CASE 66: Equitable Ownership?

D. 23.3.75 (Tryphoninus libro sexto Disputationum)

Quamvis in bonis mariti dos sit, mulieris tamen est, et merito placuit, ut, si in dotem fundum inaestimatum dedit, cuius nomine duplae stipulatione cautum habuit, isque marito evictus sit, statim eam ex stipulatione agere posse.

(Tryphoninus in the sixth book of his Disputations')

Although the dowry is part of the husband’s property, it is still the wife’s. It was (thus) correctly held that if she placed into the dowry an unappraised farm, with regard to which she was protected by a stipulation for double its price, and this (farm) was then taken away from her husband (by its true owner), she can immediately sue on the stipulation. Further, it was in her interest that there be no eviction from dowry property; and since she is considered to suffer the evic­tion herself because she ceases to have it in the dowry, while the marriage lasts the husband has ownership but she is regarded as having the power of receiving financial advantage, even when her husband bears the burdens of the marriage itself.

1.      The Problem. The woman purchased a farm. Because of concern about its title (a frequent problem in Roman law, since there was no adequate land reg­istry), she took a stipulation from the seller that he would pay her double the purchase price if a true owner appeared and took the farm away She then placed the farm in her dowry Sure enough, the true owner showed up and evicted the husband from the farm.

2.      “Part of the Husband’s Property.” Tryphoninus begins by holding that the dowry is part of the husbands property (in the technical Roman expression, the dowry is in his bona, “goods”). Does he also own the dowry, at least for as long as the marriage lasts? The jurists occasionally write as though he did; a good example is Ulpian's discussion of the precise moment when dowry property “becomes the husband's,” fiunt mariti, in D. 23.3.7.3 and 9 pr. Usu­ally, this means a transfer of title to the husband (see Case 72). Further, he has very extensive powers of disposition with respect to the dowry property, al­though he always remains accountable for the dowry’s overall value (see Cases 84-89). Within wide limits, he can sell items from the dowry as he wishes or use dowry money for purchases, although the proceeds from such transactions remain in the dowry (see, e.g., Gaius, D. 23.3.54: “Property pur­chased with dowry money is regarded as dowry”); his wife, by contrast, can­not sell or give away items in the dowry (Diocletian and Maximian, C. 5.12.23, 8.53.21; A.D. 294). The husband can also manumit dowry slaves (Gordian, C. 7.8.7; A.D. 238-244). At the end of the marriage, if he is obliged to return all or part of the dowry, this does not occur automatically; his ex­wife or another entitled party (such as her pater familias) must sue for it (see Case 82). Above all, the jurists do not describe a husband's relationship to the dowry as fiduciary, in the sense that he is holding the dowry as a sort of trustee on her behalf; for example, even if a wife suspects that her husband is squandering or abusing her dowry, she cannot demand an immediate ac­counting from him but at best can only threaten divorce.

3.      “Still the Wife’s.” Nevertheless, the jurists also recognize that the wife had a real stake in the dowry, even if she could not examine her husband's stew­ardship until the marriage had ended. A good example is Pomponius, D. 24.3.10 pr.: “a daughter who was married and had a dowry that came from her father” (filia, quae nupta erat et dotem a patre profectam habebat); “have” (habere) is the usual Latin word for “own.” Ulpian refers to the dowry as her “quasi property” (quasipatrimomum: D. 11.7.16) or even “her own property” (proprium patrimomum: D. 4.4.3.5); and Paul (Sent. 4.1.1) states that a woman who receives her dowry after a marriage's end “is held to recover her own property” (proprium recipere videtur). Nor, in fact, was the wife's dowry counted when assessing the husband's wealth (Paul, D. 50.1.21.4). In classi­cal Roman law, there is a gradually growing recognition of the importance of the dowry to the wife both during and after a marriage. As Paul observes in Case 29, “It is in the public interest that womens dowries are secure, since they can marry because of them.” At issue, in this Case and in those that fol­low, is the extent to which Roman law successfully reconciled the wife's in­terests with the husband's.

4.      What If the Husband Goes Broke? One occasion when conflict between the interests of the two spouses can arise is when the wife has reason to believe that her husband is becoming insolvent and so may be unable to repay her dowry. She has no right to demand an accounting; but if the cause of her dis­tress is clear, she can demand that her husband provide security for return of the dowry, and if it becomes evident that his funds are insufficient, she can also sue for return of the dowry even while the marriage continues: Ulpian, D. 24.3.24 pr.-2 (with Scaevola, D. 24.3.65). Are her interests adequately protected?

5.      Back to the Problem. In light of the discussion above, does Tryphoninus's de­cision in this Case seem any clearer? Why is it that the wife, while her mar­riage continues, can sue the seller over the eviction?