De pactis dotalibus
(Concerning Dotal Agreements.)
1 Iavolenus libro quarto ex Cassio. Pacisci post nuptias, etiamsi nihil ante convenerit, licet. 1Pacta quae de reddenda dote fiunt, inter omnes fieri oportet, qui repetere dotem et a quibus repeti potest, ne ei, qui non interfuit, apud arbitrum cognoscentem pactum non prosit.
1 Javolenus, On Cassius, Book IV. It is lawful for an agreement to be made after marriage, even if none has previously been, entered into. 1Agreements made for the purpose of returning a dowry should be entered into by all the parties who have either a right to recover the dowry, or from whom it can be recovered, in order that one of them, who is not a party to the proceedings, will not be able to obtain any advantage from the magistrate who may be called upon to enforce the agreement.
2 Ulpianus libro nono decimo ad Sabinum. Si convenerit, ut, quoquo modo dissolutum sit matrimonium, liberis intervenientibus dos apud virum remaneret, Papinianus Iuniano praetori respondit morte mariti finito matrimonio neque convenisse videri dotem remanere, et, si convenisset, non esse servandum pactum contra dotem, cum mariti mortalitas intervenit.
2 Ulpianus, On Sabinus, Book XIX. Where an agreement has been made that the dowry shall remain in the hands of the husband, no matter in what way the marriage may be dissolved, provided there are any children, Papinianus stated to Junianus, the Prætor, that in case the marriage was terminated by the death of the husband, it must be held that no agreement had taken place for the retention of the dowry, and that, under such circumstances, an agreement which was prejudicial to the dowry, should not be observed when the death of the husband takes place.
3 Paulus libro tertio ad Sabinum. Pacta conventa, quae in divortii tempus collocata sunt, non facto divortio locum non habent.
3 Paulus, On Sabinus, Book III. Where an agreement is entered into which has reference to the time of a divorce, and a divorce does not take place, the agreement will not become operative.
4 Ulpianus libro trigesimo primo ad Sabinum. Si convenerit, ut fructus in dotem converteretur, an valeat conventio? et Marcellus ait libro octavo digestorum conventionem non valere: prope enim indotatam mulierem hoc pacto fieri. sed ita distinguit, ut, si quidem fundum in dotem dederit mulier ita, ut maritus fructus redderet, non esse ratum pactum: idemque esse et si usum fructum in dotem hoc pacto dedit. quod si convenisset de fructibus reddendis, hoc est ut in dote essent fructus quosquos percepisset, et fundus vel usus fructus in hoc traditus est, non ut fundus vel fructus fieret dotalis, sed ut fructus perciperet dotis futuros, cogendum de dote actione fructus reddere. erunt igitur in dote fructus et fruetur iste usuris, quae ex fructibus collectis et in sortem redactis percipi possunt. ego utrubique arbitror interesse, qua contemplatione dos sit data, ut, si ob hoc ei maiorem dotem mulier dedit, quia fructus volebat esse dotis contento marito ea pecunia quae ex usuris redituum colligitur, posse dici conventionem valere: nec enim videtur sterilis esse dos. finge quadragena annua esse reditus apud eum, qui non acciperet in dotem, nisi hoc convenisset, plus trecentum: uti boni consuleret tam uberem dotem consecutus. et quid dicimus, si pactum tale intervenit, ut maritus fructus in dotem converteret et mulier se suosque aleret tuereturve et universa onera sua expediret? quare non dicas conventionem valere?
4 Ulpianus, On Sabinus, Book XXXI. If it should be agreed that the profits of property should be converted into a dowry, will the agreement be valid? Marcellus says in the Eighth Book of the Digest that such an agreement is not valid, for a woman by a contract of this kind almost becomes unendowed. He, however, makes the distinction that if a woman should give a tract of land as dowry, under the condition that her husband shall deliver to her the profits of the same, such an agreement is void; and the same rule applies if she gave an usufruct as dowry under a similar agreement. If, however, a contract should be made with reference to giving the profits, that is to say, that any profits which may be obtained shall compose the dowry, and the land, or the usufruct of the same is delivered in compliance with it, not with the understanding that the profits are to become dotal, but that the husband can collect the profits which will become a part of the dowry; he can be compelled by an action on dowry to deliver said profits. The profits will, therefore, form the dowry, and he can enjoy the interest obtained from them, as well as acquire what is added to the principal. I think that, in both instances, consideration should be paid to the intention with which the dowry was given, so that if the wife gave a large dowry because she wished the income of the same to constitute it, and expected the husband to be content with the interest it might yield; it can be said that the agreement will be valid, for then the dowry is not unprofitable. Suppose, for example, that the husband receives an annual income of forty aurei by way of dowry, while if such an agreement had not been entered into he would have received more than three hundred, would not it be of great advantage to him to obtain so profitable a dowry? And what shall we say if the agreement has been drawn up in such terms that the husband can turn the profits into a dowry, and that the wife must maintain herself and her family, and provide for them, and pay all their expenses? Why can you not hold that an agreement of this kind will be valid?
5 Paulus libro septimo ad Sabinum. Illud convenire non potest, ne de moribus agatur vel plus vel minus exigatur, ne publica coercitio privata pactione tollatur. 1Ac ne illa quidem pacta servanda sunt, ne ob res donatas vel amotas ageretur, quia altero pacto ad furandum mulieres invitantur, altero ius civile impugnatur. 2Et si convenerit, ne ob impensas necessarias ageretur, pactum non est servandum, quia tales impensae dotem ipso iure minuunt.
5 Paulus, On Sabinus, Book VII. A contract cannot be made which will prevent the husband from taking action in case of the immorality of his wife, or which will permit him to collect more or less than the law allows under such circumstances; for the right to inflict public punishment cannot be annulled by a private agreement. 1Agreements of this kind should not be observed where reference is had to the recovery of property given or removed, because in the first instance, women are invited to steal, and in the second, the Civil Law is violated. 2If it should be agreed that the husband shall not bring suit for necessary expenses incurred, the agreement should not be observed, because expenses of this kind diminish the dowry by operation of law.
6 Ulpianus libro quarto ad edictum. Pomponius ait maritum non posse pacisci, ut dolum solummodo in dotem praestet, videlicet propter utilitatem nubentium: quamvis pacisci possit, ne sit periculo eius nomen debitoris qui ei dotem promisit: nam et ut sit dos periculo mulieris, pacisci eum posse probat, et per contrarium, ut ea dos quae periculo mulieris est sit periculo mariti.
6 Ulpianus, On the Edict, Book IV. Pomponius says that a husband cannot contract to give a guarantee only against fraud with reference to the dowry, which is provided for the benefit of married persons, although he can agree that he shall not be responsible for the claim of a debtor, who has promised him a dowry. Pomponius holds that he can agree that the dowry will be at the risk of the wife; and, on the other hand, stipulate that the dowry which is at the risk of the wife shall be at the risk of the husband.
7 Pomponius libro quinto decimo ad Sabinum. Cum dos filiae nomine datur, optimum est pactum conventum cum utroque generum facere, quamquam initio dotis dandae legem quam velit etiam citra personam mulieris is qui dat dicere possit. si vero post datam pacisci velit, utriusque persona in paciscendo necessaria est, quoniam iam adquisita mulieri dos tum esset. quo casu si solus pater pactus esset sine filia, sive solus agat sive adiuncta filiae persona, ei soli nocebit et proderit pactum conventum nec, si sola filia aget, neque proderit neque nocebit ei. si vero filia sola pacta fuerit, quo pacto melior condicio patris fiet, proderit et patri, quoniam per filiam patri adquiri potest, per patrem filiae non potest. si vero sic pacta sit filia, ut noceat, ipsi quandoque filiae agenti nocebit pactum, patri vero nullo modo nocebit, nisi adiecta quoque filiae persona experiatur. dicendum est paciscendo filiam patris condicionem deteriorem facere non posse eo casu, quo mortua ea in matrimonio dos ad patrem reversura est.
7 Pomponius, On Sabinus, Book XV. Where a dowry is given in behalf of a daughter, it is best for the son-in-law to make an agreement with both parties; although, in the beginning, when a dowry is given, the father can impose any condition which he wishes, without considering the person of the woman. But if, after the dowry has been given, he wishes to make an agreement, both parties must be considered when this is done, since the dowry has already been acquired by the woman. In this instance, the father either makes the agreement without his daughter, or alone, or he does so after haying called his daughter in, and the agreement will either benefit or injure no one but himself. If, however, the daughter alone enters into a contract by which the condition of her father becomes improved, it will also benefit him, since he can acquire property by means of his daughter, while a daughter cannot do this through her father. But where the contract made by the daughter in injurious, while it may prejudice her rights, it will in no way be disadvantageous to the father, unless he institutes proceedings together with his daughter. It must be said that the daughter can never, by making any agreement, cause the condition of her father to become worse, as in case she should die during marriage the dowry will revert to her father.
8 Paulus libro septimo ad Sabinum. Quotiens patre furente vel ab hostibus capto filius familias ducit uxorem filiaque familias nubit, necessario etiam pacto cum ipsis dumtaxat dotis nomine fieri poterit.
8 Paulus, On Sabinus, Book VII. Where a son under paternal control marries while his father is insane, or is in the hands of the enemy, or where his daughter marries under similar circumstances, an agreement having reference to a dowry entered into with either must be made with each individually.
9 Pomponius libro sexto decimo ad Sabinum. Si ita conveniat, ut, si vivo socero mortua sit filia, ipsi socero, si mortuo, filio eius, si filio quoque defuncto totum suo heredi reddatur, benigna interpretatione potest defendi utilem stipulationem esse.
9 Pomponius, On Sabinus, Book XVI. When an agreement is entered into providing that if a daughter should die during the lifetime of her father-in-law, her entire dowry shall be given to the latter, and if he should die, to his son, and if his son should also die, to the heir of the father-in-law; such a stipulation by an indulgent construction can be upheld as equitable.
10 Idem libro vicesimo sexto ad Sabinum. Avus pactus est, cum dotem pro nepote suscepisset, ne a se neve a filio dos peteretur, ab alio vero quam filio herede ut dos peteretur. exceptione conventionis filius tuendus erit, quippe heredi nostro cavere concessum est, nec quicquam obstat quo minus certae personae, si heres erit sibi, caveri possit, quod non idem et in ceteris heredibus cavetur: et ita Celsus scribit.
10 The Same, On Sabinus, Book XXVI. A grandfather, in providing a dowry for his granddaughter, agreed that it should never be claimed by himself, or his son, but that it could be claimed by any other heir than his son. The latter will be protected by an exception based on the contract, as we are permitted to provide for our heirs, and there is nothing to prevent our doing so for any certain person, if he should be our heir; but this does not apply to other heirs. Celsus held the same opinion.
11 Ulpianus libro trigesimo quarto ad edictum. Cum pater dotem pollicitus fuerit et paciscatur, ne se vivo petatur neve constante matrimonio dos petatur, ita pactum interpretandum divus Severus constituit, quasi adiectum esset se vivo: hoc enim ita accipiendum esse contemplatione paternae pietatis et contrahentium voluntatis, ut posterior quoque pars conventionis ad vitam patris relata videatur, ne diversa sententia fructum dotis ab oneribus matrimonii separet quodque indignissimum est, inducat ut non habuisse dotem existimetur. quo rescripto hoc effectum est, ut, si quidem vivo patre decesserit filia aut sine culpa sua divorterit, omnimodo dos peti non possit, constante autem matrimonio mortuo patre peti possit.
11 Ulpianus, On the Edict, Book XXXIV. Where a father promised a dowry, and agreed that it should not be claimed by him while he was living, nor, in any event, so long as the marriage continued to exist, the Divine Severus decreed that the agreement should be interpreted just as if it had contained the addition, “While he was living.” For this is to be understood to have reference to paternal affection, and the wishes of the contracting parties, in such a way that the latter part of the agreement will be held to have reference to the lifetime of the father, as a different construction would separate the profits of the dowry from the expenses of marriage, which would be intolerable; and the result would be that the woman would be held to have no dowry. Hence it was brought about by this Rescript, that if the daughter should die while her father was living, or should be divorced without any blame attaching to her, the dowry could, by no means, be claimed by her husband, but that he could claim it if the father should die while the marriage existed.
12 Paulus libro trigesimo quinto ad edictum. Si pater dotem dederit et pactus sit, ut mortua in matrimonio filia dos apud virum remaneret, puto pactum servandum, etiamsi liberi non interveniant. 1Ex pactis conventis, quae ante nuptias vel post nuptias interponi solent, alia ad voluntatem pertinent, ut mulier dote promissa se alat et donec nupta sit, dos ab ea non petatur, aut certam summam viro praestet et ab eo alatur, et his similia: alia ad ius pertinent, veluti quando dos petatur, quemadmodum reddatur, in quibus non semper voluntas contrahentium servatur. ceterum si convenerit, ne omnino dos petatur, indotata erit mulier. 2Si mulier pacta sit, ne amplius quam pars dimidia dotis a se petatur et poenam stipulata sit, Mela ait alterutro eam contentam esse oportere: vel exceptione pacti et acceptam facere poenae obligationem, vel, si ex stipulatu agat, denegandam ei exceptionem. 3Si fundo aestimato in dotem dato pacta sit mulier, ut, quanto pluris venierit, id in dote sit, Mela ait servandum, cum et ex contrario convenire possit, ut, si minoris venierit, ipsa debeat. 4Si pacta sit mulier, ut sive pluris sive minoris fundus aestimatus venierit, pretium quanto res venierit in dote sit, stari eo pacto oportet: sed si culpa mariti minoris venierit, et id ipsum mulierem consequi.
12 Paulus, On the Edict, Book III. Where a father gave a dowry, and agreed that if his daughter died during marriage, the dowry should remain in the hands of her husband; I think that the agreement must be observed, even if no children had been born. 1Among the agreements which are usually entered into before and after marriage, some are voluntary, as, for instance, where it is stated that the woman shall support herself with the promised dowry; and, as long as the marriage continues, the dowry cannot be demanded of her by her husband; or she can furnish him a certain sum for his support; or some other provisions similar to these may be made. There are other agreements which relate to the law, for example, those which prescribe the way in which a dowry shall be returned when it is claimed; and, in cases of this kind, the will of the contracting parties is not always observed. If, however, it should be agreed that the dowry, under no circumstances, can be claimed, the woman will remain unendowed. 2Where a woman agrees that no more than half of the dowry can be demanded of her, and she stipulates for a penalty; Mela says that she should be content with one or the other of two things; either with an exception based upon the agreement with a release of the obligation of a penalty, or if she proceeds under the stipulation, she should be denied the right to. an exception. 3Where a tract of land which has been appraised is given by way of dowry, and the woman agrees that if it brings any more when sold, the surplus shall become part of her dowry; Mela says that such an agreement must be carried out, just as, on the other hand, she can agree to be liable for the deficiency in case the land should sell for less. 4If a wife should agree that whether a tract of land given by way of dowry sells for either more or less than the appraisement, the price that it brings shall constitute her dowry, this agreement must be executed; but if the property should sell for less, through the fault of the husband, the wife can recover the deficiency from him.
13 Iulianus libro septimo decimo digestorum. Item si non venierit, aestimatio praestari debebit.
13 Julianus, Digest, Book XVII. Moreover, if the land should not be sold, the appraisement of the same should be furnished.
14 Paulus libro trigesimo quinto ad edictum. De die reddendae dotis hoc iuris est, ut liceat pacisci, qua die reddatur, dum ne mulieris deterior condicio fiet,
14 Paulus, On the Edict, Book XXXV. With reference to the time when the dowry should be returned, the law permits an agreement to be made fixing the day when this may be done, provided that the condition of the woman is not rendered any worse thereby:
15 Gaius libro undecimo ad edictum provinciale. id est, ut citeriore die reddatur:
15 Gaius, On the Provincial Edict, Book XI. That is to say, it may be returned sooner.
16 Paulus libro trigesimo quinto ad edictum. ut autem longiore die solvatur dos, convenire non potest, non magis quam ne omnino reddatur.
16 Paulus, On the Edict, Book XXXV. An agreement cannot be made for the dowry to be returned at a later date than that established by law; any more than it can be agreed that it shall not be returned at all.
17 Proculus libro undecimo epistularum. Atilicinus Proculo suo salutem. Cum inter virum et uxorem pactum conventum ante nuptias factum sit, ut quibus diebus dos data esset, isdem divortio facto redderetur, post quinquennium quam nuptiae factae sunt uxor viro dotem dedit: divortio facto quaero, utrum quinquennii die vir uxori dotem redderet an statuto legibus tempore. Proculus respondit: quod ad diem reddendae dotis attinet, pacto existimo meliorem condicionem mulieris fieri posse, deteriorem non posse: itaque si cautum est, ut propiore tempore, quam legibus constitutum est, reddatur, stari eo debere, si ut longiore, nec valere id pactum conventum. cuius sententiae conveniens est dicere, si pacto convento cautum est, ut quanto serius quaeque et post nuptias data fuerit, tanto post divortium reddatur, si propiore, quam in reddenda dote constitutum est, data sit, valere pactum conventum, si longiore, non valere.
17 Proculus, Epistles, Book XI. Atilicinus to his friend Proculus, Greeting: “Where an agreement was made between a man and his wife before marriage, that, in case a divorce took place, the same time should be granted for the return of the dowry that was given for its bestowal; the woman gave the dowry to her husband five years after marriage. A divorce having taken place, I ask whether the husband should restore the dowry to his wife within five years, or whether he must do so within the time fixed by law? Proculus answered with reference to the time of returning the dowry: “I think that by an agreement the condition of the woman can be improved and cannot be made worse; therefore, if it is provided that the dowry shall be returned in a shorter time than that established by law, it should be carried out, but if it is agreed to return it after a longer time, such a contract is not valid.” As to this opinion, it is proper to state that if it is proved by the agreement that, after divorce, there should be the same delay for the return of the dowry as there was for its delivery after marriage, and if this delay in returning it was shorter than that authorized by law, the agreement will be valid, but if it is longer, it will not be.
18 Iulianus libro octavo decimo digestorum. Licet manente matrimonio non possit inter virum et uxorem conveniri, ut longiore dos reddatur, post divortium tamen si iusta causa conventionis fuerit, custodiri id pactum debet.
18 Julianus, Digest, Book XVIII. Although, during the continuance of the marriage, the husband and wife may be unable to agree to defer the restoration of the dowry for a longer time than is authorized by law; still, after a divorce, if there was good reason for the agreement, it should be kept.
19 Alfenus libro tertio digestorum a Paulo epitomatorum. Aliud est, si pater pro filia dotem promisit, ut annua bima trima quadrima quinto anno dos a se redderetur, et convenit, ut isdem diebus dos soluto matrimonio redderetur: hoc enim pactum ita valet, si patri filia heres exstitisset et interveniente ea pactum conventum fuerit.
19 Alfenus, Epitomes of the Digest by Paulus, Book III. It is different where a father, in promising a dowry for his daughter, agrees that it shall be paid by him in one, two, three, four, and five years; and states that it shall be returned in the same manner, if the marriage should be dissolved, for this agreement will be valid if the daughter should become the heir of her father, and if she was present at the time when the contract was made.
20 Paulus libro trigesimo quinto ad edictum. Ob res quoque donatas vel amotas vel impensas factas tunc facta pactio valebit, id est post divortium. 1Si extraneus de suo daturus sit dotem, quidquid vult pacisci et ignorante muliere, sicut et stipulari potest: legem enim suae rei dicit: postquam vero dederit, pacisci consentiente muliere debet. 2Si convenerit, ne a muliere neve a patre dos petatur, heres non habebit exceptionem. sed si convenerit, ne manente matrimonio vivo patre petatur, mortuo patre statim exigitur, et, si non petierit maritus, tenebitur huius culpae nomine, si dos exigi potuerit: nisi forte ante diremptum sit matrimonium, quam facultatem petendi haberet.
20 Paulus, On the Edict, Book XXXV. An agreement made on account of property given or appropriated by the wife, or expenses incurred, will be valid; that is to say after a divorce has taken place. 1Where a stranger is about to give a dowry out of his own property, he can stipulate for and agree to anything that he chooses even without the knowledge of the woman; for he is imposing conditions upon what belongs to him, but after he has given the dowry, he can only enter into an agreement concerning it with the consent of the woman. 2If it should be agreed that the dowry cannot be demanded either from the wife or from the father, the heir of either of them will not be entitled to an exception. If, however, the agreement was that it should not be claimed during the marriage, in the lifetime of the father, it can be claimed immediately after his death; and if the husband should not claim it, he will be liable on the ground of negligence if the dowry could be exacted; unless the marriage was dissolved before he had the power to demand it.
21 Iulianus libro septimo decimo digestorum. Si mulier dotis causa promiserit certam summam et pro ea mancipia in dotem dederit ea condicione, ut periculo eius essent et si quid ex his natum esset ad eam pertineat, stari pacto convento oportebit: nam constat posse inter uxorem et virum conveniri, ut dos, quae in pecunia numerata esset, permutaretur et transferatur in corpora, cum mulieri prodest.
21 Julianus, Digest, Book XVII. Where a woman promises a certain sum of money, by way of dowry, and, instead of it, gives slaves under the condition that they shall be at her risk, and if any children are born to them they shall belong to her, the agreement must be carried out; for it is settled that a contract can be made between husband and wife setting forth that a dowry consisting of a sum of money may be changed and transferred to other property, if it will be advantageous to the woman.
22 Idem libro secundo ad Urseium Ferocem. Quidam fundum dotis causa ab uxore sua acceperat interque eos convenerat, ut mercedes eius fundi vir uxori annui nomine daret: deinde eum fundum vir matri mulieris certa pensione colendum locaverat eaque, cum mercedes eius fundi deberet, decesserat et filiam suam solam heredem reliquerat et divortium factum erat: vir deinde petebat a muliere mercedes, quas mater debuerat. placuit exceptionem mulieri dari non debere ‘ac si inter se et virum non convenisset, ut hae mercedes sibi alimentorum nomine darentur’, cum futurum sit, ut quodammodo donationes inter virum et uxorem confirmentur: nam quod annui nomine datur, species est donationis.
22 The Same, On Urseius Ferox, Book II. A certain man received a tract of land from his wife by way of dowry, and it was agreed between them that the husband should give the rent of said land to his wife as annual income. The husband afterwards leased the land to the mother of the woman to be cultivated for a certain amount of rent, and she died without having paid it, leaving her daughter her sole heir, and then a divorce took place. Her husband brought suit against the woman for the rent which her mother owed him, and it was decided that an exception should not be granted her, as if the agreement had not been made between her and her husband that the said rent should be given to her for her maintenance; since, under some circumstances, donations may legally be made between husband and wife, for what is given by way of annual income is a species of gift.
23 Africanus libro septimo quaestionum. Pater cum filiae suae nomine dotem daret, pactus est, ut mortua filia uno pluribusve liberis superstitibus deducta parte tertia reliqua dos sibi aut post mortem suam illi aut illi filiis quos in potestate habebat reddatur: deinde haec ita fieri stipulatus est: post mortem eius mulier in matrimonio decesserat relictis filiis: quaesitum est, an ex stipulatione duas partes illi petere possint. respondi posse: etenim vim eius stipulationis hanc esse, ut, si in matrimonio mortua esset, dos patri redderetur, et perinde habendum, ac si talis stipulatio interposita fuisset: ‘si navis ex Asia venerit, mihi aut post mortem meam Lucio Titio dari spondes?’ nam et si post mortem stipulatoris navis venisset, heredi deberi.
23 Africanus, Questions, Book VII. A father, at the time that he gave a dowry to his daughter, agreed that if she should die leaving one or more children, the dowry should be returned to him, after deducting the third part of the same; or, after his death, that it should be given to one or the other of the children who were under his control. This was afterwards expressly stipulated. After the death of the father, the woman died during marriage, leaving children. The question arose whether the children could claim two-thirds of the dowry, in accordance with the stipulation. I answered that they could, for the effect of the stipulation was that if the woman should die during marriage, her dowry should be returned to her father, and the same rule applies as where a stipulation was entered into in the following terms: “If a ship comes from Asia, do you agree to pay me a certain sum of money, or, after my death pay it to Lucius Titius?” for if the ship should arrive after the death of the stipulator, the money will be due to my heir.
24 Florentinus libro tertio institutionum. Si inter virum et uxorem pactum est, ut certa pars dotis vel tota ob unum vel plures liberos intervenientes retineatur, etiam eorum liberorum nomine, qui ante nati sunt, quam dos daretur aut amplietur, conventio rata est: nam sufficit eos ex eo matrimonio nasci, in quo dos data est.
24 Florentinus, Institutes, Book III. Where it was agreed between husband and wife that a certain portion of the dowry, or all of it, should be retained in case of the birth of one or more children; the agreement must be carried into effect, even on account of children who had been born before the dowry was given or increased, for it is sufficient for them to be born during the marriage with reference to which the dowry was bestowed.
25 Ulpianus libro primo responsorum. Quod de reddenda dote, si data fuisset, mortua in matrimonio filia convenit, idem de non petenda quoque videri convenisse ac patrem pacti conventi exceptionem nanctum ad heredem suum transmississe.
25 Ulpianus, Opinions, Book I. With reference to the return of a dowry, where it was agreed to do so if the girl died before marriage, it is also held that the husband agreed not to claim it, and that the father had obtained the right to transmit to his heir an exception on the ground of contract.
26 Papinianus libro quarto responsorum. Inter socerum et generum convenit, ut, si filia mortua superstitem anniculum filium habuisset, dos ad virum pertineret: quod si vivente matre filius obisset, vir dotis portionem uxore in matrimonio defuncta retineret. mulier naufragio cum anniculo filio periit. quia verisimile videbatur ante matrem infantem perisse, virum partem dotis retinere placuit. 1Vir dotem, quam ex pacto filiae nomine retinere potuit, si lapsus errore non retinuit, filiam, quae patris sola, matri pro parte heres exstiterit, apud arbitrum divisionis non improbe dotis perperam a patre solutae praeceptionem desiderare constitit. 2Cum inter patrem et generum convenit, ut in matrimonio sine liberis defuncta filia dos patri restituatur, id actum inter contrahentes intellegi debet, ut liberis superstitibus filia defuncta dos retineatur, nec separabitur portio dotis additamenti causa data, si postea nihil aliud conveniat. 3Convenit, ut mulier viri sumptibus quoquo iret veheretur, atque ideo mulier pactum ad litteras viri secuta provinciam, in qua centurio merebat, petit. non servata fide conventionis licet directa actio nulla competit, utilis tamen in factum danda est. 4Filia cum pro se dotem promitteret, pepigit, ut, si in matrimonio sine liberis decessisset, matri suae dos solvatur. pacto filiae nulla matri quaeritur actio: si tamen heres puellae matri pecuniam dotis solverit, viro contra placita petenti dotem obstabit exceptio. 5Pater, si filia nupta mortem obisset, dotem dari stipulatus est: constante matrimonio capitali crimine damnatus est. divortio secuto vel morte viri soluto matrimonio stipulationis condicio deficit: quod si mulier in matrimonio decesserit, ex stipulato fisco dotis actio quaereretur: post verum autem divortium renovatis nuptiis non committitur fisco stipulatio, licet defuncta sit in matrimonio filia, quoniam ad primas nuptias pertinet.
26 Papinianus, Opinions, Book IV. It was agreed between a father-in-law and his son-in-law that if the daughter should die leaving a child one year old, the dowry would belong to her husband, but if the child should die during the lifetime of its mother, the husband could retain only a portion of the dowry where the wife died during marriage. The woman lost her life by shipwreck at the same time as her child, who was one year old. For the reason that it appeared probable that the child died before its mother, it was decided that the husband could retain a portion of the dowry. 1A husband can retain a dowry granted to a daughter by an agreement, and if he should fail to do so through mistake, the daughter, who is the sole heir to her father and an heir to a part of her mother’s property, can, it is not wrongly held, assert a preferred claim to the dowry improperly paid by her father, in case of the partition of her mother’s estate. 2Where it is agreed between a father and a son-in-law that the dowry shall be returned to the father, in case the daughter should die during marriage without leaving any children, it must be understood to have been agreed between the parties that if the daughter should die leaving children, the dowry shall be retained, and that no portion of the same shall be separated from it on account of any addition which has been made thereto, if no agreement to the contrary was made. 3It was agreed that a wife should be transported at the expense of her husband wherever she went, and therefore in strict pursuance of this agreement the woman followed her husband, and sought him in the province where he was serving as centurion. If the husband did not keep the agreement, although a direct action would not lie, still an equitable action in factum should be granted. 4Where a daughter, who was promising a dowry for herself, inserted in the contract that if she should die during marriage without leaving any children, her dowry should be paid to her mother; this agreement of her daughter confers no right of action upon the mother. Still, if the heir of the daughter should pay the money composing the dowry, and the husband should bring suit for it, an exception can be pleaded against him for claiming the dowry in violation of his own agreement. 5A father stipulated for the dowry to be given to him, if his daughter should die during marriage. While the marriage was still in existence, the father was convicted of a capital crime. The condition of the stipulation would not take effect if a divorce took place, or the marriage was dissolved by the death of the husband. If, however, the woman should die during marriage, the right to an action on dowry arising from the stipulation would be acquired by the Treasury. But if the parties should be remarried after a divorce, the stipulation would not become operative for the benefit of the Treasury, even though the daughter died during the second marriage, as it had reference to the first marriage.
27 Idem libro primo definitionum. Si liberis sublatis reversa post iurgium per dissimulationem mulier veluti venali concordio ne dotata sit conveniat, conventio secundum ordinem rei gestae moribus improbanda est.
27 The Same, Definitions, Book I. If a woman who has children should return to her husband through duplicity, after a quarrel; as for instance, where, through venal motives, she agrees that she shall not be endowed; this agreement being contrary to custom ought not to be enforced, in accordance with the circumstances of the case.
28 Paulus libro quinto quaestionum. Quaeris, si pacta sit mulier vel ante nuptias vel post nuptias, ut ex fundi fructibus quem dedit in dotem creditor mulieris dimittatur, an valeat pactum? dico, si ante nuptias id convenerit, valere pactum eoque modo minorem dotem constitutam: post nuptias vero cum onera matrimonii fructus relevaturi sunt, iam de suo maritus paciscitur ut dimittat creditorem, et erit mera donatio.
28 Paulus, Questions, Book V. The question is asked whether, where a woman, either before or after marriage, agrees that her creditor shall be satisfied with the crops of land which she gave by way of dowry, will the agreement be valid? I say that it will be valid, if it is made before marriage and that in this way the dowry will be diminished; but if it is made after marriage, as the profits of the dowry are intended to relieve the matrimonial burdens, the husband practically consents to pay the creditor out of his own property, and the transaction will be a mere gift.
29 Scaevola libro secundo responsorum. Cum maritus, qui aestimata praedia in dotem acceperat, manente matrimonio pactus est circumscribendae mulieris gratia, ut praedia inaestimata essent, ut sine periculo suo ea deteriora faceret: quaesitum est, an secundum priores dotales tabulas praedia aestimata remanerent et periculum eorum ad maritum pertineret. respondi non idcirco pactum de quo quaereretur impediri, quod in matrimonio factum esset, si deteriore loco dos non esset: nihilo minus eo pacto admisso, si deteriora praedia faceret, eo etiam nomine dotis eum actione teneri. 1Titius mulieris nomine dotem dedit et stipulatus est in casum mortis et divortii: divortio secuto non repetita dote Titius decessit: mulier ex voluntate heredis eius redintegravit matrimonium: quaesitum est, an ex stipulatu dotem petere possit. respondi heredem Titii, si consensisset, ut ea quantitas, quam ex stipulatu consequi potuerat, dotis reconciliato matrimonio fieret, posse pacti exceptione summoveri. 2Mulier de dote quam dedit pacta est, ut, si in matrimonio decessisset, fratri eius redderetur isque in eum casum stipulatus est: mulier decedens quasdam res dotales marito legavit et aliis, quosdam ex servis dotalibus manumisit. quaesitum est, an maritus earum nomine, quas legavit mulier, et servorum, quos manumisit, fratri tenetur. respondi nihil proponi, cur non teneretur, cum et iam heredes defunctae tam legatariis quam libertatibus obnoxii sint.
29 Scævola, Opinions, Book II. Where a husband received certain lands which had been appraised, by way of dowry, and, during the existence of the marriage, with the intention of deceiving his wife, agreed that the said lands should not be considered as appraised, so that he could render them less valuable without running any risk; the question arose whether the lands which had been appraised should remain so according to the dotal estimate, and the husband be liable to their deterioration. I answered that the contract would not be affected by what was proposed, because this was done during marriage, provided the dowry was not diminished in value; still, if the land should be deteriorated after the contract was made, the woman would be entitled to a dotal action on this ground against her husband. 1Titius gave a dowry for a woman, and made a stipulation with reference to it in case of death or divorce. A divorce having taken place, Titius died without claiming the dowry, and the woman renewed her marriage with the consent of the heir. The question arose whether the heir could demand the dowry on the ground of the stipulation. I answered that the heir of Titius would be barred by an exception on the ground of contract, if he had given his consent that the amount which he could recover on account of the stipulation should become the dowry of his mother, when the marriage was renewed. 2A woman, who gave property as dowry, agreed that if she died during marriage it should be returned to her brother, and the latter made a stipulation to that effect. The wife, at her death, bequeathed certain dotal property to her husband, as well as to others, and she also manumitted certain slaves who formed a part of the dowry. The question arose whether the husband was liable to the brother for the property which the woman bequeathed, and the slaves which she manumitted. I answered that there was nothing in the facts stated why he should not be, as the heirs of the deceased, as well as the legatees were liable on account of the manumission.
30 Tryfoninus libro decimo disputationum. Baebius Marcellus Baebio Marullo dotis filiae suae nomine centena promiserat et convenerat inter eos, ne ea dos constante matrimonio peteretur, vel si post mortem patris in matrimonio sine liberis filia decessisset, ut dimidia dos apud Marullum remaneret, dimidia fratri mulieris restitueretur: eaque etiam in stipulationem deducta erant. mortuo Marcello, filio et filia superstitibus, dote universa filiae praelegata Marullus nata filia diverterat et mulier decesserat fratre suo et filia ex partibus aequis heredibus relictis. apud Petronium magnum praetorem Marullus ab herede filio Marcelli ex dotis promissione universam dotem petebat illa coniectura, quasi inter duos placuisset nullo filiorum exstante mortua muliere partem dotis remanere apud maritum, magis convenisset utique totam eius esse dotem, si filium filiamve habuisset. ex diverso respondebatur pacti quidem vulgaris exceptionem etiam heredi proficere: sed in specie, quae proponitur, non quasi heres mulieris ex persona defunctae se exceptione pacti tuebitur, sed ipse erat ille, qui etiam viva muliere, si ab eo dos peteretur, potuisset ea exceptione Marullum, quia divortium factum erat, summovere, eandemque defensionem etiam post mortem sororis suae retinebat. itaque placuit eum ab ea petitione absolvi nulla ex hac sententia facta derogatione fideicommissi petitioni, quam iure hereditario per filiam heres uxoris Marullus in parte dimidia habebat.
30 Tryphoninus, Disputations, Book X. Bæbius Marcellus promised Bæbius Maryllus a hundred aurei, by way of dowry for his daughter, and it was agreed between them that the dowry should not be claimed during the existence of the marriage; or, if the daughter should die during marriage without leaving any children, after the death of her father, half of the dowry should remain in the hands of Maryllus, and half of it should be returned to the brother of the woman; and these matters were also set forth in a stipulation. Marcellus having died leaving a son and a daughter, and having bequeathed the entire dowry to his daughter, Maryllus divorced his wife by whom he had a daughter, and his wife died, leaving her brother and her daughter heirs to equal shares of her estate. Maryllus brought suit before Petronius Magnus, the Prætor, for the entire dowry, against the son of Marcellus, who was his heir, on the ground of the promise of the same; alleging that it had been agreed upon between the two parties that if the woman died without leaving any children, half of the dowry should remain in the hands of her husband, and that the proper construction of the agreement was that the entire dowry should belong to him if the woman should have a son or a daughter. On the other hand, it was held that the exception based on the common agreement was also advantageous to the heir, but that, in the case proposed, the heir being, as it were, the representative of the deceased, could not protect himself by means of an exception on the ground of contract; but that, if he himself had been sued for the dowry during the lifetime of the woman, he might have barred Maryllus by this exception, because a divorce had taken place, and he could interpose the same defence, even after the death of his sister. Therefore it was decided that the heir must be released from liability for the said claim, but that there should be nothing in this opinion to prevent the assertion of the claim based on the trust, under the terms of which Maryllus was entitled to half of the estate as the heir of his wife, obtained through his daughter by hereditary right.
31 Scaevola libro tertio quaestionum. Si inter virum et uxorem convenit, ut extremi anni matrimonii fructus nondum percepti mulieris lucro fiant, huiusmodi pactum valet.
31 Scævola, Questions, Book III. If it is agreed between husband and wife that the profits of the last year of marriage, which have not yet been obtained, shall be applied for her benefit, a contract of this kind is valid.
32 Iavolenus libro sexto ex posterioribus Labeonis. Uxor viro fundum aestimatum centum in dotem dederat, deinde cum viro pactum conventum fecerat, ut divortio facto eodem pretio uxori vir fundum restitueret: postea volente uxore vir eum fundum ducentorum vendiderat, et divortium erat factum. Labeo putat viro potestatem fieri debere, utrum velit ducenta vel fundum reddere, neque ei pactum conventum remitti oportere. idcirco puto hoc Labeonem respondisse, quoniam voluntate mulieris fundus veniit: alioquin omnimodo fundus erat restituendus. 1Si pater filiae nomine certam pecuniam in dotem promiserat et pactus est, ne invitus eam solveret: nihil ab eo exigendum puto, quia id, quod pacto convento ne invitus exigeretur convenerit, in dotis causam esse non videretur.
32 Javolenus, On the Last Works of Labeo, Book VI. A wife gave to her husband, by way of dowry, land appraised at a hundred aurei, and then made an agreement with him to return the land to her at the same price in case of a divorce. The husband afterwards sold the said land for two hundred aurei, with the consent of his wife, and then a divorce took place. Labeo thinks that the husband should have the privilege of paying her two hundred aurei, or of returning the land, whichever he may choose; and that the obligation arising from the agreement should not be released. I think that Labeo gave this opinion because the land had been sold with the consent of the woman, otherwise it should, by all means, be returned. 1If a father promises a certain sum of money as a dowry for his daughter, and it is agreed that he shall not be compelled to pay it against his consent, I think that nothing can be collected from him; because the clause contained in the contract which stated that he could not be compelled to pay it, should be held to refer to the dowry.