BOOK III. Pt. I. Ch. 11. quia ignorari potest, quid acturae sint.-Immo tunc locus est senatusconsulto, cum scit creditor eam intercedere.-11. 11, 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.3 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. 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. 3 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 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. 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- flict of laws: ad init. • Notwithstanding 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, §§ I, s. v. Cf. 2, D. h. t. (de I. D. 23, 3).' 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. 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 condicionein non quaerit.-D. 23, 2, 19.1 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." manus the wife She is likewise capable of independent acquisition Corinner during the coverture; but here attaches the so-called marriage with could retain a portion of her property by ex- praesumptio Muciana. press reservation to herself, as peculium, is exceedingly doubtful. b 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.3 Imp. Theod. Hac lege decernimus, ut vir in his rebus quas extra dotem mulier habet, quas Graeci Tapápeρva 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. 2 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. Part II. bente habeat communionem ; . . nullo modo, BOOK ILI. Pomp. Quintus Mucius ait, cum in controver- A legally valid marriage is the natural requisite of every dos.a a D. 23, 3, 21; Gai. i. 64; D. Ulp. Dotis appellatio non refertur ad ea 50, 16, 101 pr.; matrimonia, quae consistere non possunt: neque enim dos sine matrimonio esse potest; ubicumque igitur matrimonii nomen non est, nec dos est.— 1. 3, D. h. t. A distinction is made between dos profecticia, that is, the dos which is given by the paternal ancestor, and dos adventicia, that is, such as is given by any other; whilst a subordinate species of the latter is the dos recepticia. 1 By this law do we decree that a husband without the consent of the wife has no share in such things as she holds over and above the dowry, which the Greeks call Tapá epva; . . . it is our will that a husband in no way meddle with the parapherna without the consent of the wife. 2 Q. M. says: If it become matter of dispute, from what quarter anything has come to the wife, it is both fairer and more honourable that we suppose, as to the source from which the wife holds it, since it is not proven, that it has come to her from her husband or one who was under his power; but Q. M. seems to have approved this view so as to eschew (the suspicion of) a dishonourable acquisition as regards the wife. 3 The designation 'dowry' is not applied to such marriages as cannot exist; for neither can there be a dowry without a marriage. Wherever, therefore, the word marriage' does not obtain, neither does' dowry.' . BOOK III. a Sc. mortua in matrimonio muliere. Cf. § 129. C. 4, 10, 2. Ulp. vi. 3, 5: Dos aut profecticia dicitur, id est quam pater mulieris dedit; aut adventicia, id est ea quae a quovis alio data est.-Adventicia autem dos, . . . si is qui dedit, ut sibi redderetura stipulatus fuerit, . . . . . specialiter recepticia dicitur.' Id. Sive igitur parens dedit dotem sive procurator eius sive iussit alium dare, sive cum quis dedisset negotium eius gerens, parens ratum habuerit profecticia dos est.-Si pater pro filia emancipata dotem dederit, profecticiam nihilominus dotem esse nemini dubium est, quia non ius potestatis, sed parentis nomen dotem profecticiam facit: sed ita demum si ut parens dederit; ceterum si, cum deberet filiae, voluntate eius dedit, adventicia dos est.-1. 5, §§ 1, 1 1, D. h. t.2 The dos is created as soon as the husband's property has been increased 'dotis nomine.' The constitutio of the dos comes about either by dare,' that is, immediate transfer of the object of dowry (corporeal thing, ius in re, claim) to the ownership of the husband; or by 'promittere,' that is, by creation of a claim against the party constituting, to which a stipulatio was necessary in the classical Law, but in the с 1 A dowry is said to be either 'profectitious,' i.e., one given by the father of the woman; or adventitious,' i.e., one given by somebody else. An adventitious dowry, however, if the a I.e., upon the donor stipulated for its return to him, is called specifically ' receptitious.' death of the woman during coverture. 2 If, therefore, the father or his agent has given the dowry, or has directed another to give it, or if the father, when any one who conducts his affairs had given it, has confirmed this, the dowry is profectitious.-If a father shall have given a dowry for his daughter when emancipated from his power, no one has a doubt that the dowry is none the less profectitious, because it is not the right of paternal power, but the name of the father, that makes the dowry profectitious; but only when he shall have given (the dowry) as father; if, however, when he was indebted to the daughter, he gave it according to her will, it is an adventitious dowry. |