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Justinian I · The Digest of Justinian §24.3.42.pr-24.3.42.3

Transfer of Dowry Action upon Deportation and Set-Off

Passage 3634 of 9271 · Latin

Summary

This text governs the ownership of the dowry action upon the father's deportation or condemnation, the treatment of fruits and expenses on dotal land when the woman is later found to be a slave, the set-off of interest between husband and father, and the survival of a trial initiated by a third party after the couple's reconciliation.

[IDEM libro quarto responsorum. ] §24.3.42.prIn insulam patre deportato, qui dotem pro filia dedit, actio dotis ad filiam pertinet.
[THE SAME, Book 4 of Responses.] When a father who gave a dowry for his daughter is deported to an island, the action for the dowry belongs to the daughter.
post diuortium quoque patre damnato, cui quidem consentiente filia conpetierat, aeque dotis actio mulieris est.
Also after a divorce, if the father is condemned, even though the action had indeed belonged to him with the consent of the daughter, the action for the dowry likewise belongs to the woman.
§24.3.42.1Fructus ex praediis, quae in dotem data uidebantur, bona fide perceptos et mulieris oneribus ante causam liberalem absumptos, quamuis seruam fuisse postea constiterit, peti non posse placuit.
It has been held that fruits gathered in good faith from estates which appeared to have been given as dowry, and consumed for the maintenance of the woman before the status suit, cannot be claimed, even if it is afterwards established that she was a slave.
sumptus uero necessarios et utiles in praedia quae dotalia uidebantur factos, compensatis fructibus perceptis, ad finem superflui seruari conuenit.
However, it is proper that necessary and useful expenses incurred on estates which appeared to be dotal should, after offsetting the fruits gathered, be preserved to the extent of the excess.
§24.3.42.2Usuras numeratae dotis ex stipulatu pater in matrimonio defuncta filia si petat, gener, qui residuae dotis promissae faenus stipulatus est, ita demum ad finem uice mutua debitae quantitatis compensationem opponere iuste uidetur, si propriis sumptibus uxorem suam exhibuit: alioquin si patris sumptibus exhibita sit, inanis usurarum stipulatio compensationi non proderit.
If, after the daughter has died during the marriage, the father should claim by stipulation the interest on the paid dowry, the son-in-law, who had stipulated for interest on the remaining promised dowry, is justly deemed to oppose a set-off of the mutually owed amount to that extent only if he maintained his wife at his own expense; otherwise, if she was maintained at the father's expense, the empty stipulation for interest will not profit him for a set-off.
§24.3.42.3Ad uirum uxore post diuor- tium reuersa iudicium acceptum ex stipulatione, quam extraneus qui dotem dederit stipulatus fuerit, non dissoluitur nec officio iudicis absolutio continetur.
When a wife has returned to her husband after a divorce, a trial accepted on the basis of a stipulation which a third party who gave the dowry had contracted is not dissolved, nor is an acquittal contained within the duty of the judge.

Notes

  1. §24.3.42.prcui — The relative pronoun cui (dative) refers to the antecedent patre. Combined with the verb conpetierat (had belonged), it means 'to which father (the right of action) had belonged'.
  2. §24.3.42.1causa liberalis — Refers to a 'status suit' or 'trial concerning liberty,' which is a legal proceeding to determine whether a person is free or a slave.
  3. §24.3.42.1ad finem superflui — Meaning 'to the extent of the excess.' It indicates that if the expenses (necessary and useful) incurred on the land exceed the value of the gathered fruits, the right to claim reimbursement is recognized only to the extent of that remaining surplus.
  4. §24.3.42.3iudicium acceptum — A technical term in Roman law referring to 'a trial accepted' or 'initiated,' meaning one that has reached the stage of joinder of issue (litis contestatio). A trial that has reached this stage is not automatically dissolved by a subsequent change of circumstances, such as the reunion of the divorced couple.

Cite this passage

Justinian I, The Digest of Justinian §24.3.42.pr-24.3.42.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:24.3.42.pr-24.3.42.3

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