Pomponius, On Sabinus, Book XV. Nor debts deducted.

Pomponius, On Sabinus, Book XV. Where there is no dowry, then Atilicinus says that the father must pay the entire expense; or else the heir of the woman, if she was emancipated, should do so. If, however, there are no heirs, and the father should not be solvent, suit can be brought against the husband to the extent of his property, in order that it may not appear due to his bad behavior that his wife was left unburied.

Pomponius, On Sabinus, Book XV. On the other hand, whatever the father has expended on the funeral of his daughter, or paid on account of a funeral action having been brought against him by another, he can recover from the husband in an action of dowry. 1But where an emancipated married woman dies during coverture, her heirs, or the possessors of the property of her estate will be compelled to contribute, as well as her father in proportion to the amount of the dowry which he has received, and her husband in proportion to the amount of the dowry by which he has profited.

Pomponius, On Sabinus, Book XV. Where a debt dependent upon a condition is paid by mistake, then, so long as the condition is pending, suit can be brought for its recovery; but if the condition has taken place, an action cannot be brought for it. 1But where something is to be delivered at an uncertain time, it cannot be recovered after that time has elapsed.

Pomponius, On Sabinus, Book XV. Celsus, the younger, was of the opinion that if a son under paternal control should sell me property which formed part of his peculium, even though an agreement was made that the sale should be annulled, it ought to be entered into between the father, the son, and myself; for if I made the agreement with the father alone, the son would not be released from liability; and it was asked whether such a contract would not be absolutely void, or whether, in fact, I would not be released and the son remain bound; as, for instance, in the case where a ward made a contract without the authority of his guardian, he himself would be released, but the party with whom he made the contract would not be. For what Aristo stated is not true, namely, that a contract could be entered into so that only one of the contracting parties would be liable, because one of them cannot annul an agreement for a sale; therefore, if the contract is renewed by one party, it is held that such an agreement is not valid. It must, however, be said that where a father makes a contract, and the other party is released from liability, the son will also be released at the same time.

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.

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.

Pomponius, On Sabinus, Book XV. The cause of the dowry always and everywhere takes precedence, for it is to the public interest for dowries to be preserved to wives, as it is absolutely necessary that women should be endowed for the procreation of progeny, and to furnish the state with freeborn citizens.

Pomponius, On Sabinus, Book XV. Where a father collects a dowry from the husband of the daughter without her consent, and gives it to her second husband in her name, and the father, having died, the daughter brings an action against her first husband, she will be barred by an exception on the ground of fraud.

The Same, On Sabinus, Book XV. Where a married daughter who was captured by the enemy, and who had a dowry obtained from her father, died in captivity, I think it should be held that the same principle applies as if she had died during marriage; so that, even if she was not under the control of her father, the dowry will revert to him from whom it had been derived. 1Proculus says that where a man kills his wife, an action on dowry should be granted to her heir; and this is perfectly proper, for it is not just that a husband should expect to make a profit out of the dowry as the result of his own crime. The same rule should be observed in the opposite case.

Pomponius, On Sabinus, Book XV. If an usufruct should be bequeathed to me to be enjoyed for two years after the death of the testator, and, I am prevented from enjoying it through the fault of the heir, he will still be liable after the two years have elapsed; just as anyone will be liable where property due under a legacy is destroyed, and he was in default in delivering the same. Hence this usufruct cannot be claimed, because it is different from the one which was bequeathed, but its value for two years should be computed, and paid to the usufructuary.

Pomponius, On Sabinus, Book XV. The slave of a patron cannot make the following stipulation with reference to a freedman: “Do you promise to render me your services?” Hence the stipulation should be made for the services to be rendered to his patron. 1Where a freedman takes the following oath with reference to his services, “I swear to render my services to my patron, or to Lucius Titius,” he cannot be released from those which he owes to his patron by rendering his services to Lucius Titius.

Pomponius, On Sabinus, Book XV. Because the services rendered to Lucius Titius are different from those to which the patron is entitled. Where, however, the freedman promises a certain sum of money to his patron, who is poor, in consideration of receiving his freedom, or promises it to Titius, the addition of the name of Titius will certainly be valid.

Ad Dig. 44,7,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 335, Note 23.Pomponius, On Sabinus, Book XV. Actions cannot be granted to a son against his father as long as he remains under his control.

The Same, On Sabinus, Book XV. Where a stipulation is made as follows, “If a divorce takes place through your fault, do you promise to pay?” the stipulation is void, because we should be content with the penalties imposed by the laws, unless the stipulation imposes the same penalty as that prescribed by law.

Pomponius, On Sabinus, Book XV. If, after a divorce has taken place, the woman who owes nothing as dowry stipulates that she should be paid a hundred aurei as her dowry, or one who is entitled to only a hundred aurei stipulates that two hundred shall be given her by way of dowry, Proculus says that if she who is entitled to a hundred stipulates for two hundred, there is no doubt that the stipulation will call for a hundred; and that the other hundred can be collected by an action on dowry. Therefore, it must be said that if there is nothing due as dowry, a hundred aurei can be collected under the stipulation; just as when a legacy is bequeathed by way of dowry to a daughter, a mother, a sister, or anyone else whomsoever, it will be valid.

Pomponius, On Sabinus, Book XV. If a release is granted to a debtor conditionally, and the condition is afterwards complied with, he will be understood to have been released some time before. Aristo says that this takes place even should payment actually be made, for he holds that if anyone promises money under a condition, and pays it with the understanding that if the condition should be complied with payment shall be considered to have been made, and the condition is fulfilled, he will be released; and no objection can be raised because the money previously became the property of the creditor.

Pomponius, On Sabinus, Book XV. Where a ward stipulates with his guardian that his property shall remain secure, not only his patrimony, but also any credits, are considered to be included in the stipulation; for whatever can become the subject of an action on guardianship is embraced in this agreement.