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. |
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( 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. |
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