CASE 30: Giving the Dowry
Tituli ex Corpore Ulpiani 6.2
Dotem dicere potest mulier quae nuptura est et debitor mulieris, si iussu eius dicat: item parens mulieris virilis sexus per virilem sexum cognatione iunctus, velut pater avus paternus.
Dare promittere dotem omnes possunt.D. 23.3.5 pr.-4 (Ulpianus libro trigesimo primo ad Sabinum)
(pr.) Profecticia dos est, quae a patre vel parente profecta est de bonis vel facto eius.
(1) Sive igitur parens dedit dotem sive procurator eius sive iussit alium dare sive, cum quis dedisset negotium eius gerens, parens ratum habuerit, profecticia dos est.
(2) Quod si quis patri donaturus dedit, Marcellus libro sexto Digestorum scripsit hanc quoque a patre profectam esse: et est verum. (3) Sed et si curator furiosi vel prodigi vel cuiusvis alterius dotem dederit, similiter dicemus dotem profecticiam esse. (4) Sed et si proponas praetorem vel praesidem decrevisse, quantum ex bonis patris vel ab hostibus capti aut a latronibus oppressi filiae in dotem detur, haec quoque profecticia videtur.
(Excerpts from Ulpian’s Writings)
A woman who is about to marry can unilaterally promise a dowry (dicere dotem), and (so too can) the woman’s debtor if she orders him to promise; likewise, the woman’s male ascendant who is related in the male line, for example, a father or paternal grandfather; (but) all persons can give or formally promise a dowry (for a woman).
(Ulpian in the thirty-first book on Sabinus)
(pr.) A dowry is “profectitious” (profecticia) when it has “traveled” (profecta est) from the property or from a transaction of a (wife’s) father or (other) male ascendant. (1) So the dowry is profectitious if the ascendant gave the dowry or if his procurator (did so) or if he ordered a third party to give it or if the ascendant ratified the gift of someone who was managing his affairs. (2) So if the giver wished to make a gift to the (bride’s) father, Marcellus in the sixth book of his Digests wrote that this too “traveled” from the father, a view that is correct. (3) Again, if the curator of a lunatic or a prodigal or of anyone else gives the dowry, we will similarly term this a profectitious dowry (4) But suppose that a praetor or (provincial) governor judicially ruled on how much should be given as a dowry from the property of a father who had been either captured by the enemy or kidnapped by bandits; this too seems profectitious.
1. Who Can Create a Dowry, and How? In part, this Case deals with some technical details that are important to Roman law but of scant modern interest. The first fragment describes three ways to make a dowry: first, by a unilateral declaration (dictio dotis), which could be given only by the woman (or her debtor on her order) or by an agnate ascendant; second, by handover of property; or third, by a formal promise, a contract called a stipulation, in which, typically, the promisee asks, “Do you promise to give me 50,000 sesterces as a dowry?” and the promisor answers, “I promise.” The second two forms can be used by anyone, and dowries were sometimes created for poor women by wealthy relatives, friends, or patrons. However, by far the most common source of a dowry was the bride herself (if she was sui iuris) or her paterfamilias. Does this fact help to explain why a slightly less formal procedure was permitted in their case?
2. “Profectitious” and “Adventitious” Dowries. For reasons that have to do less with the form or content of the dowry than with what happens to it when the marriage ends (see Cases 81-82), the jurists distinguish between two main types of dowry.
A “profectitious” dowry (dos profecticia) comes from a woman's paternal ascendant (usually her father and pater familias, but the same rules would apply even if she were emancipated); its main characteristic is that it can be reclaimed if a wife predeceases her husband. An “adventitious” dowry (dos adventicia) comes from any other source (including the woman herself), and upon the wife's death the giver can reclaim it only if this had been specified at the time of the dowry's creation; otherwise, it remains with the husband. Why should male ascendants have been privileged in this way? Pomponius (D. 23.3.6 pr.) tries to explain: “Legal help is given to the father to comfort him for his lost daughter by returning the dowry that came from him, so that he not suffer the loss of both his daughter and his money.” Convinced?3. “Traveling.” Dowries were often the subject of protracted negotiation, and they took an almost infinite variety of forms. Almost any form of property could be in a dowry, but cash and land (particularly farms) were probably the most common. The profectitious dowry is interesting because it had to “travel” (derive) from the male ascendant's substance (his property or his transaction); that is, he had to be financially worse off because of the dowry. This Case illustrates some of the possibilities. Where the pater familias ordered someone else to give the dowry, he obligated himself to pay the third party; hence the dowry derives from his substance. Does the same logic apply in the case of the redirected gift (section 2)? In section 4, the pater does not even know that the dowry was created. Applying the logic of this Case, in which of the following situations does the dowry derive from the giver's substance?
• The brides father inherits an estate but declines it so that the estate can go to the groom, who has been named as substitute heir (Ulpian, D.
23.3.5.5).• A father provides a dowry for his adopted daughter (ibid. 13).
• A third party gives money to the father with instructions that it is to be used for the dowry (ibid. 9).
4. Suing Your Father-in-Law. If a brides father has promised a dowry, can her husband sue for it? And if so, must the father pay the full amount or only what he is financially able to pay? Does it matter whether the couple are still married? All this was the subject of an unusually lively controversy among the jurists: Labeo/Paul, D. 23.3.84; Pomponius, D. 42.1.22 pr.; Paul (citing Ner- atius and Proculus), D. 24.3.17 pr.; Paul (citing Neratius), D. 42.1.21. Why might such questions have caused dissension? Can it be argued that the brides father should enjoy special privileges?