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Justinian I · The Digest of Justinian §23.5.10.pr

Alternative Obligations as Dowry and Ambulatory Prohibition

Passage 3501 of 9271 · Latin

Summary

The jurist Paul discusses the ambulatory nature of the law's power when an obligation constitutes the dowry, analyzing whether both alternative lands may be alienated if one is eventually bought back.

[PAULUS libro quinto quaestionum. ] §23.5.10.prErit ergo potestas legis ambulatoria, quia dotalis fuit obligatio.
[PAULUS, Questions, Book V.] Therefore, the power of the law will be ambulatory, because it was the obligation that was dotal.
numquid ergo etiam illo nondum redempto alterum quoque alienare possit, quia potest alterum redimere? an hoc non debet recipi, ut nullus in dote sit? certe ex post facto uidebitur recte alienatus illo postea redempto.
Would he, then, even before that former land is bought back, also be able to alienate the other, because he is able to buy back the former? Or should this not be accepted, so that nothing remains in the dowry? Certainly, from a post-facto perspective, the other will be deemed to have been rightly alienated if the former is subsequently bought back.

Notes

  1. §23.5.10.prpotestas legis — Refers to the 'power of the law,' specifically the application and efficacy of the Lex Julia de fundo dotali, which prohibited the alienation of dotal land.
  2. §23.5.10.prambulatoria — Literally 'ambulatory' or 'walking,' a legal concept meaning revocable, variable, or floating, rather than fixed, depending on changing circumstances.
  3. §23.5.10.prillo nondum redempto — An ablative absolute construction. Here 'illo' refers to the first tract of land that was alienated in Africanus's hypothetical case (§23.5.9.3), while 'alterum' refers to the other tract of land originally retained.
  4. §23.5.10.prrecte alienatus — A subject complement with the main verb 'uidebitur' ('it will seem/be deemed'). The subject is the implicit 'alter' (the other land), with the infinitive 'esse' omitted, meaning '(the other land) will be deemed to have been rightly alienated.'

Cite this passage

Justinian I, The Digest of Justinian §23.5.10.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:23.5.10.pr

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