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Justinian I · The Digest of Justinian §23.5.9.pr-23.5.9.3

Dotal Property and Alienability When Debt Is Promised as Dowry

Passage 3500 of 9271 · Latin

Summary

This section discusses which property becomes dotal when a wife promises her debtor-husband the debt he owes as her dowry, and analyzes the alienability of the properties in alternative obligations.

[AFRICANUS libro octauo quaestionum. ] §23.5.9.prSi marito debitori fundi id quod debet doti mulier promiserit, dotalem fundum effici.
[AFRICANUS, Questions, Book VIII.] If a woman promises to her husband, who is the debtor of a tract of land, that which he owes as a dowry, the land becomes dotal.
§23.5.9.1Quod si ei promittat, qui fundum aut decem debuit, in arbitrio esse mariti, quid in dote sit.
But if she promises this to one who owed either a tract of land or ten [pieces of money], it is within the discretion of the husband what is to be in the dowry.
§23.5.9.2Quod si Stichum aut fundum debuit maritus et quod debet, doti ei promissum sit, Sticho mortuo fundum in dotem esse.
But if the husband owed either Stichus or a tract of land, and that which he owes is promised to him as a dowry, then upon the death of Stichus, the land is in the dowry.
§23.5.9.3His consequens esse ait, ut, si Cornelianum aut Sempronianum fundum debenti id quod debet doti promissum sit, utrum eorum dotalem esse malit.
He says that it follows from these things that if that which he owes is promised as a dowry to one who owes either the Cornelian or the Sempro-nian land, [it is up to him] which of them he prefers to be dotal.
plane utrum uelit, alienaturum: alterum alienari non posse.
Clearly, he will alienate whichever of them he wishes; the other cannot be alienated.
si tamen alienum rursus redimat, adhuc in eius potestate est, an eum, quem retinuisset, alienari uelit.
If, however, he should buy back the alienated one, it is still within his power whether he wishes the one he had retained to be alienated.

Notes

  1. §23.5.9.prdotalem fundum effici — An accusative-with-infinitive clause in indirect speech depending on an implied verb of responding (such as *respondit*). It states that the land itself immediately becomes dotal (and thus subject to alienation restrictions) when the wife promises the debt owed to her by her husband as her dowry.
  2. §23.5.9.3alienaturum — The future active participle *alienaturum [esse]* with the husband (*maritus*) as the implied subject. In alternative obligations, if the husband alienates one of the two tracts of land, that alienated land is treated as never having been dotal, thereby securing the remaining, retained tract as the dotal property (which is then inalienable).
  3. §23.5.9.3eum, quem retinuisset — The pronoun *eum* (referring to the land) is modified by the subjunctive relative clause *quem retinuisset* (pluperfect subjunctive). It refers to the land that the husband had initially retained and which had temporarily become dotal. If he buys back the alienated land, his power of choice is restored, allowing him to alienate the initially retained land instead.

Cite this passage

Justinian I, The Digest of Justinian §23.5.9.pr-23.5.9.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:23.5.9.pr-23.5.9.3

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