[TERENTIUS CLEMENS libro tertio ad legem Iuliam et Papiam. ] §23.3.61.prSiue generalis curator siue dotis dandae causa constitutus sit et amplius doti promissum est quam facultates mulieris ualent, ipso iure promissio non ualet, quia lege rata non habetur auctoritas dolo malo facta.
[TERENTIUS CLEMENS in the third book on the Lex Iulia et Papia.] Whether a general curator is appointed, or one for the purpose of giving a dowry, if more has been promised as dowry than the resources of the woman are worth, by law itself the promise is void, because an authorization made with malicious intent is not held valid by law.
quaerendum tamen est, utrum tota obligatio an quod amplius promissum est, quam promitti oportuit, infirmetur? et utilius est dicere id quod superfluum est tantummodo infirmare.
However, it must be asked whether the entire obligation is invalidated, or only that which was promised in excess of what ought to have been promised? And it is more practical to say that only that which is superfluous is invalidated.
§23.3.61.1Iste autem curator res dotis nomine tradere debet, non etiam ut uendat cuilibet et pretium eius in dotem det.
However, that curator ought to deliver things under the title of dowry, and not also to sell them to anyone and give the price thereof as dowry.
dubitari autem potest, an hoc uerum sit: quid enim si aliter honeste nubere non possit, quam ut pecuniam in dotem det idque ei magis expediat? atquin possunt res in dotem datae plerumque alienari et pecunia in dotem conuerti.
But it can be doubted whether this is true: for what if she cannot otherwise marry respectably except by giving money as dowry, and this is more advantageous to her? And yet, things given as dowry can generally be alienated and the money converted into dowry.
sed ut expediatur quaestio, si quidem res in dotem maritus accipere maluerit, nihil amplius quaerendum est: sin autem non aliter contrahere matrimonium uir patitur nisi pecuniis in dotem datis, tunc officium est curatoris apud eundem intrare iudicem, qui eum constituit, ut iterum ei causa cognita etiam uiro absente permittat rerum uenditione celebrata dotem constituere.
But to resolve the question, if indeed the husband prefers to receive the things as dowry, nothing further is to be asked: but if the husband does not allow the marriage to be contracted otherwise than by money being given as dowry, then it is the duty of the curator to approach the same judge who appointed him, so that, having investigated the case, the judge may again permit him, even in the absence of the husband, to establish the dowry after the sale of the things has been carried out.