CASE 84: Retaining Necessary Expenses
D. 25.1.1.3 (Ulpianus libro trigesimo sexto ad Sabinum)
Inter necessarias impensas esse Labeo ait moles in mare vel flumen proiectas.
sed et si pistrinum vel horreum necessario factum sit, in necessariis impensis habendum ait. proinde Fulcinius inquit, si aedificium ruens quod habere mulieri utile erat refecerit, aut si oliveta reiecta restauraverit, vel ex stipulatione damni infecti ne committatur praestiterit,D. 25.1.2 (Paulus libro septimo ad Sabinum)
vel in valetudinem servorum impenderit,
D. 25.1.3 pr. (Ulpianus libro trigesimo sexto ad Sabinum)
vel si vites propagaverit vel arbores curaverit vel seminaria pro utilitate agri fecerit, necessarias inpensas fecisse videbitur.
(Ulpian in the thirty-sixth book on Sabinus)
Labeo says that necessary expenses include jetties built out into the sea or a river. But also if it was necessary to build a mill or a storehouse, he says this should be treated as a necessary expense. So Fulcinius says that if he repairs a collapsing building that it was useful for his wife to have, or if he brought abandoned olive orchards back into cultivation, or he paid (something) on the basis of a stipulation against causing threatened loss,
(Paul in the seventh book on Sabinus)
or he spent (money) on the health of slaves,
(Ulpian in the thirty-sixth book on Sabinus)
or if he planted vines or cared for trees or made plant nurseries of use to the farm, he is held to have made necessary expenses.
1. What’s Necessary? In Case 71, necessary expenses were described as those that the husband had to make in order to prevent the dowry from losing value.
Do all the examples that are mentioned in this Case strike you as falling into that category? For example, when is it “necessary to build a mill or a storehouse” or to bring “abandoned olive orchards back into cultivation”? Wouldn't these normally be thought of as long-term capital improvements rather than emergency expenses? With this Case, compare Paul, D. 25.1.12: “An arbiter (in settling a lawsuit over return of dowry) should not bother about moderate expenses on constructing buildings, on replanting and cultivating vines, and on the health of slaves. Otherwise, the trial will seem to be on administration of affairs rather than on dowry.” Paul's point is that the husband is not accurately described as administering the dowry on behalf of his wife, since he himself derives a profit from it and hence must pay for its upkeep. Can a rule be devised for separating ordinary operating expenses from “necessary” ones?2. Ransoming the Wife’s Relatives. If a husband uses dowry money in order to pay ransom to bandits who are holding one of his wife's relations, is this payment a necessary expense? See Ulpian, D. 24.3.21 (yes). “Relations” are necessarii, persons closely connected by ties of friendship or family. Would you have expected Ulpian's ruling, granted the definition of “necessary expense” used in this Case? What if the ransom payment is as large as the entire value of the dowry?
3. Paying for the Wife’s Funeral. Proculus (D. 24.3.60) considers the following case: A wife was still in the power of her father, who had provided her with a dowry. She died, and her father paid for her funeral. Can he seek compensation from her husband? Proculus says yes; indeed, he can sue immediately, even though the husband still has time left before he has to repay the dowry to the father.
This source clearly indicates that the husband was legally obliged to pay for his wife's funeral; but why? If the husband had no duty to maintain his wife during her lifetime (Case 60), why should he have an obligation to bury her? Should the funeral expenses be thought of as “necessary expenses,” such that the husband is liable via the dowry if he fails to make them (Case 71)? (Paul, Sent. 1.21.11, seems to take this line: “A husband can retain from the dowry what he spends on his wife's funeral.”) What if the husband objects that his father-in-law's outlays were extravagant? Eventually, a fairly elaborate law developed around this subject (D. 11.7.16-20, 22-30, 46.1). If the wife had no dowry, or if her husband had already returned it, he had no obligation to pay for her funeral except as a last resort; and under no circumstances was she ever obligated to pay for his. Would a husband also be liable for his wife's emergency medical expenses, if she survived?D. 25.1.5 pr., 2 (Ulpianus libro trigesimo sexto ad Sabinum)
(pr.) Quod dicitur necessarias impensas dotem minuere, sic erit accipiendum, ut et Pomponius ait, non ut ipsae res corporaliter deminuantur, ut puta fundus vel quod- cumque aliud corpus: etenim absurdum est deminutionem corporis fieri propter pecuniam. ceterum haec res faciet desinere esse fundum dotalem vel partem eius. manebit igitur maritus in rerum detentationem, donec ei satisfiat: non enim ipso iure corporum, sed dotis fit deminutio. ubi ergo admittimus deminutionem dotis ipso iure fieri? ubi non sunt corpora, sed pecunia: nam in pecunia ratio admittit deminutionem fieri. proinde si aestimata corpora in dotem data sint, ipso iure dos deminuetur per inpensas necessarias. hoc de inpensis dictum est, quae in dotem ipsam factae sint: ceterum si exstrinsecus, non imminuent dotem............................................................
(2) Sidos tota soluta sit non habita ratione inpensarum, videndum est, an condici possit id, quod pro impensis necessariis compensari solet. et Marcellus admittit condictioni esse locum: sed etsi plerique negent, tamen propter aequitatem Marcelli sententia admittenda est.
(Ulpian in the thirty-sixth book on Sabinus)
(pr.) As for the saying that necessary expenses reduce the dowry, this should not be interpreted to mean, as Pomponius also says, that the property is physically reduced, for instance, a farm or some other physical object; for it is ludicrous that physical loss occur because of money. But this will make the farm, or part of it, cease to be in the dowry. So the husband will continue to detain the property until he is satisfied (by receiving compensation for his necessary expenses), and the reduction that occurs by operation of law is not of the physical objects but of the dowry (itself).
Therefore, when do we concede that the dowry is (actually) reduced by operation of law? When the dowry consists not of physical objects but of money; for, in the case of money, reason permits a reduction. Hence, if appraised objects are given as dowry, by operation of law the dowry will be reduced through necessary expenses. This rule applies to expenses made on the dowry itself; but those made outside (the dowry) do not reduce the dowry....
(2) If the entire dowry has been repaid without taking expenses into account, we must examine whether a claim can be brought for what should be offset for necessary expenses. Marcellus concedes that a claim is appropriate. Although many deny this, the view of Marcellus should be allowed because of fairness.
1. How to Reclaim Necessary Expenses. The problem dealt with in the first part of this Case stems from a venerable rule: “necessary expenses reduce the dowry by operation of law (ipso iure).” What this rule apparently means is that these expenses are, at least in principle, immediately offset against the value of the dowry, even though this offset may not be realized until years later when the marriage ends. Where the wife's dowry consists entirely or partly of money, this rule meant that necessary expenses automatically reduced the dowry; that is, even though the money originally handed over had not been spent, the husband was entitled to take the appropriate amount as his own. The problem arose when the dowry consisted entirely of land or other physical objects, or when the money in the dowry ran out. How does Ulpian think this problem should be handled? Suppose, for instance, that the necessary expenses on a dowry farm had gradually grown until they equaled the total value of the farm; would the husband be obliged to wait until the marriages end before reclaiming these expenses? This specific problem is dealt with by Paul, D. 23.3.56.3, where the text, as preserved, seems to say that the property would cease to be in the dowry if the wife failed to pay off the expenses within one year; but scholars widely believe that this text was subsequently altered to give a nonclassical solution.
2. Final Settlement? At the marriages end, the husband (or his heir) is in a strong legal position in that he holds the dowry, while the wife is obliged to sue if the parties cannot settle amicably. In the course of this lawsuit, the husband's various retentions come into play, mainly as counterclaims. Normally, however, the husband also has available a separate action if he fails to raise one of his counterclaims. As the last part of this Case shows, this could well be untrue for necessary expenses, so that if the husband fails to raise them in the action for recovery of dowry, he may lose them as claims altogether.
Marcellus and Ulpian believe, as a matter of equity, that he should be able to sue separately; but Ulpian notes that most jurists reject this view. What might their reasoning have been? Were they concerned that husbands might try to reclaim necessary expenses even before the dowry was being returned? If so, what reasons can be given for this not being permitted?D. 25.1.5.3 (Ulpianus libro trigesimo sexto ad Sabinum)
Utiles autem impensae sunt, quas maritus utiliter fecit, meliorem uxoris fecerit, hoc est dotem,
D. 25.1.6 (Paulus libro septimo ad Sabinum)
veluti si novelletum in fundo factum sit, aut si in domo pistrinum aut tabernam adiecerit, si servos artes docuerit.
D. 25.1.8 (Paulus libro septimo ad Sabinum)
Utilium nomine ita faciendam deductionem quidam dicunt, si voluntate mulieris factae sint: iniquum enim esse compelli mulierem rem vendere, ut impensas in eam factas solveret, si aliunde solvere non potest: quod summam habet aequitatis rationem.
(Ulpian in the thirty-sixth book on Sabinus)
Useful expenses are those the husband made usefully, that improve the wife’s property, that is, the dowry,
(Paul in the seventh book on Sabinus)
for instance, if a plant nursery is constructed on a farm or if he adds a bakery or a shop in a house or if he teaches skills to slaves.
(Paul in the seventh book on Sabinus)
Some say that a deduction (from the dowry) should be made for useful expenses only if his wife was willing to have them made. For it is unfair that the wife be forced to sell property to pay expenses made on it if she cannot otherwise pay. This reasoning is eminently fair.
1. What’s Useful? How clear is the conception of useful expenses that underlies this Case? Can they be readily distinguished from necessary expenses? Other sources state that, unlike necessary expenses (which only keep up the property's value), useful expenses lead to an increase in the property's profitability. So, Paul, D. 50.16.79.1: “Fulcinius says that useful expenses are those that make the dowry better, not those that do not allow it to worsen; (that is, they are expenses) from which return is acquired for his wife” (compare Tit. Ulp. 6.16). Other examples, besides those given in this Case, are bringing forestland under cultivation, planting new vineyards or olive orchards, or constructing a storehouse. Can these all be characterized as long-term capital investments? How about educating or teaching skills to a slave? Ulpian (D. 25.1.14.1) gives the strangest example: placing cows on property in order to fertilize it; what might he be thinking of?
2. Compensation for Useful Expenses. Paul, in the fragment quoted in the previous paragraph, describes useful expenses as those “from which return is acquired for his wife.” This observation raises an important point: many such expenses should result in an increased income stream from the property, at least eventually. Under the rules of dowry, the husband acquires this income as “fruits” from the dowry (Case 67), but the wife has both a future interest in the increased income (since under many circumstances she will recover the dowry) and a present interest (to the rather limited extent that her maintenance is legally tied to the dowry income). Under these conditions, should the husband be compensated for expenses that seem likely to increase the dowry income? In this Case, Paul agrees with “some” jurists (perhaps a minority) who hold that the wife should pay for these expenses only if she had been consulted and was willing to have them made; this obviously means that if her husband wants compensation, he must first obtain her approval. In D. 50.16.79.1, Paul uses the same argument for this restriction: “It is wrong that a wife who is unaware or unwilling be burdened on their account, lest she be forced to lose her farm or slaves.” Why is Paul fearful that the wife might lose her property? Does this rule presuppose a novel theory of a husbands control over his wife's dowry?
3. Dissent? This Case gives the rule preferred by Justinian (C. 5.13.1.5e; A.D. 530). As Paul indicates, during the classical period other jurists may have felt that the wife should usually, or perhaps even invariably, compensate her husband for useful, as well as necessary, expenses. One such jurist may have been Ulpian, who holds (D. 24.3.7.16): “Plainly, if he necessarily constructs a new farmhouse or repairs an old one that has totally collapsed through no fault of his, he will have a claim for this expense; and likewise if he brings land under cultivation. For these expenses are either necessary or useful, and they give rise to the husbands lawsuit.” (See also Javolenus, in Case 87.) If Ulpian and Paul are in fact disagreeing (some scholars think that Ulpian's text was reworked by the Digest compilers), try to decide who has the better position. Among the things you should consider are the desirability of the wife's consent to any long-term improvements in her dowry property; the instability of the Roman marriage structure (high death rates and the ease of divorce), which may mean that the husband will not profit from long-term improvements; the husband's capacity to engage in embezzlement and other forms of opportunism, and the wife's limited means to prevent such misconduct during the marriage; and the perspective of public policy on all these issues. Should it matter whether the husband's “useful expenses” were reasonable, and whether they led in fact to increased income? How might the economic interests of husband and wife diverge when it comes to improvement of dowry property?
D. 24.3.8 pr. (Paulus libro septimo ad Sabinum)
Si fundus in dotem datus sit, in quo lapis caeditur, lapidicinarum commodum ad maritum pertinere constat, quia palam sit eo animo dedisse mulierem fundum, ut iste fructus ad maritum pertineat, nisi si contrariam voluntatem in dote danda declaraverit mulier.
D. 23.5.18 pr. (lavolenus libro sexto ex Posterioribus Labeonis)
Vir in fundo dotali lapidicinas marmoreas aperuerat: divortio facto quaeritur, marmor quod caesum neque exportatum esset cuius esset et impensam in lapidicinas factam mulier an vir praestare deberet. Labeo marmor viri esse ait: ceterum viro negat quidquam praestandum esse a muliere, quia nec necessaria ea impensa esset et fundus deterior esset factus. ego non tantum necessarias, sed etiam utiles impensas praestandas a muliere existimo nec puto fundum deteriorem esse, si tales sunt lapidicinae, in quibus lapis crescere possit.
D. 24.3.7.13-14 (Ulpianus libro trigesimo primo ad Sabinum)
(13) Si vir in fundo mulieris dotali lapidicinas marmoreas invenerit et fundum fructuosiorem fecerit, marmor, quod caesum neque exportatum est, mariti et impensa non est ei praestanda, quia nec in fructu est marmor: nisi tale sit, ut lapis ibi renascatur, quales sunt in Gallia, sunt et in Asia. (14) Sed si cretifodinae, argenti fodinae vel auri vel cuius alterius materiae sint vel harenae, utique in fructu habebuntur.
(Paul in the seventh book on Sabinus)
If the dowry includes a farm on which stone is cut, it is settled that the husband takes the profit from the quarry, since his wife obviously gave him the farm intending that its fruits go to the husband, except if the wife states a contrary aim in giving the dowry.
(Javolenus in the sixth book from Labeo’s Posthumous Writings)
A man had opened marble quarries on a dowry farm. After a divorce, it was asked who owned the marble that was cut but not removed, and whether the husband or wife should pay for expenses on the quarry. Labeo says the marble is the husband’s; but he denies that the wife must pay anything to her husband, since these expenses were not necessary and the farm became worse. I think that the wife must pay not only necessary but also useful expenses, nor do I think the farm worse if the quarries are such that the stone in them can increase.
(Ulpian in the thirty-first book on Sabinus)
(13) If a man discovered marble quarries on his wife’s dowry farm and he made the farm more profitable, the marble that was cut but not removed is the husband’s, nor must his expenses be paid (by the wife) since marble is not included in fruits unless it is such that the stone there is renewed, like some in Gaul and Asia. (14) But if there are clay beds, mines for silver or gold or any other substance, or sand pits, they will certainly be regarded as fruits.
1. A Babble of Sources? The juristic sources on marble quarries are not easy to follow, so don't worry if they seem contradictory. A number of questions are raised in these sources:
• Should quarried stone be considered part of the fruits of the dowry?
• Can a husband profit by extracting and selling stone from an already opened quarry on dowry land?
• lang=EN-US>May he open a new quarry and profit in a similar manner?
• Even if he is allowed to open a quarry, is he obliged to compensate his wife if the overall value of the land is lowered because of the quarry?
• Must his wife compensate him for his expenses in opening a new quarry?
• When stone is being extracted from the quarry, at what point does it become the husbands: when it is separated from the surrounding rock, or when it is actually removed?
As to each question, how much real disagreement is there between the various jurists? Why does Ulpian believe that there is a difference between marble quarries and such other extractions as clay from a clay bed, gold or silver from a mine, or sand from a sand pit? More generally, what kinds of legal problems do extractions of this type raise, and how are they different from the legal problems associated with ordinary agricultural production? If quarries seem a little remote to your experience, consider a husband who wishes to strip-mine a farm belonging to his wife. Can he both capture the profits from the mine and force his wife to repay him for the expense of opening it? Would that just rub salt in the wound?
2. A Red Herring? Pomponius, D. 23.3.32: “If, with his wife's approval, a husband sold stone from the quarries on a dowry farm or trees which were not fruits or the right to construct a building atop land (superficies'), the money from this sale is received for the dowry.” This evidently means that proceeds from the sale go to increase the dowry. Is the ruling consistent with our other sources on quarries?
3. Another Red Herring? Alfenus, D. 23.5.8: “At his wife's request, a man cut down an olive orchard on a dowry farm in order to establish a new one. Later he died and left the dowry to his wife as a legacy. He (the jurist Servius) responded that the wood that was cut from the olive orchard must be returned to the wife.” If he had not died, would the wood have belonged to him? How, if at all, is the wood different from the quarried stone in this Case?
4. Living Rock? The jurists were evidently the victims of a hoax.