Paulus, On Sabinus, Book VII. And indeed, a law of this kind has greater authority, for the reason that it has been approved to such an extent that it is not necessary to commit it to writing.

Paulus, On Sabinus, Book VII. Where a husband is appointed heir by his father under a certain condition, in the meantime the right of action for the dowry of the wife is in abeyance; for it is evident that if a divorce should take place after the death of her father-in-law although at a time when the condition of the appointment of the party as heir was still pending, it must be held that there is ground for the retention of the dowry; because, when the father dies, some things pass to the sons even before they become heirs, such as matters relating to marriage, children and guardianship. Therefore, a son who bore the expenses of matrimony after his father’s death can take the dowry before division; and this was held by our Scævola.

Paulus, On Sabinus, Book VII. He who has undertaken to pay a debt on a certain day is a debtor to such an extent that, if he pays the debt before the prescribed time, he cannot bring an action to recover the money.

Paulus, On Sabinus, Book VII. If I give you an usufruct in my land, thinking erroneously that I owe it to you, and I should die before bringing an action for its recovery, the right to bring the action will pass to my heirs.

Paulus, On Sabinus, Book VII. If I direct you to collect ten aurei from Titius, and before they are collected, I bring an action on mandate against you, and you collect the amount before the case is decided; it is established that judgment should be rendered against you.

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

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.

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.

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

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.

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.

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.

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.

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.

Paulus, On Sabinus, Book VII. Another reason is that married persons might otherwise not have so great a desire to educate their children. Sextus Cæcilius also added still another, namely, because marriage would often be dissolved where the husband had property and could give it, but did not do so; and therefore the result would be that marriage would become purchasable.

Paulus, On Sabinus, Book VII. Provided, however, that the donation was made at the very time of the divorce, and not after deliberation, while the parties were contemplating a divorce.

Paulus, On Sabinus, Book VII. Where a donation is made between persons who are not married, and who are united before the time prescribed by law for acquiring the ownership of property; or, on the other hand, if a donation is made between husband and wife, and before the above-mentioned time has elapsed, the marriage is dissolved; it is settled that the time of the prescription, nevertheless, continues to run, because, in the first instance, possession is transferred without any defect, and in the second the defect which existed is removed.

Paulus, On Sabinus, Book VII. If I order someone who has sold me property to give it to my wife as a donation, and he transfers possession of the same to her under my direction, he will be released from liability; because, although under the Civil Law she will not be understood to have possession of said property, it is evident, nevertheless, that the vendor has nothing which he can deliver. 1Neratius says that the same reasons which permit donations to take place between husband and wife, also render legitimate those made between a father-in-law and a son, or a daughter-in-law. Therefore, a father-in-law can make a donation to his son-in-law in expectation of death or divorce, and a son-in-law also, can make one to his father-in-law in view of the occurrence of either of these events.

Paulus, On Sabinus, Book VII. Where the property donated is destroyed or consumed, the loss must be borne by the donor. This is reasonable, because the property still belongs to him who gave it, and he loses what is his own. 1Where a husband incurs any expense with reference to children born of female slaves who constitute the dowry of his wife, either on account of instruction or support; this will be of no advantage to the husband, because he himself is making use of their services. He can, however, keep an account of whatever was given to their nurse for rearing them, because he is providing something for the preservation of their lives; just as if he had ransomed slaves forming part of the dowry from robbers. 2Where slaves of the husband have performed services for the wife, or vice versa, the better opinion is that no account should be taken of what they have done; and, indeed, the law applying to prohibited donations should not, in this instance, be strictly construed, as among individuals who are hostile to one another; but this should be done as among persons united by the greatest affection, and who are merely apprehensive of want. 3When a woman purchases a slave for ten aurei, which have been given to her by her husband, and the slave is only worth five, it is held by Plautius that only five can be recovered; just as where, if the slave should die, nothing can be recovered. If, however, the slave was worth fifteen aurei, the husband cannot claim more than ten, since he has only become poorer to that amount. 4But if the woman purchased two slaves, and one of them should die, and the other is worth ten aurei, the question arises, what shall be done? Pomponius, and the greater number of authorities, think that it makes a difference whether the two slaves were sold for one price, or each for a different one. If they were sold for one price, the entire ten aurei can be recovered, just as where an article which has been bought becomes deteriorated, or where a flock or a vehicle is sold, and any portion of the same is destroyed; but if the slaves were sold for different prices, that amount can only be recovered for which the surviving slave was purchased. 5Pomponius states that Julianus was of the opinion that, where a wife acquires anything through a slave who had been purchased with money given to her by her husband, whether it be a legacy, an estate, or children born of female slaves, the husband will also have a right to recover it on this ground. 6It is settled that if a wife, before receiving her annual income from her husband, spends any of his money, or any which has been borrowed, she will be held to have taken the amount expended out of her annual income. 7Celsus says that it was very properly decided that, where a wife has stipulated for annual interest on her dowry, although the interest may not be due because the arrangement was made for yearly payments, the woman cannot bring an action on dowry, but the parties can set off their claims. Therefore, we hold that the same rule will apply to any agreement which is entered into with reference to annual payments.

Paulus, On Sabinus, Book VII. The consent of both father and daughter is required, not only in demanding the dowry, but also in the payment of it, as both have a common interest in the same, and neither of them can make the condition of the other worse. Where, however, the money which the daughter received comes into the hands of the father, both are deprived of the right of action on dowry.

Paulus, On Sabinus, Book VII. If the land was delivered before marriage, the year must be reckoned from the day of the marriage to the same day of the following year. This rule must be observed for all other years until the divorce takes place, for where the land has been delivered before the marriage, and the crops have been gathered from the same when a divorce takes place, these must be returned as forming part of the dowry.

Paulus, On Sabinus, Book VII. Where a tract of land is given by way of dowry, and stone is taken therefrom, it is settled that the profit of the quarries will belong to the husband; because it is clear that the woman gave the said tract of land with the intention that the profit of the same should belong to him, unless she stated the contrary in the bestowal of the dowry. 1Whatever is expended in the sowing of grain can be deducted from the vintage, in case of the failure of the crop; because the yield of the entire year is considered to be the same.

Paulus, On Sabinus, Book VII. Because a privilege of this kind is a personal one, and is extinguished by the death of the party directly interested.

Paulus, On Sabinus, Book VII. In order to determine the amount of the pecuniary resources of the husband, consideration must be paid to the time when the case was decided. 1Although the heir of the husband may have judgment rendered against him for the entire amount of the dowry, he will still be entitled to any set-off having reference to pecuniary obligations of the wife, in order to reduce his liability; as, for instance, where donations have been made by the husband of property appropriated by his wife, or expenses incurred, but he will not have the right to punish her for bad behavior. 2The same privilege will be enjoyed by the father-in-law; that is to say, he may have judgment rendered against him to the extent of his resources, when his daughter-in-law brings an action of dowry against him;

Paulus, On Sabinus, Book VII. On the other hand, if a father-in-law is sued by the husband on his promise, the question may be asked whether he will be entitled to this same privilege. Neratius and Proculus state in the Book of Parchments that this is just. 1Moreover, where the wife is sued on her promise, the better opinion is that she can protect herself by an exception. Proculus also says the same thing; just as is the case where an exception is granted her when she belongs to a partnership, although she is liable under the Civil Law. 2Neratius and Sabinus hold that where, in an action on dowry, a judge, through ignorance of the law, renders a decision against a husband for the entire amount, he can make use of an exception on the ground of fraud, and that he will be protected by it.

Paulus, On Sabinus, Book VII. Although a woman may have received her dowry during marriage not for the purpose of paying her debts, or buying certain desirable lands, but in order that she might assist her children by a former husband, or her brothers, or her parents, or ransom them from the hands of the enemy, for the reason that these objects are just and honorable, the dowry will not be held to have been improperly received, and therefore, in accordance with justice, it was rightly paid to her. This rule also must be observed with reference to a daughter under paternal control.

Paulus, On Sabinus, Book VII. Or should expend money for the cure of slaves who are ill;

Paulus, On Sabinus, Book VII. For instance, where a new plantation is made on the land, or where the husband adds a bakery or a shop to the house, or teaches the slaves some trade.

Paulus, On Sabinus, Book VII. Certain authorities hold that a deduction should be made on the ground of useful expenses only where they are incurred with the consent of the wife; for it would be unjust for her to be compelled to sell the property in order to pay the expenses incurred with reference to it, if she is unable to meet them otherwise. This opinion is based upon the highest principles of justice.

Paulus, On Sabinus, Book VII. A judge should not pay any attention to moderate expenses incurred for the purpose of building houses, or for planting and cultivating vines, or for the treatment of slaves who are ill; otherwise a judicial decision would rather seem to have reference to the transaction of business than to matters connected with the dowry.

Paulus, On Sabinus, Book VII. The action having reference to property which has been removed is a peculiar one, and is brought against a woman who was formerly the wife of the plaintiff, for it was not held to be advisable that an action for theft should be brought against her; and certain authorities, like Nerva and Cassius, have thought that she did not commit a theft, because the partnership of married life rendered her, to a certain extent, the owner of the property in question. Others, such as Sabinus and Proculus, hold that she does, in fact, commit a theft, just as a daughter can steal from her father, but that no action for theft is established by law. Julianus very properly adopts this opinion.

Paulus, On Sabinus, Book VII. Therefore, if, after a divorce a woman should appropriate the same property, she will also be liable for theft. 1Moreover, we can bring an action for theft against a woman where her slave has committed the theft. 2It is also possible to bring an action for theft against a woman, if we should become the heir to the party from whom the property was stolen, or if she had stolen from us before we married her. Still, on account of the respect due to persons under such circumstances, in both cases, we hold that only an action for theft to recover the property will lie, and not a penal one based on that offence. 3It is also true, as Ofilius says, that all property which the woman has consumed, sold, donated, or used up in any way whatsoever, at the time of the divorce, should also be included in the suit for property appropriated by her. 4Where a daughter under paternal control fraudulently appropriates property, Mela and Fulcinius say that an action de peculio should be granted, because it was not considered advisable that she should be liable for theft, or that an action should be brought against her on the ground of property wrongfully appropriated. If, however, a father, together with his daughter, brings an action on dowry, an action should not be granted him, unless he gives security to defend his daughter for the entire amount, in a suit for property improperly appropriated. But where the daughter is dead, Proculus says that an action should not be granted against the father, on the ground of property wrongfully appropriated, unless to the extent that he has been pecuniarily benefited by the transaction,

Paulus, On Sabinus, Book VII. Atilicinus and Fulcinius say that this action can be granted to a father-in-law against his daughter-in-law. 1Whenever a dowry is given to a son under paternal control, the father-in-law cannot bring an action for theft, where property has been appropriated by reason of a divorce. 2This action for property wrongfully appropriated is also granted against the husband if he is a son under paternal control, but shall such an action be granted directly against him, or merely with reference to the peculium? We repeat here the same rule which we have already stated applies to a daughter under paternal control. 3If the husband should die after the divorce, his heir can bring the action for the recovery of property fraudulently appropriated. 4The heir of the woman is also liable in an action of this kind, just as he would be in one for the recovery of stolen property. 5Where the marriage is dissolved by the death of the husband, his heir can recover the property either by an action for the partition of the estate, or by one for its production in court. Aristo thinks very properly that he can bring a personal action for restitution against the woman, because the property is unjustly in her possession. 6Where a woman appropriates property after the death of her husband, she does not commit theft, because a theft of property belonging to an estate which is not yet in the possession of anyone cannot be committed; and therefore the heir can bring suit to recover the property, or can file a petition claiming the estate.

Paulus, On Sabinus, Book VII. It is lawful to make a donation mortis causa not only when a person is induced to do so by failing health, but also because of the danger of impending death, either at the hands of enemies, or robbers; or on account of the cruelty or hatred of some powerful man, or when anyone about to undertake a sea voyage;

Paulus, On Sabinus, Book VII. For all these conditions indicate impending danger.

The Same, On Sabinus, Book VII. It is not a rule of law that a father cannot bring an action for theft against his son, who is under his control, but it presents an obstacle from the nature of the case; because we cannot bring suit against those who are under your control, any more than they can bring suit against us.