CASE 32: The Duty to Provide a Dowry

D. 12.6.32.2 (lulianus libro decimo Digestorum)

Mulier si in ea opinione sit, ut credat se pro dote obligatam, quidquid dotis nomine dederit, non repetit: sublata enim falsa opinione relinquitur pietatis causa, ex qua solutum repeti non potest.

(Julian in the tenth book of his Digests)

If a woman’s state of mind is such that she believes herself obligated (to pay something) for a dowry, whatever she gives on account of the dowry she does not reclaim (as not being owed).

1.      A Social Obligation. In this Case, a woman mistakenly thought she was obli­gated to pay something as a dowry to her husband, and she made the pay­ment. Normally, amounts paid in error can be recovered through a legal de­vice called the condictio indebiti; so, for example, Ulpian, D. 12.6.1.1: “If someone mistakenly pays an unowed debt, he can sue for it through this ac­tion.” Here, however, it is held that the woman, despite her mistake, cannot reclaim the money (at least not before the end of her marriage). Julian ex­plains this outcome by referring to the pietas that she owes her husband. Does this argument make his holding any clearer? Literary sources clearly indicate that dowry was a socially expected part of marriage, and some legal sources seem to suggest the same idea. For example, Venuleius (D. 42.8.25.1) indi­cates that undowered women would simply not find husbands; and Celsus (D.

2.      A Legal Obligation? Marcian (D. 23.2.19 = Case 103; very poorly preserved) may indicate that in the late classical period, under some circumstances, a pater familias could be legally compelled to provide his daughter with a dowry. The Emperor Justianian refers to earlier, “well-known” laws to the same effect (C. 5.11.7.2; A.D. 531). How this came about is impossible now to determine, but some form of imperial intervention (probably by the Emperor Septimius Severus; reign: A.D. 193-211) is not unlikely. A rescript of Dioclet­ian (C. 5.12.14; A.D. 293) holds: “A mother is not forced to give a dowry for her daughter except when the cause is great, clear, and specially provided for by law; but a father lacks the capacity to provide a dowry from the property of his unwilling wife.” This rescript suggests that by the late third century A.D. fathers had some legal duty themselves to provide dowries.

3.      An Early Inheritance? In many historical societies where dowry has been prevalent, fathers have tended to see the settlement of a dowry on a daughter as, in effect, the allocation to her of her future inheritance; that is, the daugh­ter cannot anticipate a further distribution after her fathers death. Roman legal sources provide some evidence for this view. For instance, Modestinus (D. 28.5.62) reports on a man who, in his will, disinherited his daughter, say­ing that she should be “content with the dowry” (Compare Papinian, D.

4.      Family Relations. “The provision of dowry was... one of the mechanisms by which Roman families, like those in many other preindustrial societies, main­tained their social status relative to each other, and so there was a strong so­cial if not, for most of the classical period at any rate, legal obligation to pro­vide dowries for daughters” (Jane F Gardner, Women in Roman Law and Society). Assess the cogency of this theory

D. 32.43 (Celsus libro quinto decimo Digestorum)

Si filiae pater dotem arbitratu tutorum dari iussisset, Tubero perinde hoc habendum ait ac si viri boni arbitratu legatum sit. Labeo quaerit, quemadmodum apparet, quantam dotem cuiusque filiae boni viri arbitratu constitui oportet: ait id non esse difficile ex dignitate, ex facultatibus, ex numero liberorum testamentum facientis aestimare.

(Celsus in the fifteenth book of his Digests)

If (in his will) a father had ordered that his daughter (when she marries) is to be given a dowry “at her tutors’ discretion,” Tubero says this should be inter­preted as if the legacy were made “at the discretion of a good man” (viri boni arbitratu).

Labeo asks how to determine the amount of a dowry that should be estab­lished for each daughter “at the discretion of a good man.” He says it is not hard to assess this in accord with the testator’s standing (dignitas), his means, and the number of his children.

1.      How Much Is Enough? In this Case, a father left all or part of his estate to his minor daughter but ordered her guardians (on tutelage, see Chapter VA.1) to provide her with a dowry at their discretion, from her property.

2.      An Objective Standard. If the guardians do not provide a proper dowry, can they be sued? If so, by whom and on what legal theory? What would be the most common complaint: that the girl's dowry was too much or too little?

Antiqua">3.      Giving Too Much. The pressure on the brides side to come up with a re­spectable dowry could sometimes be crushing. A poorly preserved fragment of Paul (Frag. Vat. 115) describes a sui iuris woman who married a man of ap­preciably higher dignitas than her own; she gave him her entire property as a dowry, and the jurists accept this as legal (so too Alexander Severus, C. 5.12.4; A.D. 223). Still, such extravagance was considered something an older woman would never engage in (Paul, D. 4.4.48.2). Perhaps for this reason, the jurists are especially cautious when it comes to younger women, below the age of twenty-five. Ulpian, D. 4.4.9.1: “Also as regards the dowry's amount, the woman (less than twenty-five) should be helped if through trickery she gave a dowry exceeding the means of her estate, or (if she gave) the entire estate.” (The legal help that Ulpian mentions took the form of al­lowing her to apply for rescission of the dowry; see Case 220.)