Julianus, Digest, Book XVI. Some one who thought that he owed a certain sum of money to a woman promised her betrothed, at her request, to pay it to him as dowry, and did so; and afterwards the marriage did not take place. The question arose whether the party who paid the money could recover it, or whether the woman could do so? Nerva and Atilicinus answered that since the party thought that he owed the money, and could have defended himself by an exception based on fraudulent intent, he himself could bring suit; but if he was aware that he did not owe the woman anything, and made the promise, the woman would have the right of action because the money would belong to her. If, however, he had been actually her debtor, and had paid the money before marriage, and the marriage did not take place; he can bring an action to recover the money, and no other right of the woman to payment of the debt would remain than that the debtor could be compelled to assign to her his right of action for recovery, and would be subject to no further liability. 1Where land is conveyed by way of dowry, and the marriage does not take place, it can be recovered by a personal action, and the crops also can be sued for. The same rule applies to a female slave and her children.

Julianus, Digest, Book XVI. A betrothal, like a marriage, is. made with the consent of the contracting parties, and therefore, as in the case of marriage, a son under paternal control must agree to it.

Julianus, Digest, Book XVI. Marriage contracted between these persons is not legal, unless the relatives consent to it.

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.

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.

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.

Julianus, Digest, Book XVI. A woman who is married a second time is not prevented from instituting proceedings against her first husband for the recovery of her dowry. 1Whenever, through the fault of the husband, it happens that the dowry is not demanded from the father-in-law, or from anyone else who promised it in behalf of the wife; or where the daughter died during marriage, or where, having become the mother of a family, she appointed as heir the party who promised the dowry for her; it is well settled that the husband is not liable for anything more than to release them from the obligation.

Julianus, Digest, Book LXII. It is very convenient to draw up stipulations in such a way that they shall contain everything which can be expressly included in them, and so that also the clause having reference to fraud will apply to matters which cannot be recalled at the time, as well as to uncertain future events.