ENACTMENTS OF JUSTINIAN.
|~ Book XXIV ~|
( S. P. Scott, The Civil Law, V-VI, Cincinnati, 1932 ).
Tit. 1. Concerning donations between husband and wife.
1. Ulpianus, On Sabinus, Book XXXII.
In accordance with the custom adopted by us, gifts between husband and wife are not valid. This rule has been adopted to prevent married persons from despoiling themselves through mutual affection, by setting no limits to their generosity, but being too profuse toward one another through the facility afforded them to do so.
2. Paulus, On Sabinus, Book VII.
Another reason is that married persons might otherwise not have so great a desire to educate their children. Sextus Caecilius 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.
3. Ulpianus, On Sabinus, Book XXXII.
This reason is also derived from a Rescript of the Emperor Antoninus, for it says: "Our ancestors forbade donations between husband and wife, being of the opinion that true affection was based upon their mutual inclination, and also taking into consideration the reputation of the parties who were united in matrimony, lest their agreement might seem to be brought about for a price, and to prevent the better one of the two from becoming poor, and the worse one from becoming more wealthy."
(1) Let us see between what persons donations are prohibited; and, indeed, if a marriage is solemnized in accordance with our customs and laws such a donation will not be valid. It will be valid, however, if any impediment should arise so that marriage cannot be contracted. Therefore, if the daughter of a Senator marries a freedman in violation of the Decree of the Senate, or if a woman in a province, in opposition to the Imperial Decree, marries an official who is discharging his duties there, the donation will be valid, because such a marriage is void. But it is not right that donations of this kind should be valid, nor that the condition of those who are guilty of an offence should be improved; still, the Divine Severus, in the case of the freedwoman of Pontius Paulinus, a Senator, rendered a different decision because the woman had not been treated with the affection to which a wife was entitled, but rather with that due to a concubine.
(2) Those who are under the control of the same person are forbidden to make gifts to one another; as, for instance, the brother of a husband who is under the control of the father-in-law of the wife.
(3) We apply the term "control" not only to children but also to slaves, for it is the better opinion that those who are subject to the husband by any law cannot make such donations.
(4) Hence, if a mother makes a gift to her son who is under the control of his father, the gift will be of no effect because he acquires it for his father. If, however, she gives it to him while he is a soldier and is about to leave for the camp, it is held that the gift will be valid, because it is acquired by the son, and forms part of his castrense peculium. Wherefore, if a son or stepson, or any other person subject to the authority of the husband, makes a gift out of his castrense peculium it will not be void.
(5) Therefore a person who is under the control of the father-in-law is prohibited from making presents to the wife and the daughter-in-law, provided the husband is under the control of the father.
(6) The wife and daughter-in-law, on their part, are forbidden to make gifts to a husband or a son-in-law. Moreover, a gift will not be valid where it is given to those under their control or under the control of the parties to whose authority they are subject; provided the husband and father-in-law are under the control of the same person, or the husband is under the control of the father-in-law. Moreover, where the husband belongs to another family, neither the father-in-law nor anyone under his control, nor anyone subject to the authority of the latter, is forbidden to receive a gift from the wife.
(7) A mother-in-law is not prohibited from bestowing gifts upon her daughter-in-law, or vice versa, because in this instance the right of paternal authority is not involved.
(8) If my slave, in whom another enjoys the usufruct, gives a present to my wife out of his peculium which does not belong to me, or a freeman who is serving me in good faith as a slave does this; the question arises, will such a donation be valid? In the case of a free person, indeed, a donation can be permitted to a certain extent, but others have no right to alienate their peculium by giving it away.
(9) Not only are husband and wife themselves not permitted to make donations, but other persons cannot do so.
(10) Moreover, it should be remembered that gifts between husband and wife are forbidden to such an extent that they are void by operation of law. Hence, if a certain article is to be given, its delivery will not be valid, and if a promise is made to a party making a stipulation, or if he is released from liability for a debt, the transaction will not be valid; for, by operation of law, any transaction entered into by husband and wife with reference to a donation will be of no effect.
(11) Therefore, if a husband gives money to his wife, it will not become her property, because it is evident that she cannot acquire the ownership of the same.
(12) If, however, a husband should order his debtor to pay the obligation to his wife, in this instance, the question arises whether the money becomes hers, and whether the debtor will be released. Celsus states in the Thirteenth Book of the Digest that it would seem that it cannot be held that the debtor is released, and that the money becomes the property of the husband and not of the wife. For if the donation is not prohibited by the Civil Law, the result of the transaction will be that the money would come into your hands from your debtor, and then pass from you to your wife; since through the rapidity with which the two acts are united, one of them is obscured. It does not appear, however, to be either novel or strange for a debtor to pay a creditor and the creditor to pay his wife, because it is understood that you yourself receive what you obtain at the hands of another. For in case anyone who pretends to be the agent of your creditor receives money from your debtor under your direction, it is settled that you will be entitled to an action for theft, and that the money itself is yours.
(13) This opinion confirms what Julianus stated in the Seventeenth Book of the Digest, namely: that if I should direct someone who is about to make me a present to give to my wife, the transaction will be of no effect, for it would be considered just as if I had received it myself, and, having become my property, I gave it to my wife. This opinion is correct.
4. Julianus, Digest, Book XVII.
The same rule applies if I should direct a person who is about to make a donation mortis causa, to me, to make it to my wife; nor does it make any difference whether the donor recovers, or dies. Nor should it be held that, if we say that this donation is valid, I would become any the poorer, because if the donor recovers, I will be liable to a personal action; but if he dies, I will cease to have the property which otherwise would have been included among my possessions, because of my having donated it.
5. Ulpianus, On Sabinus, Book II.
Where a man who desires to make a gift to his betrothed gives it to Titius, in order that he may bestow it upon the woman, and Titius delivers it after the marriage has taken place; if the husband employed him as an intermediary, the donation made after the marriage took place will not be valid. When, however, the woman employed him, and the donation has already been made for some time, that is before marriage, therefore, although Titius delivered it after the marriage was celebrated, the donation will be valid.
(1) Where a husband had two debtors, Titius and his wife, and he releases the wife from liability by way of a gift, neither party will be released because the discharge of the woman is void. This Julianus also states in the Seventeenth Book of the Digest. It is evident that if you suppose that Titius is discharged, he will indeed be released from liability, but the woman will still be liable.
(2) Generally speaking, it must be held that any transaction involving a gift which has reference to married persons themselves, or to others that are interposed, will not be valid. If the affair is mixed, and concerns other property and persons in such a way that the components cannot be separated, the donation will not be prevented; but if they can be separated, the other parts of the transaction will be valid, but the donation will not be.
(3) Where a debtor of the husband, by the direction of the latter, promises his wife the money which he owes, the promise is void.
(4) Where a wife, for the purpose of making a donation to her husband, promises to pay his creditor and gives a surety; Julianus says that the husband will not be released, or the wife or her surety be liable, and the result will be just as if she had not made any promise.
(5) Julianus also says with reference to sales, that where one is made of property for a price less than its value, by either husband or wife, it will be of no effect. Neratius, however (whose opinion Pomponius does not reject), says that where a sale is made between husband and wife as a donation, it is of no effect; provided that the husband did not have the intention of selling the property, but merely pretended to do so, in order that he might donate it. For, in fact, if he had the intention of selling it and remitted a portion of the price to the woman, the sale would be valid, but the remission of the price will be void to the extent of the profit which accrues to the woman. Hence, if property which is worth fifteen aurei is sold for five, and its value is only ten, the woman must refund only five aurei, because she is considered to have profited by that amount.
(6) Where a wife, or a husband, fails to make use of a servitude by way of a donation, I think that the servitude is lost; but, after a divorce, it can be recovered by an action.
(7) Where a wife, or a husband, consents to be barred by an exception for the purpose of making a donation, a decision rendered by a judge granting a release will be valid; but an action can be brought against the party who has obtained the advantage.
(8) A donation of a burial-place is permitted, for it is settled that a husband can give a burial-place to his wife, and, on the other hand, that she can give one to him. If the party who receives it buries anyone there, the place will become religious. This arises from the fact that it is usually stated that a donation only is forbidden which has a tendency to make the giver poorer, and the receiver richer. Hence, in this instance, a party is not held to become more wealthy by the acquisition of property dedicated to religious purposes. Nor should the statement have any weight that the woman would have purchased another burial-place, if she had not received this one from her husband; for although she would have become poorer if her husband had not given it to her, still, she does not become more wealthy, for the reason that she is at no expense.
(9) This also affords ground for the opinion that if a husband should donate land for a burial-place to his wife, it is understood that it only becomes hers when a dead body is buried therein. For, before the place becomes religious, it remains the property of the donor, and therefore if the woman should sell it, it will, nevertheless, continue to remain his property.
(10) According to this, if a husband should give his wife a monument of great value, which had not been used, the donation will be valid, but it would only be valid when it became religious.
(11) Even if the woman herself should be buried there, although the marriage was terminated by her death, still, the place would become religious through favorable interpretation.
(12) Hence, if a husband should give his wife something as an offering to God, or land upon which she has promised to erect some public work, or to build a public temple, the place will become sacred. If, however, he should give her anything to be donated or consecrated to God, there is no doubt that the gift will be valid. Wherefore, if he furnished her with oil to be used in a temple, the donation will be valid.
(13) Where a husband is appointed an heir, and rejects the estate for the purpose of making a donation to his wife; Julianus says in the Seventeenth Book of the Digest that the donation is valid. For he does not become any the poorer by not acquiring the property, for he only does so who loses his own patrimony. The rejection of the estate by the husband benefits the wife if she should be substituted, or should become heir ab intestato.
(14) In like manner, if a husband rejects a legacy, we hold that the donation is valid if the woman is substituted with reference to the legacy, or even if you suppose that she was appointed the heir.
(15) Where anyone is asked to deliver an estate to his wife after reserving a certain amount of it for himself, and he delivers it without any deduction, Celsus says in the Tenth Book of the Digest that the husband is considered rather to have acted with a more conscientious sense of his duty in the delivery of the property than to have donated the same. Celsus gives a very just reason for this opinion, for a great many persons, in a case of this kind, rather consider that they are discharging their duty than that they are donating anything, and that where they make a more ample delivery of property belonging to another, than they are required to do, they are complying with the wishes of the deceased, and are not paying out anything of their own; and it is not without reason that we often think that the deceased desired something to be done which he did not request. This opinion is more applicable to a case where a man was asked to deliver an estate, and did not reserve the fourth to which he was entitled, but still discharged his trust, after neglecting to take advantage of what was granted by the Decree of the Senate. For he, indeed, discharged his trust having carried out the wishes of the testator. This is the case where he did not make an error in the calculation, but there is no doubt that he would be entitled to an action for the recovery of money which was not due, and which he had paid in the execution of the trust.
(16) Therefore, when nothing is paid out of the property, it is rightly held that a donation between husband and wife will be valid; for it is valid where the party who makes the donation does not diminish his or her means; and the donation will still be valid even if the property should be diminished, provided the one who receives it does not become more wealthy thereby.
(17) Marcellus asks in the Seventh Book of the Digest whether the donation will be valid where a woman received money from her husband and expended it in behalf of one of her relatives who held the rank of centurion. He says that it will be valid, for the woman did not become more wealthy by the transaction, any more than if she had borrowed the money in order to pay it in behalf of her relative.
(18) Moreover, with reference to donations forbidden by the Civil Law, the gift may be revoked in such a way that, if the property is still in existence, it can be recovered from him or her to whom it was given. But if it has been consumed, a personal action will lie to recover the amount to which either of the parties has been enriched.
6. Gaius, On the Provincial Edict, Book XI.
Whatever is retained by reason of a donation which is not permitted by law, is understood to be retained without any reason, or unjustly; in either of which instances a right of action for recovery will ordinarily arise.
7. Ulpianus, On Sabinus, Book XXXI.
Moreover, what time should be considered in order to determine whether the parties have profited pecuniarily: should it be the date when issue was joined, or that when judgment was rendered? The time when issue was joined should be taken into consideration, and this our Emperor and his father stated in a Rescript.
(1) Where a husband gives his wife money for the purchase of perfumes, and she pays it to his creditor, and afterwards purchases perfumes with her own money; Marcellus says in the Seventh Book of the Digest that she will not be held to have profited by the transaction. He also says that if he should give her a dish for the same purpose, and she should keep it, and purchase perfumes with her own money; the husband would not be entitled to an action to recover the dish, because the wife has not become any the more wealthy, as she spent an equal sum for something which was perishable.
(2) Where a man and his wife give one another the sum of five aurei and the husband keeps his, and the wife spends hers, it was very properly decided that there was a set-off of the two gifts; and this the Divine Hadrian decreed.
(3) Marcellus also says that if a man should give money to his wife, and she should purchase land with it, an estimate should be made as to how much the woman had profited by the transaction. Hence, if the land was of very little value at present, we must hold, in consequence, that its value at the time issue was joined should be taken into consideration. It is evident that if the land is of great value, only the amount which was paid must be refunded, and not the interest of the price.
(4) A nice question arises where a woman purchases land for fifteen aurei, and her husband does not pay the entire price but only two-thirds of the same, that is to say, ten aurei; and his wife pays five out of her own money; and at the present time the said land is only worth ten aurei, how much will the husband be entitled to recover? The better opinion is that he should recover two-thirds of ten, and that what is lost of the price should be equally borne by the husband and wife.
(5) Where a husband alleges that he has increased the value of property which he received as dowry, for the purpose of benefiting his wife, our Emperor and his father stated a remedy for this in a Rescript as follows: "As you say that the price of the property was increased for the purpose of benefiting your wife, the magistrate who has jurisdiction of the matter shall decide that if you refuse a certain proportion of the money, you must return the land itself, after having deducted the reasonable expenses which you have incurred." It is therefore left to the choice of the husband to deliver whichever he prefers. The same rule of law applies if, on the other hand, the woman makes complaint of a diminution in the value of the property. The principle is the same as that ordinarily followed where property is lent for use after appraisement; as Pomponius states in the Fourth Book of Various Extracts.
(6) Where a wife purchases from her husband lands which she had received as security for the return of her dowry, and the said purchase is said to have been made for the purpose of benefiting her, the transaction will be void. But our Emperor and his father stated in a Rescript that the obligation of pledge will continue to exist. I give the words of this Rescript in order that it may be established that a bona fide sale made between husband and wife cannot be annulled. "If your husband sold you pledges given to secure your dowry and money which had been loaned him, not for the purpose of benefiting you, and the transaction was concluded in good faith, it will be valid. But if it is shown that this was only done under pretext of making a donation, and consequently the sale will be held to be void, your right to the property pledged will remain unimpaired by public law."
(7) If a wife buys an article, and her husband pays the purchase money for it, it is sometimes held that the entire property can be recovered from the woman as she has become pecuniarily benefited with reference to the whole of it; just as where a woman purchases property and owes the price of the same, and her husband releases her from the claim of the vendor. For what difference does it make whether he pays her creditor or the vendor?
(8) A certain man gave a slave to his wife under the condition that she would manumit him within a year. If the woman should not comply with the wish of her husband, does not the Constitution of the Divine Marcus confer freedom upon the slave, whether the husband is still living, or whether he is dead? Papinianus says, as the opinion of Sabinus has been accepted, who thinks that the slave only begins to become the property of the party to whom he was given at the moment when freedom was granted him, that therefore the woman cannot manumit him after the specified time has elapsed, even if she should desire to do so; that the Imperial Constitution is not applicable, nor can the will of the husband render it applicable, since he could manumit his own slave. I also approve this opinion, because neither the vendor nor the donor desires to, or can impose any condition upon himself, but he can do so upon the party who receives the slave. Therefore the ownership remains with him, and the Constitution is not operative.
(9) A donation made for the purpose of manumission is valid; although this may be done, not with the understanding that freedom shall be granted immediately but within a certain time. Hence, if a husband gives his wife a slave to be manumitted after a specified period, the slave does not become hers until she begins to manumit him, after the expiration of the said period. Wherefore, if he should be manumitted before that time her act will not be valid, for it must be remembered that if anyone gives his wife a slave to be manumitted within a year, and she does not manumit him within the year, but does so afterwards, her act will be void.
8. Gaius, On the Provincial Edict, Book XI.
If, before the slave is manumitted, the marriage should be dissolved by death or divorce, the donation will be annulled; for it is held to be a condition of such a donation that the slave should be manumitted during the marriage.
9. Ulpianus, On Sabinus, Book XXXII.
If a husband gives his wife a slave under the condition that he shall never be granted his freedom, it must be held that a donation of this kind is absolutely void.
(1) Where a woman, having received money from a slave, manumits him or imposes certain services upon him as a condition of his freedom, Julianus says that these services are legally imposed, that the obligation will stand, and that the woman is not held to have profited by the property of the husband, since the slave promises his services as freedman. Where, however, the woman receives the money of the slave for his manumission, and manumits him on this account; if he paid the money out of his peculium, it will still remain the property of the husband, but if anyone else paid it for the slave it will become the property of the woman. This opinion is founded upon justice.
(2) Donations mortis causa can take place between husband and wife,
10. Gaius, On the Provincial Edict, Book XI.
For the reason that the event of the donation extends to a time when the parties cease to be husband and wife.
11. Ulpianus, On Sabinus, Book XXXIII.
In the meantime, however, the property does not immediately pass to the person to whom it is given, but only when death takes place, and therefore, during the intermediate time, it remains in the hands of the donor.
(1) What is said with reference to the validity of donations mortis causa between husband and wife is so true that, according to Julianus, not only a donation made with the intention that the property shall belong to the wife or husband will be valid when death takes place, but also every donation mortis causa will confer ownership of the object of the same upon him or her.
(2) Therefore, when a donation is not retroactive difficulties arise, as Marcellus states in the following instance: "A husband wished to make a certain donation mortis causa to his wife, and the latter interposed a son under paternal control who was to receive the donation and give it to her; then, after the husband died, he who received the gift became his own master. Is the delivery valid?" He says that the delivery must be held to be valid, because the son became his own master at the time to which the delivery was deferred, that is to say, when the husband died.
(3) He also says that he knew that it was the opinion of Sabinus, that where a husband delivered property to his wife mortis causa while she was under paternal control, the donation with all its advantages would belong to her if she should become independent during the lifetime of her husband. This opinion is also approved by Julianus in the Seventeenth Book of the Digest.
(4) Hence, if a wife should give property mortis causa to her husband while he was under paternal control, and he should become his own master, we say, without hesitation, that the property will be his.
(5) Moreover, on the other hand, if a wife should make a donation mortis causa to her husband while he is the head of the household and, at the time of her death, he should be subject to paternal control, the entire benefit of the donation will be acquired by the father.
(6) Consequently Scaevola states in a note on Marcellus that if a woman interposes a slave for the purpose of delivering to her a donation mortis causa, and he delivers the property to the woman, and he should afterwards be free at the time of the death of the husband, the same rule must be held to apply.
(7) Marcellus also holds that if he who was interposed should die after he has given the property to the woman, while the donor is still living, the donation will be extinguished, because it should for some space of time become the property of the person interposed, and from him pass to the woman. This occurs where the woman to whom the property is given, and not the donor, causes the interposition of the third party. For if he was interposed by the husband, the title to the property immediately vests in him, and if he should deliver it before the death of the husband and then die, the delivery would be effective to a certain extent, but it would still be in suspense until the death of the donor took place.
(8) If a wife gives property to Titius in order that he may deliver it to her husband mortis causa, and, after her death, Titius should deliver the property to the husband against the consent of the heirs, it makes a difference whether Titius was interposed by the woman, or by the husband to whom the property was donated. If he was interposed by the wife, he will be liable to a personal action for recovery, if he delivered the property to the husband; but if he was interposed by the husband at the death of the wife, ownership of the land immediately vests in him whom the husband interposed, and the latter will be entitled to a right of action against him.
(9) If a wife gives property which she has received from her husband mortis causa to anyone else, such a gift will be void, because the title does not vest in the woman until the last moment of the life of her husband. It is clear that in those cases in which it is agreed that the donation shall be retroactive, a delivery made by the wife will be in abeyance.
(10) If a husband makes a gift to his wife, and she is afterwards divorced, will the donation be annulled? Julianus says that the donation will be void, and is not dependent upon any condition.
(11) He also says that a donation made on account of a divorce is valid:
12. 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.
13. Ulpianus, On Sabinus, Book XXXII.
If, however, death did not result, the property would not be held to belong to the woman, because the donation had been made with reference to another event.
(1) Hence, if a husband makes a donation mortis causa to his wife, and suffers banishment; let us consider whether the donation will be valid. It is held that a donation made to become operative in the case of banishment is valid, just as in the case of divorce. Therefore, as marriage is not dissolved by banishment, and the woman is in no way to blame, it is only in accordance with humanity that a donation mortis causa made in the first place to be confirmed by an exile of this kind should be valid, just as it would be if the husband should die. This is true, however, only to the extent that the husband may not be deprived of the right to revoke it, because it is necessary to wait for his death in order for the donation to have complete effect; whether he revoked it at the time of his death, or whether he still remains subject to the penalty.
(2) Where anyone receives property for the purpose of building on his own ground, it cannot be recovered from him, because it is considered to have been a gift. This was also the opinion of Neratius, who says: "When property has been given for the purpose of building a house or for sowing land, anything else that he who receives it fails to do will come within the scope of the donation." Therefore gifts of this kind will be forbidden between husband and wife.
14. Paulus, On the Edict, Book LXXI.
Where a husband gives money to his wife for the rebuilding of a house belonging to her, which has been destroyed by fire, the donation is only valid to the amount required for the construction of the house.
15. Ulpianus, On Sabinus, Book XXXI.
What a husband gives to his wife, by the year or by the month, can be revoked to the extent of the surplus, if it exceeds the bounds of moderation, that is to say, if it amounts to more than the income of the dowry.
(1) If a husband should give money to his wife and she collects the interest from it, she will profit by it. Julianus in the Eighteenth Book of the Digest stated this opinion with reference to a husband.
16. Tryphoninus, Disputations, Book X.
But what if out of a sum of a hundred aurei, which a husband presented to his wife, fifty should be lost through a debtor, and the wife should have the other fifty doubled by the interest? The husband cannot recover more than fifty from her on account of the said donation.
17. Ulpianus, On Sabinus, Book XXXII.
Let us also consider with reference to the crops of land which are donated, where the woman profits pecuniarily, whether they form part of the donation. Julianus says that the crops, as well as the interest, constitute a lawful gift.
(1) Where a slave who is donated acquires any property, it will belong to him who donated him.
18. Pomponius, On Various Extracts, Book IV.
Where either a husband or a wife uses the slaves or the clothing belonging to the other, or lives gratuitously in the house of the other, such a donation is valid.
19. Ulpianus, On Sabinus, Book XXXII.
Where a wife gives a slave to her son who was under the paternal control of her husband, and the said slave then acquired a female slave, the title to the latter will vest to the woman. Julianus says that it makes no difference with whose money the said female slave was purchased, because nothing can be acquired, even with his own property, through the slave by the donee, for this privilege is granted only to bona fide possessors. Where, however, he knows that the slave belongs to another, he is not his bona fide possessor.
(1) He also asks, where the female slave was purchased with the property of the husband, whether the latter can, by means of an exception, retain the price of said slave against his wife when bringing an action for her dowry. It must be said that, according to the opinion of Marcellus, the husband is entitled to an exception where he is sued for the dowry, and, according to Julianus, if he should pay it, he can bring suit for the recovery of the purchase-money.
20. Javolenus, Epistles, Book XI.
If a slave, who is given mortis causa to a wife before her husband dies, should enter into some stipulation, I think that the effect of the obligation would remain in abeyance until the husband is either dead, or is free from the danger of death on account of which he made the donation, and if either of these events takes place by which the donation is annulled or confirmed, this also will either confirm or annul the stipulation.
21. Ulpianus, On Sabinus, Book XXXII.
Where a husband pays for his wife a sum which she owes on account of a journey taken by her, has he a right to collect the amount on the ground that she was pecuniarily benefited thereby; or can it be held that this is not a donation? I think that the better opinion is that this is not prohibited, especially if she took the journey for the sake of her husband; for Papinianus states in the Fourth Book of Opinions that a husband cannot recover the travelling expenses of his wife and her slaves where the journey was undertaken in his behalf. A journey is held to have been made in behalf of a husband, when his wife comes to seek him; and it makes no difference whether anything had been agreed upon in the marriage contract with reference to travelling expenses or not, for he does not make a donation who meets necessary expenses. Hence, if the wife made the journey with the consent of her husband, on account of the requirements of his business, and the husband gives her something for expenses, it cannot be recovered.
(1) Where a wife promises a dowry to her husband, as well as the interest on the same, it must undoubtedly be held that he can collect the interest; because this is not a donation, as the interest is demanded to meet the expenses of marriage. What would be the case, however, if the husband should remit the claim for interest to his wife; would the same question remain with reference to the legality of the donation? Julianus says that it would, which is correct. It is evident that if it should be agreed that the wife shall support herself and her slaves, and her husband permits her to enjoy her dowry for the purpose of maintaining herself and the members of her household, the question will be disposed of; for I think that her husband could not demand of her, as a donation, what had already been set off.
22. The Same, On Sabinus, Book III.
A man gave a slave mortis causa to his wife, and then appointed him his heir with the grant of his freedom. The question arises, is such an appointment valid? I think that if he appointed him his heir because he said that he changed his mind, the appointment will be valid, and the slave will become the necessary heir of his master. But if after he appointed him his heir, he gave him away, the donation will have greater weight; or if he gave him away before he did this, but still did not grant him his liberty with the intention of depriving him of it, the result will be the same.
23. The Same, On Sabinus, Book VI.
Papinianus very properly thinks that the Rescript of the Divine Severus relates merely to the donation of property; hence if the husband bound himself by a stipulation for the benefit of his wife, he does not hold that the heir of the husband can be sued, even though the husband should die without having changed his mind.
24. 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.
25. Terentius Clemens, On the Lex Julia et Papia, Book V.
Where, however, during the existence of the marriage, property belonging to someone else is given by a husband to his wife, it must be said that the wife is immediately permitted to begin to hold it by usucaption, because, although it was not given to her mortis causa, its usucaption will not be prevented. For the law, as established, has reference to those donations by which the wife is enriched, and the husband becomes poorer; and therefore a donation mortis causa may take place — just as is understood to be made between persons who are not married — with reference to property which can be acquired by usucaption, because it belongs to another.
26. 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.
(1) Neratius 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.
27. Modestinus, Rules, Book VII.
A donation made before marriage between parties who are about to contract matrimony is valid by law, even if the marriage should take place upon the same day.
28. 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.
(1) Where 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.
(2) Where 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.
(3) When 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.
(4) But 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.
(5) Pomponius 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.
(6) It 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.
(7) Celsus 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.
29. Pomponius, On Sabinus, Book XIV.
If a woman should sell a slave purchased with money given to her by her husband, and then buy another, Fulcinius held that the woman must be responsible for the loss of the last slave. This is not true, even though the second slave was not purchased with money belonging to the husband.
(1) Where a husband gives wool to his wife and she makes clothing for herself out of it; Labeo says that the clothing belongs to the wife.
30. Gaius, On the Provincial Edict, Book XI.
Still, the husband will be entitled to an equitable action.
31. Pomponius, On Sabinus, Book XIV.
Where, however, a husband makes clothing for his wife out of his own wool, although this is done for his wife and through solicitude for her, the clothing, nevertheless, will belong to the husband; nor does it make any difference whether the wife assisted in preparing the wool, and attended to the matter for her husband.
(1) Where a wife uses her own wool, but makes garments for herself with the aid of female slaves belonging to her husband, the garments will be hers, and she will owe her husband nothing for the labor of the slaves; but where the clothing is made for her husband, it will belong to him, if he paid his wife the value of the wool. Where, however, the wife did not make the clothing for her husband, but gave it to him, the donation will not be valid; as it will only be valid when the clothing is made for her husband, and she will never be permitted to render a bill for the labor of her husband's female slaves.
(2) If a husband should give a lot to his wife in order that she may erect a house upon it, there is no doubt that the house will belong to the husband; but it is settled that the woman will be entitled to her expenses, for if the husband should claim the house, the wife can retain the expenses she incurred in building.
(3) Where there were two slaves, each of them worth five aurei, but both of them together were sold for five by a husband to his wife for the purpose of benefiting her, or vice versa; the better opinion is that they are held in common by the two parties in proportion to the price; for indeed it is not to be considered what the slaves are worth, but how much of the price has been remitted by way of donation. There is no doubt that either a husband or a wife can purchase property from one another for less than it is worth, if there is no intention of making a donation.
(4) If a husband should sell anything to his wife for its true value, or vice versa, and for the sake of making a donation, and they agree that the vendor shall not furnish any guarantee with reference to the property, it should be considered what the agreement was with reference to the sale, whether the property was actually sold and the entire transaction was a valid one, or, indeed, if only the latter part of the agreement was void; just as if it would be when the purchase had been concluded, the agreement had been made after a change of mind. The better opinion is that only the latter part of the agreement is void.
(5) We hold that the same rule will apply if, for the purpose of making a donation, the parties agree that the vendor shall not guarantee that a slave is in the habit of running away, or is a vagabond; that is to say, the rights of action under the Edict of the Aediles and on purchase shall remain unimpaired.
(6) Where a man owes his wife a sum of money payable at a certain time, he can pay it at once without fear of it being considered a donation, although if he had retained the money until the time it was due, he could have enjoyed the advantage of its use.
(7) If you are about to bequeath me a legacy, or leave me a portion of your estate, and are requested to do so, you can leave it to my wife, and this will not be considered a donation, because my property is in no way diminished; and Proculus says that the principal reason why our ancestors came to the aid of the donor was in order that one of the parties might not be despoiled through affection for the other; but they were not so evil disposed as to wish to prevent one of them from becoming wealthier.
(8) Where a husband makes his wife a very valuable gift on the Kalends of March or on her birthday, this is a donation; but if his wife should incur any expense by which she may be more honorably maintained, the contrary opinion must be held.
(9) A wife is not considered to have become any more wealthy if she spends money given to her by her husband for banquets, for perfumes, or for food for her slaves.
(10) Provisions which a husband furnishes for the slaves or the horses of his wife, and which belong to them in common, cannot be > recovered by him. I think that the contrary rule should be observed, however, where he supports the domestic slaves of his wife, or those which are kept for sale.
32. Ulpianus, On Sabinus, Book XXXIII.
This was the condition of the laws with reference to donations between husband and wife, as we have previously stated, when our Emperor Antoninus, before the death of his father the Divine Severus, in an Address delivered to the Senate during the consulship of Fulvius Aemilianus and Nummius Albinus, caused the Senate to relax to some extent the strictness of their provisions.
(1) The Address of our Emperor with reference to the confirmation of donations not only has reference to property obtained by a husband in the name of his wife, but also to all donations made between a husband and wife; so that by operation of law, the property belongs to the party to whom it is donated, gives rise to a civil obligation, and comes within the scope of the Lex Falcidia, where this can become operative. I think that this law will apply, because what is donated is, as it were, confirmed by will.
(2) The Rescript says: "It is wrong for anyone who makes a donation to change his mind, but it would be hard and avaricious for the heir to take the property, when this, perhaps, would be contrary to the will of the party who donated it."
(3) We should understand this to refer to the change of mind of the donor in his last moments, for if he had made a donation to his wife and then changed his mind, and afterwards changed it again, it must be said that the donation is valid, as we are considering the man's last wishes, just as we are accustomed to do with reference to trusts, when we discuss an exception interposed on the ground of fraud, as the will of the party may be undetermined up to the last moment of his existence.
(4) Where, however, the donor changes his mind only once, we grant his heir the right of revocation, if it is perfectly evident that the deceased changed his mind. But if this is doubtful, the judge should rather incline to confirm the donation.
(5) If a husband should pledge the property he donated, we are inclined to hold that he has changed his mind, although he still retains the ownership of the property. What course, however, should be pursued if it was his intention for the donation to continue to exist? Suppose that the property remained in the possession of the woman under a precarious title, and that she was ready to satisfy the creditor? It must then be held that the donation is valid. For if the husband gave the property to her in the first place with this intention, I should say that the donation was valid, so that if the woman was prepared to satisfy the creditor, she will be entitled to an exception on the ground of bad faith; and, moreover, if she should pay the debt, she could, by means of an exception on the ground of bad faith, cause the right of action of the creditor to be assigned to her.
(6) Where the donor becomes the slave of a private individual, it must be said that the donation is not perfected, but is destroyed, although servitude is compared to death. Hence if the woman to whom the donation is made should be reduced to slavery, the donation will be extinguished.
(7) Where a husband made a donation to his wife, and, on account of remorse for some crime, committed suicide, or, even after death, his memory was rendered infamous, the donation will be revoked; though gifts which he made to others will be valid where he did not make such donations mortis causa.
(8) Likewise, where a husband who is in the army, makes a donation out of his castrense peculium, and afterwards is convicted of a crime; for the reason that he will be permitted to testify with reference to property of this kind even after having been convicted, provided he obtains the right to do so, the donation will be valid; for he who is permitted to give evidence can make a donation mortis causa.
(9) The Rescript says, "Has consumed," and this term we must understand to mean that he who received the donation has not become any more wealthy thereby. If, however, he has been pecuniarily benefited, the advantage conferred by the Rescript will not be applicable. But if he has not become any more wealthy, and has given an amount equal to the donation to the other party, it must be said that if the one who died was enriched, the other can recover what he gave, and is not obliged to set off what he has consumed, although where a divorce takes place, a set-off of this kind can be made.
(10) If a divorce should take place after the donation, or if the party who made the gift should die first, the ancient law must be observed; that is to say, the donation will be valid if the husband desires the wife to have it, but if he does not, it shall be extinguished; for many married persons separate well disposed toward one another, and many others cherish anger and hatred.
(11) But what if a divorce takes place, and the marriage is afterwards re-established, and the mind of the donor is either changed during the divorce, or remains the same; or, when the marriage is re-established, the wish of the donor becomes as it was in the first place; will the gift remain valid if the donor should die while the marriage is still in existence? It can be maintained that it will be valid.
(12) If, however, a divorce should not take place, but only a slight misunderstanding should arise, it is certain that the donation will be valid if the misunderstanding is removed.
(13) Where a wife and her husband have lived for a long time separated, but still preserve the matrimonial bond (which we know sometimes happens with persons of consular rank), I think that donations will not be valid, since the union has always existed; for marital affection, and not coition, constitutes marriage. Where, however, the donor dies first, the donation will then be valid.
(14) What shall we say where both parties, the one who made the donation and the one to whom it was made, are captured by the enemy? And before I venture to discuss this question, the Address of the Emperor which decided that a donation is of no force or effect if the party to whom it is given should die, must be considered. Therefore, if both parties should die, either through shipwreck, or the fall or the burning of a house, what shall we say? Where, indeed, it can be established which one of them died first, the question is readily disposed of, but if this cannot be proved, the question becomes difficult, and I am rather of the opinion that the donation will be valid, as we gather from the words of the Address, for it says: "If the party who received the donation should die first." But when both of them die at the same time it cannot be held that the one who received the donation was the first to depart from life. Hence, it is very properly held that, where they have made donations to one another, both of these will be valid if the parties die at the same time, because, although neither one survived the other, the Address did not contemplate the death of both together. Where, however, neither survived the other, the mutual donation will be valid, for it must be said with reference to mutual donations mortis causa that an action for recovery can be granted to neither of the parties, and therefore that the heirs of both profit by the donations. In accordance with this view, if both parties are captured by the enemy at the same time, and both die while in captivity at different times, must the date when they were taken captive be considered to enable us to hold that the donations are valid; just as if both had died at once? Or shall we say that neither donation is valid, because the marriage was terminated during the lifetime of the party in question? Or shall we ascertain which one of them died first, in order to decide that the donation with reference to him was not valid; or whether, if the other should return to his country, his will be valid? It is my opinion that where the parties do not return, the time when they were taken captive should be considered, just as if they had died then; but if one of them should return, he will be held to have survived because he did so.
(15) When a husband bequeaths certain property out of that which he had already donated, but fails to donate the rest, he is not held to have been unwilling that the remainder should belong to his wife; for frequently a party makes a bequest, and afterwards a donation, or some other reason may have existed for his making the bequest.
(16) The Address not only includes husband and wife, but also other parties who are also prohibited from making donations on account of marriage; as for instance, where a father-in-law makes a donation to his daughter-in-law, or vice versa; or a father-in-law to his son-in-law, or vice versa; or one of two fathers-in-law who have the parties united in marriage under their control makes a donation to the other; for, in accordance with the spirit of the Address, all these persons are permitted to make donations under the same circumstances. This was also held by Papinianus in the Fourth Book of Opinions, for he said: "A father-in-law made a donation to his daughter-in-law, or to his son-in-law, and afterwards, one or the other of them died during marriage. Although the defect in the donation continues to exist, still, if the father-in-law did not raise any question with reference to said donation, the terms of the Address will be held to operate against his heirs after his death, for the same reason which prohibits a donation of this kind demands that the benefit be afforded." Therefore, in order that such a donation may be valid, Papinianus requires that the son of the party who made the donation shall die before him, and that the father-in-law shall die afterwards, without having changed his mind.
(17) Where a son under paternal control, who has a castrense, or a quasi castrense peculium, makes a gift to his wife, we must take into account the person of the son, and his death.
(18) If a daughter-in-law makes a donation to her father-in-law, we must consider her death and the continuance of her will until her last moments. Where, however, her father-in-law dies first, we hold that the donation will be extinguished. But if the husband should live, and survive his wife, must we admit that the donation will take effect? If indeed, the husband becomes the sole heir of his father-in-law, a new donation can be said to have been made for the benefit of the husband, so that where the former ends, the other begins; and where the son is not the heir of his father, the donation will be terminated for another reason.
(19) If the father-in-law repudiates his daughter-in-law, the donation will be void, even though the marriage, when the husband and wife agree, still continues to exist, in accordance with the Rescript of our Emperor; but the marriage will be at an end with reference to the parties among whom the donation is made.
(20) Hence if two fathers-in-law make donations to one another, the same rule will apply if they repudiate their son and daughter-in-law, and the donations they make to one another will be void. Where, however, a donation of this kind is made between fathers-in-law, the death of him who made it during the marriage and while the right of paternal control existed is required to render the donation valid. The same rule also applies to those who are under the control of the said parties.
(21) Where one father-in-law makes a donation to another, and one, or both of them emancipate the persons who are united in marriage, it must be held that this donation has no reference to those mentioned in the Address, and therefore it becomes void.
(22) Where a man makes a donation to his betrothed which is to take effect at the time of the marriage, although the donation is not considered to have been made between man and wife, and the words of the Address do not expressly apply to it, still, the donation must be said to come within its scope, and it is valid if the will of the party continues the same until his death.
(23) The donation will become operative whether the property was actually donated, or an obligation was released; as for instance, where a man releases his wife from liability for what she owes him, by way of a donation, it can be said that the release itself is not in suspense, but that its effect is. Generally speaking, all the donations which we have mentioned as being prohibited, will be valid according to the terms of the Address.
(24) Where a partnership is contracted between husband and wife by way of donation, it is void according to the ordinary rule of law, nor does the liberal construction of the Decree of the Senate grant such an advantage that it can be held that an action on partnership will lie; still, the property which they hold in common cannot be revoked in accordance with the terms prescribed by their agreement. Therefore, an action on partnership will not be available, because that is not a partnership which is interposed for the purpose of the advantage of only one of the parties, even where this is done by others; and for this reason it does not become operative between husband and wife.
(25) The same must be said where a purchase is made by way of donation, for it is void.
(26) It is evident that if, for the purpose of making a donation, property is sold for less than it is worth, or if the price should afterwards be remitted, we must concede that the donation is valid, in accordance with the Decree of the Senate.
(27) Where a man had a betrothed and afterwards married her when it was not lawful for him to do so; let us see whether donations made, so to speak, during betrothal, are valid. Julianus discusses this question with reference to a minor of twelve years of age who had been brought to the home of her so-called husband while she was still too young to be married; and he says that she is his betrothed, but she is not his wife. The better opinion, however, is the one held by Labeo, by myself, and by Papinianus in the Tenth Book of Questions, which is that if the betrothal preceded the alleged marriage it will continue to exist, although the party who married the girl may think that she is his lawful wife. Where, however, it did not precede the marriage, there can be no betrothal, as it did not take place, nor did any marriage, because it could not be celebrated. Therefore, where the betrothal came first, the donation is valid, but where it did not, it is void because the party did not make the donation, as it were, to a stranger, but to his supposed wife, and therefore the Address will not apply.
(28) Where, however, a Senator betroths himself to a freedwoman, or a guardian to his ward, or any other of those persons who are forbidden to contract marriage does so, and afterwards marries the girl; will a donation made, as it were, during betrothal, be valid? I think that such betrothals should be rejected, and whatever property has been donated should be seized and confiscated by the Treasury, as having been bestowed upon persons who are unworthy to hold it.
33. The Same, On Sabinus, Book XXXVI.
Where a husband agrees to pay his wife a certain sum annually, she cannot bring an action on the stipulation during the marriage. But, if while the marriage is still in existence, the husband should die, I think that, because the donation has reference to an annual payment, the stipulation can be enforced under the Decree of the Senate.
(1) On the other hand, where a wife makes an agreement with her husband to pay him a certain sum every year, this can be refunded to her, and she can bring an action to recover what remains. I think that she can also bring a personal action for the amount to which her husband is enriched; because the annual allowance which a husband pays to his wife is not as important as that which a wife pays to her husband, for this is inconsistent, and contrary to the nature of the sex.
(2) If the husband stipulated with his wife for annual payments, and the woman should die during marriage, it must be said that the donation will become valid under the Address.
34. The Same, On Sabinus, Book XLIII.
If the wife should either give property to her husband and he should bestow it by way of dowry on behalf of their common daughter, or if she should permit him to give it by way of dowry for their daughter, after having made a donation to her husband; it can be held, in accordance with justice, that although the donation is of no force or effect, still, the gift of the dowry becomes valid by the subsequent consent of the wife.
35. The Same, On the Edict, Book XXXIV.
If the divorce did not take place in accordance with the prescribed lawful formalities, donations made after such a divorce are of no effect, since it can not be held that the marriage was dissolved.
36. Paulus, On the Edict, Book XXXVI.
Where property which has been donated is still in existence, it can also be recovered by a suit; but for the reason that a donation carries with it the right of possession, if the property is not returned, an appraisement for its just value can be made, and security against eviction should be furnished to the possessor for the amount that the property is worth. This opinion was also adopted by Pedius.
(1) A man sent a ring which belonged to another as a gift to his betrothed, and after the marriage he gave her one of his own instead of it. Certain authorities (Nerva for instance), think that this ring became the property of the woman, because the donation which had been made is held to have been confirmed, and not a new one given. This opinion I think to be correct.
37. Julianus, Digest, Book XVII.
Where a woman committed fraud to prevent the preservation of property given to her by her husband, or to avoid its production in court, he can bring an action against her for injury committed, if she did this after a divorce had taken place.
38. Alfenus, Epitomes of the Digest by Paulus, Book III.
Where a slave, held in common by a husband and his brother, gave a young slave to the wife of the brother, it was held that the gift was not valid so far as the share belonging to the husband, which the slave had given, was concerned.
(1) The law will be the same where one of three brothers has a wife and gives her property held in common by them all, for one-third of the gift will not belong to the wife; but with reference to the other two-thirds, if the brothers knew that they were given, or, after this Was done, they confirm the act, the woman will not be obliged to make restitution.
39. Julianus, On Minicius, Book V.
A husband who wished to give a sum of money to his wife, permitted her to make a stipulation with his debtor. She did so, but before having received the money, she divorced herself from her husband. I ask whether the latter can recover the entire amount, or whether an action based on the promise will be void on account of the donation. I answered that the stipulation will be of no effect. If, however, the promisor, not being aware of the facts, should pay the woman, and the money has not been expended, the debtor can recover it. But where he is ready to assign his rights of action to the husband, he will be protected by an exception on the ground of fraud, and therefore the husband can recover this money by an action in the name of the debtor. If, however, the money is not in existence, and the woman has become more wealthy on account of it, the husband can claim it; for it is understood that the woman has become more wealthy through having received property belonging to her husband, since the debtor can protect himself by an exception on the ground of fraud.
40. Ulpianus, Opinions, Book II.
Where property is given to a husband by his wife for the purpose of obtaining some office, the donation will be valid to the extent that it was necessary to provide the office for her husband.
41. Licinius, Rufinus, Rules, Book VI.
For the Emperor Antoninus decided that a wife could give property to her husband for the purpose of furthering his interests.
42. Gaius, On the Provincial Edict, Book XI.
Another reason for a donation has been recently introduced through the indulgence of the Emperor Antoninus, which we say is done for the sake of honor; for example, where a wife makes a donation to her husband to enable him to seek admission into the Senatorial, or Equestrian Order, or for the purpose of exhibitions.
43. Paulus, Rules.
A donation can be made between husband and wife in case of exile.
44. Neratius, Parchments, Book V.
Where a stranger gives property belonging to a husband to the wife of the latter, both of them being ignorant of this fact, and where the husband also does not know that he has donated property belonging to himself, the woman can lawfully acquire said property by usucaption. The same rule of law will apply where anyone who is under the control of the husband, believing himself to be independent, makes a gift to his father's wife. If, however, the husband should ascertain that the property was his before its title by usucaption vests, he can recover it, and her possession will be interrupted; even though the husband does not wish for this to be done, and the woman becomes aware that it is his; because this is an instance where the woman herself knows that the donation was made by her husband. It is more proper to hold that no impediment to the acquisition of the ownership of the property by her exists; for women are not absolutely prohibited from acquiring the property of their husbands, except where donations are made to them by the latter.
45. Ulpianus, On the Edict, Book XVII.
Marcellus states in the Seventeenth Book of the Digest that the husband can even remove his property without injury to his wife, and without fear of the Decree of the Senate, where the transaction which has taken place between them is illegal.
46. The Same, On the Edict, Book LXXII.
Possession of property does not necessarily imply a donation of the same between husband and wife.
47. Celsus, Digest, Book I.
The question as to whether the husband, in the discharge of his duties while transacting the business of his wife, has incurred expenses with reference to her property, is one of fact, and not of law. A conjecture based on the amount and character of the expenses incurred by him will not be difficult.
48. The Same, Digest, Book IX.
Whatever a husband gives to his wife still remains his property, and he can recover it, nor does it make any difference if he has been left large bequests by his wife.
49. Marcellus, Digest, Book VII.
Sulpicius to Marcellus. A woman who wished that, after her husband died, her land should pass to the common son of her and her husband who was under the control of his father, transferred the land to her husband, in order that he might leave it to his son after his death. I ask whether you think that the donation is of such a character as to render the transaction void, or whether, if it is valid, the woman will have the power to revoke it, if she is unwilling to allow it to stand? The answer was, if a pretext or an excuse (so to speak), is sought for the gift, the delivery will not be valid; that is, if the wife expected that her husband would reap any advantage from it in the meantime. Otherwise, if she only made use of the services of her husband, and he gave them so that she might be able to revoke the donation; or, in order that the property with all its emoluments might pass through the father to the son, why should it not be considered valid, just as if the transaction had taken place with a stranger, that is to say, if the property had been delivered to him under the same circumstances?
50. Javolenus, Epistles, Book XIII.
Where a woman buys a slave for twenty aurei, and her husband pays five to the vendor at the time of the purchase, if a divorce takes place, he can certainly recover this sum. It makes no difference whether the slave has become deteriorated in value, or even if he should be dead, the husband will still be entitled to demand the five aurei; for the question arises, as to whether the woman has become enriched by the property of her husband, at the time when the question as to the return of the dowry arose. She is, in this instance, understood to have been pecuniarily benefited by having been released by the intervention of her husband from liability for a debt, which she would still have owed, if her husband had not paid the money. Nor does it make any difference for what reason the woman owed the money, that is to say, whether it was borrowed, or whether she owed it on account of some purchase.
(1) Where the woman did not buy the slave, but received the money from her husband in order to buy him, then, in case the slave should die, or become depreciated in value, the loss must be borne by her husband, because, as she would not have purchased the slave if she had not received the money from her husband, he who gave it must bear the loss, provided the slave died; nor is the woman considered to have become enriched who was not released by her creditor, and is not in possession of what she purchased with her husband's money.
51. Pomponius, On Quintus Mucius, Book V.
Quintus Mucius says that when a controversy arises as to whether anything has come into the hands of a wife, it is better and more honorable to hold that the property came into her hands through her husband, or through someone who is under his control, where it is not proved from what source she obtained it. Quintus Mucius appears to have adopted this opinion, for the purpose of avoiding any disgraceful inquiry with reference to a wife.
52. Papinianus, Questions, Book X.
Where a man, for the purpose of benefiting his wife, leases property to her for a very small sum, the transaction is void. Where, however, a deposit takes place between the parties at a low appraisement, for the purpose of benefiting one of them, it will be valid. These opinions are different, because the lease cannot be made without a certain rent, but a deposit can be made without any valuation of the property.
(1) A wife provided that the crops of a tract of land should be given to her husband by her heir, and if this should not be done, she promised a certain sum of money mortis causa. The husband, having died during the life of the wife, the stipulation was extinguished, as well as the delivery which was made mortis causa by the direction of the latter; for in an instance where a personal action for the recovery of property will lie among strangers, this will not take place among married persons.
53. The Same, Opinions, Book IV.
It is settled that a father-in-law cannot make a donation to either his son-in-law or his daughter-in-law mortis causa, because if the father-in-law should die, the marriage will not be dissolved; nor does it make any difference whether the father disinherited his son or his daughter, or not. In case of divorce the rule is different for the same reason.
(1) A woman made use of property which had been given by way of dowry, after it had been appraised with the consent of her husband. If the said property becomes deteriorated by use, a set-off of the damage will not be permitted. Nor can the woman maintain that the property has been, as it were, left to her under the terms of the will, by which bequests were made to her by her husband; since an assumption of this kind does not seem to have given her, or deprived her of the said property.
54. The Same, Opinions, Book VIII.
A husband stipulated for the interest on a promised dowry, but did not claim it. As he had maintained his wife and her slaves for the entire time of the marriage, at his own expense, and left her the dowry as a preferred legacy, as well as confirmed by the ordinary legal formalities of a trust the donations which he had given her, it was held that the interest of the dowry was not included in the legacy, but had been remitted by the terms of the donation.
55. Paulus, Questions, Book VI.
A wife gave a sum of money to her husband, and the latter purchased either personal or real property with this money which had been given him, and, as he was not solvent, and the property was still in existence, I ask, if the wife should desire to revoke the donation, whether she can legally proceed by a personal action for recovery; for the husband, although he is insolvent, seems to have profited by the donation, since the property acquired with the money of his wife was still in his possession. I answered that it could not be denied that he had profited by the donation, for we do not inquire what property he may have released from liability from debt by means of it, but what property of his wife he has in his possession. For he does not differ from one to whom her property has been given, except in the mere fact that in this instance, the property still belongs to the wife, and she can recover it by means of a direct action. The condition of the husband will be worse if suit is brought against him for the sum that the property is worth, and not for the amount in excess of the gift, than if he should be sued in an action on dowry. There is nothing, however, to prevent the woman from also bringing an equitable real action for the recovery of her own property.
56. Scaevola, Questions, Book III.
If I wish to give my wife absolutely, something which another person desires to give her mortis causa, what I order to be given to her will be void; because if the aforesaid party should regain his health, I will be liable to a personal action for recovery, and if he should die, I will, nevertheless, become poorer, for I will not have what I ought to be entitled to.
57. Paulus, Opinions, Book VII.
Where a woman received from her husband a sum of money by way of a donation, and wrote to him in the following terms: "When, at my request, my dearest lord, your indulgence granted me twenty aurei for the purpose of despatching certain business of mine; which sum was paid to me under the condition that if, through any fault or bad conduct of mine, our marriage should be dissolved during our lifetime; or if I should leave your house without your consent; or should repudiate you without any cause of complaint; or if it should be proved that a divorce was obtained on my account; I promise that, in any of these instances, I will repay and return to you without any delay, the twenty aurei, which you have this day consented to give me by way of donation." I ask whether in case this woman should repudiate her husband, Titius, she must refund the money. Paulus was of the opinion that the money which the husband gave to the wife in accordance with the terms set forth in the stipulation can be recovered, if the condition was fulfilled, since then it is transformed from a donation into a loan. Where, however, the condition of the stipulation is not shown to have taken place, only that amount can be recovered by which the wife is proved to have been enriched by the donation which was made.
58. Scaevola, Opinions, Book II.
Where lands and slaves were given to Seia during concubinage, and were afterwards returned by her at the time of her marriage, and others received in their stead, what is the law? The answer was that, according to the facts stated, a business transaction seems rather to have been concluded than a donation to have been made.
(1) Also, when a question arises with reference to the food of slaves, the answer was that sustenance given during the time of concubinage cannot be recovered, nor even such as was furnished during the time of marriage, if the slaves were used by the wife as well as the husband.
(2) Where a son was accustomed to transact the affairs of his mother, and slaves and other property were purchased with her money by her consent, and he drew up the bills of sale in his own name, and died while still under the control of his father; the question arose whether his mother could institute proceedings against her husband, and if she could, what action she could make use of. The answer was that if the mother intended that her son should be liable for said money, she would be entitled to an action De peculio against the father under whose control the son was, within a year after the latter died; and if she donated the property, she could recover it to the extent that the father profited by the said donation.
59. Paulus, Opinions, Book II.
Where anyone makes a donation to his wife under the condition that she shall receive what he gives her by way of dowry, and he dies, the donation will become valid.
60. Hermogenianus, Epitomes of Law, Book II.
A stepfather and a stepson are not forbidden to make donations to one another on the occasion of marriage.
(1) Donations are permitted between husband and wife in case of divorce; for this often happens either on account of the husband entering the priesthood, or because of sterility,
61. Gaius, On the Provincial Edict, Book XI.
Or where marriage cannot conveniently exist on account of old age, illness, or military service,
62. Hermogenianus, Epitomes of Law, Book II.
And for these reasons the marriage is dissolved with a friendly disposition.
(1) A donation made between husband and wife, or between patron and freedwoman, is not confirmed where a divorce takes place or marriage is not solemnized. If a donation has been made, and a divorce has taken place between the parties, it is not shared between them, where the woman is not permitted to obtain a divorce from her husband against his consent. Hence the donation is considered as if it had not been given, where a divorce occurs under such circumstances.
63. Paulus, On Neratius, Book III.
Where materials belonging to a wife are joined to a building of her husband in such a way that if removed they can be of any use, it must be held that the woman can bring an action, for the reason that none is authorized by the Law of the Twelve Tables, although it is not probable that the Decemvirs did not have in mind parties by whose consent their property was joined to the buildings of others. Paulus remarks that, in this instance, proceedings can only be instituted in such a way that a suit for the recovery alone of the property when removed from the building will lie in favor of the wife, and not one for double damages in accordance with the Law of the Twelve Tables; for whatever is included in the building with the knowledge of the owner of the same is not stolen.
64. Javolenus, On the Last Works of Labeo, Book VI.
A man gave something to his wife after a divorce had taken place, to induce her to return to him; and the woman, having returned, afterwards obtained a divorce. Labeo and Trebatius gave it as their opinion in a case which arose between Terentia and Maecenas, that if the divorce was genuine, the donation would be valid, but if it was simulated, it would be void. However, what Proculus and Caecilius hold is true, namely, that a divorce is genuine, and a donation made on account of it is valid, where another marriage follows, or the woman remains for so long a time unmarried that there is no doubt of a dissolution of the marriage, otherwise the donation will be of no force or effect.
65. Labeo, Epitomes of Last Works, by Javolenus, Book VI.
Where a man makes a donation to a woman who is not yet marriageable, I think that it will be valid.
66. Scaevola, Digest, Book IX.
Seia, when about to marry Sempronius on a certain day, before she was conducted to his house, and before the marriage contract was signed, gave him a certain number of aurei. I ask whether this donation is valid. I answered that strict attention should not be paid to the time, that is, whether the donation was made before she was conducted to his house, or before the marriage contract was signed, as very frequently this is done after the marriage has been celebrated; for unless the donation was made before the marriage was contracted, which is understood to have been done by the consent of the parties, it will not be valid.
(1) A girl was conducted to the country-seat of her intended husband three days before the ceremony took place, remaining in a separate room from that of her husband, and upon the day of the marriage before she passed under his control, and before she was received under the rite of water and fire, that is to say, before the nuptials were celebrated, he offered her ten aurei as a gift. The question arose that if a divorce took place after the marriage was solemnized, whether the sum donated could be recovered. The answer was that what had been donated as a gift before marriage could not be deducted from the dowry.
67. Labeo, Epitomes of Probabilities, by Paulus, Book II.
a wife should purchase a slave with money given to her by her husband,
or by someone who is under his control, and after the slave becomes
her property, she should deliver him to her husband as a donation,
the delivery will be valid, even though this is done with the same
intention with which other donations are made, and no action for recovery
can be granted her on this account.
Tit. 2. Concerning divorces and repudiations.
Marriage is dissolved by divorce, death, captivity, or by any other kind of servitude which may happen to be imposed upon either of the parties.
2. Gaius, On the Provincial Edict, Book XI.
The word divorce is derived either from diversity of opinion, or because those who dissolve their marriage go different ways.
(1) In cases of repudiation, that is to say, in renunciation of marriage, the following words are employed: "Retain your property" or "Retain the management of your property."
(2) For the purpose of dissolving betrothals, it is certain that a renunciation must be made, in which case the following words are used, namely: "I will not accept your conditions."
(3) It makes no difference whether the renunciation takes place in the presence or in the absence of the person under whose control one of the parties may be, or of him who is under said control.
3. Paulus, On the Edict, Book XXXV.
It is not a true or actual divorce unless the purpose is to establish a perpetual separation. Therefore, whatever is done or said in the heat of anger is not valid, unless the determination becomes apparent by the parties persevering in their intention, and hence where repudiation takes place in the heat of anger and the wife returns in a short time, she is not held to have been divorced.
4. Ulpianus, On Sabinus, Book XXVI.
Julianus asks in the Eighteenth Book of the Digest whether a woman who has become insane can repudiate her husband, or be herself repudiated; and he says that an insane woman can be repudiated, because she is in the position of a person who has no knowledge of anything, but that she cannot repudiate her husband on account of her madness, nor can her curator do so, but her father can repudiate him. He would not have treated the question of repudiation unless it had been established that the marriage would continue to exist even though the woman was insane. This opinion seems to me to be correct.
5. The Same, On the Edict, Book XXXIV.
If a girl who has been emancipated should obtain a divorce in order that her husband may profit by her dowry, and defraud her father who could claim it as profectitious if she should die during marriage, relief should be granted the father to prevent him from losing the dowry, for the Praetor must come to the aid of the father just as much as to that of the husband. The right to claim the dowry should therefore be granted to the father, just as if his daughter had died during marriage.
6. Julianus, Digest, Book LXII.
The wives of those who are in the hands of the enemy can be considered to always retain the place of married women, solely on the ground that others cannot rashly marry them. And, generally speaking, it must be said that, so long as it is certain that the husband is in captivity and is living, his wife has not the right to form another matrimonial connection, unless she herself has given some cause for repudiation. But if it is uncertain whether the husband who is held by the enemy is living or dead, then, if the term of five years has passed from the time when he was taken captive, his wife will have the right to marry again, so that the first marriage will be held to have been amicably dissolved, and each one of the parties will have their respective rights annulled. The same rule must be observed where a husband remains at home, and his wife is taken captive.
7. Papinianus, On Adultery, Book I.
Where one party who has given the other notice of divorce repents, and the other is ignorant of the change of mind, the marriage must be held to continue to exist; unless the one who received the notice and is aware of the change of mind, himself or herself desires to dissolve the marriage, for then it will be dissolved by the one who received the notice.
8. The Same, On Adultery, Book II.
The Divine Hadrian exiled for the term of three years a man who, while on a journey, took the wife of another man to his house, from which she sent to her husband a notice of repudiation.
9. Paulus, On Adultery, Book II.
No divorce is valid unless it takes place in the presence of seven Roman citizens, who are of age, in addition to the freedman of the party who institutes proceedings for that purpose. We understand the freedman to be one who has been manumitted by the father, the grandfather, the great-grandfather, and other ascendants interested in the proceedings above mentioned.
10. Modestinus, Rides, Book I.
A freedwoman, who has married her patron, cannot separate from him without his consent, unless she has been manumitted under the terms of a trust, for then she can do so even though she is his freedwoman.
11. Ulpianus, On the Lex Julia et Papia, Book III.
Where the law says: "The right of a freedwoman, who is married to her patron, to obtain a divorce shall not be allowed," this is not held to have made the divorce ineffective, because marriage is ordinarily dissolved by the Civil Law; therefore we cannot say that the marriage exists, as a separation has taken place. Again, Julianus says that a wife is not under such circumstances entitled to an action to recover her dowry; hence it is reasonable that when her patron desires her to remain his wife she cannot marry anyone else. For, as the legislator understood that the marriage was, to a certain extent, dissolved by the act of the freedwoman, he prevented her marriage with another, wherefore if she should marry anyone else, she will be considered as not married. Julianus, indeed, goes farther, for he thinks that such a woman cannot even live in concubinage with anyone except her patron.
(1) The law says: "As long as the patron desires her to remain his wife." This means that the patron wishes her to be his wife, and that his relationship towards her should continue to exist; therefore where he either ceases to be her patron, or to desire that she should remain his wife, the authority of the law is at an end.
It has been most justly established that the benefit of this law terminated
whenever the patron, by any indication of his will whatsoever, is
understood to have relinquished his desire to keep the woman as his
wife. Hence, when he institutes proceedings against his freedwoman
on the ground of the removal of property, after she had divorced him
without his consent, our Emperor and his Divine Father stated in a
Rescript that the party was understood to be unwilling that the woman
should remain his wife, when he brings this action or another like
it, which it is not customary to do unless in case of divorce. Wherefore,
if the husband accuses her of adultery or of some other crime of which
no one can accuse a wife but her husband, the better opinion is that
the marriage is dissolved; for it should be remembered that the wife
is not deprived of the right to marry another except where the patron
himself desires to retain her in that capacity. Hence, whenever even
a slight reason indicates that the husband does not desire her to
remain his wife, it must be said that the freedwoman has already acquired
the right to contract marriage with another. Therefore, if the patron
has betrothed himself to, or destined himself for some other woman,
or has sought marriage with another, he must be considered to no longer
desire the freedwoman to be his wife. The same rule will apply where
he keeps the woman as his concubine.
Tit. 3. In what way the dowry can be recovered after the marriage has been dissolved.
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.
2. Ulpianus, On Sabinus, Book XXXV.
Where marriage is dissolved, the dowry should be delivered to the woman. The husband is not compelled, in the beginning, to promise it by stipulation to another, unless this will not in any way prejudice his rights; for it must be held that if he has reason to apprehend anything that may inconvenience himself, he should not be compelled to promise the dowry to anyone else but his wife. This is the case where the woman is her own mistress.
(1) But if she is under the control of her father, and the dowry comes from him, it belongs to him and to his daughter. Hence the father cannot, either in his own proper person or by an agent, claim the dowry without the consent of his daughter; and therefore Sabinus says that it should be promised in this manner. Hence, it ought to be promised to whomever both parties direct this to be done. Again, if the father alone orders this, the right to bring suit for the dowry will not be taken away from his daughter after she becomes her own mistress. Moreover, if the father alone makes a promise with the consent of his daughter, the right of action will remain unimpaired so far as he is concerned. But can he act alone, or can he institute proceedings conjointly with his daughter? I think that the right of action to which the father, conjointly with his daughter, is entitled, is not lost; but if the daughter becomes her own mistress, this stipulation will prejudice him.
(2) When the father brings an action on dowry should we understand the consent of the daughter to mean that she expressly consents, or that she does not offer any opposition? It is stated in a Rescript of the Emperor Antoninus that a daughter is held to give her consent to her father where she does not clearly manifest opposition. Julianus states in the Forty-eighth Book of the Digest that a father is considered to institute proceedings with the consent of his daughter, when the latter is insane; for where she cannot manifest opposition on account of insanity, he thinks very reasonably that she gives her consent. But where the daughter is absent, it must be said that her father does not act with her consent, and he must furnish security that she will ratify what he does. Where the daughter is in possession of her senses, we require her to have knowledge of the proceedings, in order that it may appear that she does not oppose them.
3. 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.
4. 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.
5. Ulpianus, On Sabinus, Book XXX.
With reference to the division of the dowry during the year in which the divorce took place, the question arises whether the time shall be computed from the day of marriage or from that on which the property was delivered to the husband. Therefore, where the profits are to be retained by the husband, neither the day when the dowry was constituted nor the day of the marriage should be taken into consideration, but that on which the land given by way of dowry was first delivered, that is to say when possession was given.
6. 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.
7. Ulpianus, On Sabinus, Book XXXI.
It is held that the profits are what remains after deducting the expenses, and Scaevola applies this to those incurred by both husband and wife. For if the wife gave her dowry the day before the vintage, and, after the vintage was removed by the husband, he obtains a divorce, Scaevola does not think that the profits only of the eleven months should be refunded, but that also the expenses which were incurred should be deducted before dividing the profits. Therefore, if the husband spends anything for this year, the expenses of both parties should be considered. Thus, if an account is taken of the expenses incurred by the woman during several years of marriage, it will be necessary to compute them from the first year, before the land was given by way of dowry.
(1) Papinianus, however, says in the Eleventh Book of Questions that where a divorce takes place, the profits should be divided, not from the day when the property was leased, but that an account should be taken of the preceding time during which the marriage existed. For if the land was given as dowry at the time of the vintage, and the husband leased it to be held from the Kalends of November, and the divorce took place on the last day of the month of January, it is not just for him to be able to retain at the same time the profits of the vintage and the fourth part of the rent for the year when the divorce took place; otherwise, if the divorce was obtained upon the day before the vintage, the husband would retain the entire profits. Hence, if the divorce took place at the end of the month of January, and the marriage had existed for four months, the profits of the vintage and the fourth part of the rent for the present year should be consolidated, and out of this money a third part should be paid to the husband.
(2) The same rule must also be observed in the opposite case. For if a woman, immediately after the vintage has been gathered, gives a tract of land by way of dowry to her husband, and the latter rents the same land from the Kalends of March, and the divorce takes place on the Kalends of April, the husband can retain not only the twelfth part of the rent, but also a proportionate amount of the rent which will be due for the entire number of months during which the land was held as dowry.
(3) Moreover, if the crops during the year when the divorce was obtained belonged to the tenant in compliance with the terms of the lease, and the marriage is dissolved before the vintage, the money derived from the crops must be computed with reference to the expected yield of the next vintage.
(4) It is therefore apparent, from what has been stated, that those profits which the woman collected before she was married should not be included in the division.
(5) Set-offs can be made on account of donations, as well as because of what may have been appropriated out of such profits as have been collected after the divorce.
(6) What has been mentioned with reference to a year also applies to the term of six months, where two crops are gathered annually, as is the case where land is irrigated.
(7) The same rule applies where profits are collected only once in several years, as where trees are cut down.
(8) Moreover, if the lease of land is of such a character that something in addition to the annual rent must be paid at the end of five years, we must take into account the amount of the excess in proportion to the part of the five years which has elapsed.
(9) We hold that the same principle applies not only to land but also to cattle, so that the wool of sheep and the increase of flocks must be delivered. For if the husband accepts, by way of dowry, certain ewes about to have young, or which are soon to be sheared, will he be obliged to return nothing if a divorce should take place immediately after the lambs have been born, or the sheep sheared? In this instance, we must take into account the profits for the entire time during which the animals were taken care of, and not merely that when they were collected.
(10) With reference to a slave, the entire year must be taken into account if his services have been leased for that term, so that they will belong to the husband for the time previous to the divorce, but after it to the wife.
(11) The same rule also applies to the rents of urban estates as to the crops of farm lands.
(12) Where a wife gives land to her husband by way of dowry, and he cuts down the trees, if these are understood to be profits, their value in proportion to that part of the year which has elapsed must be refunded. I think, however, that if the trees which were cut down formed a thicket, or were small, they must be classed as crops. Where, however, they were not of this description, the husband should be held liable as having caused a deterioration of the land. But if the trees have been overthrown by the force of a storm, it must be said that their value should be paid to the woman, and that they should not be classed as crops, any more than when a treasure is found it is not reckoned as part of the crop, but half of it should be restored to the wife, just as in the case where a treasure is found on the land of another.
(13) If a husband should find marble quarries upon the land of his wife given by way of dowry, and they render the land more profitable, the marble which has been taken out, but not removed, will belong to the husband, but the expenses he has incurred shall not be made good to him, because the marble is not part of the yield of the land, unless it is of such a character that the stone is renewed, as is the case in certain quarries in Gaul and Asia.
(14) The yield of chalk pits, however, as well as of mines of gold or silver or any other kind of metal, or of sand pits, is considered to be part of the produce of the land.
(15) Security is sometimes given to the husband by his wife for the profits, and he retains nothing, if the woman receives the land while the crops are still standing. Sometimes the husband keeps the crops and restores nothing, which occurs where there is no more than he has a right to retain as his share. Sometimes, indeed, he must return the crops, when he has collected more than he is entitled to retain. The same rule applies where proceedings are instituted with reference to the dowry against a father-in-law, or against the heir of either of the joint-owners of the property.
(16) Pomponius says that whatever has been expended in the cultivation and the planting of the ground is to be considered as expended for the gathering of the crops, as well as whatever has been laid out for the preservation of buildings, or in caring for a sick slave; that is to say, where any profits are obtained from the said building or slave. These expenses, however, cannot be claimed where the husband retains the entire profit for the year, because the expenses should in the first place be provided for out of the income. It is evident that where the husband built a new house which was necessary, or rebuilt the old one which had entirely fallen into ruin without his fault, he will be entitled to present a bill for the expense. In like manner, if he uses a hoe upon the land, the same rule will apply; for such expenses are either necessary or beneficial to the property, and give rise to an action in favor of the husband.
8. 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.
(1) Whatever 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.
9. Pomponius, On Sabinus, Book XIV.
If a woman should be in default in receiving her dowry, her husband shall only be responsible for bad faith, and not for negligence with reference to the matter, in order to avoid his being compelled by the act of his wife to cultivate her land indefinitely; but the crops which have come into the hands of the husband must be given up.
10. 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.
(1) Proculus 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.
11. The Same, On Sabinus, Book XVI.
If a woman should knowingly give as dowry property which belongs to another, it must be delivered to her husband, just as if she had given him something that was her own, as well as the crops for the proportionate part of the year during which the divorce took place.
12. Ulpianus, On Sabinus, Book XXXVI.
It is established that the husband can have judgment rendered against him for the amount which he is able to pay, but this privilege cannot be granted to his heir;
13. 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.
14. Ulpianus, On Sabinus, Book XXXVI.
The case is different where a defender appears, for it is held that he properly defends the husband if he merely gives to the wife the amount which she could have recovered if she had brought suit against her husband himself.
(1) Pomponius very properly asks, in the Sixteenth Book On Sabinus, where a husband had made an agreement with his wife that judgment should not be rendered against him to the extent of his resources, but for the entire amount; whether such an agreement should be observed. He denies that it should be observed. This opinion seems to me to be correct, for it is better to hold that such an agreement was made contrary to good morals, as it is apparent that it was entered into in violation of the respect which a woman should show to her husband.
15. 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.
(1) Although 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.
(2) The 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;
16. Pomponius, On Sabinus, Book XVI.
For the reason that a father-in-law occupies the place of a parent.
17. 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.
(1) Moreover, 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.
(2) Neratius 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.
18. Pomponius, On Sabinus, Book XVI.
Labeo says that the children of a woman who are the heirs of their father also can have judgment rendered against them only to the extent of their resources.
(1) Although in matters relating to the dowry, a husband is not only liable for fraud but also for negligence; still, when, in an action on dowry inquiry is made as to his pecuniary responsibility, fraud is only taken into consideration, because in the management of his own affairs he is not liable for negligence. I think that, although fraud can only affect him if he is not solvent, this merely applies to his inability to pay the amount due to his wife, and not to the fraud of which he may have been guilty toward anyone else. Ofilius, however, says that if the dotal property should be lost through the bad faith of the husband, and he is in other respects insolvent, even though he has not committed fraud to render himself insolvent, still, judgment should be rendered against him solely for the amount of the dotal property with respect to which he has acted fraudulently; just as if it was by bad faith that he had rendered himself pecuniarily responsible. If, however, the husband was not guilty of either fraud or negligence with reference to the loss of the dotal property, only those rights of action to which the husband would be entitled on this ground should be assigned to his wife; as, for instance, those for theft, or unlawful damage.
19. Ulpianus, On Sabinus, Book XXXVI.
But if a woman obtains a divorce, and issue is joined in an action on dowry, and she returns to her husband, the marriage having been re-established, the action will be terminated, and everything will remain in its former condition.
20. 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.
21. Ulpianus, Disputations, Book III.
Where a husband has expended money belonging to the dowry for the purpose of ransoming from robbers any slaves necessary for the service of his wife, or in order that the woman may release from imprisonment one of her necessary slaves, he will be liable for what has been expended; and if only a portion of the dowry has been used, he will be liable for that portion, but if all of it has been consumed, the action on dowry will be extinguished. This rule applies with much more force where a father-in-law brings an action on dowry, for an action must be rendered for what has been expended for his benefit, whether the husband himself has done this, or whether he gave the money to the daughter in order that she might do it. If, however, the father should not institute proceedings, but, after his death, his daughter alone brings an action to recover her dowry, it must be held that the same rule will apply; for since an exception on the ground of fraud is included in an action on dowry, as in other bona fide actions; for it may be said (as is also held by Celsus) that this expense is included in an action on dowry, especially if it was incurred with the consent of the daughter.
22. The Same, On the Edict, Book XXXIII.
Where a father gives the dowry, or a stranger who does so contracts for it subject to a certain contingency, as for instance, if a divorce or death should take place, it must be said that the woman will, in any event be entitled to the action which was not mentioned in the agreement.
(1) If, after the marriage has been dissolved, the wife, being under paternal control, uses up the dowry jointly belonging to herself and her father without the consent of the latter, the father will be entitled to an action to obtain the delivery of the dowry to himself, whether his daughter be living or dead. This rule also applies where the dowry is given to a woman who is likely to waste it. If, however, it was given for good reasons to one who will not be likely to squander it, no action will lie, and after the death of the father, neither his heirs nor the woman can institute proceedings to recover it.
(2) If, after the marriage has been dissolved, the woman, having been deceived, accepts by novation a debtor who is insolvent, she will, nevertheless, be entitled to an action on dowry.
(3) Where a father, during the absence of his daughter, institutes proceedings to recover the dowry, even though he fails to give security for the ratification of his act, the right to sue should be denied the daughter, whether she becomes her father's heir, or whether she receives from him, by way of legacy, an amount equal to her dowry. Therefore, Julianus stated in several places, that what was given her by her father should be set off against her dowry, and that it would be to her profit if she received as much from him as was due from her husband as dowry, and which he had paid her father.
(4) If the father should not be permitted to remain at Rome, where the suit is brought for the dowry, on account of some sentence imposed upon him, the amount of the dowry must be paid to the daughter, provided she furnishes security that her father will ratify her act.
(5) It is necessary for the daughter to give her consent to her father bringing the action, at the time when issue was joined. In accordance with this, if she says that she consents, and, before issue is joined she should change her mind, or even be emancipated, the action brought by her father will be of no effect.
(6) We also agree with Labeo that sometimes an action should be refused the father, if his character is so degraded that it is to be feared that he will squander the dowry after receiving it; therefore the authority of the judge should be interposed, as far as he can do so, to protect the best interests of both daughter and father. If, however, the daughter conceals herself in order to avoid giving her consent to a father of this kind, I certainly think that an action should be granted the father, but only after proper cause has been shown. For what if the daughter, through motives of filial reverence, should agree with her father to be absent, why should we not hold that an action should not be granted him? But if the father is such a person that his daughter ought by all means to give her consent, that is to say, is a man of an excellent reputation, and his daughter is a woman of fickle character, or very young, or too much under the influence of an undeserving husband; it must be said that the Praetor should rather favor the father and grant him an action.
(7) Where either a husband or a wife becomes insane during marriage, let us consider what should be done. And, in the first place it should be observed that there is no doubt whatever that the one who is attacked by insanity cannot send notice of repudiation to the other, for the reason that he or she is not in possession of their senses. It must, however, be considered whether the woman should be repudiated under such circumstances. If, indeed, the insanity has lucid intervals, or if the affliction is perpetual but still endurable by those associated with the woman, then the marriage ought by no means to be dissolved. And where the party who is aware of this fact, and of sound mind, gives notice of repudiation to the other who is insane, he will, as we have stated, be to blame for the dissolution of the marriage; for what is so benevolent as for the husband or the wife to share in the accidental misfortunes of the other? If, however, the insanity is so violent, ferocious, and dangerous that no hope of recovery exists, and it causes terror to the attendants; then, if the other party desires to annul the marriage either on account of cruelty which accompanies the insanity, or because he has no children and is tempted by the desire of having offspring, the said party, being of sound mind, will be permitted to notify the other, who is insane, of repudiation; so that the marriage may be dissolved without reproach attaching to either, and neither party will suffer any damage.
(8) Where, however, the woman is affected with the most violent form of insanity, and the husband, through crafty motives, is unwilling to annul the marriage, but treats the unfortunate condition of his wife with scorn, and shows no sympathy for her, and it is perfectly evident that he does not give her proper care, and makes a wrongful use of her dowry; then, either the curator of the insane woman or her relatives have the right to go into court in order to require the husband to support her, furnish her with provisions, provide her with medicine, and omit nothing which a husband should do for his wife, according to the amount of the dowry which he received. If, however, it is evident that he is about to squander the dowry, and not enjoy it as a man ought to do, then the dowry shall be sequestered, and enough taken out of it for the maintenance of the wife and her slaves, and all dotal agreements made between the parties at the time of the marriage shall remain in their former condition, and be dependent upon the recovery of the wife, or the death of either of the parties.
(9) Moreover, the father of the woman who has become insane can legally begin an action for the restoration of the dowry to himself, or to his daughter; for although she, being insane, cannot give notice of repudiation, it is certain that her father can do so.
(10) If after the marriage has been dissolved, the father should become insane, his curator can bring suit to recover the dowry with the consent of his daughter; or, where there is no curator, his daughter will be allowed to bring it, but she must give security for the ratification of her act.
(11) It must also be held that, where the father is taken captive by the enemy, an action to recover the dowry should be granted to the daughter.
(12) Let us now pass to another subject, and inquire against whom the action on dowry will lie. It is clear that it will lie against the husband himself, whether the dowry was given to him, or to another with his consent, whether the latter was subject to his control or not. Where, however, the husband is subject to paternal authority, and the dowry is given to his father-in-law, then suit must be brought against the father-in-law. It is evident that if it was given to the son, or has been given by the direction of his father-in-law, the latter will still be absolutely liable. But if it is given to the son, but not by the direction of the father, Sabinus and Cassius gave it as their opinion that an action could, nevertheless, be brought against the father, because the dowry is held to have come into the hands of him who has the peculium. It will, however, be sufficient for judgment to be rendered against him for the amount of the peculium, or to the extent to which the property of the father has been benefited. If, however, the dowry has been given to the father-in-law, he cannot institute proceedings against the husband unless the latter becomes the heir of the father.
(13) When a woman makes a mistake as to the condition of her husband, and thinks that he is a freeman while, in fact, he is a slave, some preference must be shown her with respect to the property of her husband; for example, if there are other creditors, she must be preferred in case an action de peculio is brought, and if the slave owes anything to his master, the woman shall not be preferred to him, except with reference to what was either given by way of dowry, or purchased with money forming part of it, since property of this kind is dotal.
23. Paulus, On the Edict, Book XXXVI.
And where anything has been expended on property belonging to the dowry, and no account is given of the same by the woman, an exception on the ground of bad faith will be available.
24. Ulpianus, On the Edict, Book XXXIII.
If, during the existence of the marriage, the wife desires to institute proceedings on account of the impending insolvency of her husband, what time must we fix for her to claim the dowry? It is settled that it can be demanded from the time when it is perfectly apparent that the pecuniary resources of the husband are not sufficient for the delivery of the dowry.
(1) If the wife should institute proceedings after her husband has been disinherited, the better opinion is that the demand for the dowry should begin to date from the time that the heir entered upon the estate of the father of her husband.
(2) Whenever security should be given to a wife for the payment of her dowry, after a certain date, if her husband cannot furnish security, then the advantage arising from the enjoyment of the dowry during the intermediate time having been deducted, judgment should be rendered against him for the remainder. If, however, the husband should refuse to give security when he is able to do so; Mela says judgment should be rendered against him for the entire amount, and no account should be taken of any deduction growing out of the benefit obtained during the intermediate time. It is, therefore, a part of the duty of the judge to release the husband if security is furnished, or to render judgment against him, after having taken the set-off into consideration. This, indeed, is the practice at present, nor is a woman permitted to say that she prefers to suffer delay rather than submit to a reduction in the amount to be paid.
(3) Whether the dowry is at the risk of the husband or the wife, the husband must, nevertheless, pay it within the time established by law.
(4) Where a husband, with the consent of his wife, manumits slaves forming a part of the dowry, even if his wife intended to donate the slaves to him, he will not be liable for the expenses incurred in giving them their freedom; but if this was a business transaction carried on between them, he will be compelled by the court to give security to restore to his wife anything which comes into his hands from the property or the obligations of the freedmen.
(5) If the husband should be cruel to the dotal slaves, let us see whether an action can be brought against him on this account. And, in fact, if he is only cruel to the slaves of his wife, it is settled that he will be liable on this account; but if he is by nature cruel to his own slaves, it must be said that his immoderate severity should be checked by an order of court; for although a wife cannot require from her husband greater diligence than he employs in his own affairs, still, such cruelty as is reprehensible when exhibited with reference to his own property must be restrained with reference to that of others, that is to say, with respect to the slaves composing the dowry.
(6) Where a wife lends property belonging to her husband, and it is lost, it should be considered whether she must permit this to be set off against her dowry; and I think that if her husband forbade her to lend it, the deduction should at once be made; but if he did not permit her to do so, the judge can grant her a reasonable time to return it, if she gives security.
(7) When a portion of the property of a wife should be confiscated, she will have a right of action to recover the remainder of her dowry. I also hold that if a portion of the dowry has been confiscated alter issue has been joined, it will be sufficient for the judge to issue an order compelling the husband to restore the remainder. If, however, the entire dowry has been confiscated, the right of action will be extinguished.
25. Paulus, On the Edict, Book XXXVI.
Where a dowry is given to a son under paternal control without the order of his father, an action de peculio will lie; but where expenses have been incurred by the son, or an account of property given by him, or because of articles belonging to the peculium having been appropriated by the wife, the peculium is increased; as the father acquires a right of action derived from the person of his son, and hence everything included in the peculium must be given to the wife, if there still remains anything due to her.
(1) The husband, when restoring the dowry, must furnish security against fraud and negligence. If he has acted fraudulently to avoid making restitution, judgment shall be rendered against him for the amount which the woman swears to in court, because no one should retain property belonging to us against our consent.
(2) If the dotal property becomes deteriorated after a divorce, and the husband is in default in returning the dowry, he shall, under all circumstances, be liable for the depreciation in value.
(3) Where slaves that constitute part of the dowry take to flight, the husband must give security to pursue them, as a good citizen should do, and to restore them.
(4) Where a husband rents a tract of dotal land for five years, and after the first year a divorce takes place; Sabinus says that he is not obliged to return the land to his wife, unless she gives security to indemnify her husband if judgment should be rendered against him for anything that occurs after the first year of the lease; and he must give security to his wife to pay to her everything which he obtained under the lease, except the rent of the first year.
26. The Same, On the Edict, Book XXXVII.
Where the husband has once been in default, and his wife refuses to accept a dotal slave after he has been tendered by him, and the slave afterwards dies; neither the husband nor his heir will be liable for the value of said slave, nor will he be liable for damages, because his wife refused to accept the slave after her husband had tendered him.
27. Gaius, On the Provincial Edict, Book XI.
If the wife should die after a divorce, and her heir should bring an action for the dowry against her husband, or his father, it is held that the same rules will apply with reference to the restoration of the dowry, as are ordinarily applicable where the woman herself institutes proceedings.
28. Ulpianus, Institutes, Book I.
It is held that the husband can also act when he has a right to recover anything from his wife; for instance, if he has lost money on her account either because he has expended it for her, or paid it out under her direction. But if he has not lost anything thus far, for example, where he is conditionally liable, he is not yet considered qualified to proceed.
29. The Same, Disputations, Book III.
Whenever a father gives a dowry and stipulates for its return, he does not transfer the right of action for the dowry to her person unless it was agreed that this shall be continuous. But if he intended to stipulate for the intervening time, he cannot do so without the consent of his daughter, even though she may be under his control; because he cannot make the condition of the dowry worse unless she consents. It is clear that if he gave the dowry before marriage, he can stipulate with reference to the interval, even before marriage, and without the consent of his daughter.
(1) Where anyone gives a dowry in behalf of a woman, and agrees that it shall be paid to him when the marriage is dissolved, no matter in what way this is done, and the husband afterwards pays the wife her dowry, it is most justly held that an action for the recovery of the dowry will, nevertheless, lie against the husband in favor of the party who gave it.
30. 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.
(1) Whenever, 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.
31. The Same, Digest, Book XVIII.
If the husband has been convicted of a criminal offence, and a part of his property is confiscated, the Treasury must pay his creditors, among whom his wife is included.
(1) Where a father, having promised two hundred aurei to his daughter as a dowry, agreed that no more than a hundred should be demanded of her, and the marriage having been dissolved, he brings suit for the hundred aurei, concerning which the agreement was made that they should not be claimed, they are not understood to form part of the dowry. Where, however, after the death of the father, the husband brings an action against his heir, this sum will also be included in the dowry.
(2) If an agent appointed by the father should bring an action for the dowry with the consent of the daughter, and the father should die after a judgment has been obtained, the right of action to enforce the judgment will vest to the daughter rather than in the heirs of the father.
(3) Where the dowry has been given to the father, and one of the sons of the latter has been appointed heir to a certain portion of his estate under a condition, and while the condition is pending his co-heirs pay the dowry to the woman in proportion to their respective shares, the said son will be released from liability for payment of his part of the dowry, as he will not be entitled to an action against his co-heirs for the recovery of his share of the money.
(4) Where a woman receives a tract of land as her dowry, but no account of the crops have been taken in proportion to the time during the year when she was not married, she can, nevertheless, bring the action, because she received by way of dowry less than she was entitled to, for this has reference to an increase of dowry; just as if she had not received the offspring of slaves, or any legacies or inheritances, which had been acquired by her husband through dotal slaves after a divorce had taken place.
32. The Same, On Urseius Ferox, Book II.
If a former husband, as a debtor of his wife, should promise the delivery of the dotal property to her second husband by way of dowry, the amount of the dowry will not be any more than the pecuniary resources of the first husband will justify.
33. Africanus, Questions, Book VII.
A woman promised a certain sum of money by way of dowry, and produced parties who stipulated that a portion of it should be paid to them, in case the marriage was dissolved. The woman died before any dowry had been given, after appointing her husband her heir, and he entered upon her estate, which proved to be unprofitable. He will, nevertheless, be liable to the parties with whom the stipulation was made, as, by entering upon the estate of the woman who was his debtor he is understood to have repaid himself; and it makes no difference, so far as he is concerned, that the estate was insolvent, since he is liable to the other creditors.
34. The Same, Questions, Book VIII.
Titia obtained a divorce from Seius. Titius stated that she was under his control, and demanded that the dowry should be delivered to him, while she asserted that she was her own mistress, and wished to bring an action for the recovery of the dowry. The question arose what course the judge ought to take. I answered that he should refuse an action to the father, unless he could prove that his daughter was not only under his control, but had also given her consent to the suit, just as he should be refused even though he was able to prove that his daughter was under his control.
35. Marcianus, Institutes, Book X.
A freedwoman, who is divorced from her patron with his consent, can bring an action against him for the recovery of the dowry which she gave him.
36. Paulus, On Adultery, Book II.
Where the husband is not pecuniarily able to pay the dowry and it is confiscated, judgment should be rendered against him in favor of the Treasury for the amount which he is able to pay, in order that the woman may not be punished to the injury of the husband.
37. Ulpianus, Opinions, Book II.
A father is held to have received the dowry with the consent of his daughter, when the latter has no good reason to advance in opposition to his claim, and especially if she has afterwards been endowed by him with a larger sum.
38. Marcellus, Opinions.
Lucius Titius, while under paternal control, married Maevia with the consent of his father, and the latter received the dowry. Maevia then served notice of repudiation on Titius, and his father afterwards, in the absence of his son who had been repudiated, entered into an engagement of betrothal with her in the name of his said son. Maevia then served notice of the repudiation of the betrothal, and married another man. I ask if Maevia should bring an action for the recovery of her dowry against Lucius Titius, her former husband, to whom the dowry was left as heir to his father, and it should be proved that the marriage was dissolved through the fault of the woman, whether the dowry could be retained by the husband on the ground that she was to blame? Marcellus answered that even if Lucius Titius should be sued as the heir appointed by his father, still, if he had not consented to the betrothal, the fault of the woman should be punished by a fine.
39. Papinianus, Questions, Book XI.
Where a husband and a wife accuse one another in court of bad conduct, and the judge declares that both of them have given cause for repudiation, the decision should be understood to mean that, as both had treated the law with contempt, neither can claim its benefit, as the offence of each is atoned for by that of the other.
40. The Same, Questions, Book XXVIII.
After the dowry was given and the marriage contracted, the father, with the consent of his daughter, stipulated that the dowry should be returned to him in case of divorce. If the condition of this stipulation was complied with, and the daughter should afterwards die without issue, the father would not be prevented from suing on the stipulation; but if he wished to do so during the lifetime of his daughter, he could be barred by an exception.
41. The Same, Questions, Book XXXVII.
Where a father, ignorant that his daughter has been divorced, pays the dowry to her husband in compliance with his promise, the money can be recovered, not by the action for the payment of what was not due, but by the action on dowry.
42. The Same, Opinions, Book IV.
Where a father who has given a dowry for his daughter is banished to an island, an action for its recovery can be brought by the daughter. Moreover, if the father has been convicted after a divorce has taken place, the action on dowry can also be brought by the woman, where the father has not already brought it with her consent.
(1) It is held that the crops of land given by way of dowry and gathered in good faith, and which have been used to pay the expenses of marriage, before the question as to the freedom of the wife has been raised, even though it should afterwards be established that she was a slave, cannot be recovered. It is proper that expenses which are necessary and useful, and which have been incurred with reference to land which appeared to belong to the dowry, should be set off against the profits, and that anything in excess should be restored.
(2) Where a father, after the death of his daughter during marriage, brings an action under a stipulation, to collect the interest on money which has been paid by way of dowry, it is held that his son-in-law, who stipulated for the interest on the remaining part of the dowry, can justly claim a set off against the amount which is due, if he supported his wife at his own expense; otherwise, if she was supported by her father, the stipulation for the interest, being void, will not secure to the son-in-law the benefit of the set-off.
(3) If, after a divorce, the wife returns to her husband, the judgment obtained on a stipulation which a stranger who gave the dowry entered into will not be annulled, nor can a release be ordered by the court.
43. Scaevola, Questions, Book II.
Where a husband has judgment rendered against him for a sum which he is able to pay, and he has claims equal to, but not greater than the amount of the dowry, he will not be compelled to assign his rights of action.
44. Paulus, Questions, Book V.
If a father-in-law, appointed heir by his son-in-law, enters upon his estate, and the father dies, his daughter can bring an action on dowry, so Nerva and Cato hold; and this opinion is also stated by Sextus Pomponius in the Fifth Book of the Digest of Aristo. Pomponius, in the same place, agrees with Aristo. I, however, will say that if the father should emancipate his daughter, he also can be sued by her.
(1) Lucius Titius promised Gaius Seius a hundred aurei by way of dowry for his daughter, and it was agreed between Gaius Seius and Lucius Titius, the father of the woman, that the dowry could not be demanded of the husband during the lifetime of Lucius Titius, that is, the father of the woman. The marriage was afterwards dissolved by a divorce through the fault of the husband, and the father of the woman, having died, appointed other heirs, after disinheriting his daughter. I ask whether the husband could collect the dowry from the heirs of his father-in-law since he was obliged to return it to the woman? I answered that since the daughter was entitled to an action to recover her dowry, as other heirs had been appointed by her father, her husband would be required either to surrender the actual dowry to her, or assign her his rights of action, and that the heirs of the father-in-law would not have a right to plead an exception against him; since it would be absurd for a party to be considered guilty of bad faith when he demands a sum of money to be refunded, not to him whom he sued, but to another. On the other hand, if the divorce had taken place after the death of the father, and before the dowry had been demanded, the husband would be excluded from bringing an action for the dowry, which should not be admitted. But even if the daughter had been appointed heir to a part of her father's estate, the husband should bring suit against her co-heirs for their individual proportions of the dowry, and either return to the woman what he collects, or assign to her his rights of action.
45. The Same, Questions, Book VI.
Gaius Seius, the maternal grandfather of Seia, who was under paternal control, gave a certain sum of money by way of dowry to Lucius Titius, her husband, and inserted in the dotal instrument the following agreement and stipulation: "If a divorce should take place between Lucius Titius, the husband, and Seia, without her fault, all the dowry shall be returned to Seia, his wife, or to Gaius Seius, her maternal grandfather." I ask, if Seius, the maternal grandfather, should die immediately after making this agreement, and Seia should subsequently, without being to blame, be divorced during the lifetime of her father, under whose control she was, in favor of whom an action would lie under the agreement in the stipulation, the heir of the maternal grandfather, or of his granddaughter. I answered that the stipulation would seem to be void, so far as the granddaughter personally was concerned, as the maternal grandfather made the stipulation in her favor; for, since this is true, a right of action would be held to lie in favor of the heir of the stipulator, whenever the woman was divorced. It must be said, however, that the dowry can be paid to Seia, even though no action will lie directly in her favor; just as if her grandfather had stipulated that it should be given to him, or to someone else. The granddaughter ought, however, on account of the agreement of her grandfather, to be permitted to bring an equitable action to prevent her from being defrauded of the benefit of the dowry; or recourse to this proceeding should be had because of the favor conceded to marriage, and especially on account of the affection existing between the parties.
46. The Same, Questions, Book XIX.
Where a person promised a dowry to a wife by a stipulation, and bequeathed certain property to her by a will, but under the condition that she should not claim the dowry from his heir, she was unable to receive the property bequeathed to her. I answered that an action on dowry against the heirs should not be denied the woman.
47. Scaevola, Questions, Book XVII.
Where a woman commits adultery through the agency of her husband, he can retain none of her dowry; for why should a husband disapprove of acts which he himself either previously corruptly caused, or subsequently assented to? If, however, anyone should maintain that, according to the spirit of the law, a husband who afforded an opportunity to his wife to prostitute herself cannot accuse her, his opinion must be held to be correct.
48. Callistratus, Questions, Book II.
If it was stipulated in the dotal instrument that the dowry should remain in the hands of the husband for the benefit of the children, it can also be retained by him for the benefit of the grandchildren.
49. Paulus, Opinions, Book VII.
Maevia, among other property constituting her dowry, also delivered to her husband an instrument calling for ten solidi, which a certain Otacilius had executed in favor of the said Maevia, stating that he would give her ten thousand solidi when she was married; and the husband made no claim to this obligation because he could not do so. The question arose if the dowry should be demanded of the husband, whether he could be compelled also to refund that sum which was included in the said obligation. I answered that the husband could sue the debtor, as his wife's rights of action had been transferred to him, but that if he could not claim the money without being guilty of bad faith or negligence, he could neither be sued on account of the dowry, nor in an action on mandate.
(1) A tract of land, after having been appraised and given by way of dowry, was taken by a prior creditor on account of its having been pledged. The question arose whether the woman, in case she claimed the value of the dowry from her husband, should be barred by an exception; for it is held that she is not bound, because her father gave her the dowry for herself and she was not his heir. Paulus answered that where the land was evicted without either the bad faith or negligence of her husband, the latter could interpose an exception on the ground of fraud against the woman, claiming the amount of the dowry, as it would evidently be unjust for her to recover the value of the land, as the fraud of the father should only injure the daughter herself.
50. Scaevola, Opinions, Book II.
Certain property, after having been appraised, was given by way of dowry, and an agreement was drawn up stating that if the dowry was to be returned for any reason whatsoever, the identical property should be given up, and an account taken of its increase or diminution in accordance with the judgment of a good citizen; and so far as any property which was no longer in existence was concerned, its value should be estimated in accordance with its original valuation. The question arose whether, in case certain property which the husband had sold was still in existence, it should belong to the woman in accordance with the agreement. I answered that if such property was in existence, and had been sold without the consent of the woman or her subsequent ratification, it must be returned; just as if no appraisement had taken place.
51. Hermogenianus, Epitomes of Law, Book II.
Where property has been appraised, it is at the risk of the husband, even though it may have become deteriorated by the use of the wife.
52. Tryphoninus, Disputations, Book VII.
A husband, after a divorce, through mistake paid a dowry which he had not received. He can recover it, because he can prove that it had not been paid to him, for it can not be exacted from him.
53. The Same, Disputations, Book XII.
If a dowry should be given to a son under paternal control, he himself will be liable to an action on dowry; his father, however, will be liable to one to the amount of the peculium. It makes no difference whether or not the party has the property in the peculium, or holds it as dowry, but judgment should be rendered against him to the extent of his ability to make payment. It is understood, however, that his ability to pay is dependent upon the amount of the peculium which he had at the time the judgment was rendered against him. But if an action is brought against the father, whatever the son owes the latter or other persons under his control must be deducted from the peculium; but if an action is brought against the son himself, no deduction can be made of any other debt, when taking into consideration the amount that the son is able to pay.
54. Paulus, On Individual Rights.
The ability of a husband to pay is estimated without the deduction of any debt; and the same rule applies to a partner, a patron, and a parent. Where, however, anyone is sued on account of a donation, her pecuniary resources are estimated after all his debts have been deducted.
55. The Same, On Plautius, Book III.
When a woman brings an action for the recovery of her dowry, after her marriage has been dissolved, she must indemnify her husband where he has given security against the infliction of threatened injury, if she wishes to recover her dowry, so that she may secure her husband against any risk.
56. The Same, On Plautius, Book VI.
If anyone stipulates with a husband as follows: "If, for any reason, Titia ceases to be your wife, you must surrender her dowry"; by this general statement the stipulation becomes effective, whether the woman is taken captive by the enemy, or whether she is banished or reduced to slavery, for in such a clause all such accidents are included. If, however, the terms of the stipulation are strictly construed, will this apply where the woman dies, or is divorced? It is held to be more equitable that it should apply in case of death.
57. Marcellus, Digest, Book VII.
Where an usufruct is given by way of dowry, and a divorce takes place, the ownership of the property will not vest in either the husband or the wife, and where the restitution of the dowry is to be made, the husband must give security that, as long as he lives, the woman and her heirs will be allowed to enjoy the usufruct. I doubt whether this addition with reference to the heirs is correct, for it makes a difference in what way the usufruct was given, as dowry; since if the woman is to have the profits, the usufruct at her death will pass to her husband, to whom the ownership of the property belongs, and she will leave no right in the same to her heir, for the usufruct will then be due to her husband; as it is not customary for it to pass to the heir. But if the woman granted the usufruct with the land to her husband, it must be restored by him to her heirs, since it passes along with property to her heirs, if her husband was not in default in surrendering it. But, if the property has been alienated, or anyone had given the usufruct of his land, by order of the wife, to her husband as dowry, it must first be considered in what way it can be restored to the woman. This may be accomplished either by means of security given by the husband, or he can assign his rights to his wife as far as he is able to do so, and allow her to enjoy the property; or he can make some arrangement with the owner of the same, so that, with the consent of the latter, the usufruct can be transferred to the woman, as he can either grant her the usufruct of the land or give her something instead of it, as may be agreed upon between them. For, suppose that the woman should sell the usufruct to the owner of the property; in this instance, it would not be inequitable for the husband to be compelled to transfer the usufruct, since he can even be sued by the heir of the woman, for if he had not been in default in making the transfer, she could have left the price of the usufruct to her heir. If, however, she did not have the power to sell the usufruct to the owner of the property, the husband would be forced to allow the heir to gather the crops, which privilege he was obliged to grant to the woman herself.
58. Modestinus, On Discoveries.
Where a dotal slave is appointed heir by anyone, he can either enter upon the estate, or reject it, by order of the husband. But in order to avoid the husband from being liable to an action on dowry, either through too readily rejecting an estate, or rashly accepting it, when its condition is unknown, it is advised that the woman should be asked, in the presence of witnesses, whether she wishes to reject or accept the estate. If she should say that she rejects it, the slave can very readily repudiate it, by the order of her husband. If, however, she prefers to accept it, the slave must be restored by the husband to the wife under the condition that when, by her order, he enters upon the estate, he shall again be transferred to her husband. In this way provision is made for any anxiety the husband may experience, and the wish of the wife will be complied with.
59. Julianus, On Urseius Ferox, Book II.
The husband of my daughter, who was emancipated, and ill at the time, sent her a notice of repudiation, so that, after her death, he could the more readily deliver her dowry to her heirs than to me. Sabinus said that an equitable action should be granted me for the recovery of the dowry, and Gaius holds the same opinion.
60. Proculus, Epistles, Book V.
Where a daughter under paternal control, who was married, dies, and her father pays her funeral expenses, he can immediately recover them by means of an action, even though the son-in-law was obliged to return the dowry after a certain date; and after he has received the expenses of the funeral, the remainder of the dowry can be paid at the time agreed upon.
61. Papinianus, Questions, Book XI.
A husband manumitted a dotal slave without the consent of his wife. He was then appointed sole heir by the freedman to a share of the estate which he could, and should have acquired as patron, and ought have returned to his wife; the remaining portion, however, she will be entitled to recover by means of a dotal action, provided she was opposed to the manumission of the slave.
62. Ulpianus, On the Edict, Book XXXIII.
If a husband should manumit dotal slaves with the consent of his wife, it is just as if she intended to donate them to him, and he will not be liable to any claim on account of having given them their freedom.
63. Paulus, On the Lex Julia et Papia, Book II.
In this instance, the slave ceases to be a part of the dowry, as where anyone is permitted to donate a slave for the purpose of manumitting him, it is the same as if the slave was donated, because permission was given to manumit him.
64. Ulpianus, On the Lex Julia et Papia, Book VII.
Where, however, a husband who is transacting the business of his wife, with her consent, manumits a dotal slave, with her permission, he must restore to his wife whatever may have come into his hands through the said slave.
(1) If he imposes any conditions upon the slave in consideration of his freedom, he must be responsible for this to his wife.
(2) It is evident if any services should be performed by the freedman for the husband, and no appraisement of them should be made, it will not be just for the husband to pay anything to the wife on this account.
(3) But if any charge was imposed upon the freedman after manumission, this must be accounted for to the wife.
(4) Where, however, the freedman is the debtor of the husband, or has rendered himself liable for any other obligation, he must assign the claim which he holds against him to his wife.
(5) He is also compelled to deliver to his wife any of the property of the freedman, which may come into his hands, provided he acquired it in the capacity of patron. If, however, he acquires it in any other way, he is not compelled to transfer it, for he is not liable to his wife for anything which the freedman gives to him gratuitously, but only for what he acquires, or can acquire under his rights as patron. It is evident that if he is appointed heir by the freedman to the greater portion of the debt which the latter owes him, he will not be responsible for the excess; and if the freedman should constitute him his heir when he is not indebted to him, he will not be bound to give anything to his wife.
(6) He must, however (as the law declares), give "whatever may come into his hands". We understand this to mean whatever he collects, or can collect, because a right of action to do so is granted him.
(7) It is added in the law that the husband shall be liable where he has committed any fraudulent act to prevent the property from coming into his hands.
(8) If a patron disinherits his son, and the property of the freedman should be obtained by the latter, it must be considered whether the heir will be liable on this ground. And, also, where nothing comes into the hands of the patron himself, or into the hands of his heir, how can be become liable on this account?
(9) The law only speaks of the husband and his heir. Nothing is mentioned in it with reference to a father-in-law and his successors; and Labeo notices this as having been omitted. In these instances, therefore, the law is defective, and not even a praetorian action can be granted.
(10) Where the law says that the husband shall give up the money which he has received, it is evident that it did not intend that he should surrender the estate itself, but only the value of the same, or of the property of the freedman; unless the husband should prefer to surrender the property itself, and this should be admitted as the more favorable construction.
65. Scaevola, Questions Publicly Treated.
This action can be brought by the wife even during marriage.
66. Javolenus, On the Last Works of Labeo, Book VI.
Servius says that the husband is responsible for fraud and negligence with reference to all the property belonging to the dowry, which he has received, excepting money. This is also the opinion of Publius Mucius, for he decided in the case of Licinnia, the wife of Gracchus, whose dotal property had been lost in the sedition in which Gracchus was killed; as he held that the property should be restored to Licinnia, for the reason that Gracchus was to blame for the sedition.
(1) A husband gave money to his wife's slave for the purchase of clothing, and this having been procured, a divorce took place within a year. It was held by Labeo and Trebatius that the clothing should be returned to the husband in the condition in which it was after the divorce. The rule of law would be the same if the husband had purchased the clothing and given it to the slave. If, however, the clothing should not be returned, the price of it can be set off by the husband against the dowry.
(2) A father ordered his daughter, who was under his control, to return her dowry to her father-in-law, a divorce having taken place; and after a part of the dowry had been paid, the father died. Labeo and Trebatius think that the remainder, if it had not been delegated or promised to be renewed to the father-in-law, should be paid to her; and this is correct.
(3) You received, by way of dowry, certain slaves whose value had been appraised, and an agreement was then entered into that, in case of a divorce, you should return slaves of equal value, but no mention was made of the offspring of female slaves forming part of the dowry. Labeo says that this offspring will belong to you, because it should be yours on account of the risk of losing the slaves which you are obliged to assume.
(4) A woman had a hundred aurei in the hands of her husband, as dowry, and a divorce having taken place, she stipulated through a mistake of her husband that he should be liable to her for two hundred. Labeo thinks that her husband will only be responsible for the dowry, whether the woman stipulated for the amount honestly or dishonestly. I adopt this opinion.
(5) A wife, after her divorce, received part of her dowry, and left part in the hands of her husband, and afterwards married another man, and then, having become a widow, she returned to her first husband, to whom she gave a hundred aurei, by way of dowry, without mentioning the money which remained out of the former dowry. If another divorce should occur, Labeo says that the husband will be compelled to return the remainder of the first dowry, under the same terms that he would have returned it if the first divorce had not taken place between them, as the remainder of the former dowry was transferred to the obligation of the second one. This I think to be correct.
(6) When a husband, without the order of his wife, during marriage, releases his father-in-law from the dowry which he had promised, Labeo says that this will be at the risk of the husband, even though it was done on account of the poverty of the father-in-law. This is true.
(7) Where anyone promises a dowry to a husband in behalf of his wife, and then, after having appointed the woman his heir, dies, Labeo says that the woman must assume the risk of that part of the dowry for which the husband was liable, for the reason that it would not be just for her to be enriched at the expense of her husband, and to hold him responsible for what he could not have exacted from her. I think that this is correct.
67. Pomponius, Epistles, Book XX.
Whatever a husband must restore to his wife out of the peculium of a slave will form part of the dowry which is to be given up, and therefore the husband will be liable for fraud and negligence in the acquisition or preservation of the said peculium; and the profits obtained from the same, just as those of any other dotal property will belong to the husband.