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Justinian I · The Digest of Justinian §23.3.16.pr

Eviction of Appraised Dowry and Return of Gains to Wife

Passage 3390 of 9271 · Latin

Summary

Discusses the principle of equity whereby, if appraised property given as a dowry is evicted, the husband must sue the wife on purchase and return any recovered damages to her through the dotal action upon dissolution of marriage, since the husband should not profit from the wife's loss.

[ULPIANUS libro trigesimo quarto ad Sabinum. ] §23.3.16.prQuotiens res aestimata in dotem datur, euicta ea uirum ex empto contra uxorem agere et quidquid eo nomine fuerit consecutus, dotis actione soluto matrimonio ei praestare oportet.
[ULPIANUS in the thirty-fourth book on Sabinus.] Whenever an appraised thing is given as a dowry, if it is evicted, the husband must sue the wife on the purchase, and whatever he has obtained under that name, he must restore to her in the dotal action upon the dissolution of the marriage.
quare et si duplum forte ad uirum peruenerit, id quoque ad mulierem redigetur.
Therefore, even if a double value should happen to come to the husband, that also shall be restored to the woman.
quae sententia habet aequitatem, quia non simplex uenditio sit, sed dotis causa, nec debeat maritus lucrari ex damno mulieris: sufficit enim maritum indemnem praestari, non etiam lucrum sentire.
This opinion is equitable, because it is not a simple sale, but for the sake of a dowry, and the husband ought not to profit from the loss of the woman; for it is enough that the husband is kept harmless, without also experiencing a profit.

Notes

  1. §23.3.16.preuicta ea — Ablative absolute construction meaning "if that thing is evicted." euicta is the perfect passive participle (ablative feminine singular) of evincere (to evict, i.e., to be recovered by a third party with a superior legal title), agreeing with the pronoun ea which refers back to res aestimata.
  2. §23.3.16.pruirum ex empto contra uxorem agere ... praestare oportet — An accusative with infinitive (A.C.I.) construction governed by the impersonal verb oportet ("it is necessary"). The accusative uirum ("the husband") serves as the subject accusative for both the infinitive agere ("to bring an action") and the subsequent praestare ("to pay/restore").
  3. §23.3.16.prdotis causa — The genitive dotis modifying causa (ablative used postpositionally, meaning "for the sake of"). It signifies that the transfer of the appraised property is not a mere sale (uenditio), but is based on the specific purpose (causa) of providing a dowry associated with marriage.

Cite this passage

Justinian I, The Digest of Justinian §23.3.16.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:23.3.16.pr

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