[ULPIANUS libro trigesimo primo ad Sabinum. ] §23.3.5.prProfecticia dos est, quae a patre uel parente profecta est de bonis uel facto eius.
[ULPIANUS in the thirty-first book on Sabinus.] A profectitious dowry is one which has proceeded from a father or an ascendant out of his property or by his act.
§23.3.5.1Siue igitur parens dedit dotem siue procurator eius siue iussit alium dare siue, cum quis dedisset negotium eius gerens, parens ratum habuerit, profecticia dos est.
Therefore, whether the ascendant gave the dowry, or his procurator, or he ordered another to give it, or, when someone had given it acting on his behalf, the ascendant ratified it, it is a profectitious dowry.
§23.3.5.2Quod si quis patri donaturus dedit, Marcellus libro sexto digestorum scripsit hanc quoque a patre profectam esse: et est uerum.
But if someone gave it with the intention of making a donation to the father, Marcellus wrote in the sixth book of his Digests that this also has proceeded from the father; and this is correct.
§23.3.5.3Sed et si curator furiosi uel prodigi uel cuiusuis alterius dotem dederit, similiter dicemus dotem profecticiam esse.
Furthermore, if the curator of an insane person, of a prodigal, or of anyone else should give a dowry, we shall likewise say that the dowry is profectitious.
§23.3.5.4Sed et si proponas praetorem uel praesidem decreuisse, quantum ex bonis patris uel ab hostibus capti aut a latronibus oppressi filiae in dotem detur, haec quoque profecticia uidetur.
Furthermore, if you suppose that the praetor or the governor has decreed how much should be given as a dowry to a daughter out of the property of a father who has been captured by enemies or set upon by robbers, this also is deemed to be profectitious.
§23.3.5.5Si pater repudiauerit hereditatem dotis constituendae causa (forte quod maritus erat substitutus aut qui potuit ab intestato hereditatem uindicare), dotem profecticiam non esse Iulianus ait.
If a father has repudiated an inheritance for the purpose of constituting a dowry (perhaps because the husband had been substituted as heir, or was someone who could claim the inheritance on intestacy), Julian says that the dowry is not profectitious.
sed et si legatum in hoc repudiauerit pater, ut apud generum heredem remaneat dotis constituendae causa, Iulianus probat non esse profectum id de bonis, quia nihil erogauit de suo pater, sed non adquisiuit.
But even if the father has repudiated a legacy for this purpose, namely, that it should remain with his son-in-law as heir for the purpose of constituting a dowry, Julian approves the view that this has not proceeded from his property, because the father did not pay out anything of his own, but rather failed to acquire it.
§23.3.5.6Si pater non quasi pater, sed alio dotem promittente fideiussit et quasi fideiussor soluerit, Neratius ait non esse profecticiam dotem, quamuis pater seruare a reo id quod soluit non possit.
If a father, not as a father but when another promised a dowry, acted as a surety and paid as a surety, Neratius says that the dowry is not profectitious, even though the father cannot recover what he paid from the principal debtor.
§23.3.5.7Sed si pater dotem promisit et fideiussorem uel reum pro se dedit, ego puto profecticiam esse dotem: sufficit enim, quod pater sit obligatus siue reo siue fideiussori.
But if the father promised a dowry and provided a surety or a co-debtor for himself, I think that the dowry is profectitious; for it is sufficient that the father is obligated either to the co-debtor or to the surety.
§23.3.5.8Si filius familias mutuatus creditorem delegauit, ut daret pro filia dotem, uel etiam ipse accepit et dedit, uideri dotem ab auo profectam Neratius ait hactenus, quatenus auus esset dotaturus neptem suam: id enim in rem aui uideri uersum.
If a filiusfamilias borrowed money and delegated his creditor to give a dowry on behalf of his daughter, or even received the money himself and gave it, Neratius says that the dowry is deemed to have proceeded from the grandfather only to the extent that the grandfather would have portioned his granddaughter; for to that extent it is deemed to have been turned to the benefit of the grandfather.
§23.3.5.9Si quis certam quantitatem patri donauerit ita, ut hanc pro filia daret, non esse dotem profecticiam Iulianus libro septimo decimo digestorum scripsit: obstrictus est enim ut det aut, si non dederit, condictione tenetur.
If someone has donated a certain sum to a father on the condition that he should give this on behalf of his daughter, Julian wrote in the seventeenth book of his Digests that the dowry is not profectitious; for the father is bound to give it, or, if he does not give it, he is liable to a condictio.
hoc et in matre iuris esse ait, si forte sub ea condicione uxor marito det, ut pro filia genero in dotem daret, nec uideri uxorem marito donasse rectissime ergo ait, ut non sit interdicta donatio iure ciuili: non enim ad hoc dedit, ut ipse habeat, sed ut genero pro filia expendat: denique si non dederit, condictione tenetur.
He says that this same rule of law applies in the case of a mother, if perhaps a wife gives to her husband under the condition that he should give it to his son-in-law as a dowry on behalf of their daughter, and he very correctly says that the wife is not deemed to have made a donation to her husband; therefore, the donation is not forbidden by the civil law. For she did not give it so that he himself might have it, but so that he might pay it out to the son-in-law on behalf of their daughter; finally, if he does not give it, he is liable to a condictio.
esse igitur dotem istam aduenticiam Iulianus ait: et ita utimur.
Julian therefore says that that dowry is adventitious; and this is our practice.
§23.3.5.10Si filius familias dotem promiserit et sui iuris factus dederit, profecticiam esse dotem: non enim pro hereditate patris aes alienum soluit, sed suum aes alienum susceptum, dum filius familias esset, pater familias factus exonerauit.
If a filiusfamilias has promised a dowry and, having become sui iuris, has given it, the dowry is profectitious; for he did not pay a debt on behalf of his father's inheritance, but rather, having become a paterfamilias, discharged his own debt contracted while he was a filiusfamilias.
§23.3.5.11Si pater pro filia emancipata dotem dederit, profecticiam nihilo minus dotem esse nemini dubium est, quia non ius potestatis, sed parentis nomen dotem profecticiam facit: sed ita demum, si ut parens dederit: ceterum si, cum deberet filiae, uoluntate eius dedit, aduenticia dos est.
If a father has given a dowry on behalf of an emancipated daughter, there is no doubt in anyone's mind that the dowry is nonetheless profectitious, because it is not the right of paternal power, but the name of a parent that makes a dowry profectitious; but this is so only if he gave it as a parent; otherwise, if he gave it by her wish when he owed it to his daughter, it is an adventitious dowry.
Papinianus libro decimo quaestionum §23.3.5.12ait, cum pater curator suae filiae iuris sui effectae dotem pro ea constituisset, magis eum quasi patrem id quam quasi curatorem fecisse uideri.
PAPINIANUS in the tenth book of Questions says that when a father, who had been appointed curator to his daughter who had become sui iuris, had constituted a dowry on her behalf, he is deemed to have done this as a father rather than as her curator.
§23.3.5.13Iulianus libro nono decimo digestorum adoptiuum quoque patrem, si ipse dotem dedit, habere eius repetitionem ait.
Julian in the nineteenth book of his Digests says that an adoptive father also, if he himself has given the dowry, has the right to recover it.
§23.3.5.14Si quis pro aliena filia dotem promiserit et promissori pater heres exstiterit, Iulianus distinguit interesse, ante nuptias pater heres exstiterit et dotem dederit an postea: si ante, uideri dotem ab eo profectam (potuit enim nuntium remittendo resoluere dotem), quod si post nuptias, non esse profecticiam.
If someone promised a dowry for another's daughter and her father became the heir to the promisor, Julian distinguishes, saying that it makes a difference whether the father became the heir and gave the dowry before the marriage or afterwards: if before, the dowry is deemed to have proceeded from him (for he could have dissolved the dowry obligation by sending a notice of divorce); but if after the marriage, it is not profectitious.