Humanitext Reader

Justinian I · The Digest of Justinian §23.1.10.pr

Paternal Dissolution of Betrothal and Emancipation

Passage 3298 of 9271 · Latin

Summary

Explains that while a father can dissolve the betrothal of a daughter under his power, he loses this power if she is emancipated, and discusses the recovery of dowry given for an emancipated daughter.

[IDEM libro tertio disputationum. ] §23.1.10.prIn potestate manente filia pater sponso nuntium remittere potest et sponsalia dissoluere.
[THE SAME, in the third book of Disputations.] While the daughter remains under paternal power, the father can send a notice of repudiation to her betrothed and dissolve the betrothal.
enimuero si emancipata est, non potest neque nuntium remittere neque quae dotis causa data sunt condicere: ipsa enim filia nubendo efficiet dotem esse condictionemque extinguet, quae causa non secuta nasci poterit.
However, if she has been emancipated, he can neither send a notice of repudiation nor bring an action to recover what was given as a dowry; for the daughter herself, by marrying, will cause it to be a dowry and will extinguish the claim for recovery, which could have arisen if the cause had not followed.
nisi forte quis proponat ita dotem patrem pro emancipata filia dedisse, ut, si nuptiis non consentiret, uel contractis uel non contractis repeteret quae dederat: tunc enim habebit repetitionem.
Unless, perhaps, someone should propose that the father gave the dowry for his emancipated daughter on such terms that, if he did not consent to the marriage, whether it was contracted or not, he should recover what he had given; for in that case, he will have the right of recovery.

Notes

  1. §23.1.10.prIn potestate manente filia — This is an ablative absolute construction where the present participle manente agrees with the feminine noun filia, indicating the condition or time ("while the daughter remains under power").
  2. §23.1.10.prquae causa non secuta nasci poterit — The relative pronoun quae refers to condictionem. The phrase causa non secuta is an ablative absolute, referencing the legal concept of "where the cause did not follow" (non-realization of the purpose of the transfer). nasci poterit expresses a potentiality ("could have arisen").
  3. §23.1.10.prnisi forte quis proponat — The phrase nisi forte is followed by the present subjunctive (proponat) to introduce a hypothetical exception or "unless someone should propose," a standard formula used by Roman jurists to present a counter-case.
  4. §23.1.10.prita dotem patrem pro emancipata filia dedisse, ut ... repeteret — The correlative construction ita ... ut ... indicates the terms or purpose of the agreement ("gave the dowry on such terms that..."). The imperfect subjunctive repeteret is used in accordance with the sequence of tenses (consecutio temporum) following the perfect infinitive dedisse, which has a past orientation.

Cite this passage

Justinian I, The Digest of Justinian §23.1.10.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:23.1.10.pr

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