CASE 123: Obtaining a Daughter's Dowry

D. 15.3.7.5 (Ulpianus libro vicensimo nono ad edictum)

Si filius familias pecuniam mutuatus pro filia sua dotem dederit, in rem versum pa­tris videtur, quatenus avus pro nepte daturus fuit.

D. 15.3.8 (Paulus libro trigensimo ad edictum)

Et nihil interesse Pomponius ait, filiae suae nomine an sororis vel neptis ex altero filio natae dederit. idem ergo dicemus et si servus mutuatus fuerit et domini sui fil­iae nomine in dotem dederit.

D. 15.3.9 (lavolenus libro duodecimo ex Cassio)

Si vero pater dotem daturus non fuit, in rem patris versum esse non videtur.

(Ulpian in the twenty-ninth book on the Edict)

If a son-in-power borrowed money and gave a dowry for his daughter, (then) to the extent that the grandfather would have given (a dowry) for his granddaugh­ter, this is held to benefit his (the son’s) father. This view seems to me correct only if he gave it with the intent to conduct his father’s business.

(Paul in the thirtieth book on the Edict)

And Pomponius says it makes no difference whether he gives (a dowry) in the name of his daughter or sister or in the name of a granddaughter (of the paterfa­milias) from another son. So we will rule the same if a slave borrowed money and gave a dowry for the daughter of his master.

(Javolenus in the twelfth book from Cassius)

But if the father would not have given a dowry, it is not held to have benefited the father.

1.      Constitution of Dowry by Son-in-Power. How does it benefit a paterfamilias if his son-in-power uses borrowed money to create a dowry for his daughter? Do the jurists presume a strong social expectation that the grandfather would supply a dowry, to the extent that he is legally presumed to have planned to do so with his own money? On the social background, see also Case 32 and above all Ulpian, D.

2.      Limit on Borrowed Money. Ulpian in the first passage places a limit on how much borrowed money can be used for this purpose (“to the extent that...”). Is he suggesting that the womans father might also be expected to contribute to the dowry? Note the last sentence in the first passage. If the son was acting for his own sake in constituting the dowry, where does that leave the creditor and his claim?

3.      Extension of Principle. Paul, citing Pomponius, extends the principle to cover dowries for several other female relatives. Does this extension seem cor­rect? How much further would the jurists be willing to go, do you think?

4.      Slave Borrowing Money. Paul also applies the rule to the case of a slave who uses borrowed money to constitute a dowry for his masters daughter. Does this application seem easier or more difficult than the ones that precede?

5.      Javolenus’s Comment. What does the comment ofJavolenus in the third pas­sage seem to imply? That is, would we expect a specific declaration from the grandfather that he did not intend to furnish a dowry? Would it have to be earlier in date than the son's actions?