CASE 67: Fruits and Capital Gains
D. 23.3.10.1-3 (Ulpianus libro trigesimo quarto ad Sabinum)
(1) Si praediis inaestimatis aliquid accessit, hoc ad compendium mulieris pertinet: si aliquid decessit, mulieris damnum est.
(2) Si servi subolem ediderunt, mariti lucrum non est. (3) Sed fetus dotalium pecorum ad maritum pertinent, quia fructibus computantur, sic tamen, ut suppleri proprietatem prius oporteat et summissis in locum mortuorum capitum ex adgnatis residuum in fructum maritus habeat, quia fructus dotis ad eum pertineat.(Ulpian in the thirty-fourth book on Sabinus)
(1) If there was some increase to unappraised land (in the dowry), this goes to the wife’s benefit; if some decrease, the loss is the wife’s. (2) If slaves bear offspring, the profit is not the husband’s. (3) But the young of dowry animals go to the husband because they are counted as fruits (fructus), although his prior obligation is to make good the property; after substituting offspring in place of dead animals, the husband has the remainder as fruit, since the fructus of the dowry goes to him.
1. Fruits (Fructus). We briefly examined the concept offructus in Case 35. If the dowry is thought of as capital, the fructus is the “interest” generated from this capital—not necessarily in direct monetary form, however. For example, as section 3 of this Case indicates, if the dowry includes a herd of cattle, newborn calves are the “fruits” of the herd, to the extent that they are not required to maintain the herd; they can be sold, for instance. Many other examples are given in D.
22.1; the ordinary agricultural produce of a farm is a fairly obvious one, or the wood from a forest or the ore from a mine or the fleece from a sheep or the milk from a cow, but so too is the money obtained from leasing out a slave or a building. Why are the offspring of slaves an exception to this pattern? This was a very old anomaly in Roman law (Ulpian, D. 7.1.68, citing many early sources). In any case, anything legally classified as fruits goes to the husband, in theory as compensation for the expenses of marriage (Case 35).2.Roman"> Capital Gains. Contrasted with the fructus are changes in the value of the underlying capital, whether through market forces or otherwise; unless the dowry property was appraised (Case 36), the husband does not take the risk of these changes. Thus, if an unappraised slave in the dowry dies of natural causes, the wife's dowry is decreased by the slaves value; and conversely, if a sudden surge in land prices sends the value of a dowry farm soaring, the dowry is enriched. But the line between fructus and capital gains is often difficult to draw.
3. A Legacy. Suppose a third party leaves a legacy to a dowry slave; does the husband acquire the legacy? Pomponius (D. 23.3.65) seems to decide that he does unless the testator did not wish him to receive it, in which case it accrues to the dowry. Is this ruling consistent with the general principles of Roman dowry law?