Justinian I · The Digest of Justinian §21.2.71.pr

Eviction of a Daughter's Dowry and the Father's Action

Passage 3152 of 9271 · Latin

Summary

This section examines whether a father has an immediate right of action when land given as his daughter's dowry is evicted, distinguishing between a daughter under paternal power and one who has been emancipated, and ultimately supporting the view that favors paternal affection.

[IDEM libro sexto decimo quaestionum. ] §21.2.71.prPater filiae nomine fundum in dotem dedit: euicto eo an ex empto uel duplae stipulatio committatur, quasi pater damnum patiatur, non immerito dubitatur: non enim sicut mulieris dos est, ita patris esse dici potest nec conferre fratribus cogitur dotem a se profectam manente matrimonio.

[THE SAME, Book 16 of Questions.] A father gave a tract of land as dowry in the name of his daughter: when it has been evicted, it is not without reason doubted whether the action on purchase or the stipulation for double value is committed, as if the father suffers the loss. For it cannot be said that the dowry belongs to the father in the same way as it belongs to the woman, nor is he compelled to collate with his brothers the dowry originating from him while the marriage continues.

sed uideamus, ne probabilius dicatur committi hoc quoque casu stipulationem: interest enim patris filiam dotatam habere et spem quandoque recipiendae dotis, utique si in potestate sit.

But let us see whether it may not be more probably said that the stipulation is committed in this case also; for it is to the interest of the father to have his daughter endowed and to have the hope of some day recovering the dowry, especially if she is under his power.

quod si emancipata est, uix poterit defendi statim committi stipulationem, cum uno casu ad eum dos regredi possit.

But if she has been emancipated, it can hardly be maintained that the stipulation is committed immediately, since only in one case can the dowry return to him.

numquid ergo tunc demum agere possit, cum mortua in matrimonio filia potuit dotem repetere, si euictus fundus non esset? an et hoc casu interest patris dotatam filiam habere, ut statim conuenire promissorem possit? quod magis paterna affectio inducit.

Could he then only sue at that moment when, if the land had not been evicted, he could have recovered the dowry upon his daughter's death during the marriage? Or, even in this case, is it to the interest of the father to have his daughter endowed, so that he can immediately sue the promisor? Which paternal affection rather induces.

Notes

§21.2.71.prne probabilius dicatur — The construction 'uideamus ne...' indicates a positive conjecture or proposal ('let us see whether it may not be...'). Here, it suggests Paulus's doctrinal inclination that it is more probable that the stipulation is indeed committed in this case as well.
§21.2.71.prquod magis paterna affectio inducit — The relative pronoun 'quod' refers back to the latter alternative in the preceding double question (that the father has an interest in keeping his daughter endowed, and thus can sue immediately). 'Paterna affectio' (paternal affection) is introduced as a substantive and moral motivation that justifies the legal 'interest' required for an immediate right of action.

Cite this passage

Justinian I, The Digest of Justinian §21.2.71.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:21.2.71.pr

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