CASE 31: The Bride Gets Cold Feet
D. 23.3.21 (Ulpianus libro trigesimo quinto ad Sabinum)
Stipulationem, quae propter causam dotis fiat, constat habere in se condicionem hanc “si nuptiae fuerint secutae,” et ita demum ex ea agi posse (quamvis non sit expressa condicio), si nuptiae, constat: quare si nuntius remittatur, defecisse condicio stipulationis videtur
D.
23.3.22 (Paulus libro septimo ad Sabinum)et licet postea eidem nupserit, non convalescit stipulatio.
(Ulpian in the thirty-fifth book on Sabinus)
class=a3 style='text-indent:0cm;line-height:125%'>It is settled that a stipulation made for dowry purposes contains the implicit condition “if the marriage occurs,” and so it is also settled that although the condition was not expressed, a lawsuit can be brought on it only if the marriage occurs. So if the messenger is sent back (and the marriage thereby called off), the stipulation’s condition clearly failed,(Paul in the seventh book on Sabinus)
and although she afterward marries the same man, the stipulation does not revive.
1. Stipulating for a Dowry. In this Case, someone—most likely, the bride-to- be's father—has formally promised a dowry to the groom before the marriage. Obviously the givers of a dowry usually prefer a promise rather than an immediate transfer, since they can then wait until the marriage actually takes place before fulfilling the promise. However, a premarriage transfer of dowry property can be reclaimed if the wedding is called off (see, e.g., Ulpian, D.
12.4.6). The general rule on enforcing the stipulation is stated by Paul (D. 2.14.4.2): “Prior to the marriage, a lawsuit on it fails, as if this had been expressly provided; and the stipulation is automatically void if the marriage doesn't ensue.”2. A Change of Mind. As it seems, the woman in this Case first called off the wedding and then decided to go through with it. Do you agree with the legal outcome? Contrast the following situation described by Papinian (D. 23.3.68): A dowry is promised, and a wedding then takes place; but the marriage is not immediately valid either because the bride's father has not agreed to it or because she is too young. Some time later, the deficiency is remedied and the marriage becomes valid. Can the promise now be sued upon? Papin- ian holds that it can be; but is this holding easily reconciled with the present Case? In any event, as Papinian observes, the promise definitely fails if the woman marries someone else first; and it does not revive if she later marries her original suitor.