[IDEM libro trigesimo tertio ad edictum. ] §24.3.22.prSi, cum dotem daret pater uel extraneus pro muliere, in unum casum pepigit, uel in diuortium uel in mortem, dicendum est in eum casum, in quem non pepigit, esse mulieri actionem.
[THE SAME, Book 33 on the Edict.] If, when a father or a third party was giving a dowry for a woman, he made an agreement for only one eventuality, either for divorce or for death, it must be said that for that eventuality for which he did not make an agreement, the woman has an action.
§24.3.22.1Si post solutum matrimonium filia familias citra patris uoluntatem exactam communem dotem consumat, patri et uiua ea et mortua actio superest, ut dos ipsi soluatur.
If, after the dissolution of the marriage, a daughter in power, against the will of her father, consumes the common dowry that has been recovered, the father retains an action, both during her lifetime and after her death, for the dowry to be paid to him.
quod ita uerum est, si perditurae soluatur: ceterum si non perditurae et ex iustis causis soluta sit, non supererit actio.
This is true only if it is paid to her when she is going to waste it; on the other hand, if it is paid to her when she is not going to waste it and for just causes, the action will not survive.
sed mortuo patre nec etiam heredes agent nec mulier.
But if the father dies, neither his heirs nor the woman will bring an action.
§24.3.22.2Si mulier soluto matrimonio egentem reum dotis per nouationem decepta accipiat, nihilo minus actio dotis ei manebit.
If a woman, after the dissolution of the marriage, being deceived, accepts through a novation an insolvent dowry debtor, the action for the dowry will nevertheless remain to her.
§24.3.22.3Si pater filia absente de dote egerit, etsi omissa sit de rato satisdatio, filiae denegari debet actio, siue patri heres exstiterit, siue in legato tantum acceperit, quantum dotis satis esset.
If a father, in the absence of his daughter, brings an action for the dowry, even if the security for ratification was omitted, the action must be denied to the daughter, whether she became the heir to her father, or received in a legacy as much as would be sufficient for the dowry.
et ita Iulianus pluribus locis scribit compensandum ei in dotem quod a patre datur lucroque eius cedit, si tantum ab eo consecuta sit, quantum ei dotis nomine debeatur a marito qui patri soluit.
And so Julian writes in several places that what is given by the father is to be set off against her dowry and goes to her profit, if she has obtained from him as much as was owed to her under the name of dowry by the husband who paid the father.
§24.3.22.4Si patri propter condemnationem Romae, ubi dos petatur, esse non liceat, filiae satis dotis fieri oportet, ita tamen, ut caueat ratam rem patrem habiturum.
If the father, on account of a condemnation, is not permitted to be in Rome, where the dowry is claimed, satisfaction of the dowry must be made to the daughter, provided, however, that she gives security that her father will ratify the matter.
§24.3.22.5Eo autem tempore consentire filiam patri oportet, quo lis contestatur.
However, the daughter must consent to her father at the time when issue is joined.
secundum haec si filia dicat se patri consentire et ante litis contestationem mutauerit uoluntatem uel etiam emancipata sit, frustra pater aget.
According to this, if the daughter should say that she consents to her father, but changes her mind before issue is joined, or is even emancipated, the father will sue in vain.
§24.3.22.6Nec non illud quoque probamus, quod Labeo probat, nonnumquam patri denegandam actionem, si tam turpis persona patris sit, ut uerendum sit, ne acceptam dotem consumat: ideoque officium iudicis interponendum est, quatenus et filiae et patri competenter consuletur.
Furthermore, we also approve of what Labeo approves: that sometimes the action must be denied to the father if the father's character is so base that it is to be feared he will consume the received dowry. Therefore, the office of the judge must intervene to the extent that suitable provision is made for both the daughter and the father.
sed si latitet filia, ne tali patri consentire cogatur, puto dari quidem patri actionem, sed causa cognita.
But if the daughter hides herself so that she may not be forced to consent to such a father, I think that the action should indeed be given to the father, but only after investigation of the case.
quid enim, si filia uerecunde per absentiam patri contradicat? cur non dicamus patri non esse dandam actionem? quod si is pater sit, cui omnimodo consentire filiam decet, hoc est uitae probatae, filia leuis mulier uel admodum iuuenis uel nimia circa maritum non merentem, dicendum est patri potius adquiescere praetorem oportere dareque ei actionem.
For what if the daughter, out of modesty, opposes her father through her absence? Why should we not say that the action is not to be given to the father? On the other hand, if he is a father whom it is fitting in every way for the daughter to consent to, that is, one of approved life, while the daughter is a flighty woman, or very young, or excessively devoted to an undeserving husband, it must be said that the praetor ought rather to assent to the father and give him the action.
§24.3.22.7Si maritus uel uxor constante matrimonio furere coeperint, quid faciendum sit, tractamus.
If a husband or a wife begins to be insane during the marriage, we discuss what must be done.
et illud quidem dubio procul obseruatur eam personam, quae furore detenta est, quia sensum non habet, nuntium mittere non posse.
And indeed, it is observed beyond a doubt that the person who is possessed by insanity, because they lack understanding, cannot send a notice of divorce.
an autem illa repudianda est, considerandum est.
But whether that person can be divorced must be considered.
et si quidem interuallum furor habeat uel perpetuus quidem morbus est, tamen ferendus his qui circa eam sunt, tunc nullo modo oportet dirimi matrimonium, sciente ea persona, quae, cum compos mentis esset, ita furenti quemadmodum diximus nuntium miserit, culpa sua nuptias esse diremptas: quid enim tam humanum est, quam ut fortuitis casibus mulieris maritum uel uxorem uiri participem esse? sin autem tantus furor est, ita ferox, ita perniciosus, ut sanitatis nulla spes supersit, circa ministros terribilis, et forsitan altera persona uel propter saeuitiam furoris uel, quia liberos non habet, procreandae subolis cupidine tenta est: licentia erit compoti mentis personae furenti nuntium mittere, ut nullius culpa uideatur esse matrimonium dissolutum neque in damnum alterutra pars incidat.
And if indeed the insanity has intervals, or if it is a permanent disease but nevertheless bearable to those who are around them, then the marriage must in no way be dissolved, the person who, when of sound mind, sent a notice of divorce to the one insane in the manner we described, knowing that the marriage was dissolved by their own fault. For what is so humane as that a husband should share in the accidental misfortunes of his wife, or a wife in those of her husband? But if the insanity is so great, so fierce, so destructive that no hope of recovery remains, terrifying to the attendants, and perhaps the other party, either because of the ferocity of the madness or because they have no children, is seized by a desire to procreate offspring, the party of sound mind will have the liberty to send a notice of divorce to the insane one, so that the marriage may seem to have been dissolved by the fault of neither, and neither party may fall into loss.