CASE 71: Necessary Expenses
D. 25.1.4 (Paulus libro trigesimo sexto ad edictum)
size=1 color=black face="Book Antiqua">Et in totum id videtur necessariis impensis contineri, quod si a marito omissum sit, iudex tanti eum damnabit, quanti mulieris interfuerit eas impensas fieri.
sed hoc differt, quod factarum ratio habetur, etsi res male gesta est, non factarum ita, si ob id res male gesta est: itaque si fulserit insulam ruentem eaque exusta sit, impensas consequitur, si non fecerit, deusta ea nihil praestabit.(Paul in the thirty-sixth book on the Edict)
Necessary expenses are held to include everything for which, if the husband failed to do it, a judge will condemn him to pay the extent of his wife’s interest in these expenses being made. But there is this difference: account is taken of outlays even if the matter turned out badly, but account is taken of outlays not made only if the matter turned out badly for this reason (i.e., because of the failure to make them). Thus, if he propped up a collapsing apartment block and it (then) burned down, he is compensated (for the attempted repair); (but) if he did not do this and it burned down, he will not be responsible.
Hypothetical Situation.
In Sempronia's dowry, there is an apartment building that is in dire need of structural support. Can Seius, Sempronia's husband, recover his expenses if he pays for the support and (a) the building remains standing; (b) the building collapses anyway; (c) the building remains standing but is then consumed by a catastrophic fire? Conversely, if Seius does not pay for the building's support, is he liable for his wife's interest if (a) the building remains standing; (b) the building then collapses because of the lack of support; (c) the building is then consumed by a catastrophic fire?
1. What’s Necessary? On the basis of this passage, formulate a rule defining when the husband must spend money on the dowry property.
Propping up a collapsing building was probably a traditional example of a necessary expense; compare Tit. Ulp. 6.15: “Necessary expenses are those where the dowry will lose value unless they are made, for example, if someone repairs a dilapidated building.” What if the cost of propping up the building was more than the building was worth? From Cases 84 and 85, where necessary expenses are further discussed, we learn that the husband can offset necessary expenses against the value of the dowry; is he expected to use judgment about making such expenses, or can he just shift them all onto his wife?2. Catastrophic Fire. The Case speaks of the building burning down. The Romans often treat fires as catastrophic events that human planning and effort cannot prevent. In Latin, this is vis maior, “higher force,” similar to an “act of God”: for example, “events to which resistance is impossible, such as the deaths of slaves occurring without a persons intent or fault, incursions of brigands or enemies, ambushes of pirates, shipwreck, catastrophic fire (incendium), and flight by slaves not normally confined” (Gaius, D. 13.6.18 pr.). Even if the husband does not make necessary expenses on dowry property, he is not liable for the loss if the property is then destroyed by vis maior; the jurists apparently reason that the property would have been destroyed in any case. Is this position entirely convincing?
3. Cultivation and Preservation. Neratius, D. 25.1.16: “Above all, whatever expenses are incurred in order to harvest the fruits, although they are made also to cultivate and so are necessary not only to gather the fruits but also to preserve the property itself, (nonetheless) the husband pays them, and he has no deduction from the dowry on this account.” Why was this exception made? On the fruits (fructus), see Case 67.
Elsewhere Neratius explains (ibid. 15): “[A] husband should look after dowry property at his own expense. If it were otherwise, then the board given to dowry slaves, modest repairs of dowry buildings, and even the cultivation of land would lessen the dowry, since all these appear to be necessary expenses. But they are held to arise from the property itself, in such a way that you do not so much spend money on the property as you are held to profit less from it after these expenses are subtracted. It is not so easily determined in the abstract what expenses should be deducted from the dowry according to this distinction; but on a case-by-case basis they can be assessed from the kind and the extent of the expenses.” How sharply can the usual expenses of operating a farm be distinguished from deductible necessary expenses? Does it seem likely, for instance, that the husband would be allowed to deduct payment of taxes on dowry property? See Paul, D. 25.1.13 (no).