CASE 88: Luxury Expenses
D. 25.1.9 (Ulpianus libro trigesimo sexto ad Sabinum)
Pro voluptariis impensis, nisi parata sit mulier pati maritum tollentem, exactionem patitur.
nam si vult habere mulier, reddere ea quae impensa sunt debet marito: aut si non vult, pati debet tollentem, si modo recipiant separationem: ceterum si non recipiant, relinquendae sunt: ita enim permittendum est marito auferre ornatum quem posuit, si futurum est eius quod abstulit.(Ulpian in the thirty-sixth book on Sabinus)
For luxury expenses, unless the wife is ready to permit their removal by her husband, she faces a demand for repayment (of their cost). For if the wife wishes to have them, she should return to her husband what was spent (on them); but if she does not want them, she should allow their removal, provided their separation is feasible. But if this is not feasible, they must be left; for the husband is allowed to take away the decoration he put up only if what he took will be his.
1. What’s Luxury? The final category of expenses are those that, as Tit. Ulp. 6.17 puts it, neither worsen the dowry nor make it more profitable but only make the dowry property more pleasing. Paul (D. 50.16.79.2) gives as examples the installation of gardens, fountains, wall paneling and revetments, and pictures; Ulpian (D. 25.1.14.2) adds the construction of baths. All these were normal amenities of upper-class dwellings.
2.size=1 face="Times New Roman"> The Right to Remove.
As a general rule, the husband cannot receive compensation for luxury expenses, even if his wife consents to them. Ulpian, D. 25.1.11 pr.: “Aristo writes that even if they are made with the wife's approval, repayment of luxury expenses cannot be demanded.” Why should this be true, if the wife wanted the decorations and will enjoy them after the marriage has ended and the dowry has been returned to her? In this Case, Ulpian describes an exception: the husband may insist that his wife permit removal of the decorations; and she must then either permit removal or pay their cost. This remedy will work only if they are removable without damage to the structure and are usable after removal (compare Paul, D. 24.1.63: on the wife's removing her property that has become attached to that of her husband). Is this exception sufficient to protect the husband?3. Saleability. If a house is redecorated in order to make it more saleable, is that a luxury expense? See Paul, D. 25.1.10 (no; it's useful). Explain the result.