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Justinian I · The Digest of Justinian §24.1.57.pr

Effect of a Wife's Promise to Return a Gift upon Divorce

Passage 3569 of 9271 · Latin

Summary

Paulus answers regarding the effect of a written promise by a wife to return a donation upon divorce under certain conditions, stating that the full amount can be claimed based on the stipulation if the condition is met, otherwise only to the extent of her enrichment.

[PAULUS libro septimo responsorum. ] §24.1.57.prEa, quae a marito suo pecuniam ex causa donationis acceperat, litteras ad eum misit huiusmodi: 'cum petenti mihi a te, domine carissime, adnuerit indulgentia tua uiginti ad expediendas quasdam res meas, quae summa mihi numerata est sub ea condicione, ut, si per me meosque mores quid steterit, quo minus in diem uitae nostrae matrimonium permaneat, siue inuito te discessero de domo tua uel repudium tibi sine ulla querella misero diuortiumque factum per me probabitur, tunc uiginti, quae mihi hac die donationis causa dare uoluisti, daturam restituturam me sine ulla dilatione: spondeo'.
[PAULUS, in the seventh book of Opinions.] A woman who had received money from her husband by way of donation sent a letter to him of the following import: "Since, most beloved master, upon my requesting it from you, your indulgence has granted twenty to settle certain of my affairs, which sum was paid to me under this condition, that, if any obstacle should arise through me and my conduct to prevent the marriage from continuing to the end of our lives, or if I should leave your house against your will, or send a divorce notice to you without any complaint, and the divorce is proved to have been effected through me, then I promise that I will give and restore without any delay the twenty which you wished to give to me on this day by way of donation." I ask whether, if this same woman should send a divorce notice to her husband Titius, she ought to restore the money.
quaero, an, si eadem Titio marito suo repudium miserit, pecuniam restituere debeat. Paulus respondit pecuniam, quam uir uxori donauit, ex stipulatione proposita, si condicio eius exstitit, peti posse, quoniam ex donatione in pecuniam creditam conuersa est: quod si stipulatio commissa non probetur, tunc tantum peti posse, quanto locupletior ex ea donatione facta probetur.
Paulus answered that the money which the husband donated to his wife can be claimed on the basis of the propounded stipulation if its condition has been fulfilled, because it has been converted from a donation into a loan. But if the forfeit of the stipulation is not proved, then it can be claimed only to the extent that she is proved to have been made richer by that donation.

Notes

  1. §24.1.57.prdaturam restituturam me — Infinitival clauses with the omission of esse after the future active participles daturam and restituturam (both feminine accusative singular, referring to the wife). They form an accusative with infinitive construction governed by the main verb spondeo ("I promise").
  2. §24.1.57.prsi per me meosque mores quid steterit — The idiomatic expression stare per aliquem, quo minus... ("to be someone's fault that... is prevented") is used. quid is an indefinite pronoun used instead of aliquid after si. The whole phrase means "if through me or my conduct any obstacle should arise [to prevent...]".
  3. §24.1.57.prstipulatio commissa — In juristic Latin, stipulatio committi ("the stipulation is committed/forfeited") means that the condition attached to the stipulation has been fulfilled, thereby triggering the legal obligation or penalty.
  4. §24.1.57.prpecuniam creditam — Literally "loaned money" or "credit money". While direct donations between husband and wife are generally prohibited, the presence of a stipulation with a return condition converts the transaction into a contractual relationship akin to a loan.

Cite this passage

Justinian I, The Digest of Justinian §24.1.57.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:24.1.57.pr

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