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Justinian I · The Digest of Justinian §23.4.20.pr-23.4.20.2

Agreements Post-Divorce and Third-Party Dowry Conditions

Passage 3479 of 9271 · Latin

Summary

Paulus discusses the validity of agreements after divorce regarding gifts, removed items, or expenses, the rules for a third party providing a dowry, and the effects of postponing dowry demands alongside the husband's liability for negligence.

[Paulus libro trigesimo quinto ad edictum. ] §23.4.20.prOb res quoque donatas uel amotas uel impensas factas tunc facta pactio ualebit, id est post diuortium.
[PAULUS, from the thirty-fifth book on the Edict.] An agreement made at that time—that is, after a divorce—regarding things given as gifts, or removed, or expenses incurred, will also be valid.
§23.4.20.1Si extraneus de suo daturus sit dotem, quidquid uult pacisci et ignorante muliere, sicut et stipulari potest: legem enim suae rei dicit: postquam uero dederit, pacisci consentiente muliere debet.
If an outsider is to give a dowry from his own property, he can agree on whatever he wishes even without the knowledge of the woman, just as he can also make a stipulation; for he dictates the law of his own property. But after he has given it, he must make any agreement with the consent of the woman.
§23.4.20.2Si conuenerit, ne a muliere neue a patre dos petatur, heres non habebit exceptionem.
If it is agreed that the dowry shall not be demanded from the woman or from her father, the heir will not have an exception.
sed si conuenerit, ne manente matrimonio uiuo patre petatur, mortuo patre statim exigitur, et, si non petierit maritus, tenebitur huius culpae nomine, si dos exigi potuerit: nisi forte ante diremptum sit matrimonium, quam facultatem petendi haberet.
But if it is agreed that it shall not be demanded while the marriage lasts and the father is alive, it is demanded immediately upon the death of the father; and if the husband does not demand it, he will be liable on account of this negligence, if the dowry could have been demanded—unless indeed the marriage was dissolved before he had the opportunity to demand it.

Notes

  1. §23.4.20.prres quoque donatas uel amotas uel impensas factas — Three past participles (or clauses with past participles) modify the accusative noun 'res' in parallel. 'res amotae' is a legal concept referring to property unlawfully removed by the wife in contemplation of divorce, and 'impensas factas' refers to expenses incurred by the husband regarding the dowry property.
  2. §23.4.20.1legem enim suae rei dicit — A legal idiom meaning 'to dictate/impose a condition (legem) on one's own property (suae rei, dative).' It implies that when a third party provides a dowry from their own assets, they are entitled to attach any conditions they wish before the transfer of ownership is completed.
  3. §23.4.20.2heres non habebit exceptionem — The unexpressed subject 'heir (heres)' here refers to the heir of the party liable for the dowry (the woman or her father). The point is that the benefit of the personal pact (pactum in personam) does not extend to their heirs, meaning the heir cannot raise the exception of agreement (exceptio pacti).
  4. §23.4.20.2ante diremptum sit matrimonium, quam — The conjunction 'antequam' (before) is split into 'ante' placed before the verb of the clause 'diremptum sit' and 'quam' following it (tmesis/separation).

Cite this passage

Justinian I, The Digest of Justinian §23.4.20.pr-23.4.20.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:23.4.20.pr-23.4.20.2

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