later Law an informal agreement (nuda pollicitatio) suffices; or by 'dicere.'" a BOOK III. Ulp. vi. I Dos aut datur aut dicitur aut § 117. promittitur.' Imp. Theod. Ad exactionem dotis, quam semel praestari placuit, qualiacumque sufficere verba censemus, sive scripta fuerint sive non, etiamsi (dictio vel) stipulatio in pollicitatione rerum dotalium minime fuerit subsecuta.-1. 6, C. de dot. prom. 5, 11= 1. 4, C. Th. eod. 3, 13.2 Paul. Accepti quoque latione dos constituitur, cum debitori marito acceptum feratur dotis constituendae causa.-1. 41, § 2, D. h. t.3 The dos passes into the husband's estate, but the wife has a legal expectancy in it, which is grounded Reversion. in the essence of dos as of property destined for the wife and the purposes of the marriage (res uxoria); and this is realised upon the dissolution of the marriage by virtue of the duty of restitution. Tryph. Quamvis in bonis mariti dos sit, mulieris tamen est.-1. 75, D. h. t.* The husband has discretionary disposition over the objects of dowry, with the exception of the 'fundus dotalis.' Ter. Possunt res in dotem datae plerumque alienari et pecunia in dotem converti.-1. 61, § I eod.' 1 A dowry is either given, or specified, or promised. For the enforcement of a dowry, the constitution of which has once been resolved upon, words of any kind shall suffice, written or verbal, although no (specification or) formal undertaking in respect of the promise of dotal property shall have followed. A dowry is constituted by acceptilatio also, when a discharge is given to the husband, debtor (of the wife), in order to constitute a dowry. Although the dowry forms part of the goods of the husband, it nevertheless belongs to the wife. Things given as dowry can generally be alienated, and the purchase-money transmuted into dowry. BOOK III. a Sc. Iulia de adulteriis. Ulp. Si dotalem quis servum manumisit, ipse patronus habetur et ad legitimam hereditatem admittitur.-D. 38, 16, 3, 2. Id. Ob res amotas vel proprias viri vel etiam dotales tam vindicatio quam condictio viro adversus mulierem competit, et in potestate (eius) est, qua velit actione uti.-D. 25, 2, 24.2 Gai. ii. §§ 62-3: Accidit aliquando, ut qui dominus sit, alienandae rei potestatem non habeat. -Nam dotale praedium maritus invita muliere per legem Iuliam prohibetur alienare, quamvis ipsius sit vel mancipatum ei dotis causa vel in iure cessum vel usucaptum; quod quidem ius utrum ad Italica tantum praedia, an etiam ad provincialia pertineat, dubitatur.3 Inst. ii. 8 pr.: Cum lex" in soli tantummodo rebus locum habebat, quae Italicae fuerant, et alienationes inhibebat, quae invita muliere fiebant, hypothecas autem earum etiam volente : utrisque remedium imposuimus, ut etiam in eas res, quae in provinciali solo positae sunt, interdicta fiat alienatio vel obligatio et neutrum eorum neque consentientibus mulieribus procedat, ne sexus muliebris fragilitas in perniciem substantiae earum converteretur." 1 If a person has enfranchised a dotal slave, he himself is regarded as patron, and is admitted to the legal inheritance. 2 Because of things purloined, either belonging to the husband or appertaining to the dowry, both a real action and a personal action against the woman are open to the husband, and he has it in his control which action he likes to employ. It sometimes happens that he who is owner has not the power of alienating a thing.—For by the l. Iulia a husband is restrained from alienating an estate appertaining to the dowry, against the wish of his wife, although it is his own, whether as mancipated to him for the purposes of dowry, or surrendered in court, or acquired by usus. But whether this rule relates alone to Italian or provincial lands also, is doubtful. Since the statute applied only to immovables which were Italian, and forbade alienations made without the wife's con He also has the benefit of the produce. : Ulp. Dotis fructum ad maritum pertinere debere aequitas suggerit; cum enim ipse onera matrimonii subeat, aequum est eum etiam fructus percipere.-1. 7 pr., D. h. t.' Pap. Partum dotalium ancillarum dotis esse portionem convenit.-1. 69, § 9 eod.2 Ulp. : -servus dotalis . . quod ex re mariti quaesiit vel ex operis suis, id ad maritum pertinet. -D. 15, 1, 19, 1.3 He is, however, responsible for omnis culpa." Paul. In rebus dotalibus virum praestare oportet tam dolum quam culpam, quia causa sua dotem accipit; sed etiam diligentiam praestabit quam in suis rebus exhibet.-1. 17 pr., h. t.1 Gai. Res in dotem datae, quae pondere numero mensura constant, mariti periculo sunt, quia in hoc dantur, ut eas maritus ad arbitrium suum distrahat et quandoque soluto matrimonio. eiusdem generis et qualitatis alias restituat.1. 42 eod.3 sent, and mortgages thereof even with her consent, we have effected a reform in both cases, so that an alienation or a charge is prohibited even of property situated on provincial soil, and neither shall take place, although there be consent of wives, lest the weakness of their sex be turned to the waste of their fortune. 1 Equity dictates that the revenue of the dowry should belong to the husband; for, since he bears the burdens of the marriage, it is fair that he take the revenues also. It is agreed that the offspring of slave-women appertaining to the dowry are a part of the dowry. 3 3 What a dotal slave has acquired by property of the husband, or by his own labours, belongs to the husband. In respect of dotal property, a man has to answer for both bad intention and negligence, because he receives the dowry on his own account; but he will also be responsible for such diligence as he displays in his own affairs. 5 Things given for dowry which pass by weight, number, measure, are at the risk of the husband; because they are given with the intention that he dispose of them at his discretion, and BOOK III. If things have been given for dos at an appraised value, they are accounted as sold in case the aestimatio has not taken place merely 'taxationis causa.' Imp. Alex. Quotiens res aestimatae in dotem dantur, maritus dominium consecutus, summae velut pretii debitor efficitur.-C. 5, 12, 5.1 Plerumque interest viri res non esse aestimatas idcirco, ne periculum rerum ad eum pertineat. -1. 10 pr. eod. Pap. Cum res in dotem aestimatas soluto matrimonio reddi placuit, summa declaratur, non venditio contrahitur.-1. 69, § 7 eod.3 § 147. THE DOS AFTER DISSOLUTION OF THE MARRIAGE. Notwithstanding that the husband becomes owner of the dos, he becomes so only for the purpose and duration of the marriage. After the dissolution thereof, he must as a rule restore the dos. The following principles operate in the classical Law with respect to this restitution. In the question as to whom the dos falls after dissolution of the marriage, we have to determine whether the marriage has been dissolved by the death of the wife. Ulp. vi. 4, 5 Mortua in matrimonio muliere dos a patre profecta ad patrem revertitur, quintis in singulos liberos in infinitum relictis penes at any time upon the dissolution of the marriage he must make over others of the same kind and quality. 1 Whenever things are valued and given as dowry, the husband acquires the ownership, and becomes only debtor, as it were, for the value of the whole. 2 In general it is the concern of the husband that the property be not valued, on this account, that the risk thereof may not attach to him. 3 When it has been settled that property given for dowry which has been valued should be restored upon the dissolution of the marriage, the value is alleged: there is no contract of sale. virum; quodsi pater non sit, apud maritum Or whether it occurred by the husband's death, or by divorce." Ib. § 6: Divortio facto si quidem sui iuris sit mulier, ipsa habet rei uxoriae actionem id est dotis repetitionem; quodsi in potestate patris sit, pater adiuncta filia habet actionem; nec interest adventicia sit dos, an profecticia. As regards the object of restitution, the dos has to be restored with all accessions, except the fruits. The fruits of the last dotal year are divided between husband and wife in the proportion of the duration of coverture. Imp. Iust. Itaque partus dotalium ancillarum, id est quae aestimatae non sunt, vel quae servi dotales ex quacumque causa, nisi ex re mariti vel operis suis adquisierint, ad mulierem pertinere. . . . Foetus autem iumentorum et omnium quae fructuum nomine continentur, ad lucrum mariti pertineant. . . . Sed et novissimi anni, in quo matrimonium solvitur, fructus pro rata temporis portione utrique parti debere adsignari.-C. 5, 13, l. un. § 9.3 1 If the woman die while the marriage lasts, a dowry which proceeded from the father reverts to the father, a fifth being left in the husband's hands for each child until exhausted.-An adventitious dowry, however, always remains in the hands of the husband. When a divorce takes place, the woman herself, if she be sui iuris, has the action for the wife's property, that is, recovery of the dowry; but if she be under her father's power, he has the action, the daughter being joined with him; and it is of no consequence whether the dowry is adventitious or profectitious. 3 Therefore the offspring of dotal slave-women, that is, of those who have not been valued, and that which dotal slaves have acquired upon any legal title whatever, save by the property of the husband or by their labours, shall belong to the But the young of beasts of draught, and all woman, . BOOK III. a Inf. Ulp. vi. 7. |