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Justinian I · The Digest of Justinian §11.7.20.pr-11.7.20.2

Funeral Costs under Dowry Agreements and Wife Insolvent

Passage 1824 of 9271 · Latin

Summary

This section discusses the scope of the husband's liability for funeral expenses when there is an agreement regarding the return of the dowry, and argues that when a wife dies insolvent, her funeral should be funded solely out of her dowry.

[IDEM libro uicensimo quinto ad edictum. ] §11.7.20.prNeratius quaerit, si is, qui dotem dederat pro muliere, stipulatus est duas partes dotis reddi, tertiam apud maritum remanere, pactus sit, ne quid maritus in funus conferret, an funeraria maritus teneatur.
[THE SAME, On the Edict, book 25] Neratius asks: if he who had given a dowry on behalf of a woman stipulated that two thirds of the dowry should be returned, and one third remain with the husband, and agreed that the husband should not contribute anything to the funeral, is the husband liable to the action for funeral expenses?
et ait, si quidem ipse stipulator mulierem funerauit, locum esse pacto et inutilem ei funerariam fore: si uero alius funerauit, posse eum maritum conuenire, quia pacto hoc publicum ius infringi non possit.
And he says: if indeed the stipulator himself buried the woman, there is room for the agreement, and the action for funeral expenses will be of no use to him; but if another person buried her, that person can sue the husband, because this public law cannot be infringed by a private agreement.
quid tamen si quis dotem hac lege dederit pro muliere, ut ad ipsum rediret, si in matrimonio mortua esset, aut quoquo modo soluto matrimonio? numquid hic in funus non conferat? sed cum dos morte mulieris ad eum peruenerit, potest dici conferre eum.
What if, however, someone gave a dowry on behalf of a woman under the condition that it should return to himself if she died during the marriage, or if the marriage were dissolved in any way? Would he not contribute to the funeral in this case? But since the dowry has come to him upon the death of the woman, it can be said that he should contribute.
§11.7.20.1Si maritus lucratur dotem, conuenietur funeraria, pater autem non.
If the husband gains the dowry, he will be sued by the action for funeral expenses, but the father will not.
sed in hunc casum puto, si dos, quia permodica fuit, in funus non sufficit, in superfluum in patrem debere actionem dari.
But in this case, I think that if the dowry, because it was very small, is not sufficient for the funeral, the action for the excess ought to be granted against the father.
§11.7.20.2Cum mater familias decedit nec est eius soluendo hereditas, funerari eam ex dote tantum oportet.
When a mother of a family dies and her inheritance is not solvent, she ought to be buried solely out of her dowry.
et ita Celsus scribit.
And so Celsus writes.

Notes

  1. §11.7.20.prfuneraria — An abbreviation with the omission of the noun 'actione' or 'actionem'. The first 'funeraria' is in the ablative case denoting the means of 'teneatur' ('be held liable to the action for funeral expenses'). The second 'funerariam' is in the accusative case as the subject of the infinitive 'fore', representing 'actionem funerariam' ('the action for funeral expenses will be of no use').
  2. §11.7.20.2soluendo — The dative of the gerund of the verb 'soluere' (to pay). The phrase 'soluendo esse' is a legal idiom meaning 'to be solvent' (literally, 'to be for paying'). Here, accompanied by the negative 'nec', it means 'to be insolvent' (the inheritance being unable to pay). 'eius' is the genitive feminine referring to the deceased woman, modifying 'hereditas'.

Cite this passage

Justinian I, The Digest of Justinian §11.7.20.pr-11.7.20.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:11.7.20.pr-11.7.20.2

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