THE
ENACTMENTS OF JUSTINIAN. THE NOVELS. |
~ C ~ |
CONCERNING
THE TIME AVAILABLE WHEN MONEY FORMING PART OF THE DOWRY HAS NOT BEEN
PAID. |
|
( S. P. Scott, The Civil Law, XVII, Cincinnati, 1932 ). |
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
twice Consul and Patrician. |
PREFACE. |
Our laws have
left without consideration all cases where sums expected to be paid
have not been counted out and delivered, but We have abridged the prolixity
and length of these, lest men may be enabled to take advantage of their
negligence under such circumstances, or even be guilty of fraud; for
evidence is not always available by those who wish to make use of it,
and time disposes of many things. Wherefore We have, in certain instances,
abridged the length of complaints in cases where the money was not paid
over, which may be collected under laws already enacted; for, as the
entire time of the existence of the marriage was granted to husbands
to demand a dowry which had not been paid, and another year was conceded
for this purpose after their death, or after repudiation, We have deemed
it proper by means of a short and useful law to abridge the time during
which the claim for a dowry which was not paid shall be made, and release
women from the necessity of proving, after a long period had elapsed,
that this had been done. |
CHAPTER
I. CONCERNING DOWRIES WHICH HAVE NOT BEEN PAID. |
Therefore
where a man lives with his wife for the term of two years or less, and
does not receive his dowry, his silence shall not prejudice the rights
of himself or his heirs; but a demand for the dowry can be made within
another year, as the brief duration of the marriage impels Us to enact
this legislation. Where the matrimonial union lasts longer than two
years, but less than ten, We give the husband permission to present
his claim during the existence of the marriage, and to state that the
dowry has not been paid to him, either wholly or in part. Where he has
once formulated his demand, under such circumstances, and his wife does
not prove that she paid the dowry, the husband shall transmit his right
of action to his heirs. (1) When, however, the dowry is not demanded within ten years, We forbid the husband, on account of his silence, to claim it after this period has elapsed, and We do not grant a year to his heirs for this purpose. We do not establish this rule as a penalty against anyone, but on account of the solicitude which We entertain for the liberty of Our subjects. For when the husband can demand the dowry during so long a period (We mean the term of ten years), but prefers to remain silent, it is perfectly clear that, although he has not received it, it was his intention to entirely relinquish it himself, or allow his heirs to do so. The provisions of this law shall be applicable even in case the marriage should be dissolved by repudiation. We make no distinction where the woman herself has stipulated for the dowry; for whether this be the case, or some other person has constituted it for her; since, as We have previously stated, lapse of time will invariably produce its effect, and will either confer or take away the right to bring the action to collect the dowry. It is, however, unnecessary for the demand for the dowry merely to be made verbally (for often indignation or some other incentive induces the husband to make it in this way, or it may even happen that he does not demand it at all, and that witnesses who have been purchased make false statements), but the demand must be made in writing. If anyone should desire to bring suit for this purpose, he shall absolutely be required to notify the woman or whoever is obliged to pay the dowry, as there is nothing which prohibits the husband from personally making the demand. The wife should not disregard the notice, she cannot anticipate it, and he who is about to file the complaint should not leave her in ignorance of the fact. |
CHAPTER II. |
Therefore,
generally speaking, it must be said that where a marriage is dissolved
either by death or repudiation within two years, the husband himself,
as well as his heir, can, during another year, apply to the court on
the ground that the money has not been paid. If, however, the marriage
should last more than two years, and less than ten, We do not grant
the husband or his heir a longer term than three months in which to
make a demand for the dowry. But when ten years have elapsed, then neither
the husband nor his heir shall be permitted to claim the dowry, and
this time shall be sufficient to insure its retention by the woman.
Where the husband is a minor, and has not claimed the dowry, We allow
him a term not exceeding twelve years from the date of his marriage
to do so; for We are aware that marriages of this kind are not contracted
before the age of fifteen years; hence it follows that if the minor
has passed his twenty-fifth
year, he can, until his twenty-seventh, claim the dowry on the ground
that it has not been paid, and if he should die during this time, his
heirs shall have a year for that purpose. (1) But where the heirs of anyone who is either of age or a minor did not demand the dowry themselves and are minors, they will only have five years in which to claim it on the ground of its not having been paid; and this time will be sufficient for them without waiting for the majority of all the minors. The following circumstance induced Us to enact the present law, namely: A certain woman married a boy of fourteen years of age, and twenty years after the death of the latter, she, taking an improper advantage of the age of the minor son, whom she had had by him, demanded the return of her dowry. The son, however, opposed this by alleging that the dowry had not been paid, but he did so twenty-four years after his mother's marriage, a case which, after due consideration, We had already provided for. Under the present law We allow minors the term of five years in which to avail themselves of the claim that the dowry was not paid; nevertheless, a husband who has given a receipt for the dowry cannot proceed in this manner, and all cases of this kind shall be decided after the time of majority or minority has elapsed. This rule is applicable to all future marriages, for, so far as those at present existing are concerned, if they last less than ten years and more than two, the husband, in order to demand a dowry which has not been paid, will be entitled to the time granted him after the expiration of the said terms. But where the marriage lasts less than two years, or more than ten, afterwards, then We grant the husband two years in which to claim the unpaid dowry and We allow his heirs three months after the dissolution of the marriage for this purpose, in order that justice may be done to them in every respect. |
EPILOGUE. |
Your
Highness will hasten to see that what We have been pleased to enact
by this Imperial Law is executed. |
Given
at Constantinople, on the thirteenth of the Kalends of January,
during the thirteenth year of the reign of Our Lord the Emperor Justinian,
and the Consulate of Ario. |
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