Humanitext Reader

Justinian I · The Digest of Justinian §24.3.38.pr

Unauthorized Betrothal and Dowry Retention for Wife's Fault

Passage 3630 of 9271 · Latin

Summary

The issue discussed is whether a husband, who was a filius familias, can retain a portion of the dowry due to the wife's fault, in a case involving divorce and a subsequent unauthorized betrothal contracted by his father.

[MARCELLUS libro singulari responsorum. ] §24.3.38.prLucius Titius cum esset filius familias, uoluntate patris uxorem Maeuiam duxit et dotem pater accepit: Maeuia Titio repudium misit: postea pater repudiati absente filio sponsalia cum ea de nomine filii sui fecit: Maeuia deinde repudium sponsalibus misit atque ita alii nupsit.
[MARCELLUS, Single Book of Responses.] When Lucius Titius was a filius familias, he married Maevia with his father's consent, and the father received the dowry. Maevia sent a notice of divorce to Titius. Afterwards, the father of the divorced man, in the absence of his son, contracted a betrothal with her in the name of his son. Maevia then sent a notice of repudiation of the betrothal and thus married another.
quaero, si Maeuia aget cum Lucio Titio quondam marito et a patre herede relicto de dote et probetur culpa mulieris matrimonium dissolutum, an possit maritus propter culpam mulieris dotem retinere.
I ask, if Maevia sues Lucius Titius, her former husband who was left as heir by his father, for the dowry, and it is proved that the marriage was dissolved through the fault of the woman, whether the husband can retain the dowry on account of the fault of the woman.
Marcellus respondit, etiamsi ut heres institutus a patre Titius conueniretur, tamen, si sponsalibus non consensisset, culpam mulieris multandam esse.
Marcellus replied that, even if Titius were sued as the heir appointed by his father, nevertheless, if he had not consented to the betrothal, the fault of the woman ought to be penalized.

Notes

  1. 24.3.38.prrepudiati absente filio — repudiati is a substantivated perfect passive participle in the genitive modifying pater ("the father of the divorced man"). absente filio is an ablative absolute consisting of a noun and a present participle ("while the son was absent").
  2. 24.3.38.prprobetur culpa mulieris matrimonium dissolutum — The subject of probetur (subjunctive passive) is the accusative and infinitive clause matrimonium dissolutum [esse] with the infinitive esse omitted. culpa mulieris functions as an ablative of cause ("by the fault of the woman") within this clause.
  3. 24.3.38.pretiamsi ut heres institutus a patre Titius conueniretur — Titius is the subject of conueniretur (imperfect subjunctive passive, meaning "to be sued or summoned"). ut heres institutus a patre functions as a predicative nominative ("as the heir appointed by his father").
  4. 24.3.38.prculpam mulieris multandam esse — An accusative and infinitive clause depending on respondit in indirect speech, where multandam esse consists of the gerundive and esse. In legal terms, this indicates that the woman's fault should be penalized by allowing the husband to retain (retentio) a portion of the dowry.

Cite this passage

Justinian I, The Digest of Justinian §24.3.38.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:24.3.38.pr

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.