[ULPIANUS libro trigesimo primo ad Sabinum. ] §24.1.7.prQuod autem spectetur tempus, an locupletiores sint facti, utrum tempus litis contestatae an rei iudicatae? et uerum est litis contestatae tempus spectari oportere idque imperator noster cum patre rescripsit.
[ULPIANUS libro trigesimo primo ad Sabinum.] Now as to the time to be regarded, whether they have become richer, is it the time of joinder of issue or of judgment? And it is true that the time of joinder of issue ought to be regarded, and our Emperor with his father replied so by rescript.
§24.1.7.1Si maritus pecuniam uxori in unguenta dederit eaque eam pecuniam creditori suo soluerit, mox ea de sua pecunia unguenta emerit, non uideri locupletiorem factam Marcellus libro septimo digestorum scribit.
If a husband has given money to his wife for ointments, and she has paid that money to her creditor, and soon after she has bought ointments with her own money, Marcellus writes in the seventh book of the Digests that she is not deemed to have become richer.
idemque et si lancem ob eandem causam ei dederit eaque lancem retinuerit, de sua autem pecunia unguenta emerit, uindicationem cessare, quia non est locupletior, quae tantundem in re mortua impendit.
And the same applies if he has given her a dish for the same purpose, and she has retained the dish, but bought ointments with her own money; the vindication is barred, because she is not richer who has spent the equivalent amount on a perishable thing.
§24.1.7.2Si uir et uxor quina inuicem sibi donauerint et maritus seruauerit, uxor consumpserit, recte placuit compensationem fieri donationum et hoc diuus Hadrianus constituit.
If a husband and a wife have mutually given five each to each other, and the husband has saved his, but the wife has consumed hers, it has been rightly held that a set-off of the donations should take place, and the divine Hadrian established this.
§24.1.7.3Aestimari oportere, in quantum locupletior facta sit mulier.
It must be estimated to what extent the woman has become richer.
proinde et si praedia hodie uilissimo sunt, consequenter dicemus, litis contestatae tempore aestimationem eorum spectandam.
Accordingly, even if the estates are of very little value today, we shall consequently say that their valuation at the time of joinder of issue must be regarded.
plane si magni pretii praedia sunt, summa tantum numerata erit restituenda, non etiam usurae pretii.
Obviously, if the estates are of great value, only the sum paid out will have to be restored, and not also interest on the price.
§24.1.7.4Eleganter tractabitur, si mulier quindecim praedia emerit et maritus non totum pretium numerauerit, sed duas partes pretii, hoc est decem, uxor de suo quinque, deinde haec praedia ualeant nunc decem, maritus quantum consequatur.
It will be elegantly discussed if a woman has bought estates for fifteen, and the husband has not paid the whole price, but two-thirds of the price, that is ten, and the wife five from her own, and then these estates are now worth ten, how much the husband should recover.
et magis est, ut consequi debeat duas partes decem, ut quod periit ex pretio, utrique perierit et marito et uxori.
And it is more correct that he ought to recover two-thirds of ten, so that what was lost from the price is lost to both, both the husband and the wife.
§24.1.7.5Si maritus aestimationem rerum quas in dotem accepit dicat se donationis causa auxisse, remedium monstrauit imperator noster cum diuo patre suo rescripto, cuius uerba haec sunt: 'Cum donationis causa pretium auctum adfirmes, qui super ea re cogniturus erit, si pecuniae modum recusabis, ipsa praedia restitui debere sumptuum deductis rationibus arbitrabitur'. in arbitrio igitur mariti erit, quid praestitum malit.
If a husband says that he increased the valuation of the things he received as dowry for the sake of a donation, our Emperor with his divine father showed a remedy by a rescript, the words of which are as follows: "Since you assert that the price was increased for the sake of a donation, he who is to judge this matter, if you refuse the amount of money, will decide that the estates themselves ought to be restored after deducting the accounts of expenses." Therefore, it will be in the choice of the husband which performance he prefers.
idem iuris est et si e contrario mulier de minore aestimatione queratur.
The same rule of law applies if, on the contrary, the woman complains about a lower valuation.
nec aliud in commodato aestimato dato obseruari solet, ut Pomponius libro quarto uariarum lectionum scribit.
Nor is any other rule observed in the case of a commodatum given with an estimation, as Pomponius writes in the fourth book of Various Readings.
§24.1.7.6Si uxor a marito suo praedia, quae ob dotem pignori acceperat, emerit eaque emptio donationis causa facta dicatur, nullius esse momenti, pignoris tamens obligationem durare imperator noster cum patre suo rescripsit, cuius rescripti uerba ideo rettuli, ut appareat uenditionem inter uirum et uxorem bona fide gestam non retractari.
If a wife has bought from her husband estates which she had received as a pledge on account of her dowry, and that purchase is said to have been made for the sake of a donation, our Emperor with his father replied by rescript that the purchase is of no effect, but the obligation of the pledge remains; I have reported the words of this rescript so that it may appear that a sale transacted in good faith between husband and wife is not rescinded.
'Si tibi maritus pignora propter dotem et pecuniam creditam data non donationis causa uendidit, quod bona fide gestum est, manebit ratum.
"If your husband sold to you pledges given on account of dowry and loaned money, and not for the sake of a donation, what has been transacted in good faith will remain valid.
at si titulus donationis quaesitus ostenditur atque ideo uenditionem irritam esse constabit, iure publico causam pignorum integram obtinebis'. §24.1.7.7Si uxor rem emit et maritus pretium pro ea numerauit, interdum dicendum est totum a muliere repetendum, quasi locupletior ex ea in solidum facta sit: ut puta si emit quidem rem mulier et debebat pecuniam, maritus autem a uenditore eam liberauit: quid enim interest, creditori soluat an uenditori?
But if a title of donation is shown to have been sought, and therefore it is established that the sale is void, you will obtain the status of the pledges intact under the common law." If a wife has bought a thing and the husband has paid the price for it, sometimes it must be said that the whole sum is to be recovered from the woman, as if she has become richer from it in full; as, for example, if the woman indeed bought the thing and owed the money, and the husband released her from the seller; for what difference does it make whether he pays a creditor or the seller?
§24.1.7.8Uxori quis donauit seruum ita, ut eum intra annum manumitteret: an, si mulier non obtemperet uoluntati, constitutio diui Marci imponat ei libertatem, si uir uel uiuit uel etiam diem suum obierit? et ait Papinianus, cum Sabini sit sententia recepta, qui putat tunc fieri seruum eius cui donatur, cum coeperit libertas imponi ideoque nec si uelit mulier post exactum tempus possit manumittere, recte dici non esse constitutioni locum nec uoluntatem mariti posse constitutioni locum facere, cum proprium seruum possit manumittere: quae sententia mihi quoque probatur, quia uenditor siue donatur non sibi uult legem imponi nec potest, sed ei qui accepit: dominio igitur penes se remanente nequaquam effectum habebit constitutio.
Someone has given a slave to his wife on the condition that she should manumit him within a year: if the woman does not comply with his will, does the constitution of the divine Marcus impose liberty on the slave, whether the husband is still alive or has even met his day? And Papinian says, since the opinion of Sabinus has been accepted, who thinks that the slave becomes the property of the donee only when the liberty begins to be imposed, and therefore even if the woman wants to, she cannot manumit after the prescribed time has elapsed, it is rightly said that there is no room for the constitution, nor can the will of the husband make room for the constitution, since he could have manumitted his own slave. This opinion is approved by me too, because the seller or donor does not wish to impose a law on himself, nor can he, but on the one who received; therefore, since the ownership remains in his hands, the constitution will by no means have effect.
§24.1.7.9Manumissionis causa donatio facta ualet, licet non hoc agatur, ut statim ad libertatem, sed quandoque perducatur.
A donation made for the purpose of manumission is valid, even if it is not intended that the slave should be brought to liberty immediately, but at some time.
proinde si, ut post certum tempus manumittat, uxori suae tradidit, tunc demum eius fiet, cum tempore impleto manumittere coeperit: quare antea manumittendo nihil agit.
Therefore, if he has delivered the slave to his wife on the condition that she should manumit him after a certain time, the slave will become hers only when, the time having been completed, she begins to manumit; wherefore by manumitting before then she achieves nothing.
nam et illud sciendum est: si uxori quis suae donauerit, ut intra annum manumittat, deinde non manumiserit ea intra annum, postea manumittendo nihil agit.
For this also must be known: if anyone has given to his wife on the condition that she should manumit within a year, and then she has not manumitted within the year, she achieves nothing by manumitting afterwards.