[PAULUS libro trigesimo quinto ad edictum. ] §23.4.12.prSi pater dotem dederit et pactus sit, ut mortua in matrimonio filia dos apud uirum remaneret, puto pactum seruandum, etiamsi liberi non interueniant.
[PAULUS from the thirty-fifth book on the Edict.] If a father has given a dowry and has agreed that, if his daughter should die during the marriage, the dowry should remain with the husband, I think that the agreement should be observed, even if children do not intervene.
§23.4.12.1Ex pactis conuentis, quae ante nuptias uel post nuptias interponi solent, alia ad uoluntatem pertinent, ut mulier dote promissa se alat et donec nupta sit dos ab ea non petatur, aut certam summam uiro praestet et ab eo alatur, et his similia: alia ad ius pertinent, ueluti quando dos petatur, quemadmodum reddatur, in quibus non semper uoluntas contrahentium seruatur.
Of the agreed pacts which are customary to be made before or after marriage, some relate to voluntary matters, such as that the woman, after promising a dowry, maintains herself and that the dowry is not claimed from her as long as she is married, or that she pays a certain sum to her husband and is maintained by him, and things similar to these; others relate to law, such as when the dowry should be claimed, or how it should be returned, in which the intention of the contracting parties is not always observed.
ceterum si conuenerit, ne omnino dos petatur, indotata erit mulier.
Moreover, if it is agreed that the dowry should not be claimed at all, the woman will be dowerless.
§23.4.12.2Si mulier pacta sit, ne amplius quam pars dimidia dotis a se petatur et poenam stipulata sit, Mela ait alterutro eam contentam esse oportere: uel exceptione pacti et acceptam facere poenae obligationem, uel, si ex stipulatu agat, denegandam ei exceptionem.
If a woman has agreed that no more than a half share of the dowry should be claimed from her, and has stipulated for a penalty, Mela says that she ought to be satisfied with either one: either to use the exception of the pact and release the obligation of the penalty, or, if she sues on the stipulation, the exception must be denied to her.
§23.4.12.3Si fundo aestimato in dotem dato pacta sit mulier, ut, quanto pluris uenierit, id in dote sit, Mela ait seruandum, cum et ex contrario conuenire possit, ut, si minoris uenierit, ipsa debeat.
If, upon a valued estate being given as dowry, the woman has agreed that by how much more it should be sold for, that amount should be included in the dowry, Mela says that this must be observed, since on the contrary it can also be agreed that if it should be sold for less, she herself must owe the difference.
§23.4.12.4Si pacta sit mulier, ut, siue pluris siue minoris fundus aestimatus uenierit, pretium quanto res uenierit in dote sit, stari eo pacto oportet: sed si culpa mariti minoris uenierit, et id ipsum mulierem consequi.
If the woman has agreed that, whether the valued estate is sold for more or for less, the price for which the property is sold should be included in the dowry, one must abide by that agreement; but if it is sold for less through the fault of the husband, the woman shall also obtain that very difference.