Humanitext Reader

Justinian I · The Digest of Justinian §24.2.5.pr

Father's Recovery of Dowry in Fraudulent Divorce

Passage 3584 of 9271 · Latin

Summary

The passage discusses the relief that the praetor must grant to a father, allowing him to recover the dowry just as if his emancipated daughter had died during the marriage, in cases where she divorced maliciously to benefit her husband and defraud her father.

[IDEM libro trigesimo quarto ad edictum. ] §24.2.5.prSi filia emancipata idcirco diuerterat, ut maritum lucro dotis adficiat, patrem fraudet, qui profecticiam dotem potuit petere, si constante matrimonio decessisset, ideo patri succurrendum est, ne dotem perdat: non enim minus patri quam marito succurrere praetorem oportet.
[THE SAME, in the thirty-fourth book on the Edict.] If an emancipated daughter had divorced for the purpose of letting her husband benefit from the dowry and defrauding her father—who could have claimed the dowry originating from him, if she had died while the marriage was still continuing—then the father must be succored, lest he lose the dowry; for the praetor ought to succor the father no less than the husband.
danda igitur est ei dotis exactio, atque si constante matrimonio decessisset filia.
Therefore, the recovery of the dowry must be granted to him, just as if the daughter had died while the marriage was still continuing.

Notes

  1. §24.2.5.prpatrem fraudet — The present subjunctive fraudet is governed by the preceding conjunction of purpose ut (ut maritum lucro dotis adficiat) and is coordinated with adficiat, expressing the purpose: 'in order to benefit the husband and defraud the father.'
  2. §24.2.5.prpotuit petere, si ... decessisset — Against the pluperfect subjunctive conditional clause si ... decessisset (contrary-to-fact), the indicative perfect potuit petere is used in the apodosis. In Latin, past tenses of verbs expressing ability or obligation (like possum or debeo) in the apodosis of a contrary-to-fact conditional sentence are regularly put in the indicative.
  3. §24.2.5.pratque si — The phrase atque si (or ac si) is a comparative conditional conjunction meaning 'just as if' or 'as if', which, like quasi or tanquam si, takes the pluperfect subjunctive (decessisset) to express a contrary-to-fact assumption.

Cite this passage

Justinian I, The Digest of Justinian §24.2.5.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:24.2.5.pr

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