THE ENACTMENTS OF JUSTINIAN.
  
THE NOVELS.
~  LXI  ~
IMMOVABLE PROPERTY OF WHICH ANTE-NUPTIAL DONATIONS ARE COMPOSED SHALL NEITHER BE HYPOTHECATED NOR ALIENATED IN ANY WAY BY THE HUSBAND EVEN WITH THE CONSENT OF THE WIFE, UNLESS HE HAS SUFFICIENT PROPERTY TO AFTERWARDS SATISFY HER CLAIM ; AND THE SAME RULE SHALL ALSO APPLY TO DOWRIES.



 
S. P. Scott, The Civil Law, XVI, Cincinnati, 1932 ).
 

 
  The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
  A pitiable case having been brought to Our notice, We, having corrected it in the proper manner, desire to remedy abuses of this kind by means of a general law, as We are accustomed to do.
CHAPTER I.
   
IMMOVABLE PROPERTY COMPOSING AN ANTE-NUPTIAL
DONATION
CAN UNDER NO CIRCUMSTANCES BE EITHER HYPOTHECATED OR ALIENATED.
  We order that if anyone should agree to give an ante-nuptial donation, or one in consideration of marriage (for We have decided that the latter name is preferable), whether he does this himself, or someone else agrees to give it, for instance, the father, the mother, other relatives, or even strangers, and the said donation consists of immovable property, We expressly prohibit the husband from either encumbering it, or disposing of it in any way whatever thereafter, for it is not proper to alienate anything which has been once bound by the ties of nuptial generosity; and the wife, if she should happen to obtain this advantage, and the property was not found in the possession of her husband because it had been alienated or hypothecated to a third party, who perhaps was a powerful person, would find it difficult, or perhaps entirely impossible to recover it, and she would be reduced to the necessity of bringing an action for that purpose, when she should be protected by the law itself.
  (1) Wherefore, this constitution shall be observed; and anyone who hereafter makes a contract of this description is hereby notified that whether he purchases the property, or has it encumbered to himself, he will reap no benefit whatever from doing so; and whatever has been reduced to writing or agreed upon verbally shall be considered as not having taken place, in order that the advantage to which the wife was entitled may not be interfered with. For those judges who, after the dissolution of the marriage, formerly granted to wives an action in rem to recover the immovable property of which an ante-nuptial donation was composed, do not appear to Us to have acted unreasonably, as We consider this practice to be praiseworthy, but hereafter judges must not longer observe it. We do not wish creditors to make use of crafty methods to induce wives to consent for immovable property composing ante-nuptial donations to be hypothecated to them, and thus to be deprived of their rights; for the consent of the wife either to hypothecation, sale, or alienation of such property shall be of no benefit whatever to the person who obtains it; and as We have stated with regard to women becoming sureties, it is necessary for its validity that, after the lapse of two years, a new declaration in writing, confirmatory of the first, be made by her, and then the transaction which has already taken place shall be ratified.
  (2) If the wife should consent to the encumbrance of the property, as in the case where she becomes surety, she shall be entirely exempt from all liability, unless (as We have just stated) she gives her consent a second time. For deception is often practiced to obtain consent in the first place, and a wife readily deceived by the representations of her husband may be negligent of her own rights, while after some time has elapsed, she can reflect upon the matter, and perhaps become more cautious.
  (3) Still, We do not make this statement without any reservation, for We do not subject the wife to the risk of losing the immovable property of which the donation is composed, on account of her second consent; provided her husband has other property out of which it is possible for her to be indemnified for either the personal or real property of which the ante-nuptial donation is composed, and which is in the hands of a third party by virtue of some alienation or encumbrance; but, on the other hand, if there is no other in his hands, We do not permit the wife to sustain any loss; for even though she may consent a second time, or several times, to the hypothecation of the property of the ante-nuptial donation, her right to it shall still remain secure, and the alienation will not be valid; unless, We repeat, there is sufficient property remaining in the hands of the husband to make up the amount of the ante-nuptial donation. We establish this rule not only for the purpose of protecting the interests of wives, but even more to safeguard the rights of husbands, as, in a great number of instances, the property composing the ante-nuptial donation is set apart for the benefit of the common children, and reverts to the husband, thus becoming part of his estate; and in this way the law is advantageous to both husband and wife. The rule is still more applicable to dowries, where any property belonging to them is either alienated or hypothecated; but provisions relating to dowries have already been sufficiently described and explained.
  (4) Nor do We, in any respect, neglect the rights of third parties who make such contracts; for as We desire the alienation of property to which wives are entitled to be held not to have taken place, or to have been committed to writing, so We also desire the transfer of the property of husbands, when obtained by anyone through alienation or hypothecation, to be considered void. We preserve the rights of women unimpaired, so far as the immovable property composing ante-nuptial donations and the other property of their husbands is concerned; and the privileges which We have already granted shall remain in full force, even in the case of the woman herself if she should institute legal proceedings, for We have never previously granted any privileges of this kind to anyone else, nor do We at present do so.
EPILOGUE.
  Your Eminence will communicate to all persons the matters which it has pleased Us to insert in this Imperial law, by availing yourself of edicts published in the customary manner, in order that no one may be ignorant of what has been ordered by Us; and the Most Glorious Urban Prefect will see that this is done in this Most Fortunate City.