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Justinian I · The Digest of Justinian §23.4.2.pr

Validity of Dowry Retention Agreements upon Husband's Death

Passage 3461 of 9271 · Latin

Summary

Papinian replies to the praetor Junianus that an agreement for the dowry to remain with the husband upon dissolution of marriage if children are present does not apply to dissolution by the husband's death, and even if so intended, such an agreement contrary to the nature of the dowry is invalid.

[ULPIANUS libro nono decimo ad Sabinum. ] §23.4.2.prSi conuenerit, ut, quoquo modo dissolutum sit matrimonium, liberis interuenientibus dos apud uirum remaneret, Papinianus Iuniano praetori respondit morte mariti finito matrimonio neque conuenisse uideri dotem remanere, et, si conuenisset, non esse seruandum pactum contra dotem, cum mariti mortalitas interuenit.
[ULPIAN from the nineteenth book on Sabinus.] If it had been agreed that, in whatever way the marriage might be dissolved, the dowry should remain with the husband if children were present, Papinian replied to the praetor Junianus that when the marriage was ended by the death of the husband, it did not seem to have been agreed that the dowry should remain, and even if it had been so agreed, the agreement contrary to the dowry ought not to be observed when the death of the husband intervened.

Notes

  1. §23.4.2.prliberis interuenientibus — An ablative absolute construction with the present participle, meaning "with children intervening/being present," representing the condition "if there are children."
  2. §23.4.2.prneque conuenisse uideri — Part of the accusative with infinitive (A.C.I.) construction introduced by the main verb `respondit`. The subject of `uideri` ("to seem/appear") is impersonal or the following infinitive clause `dotem remanere conuenisse` ("that it was agreed that the dowry remain"), meaning "it does not seem to have been agreed that..."
  3. §23.4.2.prpactum contra dotem — An "agreement contrary to the dowry" refers to an agreement disadvantageous to the wife that violates the inherent purpose of the dowry institution (such as the return of the dowry for the support of the wife or her family after dissolution), such as letting the dowry remain with the husband's heirs upon his death.

Cite this passage

Justinian I, The Digest of Justinian §23.4.2.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:23.4.2.pr

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