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Justinian I · The Digest of Justinian §12.4.7.pr-12.4.7.1

Recovery of Third-Party Dowry and the Claim for Fruits

Passage 1957 of 9271 · Latin

Summary

This section discusses who holds the right of recovery when a person pays a dowry to a betrothed by order of a woman under error or as a true debt and the marriage fails, as well as the recovery of fruits and offspring from property given as dowry.

[IULIANUS libro sexto decimo digestorum. ] §12.4.7.prQui se debere pecuniam mulieri putabat, iussu eius dotis nomine promisit sponso et soluit: nuptiae deinde non intercesserunt: quaesitum est, utrum ipse potest repetere eam pecuniam qui dedisset, an mulier.
[JULIANUS, Sixteenth Book of the Digests.] A person who believed he owed money to a woman, by her order promised it to her betrothed under the name of dowry and paid it; thereafter the marriage did not take place. The question was asked whether he himself who had given it can claim the money back, or the woman.
Nerua, Atilicinus responderunt, quoniam putasset quidem debere pecuniam, sed exceptione doli mali tueri se potuisset, ipsum repetiturum.
Nerva and Atilicinus answered that since he indeed believed he owed the money, but could have protected himself by the plea of fraud, he himself should claim it back.
sed si, cum sciret se nihil mulieri debere, promississet, mulieris esse actionem, quoniam pecunia ad eam pertineret.
But if he had promised when he knew he owed nothing to the woman, the action would belong to the woman, since the money belonged to her.
si autem uere debitor fuisset et ante nuptias soluisset et nuptiae secutae non fuissent, ipse possit condicere causa debiti integra mulieri ad hoc solum manente, ut ad nihil aliud debitor compellatur, nisi ut cedat ei condicticia actione.
If, however, he had been a true debtor and had paid before the marriage, and the marriage did not follow, he himself can bring a condictio, while the cause of the debt to the woman remains unimpaired only to the effect that the debtor shall be compelled to nothing else than to cede the condictio action to her.
§12.4.7.1Fundus dotis nomine traditus, si nuptiae insecutae non fuerint, condictione repeti potest: fructus quoque condici poterunt.
A tract of land delivered under the name of dowry, if the marriage has not followed, can be claimed back by a condictio; the fruits can also be claimed back.
idem iuris est de ancilla et partu eius.
The same rule of law applies to a female slave and her offspring.

Notes

  1. 12.4.7.prcausa debiti integra mulieri ad hoc solum manente, ut ad nihil aliud debitor compellatur, nisi ut cedat ei condicticia actione — This is an ablative absolute construction led by the participle `manente`, where `mulieri` is a dative meaning 'with respect to the woman'. The `ut` clause explains the specific content of `ad hoc solum` (only for this purpose), and `nisi ut` inside it denotes an exception ('except to cede'). This syntax explains a double legal relationship: while the debtor who paid the betrothed gains a condictio against the betrothed because the marriage failed, his original debt to the woman remains active (integra), but he is not obligated to do anything more than cede the newly acquired action to her.
  2. 12.4.7.1idem iuris est — The partitive genitive `iuris` (of law) depends on the neuter nominative singular pronoun `idem` (the same), literally meaning 'the same of law exists' (the same rule of law applies). This is a formulaic expression in Latin legal texts to indicate that the previously stated rule applies equally to other objects.

Cite this passage

Justinian I, The Digest of Justinian §12.4.7.pr-12.4.7.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:12.4.7.pr-12.4.7.1

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