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Dos

The Roman section only (pp437‑438) of an article on pp436‑438 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

DOS (προΐχ, φερνή), dowry.

[. . .]

2. Roman. Dos (res uxoria) is every thing which on the occasion of a woman's marriage was transferred by her, or by another person, to the husband, or to the husband's father (if the husband was in his father's power), for the purpose of enabling the husband to sustain the charges of the marriage state (onera matrimonii). All the property of the wife which was not made dos, or was not a donatio propter nuptias, continued to be her own, and was comprised under the name of Parapherna. The dos upon its deliverya became the husband's property, and continued to be his so long as the marriage relation existed. All things that could be the objects of property, and in fact anything by which the substance of the husband could be increased, might be the objects of dos. All a woman's property might be made a dos; but the whole property was only what remained after deducting the debts. There was no universal succession in such a case, and consequently the husband was not personally answerable for the wife's debts. Any person who had a legal power to dispose of his property could give the dos; but the dos was divided into two kinds, dos profectitia and dos adventitia, a division which had reference to the demand of the dos after the purposes were satisfied for which it was given. That dos is profectitia which was given by the father or father's father of the bride; and it is profectitia, even if the daughter was emancipated, provided the father gave it as such (ut parens). All other dos is adventitia. The dos receptitia was a species of dos adventitia, and was that which was given by some other person than the father or father's father, on the consideration of marriage, but on the condition that it should be restored on the death of the wife. The giving of the dos depended on the will of the giver; but certain persons, such as a father and a father's father, were bound to give a dos with a woman when she married, and in proportion to their means. The dos might be either given at the time of the marriage, or there might be an agreement to give. The technical words applicable to the dos were dare, dicere, promittere. Any person, who was competent to dispose of his property, was competent dare, promittere. The word dicere was applied to the woman who was going to marry, who could promise her property as dos, but the promise was not binding unless certain legal forms were observed (non deberi viro dotem, quam nullo auctore dixisset, Cic. Pro Caecin. c25, compare Pro Flacco, c34, 35, and Ulp. Frag. XI.20). An example of a promissio dotis occurs in Plautus (Trinum. V.2). The husband had a right to the sole management of the dos, and to the fruits of it; in fact, he exercised over it all the rights of ownership, with the exception hereafter mentioned. He could dispose of such parts of the dos as consisted of things movable; but the Julia lex (de adulteriis) prevented him from alienating such part of the dos as was land (fundus dotalis, dotalia praedia, Cic. ad Att. XV.20; dotales agri, Hor. Ep. I.1.21) without his wife's consent, or pledging it with her consent (Gaius, II.63; Inst. II.8). The legislation of Justinian prevented him from selling it also even with the wife's consent, and it extended the law to provincial lands. Still there were some cases in which the land given as dos could be alienated.

The husband's right to the dos ceased with the marriage. If the marriage was dissolved by the death of the wife, her father or father's father (as the case might be) was intitled to recover the dos profectitia, unless it had been agreed that in such case the dos should belong to the husband. The dos adventitia became the property of the wife's heirs (Cod. 5 tit. 13 §6), unless the person who gave it had stipulated that it should be returned to him (dos receptitia): as to the older law, see Ulpian, Frag. VI.5.

In the case of divorce, the woman, if she was sui juris, could bring an action for the restitution of the dos; if she was in the power of her father, he brought the action jointly with his daughter. The dos could be claimed immediately upon the dissolution of the marriage, except it consisted of things quae numero, &c., for which time was allowed (Ulp. Frag. VI.8: but compare Cod. 7 tit. 13 §7). [Divortium]

The dos could not be restored during the marriage, but in the case of the husband's insolvency, the wife could demand back her dos during the marriage. In certain cases, also, the husband was permitted to restore the dos during the marriage, and such restoration was a good legal acquittance to him: these excepted cases were either cases of necessity, as the payment of the wife's debts, or the sustentation of near kinsfolks (Zeitschrift, etc. V. p311, essay by Hasse).

What should be returned as dos, depended on the fact of what was given as dos. If the things given were ready money (dos numerata, Cic. Pro Caecina, c4), or things estimated by quantity, etc., p438the husband must return the like sum or the like quantity. If the things, whether movable or immovable, were valued when they were given to the husband (dos aestimata), this was a species of sale, and at the end of the marriage the husband must restore the things or their value. If the things were not valued, he must restore the specific things, and he must make good all loss or deterioration which had happened to them except by accident. But the husband was intitled to be reimbursed for all necessary expences (impensae necessariae); as, for instance, necessary repairs of houses incurred by him in respect of his wife's property, and also for all outlays by which he had improved the property (impensae utiles).

The husband's heirs, if he were dead, were bound to restore the dos. The wife's father, or the surviving wife, might demand it by an actio ex stipulatu de dote reddenda, which was an actio stricti juris, if there was any agreement on the subject; and by an actio rei uxoriae or dotis, which was an actio bonae fidei, when there was no agreement. A third person who had given the dos must always demand it ex stipulatu, when he had bargained for its restoration. Justinian enacted, that the action should always be ex stipulatu, even when there was no contract, and should be an actio bonae fidei.

The wife had no security for her dos, except in the case of the fundus dotalis, unless she had by contract a special security; but she had some privileges as compared with the husband's creditors. Justinian enacted that on the dissolution of the marriage, the wife's ownership should revive, with all the legal remedies for recovering such parts of the dos as still existed; that all the husband's property should be considered legally pledged (tacita hypotheca) as a security for the dos; and that the wife, but she alone, should have a priority of claim on such property over all other creditors to whom the same might be pledged.

The dos was a matter of great importance in Roman law, both because it was an ingredient in almost every marriage, and was sometimes of a large amount. The frequency of divorces also gave rise to many legal questions as to dos. A woman whose dos was large (dotata uxor) had some influence over her husband, inasmuch as she had the power of divorcing herself, and thus of depriving him of the enjoyment of her property. The allusions to the dos and its restitution are numerous in the Roman writers (Cic. ad Att. XIV.13).

It is a disputed point whether there could be dos, properly so called, in the case of a marriage with conventio in manum [Matrimonium] (Hasse, Rhein. Mus. II.75).

The name by which the Greek writers designated the Roman dos is φερνή (Plutarch, Caesar, c1, Marius, c38, Cicero, c8).

(Ulp. Frag. VI; Dig. 23 tit. 3; Cod. 5 tit. 12; Thibaut, System, &c., § 728 &c., 9th ed., § 747, &c.; Mackeldey, Lehrbuch, &c., § 517, &c., 12th ed.)

[G.L.]


Thayer's Note:

a Not mentioned in this article, probably because our sources rarely give details about the mode of payment, is just how this delivery was made. Diodorus does give us one little drib of information, though (XXXI.27.5): it was apparently customary to pay dowries in installments over three years, and Scipio Aemilianus won great praise by delivering them in one lump sum.


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