§ 81. In compensation, as it were, for the rigorous subordination of the wife in manu to her husband in proprietary matters, she is given just the same rights of succession on her husband's death as though she were a filiafamilias, i. e. she is counted, together with her children, as one of the 'sui heredes' of her husband (inf. §§ 96, 98). GAJ. Inst. II § 98: quam in manum ut uxorem receperimus, ejus res ad nos transeunt. Eod. IV § 80: Quod vero ad eas personas quae in manu mancipiove sunt, ita jus dicitur, ut, cum ex contractu earum agatur, nisi ab eo cujus juri subjectae sint, in solidum defendantur, bona, quae earum futura forent, si ejus juri subjectae non essent, veneant. (2) Marriage without Manus. Unlike the marriage with manus the free marriage of the Roman jus gentium produces, on principle, no effect on the wife's property. Both her antenuptial property and her antenuptial liabilities continue to be hers alone even after the marriage. Whatever she acquires during coverture by her own labour, by devolution, or otherwise, belongs to her alone. Her capacity of acquiring property is equal to that of her husband. Nor is she in any way inferior to him in regard to her power of dealing with her property: she has unrestricted authority to dispose of it in any manner she chooses. The husband has no sort of legal control over his wife's estate. If the wife chooses to entrust him with the management of her property (bona paraphernalia), he is thereby placed in the position of an agent whose duty it is to conduct the management in the interests of the wife and in accordance with her wishes (she can therefore revoke the authority at any time); but he can never claim to be entrusted with the management as a matter of right. In the free marriage of Roman law the principle of separate property is strictly applied. Not even death confers any right on the surviving husband or wife against the estate of the other. According to the civil law a free marriage does not give rise to any mutual rights of succession between husband and wife as such. It was only in later times that an indigent widow was allowed a limited claim against the property left by her husband, such claim being regarded in the light of Nor did the praetor intro True, there is in the maintenance, which she was thought entitled to demand even after § 81. the death of her husband (inf. p. 445). duce any essential alterations in the law. praetorian law a rule of mutual succession between husband and wife (bonorum possessio unde vir et uxor, inf. p. 441), but this rule only applies where none of the relations succeed to the inheritance. Even the most distant relation (provided he is entitled to succeed at all) excludes the husband from succeeding to his wife, and vice versa. There are only three rules of law which apply to free marriages and which affect the proprietary relations between husband and wife: (1) the husband is bound to maintain his wife, and generally speaking, to defray all the household expenses; (2) mutual gifts between husband and wife are void and may be recovered at any time (provided they are not merely another form of maintenance, but involve the making over of a substantial amount of property); if, however, the party who is entitled to claim back the gift, dies before or simultaneously with the donee, without having exercised his right, the gift becomes thereby valid ex post facto ('convalescit '); (3) husband and wife cannot sue one another for theft. If either of them commits a theft in view of an approaching divorce, the praetor grants the injured party a special action called the 'actio rerum amotarum' in lieu of the actiones furti. The object of this action is merely to recover compensation (i. e. it is an actio rei persecutoria). It is thus only a substitute for the condictio furtiva, and the penal action (actio furti) is not available. In other respects free marriages may be said to produce proprietary relations only in so far as they supply the occasion for certain juristic acts, more especially for the creating of a dos and a donatio propter nuptias. L. 8 C. de pact. (5, 14) (THEODOS. et VALENTIN.): Hac lege decernimus, ut vir in his rebus, quas extra dotem mulier 1 Thus the law treats a donatio inter virum et uxorem as though it were a mortis causa donatio (sup. p. 138). A donatio mortis causa is valid as between husband and wife, so that in this as in other respects donationes mortis causa § 81. § 82. habet, quas Graeci parapherna dicunt, nullam, uxore prohibente, habeat communionem, nec aliquam ei necessitatem imponat. L. I D. de donat. inter vir. et ux. (24, 1) (ULPIAN.): Moribus L. 28 § 2 eod. : . . . et sane non amare nec tanquam inter in- § 82. Dos. The husband has to bear the expenses of the matrimonial life. It is usual, however, to give the husband a so-called 'dos,' i. e. to make over to him some property intended as a contribution, on the part of the wife, towards the defrayal of such expenses (ad matrimonii onera ferenda), and intended also as a provision in the interests of the wife, she being entitled to recover the dos after the termination of the marriage. On the dissolution of the marriage the husband is bound on principle to restore the corpus of the dotal property. It is only the fruits which accrue during the marriage that he can claim absolutely as a contribution towards the charges of the marriage state. In substance therefore the dos is the property of the wife (res uxoria), the husband being only made owner during the continuance of the marriage. The effect of the agreement under which the dos is created is thus to modify the Roman principle of separate property, inasmuch as the practical result of the juristic act constituting the dos is to place part of the property of the wife (or of the property intended for the wife) under the control of the husband so long as the marriage relation subsists'. 1 Cp. Wendt, Pandekten, § 301; Kuntze, Cursus des Röm. Rechts, p. 625. As a rule it is the wife's father that provides the dos, just as with § 82. us it is the wife's father that provides the marriage portion. The right to demand a dos belongs to the wife, and never to the husband, but all the wife can require is that a dos shall be given, not to her, but to her husband. A daughter can call for a dos-as a last act of maintenance-from her father or from her paternal grandfather (as the case may be), quite regardless of agnatic relationship, solely on the ground of cognatio. A dos provided by a person in pursuance of a legal obligation to do so, is called a dos 'profecticia.' A dos provided by any other person (e. g. the wife herself or her mother) is called a dos adventicia.' A dos provided by a third party on an express condition confirmed by stipulatio that it shall be restored on the dissolution of the marriage, is called a dos 'recepticia.' As regards the form in which a dos is constituted, whatever the proprietary benefit which it is intended to confer on the husband (whether it be ownership, or usufruct, or any other right), such benefit may either be made over to him at once (dotis datio), or there may be a promise by stipulatio to make it over to him dotis causa at some future date (dotis promissio), or lastly there may be a simple promise to the same effect by the wife, or her debtor, or a male ascendant in whose power she is (dotis dictio)—the latter form being employed, in accordance with ancient custom, at the time of the betrothal. The law of Justinian-following in this matter a law of Theodosius IIprovided that any third party might, at any time, effectually bind himself by an informal undertaking to give a dos, the form of a stipulatio being no longer required. Thus, in Justinian's law a dos is either immediately given to the husband (dotis datio), or it is promised to him (dotis promissio and dictio). A valid promise to give a dos, in itself, constitutes the dos. The promise itself operates to augment the husband's property dotis causa by means of, and to the extent of, the obligation which it imposes on the promisor, so that, in fulfilling his promise, the promisor does not thereby constitute the dos, but rather discharges and satisfies a subsisting obligation. As soon as the dos is actually given to the husband, or as soon as the promise to give it is fulfilled, he (the husband) acquires a legal § 82 right of free disposition over all such res dotales as are conveyed to him in ownership. He has all the rights and remedies incident to ownership as such, including (amongst others) the right to alienate and to mortgage. In the eye of the law he is the owner of the dotal property, and no one else. The fact that he is, as a rule, under an obligation to restore the dos afterwards does not diminish the extent of his powers. But, though formally the dos belongs to the husband, in substance it is the wife's property (res uxoria). Hence it was that the lex Julia de adulteriis of the year 18 B.C. (which, in so far as it deals with this subject, is usually called the lex Julia de fundo dotali) prohibited the husband from alienating or mortgaging any fundus Italicus comprised in the dos. Justinian extended this prohibition to any fundus dotalis whatever. Not even the wife's consent can make a mortgage, or (according to Justinian's enactment) a sale, of the fundus dotalis by the husband valid. The object is to preserve the land intact for the wife to whom the dos will presumably revert. A mere personal claim for compensation against the husband, when the latter had alienated property, was considered sufficient as far as movables were concerned, but insufficient in the case of immovable property. When the marriage is dissolved, the husband is bound, as a rule, to restore the corpus of the dos. The fruits which he has taken in the meantime are his. Res fungibiles (sup. p. 228) must be restored in genere, i. e. the husband must give back the same amount of things of the same quality as he received. Res non fungibiles must be restored in specie, i. e. the husband must give back the identical thing which he received. If, by reason of the husband's act or default, the identical thing is not forthcoming; if, for example, he has alienated it, or if it has been deteriorated through his negligencehe is, however, only answerable for the diligentia quam suis rebus adhibere solet (cp. pp. 313, 319)-he is bound to pay compensation. 2 Just as the husband acquires full powers of disposition in regard to the res dotales where such res are conveyed to him in ownership, so in cases where he is given, by way of dos, not ownership, but, say, a usufruct or an obligatory right, he acquires full powers to exercise all the rights which form the object of the dos-so far of course as the rights conferred upon him are not limited by their own nature (as e. g. in the case of a usufruct, which, as far as the right itself is concerned, is inalienable). |