[IDEM libro undecimo disputationum. ] §23.3.78.prCum in fundo mariti habens mulier usum fructum dotis causa eum marito dedit, quamuis ab ea usus fructus decesserit, maritus tamen non usum fructum habet, sed suo fundo quasi dominus utitur, consecutus per dotem plenam fundi proprietatem, non separatam usu fructu, nec est, quod non utendo maritus amittat.
[THE SAME in the eleventh book of Disputations.] a woman who had a usufruct in her husband’s land gave it to her husband as a dowry, although the usufruct ceased to belong to her, the husband does not, however, have the usufruct, but uses his own land as if he were the owner, having acquired through the dowry the full ownership of the land, not separated from the usufruct, nor is there any risk that the husband might lose it by non-use.
diuortio autem facto constituet in eodem fundo usum fructum mulieri.
But if a divorce takes place, he shall establish the usufruct in the same land for the woman.
quod si in matrimonio decesserit uxor, nihil emolumenti ob dotem habere uidetur maritus, quia et si uxorem eam non duxisset, fructuariae morte finitus usus fructus ad proprietatem rediret: ideoque nec in funus confert mulieris. §23.3.78.1Plane si pater filiae nomine, qui in fundo generi usum fructum habebit, dotis constituendae gratia eum dederit, et in matrimonio mortua fuerit, habebit ex sua persona usus fructus petitionem. §23.3.78.2Quod si mulier in fundo suo marito usum fructum dotis causa constituerit, tunc ex mariti persona erit usus fructus proprie, qui et non utendo ipsius pereat: quod si acciderit, uideamus, an etiamnunc dotata sit mulier.
On the other hand, if the wife dies during the marriage, the husband is considered to have no financial benefit on account of the dowry, because even if he had not married her, the usufruct, being terminated by the death of the usufructuary, would have returned to the ownership; and therefore he does not even contribute to the woman’s funeral., if a father in the name of his daughter, who had a usufruct in his son-in-law's land, gave it for the sake of establishing a dowry, and she died during the marriage, he will have in his own person the right to claim the usufruct. if a woman has established a usufruct in her own land for her husband as a dowry, then the usufruct will properly exist in the person of the husband, which also perishes by his own non-use; if this should happen, let us see whether the woman is still dotalized.
et si quidem dominium apud mulierem est fundi, ad quem reuersus est usus fructus, nihil iam in dote habet, quod actione dotis consequatur ab eo, cui quod non utendo amisit usum fructum imputari non potest, ex quo ipsa lucrum habet: ideoque indotata erit.
And indeed, if the ownership of the land, to which the usufruct has returned, remains with the woman, she now has nothing in the dowry that she can recover from him by the action on dowry, since the fact that he lost the usufruct by non-use cannot be imputed to him, from which she herself derives a profit; and therefore she will be undowed.
quod si alienauerit uxor proprietatem, quae sine ullo mulieris emolumento plenior facta est: adhuc dotata est, quia dotis actione teneri debet maritus, qui quando licuit usu fructu uti amisit eum non utendo.
But if the wife has alienated the ownership, which was made fuller without any advantage to the woman, she is still dotalized, because the husband must be held liable under the action on dowry, who, when it was permitted to use the usufruct, lost it by non-use.
nam si habere perseuerasset usum fructum ad diuortium, commodo mulieris cederet eius restitutio, quia etsi non protinus ad ipsam transiret, tamen uel si pretio uel beneficio sine incommodo mulieris ad proprietatem reuertetur.
For if he had continued to hold the usufruct until the divorce, its restoration would have turned to the benefit of the woman, because even if it did not immediately pass to her, nevertheless, either for a price or as a favor, it would return to the ownership without disadvantage to the woman.
si autem usum fructum maritus non amiserit, morte mulieris non finitur usus fructus apud maritum.
If, however, the husband has not lost the usufruct, the usufruct in the husband's hands is not terminated by the death of the woman.
diuortio autem facto primo uideamus et in hac et in superiore specie, an pro rata temporis eius anni diuidantur fructus: quod probandum est.
But if a divorce takes place, let us first see both in this and in the preceding case whether the fruits of that year are divided in proportion to the time; which is to be approved.
ipsius autem restitutio ita fiet, ut habenti mulieri fundum usus fructus cedatur et ita cum proprietate consolidetur.
And the restoration of the usufruct itself will be made in such a way that the usufruct is ceded to the woman who holds the land, and thus consolidated with the ownership.
sed et si non sit fundi domina, nihilo minus competit dotis actio, ut dimittat a se maritus usum fructum: nam uel ex empto actione adhuc, ut usum fructum praestet, mulier tenetur, aut pretium eius consequi sperat, aut cuiuis magis gratiam praestare quam relinquere apud inimicum ius ad se translatum licere ei ciuile est. §23.3.78.3Uxor uiro usum fructum dotis nomine dedit, manente matrimonio eidem fundum uendidit: quaesitum est, diuortio facto quid dotis iudicio reciperare debeat.
But even if she is not the mistress of the land, the action on dowry is nevertheless competent, so that the husband may release the usufruct from himself; for either the woman is still bound by the action on purchase to provide the usufruct, or she hopes to obtain its price, or it is civilly lawful for her to bestow a favor on anyone rather than leave in the hands of an adversary a right transferred to herself. wife gave a usufruct to her husband by way of dowry; while the marriage was continuing, she sold him the same land. It was asked what she ought to recover by the action on dowry if a divorce occurred.
dixi referre, quanti fundus uenisset: nam si nudae proprietatis aestimatio facta fuisset, mulier dotis iudicio pretium usus fructus reciperare debet.
I said that it mattered for how much the land had been sold; for if the valuation had been made of the bare ownership, the woman ought to recover the price of the usufruct by the action on dowry.
quid ergo est, si uir ante litem contestatam mortuus fuisset? heredes eius nihil praestituros: nam etsi quilibet alius emptor proprietatis exstitisset, heres uiri nihil mulieri praestaret scilicet usu fructu reuerso ad proprietatem.
What then if the husband had died before joinder of issue? His heirs would provide nothing, for even if any other purchaser of the ownership had existed, the heir of the husband would provide nothing to the woman, because the usufruct would return to the ownership.
ceterum si fundus totus uenisset, quanti debet uenire non detracto usu fructu, intellegi mulierem dotem manente matrimonio recepisse. §23.3.78.4Si fundus communis in dotem datus erit et socius egerit cum marito communi diuidundo adiudicatusque fundus socio fuerit, in dote erit quantitas, qua socius marito damnatus fuerit aut, si omissa licitatione extraneo addictus is fundus fuerit, pretii portio, quae distracta est, sed ita, ut non uice corporis habeatur nec diuortio secuto praesenti die quod in numero est restituatur, sed statuto tempore solui debeat.
On the other hand, if the whole land had been sold for as much as it ought to be sold without deducting the usufruct, it is understood that the woman received the dowry while the marriage was continuing. a common land is given as a dowry and a co-owner sues the husband for division of common property, and the land is adjudged to the co-owner, the amount for which the co-owner is condemned to pay the husband will be in the dowry, or, if the bidding is omitted and the land is knocked down to a stranger, the portion of the price which is sold; but in such a way that it is not held in place of the corpus, nor, if a divorce follows, is what is in cash restored immediately, but it must be paid at the appointed time.
quod si marito fundus fuerit adiudicatus, pars utique data in dotem dotalis manebit: diuortio autem facto sequetur restitutionem, propter quam ad maritum peruenit, etiam altera portio, scilicet ut recipiat tantum pretii nomine a muliere, quantum dedit ex condemnatione socio: nec audiri debebit alteruter eam aequitatem recusans, aut mulier in suscipienda parte altera quoque aut uir in restituenda.
But if the land is adjudged to the husband, the part given as a dowry will certainly remain dotal; and when a divorce occurs, the other portion will also follow the restoration because of which it came to the husband, namely, that he receive as much from the woman under the name of price as he paid to the co-owner under the condemnation. Nor should either party be heard who refuses this equity, whether the woman in undertaking the other part as well, or the husband in restoring it.
sed an constante matrimonio non sola pars dotalis sit, quae data fuit in dotem, sed etiam altera portio, uideamus.
But let us see whether, while the marriage lasts, not only the dotal part which was given as a dowry is dotal, but also the other portion.
Iulianus de parte tantum dotali loquitur, et ego dixi in auditorio illam solam dotalem esse. §23.3.78.5Si marito dotis nomine stipulanti promisit per errorem is qui exceptione tutus erat ne soluat, cogetur ei soluere et habebit condictionem aduersus mulierem aut patrem, uter eorum delegauit, ob id quod indebitum marito promisit aut soluit.
Julian speaks only of the dotal part, and I said in the lecture-hall that that part alone is dotal., when a husband stipulated by way of dowry, someone who was protected by an exception against payment promised by mistake to pay, he shall be compelled to pay him, and he will have a condictio against the woman or the father, whichever of them delegated him, on account of what he promised or paid to the husband when it was not due.