Humanitext Reader

Justinian I · The Digest of Justinian §23.3.76.pr

Validity of Dowry Promised in Contemplation of Death

Passage 3450 of 9271 · Latin

Summary

This fragment discusses the validity of a dowry promised by a father in contemplation of his own death and the release of his obligation if he recovers, contrasting this with a dowry promised by the wife herself.

[IDEM libro nono disputationum. ]
[THE SAME in the ninth book of Disputations.] If the father of a woman has promised a dowry in contemplation of his own death, the promise is valid; for even if he had promised it for the time when he himself should die, he would be bound.
§23.3.76.prSi pater mulieris mortis suae causa dotem promiserit, ualet promissio: nam et si in tempus, quo ipse moreretur, promississet, obligaretur.
But if he has recovered, why should his obligation not be released through a condictio, just as if any other person had promised to a stipulator, or a dowry in the name of someone else?
sed si conualuerit, cur ei non remittatur obligatio per condictionem, atque si stipulanti quiuis alius promisisset aut dotem alicuius nomine? nam ut corporis uel pecuniae translatae, ita obligationis constitutae mortis causa condictio est.
For just as there is a condictio of a specific thing or money transferred in contemplation of death, so there is a condictio of an obligation established in contemplation of death.
non idem dicendum est in persona mulieris, si mulier mortis suae causa dotem promiserit, quia nisi matrimonii oneribus seruiat, dos nulla est.
The same is not to be said in the case of the woman herself, if she has promised a dowry in contemplation of her own death, because unless it serves the burdens of marriage, there is no dowry.

Notes

  1. §23.3.76.prin tempus, quo ipse moreretur — The combination of the preposition in with the accusative tempus ('for the time of') followed by a subjunctive relative clause indicates a future term or deadline (one's own death) rather than a condition, which nevertheless creates a valid obligation.
  2. §23.3.76.pratque si — atque si (equivalent to ac si, 'as if') introduces a hypothetical comparison and is followed by the pluperfect subjunctive promisisset. It illustrates by analogy with general mortis causa obligations why a father who has recovered should be released from his obligation via a condictio.
  3. §23.3.76.prnisi matrimonii oneribus seruiat, dos nulla est — The clause nisi ... seruiat (present subjunctive) expresses a condition. If a wife promises a dowry in contemplation of her own death, the marriage terminates upon her death; hence, the dowry cannot serve the purpose of supporting the marital burdens, making it void as a dowry.

Cite this passage

Justinian I, The Digest of Justinian §23.3.76.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:23.3.76.pr

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