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Justinian I · The Digest of Justinian §23.3.62.pr

Restitution of Dowry Land and Value Compensation

Passage 3436 of 9271 · Latin

Summary

Discusses a case where a woman under twenty-five gave a tract of land acquired by exchange as dowry and subsequently had to return it due to a restitution of her former position (in integrum restitutio), presenting Modestinus's response that the husband should not lose the dowry but the woman or her heirs must compensate its true value at the time of giving.

[MODESTINUS libro quinto responsorum. ] §23.3.62.prTitia cum esset minor uiginti quinque annis, quartam hereditatis matris suae communem sibi cum fratribus mutauit et accepit pro ea parte fundum quasi emptione inter se facta: hunc fundum cum aliis rebus doti dedit.
[MODESTINUS in the fifth book of Opinions.] When Titia was under twenty-five years of age, she exchanged the fourth part of her mother's inheritance, which she held in common with her brothers, and received in place of that share a tract of land, as if a sale had been made between them; this land she gave as a dowry along with other things.
quaero, si in integrum restituatur et partem suam accipiat quartam et reddat fundum, quid debeat maritus facere? an contentus esse debeat aliis rebus in dotem datis? item quaero, si haec decesserit et heredes eius in integrum restitutionem ex persona eius petierint et ipsi petant quartam partem et illi fundum, an maritus cogatur restituere fundum contentus in retentione lucri dotis ceteris rebus? Modestinus respondit nihil proponi, cur marito dos auferenda sit: sed in ueram aestimationem praedii mulier uel eius heredes condemnandi sunt in hoc tempus referendam, quo in dotem datus est.
I ask, if she is restored to her former position (in integrum) and receives her fourth part and returns the land, what ought the husband to do? Or should he be content with the other things given as dowry? I also ask, if she dies and her heirs seek restitution to her former position in her person, and they themselves seek the fourth part and those others seek the land, is the husband compelled to restore the land, being content with the other things for the retention of the dowry's profit? Modestinus replied that nothing is presented to show why the dowry should be taken away from the husband; but the woman or her heirs must be condemned to pay the true valuation of the land, which is to be referred to the time when it was given as a dowry.

Notes

  1. §23.3.62.prminor uiginti quinque annis — The ablative of comparison `uiginti quinque annis` accompanies the comparative `minor`, meaning 'under twenty-five years of age'. In Roman law, this refers to the requirement for the praetorian remedy of restitution to the former position (in integrum restitutio) granted to minors under twenty-five who entered into disadvantageous transactions.
  2. §23.3.62.prquasi emptione inter se facta — `emptione... facta` is an ablative absolute. Accompanied by the conjunction `quasi` ('as if'), it explains that the exchange of shares following the division of inheritance among the brothers was carried out, in form or substance, in the same manner as contracting a sale.
  3. §23.3.62.prcontentus in retentione lucri dotis ceteris rebus — The prepositional phrase `in retentione lucri dotis` ('in the retention of the dowry's profit') is inserted within the construction where the adjective `contentus` governs the ablative `ceteris rebus` ('content with the other things'). It forms the core question of whether the husband should be content with other assets instead of the land for keeping the profit of the dowry.
  4. §23.3.62.prreferendam — A gerundive (future passive participle) modifying the preceding noun `aestimationem`. Combined with `in hoc tempus... quo` ('to the time when...'), it indicates the reference point for calculating the compensation, meaning 'to be referred back to the moment the land was given as a dowry'.

Cite this passage

Justinian I, The Digest of Justinian §23.3.62.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:23.3.62.pr

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