to be condemned to the fisc for as much as he can do, lest the woman, having been punished, be to the husband’s ruin.

Dig. 24.3.37

Digest 24.3.37

Ulpianus 2 resp.

Ulpian 2 Responses.

Dotem voluntate filiae videri patrem recepisse, cum causas contradicendi ei filia non haberet, maxime cum ab eo postea ampliore summa dotata sit.

They deem the father to have received the dowry by the daughter’s will, since the daughter had no causes for contradicting him, especially since afterwards she was endowed by him with a greater sum.

Dig. 24.3.38

Digest 24.3.38

Marcellus l.S. resp.

Marcellus in Book 6 of the Responses answers.

Lucius titius cum esset filius familias, voluntate patris uxorem maeviam duxit et dotem pater accepit: maevia titio repudium misit: postea pater repudiati absente filio sponsalia cum ea de nomine filii sui fecit: maevia deinde repudium sponsalibus misit atque ita alii nupsit. quaero, si maevia aget cum lucio titio quondam marito et a patre herede relicto de dote et probetur culpa mulieris matrimonium dissolutum, an possit maritus propter culpam mulieris dotem retinere. Marcellus respondit, etiamsi ut heres institutus a patre titius conveniretur, tamen, si sponsalibus non consensisset, culpam mulieris multandam esse.

Lucius titius, when he was a son under paternal power, with his father’s will took Maevia as wife and the father received the dowry: maevia sent repudiation to titius: afterwards the father of the repudiated man, with the son absent, made betrothal with her in the name of his own son: maevia then sent repudiation of the betrothal and thus married another. I ask, if maevia brings suit with lucius titius, her former husband, and with the father left as heir, concerning the dowry, and it is proved that the marriage was dissolved by the woman’s fault, whether the husband can retain the dowry on account of the woman’s fault. Marcellus responded that even if titius were proceeded against as heir instituted by his father, nevertheless, if he had not consented to the betrothal, the woman’s fault is to be mulcted.

Dig. 24.3.39

Digest 24.3.39

Papinianus 11 quaest.

Papinian, 11 Questions.

Viro atque uxore mores invicem accusantibus causam repudii dedisse utrumque pronuntiatum est. id ita accipi debet, ut ea lege quam ambo contempserunt, neuter vindicetur: paria enim delicta mutua pensatione dissolvuntur.

When a husband and a wife accused each other’s conduct in turn, it was pronounced that each had given cause for divorce. It ought to be understood thus: under the law which both have contemned, neither is vindicated; for equal delicts are dissolved by mutual set-off.

Dig. 24.3.40

Digest 24.3.40

Papinianus 28 quaest.

Papinian, 28 questions.

Post dotem datam et nuptias contractas stipulatus est pater non ex filiae voluntate divortio facto dotem dari. si condicio stipulationis impleatur et postea filia sine liberis decesserit, non erit impediendus pater, quo minus ex stipulatu agat: viva autem filia si agere vult, exceptione summovendus erit.

After the dowry was given and the marriage contracted, the father stipulated that, if a divorce should occur not by his daughter’s will, the dowry be paid to him. If the condition of the stipulation is fulfilled and afterwards the daughter dies without children, the father is not to be hindered from bringing an action on the stipulation; but while the daughter is alive, if he wishes to sue, he must be repelled by an exception (plea).

Dig. 24.3.41

Digest 24.3.41

Papinianus 37 quaest.

Papinian 37 Questions.

Si pater ignorans filiam divortisse dotem ex causa promissionis numeravit, non per indebiti condictionem, sed de dote actione pecunia petetur.

If a father, unaware that his daughter had divorced, paid out the dowry on the ground of a promise, the money will be sought not by the condictio for an unowed payment, but by the action for dowry.

Dig. 24.3.42pr.

Digest 24.3.42, preface.

Papinianus 4 resp.

Papinian 4 Responses.

In insulam patre deportato, qui dotem pro filia dedit, actio dotis ad filiam pertinet. post divortium quoque patre damnato, cui quidem consentiente filia competierat, aeque dotis actio mulieris est.

With the father deported to an island, the one who gave a dowry on behalf of his daughter, the action for the dowry pertains to the daughter. Also after a divorce, the father having been condemned— to whom indeed, with the daughter consenting, it had lain— the dotal action likewise is the woman’s.

Dig. 24.3.42.1

Digest 24.3.42.1

Papinianus 4 resp.

Papinian 4 Responses.

Fructus ex praediis, quae in dotem data videbantur, bona fide perceptos et mulieris oneribus ante causam liberalem absumptos, quamvis servam fuisse postea constiterit, peti non posse placuit. sumptus vero necessarios et utiles in praedia quae dotalia videbantur factos, compensatis fructibus perceptis, ad finem superflui servari convenit.

Revenues from the estates which seemed to have been given in dowry, received in good faith and expended on the woman’s burdens before the cause of liberty, although it was later established that she had been a slave, were held not able to be claimed. but as to necessary and useful expenditures made upon the estates which appeared dotal, with the fruits received set off, it is agreed that they are to be preserved to the extent of the surplus.

Dig. 24.3.42.2

Digest 24.3.42.2

Papinianus 4 resp.

Papinianus 4 responses.

Usuras numeratae dotis ex stipulatu pater in matrimonio defuncta filia si petat, gener, qui residuae dotis promissae faenus stipulatus est, ita demum ad finem vice mutua debitae quantitatis compensationem opponere iuste ^ iste^ videtur, si propriis sumptibus uxorem suam exhibuit: alioquin si patris sumptibus exhibita sit, inanis usurarum stipulatio compensationi non proderit.

If the father, on the basis of a stipulation, seeks the interest of a dowry paid out in cash, after his daughter has died while in marriage, the son-in-law—who has stipulated for the interest on the remainder of the promised dowry—then and only then seems rightly to be able to oppose compensation, at the end, by way of mutual set-off of the amount owed, if he maintained his wife at his own expense; otherwise, if she was maintained at the father’s expense, the empty stipulation for interest will not benefit a set-off.

Dig. 24.3.42.3

Digest 24.3.42.3

Papinianus 4 resp.

Papinian book 4 of responses.

Ad virum uxore post divortium reversa iudicium acceptum ex stipulatione, quam extraneus qui dotem dederit stipulatus fuerit, non dissolvitur nec officio iudicis absolutio continetur.

When the wife has returned to the husband after a divorce, a judgment obtained from the stipulation which an outsider who has given the dowry has stipulated is not dissolved, nor is an acquittal contained within the judge’s office.

Dig. 24.3.43

Digest 24.3.43

Scaevola 2 quaest.

Scaevola Questions, Book 2.

Si maritus in id quod facere potest condemnatus sit et nomina sint ad dotis quantitatem neque amplius, necesse habebit mandare actiones.

If the husband has been condemned up to what he can perform, and the claims are to the amount of the dowry and no more, he will be obliged to assign the actions.

Dig. 24.3.44pr.

Digest 24.3.44, preface.

Paulus 5 quaest.

Paulus 5 Questions.

Si socer a genero heres institutus adierit hereditatem, quandoque mortuo patre cum herede eius filiam de dote acturam nerva et cato responderunt, ut est relatum apud sextum pomponium digestorum ab aristone libro quinto: ibidem aristoni consensit: ergo dicerem et si emancipasset pater filiam, ipsum quoque conveniri posse.

If a father-in-law, appointed heir by his son-in-law, has entered upon the inheritance, Nerva and Cato answered—as is reported in Sextus Pomponius, in the Digesta, from Aristo, book 5—that, when the father has died, the daughter will sue concerning the dowry together with his heir; there he agreed with Aristo: therefore I would say that even if the father had emancipated the daughter, he himself also can be convened.

Dig. 24.3.44.1

Digest 24.3.44.1

Paulus 5 quaest.

Paulus 5 Questions.

Lucius titius filiae suae nomine centum doti promisit gaio seio: inter gaium seium et lucium titium patrem mulieris convenit, ne dos a viro vivo lucio titio id est patre mulieris, peteretur: postea culpa mariti divortio facto solutum est matrimonium et pater mulieris decedens alios heredes instituit filia exheredata: quaero, an ab heredibus soceri maritus exigere dotem potest, cum eam mulieri redditurus est. respondi: cum filia aliis a patre heredibus institutis actionem de dote sua reciperanda habere coeperit, necesse habebit maritus aut exactam dotem aut actiones ei praestare: nec ullam exceptionem habebunt soceri heredes adversus eum, cum absurde dicitur dolo videri eum facere, qui non ipsi quem convenit sed alii restituturus petit: alioquin et si post mortem patris divortisset nondum exacta dote, excluderetur exactione dotis maritus, quod non est admittendum. sed et si ex parte filia heres patri suo exstiterit, debebit maritus coheredes eius pro parte virili exigere et mulieri reddere aut actiones ei praestare.

lucius titius, in the name of his daughter, promised one hundred as a dowry to gaius seius: between gaius seius and lucius titius, the woman’s father, it was agreed that the dowry should not be sought from the husband while lucius titius—i.e. the woman’s father—was alive: afterwards, with divorce effected through the husband’s fault, the marriage was dissolved, and the woman’s father, upon dying, appointed other heirs, the daughter being disinherited: I ask whether the husband can exact the dowry from the father-in-law’s heirs, since he is going to return it to the woman. I answered: when the daughter, with other persons appointed by her father as heirs, has begun to have an action for recovering her dowry, the husband will be obliged to furnish to her either the dowry he has exacted or the actions (claims): nor will the father-in-law’s heirs have any exception against him, since it is absurd to say that he seems to act in bad faith who demands it intending to restore it not to the very person with whom he agreed, but to another: otherwise, even if after the father’s death he had divorced, the dowry not yet exacted, the husband would be shut out from the exaction of the dowry—something not to be admitted. But even if the daughter has become heir to her father in part, the husband ought to exact from her coheirs for their pro rata share (pro parte virili) and to return it to the woman, or to furnish her with the actions.

Dig. 24.3.45

Digest 24.3.45

Paulus 6 quaest.

Paulus 6 questions.

Gaius seius avus maternus seiae nepti, quae erat in patris potestate, certam pecuniae quantitatem dotis nomine lucio titio marito dedit et instrumento dotali huiusmodi pactum et stipulationem complexus est: " si inter lucium titium maritum et seiam divortium sine culpa mulieris factum esset, dos omnis seiae uxori vel gaio seio avo materno redderetur restituereturque". quaero, cum seius avus maternus statim vita defunctus sit et seia postea sine culpa sua divorterit vivo patre suo, in cuius potestate est, an et cui actio ex hoc pacto et stipulatione competat et utrum heredi avi materni ex stipulatu an nepti. respondi in persona quidem neptis videri inutiliter stipulationem esse conceptam, quoniam avus maternus ei stipulatus proponitur: quod cum ita est, heredi stipulatoris, quandoque divorterit mulier, actio competere videtur. sed dicendum est seiae posse dotem solvi ( quamvis actio ei directo non competat), ac si sibi aut illi dari avus stipulatus esset.

Gaius Seius, the maternal grandfather, for Seia his granddaughter, who was in her father's power, gave to Lucius Titius the husband a certain sum of money in the name of a dowry, and in the dowry instrument he included a pact and stipulation of this sort: "if between Lucius Titius the husband and Seia a divorce without the woman's fault should be made, the whole dowry would be returned and restored to Seia the wife or to Gaius Seius the maternal grandfather." I ask, since Seius the maternal grandfather at once died and Seia afterwards, without her own fault, divorced while her father, in whose power she is, was alive, whether and to whom an action from this pact and stipulation is competent, and whether to the heir of the maternal grandfather from the stipulation or to the granddaughter. I answered: in the person indeed of the granddaughter the stipulation seems to have been conceived ineffectually, since the maternal grandfather is presented as stipulating for her; which being so, to the heir of the stipulator, whenever the woman should divorce, an action seems to be competent. But it must be said that the dowry can be paid to Seia (although an action does not lie to her directly), as if the grandfather had stipulated that it be given to himself or to her.

sed permittendum est nepti ex hac avita conventione, ne commodo dotis defrudetur, utilem actionem: favore enim nuptiarum et maxime propter affectionem personarum ad hoc decurrendum est.

but it must be permitted to the granddaughter, from this grandfather’s agreement, lest she be defrauded of the benefit of the dowry, to have a useful action; for by favor toward marriages, and especially on account of the affection of the persons, one must resort to this.

Dig. 24.3.46

Digest 24.3.46

Paulus 19 quaest.

Paulus 19 questions.

Qui dotem stipulanti uxori promiserat, eidem testamento quaedam legaverat, ita tamen, ne dotem ab heredibus peteret: ea quae legata erant, uxor capere non potuerat. respondi dotis actionem mulieri adversus heredes non esse denegandam.

He who had promised a dowry to his wife while she was stipulating had, by his testament, bequeathed certain things to the same woman, but on condition that she not seek the dowry from the heirs: the wife could not take the things that had been bequeathed. i responded that the action for the dowry ought not to be denied to the woman against the heirs.

Dig. 24.3.47

Digest 24.3.47

Scaevola 19 quaest.

Scaevola 19 Questions.

Cum mulier viri lenocinio adulterata fuerit, nihil ex dote retinetur: cur enim improbet maritus mores, quos ipse aut ante corrupit aut postea probavit? si tamen ex mente legis sumet quis, ut nec accusare possit, qui lenocinium uxori praebuerit, audiendus est.

When a woman has committed adultery through her husband’s pandering, nothing of the dowry is retained: for why should the husband disapprove of morals which he himself either corrupted beforehand or afterward approved? If, however, someone should take it from the intention of the law that he who has provided pandering to his wife cannot even bring an accusation, he is to be heard.

Dig. 24.3.48

Digest 24.3.48

Callistratus 2 quaest.

Callistratus 2 questions.

Si dotali instrumento ita stipulatio interposita sit, ut liberorum nomine dos apud maritum resideat, nepotum quoque nomine dos dos retinebitur.

If in the dowry instrument a stipulation has been interposed such that, in the name of the children, the dowry resides with the husband, then also in the name of the grandchildren the dowry will be retained.

Dig. 24.3.49pr.

Digest 24.3.49 pr.

Paulus 7 resp.

Paul 7 Responses.

Maevia marito suo inter alias res dotis etiam instrumentum solidorum decem tradidit, quo otacilius eidem maeviae caverat daturum se, cum nuptum ire coepisset, decem milia: ex eo instrumento maritus nihil exegit, quia nec potuit: quaesitum est, si dos a marito petatur, an compellendus sit etiam illam summam, quae instrumento continetur, refundere? respondi potuisse quidem eum, cui actiones mandatae sunt, debitorem convenire: sed si sine dolo malo vel culpa exigere pecuniam non potuit, neque dotis nomine eum conveniri posse neque mandati iudicio.

Maevia handed over to her husband, among other things of the dowry, also a written instrument for ten solidi, by which Otacilius had guaranteed to that same Maevia that he would give, when she began to go to be married, ten thousand. From that instrument the husband exacted nothing, because he could not. It was asked, if the dowry is sought from the husband, whether he is to be compelled also to refund that sum which is contained in the instrument. I answered that the person to whom the actions were committed by mandate could indeed have proceeded against the debtor; but if without fraud or fault he was not able to exact the money, he can be sued neither under the name of dowry nor by the action on mandate.

Dig. 24.3.49.1

Digest 24.3.49.1

Paulus 7 resp.

Paul 7 responses

Fundus aestimatus in dotem datus a creditore antecedente ex causa pignoris ablatus est: quaesitum est, an mulier, si aestimationem dotis repetat, exceptione summovenda sit: ait enim se propterea non teneri, quod pater eius dotem pro se dedit, cui heres non exstiterit. paulus respondit praedio evicto sine dolo et culpa viri pretium petenti mulieri doli mali exceptionem obesse: consequi enim eam pretium fundi evicti evidens iniquitas est, cum dolus patris ipsi nocere debeat.

An appraised farm given into dowry was taken away by a prior creditor by reason of a pledge: it was asked whether the woman, if she seeks to recover the appraisal of the dowry, should be repelled by an exception; for she says that for that reason she is not bound, because her father gave the dowry on her behalf, of whom she did not become heir. paulus responded that, the estate having been evicted without fraud or fault of the husband, the exception of malicious fraud (doli mali) should prejudice the woman who is demanding the price: for it is evident inequity that she obtain the price of the evicted farm, since the fraud of her father ought to harm herself.

Dig. 24.3.50

Digest 24.3.50

Scaevola 2 resp.

Scaevola 2 responses.

Aestimatis rebus in dotem datis pactum intercessit, ut, ex quacumque causa dos reddi deberet, ipsae res restituerentur habita ratione augmenti et deminutionis viri boni arbitratu, quae vero non exstarent, ab initio aestimatio earum: quaesitum est, cum res quaedam quas maritus vendiderat exstarent, an secundum pactum et haec ad mulierem pertinerent. respondi res quae exstant, si neque volente neque ratum habente muliere venissent, perinde reddendas, atque si nulla aestimatio intervenisset.

After an appraisal having been made of the things given in dowry, a pact intervened that, from whatever cause the dowry ought to be returned, the very things themselves should be restored, account being had of augmentation and diminution at the discretion of a good man; but as to those which were not extant, their valuation from the beginning. It was asked, when certain items which the husband had sold were extant, whether according to the pact these also pertained to the woman. I replied that the things which are extant, if they had been sold neither with the woman willing nor with her ratifying, are to be returned just as if no appraisal had intervened.

Dig. 24.3.51

Digest 24.3.51

Hermogenianus 2 iuris epit.

Hermogenianus book 2 of the epitome of law.

Aestimatae res usu etiam mulieris periculo mariti deteriores efficiuntur.

Appraised goods, through use—even the wife’s—are rendered worse at the husband’s peril.

Dig. 24.3.52

Digest 24.3.52

Tryphonus 7 disp.

Tryphonus 7 Disputations.

Maritus dotem, quam non accepit, post divortium per errorem solvit: repetet, quia non numeratam caverat: exigi enim ab eo non potuit.

The husband, the dowry which he had not received, after the divorce paid by mistake: he will recover it, because he had given a bond that it had not been counted out; for it could not be exacted from him.

Dig. 24.3.53

Digest 24.3.53

Tryphonus 12 disp.

Tryphonus Book 12 of the Disputations.

Si filio familias dos data est, ipse quidem dotis actione tenetur, pater autem eius de peculio: nec interest, in peculio rem vel pecuniam dotalem habeat nec ne. sed quatenus facere potest, hic quoque condemnandus est: intellegitur autem peculio tenus facere posse, quod habet rei iudicandae tempore. atquin si cum patre agatur, deduceretur ex peculio, quod patri vel subiectis ei personis filius debet: at si cum ipso filio agatur, alterius debiti non fiet detractio in computatione quantum facere possit filius.

If a dowry has been given to a son under paternal power, he himself is indeed liable by the action for dowry, but his father is liable de peculio; nor does it matter whether he has in the peculium the dotal thing or money or not. But in so far as he is able to make payment, this one too must be condemned; moreover, it is understood that he is able to make payment up to the amount of the peculium, that which he has at the time the matter is to be adjudged. And yet, if suit is brought against the father, there would be deducted from the peculium what the son owes to the father or to persons subject to him; but if suit is brought against the son himself, no deduction will be made, on account of another debt, in the computation of how much the son can make payment.

Dig. 24.3.54

Digest 24.3.54

Paulus l.S. de iure singulari.

Paulus, in the single book on singular law.

Maritus facere posse creditur nullo aere alieno, item socius, item patronus parensve: at is, qui ex donatione convenietur, omni aere alieno deducto facere posse intellegitur.

A husband is believed to be able to pay with no debt, likewise a partner, likewise a patron or a parent; but he who will be sued on account of a donation is understood to be able to pay with all debt deducted.

Dig. 24.3.55

Digest 24.3.55

Paulus 5 ad plaut.

Paulus, 5 on Plautius.

Cum mulier de dotis repetitione post solutum matrimonium agit, cavere debet marito, qui aedium nomine damni infecti cavit, si velit eam recipere, ut periculum mariti amoveat.

When a woman proceeds for repetition (recovery) of the dowry after the matrimony has been dissolved, she ought to give security to the husband, who, in respect of the house, has given a cautio for damnum infectum (damage not yet done), if she wishes to take it (the house) back, so that she may remove the husband’s peril.

Dig. 24.3.56

Digest 24.3.56

Paulus 6 ad plaut.

Paulus 6 on plaut.

Si quis sic stipuletur a marito: " si quo casu titia tibi nupta esse desierit, dotem dabis?" hac generali commemoratione et ab hostibus capta ea committetur stipulatio vel etiam si deportata fuerit vel ancilla effecta: hac enim conceptione omnes hi casus continentur. plane quantum veniat in stipulatione, utrum quasi mortua sit an quasi divortium fecerit? humanius quis id competere dixerit, quod propter mortem convenit.

If someone thus stipulates from a husband: " if by some chance Titia ceases to be married to you, you will give the dowry?" by this general mention the stipulation will be incurred even if she is captured by enemies, or even if she has been deported, or has become a slave: for by this formulation all these cases are contained. Clearly, as to what amount comes under the stipulation, whether as though she were dead or as though she had made a divorce? more humanely one would say that that is owed which is due on account of death.

Dig. 24.3.57

Digest 24.3.57

Marcellus 7 Dig.

Marcellus 7 Digest.

Usu fructu in dotem dato si divortium intervenerit nec proprietas rei apud maritum vel mulierem sit, eam dotis esse restitutionem, ut maritus caveat, quamdiu vixerit, passurum se uti frui mulierem heredemque eius. quod an verum sit circa adiectionem heredis, dubito. interest, quemadmodum sit usus fructus in dotem datus.

With a usufruct given into the dowry, if a divorce intervenes and the ownership of the thing is with neither the husband nor the woman, that is the restitution of the dowry: that the husband shall give security that, for as long as he lives, he will allow the woman and her heir to use and enjoy it. Whether this is true as regards the addition of the heir, I am in doubt. It makes a difference how the usufruct was given into the dowry.

si, cum haberet mulier fructum, viro, cuius erat proprietas fundi, usum fructum cessit, nihil mulier heredi suo relinquet: debebatur enim ei usus fructus, qui ad heredem non solet transire. quod si fundi sui fructum mulier viro cessit, restitui is a viro debet: cum proprietate enim ad heredem eius transisset, si vir in reddendo eo non fecisset moram. si vero alienata sit proprietas aut aliquis fundi sui usum fructum mulieris iussu viro eius dederit in dotem, inspiciendum est primum, quemadmodum mulieri possit restitui: potest autem vel cautionibus interpositis, ut sic ut potest vir iure suo cedat mulieri fruique eam patiatur, vel, si se accommodavit dominus proprietatis, volente eo mulieri constituatur usus fructus: nam aut fructum fundi ille mulieri poterit cedere aut aliquid videlicet pro eo, ut inter eos actum fuerit, dare.

if, when the woman had the usufruct, she ceded the use and usufruct to the man whose the ownership of the farm was, the woman will leave nothing to her heir: for the usufruct was owed to him, which is not wont to pass to the heir. but if the woman ceded to the man the fruits of her own farm, that must be restored by the man: for together with the ownership it would have passed to her heir, if the man had not made delay in returning it. if, however, the ownership has been alienated, or someone by the woman’s order has given to her husband the usufruct of her farm into dowry, one must first examine how it can be restored to the woman: it can be done either with sureties interposed, so that thus, so far as he can, the husband cede his right to the woman and allow her to enjoy, or, if the proprietor has accommodated himself, with his consent a usufruct be constituted for the woman: for that man will be able either to cede to the woman the fruit of the farm or, plainly, to give something in exchange for it, as shall have been transacted between them.

nam et finge hoc ipsum mulierem posse proprietatis domino vendere. quo casu non inique etiam mulieris herede agente vir facere cogetur: quippe si moram non fecisset, pretium fructus mulier heredi suo reliquisset. quod si facultatem usus fructus vendendi proprietatis domino mulier non habuerit, patientiam, quam percipiendi fructus praestare ipsi debuit, etiam heredi eius praestat.

for also suppose this very thing, that the woman can sell it to the proprietor of the property. In that case, not unfairly the husband will be compelled to perform even when the woman’s heir is bringing the action; for if he had not made delay, the woman would have left to her heir the price of the usufruct. But if the woman did not have the faculty of selling the usufruct to the proprietor of the property, he likewise renders to her heir the forbearance for taking the fruits which he owed to her.

Dig. 24.3.58

Digest 24.3.58

Modestinus l.S. de heuremat.

Modestinus Single Book on Discoveries.

Servus dotalis heres ab aliquo institutus mariti iussu vel adire vel repudiare debet hereditatem. sed ne maritus aut facile repudiando vel temere suscipiendo incognitam successionem dotis iudicio uxori suae obligetur, consulendum est mulierem coram testibus interrogari, utrum velit omittere an adquirere hereditatem. et si repudiare se dixerit, facile mariti iussu repudiabit.

A dowry slave, appointed as heir by someone, ought, at the husband’s order, either to enter upon or to repudiate the inheritance. But lest the husband, either by facile repudiation or by rashly undertaking an unknown succession, be bound to his wife by a dowry action, it should be provided that the woman be interrogated before witnesses whether she wishes to omit or to acquire the inheritance. And if she says to repudiate, he will readily repudiate at the husband’s order.

quod si hereditatem agnoscere maluerit, reddendus est a marito servus uxori ea condicione, ut, cum iussu eius adierit, rursum marito retradatur. ita et mariti sollicitudini consuletur et uxoris desiderio parebitur.

But if she should prefer to accept the inheritance, the slave must be returned by the husband to the wife on this condition: that, when he has entered upon it at her order, he shall be handed back again to the husband. Thus both the husband’s solicitude will be provided for and the wife’s desire will be complied with.

Dig. 24.3.59

Digest 24.3.59

Iulianus 2 ad urs. ferocem.

Julian 2 on Urseius Ferox.

Filiae meae emancipatae et aegrae vir in hoc repudium misit, ut mortua ea dotem potius heredibus eius quam mihi redderet. sabinus dicebat utile mihi eius dotis reciperandae iudicium dandum esse: gaius idem.

To my daughter, emancipated and ill, her husband sent a repudiation for this purpose: that, she having died, he would rather return the dowry to her heirs than to me. sabinus said that a useful action should be granted to me for recovering that dowry; gaius the same.

Dig. 24.3.60

Digest 24.3.60

Proculus 5 epist.

Proculus 5 epistles.

Si filia familias nupta decesserit et pater funus ei fecerit, tametsi ei dotem post aliquod tempus gener reddere deberet, tamen continuo socer agendo consequetur, ut impensam funeris praesentem recipiat, cetera dotis statuto tempore solvantur.

If a daughter under paternal power, having been married, has died, and her father has provided a funeral for her, although the son-in-law ought to return the dowry to him after some time, nevertheless by bringing an action the father-in-law will obtain that he recover the immediate expense of the funeral, while the rest of the dowry is to be paid at the appointed time.

Dig. 24.3.61

Digest 24.3.61

Papinianus 11 quaest.

Papinianus 11 Questions.

Dotalem servum vir invita uxore manumisit. heres solus vir a liberto institutus portionem hereditatis, quam ut patronus consequi potuit ac debuit, restituere debet, alteram vero portionem dotis iudicio, si modo uxor manumittenti refragatur.

The husband manumitted a dowry slave with the wife unwilling. The husband, instituted as sole heir by the freedman, must restore the portion of the inheritance which, as patron, he could and ought to have obtained, and the other portion by a dowry action, provided that the wife opposes the manumitter.

Dig. 24.3.62

Digest 24.3.62

Ulpianus 33 ad ed.

Ulpian, 33 on the Edict.

Quod si vir voluntate mulieris servos dotales manumiserit, cum donare ei mulier voluit, nec de libertatis causa impositis ei praestandis tenebitur.

But if the husband, by the woman’s will, has manumitted the dotal slaves, since the woman wished to donate to him, he will not be held to furnish the things imposed upon him on account of the cause of liberty.

Dig. 24.3.63

Digest 24.3.63

Paulus 2 ad l. iul. et pap.

Paulus 2 on the Lex Julia and Papia.

Et desinit servus in dote esse, quia, cui manumittendi causa donare liceret, ei quodammodo donaret, quod permitteret manumittere.

And a slave ceases to be in the dowry, because, to the one to whom it would be permitted to donate for the sake of manumitting, one would in a certain manner be donating, in that he permits him to manumit.

Dig. 24.3.64pr.

Digest 24.3.64pr.

Ulpianus 7 ad l. iul. et pap.

Ulpian 7 on the Julian and Papian law.

Si vero negotium gerens mulieris non invitae maritus dotalem servum voluntate eius manumiserit, debet uxori restituere quidquid ad eum pervenit.

If, however, a husband, managing the business of a woman not unwilling, has manumitted a dotal slave with her consent, he must restore to his wife whatever has come to him.

Dig. 24.3.64.1

Digest 24.3.64.1

Ulpianus 7 ad l. iul. et pap.

Ulpian, Book 7, on the Julian and Papian law.

Sed et si quid libertatis causa maritus ei imposuit, id uxori praestabit.

But also, if for the sake of liberty the husband imposed anything upon her, he shall render that to the wife.

Dig. 24.3.64.2

Digest 24.3.64.2

Ulpianus 7 ad l. iul. et pap.

Ulpian 7 on the Lex Julia and Papia.

Plane si operae fuerint marito exhibitae, non aestimatio earum, non erit aequum hoc nomine uxori maritum quippiam praestare.

Plainly, if services have been rendered to the husband, there should be no estimation of them; it will not be equitable that under this head the husband should render anything to the wife.

Dig. 24.3.64.3

Digest 24.3.64.3

Ulpianus 7 ad l. iul. et pap.

Ulpian, book 7 on the Julian and Papian law.

Sed si post manumissionem aliquid ei fuerit liberto impositum, id uxori praestandum est.

But if, after manumission, anything has been imposed upon the freedman, that must be rendered to the wife.

Dig. 24.3.64.4

Digest 24.3.64.4

Ulpianus 7 ad l. iul. et pap.

Ulpian 7 on the Julian and Papian law.

Sed et si reum maritus acceperit adpromissoremve, aeque adversus ipsum obligationem debet praestare.

But also, if the husband has accepted the debtor or a guarantor, he ought equally to enforce the obligation against him.

Dig. 24.3.64.5

Digest 24.3.64.5

Ulpianus 7 ad l. iul. et pap.

Ulpian, 7 on the Lex Julia and Papia.

Item quidquid ad eum ex bonis liberti pervenerit, aeque praestare cogetur, si modo ad eum quasi ad patronum pervenerit: ceterum si alio iure, non cogetur praestare: nec enim beneficium quod in eum libertus contulit, hoc uxori debet, sed id tantum, quod iure patronatus adsequitur vel adsequi potuit. plane si ex maiore parte quam debet heres scriptus fuerit, quod amplius est non praestabit: et si forte, cum ei nihil deberet libertus, heredem eum scripsit, nihil uxori restituet.

Likewise, whatever from the goods of the freedman has come to him, he will be compelled to make it good equally, provided that it came to him as to a patron; but if by another right, he will not be compelled to make it good: for the benefit which the freedman conferred upon him he does not owe to his wife, but only that which he attains or could have attained by the right of patronage. Clearly, if he has been instituted heir for a greater share than is due, he will not make good what is in excess; and if perhaps, when the freedman owed him nothing, he appointed him heir, he will restore nothing to the wife.

Dig. 24.3.64.6

Digest 24.3.64.6

Ulpianus 7 ad l. iul. et pap.

Ulpian, 7 on the Lex Julia and the Lex Papia.

Dabit autem, ut ait lex, quod ad eum pervenit. pervenisse accipimus, sive iam exegit sive exigere potest, quia actio ei delata est.

He will give, however, as the law says, what has come to him. we take “to have come” to mean, whether he has already exacted it or can exact it, because an action has been granted to him.

Dig. 24.3.64.7

Digest 24.3.64.7

Ulpianus 7 ad l. iul. et pap.

Ulpian, 7 on the Julian and Papian law.

Adicitur in lege, ut et, si dolo malo aliquid factum sit, quo minus ad eum perveniat, teneatur.

It is added in the law that also, if anything has been done with malicious deceit (dolus malus), whereby it is prevented from reaching him, he is held liable.

Dig. 24.3.64.8

Digest 24.3.64.8

Ulpianus 7 ad l. iul. et pap.

Ulpian 7 on the Julian and Papian law.

Si filium exheredaverit patronus et ad eum bona liberti pertineant, videndum est, an heres hoc nomine teneatur. et cum nihil neque ad ipsum patronum neque ad heredem eius perveniat, quomodo fieri potest, ut hoc nomine teneatur?

If a patron has disinherited his son, and the goods of the freedman pertain to him, it must be considered whether the heir is held liable under this head. And since nothing comes either to the patron himself or to his heir, how can it be that he is held liable under this head?

Dig. 24.3.64.9

Digest 24.3.64.9

Ulpianus 7 ad l. iul. et pap.

Ulpian, 7 on the Julian and Papian Law.

De viro heredeque eius lex tantum loquitur: de socero successoribusque soceri nihil in lege scriptum est: et hoc labeo quasi omissum adnotat. in quibus igitur casibus lex deficit, non erit nec utilis actio danda.

Concerning the husband and his heir the law speaks only: concerning the father-in-law and the father-in-law’s successors nothing is written in the law: and Labeo notes this as if omitted. therefore, in those cases in which the law is deficient, neither will a useful action be granted.

Dig. 24.3.64.10

Digest 24.3.64.10

Ulpianus 7 ad l. iul. et pap.

Ulpian 7 on the Julian and Papian law.

Quod ait lex: " quanta pecunia erit tantam pecuniam dato", ostendit aestimationem hereditatis vel bonorum liberti, non ipsam hereditatem voluisse legem praestare, nisi maritus ipsas res tradere maluerit: et hoc enim benignius admitti debet.

What the law says: " whatever sum of money it shall be, give that same sum of money", shows that the law wished the estimation/appraisal of the inheritance or of the goods of the freedman, not the inheritance itself, to be furnished, unless the husband should prefer to deliver the things themselves: and this indeed ought to be admitted more benignly.

Dig. 24.3.65

Digest 24.3.65

Scaevola l.S. quaest. publ. tract.

Scaevola, the Single Book on Questions publicly treated.

Haec actio etiam constante matrimonio mulieri competit.

This action also lies for a woman even while the marriage is in force.

Dig. 24.3.66pr.

Digest 24.3.66 pr.

Iavolenus 6 ex post. lab.

Javolenus 6 from the Posterior Works of Labeo.

In his rebus, quas praeter numeratam pecuniam doti vir habet, dolum malum et culpam eum praestare oportere servius ait. ea sententia publii mucii est: nam is in licinnia gracchi uxore statuit, quod res dotales in ea seditione qua gracchus occisus erat, perissent, ait, quia gracchi culpa ea seditio facta esset, licinniae praestari oportere.

in those things which, besides the money counted out, the husband holds as dowry, Servius says that he ought to be answerable for malicious deceit and for fault. This is the opinion of Publius Mucius: for he decided, in the case of Licinia, the wife of Gracchus, that because the dotal things had perished in that sedition in which Gracchus was slain, since that sedition had been caused by the fault of Gracchus, it ought to be made good to Licinia.

Dig. 24.3.66.1

Digest 24.3.66.1

Iavolenus 6 ex post. lab.

Iavolenus, 6th book from Labeo’s Posteriores.

Servis uxoris vir nummos in vestiarium dederat, quo parato deinde intra annum divortium intercesserat. placuit labeoni trebatio, qualia vestimenta post divortium essent, talia viro reddi: idem iuris futurum fuisset, si ipsa vestimenta vir emisset et servis dedisset: quod si vestimenta non redderentur, tum virum pretium in dote compensaturum.

The husband had given money to the wife's slaves for a wardrobe; when this had been furnished, then within a year a divorce had intervened. It pleased Labeo and Trebatius that whatever garments existed after the divorce should be returned to the husband: the same law would have obtained if the husband had bought the garments themselves and given them to the slaves. But if the garments were not returned, then the husband would compensate the price in the dowry.

Dig. 24.3.66.2

Digest 24.3.66.2

Iavolenus 6 ex post. lab.

Iavolenus 6 from Labeo’s Posterior [Books].

Filia familias divortio facto dotem patri reddi iusserat: deinde parte dotis persoluta pater decesserat. reliquam partem, si nec delegata nec promissa novandi animo patri fuisset, mulieri solvi debere labeo trebatius putant, idque verum est.

A daughter under paternal power, a divorce having been effected, had ordered the dowry to be returned to her father: then, with a part of the dowry paid, the father died. The remaining part, if it had neither been delegated nor promised to the father with an intention of novation, labeo and trebatius think ought to be paid to the woman, and this is true.

Dig. 24.3.66.3

Digest 24.3.66.3

Iavolenus 6 ex post. lab.

Javolenus 6 from the Posterior Books of Labeo.

Mancipia in dotem aestimata accepisti: pactum conventum deinde factum est, ut divortio facto tantidem aestimata redderes nec de partu dotalium ancillarum mentio facta est. manebit, inquit labeo, partus tuus, quia is pro periculo mancipiorum penes te esse deberet.

You received slaves, appraised, as a dowry: thereafter a pact-agreement was made that, once a divorce was effected, you would return [them] appraised at the same amount, and no mention was made of the issue of the dotal maidservants. “The offspring will remain yours,” says labeo, “because that ought to be with you in consideration of the risk of the slaves.”

Dig. 24.3.66.4

Digest 24.3.66.4

Iavolenus 6 ex post. lab.

Javolenus 6 from Labeo’s Later Books.

Mulier, quae centum dotis apud virum habebat, divortio facto ducenta a viro errante stipulata erat. labeo putat, quanta dos fuisset, tantam deberi, sive prudens mulier plus esset stipulata sive imprudens: labeonis sententiam probo.

A woman, who had one hundred as dowry in her husband’s hands, after a divorce was effected had stipulated two hundred from a husband acting under a mistake. Labeo thinks that as much as the dowry had been, so much is owed, whether the woman stipulated more knowingly or unknowingly: I approve Labeo’s opinion.

Dig. 24.3.66.5

Digest 24.3.66.5

Iavolenus 6 ex post. lab.

Iavolenus 6 from Labeo’s later works.

Uxor divortio facto partem dotis receperat, partem apud virum reliquerat, deinde alii nupserat et iterum vidua facta ad priorem virum redierat, cui centum decem doti dederat neque eius pecuniae, quae reliqua ex priore dote erat, mentionem fecerat. divortio facto reliquum ex priore dote iisdem diebus virum redditurum ait labeo, quibus reddidisset, si superius divortium inter eos factum non esset, quoniam prioris dotis causa in sequentem dotis obligationem esset translata: et hoc verum puto.

A wife, divorce having been effected, had received part of the dowry and had left part with her husband; then she had married another, and, again made a widow, had returned to her former husband, to whom she had given 110 as dowry, and she had made no mention of that money which remained from the prior dowry. Upon the divorce being effected, Labeo says that the husband is to return the remainder from the prior dowry on the same days on which he would have returned it, if the earlier divorce had not been made between them, since the cause of the prior dowry had been transferred into the obligation of the subsequent dowry: and I think this is true.

Dig. 24.3.66.6

Digest 24.3.66.6

Iavolenus 6 ex post. lab.

Iavolenus 6 from the Posteriora.

Si vir socero iniussu uxoris manente matrimonio dotem acceptam fecisset, etiamsi id propter egestatem soceri factum esset, viri tamen periculum futurum ait labeo, et hoc verum est.

If a husband, to his father-in-law, without the wife’s order, while the matrimony remained, had made the dowry “accepted” (that is, had issued an acquittance), even if this was done on account of the father-in-law’s indigence, nevertheless Labeo says the peril will be the husband’s; and this is true.

Dig. 24.3.66.7

Digest 24.3.66.7

Iavolenus 6 ex post. lab.

Javolenus 6 from the Posterior works of Labeo.

Si quis pro muliere dotem viro promisit, deinde herede muliere relicta decesserit, qua ex parte mulier ei heres esset, pro ea parte dotis periculum, quod viri fuisset, ad mulierem pertinere ait labeo, quia nec melius aequius esset, quod exigere vir ab uxore non potuisset, ob id ex detrimento viri mulierem locupletari: et hoc verum puto.

If someone, on behalf of a woman, promised a dowry to the husband, and then, the woman being left as heir, he should die, Labeo says that, to the extent the woman was his heir, the peril of the dowry—which would have been the husband’s—pertains to the woman; because it would be neither better nor more equitable that, on that account, the woman be enriched from the husband’s detriment by that which the husband could not have exacted from his wife: and I think this is true.

Dig. 24.3.67

Digest 24.3.67

Pomponius 20 epist.

Pomponius 20 letters.

In partem dotis reddendae erit id, quod mulieri ex periculo servi restitui debebit: et ideo et dolum et culpam in eo peculio vel adquirendo vel conservando maritus praestare debet et fructus ex eo percepti quomodo cuiuslibet rei dotalis ad maritum pertinebunt.

In the portion of the dowry to be returned there will be included that which must be restored to the woman on account of the peril of a slave; and therefore the husband must answer for both fraud (dolus) and fault (culpa) in acquiring or preserving that peculium, and the fruits perceived from it, just as those of any dotal thing, will pertain to the husband.