Humanitext Reader

Justinian I · The Digest of Justinian §23.3.53.pr

Husband's Risk on Dowry Promised by Insolvent Debtor

Passage 3427 of 9271 · Latin

Summary

Explains the scope of the husband's risk and the effect of subsequent changes in the debtor's solvency, in a case where a woman's insolvent debtor promised a dowry under the background of the prohibition of donations between husband and wife.

[NERATIUS libro tertio membranarum. ] §23.3.53.prCum uir uxori donare uellet, debitor mulieris qui soluendo non erat dotem ei promisit.
[NERATIUS in the third book of Parchments.] When a husband wished to make a donation to his wife, a debtor of the woman who was not solvent promised a dowry to him.
ad id dumtaxat, ad quod soluendo fuit, uiri periculo ea res est: et si quid debitori ad soluendum facultatis accesserit, periculum ad eam summam quae accesserit crescet permanebitque etiam, si rursus pauperior factus erit: quia neque tum, cum dos promitteretur, donatio facta est nisi eius pecuniae quae a debitore seruari non poterat, neque cum soluendo is esse coepit, donationis causa permaneat, cum eo loco res sit, quo esset, si tum quoque, cum promitteretur dos, locuples fuisset.
This matter is at the risk of the husband only to the extent of that for which the debtor was solvent; and if any capacity for payment is added to the debtor, the risk will increase to that sum which was added, and will remain even if he becomes poorer again; because neither at that time when the dowry was promised was a donation made except of that money which could not be recovered from the debtor, nor, when he began to be solvent, does the cause of donation remain, since the matter is in the same position as it would be if he had been wealthy also at that time when the dowry was promised.

Notes

  1. §23.3.53.prsoluendo non erat — A legal idiom meaning "to be insolvent", utilizing the dative of the gerundive soluendo with the verb esse.
  2. §23.3.53.prdonatio facta est nisi eius pecuniae — Since donations between husband and wife are generally prohibited, only the amount that could not actually be recovered due to the debtor's insolvency (eius pecuniae quae... seruari non poterat) is considered to have effectively constituted a "donation" to the wife (in the form of the husband bearing the loss).
  3. §23.3.53.prpermaneat — In the clause introduced by the causal conjunction quia, the present subjunctive is used (in contrast to the indicative facta est in the preceding clause) to express the hypothetical status or the legal continuity of the evaluation when the debtor becomes solvent.

Cite this passage

Justinian I, The Digest of Justinian §23.3.53.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:23.3.53.pr

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.