THE NEW CONSTITUTIONS OF THE EMPEROR LEO.
~  XXI  ~
THE PROMISE OF A DOWRY SHALL BE FULFILLED BY THE DELIVERY OF PROPERTY BELONGING TO THE FATHER'S OR MOTHER'S ESTATE.



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

 
The Same Emperor to Stylianus, Most Illustrious Master of the Offices.

  Just as one can make use of a balance to determine the weight of anything when the scales are perfectly equal and do not incline more to one side than the other, so a law is worthy of serving as a rule for the decision of litigation, when it contains nothing which tends to the perversion or corruption of justice. The use of the former is to preserve equilibrium, and of the latter to maintain equity. What is the application of this? A constitution is included in the Code that contains provisions which I do not think are in conformity with the law providing for the enforcement of promises bestowing dowries and ante-nuptial donations. For it declares that where a father promises a dowry or an ante-nuptial donation for the benefit of his children, and he makes his promise in a general way, he must himself fulfill it by giving his own property alone; but if, on the other hand, he should make a distinction, and speak as follows, "I shall fulfill my promise by taking the property out of my own estate and that of my son," then, if he is poor, he can not comply with his promise, but what he agreed to give shall be entirely taken from the estate of his son; but when he is wealthy, he alone must do what he promised, and his son shall contribute nothing for that purpose, even though he may have stated that the latter must participate with him, and give up his property, for the reason that it is thought to be unjust for the son to surrender anything which he did not agree to donate. We are of the opinion that this rule is subversive of equity, for no matter how poor the father may be, it is unjust for his son to be obliged to entirely fulfill his promise; and, on the other hand, when the father is wealthy, it is not proper for him to carry out the promise, without his son assisting in doing so. It is for this reason that We have decided that the promise shall be complied with in accordance with the terms in which it was set forth. Where the father limited it to himself, he alone must execute it; if he made it conjointly with his son, the latter must participate in its execution; and this shall be done equally when anything has been provided in this respect, or each must pay his share in case what each should give was stated. There is no violation of equity in this rule, and, besides, it has in view the welfare of the children, which the constitution included in the Code does not sufficiently provide for. Why is this? Because a father who, above all things, considers the expense, by waiting until his son is old enough to make a valid promise before drawing up the matrimonial contract, often loses the opportunity of an advantageous marriage. Therefore, for the benefit of both parties, as well as in the interests of justice and to promote the welfare of the children, We hereby abolish the decree of the Code, and enact as law what has already been observed as custom. What has been prescribed shall be considered as law and substituted for the enactment contained in the Code.