CASE 69: Tying the Dowry to the Wife's Maintenance
D. 24.1.21.1 (Ulpianus libro trigesimo secundo ad Sabinum)
Si uxor viro dotem promiserit et dotis usuras, sine dubio dicendum est peti usuras posse, quia non est ista donatio, cum pro oneribus matrimonii petantur.
quid tamen, si maritus uxori petitionem earum remiserit? eadem erit quaestio, an donatio sit illicita: et lulianus hoc diceret: quod verum est. plane si convenerat, uti se mulier pasceret suosque homines idcirco passus est eam dote sua frui, ut se suosque aleret, expeditum erit: puto enim non posse ab ea peti quasi donatum, quod compensatum est.(Ulpian in the thirty-second book on Sabinus)
If a wife promised to her husband a dowry along with the interest on it, it must undoubtedly be held that he can claim the interest, since this is no gift because it is claimed in compensation for the burdens of marriage.
But what if the husband remits to his wife the claim for this? The same question will arise about whether it is an impermissible gift. Julian says that it is, correctly.
Obviously, if they had agreed that the wife support herself and her slaves, and he allowed her to use her dowry for the purpose of maintaining herself and her slaves, there will be no difficulty; for I do not think that a compensatory payment can be reclaimed from her as a gift.
1. Promises, Promises. At first sight, this Case is a bit confusing: the wife promises a dowry and the interest, but the husband wants to claim only the interest; why? In fact, arrangements of this sort are described as common and, at times, even implied by law (Papinian, D.
23.3.69 pr.). Paul (D. 23.4.12.1; a troubled text) states that in one form of these agreements, a woman promises to support herself with her own dowry, which her husband is not to claim from her while the marriage continues. This promise creates a dowry (e.g., if the marriage ends through the wife’s death, the husband can then claim the dowry from her estate; see Case 81), but during the marriage the wife keeps the dowry capital in her own hands and uses it to maintain herself, independent of her husband. Is such an arrangement likely to solve some of the problems with the traditional law of dowry? In the present Case, a similar outcome is achieved: the husband is entitled to claim the interest on the dowry but can then remit the claim to his wife, and this remission is not regarded as a gift if, by prior agreement, the interest is to be used for her maintenance. Do you follow Ulpian’s logic? Is it convincing? It is also possible for the wife’s side to deliver only part of the dowry (Papinian, D. 24.3.42.2; Paul, D. 23.4.12.2).2. Controversy. A woman promised a dowry to her husband-to-be in the following way: “When I die, a sum of money is owed to you as a dowry.” Is this promise valid? Julian says yes, noting that agreements of this type are common. Paul (D. 23.3.20), citing several other jurists, disagrees. He argues: “It is one thing to delay collection but quite another to stipulate from the outset for (collection at) a time when the marriage will not exist.” What is it that the woman was probably trying to accomplish by promising her dowry in this way? Is it simply presupposed that she would retain the dowry and support herself from its income? How serious is the objection that Paul raises?
3. A Tangled Case. Lucius Titius promised to Gaius Seius a dowry of 100,000 for his daughter, but Titius and Seius agreed that Seius would not demand payment of the dowry during Titiuss lifetime.
Some time later, Seius was at fault for divorcing his wife, as a result of which he was obliged to repay her dowry to her (Case 83). Shortly thereafter, Titius died; his will appointed other persons as heirs and disinherited his daughter. Can Seius collect the dowry from Titiuss heirs? What remedies does Seius's ex-wife have? This case is handled by Paul (D. 24.3.44.1).4. Broken Promises. A father promised a dowry and agreed that he would support his daughter, evidently by retaining the dowry but paying her support out of it; but he then failed to carry out his agreement. Her husband, reasonably believing that his wife's father would pay for her support, lent her money to spend on necessities for herself and her slaves; and she also dipped into some household funds that had been entrusted to her. She then died. Because the dowry came from his wife's father, the husband is not entitled to claim it now (see Cases 30, 81). But can her husband at least demand that his fatherin-law repay the money spent on his wife's support? For the answer, see Scaevola, D. 15.3.20 pr. and 21.
D. 23.3.17 pr. (Paulus libro septimo ad Sabinum)
In rebus dotalibus virum praestare oportet tam dolum quam culpam, quia causa sua dotem accipit: sed etiam diligentiam praestabit, quam in suis rebus exhibet.
D. 24.3.24.5 (Ulpianus libro trigesimo tertio ad edictum)
Si maritus saevus in servos dotales fuit, videndum, an de hoc possit conveniri. et si quidem tantum in servos uxoris saevus fuit, constat eum teneri hoc nomine: si vero et in suos est natura talis, adhuc dicendum est immoderatam eius saevitiam hoc iu- dicio coercendam: quamvis enim diligentiam uxor eam demum ab eo exigat, quam rebus suis et, nec plus possit, attamen saevitia, quae in propriis culpanda est, in alienis coercenda est, hoc est in dotalibus.
(Paul in the seventh book on Sabinus)
As to dowry property, the husband should be responsible for both his deliberate misconduct (dolus) and his fault (culpa), since he received the dowry for his own benefit; but he will also be responsible for the (level of) carefulness (diligentia) that he exercises for his own property.
(Ulpian in the thirty-third book on Sabinus)
If a husband acted brutally toward dowry slaves, let us examine whether he can be sued for this. If, indeed, he was cruel only to the wife’s slaves, clearly he is liable on this account. But if he is naturally this way also to his own (slaves), it should still be held that his excessive brutality should be curbed by this legal remedy. For although his wife may require of him only the carefulness (diligentia) he uses for his own property, and no more, nonetheless a brutality that is blameworthy as to his own property must be curbed as to that of others, that is, the dowry.
1. Standards of Care. With regard to the dowry, the husband must exercise a fairly high level of care: not to harm it deliberately (through dolus) or carelessly (through culpa); the second standard is objective and requires him to exert the care of a reasonable person in preventing harm to the property. Paul justifies this level of care by claiming that “he received the dowry for his own benefit”; in what sense and to what extent is that true? On culpa, see also Case 89. This standard applies only to nonfungible property that is not received under appraisal (Case 36).
2. Pursuing a Promised Dowry. Forming a dowry often requires a husband-tobe to collect promises from potential dowry givers. What if the promisors renege? Is the husband liable to his wife if he does not bring suit against them? Ulpian, in a long discussion citing earlier juristic opinions and rescripts (D. 23.3.33), makes a distinction: If the promise came from the woman herself or from her father, the husband is not liable for failing to sue; “for no iudex will listen patiently to a womans explanation of why he did not press her father to pay the dowry he promised from his own property, much less why her husband did not sue her.” But if the promise came from a third party, the husband is liable for failing to collect from a promisor whose motives were not purely altruistic (e.g., if the third party promised money that he owes to the wife); but the husband need not press an altruistic promisor even when by doing so he could collect the amount promised.
If the husband is bound to avoid fault and thus to exercise reasonable care in collecting the dowry, what do Ulpian's rules suggest about the extent to which he must go? What considerations must he balance? See also Julian, D. 24.3.30.1.3. Carefulness. Diligentia, by contrast, is a subjective standard that requires the husband to protect the dowry property just as scrupulously as he does his own. This still higher standard was probably introduced in the early second century A.D. Is it based on the premise that a husband would normally be very careful with his own property? How successful is Ulpian's attempt to fend off the possible objection concerning a brutal husband? To what extent does Ulpian's application of the diligentia standard suggest that the dotal slaves are, or are not, the husband's property?