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Justinian I · The Digest of Justinian §23.2.61.pr

Confiscation of Dowry in Unlawful Marriage and the Husband's Liability

Passage 3367 of 9271 · Latin

Summary

Papinian discusses that when a dowry is confiscated due to an unlawful marriage, the husband must pay the treasury the amount he would have returned in a normal dowry action, after deducting necessary expenses.

[PAPINIANUS libro trigensimo secundo quaestionum. ] §23.2.61.prDote propter illicitum matrimonium caduca facta exceptis impensis necessariis, quae dotem ipso iure minuere solent, quod iudicio de dote redditurus esset maritus soluere debet.
[PAPINIANUS, in the Thirty-second Book of Questions.] When a dowry has been confiscated because of an unlawful marriage, with the exception of necessary expenses, which are accustomed to diminish the dowry by operation of law, the husband must pay what he would have had to return in an action concerning the dowry.

Notes

  1. §23.2.61.prcaduca facta — The adjective caducus is a legal term in Roman law (especially under Augustan marriage and inheritance legislation) referring to property confiscated to the treasury (fiscus) due to a lack of capacity to receive it (here, the unlawfulness of the marriage). It is used in the ablative absolute construction to describe the confiscation of the dowry.
  2. §23.2.61.prquod... redditurus esset — The relative pronoun quod includes its antecedent and functions as the direct object of the main verb soluere. The subjunctive active periphrastic form redditurus esset expresses a hypothetical or counterfactual obligation: what the husband would have been obliged to return if a normal action for the recovery of the dowry (iudicium de dote) had taken place.

Cite this passage

Justinian I, The Digest of Justinian §23.2.61.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:23.2.61.pr

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