[ULPIANUS libro trigesimo quinto ad Sabinum. ] §24.3.2.prSoluto matrimonio solui mulieri dos debet. nec cogitur maritus alii eam ab initio stipulanti promittere, nisi hoc ei nihil nocet: nam si incommodum aliquod maritus suspectum habet, non debere eum cogi alii quam uxori promittere dicendum est.
[ULPIANUS in the thirty-fifth book ad Sabinum.] Upon dissolution of marriage, the dowry ought to be returned to the woman; nor is the husband compelled to promise it to another person stipulating for it from the beginning, unless this causes him no harm; for if the husband suspects any disadvantage, it must be said that he ought not to be compelled to promise it to anyone other than his wife.
haec si sui iuris mulier est.
This is the case if the woman is independent (sui iuris).
§24.3.2.1Quod si in patris potestate est et dos ab eo profecta sit, ipsius et filiae dos est: denique pater non aliter quam ex uoluntate filiae petere dotem nec per se nec per procuratorem potest.
But if she is under the power of her father, and the dowry came from him, the dowry belongs to both him and the daughter; therefore, the father cannot demand the dowry, either by himself or through an agent, otherwise than in accordance with the daughter's will.
sic ergo et promittendum Sabinus ait. ei ergo promittendum erit, cui uterque iusserit.
Sabinus says that the promise must also be made in this way; therefore, the promise must be made to whomsoever both shall have designated.
ceterum si pater solus iussit, dotis actio filiae non erit adempta, quandoque sui iuris filia fuerit facta.
Moreover, if the father alone gave the order, the daughter's action for dowry will not be barred whenever she shall have become independent (sui iuris).
item si uoluntate solius filiae promittatur, remanebit dotis actio integra patri: sed utrum ut et agat solus an et ut adiuncta quoque filiae persona experiri possit? et puto nec eam actionem amissam, quam adiuncta filiae persona potest habere.
Likewise, if the promise is made by the will of the daughter alone, the father's action for dowry will remain intact; but does it remain so that he may bring the action alone, or so that he can also sue with the addition of the daughter's person? And I think that even that action is not lost which he can bring with the addition of the daughter's person.
quod si sui iuris fuerit facta filia, nocebit ei ista stipulatio.
But if the daughter shall have become independent (sui iuris), that stipulation will be to her disadvantage.
§24.3.2.2Uoluntatem autem filiae, cum pater agit de dote, utrum sic accipimus, ut consentiat an uero ne contradicat filia? et est ab imperatore Antonino rescriptum filiam, nisi euidenter contradicat, uideri consentire patri.
On the other hand, regarding the daughter's will when the father sues for the dowry, do we understand it to mean that she consents, or rather that she does not object? And there is a rescript of the Emperor Antoninus to the effect that, unless she clearly objects, the daughter is deemed to consent to her father.
et Iulianus libro quadragesimo octauo digestorum scripsit quasi ex uoluntate filiae uideri experiri patrem, si furiosam filiam habeat: nam ubi non potest per dementiam contradicere, consentire quis eam merito credet.
And Julian wrote in the forty-eighth book of his Digests that, if a father has an insane daughter, he is deemed to sue as if by her will; for where she cannot object because of her madness, anyone will rightly believe that she consents.
sed si absens filia sit, dicendum erit non ex uoluntate eius id factum cauendumque ratam rem filiam habituram a patre: ubi enim sapit, scire eam exigimus, ut uideatur non contradicere.
But if the daughter is absent, it must be said that this was not done by her will, and security must be given by the father that the daughter will ratify the matter; for where she has her senses, we require her to know of it, so that she may be deemed not to object.