[PAPINIANUS libro undecimo quaestionum. ] §12.7.5.prAuunculo nuptura pecuniam in dotem dedit neque nupsit: an eandem repetere possit, quaesitum est.
[PAPINIANUS, in his eleventh book of Questions.] A woman intending to marry her maternal uncle gave money as a dowry and did not marry. It was asked whether she could claim it back.
dixi, cum ob turpem causam dantis et accipientis pecunia numeretur, cessare condictionem et in delicto pari potiorem esse possessorem: quam rationem fortassis aliquem secutum respondere non habituram mulierem condictionem: sed recte defendi non turpem causam in proposito quam nullam fuisse, cum pecunia quae daretur in dotem conuerti nequiret: non enim stupri, sed matrimonii gratia datam esse.
I said that when money is paid on account of an immoral cause of both the giver and the receiver, the condictio ceases, and in equal guilt, the possessor is in the stronger position. Perhaps someone, following this reasoning, might answer that the woman will not have the condictio. But it is rightly maintained that in the case proposed there was not an immoral cause, but rather no cause at all, since the money which was given could not be converted into a dowry; for it was given not for the sake of illicit intercourse, but for the sake of marriage.
§12.7.5.1Nouerca priuigno, nurus socero pecuniam dotis nomine dedit neque nupsit.
A stepmother gave money under the name of a dowry to her stepson, or a daughter-in-law to her father-in-law, and did not marry.
cessare condictio prima facie uidetur, quoniam iure gentium incestum committitur: atquin uel magis in ea specie nulla causa dotis dandae fuit, condictio igitur competit.
At first sight, the condictio seems to fail, since incest is committed under the law of nations; yet all the more in that case there was no cause for giving a dowry, and therefore the condictio is available.