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Justinian I · The Digest of Justinian §23.5.18.pr-23.5.18.1

Ownership of Quarried Marble and Dotal Estate Expenses

Passage 3509 of 9271 · Latin

Summary

Discusses the differences between Labeo and Javolenus regarding the ownership of quarried marble and the reimbursement of expenses on a dotal estate after divorce, as well as the attribution of fruits when there is a delay in a buyback agreement.

[IAUOLENUS libro sexto ex posterioribus Labeonis. ] §23.5.18.prUir in fundo dotali lapidicinas marmoreas aperuerat: diuortio facto quaeritur, marmor quod caesum neque exportatum esset cuius esset et impensam in lapidicinas factam mulier an uir praestare deberet.
[IAUOLENUS, From the Posthumous Works of Labeo, Book VI.]\n\nA husband had opened marble quarries on a dotal estate: a divorce having taken place, the question arises, to whom the marble which had been quarried but not carried away belongs, and whether the wife or the husband ought to pay for the expense incurred on the quarries.
Labeo marmor uiri esse ait: ceterum uiro negat quidquam praestandum esse a muliere, quia nec necessaria ea impensa esset et fundus deterior esset factus.
Labeo says that the marble belongs to the husband; but he denies that anything should be paid to the husband by the wife, because that expense was not necessary, and the estate had been made worse.
ego non tantum necessarias, sed etiam utiles impensas praestandas a muliere existimo nec puto fundum deteriorem esse, si tales sunt lapidicinae, in quibus lapis crescere possit. §23.5.18.1Si per mulierem mora fieret, quo minus aestimationem partis fundi uiro solueret et fundum reciperet, cum hoc pactum erat: fructus interim perceptos ad uirum pertinere ait Labeo.
I think that not only necessary but also useful expenses ought to be paid by the wife, and I do not think that the estate is made worse if the quarries are of such a nature that stone can grow in them.\n\nIf there should be delay on the part of the wife, preventing her from paying the valuation of a part of the estate to her husband and recovering the estate, when this had been agreed upon: Labeo says that the fruits gathered in the meantime belong to the husband.
puto potius pro portione fructus uirum habiturum, reliquos mulieri restituturum: quo iure utimur.
I think rather that the husband will keep the fruits in proportion, and return the rest to the wife: which is the rule of law we use.

Notes

  1. §23.5.18.prmarmor quod caesum neque exportatum esset cuius esset — An indirect question where `cuius` is a genitive of possession ("whose it was"). The subjunctive `esset` is used because it is dependent on the historical sequence or indirect question construct.
  2. §23.5.18.primpensam in lapidicinas factam mulier an uir praestare deberet — An alternative indirect question introduced by `an` ("whether the wife or the husband"). `impensam... factam` (the expense incurred) is the direct object of `praestare`, with `mulier` and `uir` as the alternative subjects.
  3. §23.5.18.prlapis crescere possit — The idea that "stone can grow" reflects an ancient scientific belief that minerals (especially marble) regenerate or grow in the earth. Javolenus uses this as an argument that quarrying does not permanently impair (make worse, *deterior*) the estate if the quarry has regenerative properties.
  4. §23.5.18.1Si per mulierem mora fieret, quo minus aestimationem... solueret et ... reciperet, cum hoc pactum erat — The clause `mora fieret, quo minus...` expresses "delay occurred, by which she was prevented from...". The phrase `cum hoc pactum erat` ("when this had been agreed") uses the indicative `erat` to state the objective existence of the agreement under which the condition applies.
  5. §23.5.18.1pro portione — Meaning "in proportion." Javolenus proposes a more equitable view than Labeo, suggesting that even if there is delay by the wife, the husband should only keep a portion of the fruits relative to the delay or his share, returning the rest.

Cite this passage

Justinian I, The Digest of Justinian §23.5.18.pr-23.5.18.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:23.5.18.pr-23.5.18.1

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