CASE 29: Marriage, Dowry, and Public Policy
D. 23.3.1 (Paulus libro quarto decimo ad Sabinum)
Dotis causa perpetua est, et cum voto eius qui dat ita contrahitur, ut semper apud maritum sit.
D.
23.3.2 (Paulus libro sexagesimo ad edictum) (= Paulus, D. 42.5.18)Rei publicae interest mulieres dotes salvas habere, propter quas nubere possunt.
D. 23.3.3 (Ulpianus libro sexagesimo tertio ad edictum)
Dotis appellatio non refertur ad ea matrimonia, quae consistere non possunt: neque enim dos sine matrimonio esse potest. ubicumque igitur matrimonii nomen non est, nec dos est.
(Paul in the fourteenth book on Sabinus)
A dowry’s purpose is permanent, and in accord with the giver’s wishes, it is so arranged that it remain forever with the husband.
(Paul in the sixtieth book on the Edict)
It is in the public interest that women’s dowries are secure, since they can marry because of them.
size=1 color=black face="Book Antiqua">(Ulpian in the sixty-third book on the Edict)
The term “dowry” is not used for marriages that cannot arise (because they are illegal), since there can be no dowry without (legal) marriage. So whenever the word “marriage” is not applicable, neither is “dowry.”
1. The Nature of Dowry.
Dowries are unfamiliar in the modern Western world, but these three fragments, which begin the Digest title on dowries, make some fundamental points that should help you to understand them. A dowry is a contribution from the wife's side to the husband. It is given with the expectation that it will (or at least may) remain permanently with the husband, but it is also commonly intended in some sense to benefit the wife. Finally, dowries are integrally associated with marriages: they are almost always created during the marriage process, and they depend on the marriage for their validity. These principles will play out in the Cases that follow. Why would the custom of giving a dowry arise in the first place?2. “Since They Can Marry Because of Them.” What does Paul mean by saying that dowries must be secure because women need them in order to marry? Does he mean that a dowry helps a woman to enter her first marriage, or does he mean that it may help her in the future to enter subsequent marriages? In either case, why is there a public interest in this? What other benefits might the wife hope to receive from a dowry? With this Case, compare Pomponius, D. 24.3.1: “It is in the public interest that dowries be preserved for women, since for the procreation of offspring and the replenishment of the state with children, it is emphatically necessary that women have dowries.” How evident is the link between dowry and procreation?
3. Limits on the Freedom of the Parties. One reason the law of dowry is so complicated is that the parties had wide-ranging, though by no means unlimited, freedom to shape details of the dowry as they wished. Only when arrangements challenged the basic nature and purposes of dowry did their validity come into question.
Here are some examples of invalid agreements:• When the marriage ends, the dowry will not be returned under any circumstances to the wife (Paul, D. 23.4.16; see ibid. 12.1).
• In returning the dowry, the husband can delay beyond the usual legal time limits for its return (D. 23.4.14-18).
• If there are children, then no matter how the marriage ends, the entire dowry will remain with the husband; this is invalid if the marriage ends through the husbands death (Ulpian, D. 23.4.2).
• The land that the wife has placed in her dowry is subject to the condition that her husband will return any fruits from the land to the dowry; this is invalid in most circumstances (Ulpian, D. 23.4.4, because it infringes on the purpose of dowry; why?).
• The husband, in administering the dowry, is liable for nothing but his deliberate misconduct, dolus (Ulpian, D. 23.4.6).
• The husband cannot retain a portion of the dowry in the event of his wife's marital misconduct (Paul, D. 23.4.5 pr.).
• The husband cannot sue for necessary expenses in maintaining the dowry, “because by operation of law such expenses reduce the dowry” (Paul, D. 23.4.5.2; see Case 85).
In each instance, try to figure out what it is about the particular agreement that is legally offensive. How closely regulated was the dowry relationship? Could individual parties have had good reasons for wishing to depart from some of the set guidelines?
4.size=1 face="Times New Roman"> How Much? As we will see, the jurists often associate dowry with the wife's maintenance during marriage.
Hence, depending on her social status, a dowry could be quite hefty, though the exact amount was subject to negotiation and depended on the relative power of the two families; but legal and other sources indicate that the practice of giving dowries occurred even when the couple's families were relatively poor. Dowries, although regarded as burdensome, seem typically to have amounted to only about one year's household income for the bride's family, rather than the three to five years' incomethat was common in early modern Europe. Still, a dowry often represented a substantial transfer of assets from one family to another, and because it usually required dipping into capital, givers often found it difficult to raise the sums involved; cash payments, for instance, were normally allocated over a number of years in order to ease the hardship. The same problem also arose, naturally enough, when a husband later had to return the dowry to the giver, and much the same solution was adopted (Tit. Ulp. 6.8).