De fundo dotali
(Concerning land given by way of dowry.)
1 Paulus libro trigesimo sexto ad edictum. Interdum lex Iulia de fundo dotali cessat: si ob id, quod maritus damni infecti non cavebat, missus sit vicinus in possessionem dotalis praedii, deinde iussus sit possidere: hic enim dominus vicinus fit, quia haec alienatio non est voluntaria. 1Sed et per universitatem transit praedium, secundum quod possibile est, ad alterum, veluti ad heredem mariti, cum suo tamen iure, ut alienari non possit.
1 Paulus, On the Edict, Book XXXVI. The Lex Julia, having reference to land given by way of dowry, sometimes does not apply; for instance, where the husband fails to make provision against threatened injury, and the neighbor is placed in possession of the premises given as dowry, and is afterwards directed to return the same. In this case the neighbor becomes the owner, because the alienation is not a voluntary one. 1But it is possible for the entire title to the land to pass to another, as, for instance, to the heir of the husband, but still, with the same condition that it cannot be alienated.
2 Ulpianus libro quinto de adulteriis. Si maritus fuerit in servitutem redactus, an dominus alienare hunc fundum non possit? quod puto esse verius. quare et si ad fiscum pervenerit, nihilo minus venditio fundi impeditur, quamvis fiscus semper idoneus successor sit et solvendo.
2 Ulpianus, On Adultery, Book V. If a husband should be reduced to slavery, cannot his owner alienate his land? I think the better opinion is that he cannot. Wherefore, if the property of the husband should be confiscated, the sale of the land would, nevertheless, be prevented; even though the Treasury is always held to be a good and solvent successor.
3 Paulus libro trigesimo sexto ad edictum. Fundus dotali servo legatus ad legem Iuliam pertinet quasi dotalis. 1Totiens autem non potest alienari fundus, quotiens mulieri actio de dote competit aut omnimodo competitura est.
4 Gaius libro undecimo ad edictum provinciale. Lex Iulia, quae de dotali praedio prospexit ne id marito liceat obligare aut alienare, plenius interpretanda est, ut etiam de sponso idem iuris sit quod de marito.
4 Gaius, On the Provincial Edict, Book XI. The Lex Julia, which has reference to land given by way of dowry, and provides that a husband cannot encumber or alienate it, ought to be more broadly interpreted, so as to apply as well to a betrothed person as to a husband.
5 Ulpianus libro secundo de omnibus tribunalibus. Iulianus libro sexto decimo digestorum scripsit neque servitutes fundo debitas posse maritum remittere neque ei alias imponere.
5 Ulpianus, On All Tribunals, Book II. Julianus states in the Sixteenth Book of the Digest that a husband cannot lose any servitude attaching to the land, or impose any new ones upon it.
6 Idem libro quinto de adulteriis. Sed nec libertas servitutis urbano praedio dotali debitae competit, ne per hoc deterior condicio praedii fiat.
6 The Same, On Adultery, Book V. Freedom from a servitude due to an urban estate subject to dowry cannot be granted by the husband, for fear that by this the condition of the property may be deteriorated.
7 Iulianus libro sexto decimo digestorum. Si maritus fundum Titii servientem dotali praedio adquisierit, servitus confunditur et hoc casu maritus litis aestimationem praestabit: quod si maritus solvendo non erit, utiles actiones adversus Titium mulieri ad restaurandam servitutem dantur. 1Sed cum uxor fundum cui praedia viri servitutem debebant in dotem dat, fundus ad maritum pervenit amissa servitute et ideo non potest videri per maritum ius fundi deterius factum. quid ergo est? officio de dote iudicantis continebitur, ut redintegrata servitute iubeat fundum mulieri vel heredi eius reddi.
7 Julianus, Digest, Book XVI. Where a husband acquires a tract of land that belongs to Titius, and which is subject to a servitude for the benefit of real estate subject to dowry, the servitude becomes confused. But if he returns the said land to Titius, without renewing the servitude, the husband will be to blame, and, in this instance, he must pay such damages as may be assessed by the court. Where, however, the husband is not solvent, prætorian actions will be granted against Titius in favor of the woman for the re-establishment of the servitude. 1When, however, a woman gives as her dowry land to which a tract belonging to her husband owes a servitude, it comes into the hands of the husband without the servitude; and therefore it cannot be held that the rights attaching to said land have become deteriorated through the act of the husband. What then should be done? It is the duty of the judge, who is to decide with reference to the dowry, to order the land to be returned to the woman, or to her heir, and the servitude to be re-established.
8 Alfenus libro tertio digestorum a Paulo epitomatorum. Vir in fundo dotali uxoris rogatu olivetum succiderat ad hoc, ut novellum reponeret: postea vir mortuus erat et uxori dotem relegaverat. ligna, quae ex oliveto excisa essent, oportere mulieri reddi respondit.
8 Alfenus, Epitomes of the Digest by Paulus, Book III. A certain man requested his wife to cut down an olive plantation which was on the dotal land, in order to replace it with a new one. The man afterwards died after bequeathing the dowry to his wife, and it was decided that the wood which had been cut from the olive trees should be returned to her.
9 Africanus libro octavo quaestionum. Si marito debitori fundi id quod debet doti mulier promiserit, dotalem fundum effici. 1Quod si ei promittat, qui fundum aut decem debuit, in arbitrio esse mariti, quid in dote sit. 2Quod si Stichum aut fundum debuit maritus et quod debet, doti ei promissum sit, Sticho mortuo fundum in dotem esse. 3His consequens esse ait, ut, si Cornelianum aut Sempronianum fundum debenti id quod debet doti promissum sit, utrum eorum dotalem esse malit. plane utrum velit, alienaturum: alterum alienari non posse. si tamen alienum rursus redimat, adhuc in eius potestate est, an eum, quem retinuisset, alienari velit.
9 Africanus, Questions, Book VIII. If a woman promises, by way of dowry, to her husband who is her debtor, land for which he owes her, the said land becomes dotal. 1Where she promises him, as dowry, either the land or ten aurei which he owes her, he will have the right to decide of which of these the dowry shall consist. 2But if the husband owed Stichus, a tract of land, and his indebtedness was promised to him as dowry, and Stichus should die, the dowry will then consist of the land. 3Julianus says that the result of all this would be that if either the Cornelian or the Sempronian estate for which he was indebted was promised to him as dowry, whichever of these he selected would constitute the dowry; and it is evident that if he wished to alienate either of them he could not alienate the other. If, however, he afterwards should purchase the one that he alienated, he would still have the power to alienate the one which he had retained, if he desired to do so.
10 Paulus libro quinto quaestionum. Erit ergo potestas legis ambulatoria, quia dotalis fuit obligatio. numquid ergo etiam illo nondum redempto alterum quoque alienare possit, quia potest alterum redimere? an hoc non debet recipi, ut nullus in dote sit? certe ex post facto videbitur recte alienatus illo postea redempto.
10 Paulus, Questions, Book V. The application of this law is therefore indefinite, because the obligation was dotal. Hence where the husband was able to alienate one tract of land could he also alienate the other, because he had the right to repurchase the first, even if this had not yet been done? Or should this not be allowed, for fear either one of them might compose the dowry? It is certain that one of them would be held to have been lawfully alienated, if the other was afterwards redeemed.
11 Africanus libro octavo quaestionum. Quod si fundus in dotem aestimatus datus sit, ut electio esset mulieris, negavit alienari fundum posse: quod si arbitrio mariti sit, contra esse.
11 Africanus, Questions, Book VIII. Where a tract of land given as dowry is appraised in order that the woman may have the right of choice, it is held that the land cannot be alienated. The contrary rule, however, prevails, if this depends upon the will of the husband.
12 Papinianus libro primo de adulteriis. Etiam si dirempto matrimonio dotale praedium esse intellegitur. 1Soceri voluntas in distrahendo dotali praedio nulla est.
13 Ulpianus libro quinto de adulteriis. Dotale praedium accipere debemus tam urbanum quam rusticum: ad omne enim aedificium lex Iulia pertinebit. 1Praedii appellatione etiam pars continetur. proinde sive totum praedium in dotem sit datum sive pars praedii, alienari non poterit: et hoc iure utimur. 2Dotale praedium sic accipimus, cum dominium marito quaesitum est, ut tunc demum alienatio prohibeatur. 3Heredi quoque mulieris idem auxilium praestabitur, quod mulieri praestabatur. 4Si uxore herede instituta fundus dotalis fuerit legatus, si quidem deductis legatis mulier quantitatem dotis in hereditatem habitura est, valet legatum, si minus, an non valeat, quaeritur. Scaevola, et si non totus, sed vel aliqua pars ex eo vindicari possit, si modo aliqua pars ad dotem supplendam desit, id dumtaxat ex eo remanere apud mulierem ait, quod quantitati dotis deest.
13 Ulpianus, On Adultery, Book V. We should understand dotal land to include both that situated in town and country, for the Lex Julia had reference to every kind of buildings. 1The term “land” also applies to a portion of the tract, hence, whether the entire tract has been given as dowry, or only a part of the same, it cannot be alienated. This is the law at present. 2We understand the term “dotal land” to refer to that of which the ownership is acquired by the husband, so that then only is he forbidden to alienate it. 3The same relief is granted by the law to the heir of the wife, as is granted to the wife herself. 4Where a wife is appointed heir to her husband, and the land belonging to the dowry is bequeathed, if, after the deduction of the legacy, the woman should have an amount of interest in the estate equal in value to the dowry, the legacy will be valid. The question arises whether it will be valid if the amount should be less. Scævola says that a portion can be recovered, if not all of it, if a certain amount is lacking to make up the dowry; and that only that much will remain in the hands of the woman which is required to supply the deficiency.
14 Paulus libro tertio de adulteriis. Si nuptura Titio voluntate eius fundum dotis nomine Maevio tradit, dos eius condicionis erit, cuius esset, si ipsi Titio fundum tradidisset. 1Si mulieris nomine quis fundum in dotem dederit, dotalis fundus erit: propter uxorem enim videtur is fundus ad maritum pervenisse. 2Si fundum alienum mulieri debeat maritus eumque mulier ei dotis nomine promiserit, in pendenti erit et tunc fiet dotalis, cum ad eum pervenerit. 3Si fundum legatum sibi dotis causa mulier repudiaverit vel etiam substituto viro omiserit hereditatem vel legatum, erit fundus dotalis.
14 Paulus, On Adultery, Book III. Where a woman, who was about to marry Titius, transferred to Mævius, with the consent of her husband, the land which she had given as dowry; the dowry will be in the same condition as if she had transferred it to Titius herself. 1If anyone should give a tract of land as dowry for a woman, it becomes dotal; for it is considered to have come into the hands of the husband on account of his wife. 2Where a husband owes his wife land belonging to another, and she promises it to him by way of dowry, it will be in suspense, and will become dotal when it comes into his hands. 3If a woman rejects land which has been devised to her by way of dowry, or even if she fails to accept an estate or a legacy, where her husband was substituted, the land will become dotal.
15 Papinianus libro tertio responsorum. Dotale praedium, cuius vir possessionem retinuit post litteras ad uxorem emissas, quibus dotis non fore praedium declaravit, in matrimonio defuncta muliere virum retinere placuit, quia mulier actionem ex pacto non habuit.
15 Papinianus, Opinions, Book I. It has been decided that dotal land, the possession of which was retained by the husband after letters which he sent to his wife, in which he stated that the land would not become dotal, can be retained by the husband after the wife had died during marriage, for the reason that she would not be entitled to an action on contract.
16 Tryfoninus libro undecimo disputationum. Si fundum, quem Titius possidebat bona fide longi temporis possessione poterat sibi quaerere, mulier ut suum marito dedit in dotem eumque petere neglexerit vir, cum id facere posset, rem periculi sui fecit: nam licet lex Iulia, quae vetat fundum dotalem alienari, pertineat etiam ad huiusmodi adquisitionem, non tamen interpellat eam possessionem, quae per longum tempus fit, si ante, quam constitueretur dotalis fundus, iam coeperat. plane si paucissimi dies ad perficiendam longi temporis possessionem superfuerunt, nihil erit, quod imputabitur marito.
16 Tryphoninus, Disputations, Book XI. Where a woman gave her husband, by way of dowry, a tract of land of which Titius had possession in good faith, and had a right to claim for himself on the ground of prescription, and her husband neglected to bring suit for said land when he could have done so, he will be responsible. For although the Lex Julia, which forbids dotal land to be alienated, also has reference to an acquisition of this description, it does not, however, interrupt possession which has existed for a long time, if this had already begun before the land was rendered dotal. It is evident that if a very few days are lacking to establish the prescriptive right, the husband will not be at all to blame.
17 Marcianus libro septimo digestorum. Fundum dotalem maritus vendidit et tradidit: si in matrimonio mulier decesserit et dos lucro mariti cessit, fundus emptori avelli non potest.
17 Marcianus, Digest, Book VII. A husband sold and delivered land forming part of a dowry. If his wife died during marriage, and the dowry was a source of profit to the husband, the purchaser cannot be deprived of the land.
18 Iavolenus libro sexto ex posterioribus Labeonis. Vir in fundo dotali lapidicinas marmoreas aperuerat: divortio facto quaeritur, marmor quod caesum neque exportatum esset cuius esset et impensam in lapidicinas factam mulier an vir praestare deberet. Labeo marmor viri esse ait: ceterum viro negat quidquam praestandum esse a muliere, quia nec necessaria ea impensa esset et fundus deterior esset factus. ego non tantum necessarias, sed etiam utiles impensas praestandas a muliere existimo nec puto fundum deteriorem esse, si tales sunt lapidicinae, in quibus lapis crescere possit. 1Si per mulierem mora fieret, quo minus aestimationem partis fundi viro solveret et fundum reciperet, cum hoc pactum erat: fructus interim perceptos ad virum pertinere ait Labeo. puto potius pro portione fructus virum habiturum, reliquos mulieri restituturum: quo iure utimur.
18 Javolenus, On the Last Works of Labeo, Book VI. A husband opened marble quarries on dotal land. A divorce having taken place, the question arose to whom the marble which had been taken out but which had not yet been removed, belonged; and whether the wife or the husband should bear the expense incurred in working the quarries. Labeo said the marble belonged to the husband, but he denied that anything should be paid to him by the wife, because the expense was not necessary, and the land had been rendered less valuable. I think that not only necessary expenses but also those that are useful should be paid by the wife, and I do not believe that the land was decreased in value, if the quarries were of such a kind that the quantity of stone in them would, in time, be increased. 1If the wife should be in default, where an agreement was made that she should receive the land after paying the appraised value of part of the same to her husband; Labeo says that any profits collected in the meantime belong to the latter. I think that the better opinion is that the husband should be entitled to a proportionate share of the profits, and that the remainder should be refunded to the woman; which is the law at present.