[PAPINIANUS libro nono quaestionum. ] §17.2.81.prSi socius pro filia dotem promisit et prius quam solueret herede ea relicta decessit: quae postea cum marito de exigenda dote egit, accepto liberata est.
[PAPINIANUS, in the ninth book of Questions.] If a partner promised a dowry for his daughter and died before paying it, leaving her as his heir; and she afterwards dealt with her husband regarding the demand for the dowry and was released by an acknowledgment of receipt: the question was raised whether, if she brought an action as a partner, she ought to take the amount of the dowry beforehand, if by chance it had been agreed between the partners that the dowry should be constituted from the common property.
quaesitum est, an, si pro socio ageret, dotis quantitatem praecipere deberet, si forte conuenisset inter socios, ut de communi dos constitueretur. dixi pactum non esse iniquum, utique si non de alterius tantum filia conuenit: nam si commune hoc pactum fuit, non interesse, quod alter solus filiam habuit.
I said that the agreement was not unfair, at least if it did not concern the daughter of one partner only; for if this agreement was common to both, it is of no consequence that only one of them had a daughter.
ceterum si numeratam dotem pater defuncta in matrimonio filia reciperasset, reddi pecuniam societati debuisse, pactum ex aequitate sic nobis interpretantibus.
Moreover, if the father had recovered the dowry that had been paid over because the daughter died during the marriage, the money ought to have been returned to the partnership, our interpretation of the agreement based on equity being such.
quod si salua societate diuortio matrimonium solutum foret, cum sua causa dotem reciperari, scilicet ut ea uel alii marito dari possit.
But if, while the partnership was still in existence, the marriage was dissolved by divorce, the dowry should be recovered together with its accessory rights, namely, so that it could be given either to her or to another husband.
nec, si prior maritus facere non posset, denuo de societate constituendam dotem, nisi si nominatim ita conuenisset.
Nor, if the former husband were unable to pay, should the dowry be constituted anew from the partnership, unless it had been specifically so agreed.
uerum in proposito largiter interesse uidebatur, dos numerata esset an uero promissa: nam si filia datam dotem, posteaquam patri heres exstitit, iure suo recepisset, non esse referendam pecuniam societati, quam mulier habitura fuit, etsi alius heres exstitisset: quod si accepto a marito liberata esset, nequaquam imputari posse societati non solutam pecuniam.
But in the case proposed, it seemed to make a great difference whether the dowry had been paid over or merely promised; for if the daughter, after she became her father's heir, had recovered the dowry that had been given in her own right, the money ought not to be returned to the partnership, which money the woman would have held even if another had become the heir; but if she was released by an acknowledgment of receipt from her husband, the unpaid money can by no means be charged to the partnership.