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Justinian I · The Digest of Justinian §12.4.9.pr-12.4.9.1

Recovery of Failed Dowry and Defense of Mistake

Passage 1959 of 9271 · Latin

Summary

The text determines who holds the right to claim back a payment or dowry when a marriage is not celebrated, and addresses the limitation of the defense of fraud and the availability of a condictio when a third party mistakenly promises a debt to a betrothed by order of the woman.

[PAULUS libro septimo decimo ad Plautium. ] §12.4.9.prSi donaturus mulieri iussu eius sponso numeraui nec nuptiae secutae sunt, mulier condicet.
[PAULUS, Seventeenth Book on Plautius.] If, intending to make a gift to a woman, I have paid money to her betrothed by her order, and the marriage has not followed, the woman will bring a condictio.
sed si ego contraxi cum sponso et pecuniam in hoc dedi, ut, si nuptiae secutae essent, mulieri dos adquireretur, si non essent secutae, mihi redderetur, quasi ob rem datur et re non secuta ego a sponso condicam.
But if I contracted with the betrothed and gave the money for this purpose, that if the marriage should follow, the dowry would be acquired by the woman, but if it should not follow, it would be returned to me, it is given, as it were, for a purpose; and when the purpose has not followed, I will bring a condictio against the betrothed.
§12.4.9.1Si quis indebitam pecuniam per errorem iussu mulieris sponso eius promississet et nuptiae secutae fuissent, exceptione doli mali uti non potest: maritus enim suum negotium gerit et nihil dolo facit nec decipiendus est: quod fit, si cogatur indotatam uxorem habere.
If anyone has, by mistake and by the order of a woman, promised to her betrothed money that was not owed, and the marriage has followed, he cannot use the plea of doli mali. For the husband is conducting his own business, does nothing with malice, and should not be deceived—which is what happens if he is forced to have a dowerless wife.
itaque aduersus mulierem condictio ei competit, ut aut repetat ab ea quod marito dedit aut ut liberetur, si nondum soluerit.
Therefore, he is entitled to a condictio against the woman, either to recover from her what he has given to the husband, or to be released if he has not yet paid.
sed si soluto matrimonio maritus peteret, in eo dumtaxat exceptionem obstare debere, quod mulier receptura esset.
But if, after the marriage is dissolved, the husband should make a claim, the plea ought to stand in his way only to the extent of what the woman would recover.

Notes

  1. §12.4.9.prdonaturus — Future active participle, expressing the intention or purpose of the subject of the main clause ("ego").
  2. §12.4.9.prmulier condicet — Because the payment was made by her order (iussu eius), the transaction is legally reconstructed as a gift from "me" to the woman, followed by a transfer from the woman to her betrothed. Consequently, the claim for return (condictio) belongs to the woman who gave the order, rather than "me" who physically paid. This contrasts with the second case where "I" contracted directly (ego contraxi).
  3. §12.4.9.1quod fit — The relative pronoun "quod" refers back to the idea of the husband being deceived ("decipiendus est"), meaning "which (deception) happens if he is forced to have a dowerless wife."
  4. §12.4.9.1in eo dumtaxat ... quod — The correlative structure "in eo ... quod" means "only in that which" or "only to the extent that." The verb "receptura esset" in the quod-clause refers to the scope of what the woman would recover upon the dissolution of the marriage.

Cite this passage

Justinian I, The Digest of Justinian §12.4.9.pr-12.4.9.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:12.4.9.pr-12.4.9.1

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