[MARCELLUS libro septimo digestorum. ] §23.3.59.prSi mulier ita dotem promiserit: 'decem tibi aut Titio doti erunt', hoc casu dici potest uel Titio dari posse, sed de dote uirum teneri, quemadmodum si Titio iussisset dari.
[MARCELLUS in the seventh book of the Digests.] If a woman has promised a dowry in this way: 'ten shall be as a dowry to you or to Titius,' in this case it can be said that it can be paid even to Titius, but the husband is bound concerning the dowry, just as if she had ordered it to be paid to Titius.
nec mirum, cum etiam promissura uiro dotem possit delegante eo alteri promittere, etsi dici solet alii quam marito dotis nomine mulierem non posse obligari.
Nor is this surprising, since one who is about to promise a dowry to her husband can also, upon his delegation, promise it to another, even though it is commonly said that a woman cannot be obligated under the name of a dowry to anyone other than her husband.
his enim casibus uiro dos quaeritur.
For in these cases, the dowry is acquired for the husband.
non enim existimabimus illam ita promississe, cum uel de Titii nuptiis cogitaret.
For we will not suppose that she promised in this way while thinking even of a marriage with Titius.
§23.3.59.1Ex asse heres institutus rogatusque mulieri dodrantem hereditatis restituere iussu eius quod debet doti promisit marito.
A person, instituted as heir to the whole estate and requested to restore three-fourths of the inheritance to a woman, by her order promised what he owes as a dowry to her husband.
uereor, non sit obligatus: nam mulieri in hoc tenetur, ut hereditatem restituendo transferat actiones et quas habet et quibus est obstrictus, quas transferre ad alium, quam cui debet fideicommissum, non potest.
I fear that he is not obligated; for he is bound to the woman to this extent, that by restoring the inheritance he transfer the actions both which he has and by which he is bound, which actions he cannot transfer to another than the one to whom he owes the fideicommissum.
aliquis dixerit incerti cum eo agi posse, fideicommissi praestet aestimationem.
Someone might say that an action for an indeterminate amount can be brought against him, so that he may pay the estimated value of the fideicommissum.
huic ego consentire non possum: nam obligari mulieris debitorem ita aequum est, si accipere id ipsum quod ei debetur uir potest.
I cannot agree with this; for it is equitable that the woman's debtor be obligated in this way only if the husband can receive the very thing which is owed to her.
sed ne indotata mulier esse uideatur, dicendum est ipsi mulieri ex Trebelliano restituendam esse partem hereditatis quae ei relicta est, ut ea suo marito pro dote eam solueret, quia et ad eam fideicommissum et onera eius pertinent delegatione propter nimiam suptilitatem et casus necessitatem minime optinente.
But lest the woman should appear to be without a dowry, it must be said that the part of the inheritance left to her must be restored to the woman herself under the Trebellian senatusconsultum, so that she might pay it to her husband as a dowry, because both the fideicommissum and its burdens belong to her, since the delegation, owing to excessive technicality and the necessity of the case, by no means holds good.
§23.3.59.2Eius nomine quae libera uidebatur decem in dote dedisti: eo casu habebis condictionem, quo habere potuisses, si mulieris liberae nomine dedisses nec nuptiae secutae essent.
In the name of a woman who appeared to be free, you gave ten as a dowry; in that case you will have a condictio such as you could have had if you had given in the name of a free woman and the marriage had not followed.
si manumissa nupserit, ita demum dos erit, si ea mente dedisti, ut quandoque secutis nuptiis dos esset.
If, having been manumitted, she marries, it will only then be a dowry if you gave it with the intention that it should be a dowry whenever a marriage followed.
igitur si mulieri donaturus dedisti, dominus condicet, quemadmodum si eum qui sibi donaturus esset mulier ipsam donare iussisset.
Therefore, if you gave it intending to make a gift to the woman, her owner will bring the condictio, just as if the woman had ordered the person who was going to make a gift to her, to make the gift to her herself.