BOOK III. l'art II. a Supra, § D. 24, 1, 3 pr. quo honestius se tueretur, contra est.-1. 31, § 8 eod.1 (5) And further, by a senatusconsultum (upon an oratio of Caracalla) of 206 A.D., every donation becomes valida if the spouse that is donor dies before-that is, not after the donee without revoking it. : Ulp. Cum hic status esset donationum inter virum et uxorem, quem ante retulimus, imperator noster Antoninus Augustus ante excessum D. Severi patris sui oratione in senatu habita auctor fuit senatui censendi Fulvio Aemiliano et Nummio Albino consulibus, ut aliquid laxaret ex iuris rigore. § Oratio autem imperatoris nostri de confirmandis donationibus . . pertinet .. ad omnes donationes inter virum et uxorem factas. Ait oratio: Fas esse eum quidem qui donavit poenitere; heredem vero eripere forsitan adversus voluntatem supremam eius, qui donaverit, durum et avarum esse.'-1. 32 pr., §§ I, 2 eod.2 Donations between parties betrothed (donatio ante * Cf. Jointure. nuptias, sponsalicia largitas, arra sponsalicia) were 1 If a husband should have given his wife an immoderate present on the first of March, or on her birthday, it is a donation; but if he should have incurred expenses that the wife would incur in order to maintain herself more honourably, the opposite is the case. 2 Since the condition of donations between husband and wife was such as we have before described, our august Emperor Antoninus, before the decease of his late father, Severus, under the consuls, Fulv., Aemil., and Numm. Alb., by a speech delivered in the Senate, caused it to decree that some abatement should be made in the stringency of the law. § But the speech of our Emperor upon the confirmation of gifts relates to all gifts made between husband and wife. § The speech says: It is right indeed for a donor to change his mind; but that an heir should snatch away the donation, perhaps against the last will of the donor, is hard and covetous.' ... subject to the ordinary rules of donation. From the time of Constantine nuptial presents can, however, as a rule be recovered in the event of the marriage not taking place, except (1) when this is due to the fault of the donor himself; (2) when the present was made by the sponsus, osculo interveniente,' and the betrothal has been dissolved by the death of one party, in which case a moiety shall remain with the bride or her heirs. Vat. fgm. 262: Sponsae res simpliciter donatae non insecutis nuptiis non repetuntur; set etsi adfinitatis contrahendae causa donationes factae sunt et nuntium sponsus culpa sua remiserit, aeque non repetuntur.—(Pap.)1 In the later imperial period the ante nuptias donatio' was developed into the special legal institution of a counter-dos (avripepva), i.e., into a counter-gift answering to dos, but remaining under the control of the husband, which gift he made to the wife for the object of marriage. After Justinian's enactment, which allowed it even during the coverture, it henceforth bears the name of propter nuptias donatio.' Inst. ii. 7, 3: Est et aliud genus inter vivos donationum, quod veteribus quidem prudentibus penitus erat incognitum, postea autem a iunioribus divis principibus introductum est, quod ante nuptias vocabatur et tacitam in se condicionem habebat, cum matrimonium fuerit insecutum : ideoque ante nuptias appellabatur, quod ante matrimonium efficiebatur et nunquam post nuptias celebratas talis donatio procedebat. Sed primus quidem D. Iustinus pater noster, cum augeri dotes et post nuptias fuerat permissum, si quid tale evenit, etiam ante nuptias donationem augere et 1 Things given informally to a bride, if the marriage do not follow, are not recovered; but although the gifts were made in view of contracting relationship, and the bridegroom is to blame for having sent a letter of divorce, they are not recovered all the same. BOOK III. a BOOK III. constante matrimonio permisit: sed nomen tamen inconveniens remanebat. . . . Sed nos . . . constituimus, ut tales donationes non augeantur tantum, sed et constante matrimonio initium accipiant, et non ante nuptias sed propter nuptias vocentur.1 Because of thefts committed by one spouse against the other originally alone by occasion of divorce— the Praetorian edict gives to the party defrauded, after dissolution of the marriage, the actio rerum amotarum, in place of the condictio furtiva, here inadmissible," Cf. D. 25, 2, which it resembled." 24. § 44. Rerum amotarum iudicium singulare introductum est adversus eam, quae uxor fuit, quia non placuit cum ea furti agere posse: quibusdam existimantibus, ne quidem furtum eam facere ut Nerva, Cassio, quia societas vitae quodammodo dominam eam faceret; aliis, ut Sabino et Proculo, furtum quidem eam facere, sicuti filia patri faciat, sed furti non esse actionem constituto iure, in qua sententia et Iulianus rectissime est: nam in honorem matrimonii turpis actio adversus uxorem negatur.-D. 25, 2, l. 1 (Paul.), 1. 2 (Gai.).' 1 There is also another class of gifts, inter vivos, which was altogether unknown to the old jurists, but was afterwards introduced by the later emperors, and used to be called ante nuptias (before the marriage), and embraced a condition that it should only hold good if the marriage was concluded. And so it was called ante nuptias, because it was effected before marriage, and such a gift was never made after its celebration. But as augmentation of the dowry had been allowed even after marriage, the late Emperor Justin, our father, was the first to permit by a constitution that, where anything of this kind happened, the gift ante nuptias might also be increased, even during the marriage; but the inappropriate name, nevertheless, was still kept up. But we . . . have enacted that such gifts may not only be increased, but may begin also during marriage, and shall be called, not gifts before marriage, but gifts on account of marriage. 2 A special action has been introduced in respect of stolen things against her that has been a wife, because it was deemed Ulp.: Res amotas dicimus non solum eas, quas mulier amovit cum divortii consilium iniisset, sed etiam eas, quas nupta amoverit, si cum discederet eas celaverit.-1. 17, § 1 eod.1 Gai. Rerum amotarum actio condictio est.1. 26 eod. Marcian. Rerum amotarum iudicium sic habet locum, si divortii consilio res amotae fuerint et secutum divortium fuerit; sed si in matrimonio. uxor marito res subtraxerit, licet cessat rerum amotarum actio, tamen ipsas res maritus condicere potest: nam iure gentium condici puto res ab his, qui non ex iusta causa possident.—1. 25 eod.3 LAW OF THE PROPERTY OF PERSONAE ALIENO $149. THE OLDER LAW. PECULIUM PROFECTICIUM AND CASTRENSE." BOOK III. a Cf. Anct. Law,' pp. 135 Filii familias and the same holds absolutely of 146. not well to be able to proceed against her for theft, as some thought that she does not at all commit a theft, as Nerva and Cass., because community of life would make her in some measure owner; others, as Sab. and Proculus, that she does in fact commit a theft, as the daughter commits it on her father, but that, according to the law in force, the actio furti does not apply; and of this opinion is Julian, quite rightly; for in honour of marriage an action against a wife involving infamy is withheld. 1 By stolen things we speak of not only those which a woman has stolen, having conceived the resolution of a divorce, but those also which she stole when married, if she concealed them when she was divorced. ⚫ 2 The action for things stolen is a condictio. The action for stolen things indeed obtains when things shall be stolen with the purpose of divorce, and a divorce shall have followed; but if the wife shall have taken things away from the husband during the marriage, although the action for stolen things falls through, the husband can sue for them by a personal action; for I suppose that by the i. g. he can claim things by condictio from those who have not possession thereof upon a legal title. a BOOK III. slaves-have no property of their own; what they acquire they acquire for the paterfam., who, however, ❝ §§ 20, 50, 112. as a rule, is not bound by them;a between them and the pat. fam., as well as between those subject to the same potestas, no legal transactions can be concluded and no obligation can exist. Gai. iv. 78: Nulla omnino inter me et eum, qui in potestate mea est, obligatio nasci potest.1 Ulp.: Inter patrem et filium contrahi emptio non potest.-D. 18, 1, 2 pr.2 The principle of the incapacity for ownership of persons under domestic subjection was, however, curtailed increasingly-in particular more de facto than de iure-by the gradual development of the law of 'peculia.' PECULIUM is separate property, de facto severed from the property of the paterfam. (or master), and intended for one subject to his potestas, which can be committed to the more or less free control of such. Ulp. Peculium' dictum est quasi pusilla pecunia sive patrimonium pusillum.-1. 5, § 3, D. h. t. (de pec. 15, 1).—Cels. : -Proculus ait . . . audisse se rusticos senes ita dicentes 'pecuniam sine peculio fragilem esse,' peculium appellantes quod praesidii causa seponeretur.-1. 79, § 1, D. de leg. III. 32. : Ulp. Peculium autem Tubero quidem sic definit, ut Celsus refert: quod servus domini permissu separatum a rationibus, dominicis habet 1 No obligation whatever can arise between me and a person under my power. 2 No sale can be contracted between a father and son. The word 'peculium' is, as it were, a small sum of money, or a small patrimony.-Proc. says . . . he has heard aged peasants speaking thus: Money without peculium is not to be depended on,' calling peculium that which was set aside for their support in need. |