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.2 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. at any Ulp. vi. 4, 5: Mortua in matrimonio muliere dos a patre profecta ad patrem revertitur, quintis in singulos liberos in infinitum relictis penes 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.2 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, 1. 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 woman. . . . But the young of beasts of draught, and all BOOK III. a Inf. Ulp. vi. 7. 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.'b 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 Utiles non quidem minuunt ipso iure dotem, 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. quius melius.' § 139. ea autem quae praesens reddi solet, tantum ex fructibus iubetur reddere, quantum in illa dote, quae triennio redditur, repraesentatio facit.1 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.a 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. |