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Justinian I · The Digest of Justinian §45.1.70.pr

Invalidity of Stipulation to Return Dowry to Infant

Passage 7417 of 9271 · Latin

Summary

In the case of a woman who died after making her husband promise to return the dowry to an infant if she died during the marriage, it is held that no action on the stipulation exists because an infant, being unable to speak, cannot make a stipulation.

[IDEM libro undecimo ad edictum. ] §45.1.70.prMulier, quae dotem dederat populari meo Glabrioni Isidoro, fecerat eum promittere dotem, si in matrimonio decessisset, infanti et decesserat constante matrimonio.
[THE SAME, On the Edict, Book 11] A woman, who had given a dowry to my fellow-countryman Glabrio Isidorus, had made him promise the dowry to an infant if she should die during the marriage, and she did die while the marriage was still subsisting.
placebat ex stipulatu actionem non esse, quoniam qui fari non poterat, stipulari non poterat.
It was held that there was no action based on the stipulation, since he who could not speak could not stipulate.

Notes

  1. §45.1.70.prfecerat eum promittere — The combination of the verb facere with the accusative and infinitive (eum promittere) expresses a causative sense, meaning 'had made him promise'.
  2. §45.1.70.prdecessisset — Subjunctive pluperfect. The subject is the woman (mulier), who is the subject of the main clause; this verb forms a conditional hypothesis which is later shown as a real event by the indicative pluperfect decesserat ('she had died').
  3. §45.1.70.prqui fari non poterat — The antecedent of the relative pronoun qui refers to a general 'person' or points back to the infanti (infant). It explains the legal rule that since a stipulation (stipulatio) is an oral contract, an infant—etymologically meaning 'one who does not speak' (in- + fari)—cannot stipulate (stipulari) because of their inability to speak.

Cite this passage

Justinian I, The Digest of Justinian §45.1.70.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.1.70.pr

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