[ULPIANUS libro trigesimo quarto ad Sabinum. ] §23.3.12.prSi res aestimata post contractum matrimonium donationis causa adprobetur, nulla est aestimatio, quia nec res distrahi donationis causa potest, cum effectum inter uirum et uxorem non habeat: res igitur in dote remanebit.
[ULPIANUS in the thirty-fourth book on Sabinus.] If, after the marriage has been contracted, an appraised property is approved for the purpose of a gift, the appraisal is void, because neither can the property be alienated for the purpose of a gift, since it has no effect between husband and wife; therefore, the property will remain in the dowry.
sed si ante matrimonium, magis est, ut in matrimonii tempus collata donatio uideatur: atque ideo non ualet.
But if it was before the marriage, it is more likely that the gift should be seen as deferred to the time of the marriage, and for that reason it is not valid.
§23.3.12.1Si mulier se dicat circumuentam minoris rem aestimasse, ut puta seruum, si quidem in hoc circumuenta est, quod seruum dedit, non tantum in hoc, quod minoris aestimauit: in eo acturam, ut seruus sibi restituatur.
If a woman claims that she was defrauded into appraising a property at a lower value, for instance a slave—if indeed she was defrauded in this respect, that she gave the slave, and not merely in this, that she appraised him at a lower value—she will bring an action to the effect that the slave be restored to her.
enimuero si in aestimationis modo circumuenta est, erit arbitrium mariti, utrum iustam aestimationem an potius seruum praestet.
But if she was defrauded in the measure of the appraisal, it will be at the husband's discretion whether to provide the just appraisal or rather the slave.
et haec, si seruus uiuit.
And this applies if the slave is alive.
quod si decessit, Marcellus ait magis aestimationem praestandam, sed non iustam, sed eam quae facta est: quia boni consulere mulier debet, quod fuit aestimatus: ceterum, si simpliciter dedisset, procul dubio periculo eius moreretur, non mariti.
But if he has died, Marcellus says that the appraisal should rather be provided, but not the just one, but that which was made; because the woman ought to be content that he was appraised at all: for if she had given him simply, he would without doubt have died at her risk, not her husband's.
idemque et in minore circumuenta Marcellus probat.
Marcellus approves of the same rule in the case of a defrauded minor.
plane si emptorem habuit mulier iusti pretii, tunc dicendum iustam aestimationem praestandam idque dumtaxat uxori minori annis praestandum Marcellus scribit: Scaeuola autem in marito notat, si dolus eius adfuit, iustam aestimationem praestandam: et puto uerius, quod Scaeuola ait.
Of course, if the woman had a buyer at a just price, then it must be said that the just appraisal should be provided, and Marcellus writes that this is to be provided only to a wife who is a minor; Scaevola, however, notes in the case of the husband that if his fraud was present, the just appraisal must be provided: and I think that what Scaevola says is more correct.
§23.3.12.2Si cum marito debitore mulier pacta sit, ut id quod debeat in dotem habeat, dotis actione scilicet eam agere posse existimo: licet enim ipso iure priore debito liberatus non sit, sed tamen exceptionem habere potest.
If a woman has agreed with her debtor husband that she should hold what he owes as dowry, I think indeed that she can sue by the action on dowry; for although he is not released from the prior debt by operation of law, yet he can have a defense.