CASE 136: The Deceitful Pater
D. 15.1.36 (Ulpianus libro secundo Disputationum)
In bonae fidei contractibus quaestionis est, [an] de peculio an in solidum pater vel dominus tenerentur: ut est in actione de dote agitatum, si filio dos data sit, an pater dumtaxat de peculio conveniretur.
ego autem arbitror non solum de peculio, sed et si quid praeterea dolo malo patris capta fraudataque est mulier, competere actionem: nam si habeat res nec restituere sit paratus, aequum est eum quanti ea res est condemnari(Ulpian in the second book of Disputations)
For good-faith contracts, it is questionable whether a pater (familias) or master is liable for the entirety (of a peculium debt) or only up to the limit of the peculium. Similarly, the issue has arisen in the action on dowry as to whether, if a dowry is given to a son (who is in his father’s power), the pater (familias) is liable only up to the limit of the peculium.
For my part, I think that an action lies not only on the peculium but also for anything in addition out of which the wife has been cheated and deceived through the intentional deceit (dolus malus) of the pater (familias); for if he possesses the property and is not prepared to surrender it, it is fair that he be found liable for its full value
1. Fraud (Dolus Malus). The general rule is discussed by Ulpian (D.
15.1.21 pr.): “With full justification the praetor included in the peculium anything that was not in it because of a masters dolus malus. We should consider it dolus malus if he takes away the peculium. But likewise if, to the harm of creditors, he allowed him (the holder of the peculium) to entangle the peculiums affairs, Mela writes that this was done with dolus malus. Again, if he thought that one (creditor) was about to sue him and diverted the peculium to another one, he is not free of dolus malus. But if he (simply) paid off one (creditor), I do not doubt that he is not liable, since payment was to a creditor and the (other) creditor could have been alert in protecting his own interests.” What does this passage suggest about the degree of care the pater must exercise in order to avoid liability for deceit? Note that the effect of dolus is to negate what the pater did in lowering the value of the peculium.2. Good-Faith Contracts and Dowries. Both these relationships impose a high standard of conduct on the parties to them, in the sense that dishonest behavior gave grounds for liability. If a son-in-power entered into a good-faith contract (such as a sale), why is the paters liability in full a matter for discussion? As to the right of a wife to recover a dowry after a marriages dissolution, see Chapter II.D.2. How might her position be prejudiced by the fact that her ex-husband was a son-in-power?