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Justinian I · The Digest of Justinian §24.3.25.pr-24.3.25.4

Liability of a Son-in-Power and Mutual Security for Dowry

Passage 3617 of 9271 · Latin

Summary

It discusses the scope of the peculium in recovering a dowry given to a son-in-power, the husband's liability for fraud, fault, and delay, the pursuit of runaway slaves, and mutual security obligations arising from land leases.

[PAULUS libro trigesimo sexto ad edictum. ] §24.3.25.prSi filio familias dos data sit iniussu patris, de peculio quidem agetur: sed siue propter impensas a filio familias factas siue propter res donatas a filio uel amotas ab uxore res peculiares hoc ipso, quod habet actionem pater ex persona filii, maius peculium fit, et sic totum est praestandum mulieri quod est in peculio, quia adhuc sit quod uxori debeatur. §24.3.25.1Maritum in reddenda dote de dolo malo et culpa cauere oportet.
[PAULUS, Book 36 on the Edict.]\n\nIf a dowry has been given to a son-in-power without the order of his father, an action will indeed be brought concerning his peculium; but whether because of expenses incurred by the son-in-power, or because of peculiar things given as gifts by the son or carried away by the wife, by this very fact, that the father has an action on account of the person of the son, the peculium becomes larger, and thus everything that is in the peculium must be performed to the woman, because there still remains what is owed to the wife.\n\nIn restoring the dowry, the husband must give security against fraud and fault.
quod si dolo malo fecerit, quo minus restituere possit, damnandum eum, quanti mulier in litem iurauerit, quia inuitis nobis res nostras alius retinere non debeat. §24.3.25.2Si post diuortium res dotales deteriores factae sint et uir in reddenda dote moram fecerit, omnimodo detrimentum ipse praestabit. §24.3.25.3Si qui dotalium seruorum in fuga erunt, cauere debebit maritus se eos uiri boni arbitratu persecuturum et restituturum. §24.3.25.4Si uir in quinquennio locauerit fundum et post primum forte annum diuortium interuenerit, Sabinus ait non alias fundum mulieri reddi oportere, quam si cauerit, si quid praeter unius anni locationem maritus damnatus sit, id se praestatum iri: sed et mulieri cauendum, quidquid praeter primum annum ex locatione uir consecutus fuerit, se ei restituturum.
But if he has acted with fraud, so that he cannot restore it, he must be condemned in the amount that the woman has sworn to in the lawsuit, because another ought not to retain our property against our will.\n\nIf after the divorce the dotal property has deteriorated and the husband has been in default in restoring the dowry, he shall make good the loss in every case.\n\nIf any of the dotal slaves are in flight, the husband must give security that he will pursue and restore them according to the judgment of a good man.\n\nIf the husband has leased a tract of land for a five-year period, and a divorce occurs, say, after the first year, Sabinus says that the land ought not to be restored to the woman unless she gives security that, if the husband is condemned in any amount beyond the lease of one year, she will make it good; but security must also be given to the woman that whatever the husband has obtained from the lease beyond the first year, he will restore to her.

Notes

  1. §24.3.25.prmaius peculium fit — The adverbial phrase propter... siue propter... (because of... or because of...) modifies maius peculium fit (the peculium becomes larger). It explains that the very fact that the father holds a right of action on account of his son's person (hoc ipso, quod habet actionem...) to recover expenses or peculiar things gifted by the husband (the son) or taken by the wife, has the effect of increasing the legal value of the peculium, thereby expanding the amount available for the wife's recovery.
  2. §24.3.25.1quanti mulier in litem iurauerit — quanti is a genitive of value (genitive of price) modifying the passive periphrastic damnandum [esse] eum (he must be condemned) in the main clause. This refers to the Roman legal institution of the oath in court (iusiurandum in litem), whereby if the defendant (husband) has fraudulently made restitution impossible, the plaintiff (wife) estimates the value of the property under oath, and the defendant is condemned in that amount.
  3. §24.3.25.3uiri boni arbitratu — arbitratu is an ablative of accordance/manner, with uiri boni (of a good man) in the genitive, modifying the infinitive clause se eos... persecuturum et restituturum (that he will pursue and restore them). It indicates that the husband, in pursuing and recovering the slaves, must not be allowed subjective negligence, but must give security that he will make full efforts according to the objective, standard judgment of a 'good man'.
  4. §24.3.25.4mulieri cauendum — mulieri is a dative of interest ('for/to the woman'), used with the impersonal passive periphrastic cauendum [esse] (security must be given). In the following infinitive clause se... restituturum [esse], the subject accusative se refers to the husband, and ei refers to the wife. This establishes a mutual, reciprocal obligation of security, parallel to the woman providing security to the husband in the first part of the sentence (si cauerit...).

Cite this passage

Justinian I, The Digest of Justinian §24.3.25.pr-24.3.25.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:24.3.25.pr-24.3.25.4

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