BOOK III. a Not to be confounded with those named in Ulp. vi. 4, 5, supr. ¿§ 90. -in fructibus a viro retinendis neque dies dotis constitutae neque nuptiarum observabitur, sed quo primum dotale praedium constitutum est, i.e. tradita possessione. Si ante nuptias fundus traditus est, ex die nuptiarum ad eundem diem sequentis anni computandus annus est.-1. 5 (Ulp.), 1. 6 (Paul.), D. h. t. (=sol. matr. 24, 3).' The husband, however, is allowed certain deductions from the dos in case the marriage is dissolved by divorce for which the wife is to blame, 'propter liberos' and 'propter mores;' in all other cases only 'propter res donatas, amotas' and ' propter impensas." Ulp. vi. 10, 12: Propter liberos retentio fit, si culpa mulieris aut patris, cuius in potestate est, divortium factum sit: tunc enim singulorum liberorum nomine sextae retinentur ex dote, non plures tamen quam tres.-Morum nomine graviorum quidem sexta retinetur, leviorum autem octava; graviores mores sunt adulteria tantum, leviores omnes reliqui." Inst. iv. 6, § 37: Propter retentionem quoque dotis repetitio minuitur: nam ob impensas in res that has to be reckoned as fruits, shall belong to the husband. But the fruits of the last year in which the marriage is dissolved must be assigned to both parties according to apportionment of time. 1-in respect of the fruits to be retained by the husband, regard will not be had either to the day when the dowry was constituted or to that of the wedding, but to that on which the dotal estate was constituted, that is, when there was delivery of possession.-If there was delivery of the estate before the wedding, the year is to be reckoned from the wedding-day to the same day in the following year. 2 Retention is made on account of children if the divorce have occurred through the fault of the woman, or of her father, under whose power she is; for then a sixth part is retained from the dowry on behalf of the several children.-A sixth is retained on account of gross immorality, an eighth for that of a lighter sort. Adulteries alone constitute gross immorality: all other is the lighter. dotales factas, marito retentio concessa est, quia Ulp. quod diximus, ipso iure dotem. Utiles non quidem minuunt ipso iure dotem, verumtamen habent exactionem.-Utilium nomnine ita faciendam deductionem quidam dicunt, si voluntate mulieris factae sint ; . . . quod summam habet aequitatis rationem.-D. 25, 1, 1. 7, § 1 (Ulp.), l. 8 (Paul.).3 In respect of the time for restitution, a difference arises between fungibles and other objects. Ulp. vi. 8: Dos si pondere numero mensura contineatur, annua bima trima die redditur, nisi ut praesens reddatur, convenerit; reliquae dotes statim redduntur.' Crimes of the husband which have given occasion to the divorce are punished by a curtailment of the time allowed for restitution and by deduction from the fruits that have been taken." Ib. § 13: Mariti mores puniuntur in ea quidem dote, quae annua die reddi debet, ita ut propter maiores mores praesentem dotem reddat, propter minores senum mensium die; in The recovery of the dowry is also reduced by reason of retention; for a retention is allowed the husband for outlay incurred in respect of the dotal property, because a dowry is ipso iure reduced by necessary outlays. 2 Our statement, that a dowry is reduced by expenses, must not be applied to single bodies, but to the aggregate. 3 Useful outlays do not in fact by operation of law reduce the dowry, but nevertheless command recovery.-Some say that a rebate must be made on the score of useful outlays, if they were incurred by desire of the wife; . . . and this has the highest reason of equity. If the dowry consist of things that pass by weight, number or measure, it is restored by instalments at the end of one, two and three years, save as there has been an agreement for its summary restitution. Other dowries are restored forthwith. BOOK III. Part 11. a § 106. BOOK III. a § 47. b с quius melius.' c § 139. ea autem quae praesens reddi solet, tantum ex fructibus iubetur reddere, quantum in illa dote, quae triennio redditur, repraesentatio facit.' с A legal liability of the husband in respect of restitution of the dos was not recognised or further developed until the sixth century U.C.-with the upgrowth of capricious and frivolous divorces." The action for demand of restitution of the dos was the intransmissible actio rei uxoriae (de dote),' an actio quantum ae- bonae fidei with condemnatio in id quod facere potest.' Simultaneous special stipulations as to Dowry (cautiones rei uxoriae) in respect of restitution were also usual, from which, after dissolution of the marriage, the actio ex stipulatu' belonged to the wife (or the stipulator) and her heirs; by which also, consequently, after development of the action of Dowry, the right of the wife to recovery was strengthened, and was released from the limitations attaching to it in the actio rei uxoriae.' For, apart from the transmissibility of the action, the stipulation contracted was alone decisive in respect of the conditions and mode of the restitution, so that the distinction to which we have first adverted was without importance, and the delay in respect of restitution (partly also the retentiones) was discontinued. Paul. ad Sab.: Dotis causa perpetua est et cum voto eius, qui dat, ita contrahitur, ut semper apud maritum sit.-D. 23, 3, 1.2 Gell. iv. 3 Memoria traditum est, quingentis 1 The immorality of a husband is punished, in the case of a dowry which must be repaid by annual instalments, by his having to restore it at once for the greater immorality, in six months for the lighter immorality. In the case of that which it is usual to restore summarily, he is ordered to restore as much out of the profits as represents full payment in respect of a dowry which is returnable in three years. The appointment of dowry is of a lasting character, and by the wish of the donor it is so constituted as always to be in the hands of the husband. fere annis post Romam conditam nullas rei uxoriae Ulp. vi. 7 Post divortium defuncta muliere a BOOK III. Part 11. Justinian a blended the rei uxoriae actio and the C. 5, 13, l. un. actio ex stipulatu in such manner that thenceforth invariably, even if the restitution of the dos was not specially stipulated for, only the latter action should obtain, but that it should have the character of a bonae fidei actio; moreover, the wife by reason of her dotal claim acquired a highly privileged legal pledgeright in the husband's property. The retentiones ex § ror, ad fin. ; § 102. dote' are no longer permissible." As regards the For the imreversion of the dowry itself-unless there was an pensae necesexpress stipulation that it should remain with the iv. 6, 37, supra. husband-it must henceforth be restored to the wife (or to her father, if she is under patria potestas), or in case she have died, to her heirs (or the dos profecticia to the parens); except when the marriage has been dissolved by divorce chargeable to the wife. 1 It has been handed down by memory that for almost five hundred years after the foundation of Rome there were neither actions nor guaranties in respect of property of wives, in the city of Rome or in Latium; because at first there was no desire for them, as not even did divorces then exist. And Serv. Sulp., in the book he composed upon dowries, wrote that guaranties first appeared necessary when Sp. Carv. . . . made his divorce. If the woman die after the occurrence of a divorce, an action is not given to her heir unless the husband have incurred delay in restoring the dowry to her. sariae, see Inst. BOOK III. l'art II. a D. 39. 5, 24, 1, 31, 4.- Restitution ensues immediately in immovables, after a year in movables. Inst. iv. 6, 29: Fuerat antea et rei uxoriae actio ex bonae fidei iudiciis: sed cum pleniorem esse ex stipulatu actionem invenientes omne ius, quod res uxoria ante habebat, cum multis divisionibus in ex stipulatu actionem, quae de dotibus exigendis proponitur, transtulimus, merito rei uxoriae actione sublata, ex stipulatu, quae pro ea introducta est, naturam bonae fidei iudicii tantum in exactione dotis meruit, ut bonae fidei sit. Sed et tacitam ei dedimus hypothecam : praeferri autem aliis creditoribus in hypothecis tunc censuimus, cum ipsa mulier de dote sua experiatur, cuius solius providentia hoc induximus.' § 148. GIFTS BETWEEN SPOUSES. DONATIO PROPTER NUPTIAS. RES AMOTAE. Donations between spouses were from ancient times forbidden, as contravening the moral nature and object of marriage." Ulp.: Moribus apud nos receptum est, ne inter virum et uxorem donationes valerent; hoc autem receptum est, ne mutuo amore invicem spoliarentur donationibus non temperantes, sed profusa 1 Formerly the action to enforce restitution of the wife's property also belonged to bonae fidei actions; but when, finding the action upon a stipulation more comprehensive, we transferred all rules which formerly availed as to a wife's property, with many distinctions, to the action upon a stipulation which is given for the recovery of the dowry, the action for the recovery of the wife's property being very properly abolished, the action upon a stipulation, introduced in its place, acquired the character of a bon. fid. action in respect of the recovery of a dowry, only provided that it be bon. fid. But we have also given her an implied mortgage; we have, however, decreed that she shall have precedence of other mortgagees only when she herself is suing for her dowry, as it is for her protection alone that we have made this provision. |