CASE 36: Appraising the Dowry
D. 23.3.10 pr. (Ulpianus libro trigesimo quarto ad Sabinum)
Plerumque interest viri res non esse aestimatas idcirco, ne periculum rerum ad eum pertineat, maxime si animalia in dotem acceperit vel vestem, qua mulier utitur: eveniet enim, si aestimata sit et eam mulier adtrivit, ut nihilo minus maritus aestimationem eorum praestet.
quotiens igitur non aestimatae res in dotem dantur, et meliores et deteriores mulieri fiunt.D. 23.3.42 (Gaius libro undecimo ad edictum provinciale)
Res in dotem datae, quae pondere numero mensura constant, mariti periculo sunt, quia in hoc dantur, ut eas maritus ad arbitrium suum distrahat et quandoque soluto matrimonio eiusdem generis et qualitatis alias restituat vel ipse vel heres eius.
(Ulpian in the thirty-fourth book on Sabinus)
Usually it is in the husband’s interest that the property (in the dowry) not be appraised, so that the risk for it not fall on him, especially if he receives as dowry the animals or the clothing his wife uses. For if it was appraised and his wife (then) wore it out, the result will be that the husband is still liable for its appraised value. So, whenever unappraised property is given as dowry, both an increase and a decrease in value fall on the wife.
(Gaius in the eleventh book on the Provincial Edict)
When items in the dowry can be weighed, counted, or measured, they are at the husband’s risk, since they are given so that the husband may alienate them at his discretion; and when the marriage ends, he or his heir is to restore other property of the same kind and character.
1.New Roman"'> Appraisal. In the bargaining before marriage, one weapon on the brides side is appraisal (aestimatio), an agreement that sets a fixed value on an object in the dowry.
As Ulpian points out (D. 23.3.10.4), once the marriage has taken place, the effect of this agreement is somewhat like a sale: if the object is destroyed, even without the husband's fault, he is liable for its appraised value. (There are some exceptions to this liability, of minor concern here.) In this Case, Ulpian points out a potential trap for the husband. Why should he bear the cost when his wife wears out her dowry clothing, or when dowry animals die? In general, the appraisal must be honest at least on the husbands part (ibid. 12.1). The husband might also provide security for the dowry's return (Gaius, Inst. 3.125).2. Risk. This Case introduces the problem of risk (periculum) in dowry, the potential liabilities associated with the destruction or deterioration of dowry property. As Gaius observes, fungibles (things normally thought of as replaceable by substitutes; e.g., a sack of wheat or a sum of money) are not appraised because the husband is expected to return their replacements; hence they are held at his risk. What if they are accidentally destroyed before he can make use of them?