and blood money for accidental killing and compensation for wounds. We determine value according to people’s appraisals, since in those cases there are no two contracting parties who have mutually agreed upon anything. Here, however, the parties have agreed that the stipulated consideration should be given in exchange for the property or benefit, whereas others would accept a different consideration for it. Giving weight to the parties’ mutual consent is therefore more appropriate than giving weight to what others would accept.

If it is objected:

“They consented to this consideration only on the basis that the contract would be valid and its legal consequences binding, neither of which applies here.”

The answer is:

“Others likewise assign this value only within a valid contract carrying its own legal consequences. Since such a contract is unavailable here, we posit a contract through which the consideration payable can be determined. It is therefore more appropriate to use the contract they actually concluded as this hypothetical basis than to posit one that never existed at all, to which they never consented, and which no one else concluded either. If hypothetical assumptions and approximations are unavoidable, whatever most closely resembles what actually occurred is the more appropriate assumption and nearer to what is correct.”

This makes clear that requiring the customary dower for a comparable woman in an invalid marriage rests on likening her to comparable women who enter into valid, binding marriages. This requires two hypothetical assumptions: positing a woman comparable to her, and positing a valid marriage with a stipulated dower. We thus compare her with comparable women, and her invalid marriage with their valid marriages. This is an exceedingly remote analogy. If, however, we require the stipulated dower in the invalid marriage, we compare her invalid marriage with her own marriage supposing it were valid; and she is closer to herself than anyone else is to her. Moreover, the parties’ invalid contract is closer to their own contract supposing it were valid than it is to someone else’s valid contract. Where, however, intercourse takes place under a semblance of lawfulness without a marriage contract, the customary dower for a comparable woman is payable.