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Justinian I · The Digest of Justinian §23.4.28.pr

Agreement to Pay Wife's Creditor from Dowry Fruits

Passage 3487 of 9271 · Latin

Summary

Regarding an agreement to pay a wife's creditor from the fruits of land given as a dowry, it is explained that such an agreement made before marriage is valid as a reduction of the dowry, whereas if made after marriage, it constitutes a mere donation from husband to wife and is invalid.

[PAULUS libro quinto quaestionum. ] §23.4.28.prQuaeris, si pacta sit mulier uel ante nuptias uel post nuptias, ut ex fundi fructibus quem dedit in dotem creditor mulieris dimittatur, an ualeat pactum? dico, si ante nuptias id conuenerit, ualere pactum eoque modo minorem dotem constitutam: post nuptias uero cum onera matrimonii fructus releuaturi sunt, iam de suo maritus paciscitur ut dimittat creditorem, et erit mera donatio.
[PAULUS, from the fifth book of Questions.] You ask whether, if a woman should agree, either before marriage or after marriage, that her creditor be discharged from the fruits of the land which she gave as dowry, the agreement is valid. I say that, if this was agreed before marriage, the agreement is valid and in this way a smaller dowry is established; but after marriage, since the fruits are to relieve the burdens of matrimony, the husband now agrees from his own property to discharge the creditor, and it will be a mere donation.

Notes

  1. §23.4.28.prpacta sit — Subjunctive perfect of the deponent verb paciscor (to bargain, agree). Within the si-clause, it expresses a hypothesis but is interpreted with an active meaning ('if she should agree'). The subsequent ut-clause (ut... dimittatur) forms the content of this agreement (acting as a noun clause).
  2. §23.4.28.prquem — Relative pronoun in the masculine singular accusative. Its gender agrees with the masculine noun fundus, which is the referent of the preceding genitive singular fundi, and it serves as the direct object of dedit ('the land which she gave as dowry').
  3. §23.4.28.prde suo — A nominal expression using the pronoun in the neuter ablative with de, meaning 'from his own property'. Since, after marriage, the fruits of the dowry are supposed to belong to the husband to support the burdens of marriage, using them to pay the wife's creditor is logically equivalent to the husband spending from his own property to make a gift to the wife (mera donatio).

Cite this passage

Justinian I, The Digest of Justinian §23.4.28.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:23.4.28.pr

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