Corpus iurisprudentiae Romanae

1 Paulus, On Sabinus, Book XIV. The right to a dowry is perpetual, and, in accordance with the desire of the party who bestows it, the contract is made with the understanding that the dowry will always remain in the hands of the husband.

2 The Same, On the Edict, Book LX. It is to the interest of the State that women should have their dowries preserved, in order that they can marry again.

3 Ulpianus, On the Edict, Book LXIII. The term dowry does not apply to marriages which are void, for there cannot be a dowry without marriage. Therefore, where the name of marriage does not exist, there is no dowry.

4 Paulus, On Sabinus, Book VI. When the usufruct is added to the mere ownership given by way of dowry, it is held that this is an increase of the dowry and not a second one; just as where there is an accession made by alluvion.

5 Ulpianus, On Sabinus, Book XXXI. A profectitious dowry is one derived from either the property or the act of a father, or some other ancestor. 1Hence where an ancestor, or his agent, gives a dowry or orders another to give it, or when anyone who is transacting his business gives it, and the ancestor ratifies his act, this is a profectitious dowry. 2Where anyone who is desirous of making a gift to a father gives the dowry, Marcellus says in the Sixth Book of the Digest that this dowry also comes from the father, and is profectitious, which is correct. 3Moreover, if the curator of an insane person, or of a spendthrift, or of anyone else, gives a dowry, we say that it also is profectitious dowry. 4If, however, we suppose that the Prætor or Governor of a province issues a decree stating how much of the property of a father, who is held in captivity either by the enemy or by robbers, shall be given to his daughter by way of dowry, this also is held to be profectitious. 5Julianus says that a dowry is not profectitious where a father rejects an estate for the purpose of providing a dowry, because the husband of his daughter has been substituted, or where he would be able to claim the estate ab intestato. If, however, the father should reject a legacy in order that it might remain in the hands of his son-in-law, who was the heir, by way of dowry, Julianus holds that this was not derived from his property, because the father did not pay out any money belonging to himself, but merely declined to acquire the legacy. 6Where a father, not in the capacity of a parent, but because he has become surety for another, promises a dowry, and, as surety, is compelled to pay, Neratius says that this dowry is not profectitious, although the father cannot recover from the principal debtor what he has paid. 7But if the father promises the dowry, and provides a surety or another debtor in his behalf, I think that the dowry will be profectitious; for it is sufficient for the father to be liable either to the principal debtor or to the surety. 8Where a son under paternal control borrows money and charges his creditor to give a dowry for his daughter, or if he receives the money and gives it, the dowry is held to be derived, as Neratius says, from the grandfather; inasmuch as the latter will be obliged to endow his granddaughter, for the transaction seems to have been made with reference to the property of the grandfather. 9Julianus states in the Seventeenth Book of the Digest that where anyone gives a certain sum of money to his father, with the understanding that he is to give it to his daughter by way of dowry, this is not a profectitious dowry; for the father is bound to give the money, and if he does not do so, he will be liable to an action for its recovery. He says that this same rule applies to a mother, since, if she gives a sum of money to her husband under the condition that he shall pay it to his son-in-law by way of dowry for his daughter, the wife is not held to have donated the money to her husband; therefore, he says very properly, that this gift is not one of those prohibited by the Civil Law, as she did not give it to her husband in order that he might keep it, but for him to pay it to her son-in-law, that he might expend it for the benefit of her daughter; hence if he should not employ it for that purpose, he will be liable to an action for its recovery. Therefore Julianus says that this dowry is adventitious, and we hold it to be such. 10Where a son under paternal control promises a dowry, and gives it after having become his own master, it is profectitious, for he does not pay the money as a debt of the estate of his father, but as a debt of his own contracted when he was under paternal control, from liability for which he is released through having become the head of a household. 11If a father should give a dowry in behalf of his emancipated daughter, no one doubts that it is none the less profectitious, for not the right of authority, but the title of parent renders a dowry profectitious. This is only true where the father gives the dowry, but if where he owes it to his daughter, and gives it with her consent, the dowry becomes adventitious. 12Papinianus says in the Tenth Book of Questions that where a father, being the curator of his daughter who is her own mistress, constitutes a dowry for her, he will be held to have done so rather as her father than in the capacity of curator. 13Julianus says in the Nineteenth Book of the Digest that an adoptive father has the right to recover a dowry, if he himself bestowed it. 14Where anyone promises a dowry for the daughter of another, and her father becomes the heir of the promisor, Julianus says that a distinction exists if the father becomes the heir and gives the dowry before marriage, and if he does so subsequently. If this took place before marriage, the dowry is held to be profectitious, for he would be able, by serving notice, to recover it; if, however, it occurred after marriage, it would not be profectitious.

6 Pomponius, On Sabinus, Book XIV. Relief is granted to the father by law where, having lost his daughter, he is entitled to the return of the dowry which came from him, and this is done by way of solace, in order that he may not suffer both the loss of his daughter and that of the money. 1Where a father gives, by way of dowry, land belonging to another but which he purchased in good faith, the dowry is understood to be profectitious. 2If, in the bestowal of the dowry, either of the parties has been imposed upon, relief is granted, even to one who is over twenty-five years of age; because it is not consistent with what is proper and just for one person to profit by the loss of another, or to suffer loss through the gain of another.

7 Ulpianus, On Sabinus, Book XXXI. Equity demands that the profits of a dowry shall belong to the husband, for, as he sustains the burdens of matrimony, it is but just that he should receive the profits. 1The profits received during marriage do not belong to the dowry, but where they are received before marriage they become part of it; unless there was some other agreement made between the future husband and wife; for then the profits will not be returned, because they are considered to be a donation. 2Where an usufruct is given by way of dowry, let us see whether or not the profits of the same must be returned. Celsus says in the Tenth Book of the Digest that it must be ascertained what the intention of the parties was; and where there was no agreement to the contrary, he thinks that the right of usufruct alone constitutes the dowry, and that the profits derived from it are not included therein. 3Where property is given by way of dowry, I think that it becomes part of the estate of the husband, and that the accession of time derived from his wife should be granted to her husband. Property thus given belongs to the husband, if it is bestowed, by way of dowry during the existence of the marriage. But what if it was given before marriage? If, indeed, the woman gave it with the understanding that it should immediately become his, it will do so. If, however, she gave it under the condition that it would become his when the marriage took place, we can undoubtedly say that it will belong to him when the nuptials are celebrated. Hence, if the marriage should not take place on account of repudiation, and the woman gave the property with the understanding that it should immediately belong to the husband as soon as notice of repudiation is served, she will have a right to recover it. But if she gave it under the condition that it would become his as soon as the marriage was performed, and notice of repudiation is given, she can immediately recover the property. If she brings suit to recover it before notice of repudiation is served, an exception on the ground of bad faith, or in factum, can be pleaded in bar, for suit should not be brought for the recovery of property intended for a dowry.

8 Callistratus, Questions, Book II. Where, however, it is evident that such action has not been taken, it must be held to be understood that the property immediately passes to the betrothed, and unless the marriage is solemnized it must be returned.

9 Ulpianus, On Sabinus, Book XXXI. If I give certain property to Seia, in order that she herself may give it in her own behalf by way of dowry, it becomes hers, even though it should not be bestowed by way of dowry; but she will be liable to an action for its recovery. If I give anything in her behalf before marriage, it makes a difference under what condition I gave it, whether it was to belong to her husband at once, or after the marriage had been performed. If it was given to become his immediately, and notice of repudiation is served, I will have a right to recover it; but if this is not the case, I can claim it on the ground that the property still belongs to me. Wherefore, if the marriage cannot take place on account of some illegal impediment, in the second instance, the property will remain mine. 1If I deliver property to anyone to become a dowry after marriage has taken place, and I die before the marriage is celebrated, does the property constitute the dowry if the marriage is afterwards performed? I am in doubt as to whether it will pass to the person to whom it is given, because he who gave it is divested of the ownership, after death, as the donation was pending until the day of the marriage; and when the condition of the marriage is fulfilled, the ownership of the property will have already passed to the heir, and it must be held that he cannot be deprived of the same without his consent. The more equitable opinion is the one in favor of the dowry, and for the heir to be required to consent to the act of the deceased; or, if he should defer his decision, or be absent, or be unwilling, the ownership should be transferred to the husband by operation of law, in order that the woman may not remain without any dowry. 2We must understand that property given on account of a dowry is that which is given as dowry. 3Again where property is given as what the Greeks call parapherna and the Gauls peculium, let us see whether the right to it at once vests in the husband. I think that if it is given to become his, it at once passes to the husband; and if the marriage should be dissolved, the woman cannot claim it as hers, but should bring a personal action for its recovery, and not institute proceedings by an action on dowry as the Divine Marcus, our Emperor, and his father, stated in a Rescript. It is evident that if a schedule of the property of the wife is given to her husband, as is generally done at Rome, for a wife is accustomed to place in a schedule the property which she is to make use of in the house of her husband, and which she does not give as a dowry, in order that he may sign it, as having received said property, and that she may retain possession of the document which contains a description of what she brought into his house. Let us consider whether this belongs to the husband. I do not think that it does, not for the reason that it is not delivered to him, for what difference will it make whether it is delivered to him or not, if it is brought into his house with his consent; but because I do not believe that it was agreed between husband and wife that the ownership of said property would be transferred to him, but rather as it is certain that, in case of a separation, this cannot be denied; and because frequently the husband assumes responsibility for such articles unless they are left in charge of his wife. Let us see whether, if such articles should not be returned, the woman can bring an action on the ground of property removed, or on deposit, or on mandate. Where the safe-keeping of the effects was entrusted to the husband, she can bring an action on deposit, or mandate; otherwise, an action for property removed will lie, if the husband retains it with the intention of appropriating it, or suit for production can be brought, if he has not attempted to remove the property.

10 The Same, On Sabinus, Book XXXIV. It is generally to the interest of the husband that the property which he receives as dowry should not be appraised, in order that he may not be compelled to be responsible for the same; and especially if he receives animals, or woman’s garments by way of dowry. For if the latter are appraised, and the wife wears them out, the husband will, nevertheless, be liable for the amount at which they were estimated. Therefore, whenever property is given as dowry, without having been appraised, if it is increased in value she will profit by it, but if it is depreciated she must bear the loss. 1Where land which has not been appraised receives some accession, this will be for the benefit of the woman, and if it loses anything in value the loss will be hers. 2Where slaves are given by way of dowry, and have children, this profit does not belong to the husband. 3The increase of cattle given by way of dowry, however, belongs to the husband, because it is considered as profit; still, as it is necessary before everything else, for the property to be kept up, and where any animals die, the same number of head must be replaced with their offspring, the husband is only entitled to the remainder by way of profit, because the profit derived from the dowry belongs to him. 4Where property to be given by way of dowry is appraised before marriage, this appraisement is, as it were, conditional, for it depends upon whether the marriage takes place. Therefore, where the nuptials are celebrated, the appraisement of the property is perfected, and a genuine sale is made. 5Hence it may be asked whether the woman must bear the loss if slaves who have been appraised should die before her marriage. On this point it must be said that, as the sale is conditional, if death occurs while the condition is pending, it annuls the sale; and it must be held in consequence that the loss should be borne by the woman, for the reason that the sale was not yet complete, because the appraisement takes the place of a sale. 6If property is given by way of dowry, even though it may have been appraised, but an agreement is made that either the amount of the appraisement or the property itself shall be returned, and this clause is added, namely: “Whichever the wife may desire,” she herself can choose whether she prefers to demand the property or the value of the same. If, however, this clause is added, namely: “Whichever her husband wishes,” he will have the right of selection, or where nothing is said about the selection, the husband will be entitled to choose whether he would rather surrender the property or pay the price of it; for where one thing or another is promised, the party has a right to select which he will give, but where the property is no longer in existence, the husband must, by all means, pay its appraised value.

11 Paulus, On Sabinus, Book VII. It is certain that the husband can return the property, even though it may be deteriorated.

12 Ulpianus, On Sabinus, Book XXXIV. Where the property is appraised after the marriage has been contracted, and this is approved as a donation, the appraisement is void, because property cannot be sold for the purpose of making a donation, as such a transaction has no force as between man and wife; therefore the property will still remain as part of the dowry. Where a similar donation is made before marriage, the better opinion is that it is to be referred to the time when the marriage takes place, and therefore it will not be valid. 1Where a woman states that she has been deceived in the appraisement of her property, because it is too low; as, for instance, if she has been deceived with reference to the value of a slave whom she has given, it must be ascertained whether she has been taken advantage of in the delivery of the slave, in which case the slave should be returned to her; or whether she has been overreached in the appraisement, since, if she was only deceived in the appraisement, the husband will have the choice as to whether he will prefer to pay her the actual value of the slave, or surrender the slave himself. This rule applies if the slave is living, but if he is dead, Marcellus says that the husband must pay his value, not his true value but that which was established by his appraisement, because the woman ought to congratulate herself that the slave was appraised. Where, however, the woman simply, gives the slave, there is no doubt that the risk remains with her, and not the husband; and Marcellus holds the same opinion where a minor has been deceived. It is evident that if the wife has a purchaser who is willing to pay a just price, then it must be said that a proper appraisement should be made; and Marcellus states that this ought only to be done where the wife is a minor. Scævola, however, holds with reference to the husband that, if there is bad faith on his part, a just appraisement must be made, and I think that what Scævola says is perfectly correct. 2Where a wife agreed with her husband, who was her debtor, that he should have as dowry what he owed her, I think that she can bring an action on dowry; for although he will not be released from liability for a former debt by operation of law, still, he will be entitled to an exception.

13 Modestinus, On the Difference in Dowries. Where a woman, after a divorce, returns to her husband before bringing an action on stipulation to recover her dowry, it may be positively stated that the action on stipulation will be barred by an exception on the ground of bad faith, as long as the marriage lasts.

14 Ulpianus, On the Edict, Book XXXIV. Where a woman gives, by way of dowry, property which has been appraised, and afterwards is in default in delivering the same, and the property ceases to exist, I do not think that she will be entitled to an action.

15 Pomponius, On Sabinus, Book XIV. Where she is not to blame, she will be entitled to the price, just as if she had delivered the property, because anything that happens will be at the risk of the purchaser.

16 Ulpianus, On Sabinus, Book XXXIV. Whenever property which has been appraised is given by way of dowry, and is then evicted, the husband can bring an action on purchase against his wife, and whatever he recovers on that ground he must surrender to his wife in an action on dowry, if the marriage should be dissolved. Wherefore, if double the amount should come into the hands of the husband, the whole of it must be given up to his wife. This opinion is equitable because, as the transaction is not an ordinary sale but made on account of the dowry, the husband should not profit by his wife’s loss, for it is sufficient for him to be indemnified, and not to acquire any gain.

17 Paulus, On Sabinus, Book VII. In matters relating to the dowry, the husband is responsible for fraud as well as negligence, because he received the dowry for his own benefit; he must, also, exercise the same diligence which he manifests in his own affairs. 1Where property which has been appraised was given by way of dowry, and the marriage does not take place, it must be considered what can be recovered, the property itself, or the valuation of the same. It seems to have been the intention of the parties that the appraisement should only be made if the marriage takes place, because there was no other consideration for the contract. Hence the property should be recovered, and not its value.

18 Pomponius, On Sabinus, Book XIV. If you have received, as dowry, certain slaves whose value has been appraised, and an agreement was entered into that, in case of a divorce, you would return other slaves appraised at the same value, Labeo says that the offspring of these slaves will be yours, because the slaves were at your risk.

19 Ulpianus, On Sabinus, Book XXXIV. Even if the dowry is given to another person by order of the husband, the latter will still be obliged to return it.

20 Paulus. On Sabinus, Book VII. Julianus says that the following stipulation is valid, namely: “You will give me such-and-such a sum by way of dowry when you die,” because it is customary to make an agreement that the dowry shall not be given by the wife during her lifetime. I did not hold that this is a similar instance, for it is one thing to postpone the collection of what is due, and another to stipulate in the beginning for it to be paid at a time when the marriage would not exist. This opinion conforms to that of Aristo, Neratius, and Pomponius.

21 Ulpianus, On Sabinus, Book XXXV. It is settled that a stipulation made on account of a dowry, and which contains the condition, “If the marriage should take place,” can only be a ground for legal proceedings where the marriage is solemnized; even though the condition may not have been stated. Wherefore, if notice of repudiation is served, the condition of the stipulation is said not to have been fulfilled.

22 Paulus, On Sabinus, Book VII. And even if the woman should afterwards marry the same man, the stipulation will not recover its force.

23 Ulpianus, On Sabinus, Book XXXV. But, for the reason that it is not necessary to insert this addition in the stipulation for the dowry, we hold also that it is not necessary to mention it when the dowry is delivered.

24 Pomponius, On Sabinus, Book XV. Where a daughter under paternal control, who is about to marry, gives a dowry to her future husband out of her own peculium, of which she has the management; and then, while the peculium remains in the same condition, a divorce takes place, the dowry can be lawfully repaid to her, just as a debt from the peculium of any other debtor.

25 Paulus, On Sabinus, Book VII. A woman who was about to marry a man who owed her Stichus, the slave, made an agreement with him as follows: “Instead of Stichus whom you owe me, consider that ten aurei are given you by way of dowry,” in accordance to the rule that has been established that one kind of property can be given for another, and the parties be released from liability; the ten aurei will be deemed to have been bestowed by way of dowry, because a change of dowries can be made by agreement.

26 Modestinus, Rules, Book I. We hold that a dowry can be changed while the matrimonial condition exists, only where it will be an advantage to the woman, if the money is changed into property, or property is changed into money. This rule is generally adopted.

27 Ulpianus, On Sabinus, Book XXXVI. When this is done, the land or the personal property becomes dotal.

28 Paulus, On Sabinus, Book VII. A father cannot render the condition of his daughter worse after marriage, because the dowry cannot be returned to him without his consent.

29 Ulpianus, On Sabinus, Book XXXVI. Where a father promises a dowry for his daughter, and bequeaths it, if he leaves it to her husband should it be considered whether the legacy is valid or not? I do not think that it is valid, for when a debtor bequeaths to a creditor what he owes him, the legacy is void. If, however, he makes the bequest to his daughter, the legacy is valid, for the dowry was due to the husband on account of the promise, and the legacy is due to the daughter. If the daughter should prove that the testator intended to double the legacy, she will be entitled to both, the dowry which her husband has a right to collect and the legacy on account of the bequest. But if the testator intended that she should have one or the other of these, and the woman claims the legacy, and is met by an exception on the ground of bad faith, the heir will not be compelled to pay her the legacy, unless she indemnified him, on this account against her husband bringing an action based on the promise made. Where, however, the husband institutes proceedings, it will not be necessary for her to indemnify the heir, but where the woman brings an action after him, she can be barred by an exception because the dowry has already been paid.

30 Paulus, On Sabinus, Book VII. It must be held that a dowry given at the time of a former marriage does not become one where a subsequent marriage takes place, unless this is the intention of the parties; still, we always presume that this was their intention, unless some other agreement is proved to have been made.

31 Papinianus, Opinions, Book IV. Where no divorce, but only a quarrel occurs, a dowry of the same marriage will continue to exist.

32 Pomponius, On Sabinus, Book XVI. If a husband should, with the consent of his wife, sell stone obtained from quarries on the dotal land, or trees which are not classed as profits, or buildings situated on the premises, the money received from the sale will be considered as forming part of the dowry.

33 Ulpianus, On Sabinus, Book VI. Where a stranger who promised a dowry becomes insolvent, the husband will be to blame for not having brought suit against him, especially if he promised the dowry through compulsion, and not voluntarily. For if he donated the property, the husband should be excused for not having pressed the donor for payment, against whom he could have obtained a judgment, to the extent of his resources, if he had brought suit; for the Divine Pius stated in a Rescript that where persons are sued on account of their liberality, they should have judgment rendered against them for the full amount that they are able to pay. But if the father, or daughter herself made the promise, Julianus says in the Sixteenth Book of the Digest that, even if the father made it the risk must be borne by the husband, which opinion should not stand. Therefore, the woman should bear the risk, for no judge will patiently listen to a woman who alleges that her husband did not press her father, who had promised her a dowry out of his property, for the payment of the same; and still less, where he did not bring an action against her. Hence Sabinus very properly holds that where the father or the woman herself promised a dowry, the risk should not be borne by the husband; but where the debtor makes the promise, the risk must be borne by the husband; and where someone else does so, by way of donation, the party who was benefited will be responsible. We understand, however, that the advantage will accrue to the woman to whom the benefit of the property belongs.

34 The Same, On Sabinus, Book XXXIII. A mother gave an utensil of gold for the use of her daughter; the father then gave the said utensil by way of dowry to the husband of the girl; and her mother afterwards died. If the father gave the article by way of dowry, without the knowledge or consent of his wife, it will belong to the heir of the mother, and he can bring an action to recover it; and because the property is evicted it is held that that much less of the dowry has been given by the husband, who will be entitled to an action against his father-in-law.

35 The Same, On Sabinus, Book XXXV. Where a husband, for the purpose of renewing an obligation makes a stipulation with reference to a dowry promised by a father, or by anyone else, the dowry begins to be at his risk, just as it was formerly at the risk of the woman.

36 The Same, On Sabinus, Book XLVIII. The debtor of a woman, by her order, bound himself to pay the money to her husband, and the latter then released him by order of his wife. The loss was sustained by the woman. In what way should we understand this? Should it be on the ground of the dowry, or for some other reason? The decision seems to have been made with reference to the debtor, who gave the promise to pay the dowry. It must be ascertained whether this was done before or after the marriage; for it is held to be a matter of importance whether the discharge was given after the marriage took place, since if the dowry was already constituted, the husband will lose it by discharging the debtor. If, however, this was done before the marriage was celebrated, the dowry is held not to have been constituted.

37 Paulus, On Sabinus, Book XII. The woman does not lose her right of action unless the marriage took place, for if it did not, the debtor will remain liable to her.

38 Ulpianus, On Sabinus, Book XXVIII. It certainly should be considered whether the woman will be liable to her husband if she ordered him to discharge her debtor. And I think she will be liable to an action on mandate, and that this right is transformed into a dowry, because the woman is liable to the said action, and because she is held to have lost her property in consequence. If, however, she desires to bring an action on dowry, she ought to set off against her own claim what she has ordered her husband to do.

39 The Same, On the Edict, Book XXXII. If a female slave should give property, as dowry, to a male slave, and afterwards, during their marriage, both of them obtain their freedom, without being deprived of their peculium, and continue in the marriage relation; the matter will be arranged in such a way that if anything remains of what was bestowed as dowry while they were in servitude, it will be held to have been tacitly converted into dotal property, so that the appraised value of the same will be due to the woman. 1Where a woman marries an eunuch, I think that a distinction should be made where he has been absolutely castrated, and when he has not, for if he has been absolutely castrated, you may say that the dowry does not exist; but where this has not been done, for the reason that marriage can exist, the dowry is valid, and an action to recover it will lie.

40 The Same, On the Edict, Book XXXIV. The Divine Severus stated in a Rescript to Pontius Lucrianus that: “If a woman who has given a dowry, returns to her husband after having been divorced, without the annulment of the marriage contract, the magistrate before whom the matter is brought should have no hesitancy in deciding in her favor; as she certainly did not intend to return to the matrimonial condition without being endowed, and he must discharge his judicial duty just as the dowry had been renewed.”

41 Paulus, On the Edict, Book XXXV. Where a dowry is promised, all the parties are liable, no matter to what sex or condition they may belong. 1Where the marriage does not take place, suit cannot be brought on the stipulation, for the acts, rather than the words of the parties, should be considered. 2A dowry is also constituted by the release of a creditor, when the husband, who is a debtor, is discharged for the purpose of constituting a dowry. 3Where a dowry is promised, under a condition, by a debtor of the woman, and afterwards, before the husband can demand the dowry, the debtor ceases to be solvent, it is settled that the loss must be borne by the wife, for the husband is not held to have accepted the claim at a time when he could not collect it. If, however, the debtor was insolvent at the time that he made the promise under a condition, the loss must be sustained by the husband; because he is held to have knowingly accepted the claim as it was at the time when the obligation was incurred. 4Where a debtor promises a dowry to a woman, and afterwards makes her his heir; Labeo holds that the circumstances are the same as if the woman herself had promised the dowry. Julianus also approves this opinion; for he says it would not be just for a judgment to be rendered against him on account of money which she herself owes, and it is sufficient that she should be released from liability.

42 Gaius, On the Provincial Edict, Book XI. Where property which can be weighed, counted, or measured, is given by way of dowry, this is done at the risk of the husband, because it is given to enable him to sell it at his pleasure; and when the marriage is dissolved, he must return articles of the same kind and quality, or his heir must do so.

43 Ulpianus, Disputations, Book III. Although a dowry may be constituted by the release of the husband from liability for a debt; still, if this was ante-nuptial, and the marriage did not take place; Scævola says that, having been made in consideration of marriage, which did not occur, the release is void, and therefore the obligation remains unimpaired. This opinion is correct. 1Whenever a stranger releases a debtor for the purpose of constituting a dowry, and the marriage does not take place, the release will be of no effect, unless it was made because the creditor wished to donate the entire sum to the woman; for then it must be held that it was received by her through a fictitious delivery and then transferred to her husband. The right to a personal action for its recovery cannot, however, be acquired by the woman through the agency of a free person. 2It is clear that, if the marriage takes place and is afterwards dissolved, the woman will have the right to claim the dowry, unless the stranger has released the husband from liability; and he himself will be entitled to an action for recovery, if the marriage should for any reason be dissolved, for then the woman will not have a right to any such action. In accordance with this, where a dowry is constituted by the release of the husband from liability, and the marriage takes place, the result of the suit for the recovery of the dowry will be that, if the obligation from which the husband is released is unconditional, it will not be restored to its former condition; but the dowry must be paid in accordance with what is customary. But where the obligation was limited to a certain time, it should be restored to its former condition, if the time to which it is limited did not elapse before the marriage was dissolved, and if the debt was secured the security should be renewed. In like manner, if the obligation which was turned into a dowry is conditional, and a divorce takes place while it was pending, the better opinion is that the obligation ought to be restored under the same condition. Where, however, the condition was fulfilled during the existence of the marriage, the time during which the money can be demanded should date from the day of the divorce.

44 Julianus, Digest, Book XVI. If a father should promise a dowry for his daughter, and emancipates her before the marriage takes place, he will not be released from his promise; for even if the father should die before the celebration of the marriage, his heirs will still remain liable on account of his promise. 1Where a woman has a son under paternal control as her debtor, and she promises a dowry to his father as follows: “What you owe me, or what your son owes me, shall be yours as my dowry,” she is not bound; but the result will be that anything that she can recover from the father in an action De Peculio will be included in her dowry. Marcellus says that if, after this, she wishes to bring an action either against the son or the father, she will be barred by an exception on the ground of a contract entered into; but if she should bring an action on dowry, she can recover whatever was found to be in the peculium when the dowry was promised, and if it was promised after the marriage took place, the appraisement of the peculium must be made at the time that the nuptials were celebrated.

45 Tryphoninus, Disputations, Book VIII. Where a woman who is about to marry a son under paternal control, who is her debtor, promises, by way of dowry only the right of action which she has for his peculium, the amount that is due to her on this account at the time of the marriage must be taken into consideration. 1Where, however, being about to marry another person, she directs the said son, who is her debtor, to promise her dowry out of his peculium; the time when the dowry is promised must be taken into account so that the amount of the peculium may be estimated.

46 Julianus, Digest, Book XVI. Just as where a slave, having made a stipulation, acquires property for his master without the consent of the latter, so an obligation will be acquired for his master, if he permits a dowry to be promised in his master’s name. The latter, however, will not be responsible for any risk, or for negligence, if the debtor of the woman promises the dowry. A dowry is also constituted by the delivery of the dotal property to a slave or a son under paternal control, but neither the master nor the father will be liable either for risk or for negligence. Therefore, I say that this dowry will be at the risk of the woman, until either the master or the father ratifies the promise or donation; and therefore during the continuance of the marriage the property which was delivered can be recovered by a personal action. Moreover, it can be recovered by an action for an indeterminate amount, in order that the party may be released from his promise. 1If a woman, who is about to marry her debtor, promises him a dowry in the following words: “You shall have, as my dowry, what you owe me, or the Sempronian estate,” whichever of these the woman selects will be her dowry, and if she prefers that the debt shall remain in the hands of her husband, by way of dowry, she can protect herself by an exception against him if he brings an action for the estate. And if she gives the estate, she can collect the money due her from her husband. 2Where a father, erroneously thinking that he is indebted to his daughter, promises her a dowry, he will be liable.

47 The Same, Digest, Book XVIII. Where a slave bestowed by way of dowry before marriage has any property which was given or bequeathed to him previously, the dowry will be increased in the same manner as in the case of the crops of a tract of land delivered before marriage.

48 The Same, On Urseius Ferox, Book II. A stipulation was entered into in the following terms: “You promise to pay ten aurei, by way of dowry, during the next year.” The question arose from what date the year should be reckoned, whether from the day the stipulation was made, or from that when the dowry took effect, that is, the day of the marriage. The answer was that the year should be reckoned from the day of the marriage, for if we held otherwise, and the marriage did not take place within the year, the dowry could be considered to be due on account of the obligation. 1A father-in-law made a bequest to his son-in-law as follows: “My heir shall give a hundred aurei to Lucius Titius on account of my daughter.” The son-in-law should claim this money, and when it is collected it ought to be received as a legacy; but Proculus is of the opinion that if a divorce takes place, it must be restored to the woman by means of an action on dowry; and, nevertheless, it becomes a part of the dowry. Julianus states in a note that an action of this kind should not even be refused a daughter, if she wishes to bring it.

49 The Same, On Minicius, Book V. A certain man entered into a stipulation with a party concerning a sum of money which the latter wished to give as a dowry to his wife, and he then released him from liability for the same. The question arose whether or not this money constituted part of the dowry. The answer was that, if the husband had not released the promisor and he had become insolvent, we should inquire whether the money was not collected on account of the negligence of the husband, but as the husband released the debtor, he must, by all means, assume the entire responsibility; for the case is the same as if he had received the money, and then presented it to the promisor.

50 Africanus, Questions, Book VIII. A woman gave a tract of land as her dowry, and, a divorce having taken place, she returned to her husband, and agreed with him that he should receive ten aurei by way of dowry, and give her back the land. The ten aurei were paid, but she died during marriage before the land was returned. The matter is one involving good faith, and, in compliance with the contract, the land can be recovered, since it was held by the husband without any consideration. 1This point will seem perfectly clear if reference be had to the action on pledge. For if I should transfer to you the Cornelian estate by way of pledge, and afterwards convey to you the Titian estate, under the agreement that you will restore the Cornelian estate to me, I think that there is no doubt whatever that I can immediately and properly bring an action on pledge against you, for the recovery of the Cornelian estate.

51 Ulpianus, Opinions, Book II. Where property which a father has given to his emancipated daughter is afterwards given for her by way of dowry, with her consent, the dowry is held to have been given by the daughter, and not by the father.

52 Marcianus, Rules, Book III. Whenever a husband returns property to his wife in a suit for the recovery of her dowry, he must surrender whatever he obtained in this way, not only where the land given as dowry was appraised, but also where it was not, because the land was included in the dowry; and likewise if she promised to pay double damages in case of eviction, even where she was not obliged to do so.

53 Neratius, Parchments, Book III. A man wished to make a present to his wife, and a debtor of hers, who was not solvent, promised her a dowry. The husband will only be responsible to the extent that the debtor was solvent, and if the latter should acquire anything which might enable him to meet his obligations, the responsibility will increase in proportion to the amount which he acquired. And it will continue to exist, even if he afterwards became more indigent because when the dowry was promised, the donation consisted only of what could not be collected from the debtor, and when the latter became solvent, the obligation still persisted, on account of the donation; since the matter is in the same condition as it would be if the debtor had been wealthy at the time when the dowry was promised.

54 Gaius, On the Edict of the Urban Prætor; Title, “Purchasers of Estates.” Property purchased with money belonging to a dowry is held to be dotal.

55 Paulus, On Plautius, Book I. Where liability is incurred by reason of a dowry, a surety given on this account will be liable.

56 The Same, On Plautius, Book VI. A man, who owed the slave Stichus to a woman, was delegated by her to constitute her dowry, and, before the debtor made payment, Stichus died. As the debtor was not to blame in making payment, and the husband was not in default in taking action, the loss caused by the death of Stichus must be borne by the woman; although, even if her husband had been in default in making a demand for him, and if Stichus had died while in the hands of her husband, he would not be liable to an action on dowry. 1The dowry should be under the control of him who sustains the burdens of marriage. 2After the death of the father, the burdens of marriage immediately pass to the son, just as the children and the widow become subject to his authority. 3When it is said that the dowry is diminished by the necessary expenses under operation of law, this only applies where a tract of land given by way of dowry partially ceases to be dotal, but where the expenses are not refunded, a portion of the land, or all of it, may be retained. Where, however, expenses which amount to the value of the land are incurred at different times, Scævola says that it ceases to be dotal, unless the woman should voluntarily tender to her husband the amount of the expenses within a year. If both money and land are included in the dowry, and necessary expenses have been incurred on account of the land, Nerva says that the expenses should be deducted from the money forming part of the dowry. But what if the woman should pay the expenses to her husband, will the dowry be increased, or will it be held to have been given intact? Where the dowry consists of land, the injustice of this would seem to be greater, according to the opinion of Scævola; for if it ceases to be dotal the husband could alienate it. Again, how can money paid in this way become dotal, or will not the money already be considered as part of the dowry? The better opinion is that the land will revert to its former condition of dowry, and that its alienation in the meantime will be prohibited.

57 Javolenus, On Plautius, Book I. Where a woman is about to marry a son under paternal control, and promises a dowry to her father-in-law in the following terms: “Whatever your son owes me shall be yours as my dowry,” I think that it makes a difference whether the obligation of the son or the right of action which the woman has against the father for property employed for his benefit, is referred to in the promise; for if what the son is required to pay is meant, all the money for which he is liable is included in the promise of the dowry. If, however, what the father must pay out of the peculium for property employed for his benefit is referred to, an estimate should be made of how much that was at the time when the promise was given, and this sum will be considered to form the dowry for which judgment can be rendered against the father, in the name of the son, at the above-mentioned date. If, however, it is not perfectly clear which obligation the woman had in mind, the presumption is that she had reference to the debt of the son, unless it is perfectly evident that the contrary is the case.

58 Celsus, Digest, Book XIX. If the betrothal has not yet been made, and you promise a dowry to Titius in behalf of Seia, at a time when she refused to marry him, and she should, notwithstanding, marry him afterwards, you will owe the dowry, unless another marriage should have taken place in the meantime. 1Where a woman entered into a stipulation with Titius for the female slave Pamphila, and, afterwards, being about to marry him, she permitted him to take as dowry what he owed her; even though Pamphila did not belong to him, would Pamphila, nevertheless, be included in the dowry, and would she be at the risk of the woman in case of her death? Or in case she should have a child, must it be returned to the woman? If the first stipulation remained in force, the offspring of the slave should not be given up, unless it made a difference whether the husband had possession of the property which he owed at the time that the dowry was constituted (for it could be held that the property itself came into his hands), or did not have possession of it; as, if the latter was the case, the better opinion is that the release from the obligation should rather be considered to have come into his hands than the property itself, and therefore that the offspring of the slave is not due to the woman.

59 Marcellus, Digest, Book VII. If a woman should promise a dowry as follows: “Ten aurei shall belong to you or to Titius as my dowry,” in this instance, it may be said that she can give the sum to Titius, but her husband will always be liable for the dowry, just as if he had ordered it to be given to Titius. There is nothing extraordinary about this, since a woman who intends to promise a dowry to a man can be substituted by him to make the promise to another, although it is usually held that a woman will not be liable for her dowry to anyone else than to her husband, as in these instances the dowry is acquired by the husband; for we do not believe that she would have made such a promise when she was thinking about her marriage with Titius. 1When an heir is appointed to an entire estate, and is asked to deliver three-fourths of the same to a woman, and, under her direction, promises her husband, by way of dowry, what he owes her, I apprehend that he will not be liable. He will be liable, however, in the delivery of the estate, to assign to the woman all rights of action, both those in his favor and those for which he is bound; but he cannot assign these rights to anyone else than the party to whom he owes them on account of the trust. Another might say that the husband could bring an action against him for an uncertain sum, to compel him to pay the estimated amount due under the trust. I cannot agree to this, for it is just that the debtor of the woman should only be liable for the amount which the husband can receive out of what is due. Still, in order that she may not be without a dowry, it must be said that a share of the estate left to her should be restored to her under the Trebellian Decree of the Senate, so that she herself may give her husband this as her dowry, because the trust and all its liabilities belong to her, and, on account of the extreme subtlety and necessity of the case, the substitution will be of no force or effect. 2You gave ten aurei, by way of dowry, for a woman who was thought to be free, and in this instance you will be entitled to an action to recover what you have given; just as if you had done this in behalf of a free woman, and the marriage did not take place. If the woman should marry, after having been manumitted, what you gave will only be a dowry, if you gave it with the intention that it should become a dowry when the marriage ceremony was performed. Therefore, if you gave the property as a present to the woman, her master will have a right to recover it; just as where a party is about to give something to a woman, and the latter orders it to be given to her husband.

60 Celsus, Digest, Book XI. I ask what sum a curator should consent to be given as dowry by his ward to a woman who is grown. The answer was that this depends upon the amount of his means as well as upon the rank of the woman and her husband, as reason may suggest.

61 Terentius Clemens, On the Lex Julia et Papia, Book III. A curator may be appointed for the general management of property, or for the purpose of giving a dowry, and where a larger dowry is promised than is justified by the estate of the woman, the promise will be void by operation of law, because an authorization fraudulently granted is not held to be confirmed by the law. Still, the question should be asked whether the entire obligation is annulled, or only what was promised in excess of what should have been. It is more equitable to hold that that only is annulled which is superfluous. 1The said curator should deliver the property bestowed as dowry, but he cannot sell it to anyone, and give the price of the same, by way of dowry. But it may be doubted whether this is correct, for what if the ward cannot marry honorably unless she gives money as dowry, and this will be more advantageous to her? However, property which is given by way of dowry can very frequently be alienated, and the money become the dowry. In order that this question may be determined, if the husband prefers to receive the property as dowry, it is not necessary to inquire any farther; but if he is not willing to contract marriage unless money is given, as dowry, it then becomes the duty of the curator to appear before the judge who appointed him, so that, if proper cause is shown, even though the man is absent, he may permit the dowry to be constituted by the proceeds of the sale of the property.

62 Modestinus, Opinions, Book V. Titia, a minor under twenty-five years of age, exchanged the fourth part of the estate of her mother, which she held in common with her brothers, and received a tract of land instead of her share, just as if a sale had taken place. This land, together with other property, she gave as dowry. I ask if complete restitution should be granted to her, and if she should receive her share of one-fourth of the estate; and should she return the land, what course must her husband pursue, or ought he to be content with the other property given by way of dowry? I also ask, if he should die, and her heirs, as her representatives, should bring suit for complete restitution, and some of them should demand a fourth part of the estate, and others the land, whether the husband would be compelled to return the land, and remain satisfied with the other property of the dowry as his profit. Modestinus answered that there is nothing in the case proposed to justify the husband being deprived of the dowry, but the woman of her heirs should have judgment rendered against them for the actual value of the land, and the appraisement of the same should be made with reference to what it was worth at the time it was given by way of dowry.

63 The Same, On Discoveries. When a stipulation for the return of a dowry is made by a stranger, it becomes operative the moment the divorce takes place, and the right of action obtained by the stipulator is not extinguished if the marriage should be renewed. Therefore, if the woman has no dowry at the time of the second marriage, the stipulator must again consent for the constitution of the dowry; provided that the said dowry which another party stipulated for with her permission is not derived from the woman herself, for then his consent will not be necessary.

64 Javolenus, On Cassius, Book IV. Where a husband made no subsequent provision with reference to a dowry, if, after a divorce has taken place, the woman should marry another man, and afterwards, having again been divorced, return to her first husband, the dowry will be tacitly restored to him unimpaired.

65 Pomponius, On Quintus Mucius, Book V. If either through a legacy or by inheritance, property of some kind should be acquired by a slave who is given as dowry, and the testator was unwilling for the said property to belong to the husband, it must be returned to the wife if the marriage is dissolved.

66 The Same, On Quintus Mucius, Book VIII. If the usufruct of land, the ownership of which does not belong to my wife, is given to me by way of dowry by the owner of the same, it would be difficult, after a divorce, to determine how the right of usufruct could be returned to the woman; as we have stated that it cannot be transferred by the usufructuary to anyone but the owner of the property, and if it is transferred to a stranger, that is to say, to one who does not own the property, nothing passes to him, and the usufruct reverts to the owner of the land. Therefore, certain authorities very properly hold that, by way of remedy, the husband should be permitted to rent the usufruct to his wife, or to sell it to her for a nominal consideration, so that the right itself will remain with the husband, but the power to gather the crops will belong to the wife.

67 Proculus, Epistles, Book VII. Proculus to his grandson, Greeting. Where a female slave marries, and gives her husband money, as dowry, whether she knows that she is a slave or not, she cannot make her husband the owner of said money, and it will still remain the property of the person to whom it belonged before it was given as dowry to her husband, unless he should have obtained it by usucaption. And not even after the woman has become free, while living with the same man, will she be able to change the condition of this money. Hence, not even after a divorce has taken place, can she legally bring an action based on her right of dowry, or a personal action to recover the money, but the party to whom it belongs can legally sue for it. But if the husband has obtained a right to said money through usucaption after having had it in his possession, of course because he thought that the woman was free, I am confirmed in my belief that he has profited by the transaction, provided he obtained the right to the money by usucaption, before the marriage. I am of the same opinion where he obtained anything by means of said money before it became the dowry, provided he was not in possession of it, and was not guilty of fraud to avoid being in possession.

68 Papinianus, Questions, Book X. The promise of a dowry is none the less valid where the father was ignorant in the beginning that the marriage had been performed, if he should afterwards consent to it; since every promise of a dowry is understood to be founded on the tacit condition under which the marriage is to take place. For where a girl less than twelve years of age has been married, as if she was older, her husband can demand the dowry when she, while still living with him, attains the age of twelve years. While it is commonly stated that the promise of a dowry only has reference to first marriages, and that the obligation does not continue to exist if the woman marries the man to whom she promised the dowry after he has married someone else, it will then be operative when another marriage has intervened.

69 The Same, Opinions, Book IV. Where a woman, after a divorce, with the knowledge of her husband, promises as dowry lands of which she has been in possession for a long time, it is held to have been tacitly agreed that the dowry which has been promised shall not be claimed; and if the husband should bring suit for it, he can be barred by an exception on the ground of contract pleaded by the wife. 1Where a woman gave money due to her from Seius, together with the interest to accrue in the future, as dowry that has been promised, it is reasonable that any interest which may have accrued after the marriage should also form a portion of the dowry. 2It was decided, where it had been stipulated after a divorce, that the money constituting the dowry with the interest should not be paid after the date of the second marriage, because only the payment of the principal could be collected; that the interest for the intermediate time would be due. 3Where a woman was married during the absence of her husband, and conducted to his house, and in the meantime incurred no expense chargeable to the property of her husband, the latter cannot honorably demand interest on the dowry which was promised to reimburse him for the support of his wife. 4A son-in-law stipulated with his father-in-law for a dowry to be paid upon a certain day in accordance with the wishes of the latter, without having mentioned the property, or the amount of the same. It is established that the stipulation would be valid, without considering the wishes of the father-in-law; nor should the case be held to be similar to the one where a tract of land is not mentioned, and it is held that a bequest, or a stipulation of said land is void; as a great difference exists between the manner of constituting a dowry, and the uncertainty of the property to which it has reference, for the amount of the dowry can always be established in accordance with the resources of the father and the rank of the husband. 5Where a girl is formally contracted in marriage to the son of her guardian, with the consent of her father; a dowry can legally be constituted by the guardian in proportion to the wealth of the former, and the rank and birth of the girl. 6Where a dowry has been legally promised in behalf of a freedwoman by her patroness, the latter cannot retain the same if the freedwoman should prove ungrateful. 7Where a marriage is dissolved, and property which has been appraised and given by way of dowry is to be returned, the amount must be stated, but a sale is not contracted. Therefore, where the property is evicted, if the woman gave it in good faith, her husband will have no right of action; otherwise, she will be liable for fraud. 8Where property has been appraised and delivered by way of dowry, even though the woman may continue to use it, the ownership will be held to have passed to the husband. 9It is proper that the offspring of female slaves, given as dowry, should be considered a portion of the same; and therefore an agreement with the husband that the said offspring shall be held in common by him and his wife is void.

70 Paulus, Questions, Book VI. Where doubtful questions arise, it is better to decide in favor of the dowry.

71 The Same, Questions, Book XXXII. When a stranger promises a dowry in behalf of a woman, the latter must assume the risk. If, however, the husband takes charge of the claim, and collects the interest, it is held that the risk will be his.

72 The Same, Opinions, Book VIII. A woman gave all her property as dowry. I ask whether her husband, as her heir, is obliged to be responsible for the debts of her estate? Paulus answers that where anyone retains all the property of a woman on account of a dotal obligation, he cannot be sued by her creditors, but that the promise of the property only applies to what remains after the debts have been deducted. 1Paulus holds with reference to dotal property, that even the father of the husband is responsible for fraud and negligence. 2Paulus also holds that, where a woman gives a dowry out of her own property, and causes her mother to make stipulations, she can afterwards alter the dotal instrument.

73 The Same, Sentences, Book II. A person who is dumb, deaf, or blind, is liable on account of a dowry, because each of them can contract a marriage. 1While marriage exists, the dowry can be returned to the wife for the following reasons, provided she does not squander it, namely: in order that she may support herself and her children, or may purchase a suitable estate, or may provide sustenance for her father banished to some island, or may relieve her brother or sister who is in want.

74 Hermogenianus, Epitomes of Law, Book V. Where a betrothed woman gives a dowry, and does not marry, or where a girl, in order to become a wife, gives it before she reaches the age of twelve years; it is held that the privilege which applies to personal actions should, by way of favor, as in the case of a regular dowry, be extended to include a personal action for recovery.

75 Tryphoninus, Disputations, Book VI. Although the dowry becomes a part of the property of the husband, it nevertheless, in fact, belongs to the wife. It has, with reason, been decided that if she gave land which was not appraised as dowry, and, on account of this, a stipulation for double damages was provided, and the land should be evicted from the husband, the latter can immediately bring an action on the stipulation. Moreover, as it is to her interest that the property given by way of dowry should not be evicted, and because she herself suffers from the eviction because she ceases to possess what constituted the dowry; it is held that she is also entitled to the profits of the same while the marriage continues to exist, even though the ownership of the property is in the husband, and he sustains the burdens of matrimony.

76 The Same, Disputations, Book IX. Where a father promises a dowry to his daughter by a donation mortis causa, the promise will be valid, for he will be bound just as if he had made it at the time of his own death. If, however, he should recover, why should he not be released from the obligation by means of a personal action, just as would be the case where someone else entered into a stipulation, or promised a dowry in behalf of another? The case is similar where a personal action will lie to recover money which has been given, or to compel a party to release an obligation incurred mortis causa. The same cannot be said with reference to a woman, if she promised a dowry mortis causa, because a dowry is void, unless it can be used to defray the expenses of marriage.

77 The Same, Disputations, Book X. Where a woman about to marry her debtor who owes her money at interest promises him, by way of dowry, what he owes her; the interest which has become due after the marriage has taken place does not constitute part of the dowry, because the entire obligation is cancelled; just as if all the debt had been paid to the woman, and she had given it by way of dowry.

78 The Same, Disputations, Book XI. Where a woman having a right of usufruct in land belonging to her husband gives to him by way of dowry, although the usufruct no longer is hers, still, the husband is not entitled to it, because he is using his own land, as owner; but, by means of the dowry, he obtains the complete title to said land, and does not hold it separate from the usufruct, and he cannot lose it by non-user. Still, in case of a divorce, he must reestablish the usufruct in said land for the benefit of his wife. If, however, she should die during marriage, the husband is held not to have profited by reason of the dowry, because even if he had not married the woman, the usufruct, having been terminated by her death, would revert to the land, and therefore he would not be compelled to contribute to the funeral expenses of his wife. 1It is evident that if a father, who has a usufruct in a tract of land, gives it to his son-in-law by way of dowry, for his daughter, and she dies during marriage, he will have a right of action against his son-in-law for the re-establishment of the usufruct. 2If a woman constitutes a dowry for her husband by giving him the usufruct in her land, then the usufruct will, properly speaking, be attached to the person of her husband, and he will lose it by non-user. If this should happen, let us see whether the woman will still be endowed. If, indeed, the ownership of the land is in the woman, and the usufruct reverts to the same, nothing now remains of the dowry which can be recovered by him in an action on dowry, because he cannot be blamed for having lost the usufruct by non-user, since she herself has profited by it, and hence she will remain without a dowry. But if the wife should alienate the property, and it should become more valuable without any advantage to her, she will still retain the right to her dowry, because the husband, who, when he could have enjoyed the usufruct, lost it by non-user, will be liable to an action on dowry. If, however, the usufruct continued to exist until the divorce took place, its restitution will be for the benefit of the woman, because although it does not immediately pass to her, still, it reverts to the property either for some price or consideration, and without any disadvantage to the owner. But where the husband did not lose the usufruct, his right to it will not be extinguished by the death of the wife. But where a divorce takes place, let us see, in the first and second instances, whether the profits should be divided in proportion to the time of the year which has elapsed. This opinion should be adopted. The restitution of the usufruct, however, ought to be made so that it will be transferred to the woman who owns the land, and be united with the ownership of the same. Even if the woman is not the owner of the land, an action on dowry will, nevertheless, lie to compel the husband to relinquish the usufruct; for the wife will be liable to an action on sale to compel her to deliver it, whether she expects to obtain a certain price for it from the purchaser, or prefers to do him a favor, rather than leave the right with someone who is unfriendly to her, and to whom it has been transferred; which she is allowed to do by law. 3A wife gave an usufruct to her husband by way of dowry, and during the marriage she sold him the tract of land. The question arose what she would be entitled to recover in an action on dowry, if a divorce took place. I replied that it was important to inquire how much the land had been sold for; as, if an appraisement of the mere property was made, the woman, in an action on dowry, was entitled to recover the price of the usufruct. But what if the husband should die before issue was joined? His heirs would not be liable for anything. For even if anyone else appeared as purchaser of the property, the heir of the husband would be liable to the woman for nothing, and the usufruct would revert to the land. If, however, the whole tract was sold for as much as it was worth, and the usufruct was not understood to have been reserved, it would be held that the woman was entitled to the dowry during the existence of the marriage. 4Where a tract of land held in common was given by way of dowry, and the other joint-owner brought an action against the husband for partition, and the land was adjudged to him, the amount of the judgment against the joint-owner in favor of the husband would be the dowry, but if the land was adjudged to a stranger without any bidding, the dowry would be a part of the price for which the land was sold. But this would not be considered to take the place of the property, and, in case of a divorce, it would not be necessary to pay it all at once, but it should be paid within a specified time. If, however, the land should be adjudged to the husband, that portion of it which had been given by way of dowry, would still remain dotal; but if a divorce took place, the other portion, on account of which the first, as dowry, came into the hands of the husband, must be returned; that is to say, he will receive as much, by way of price, from his wife as he had paid to her joint-owner on account of the judgment which was rendered against him. If either of the parties should attack this as being unjust, neither should be heard, not the woman if she objects to receiving the other part of the land, nor the husband if he refuses to surrender it; but let us see whether, as long as the marriage is in existence, only that portion of the land which was given by way of dowry is dotal, or whether the other portion is not so likewise. Julianus says that only one of the portions is dotal, and I stated in court that only one of them should be considered such. 5Where anyone who is protected by an exception binds himself, through mistake, in a stipulation with a husband to pay him a sum of money by way of dowry, and does not do so, he can be compelled to pay him; and he will be entitled to a personal action for recovery against the woman or her father, dependent upon which of them substituted him on account of the amount which he did not owe, and which he either promised, or paid to the husband.

79 Labeo, Epitomes of the Last Works of Javolenus, Book VI. A grandfather gave a dowry for his granddaughter, the daughter of his son, to his son-in-law, and then died. Servius denies that the dowry reverts to the father, and I agree with him, because it cannot be held to be derived from him, as he never owned any of the property. 1A father promised a hundred aurei to his daughter, by way of dowry, on condition that it should be paid when perfectly convenient. Ateius says that Servius gave it as his opinion, that the father should pay the dowry as soon as he could do so without subjecting himself to dishonor and infamy.

80 Javolenus, On the Last Works of Labeo, Book VI. If the debtor of a woman should promise a dowry to her betrothed, the woman can bring an action for the money against her debtor before the marriage; and Labeo says that the debtor will not be liable to the husband upon this ground afterwards. This opinion is incorrect, because the promise is in suspense as long as the obligation remains in this condition.

81 Papinianus, Questions, Book VIII. A father gave as dowry for his daughter a certain sum of money which he had borrowed, or for which he had incurred liability. As soon as this money was expended the dowry became profectitious.

82 Proculus, Epistles, Book V. Where a woman directed her husband to give a certain sum of money which he owed her as dowry for their common daughter, and he did so, I think it should be considered whether he gave the dowry in his own, or his wife’s name. If he gave it in his own name, he will still owe the money to his wife, but if he gave it in his wife’s name, he will be released from liability to his wife.

83 Javolenus, On the Last Works of Labeo, Book VI. If the debtor of a woman should promise her betrothed a dowry, she cannot collect the money from her debtor before the marriage, because the promise is in suspense as long as the obligation remains in this condition.

84 Labeo, Epitomes of Probabilities by Paulus, Book VI. Where the promise of a dowry is involved, judgment should be rendered against the party who made it, without reference to his pecuniary resources. Paulus says that this is always true with reference to a stranger, but where a son-in-law claims the promised dowry from his father-in-law, while the connection between them exists, judgment will be rendered against the father-in-law in accordance with the amount which he is able to pay. If he brings an action after the marriage has been dissolved, I think that the amount to be paid will depend upon the circumstances and personal character of the parties. For what if the father-in-law had imposed upon his son-in-law by giving him reason to expect a dowry, when he knew that he was unable to furnish it, and had done this for the purpose of deceiving his son-in-law?

85 Scævola, Digest, Book VIII. A father gave a tract of land as dowry for a daughter, and, having died, left the daughter the sole heir of his estate. She, having been pressed by the creditors, decided that it would be better to sell the tract of land which had been given by way of dowry, because it was less productive, and to retain the other tracts belonging to the estate, because they yielded a larger income. The husband gave his consent to this, provided there was no fraud in the transaction. I ask whether that part of the dowry which was included in this tract of land could be lawfully transferred to the woman during the marriage. The answer was that it could be, if the price of the same was paid to a creditor.