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Justinian I · The Digest of Justinian §23.3.50.pr-23.3.50.1

Substitution of Dowry and Recovery of Original Property

Passage 3424 of 9271 · Latin

Summary

In the case of a wife who died after delivering money to replace her dotal land upon remarriage after divorce, it is argued that the land can be recovered, illustrating this principle with an analogy to the action on pledge.

[AFRICANUS libro octauo quaestionum. ] §23.3.50.prQuae fundum in dote habebat, diuortio facto cum in matrimonium rediret, pacta est cum uiro, uti decem in dotem acciperet et fundum sibi restitueret, ac datis decem, priusquam fundus ei restitueretur, in matrimonio decessit.
[AFRICANUS in the eighth book of Questions.] A woman who had a tract of land as dowry, when returning to marriage after a divorce, agreed with her husband that he should receive ten as dowry and restore the tract of land to her; and after the ten was given, but before the tract of land was restored to her, she died during the marriage.
illud ex bona fide est et negotio contracto conuenit, ut fundus, quasi sine causa penes maritum esse coeperit, condicatur.
It is consistent with good faith and agreeable to the contract entered into that the tract of land should be recovered by condiction, on the ground that it began to be in the possession of the husband as if without cause.
§23.3.50.1Et hoc euidentius circa actionem pigneraticiam apparebit.
And this will appear more clearly in the case of the action on pledge.
etenim si, cum fundum Cornelianum pignoris causa tibi tradidissem, postea ex conuentione fundum Titianum in hoc tibi tradiderim, ut Cornelianum mihi restitueres: minime puto dubitandum erit, quin statim recte pigneraticia ad recipiendum Cornelianum agere possim.
For if, when I had delivered the Cornelian tract to you by way of pledge, I should afterwards, in accordance with an agreement, deliver the Titian tract to you to the end that you should restore the Cornelian tract to me, I think it is least to be doubted that I can immediately and rightfully bring the action on pledge to recover the Cornelian tract.

Notes

  1. §23.3.50.prsibi — The reflexive pronoun sibi functions as an indirect reflexive, referring not to the subject of the subordinate uti-clause (the husband), but to the subject of the main clause (the woman, implied antecedent of Quae). It indicates that the husband should restore the land to her.
  2. §23.3.50.prut fundus, quasi sine causa penes maritum esse coeperit, condicatur — The ut-clause is an appositive noun clause that explains the content of the demonstrative pronoun illud in the main clause. The verb condicatur is in the present subjunctive passive, meaning "the land is to be recovered by condiction." The verb coeperit within the parenthetical quasi-clause is in the perfect subjunctive.
  3. §23.3.50.1quin statim recte pigneraticia ad recipiendum Cornelianum agere possim — This is a quin-clause (with the subjunctive possim) following a negated expression of doubt (minime ... dubitandum erit, "it should by no means be doubted"). It functions as a noun clause expressing certainty: "that I can immediately bring the action on pledge."

Cite this passage

Justinian I, The Digest of Justinian §23.3.50.pr-23.3.50.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:23.3.50.pr-23.3.50.1

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