BOOK III.

Pt. 1. Ch. 11.

a § 142.

The notion of intercessio' was developed by Roman jurisprudence by way of interpretation of this SCtum, to the extent that it comprehends every engagement for the liability of another by which responsibility is undertaken.

Imp. Anton. Sed si pro aliis, cum obligatae non essent, pecuniam exsolvunt, intercessione cessante repetitio nulla est.-1. 1, C. h. t. 4, 29.1

This may be by responsibility collateral to the debtor (so-called 'cumulative' intercessio) by means of fideiussio, mandatum qualificatum, constitutum debiti alieni.

Id. Si cum ipse mutuam pecuniam acciperes, mater tua contra amplissimi ordinis consultum fidem suam interposuit, exceptione se tueri potest. -1. 3, C. eod.❜

Or it may be by the undertaking of another's debt by means of expromissio" (so-called 'privative' intercessio), or by contracting liability in the place, and in the sole interest, of a third party (so-called intercessio tacita).

Imp. Alex. SCtum locum habet, sive eam obligationem, quae in alterius personam constitit, mulier in se transtulerit vel participaverit, sive cum alius pecuniam acciperet, ipsa se ab initio ream constituit.-1. 4, C. eod.3

Ulp. Si cum essem tibi contracturus, mulier

1 But if they pay money for others, without having contracted any liability, in the absence of intercessio, there is no recovery.

2

If upon your taking a loan, your mother made herself liable against the decree of the august order, she can protect herself by a plea.

The Sctum is applicable whether it be that a woman has transferred to herself, or has taken a share in, an obligation which affects another, or when another received money, she at the outset made herself the debtor.

intervenerit, ut cum ipsa potius contraham, videtur intercessisse.-1. 8, § 14, D. h. t.1 But the debt for which the engagement is made must be materially, and in its pecuniary relation, always another's.

Gai. Aliquando licet alienam obligationem suscipiat mulier, non adiuvatur hoc senatusconsulto; quod tum accidit, cum prima facie quidem alienam, re vera autem suam obligationem suscipiat: ut ecce si ancilla ob pactionem libertatis expromissore dato post manumissionem id ipsum suscipiat, quod expromissor debeat, aut si hereditatem emerit et aes alienum hereditarium in se transcribat, aut si pro fideiussore suo intercedat. 1. 13 pr., D. eod."

The female surety has the exceptio SC! Vell! to the action of the creditor, provided that he knew of the intercessio.

Sed ita demum eis subvenit, si non callide sint versatae; . . . nam deceptis non decipientibus opitulatur. l. 2, § 3, D. h. t.3

Paul. Si mulier tamquam in usus suos pecuniam acceperit, alii creditura, non est locus senatusconsulto alioquin nemo cum feminis contrahet,

1 If when I was about to contract with you, a woman shall have intervened, that I might the rather make the contract with her, she would seem to have given a guaranty.

2 Sometimes, although a woman undertakes the obligation of another person, she is not relieved by this SCtum, which occurs when she undertakes, at the first glance indeed another person's, but in fact her own obligation; as, for example, if a slave-woman, when a substitute has been appointed because of an agreement for freedom, after the manumission should undertake just what the substitute may owe, or if a woman should have purchased an inheritance and takes upon herself the debts of the inheritance, or if she answer for her surety.

3 But relief is afforded them only when they have not gone to work deceitfully; . . . for to those that are deceived, not deceivers, is relief given.

BOOK III.

Pt. I. Ch. II.

quia ignorari potest, quid acturae sint.-Immo tunc locus est senatusconsulto, cum scit creditor eam intercedere.-ll. II, 12 eod.'

And further, she can by condictio indebiti recover what has been paid by mistake.

Marcian. Si quidem eius causa exceptio datur cum quo agitur, solutum repetere potest, ut accidit in senatusconsulto de intercessionibus.D. 12, 6, 40 pr.2

In favour of the creditor, to meet this the action. against the debtor released by the intercessio is revived: the actio restitutoria.'

Quotiens pro debitore intercesserit mulier, datur in eum pristina actio, etsi ille prius acceptilatione liberatus sit, quam mulier intercesserit.— 1. 8, § 7, D. h. t.3

Aequum visum est, ita mulieri succurri, ut in

eum, qui pro se constituisset mulierem ream, actio daretur.-1. 1, § 2, h. t.*

1 If a woman has received money as though for her own use, with the intention of lending it to another person, the Sctum does not attach; otherwise, no one would contract with women, because one cannot tell what they may intend to do.-But the Sctum does by all means attach when the creditor is aware that she becomes guarantor.

2 If in fact the plea is given on behalf of him against whom proceedings are taken, he can reclaim what has been paid, as happens in respect of the Sctum upon guaranties.

Whenever a woman shall give guaranty for a debtor, the earlier action is given against him, although he should have been previously released by acceptilatio before the woman gave the guaranty.

It has appeared fair that relief should be given to a woman in such way that an action be given against . . . him who had appointed the woman as debtor on his own behalf.

PART II.-LAW OF FAMILY PROPERTY.

CHAPTER I.

INFLUENCE OF MARRIAGE UPON PROPERTY."

§ 146. NATURE AND CONSTITUTION OF Dos.

BOOK III.
Part II.

a See Maine, 'Early Histy. of Instns.' ch. xi.-For English Law, in Kenny, 'Effects

of Marriage on

277. For

APART from in manum conventio, Marriage Roman Law leaves the property of the spouses on Property, and both sides untouched.c But from of old it was usual Steph. ii. 263-even in marriage by manus-for the wife, or another Scotch Law: on her behalf, to make over to the husband, or his 122. paterfamilias, some property called Dos (dowry, marriage- Westl. 119-122. portion)d as a contribution to the burdens of main- ' § 48. tenance (onera matrimonii) to be borne by him.

Ld. Mack. 119-
For con-

flict of laws:

Notwithstand

ad init.

ing what is Paul. Ibi dos esse debet, ubi onera matrimonii stated in § 44 sunt. Post mortem patris statim onera matri- d See Brown, monii filium sequuntur, sicut uxor.-1. 56, §§ 1, s. v. Cf. 2, D. h. t. (de I. D. 23, 3).1

Blackstone, ii. 129 (Steph. i.

uses dos both in

Dowry and of

Pomp.: Dotium causa semper et ubique prae- 267)-Glanvil cipua est; nam et publice interest dotes mulieribus the sense of conservari, cum dotatas esse feminas ad sobolem dower': Kenny, procreandam replendamque liberis civitatem P. 76. maxime sit necessarium.-D. 24, 3, 1.2

From this custom was developed in course of time quite a legal duty for the wife's parent of providing a marriage-portion.

1 The dowry must be where the burdens of the marriage are. -After the father's death the burdens of the marriage pass forthwith to the son, just as the wife.

I.e., as she then passes

manus.

2 The ground of marriage-portions is always and everywhere under her own a special one; for it also concerns the public welfare that husband's marriage-portions be preserved to women, since it is highly necessary for women to be endowed, for the procreation of offspring and the supply of children to the State.

BOOK III.
Part II.

Marcian. Capite xxxv legis Iuliae qui liberos, quos habent in potestate, iniuria prohibuerint ducere uxores vel nubere, vel qui dotem dare non volunt, ex constitutione divorum Severi et Antonini per proconsules praesidesque provinciarum coguntur in matrimonium collocare et dotare; prohibere autem videtur et qui condicionem non quaerit.-D. 23, 2, 19.1

3

Imp. Diocl. Mater pro filia dotem dare non cogitur, nisi ex magna vel probabili vel lege specialiter expressa causa.-1. 14, C. h. t. 5, 12.' The rest of the wife's property (bona recepticia, parapherna) remains, even without special reservation, Whether in subject to the free disposition and control of the wife." marriage with manus the wife She is likewise capable of independent acquisition during the coverture; but here attaches the so-called

could retain a

portion of her

property by ex- praesumptio Muciana.

press reservation to herself, as peculium, is exceedingly doubtful.

Cf. § 148.

Gell. xvii. 6, § 6: Quando mulier dotem marito dabat, tum quae ex suis bonis retinebat neque ad virum transmittebat, ea' recipere' dicebatur, sicuti nunc quoque in venditionibus 'recipi' dicuntur, quae excipiuntur neque veneunt.

Imp. Theod. Hac lege decernimus, ut vir in his rebus quas extra dotem mulier habet, quas Graeci napápeрva dicunt, nullam uxore prohi

1 By the thirty-fifth chapter of the l. Iulia, those who without lawful cause have restrained children under their power from taking wives or marrying, or those who decline to give a dowry, are, in accordance with the constitution of the late Emperors Sev. and Ant., required by the pro-consuls and provincial presidents to give (their children) in marriage and endow them; and a person also is regarded as using restraint who does not seek a match.

A mother is not required to give a dowry for her daughter unless upon a ground weighty, or reasonable, or by the special terms of a statute.

3 When a woman made over dowry to her husband, then she was said to receive' such things as she kept back of her goods and did not hand over to the man, just as now also in sales such things are said to be 'received' which are reserved and not sold.