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Justinian I · The Digest of Justinian §23.3.67.pr

Ownership and Usucapion of Money Delivered as Dowry by Slave

Passage 3441 of 9271 · Latin

Summary

Proculus explains the ownership of money delivered as a dowry by a female slave, stating it remains with the original owner unless acquired by usucapion, and details the legal outcomes of bona fide usucapion and pre-marriage disposal.

[PROCULUS libro septimo epistularum. ] §23.3.67.prProculus Nepoti suo salutem.
[PROCULUS in the seventh book of Letters.] Proculus to his Nepos, greeting.
Ancilla quae nupsit dotisque nomine pecuniam uiro tradidit, siue sciat se ancillam esse siue ignoret, non poterit eam pecuniam uiri facere eaque nihilo minus mansit eius cuius fuerat antequam eo nomine uiro traderetur, nisi forte usucapta est.
A female slave who married and delivered money to her husband under the name of dowry, whether she knows she is a female slave or is ignorant of it, cannot make that money the husband's, and that money has nonetheless remained his to whom it had belonged before it was delivered to the husband under that name, unless by chance it has been acquired by usucapion.
nec postea quam apud eundem uirum libera facta est, eius pecuniae causam mutare potuit.
Nor, after she was made free in the house of the same husband, could she change the cause of that money.
itaque nec facto quidem diuortio aut dotis iure aut per condictionem repetere recte potest, sed is cuius pecunia est recte uindicat eam.
Therefore, even if a divorce is made, she cannot rightly claim it back either by the right of dowry or by condiction, but he to whom the money belongs rightly vindicates it.
quod si uir eam pecuniam pro suo possidendo usucepit, scilicet quia existimauit mulierem liberam esse, propius est, ut existimem eum lucrifecisse, utique si, antequam matrimonium esse inciperet, usucepit.
But if the husband, obviously because he thought the woman was free, has acquired that money by usucapion by possessing it as his own, it is more fitting that I think he has gained it, especially if he acquired it by usucapion before the marriage began.
et in eadem opinione sum, si quid ex ea pecunia parauit, antequam ea dos fieret, ita, ut nec possideat eam nec dolo fecerit, quo minus eam possideret.
And I am of the same opinion, if he purchased anything with that money before it became a dowry, on the condition that he neither possesses it nor acted with malice so as to possess it the less.

Notes

  1. §23.3.67.preius cuius fuerat — eius is a possessive genitive acting as the predicate of mansit ('remained his'), placed immediately before the relative pronoun cuius with the antecedent pronoun omitted. fuerat ('had belonged') refers to the true owner before the delivery.
  2. §23.3.67.prpro suo possidendo — pro suo ('as his own') indicates the lawful title (titulus) necessary to support usucapion. possidendo is a gerund in the ablative case expressing means ('by possessing').
  3. §23.3.67.prpropius est, ut existimem — The impersonal expression propius est ('it is more fitting / closer to the truth') is followed by the subjunctive clause ut existimem as its substantial subject clause.
  4. §23.3.67.prquo minus eam possideret — A clause introduced by quo minus with the imperfect subjunctive, following dolo fecerit ('acted with malice'), indicating an obstructive outcome ('acted with malice so as to prevent his possessing it'), referring to an intentional loss of possession.

Cite this passage

Justinian I, The Digest of Justinian §23.3.67.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:23.3.67.pr

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