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Justinian I · The Digest of Justinian §33.4.6.pr-33.4.6.1

Validity of Legacies Designated in Place of a Dowry

Passage 5008 of 9271 · Latin

Summary

This passage presents the jurists' opinions that if a specific sum is designated in a will "in place of" a dowry, that sum is validly bequeathed and must be paid by the heir, even if the actual dowry was less than the written amount or did not exist at all.

[LABEO libro secundo posteriorum a Iauoleno epitomatorum. ] §33.4.6.prCum scriptum esset: 'quae pecunia propter uxorem meam ad me uenit quinquaginta, tantundem pro ea dote heres meus dato', quamuis quadraginta dotis fuissent, tamen quinquaginta debere Alfenus Uarus Seruium respondisse scribit, quia proposita summa quinquaginta adiecta sit.
[From the second book of Labeo's Epitomes of Posteriores by Javolenus.] When it had been written: "Whatever money came to me on account of my wife is fifty, let my heir give just as much for that dowry," although forty had been of the dowry, nevertheless Alfenus Varus writes that Servius responded that fifty was owed, because the proposed sum of fifty had been added.
§33.4.6.1Item ei, quae dotem nullam habebat, uir sic legauerat: 'quanta pecunia dotis nomine' et reliqua, 'pro ea quinquaginta heres dato'. deberi ei legatum Ofilius Cascellius, item et Seruii auditores rettulerunt: perinde habendum esse ac si seruus alicui mortuus aut pro eo centum legata essent.
Likewise, to a woman who had no dowry, her husband had bequeathed thus: "Whatever money under the name of a dowry" and the rest, "in place of it let my heir give fifty." Ofilius, Cascellius, and likewise the pupils of Servius reported that the legacy was owed to her: that it should be held just as if a dead slave had been bequeathed to someone, or in place of him a hundred.
quod uerum est, quia his uerbis non dos ipsa, sed pro dote pecunia legata uidetur.
Which is true, because by these words not the dowry itself, but money in place of the dowry seems to have been bequeathed.

Notes

  1. §33.4.6.prdotis — dotis is a genitive modifying the numeral quadraginta (forty). It can be interpreted as a genitive of quality/definition ("forty in the form of dowry") or as a partitive genitive ("forty of the dowry"), indicating that the actual dowry amount was forty.
  2. §33.4.6.1perinde habendum esse ac si seruus alicui mortuus aut pro eo centum legata essent — The comparison introduced by perinde... ac si refers to a legacy where the primary object is invalid (a dead slave, seruus mortuus) but a substitute is designated (pro eo centum, a hundred in his place). This analogy from alternative legacy justifies the validity of the bequest of fifty in place of a non-existent dowry (nulla dos).

Cite this passage

Justinian I, The Digest of Justinian §33.4.6.pr-33.4.6.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:33.4.6.pr-33.4.6.1

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