[PAPINIANUS libro quarto responsorum. ] §23.4.26.prInter socerum et generum conuenit, ut, si filia mortua superstitem anniculum filium habuisset, dos ad uirum pertineret: quod si uiuente matre filius obisset, uir dotis portionem uxore in matrimonio defuncta retineret.
[PAPINIANUS, from the fourth book of Responses.] An agreement was made between a father-in-law and his son-in-law that, if the daughter died leaving a surviving one-year-old son, the dowry should belong to the husband; but if the son died while the mother was still living, the husband should retain a portion of the dowry upon the wife's death during the marriage.
mulier naufragio cum anniculo filio periit.
The woman perished in a shipwreck along with her one-year-old son.
quia uerisimile uidebatur ante matrem infantem perisse, uirum partem dotis retinere placuit.
Because it seemed likely that the infant had perished before the mother, it was decided that the husband should retain a portion of the dowry.
§23.4.26.1Uir dotem, quam ex pacto filiae nomine retinere potuit, si lapsus errore non retinuit, filiam, quae patris sola, matri pro parte heres exstiterit, apud arbitrum diuisionis non improbe dotis perperam a patre solutae praeceptionem desiderare constitit.
It was held that if a husband, who by virtue of an agreement could have retained the dowry in the name of his daughter, did not retain it because he fell into an error, the daughter—who became the sole heir to her father and an heir for a share to her mother—could, before the arbiter of division, not improperly desire the pre-taking of the dowry wrongly paid by her father.
§23.4.26.2Cum inter patrem et generum conuenit, ut in matrimonio sine liberis defuncta filia dos patri restituatur, id actum inter contrahentes intellegi debet, ut liberis superstitibus filia defuncta dos retineatur, nec separabitur portio dotis additamenti causa data, si postea nihil aliud conueniat.
When an agreement is made between a father and his son-in-law that, if the daughter dies during the marriage without children, the dowry shall be restored to the father, it must be understood as the intention of the contracting parties that, if children survive when the daughter dies, the dowry shall be retained; nor shall a portion of the dowry given by way of addition be separated, unless something else is agreed upon later.
§23.4.26.3Conuenit, ut mulier uiri sumptibus quoquo iret ueheretur, atque ideo mulier pactum ad litteras uiri secuta prouinciam, in qua centurio merebat, petit.
It was agreed that the woman should be transported at her husband's expense wherever she went, and therefore, following the agreement according to her husband's letter, she sought the province in which he was serving as a centurion.
non seruata fide conuentionis licet directa actio nulla competit, utilis tamen in factum danda est.
Although no direct action lies if the good faith of the agreement is not kept, an equitable action based on the facts must nevertheless be granted.
§23.4.26.4Filia cum pro se dotem promitteret, pepigit, ut, si in matrimonio sine liberis decessisset, matri suae dos soluatur.
When a daughter promised a dowry on her own behalf, she agreed that, if she died during the marriage without children, the dowry should be paid to her mother.
pacto filiae nulla matri quaeritur actio: si tamen heres puellae matri pecuniam dotis soluerit, uiro contra placita petenti dotem obstabit exceptio.
By the agreement of the daughter, no action is acquired for the mother; however, if the heir of the girl pays the money of the dowry to the mother, an exception will bar the husband who, contrary to the agreement, demands the dowry.
§23.4.26.5Pater, si filia nupta mortem obisset, dotem dari stipulatus est: constante matrimonio capitali crimine damnatus est.
A father stipulated that the dowry should be given if his married daughter died; during the marriage, he was condemned for a capital crime.
diuortio secuto uel morte uiri soluto matrimonio stipulationis condicio deficit: quod si mulier in matrimonio decesserit, ex stipulato fisco dotis actio quaereretur: post uerum autem diuortium renouatis nuptiis non committitur fisco stipulatio, licet defuncta sit in matrimonio filia, quoniam ad primas nuptias pertinet.
If the marriage is dissolved by a subsequent divorce or by the death of the husband, the condition of the stipulation fails; but if the woman dies during the marriage, the action for the dowry from the stipulation would be acquired for the fiscus. However, after a genuine divorce, if the marriage is renewed, the stipulation is not forfeited to the fiscus even if the daughter dies during the marriage, because it relates to the first marriage.