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The Recovery of Dowry in Roman Law

Published online by Cambridge University Press:  11 February 2009

Jane F. Gardner
Affiliation:
University of Reading
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The recent article by R. P. Saller on Roman dowry in the Principate makes some interesting and important suggestions about the function of dowry and its role in the devolution of property. I am in broad agreement with a good deal of what he says, and would not dispute his views that dowry was, as shown by the requirement of collatio dotis, regarded as in a sense part of a woman's patrimony, and that the rules for the recovery of dowry show that the purpose of giving dowry was not held to rest on one single principle, but included provision both for the expenses of the wife's maintenance during marriage and for a possible remarriage after divorce or widowhood. However, his remarks on both points need some qualification and amplification. Briefly, I hope to show (i) that the oddities and anomalies noticed by Saller in the rules governing the recovery of dowry at the end of a marriage are apparent rather than real, since these rules rest, not on conflicting views about the purpose of dowry, but on the fact that the husband had full legal ownership of the dowry during marriage, together with the right of the wife or her pater to an actio rei uxoriae for recovery of dowry; (ii) that the rules for collatio dotis applied only if the woman herself chose to claim a share in her father's estate on intestacy beyond the amount of her dowry; (iii) that the use of the dowry for the wife's support was an equitable, rather than a legal, requirement.

Type
Research Article
Copyright
Copyright © The Classical Association 1985

References

1 CQ 78 (1984), 195205Google Scholar.

2 Kaser, M., Das Römische Privatrecht 2 (1971), pp. 332–41Google Scholar; on the early history of the actio, see Watson, A., The Law of Persons in the Later Roman Republic (1967), p. 67Google Scholar.

3 Corbett, P. E., The Roman Law of Marriage (1930), pp. 182–8Google Scholar.

4 Father and pater are not necessarily identical (for instance, the pater might be the grandfather) but the two are used interchangeably here for convenience.

5 On the rules for the constitution and recovery of dos adventicia and dos profecticia, see Ulp. Reg. 6.3–4; Frag. Vat. 116; Digest 23.3.5; Corbett, , Law of Marriage, pp. 183–5Google Scholar; Watson, , Persons, pp. 66–8Google Scholar.

6 Digest 23.3.5.11, 6 pr.

7 Pliny, , Ep. 4.2, 8.18Google Scholar.

8 Digest 24.2.5.

9 Digest 24.3.59.

10 Digest 37.7; Schulz, F., Classical Roman Law (1951), pp. 229–32Google Scholar; Buckland, W. W., A Text-Book of Roman Law 3 (1966), pp. 325–6Google Scholar; Kaser, , RPR 2, 732Google Scholar.

11 Though dowry could be repaid voluntarily during marriage for such purposes as payment of debts in the wife's family: Corbett, op. cit., p. 198.

12 Gaius, , Inst. II. 158Google Scholar; Schulz, , Classical Roman Law, pp. 281–2Google Scholar; Buckland, , Text-Books 3, pp. 305, 395Google Scholar; Kaser, , RPR 2, 714ffGoogle Scholar.

13 Digest 37.7.1 pr.

14 C.6.20.4; Kaser, , RPR 2, 732 n. 35Google Scholar.

15 Digest 37.7.3.

16 Digest 37.7.9.

17 Digest 24.3.22.8.