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Justinian I · The Digest of Justinian §23.3.40.pr

Tacit Renewal of Dowry upon Remarriage after Divorce

Passage 3414 of 9271 · Latin

Summary

The jurist cites a rescript of the deified Emperor Severus, stating that if a woman remarries after a divorce without reclaiming her dotal documents, the judge should act in accordance with her presumed intent and treat the dowry as if it had been tacitly renewed.

[IDEM libro trigesimo quarto ad edictum. ] §23.3.40.prDiuus Seuerus rescripsit Pontio Lucriano in haec uerba: 'Si mulier, quae dotem dederat, post diuortium rursus in matrimonium redit non reuocatis instrumentis, non dubitabit is, apud quem res agetur, secundum uoluntatem mulieris, quae utique non indotata redire in matrimonium uoluit, partibus suis fungi quasi renouata dote'.
[THE SAME in the thirty-fourth book on the edict.] The deified Severus replied by rescript to Pontius Lucrianus in these words: 'If a woman who had given a dowry, after a divorce, returns again into marriage without the dotal instruments being recalled, he before whom the case is tried will not hesitate, in accordance with the intention of the woman—who certainly did not wish to return into marriage undowered—to perform his duties just as if the dowry had been renewed.'

Notes

  1. §23.3.40.prnon dubitabit is, apud quem res agetur, ... partibus suis fungi — The complementary infinitive `fungi` is placed far apart from the main verb `dubitabit` (3rd person singular future, whose subject is `is` accompanied by the relative clause `apud quem res agetur`). The construction `non dubitare` with an infinitive means 'to not hesitate to do something' or 'to willingly do something'. The deponent verb `fungi` governs the ablative case, taking `partibus suis` (one's own role/duties) as its object.
  2. §23.3.40.prquasi renouata dote — The conjunction `quasi` ('as if') is followed by an ablative absolute consisting of the noun `dote` and the perfect participle `renouata`. This indicates that even if an explicit renewal of the dowry did not take place during the actual remarriage, the judge should treat the situation as a legal fiction 'as if the dowry had been renewed'.

Cite this passage

Justinian I, The Digest of Justinian §23.3.40.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:23.3.40.pr

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