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Justinian I · The Digest of Justinian §24.3.34.pr

Paternal Power Disputes and Daughter's Consent in Dowry Claims

Passage 3626 of 9271 · Latin

Summary

In a dispute over the return of a dowry after a divorce, where a father claims his daughter is under his power and she claims to be independent, the author responds that the judge must deny the father's action unless he proves her consent, just as he would even if her subjection to his power were undisputed.

[IDEM libro octauo quaestionum. ]
[THE SAME, Book 8 of Questions.] Titia divorced Seius.
§24.3.34.prTitia diuortium a Seio fecit: hanc Titius in sua potestate esse dicit et dotem sibi reddi postulat: ipsa se matrem familias dicit et de dote agere uult: quaesitum est, quae partes iudicis sint.
Titius claims that she is under his power and demands that the dowry be returned to him. She herself claims that she is an independent mistress of a household (mater familias) and wishes to bring an action for the dowry. The question was raised as to what the duties of the judge are.
respondi patri, nisi probet filiam non solum in sua potestate esse, sed etiam consentire sibi, denegandam actionem, sicuti denegaretur, etiamsi constaret eam in potestate esse.
I replied that, unless the father proves not only that his daughter is under his power but also that she consents to him, the action must be denied to the father, just as it would be denied even if it were established that she was under his power.

Notes

  1. §24.3.34.prmatrem familias — While normally meaning "mistress of a household" or "married woman," in this legal context it is used to denote a woman who is "independent" (sui iuris) and not under paternal power (patria potestas).
  2. §24.3.34.prdenegandam actionem — A construction consisting of an accusative and a gerundive (with esse omitted) in indirect speech following the main verb respondi. The dative patri functions either as the indirect object ("denied to the father") or as the dative of agent ("to be denied [by the judge] to the father").
  3. §24.3.34.prsicuti denegaretur — The subjunctive imperfect denegaretur, paired with the concessive conditional clause etiamsi constaret, expresses the apodosis of a present counterfactual condition: "just as it would be denied (if her consent were lacking, even if it were established that she was under his power)."

Cite this passage

Justinian I, The Digest of Justinian §24.3.34.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:24.3.34.pr

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