§ II. On Wives

766. • 1. A wife cannot contract or dispose concerning her dowry and its fruits, nor concerning the goods of the family, when the husband is present and able to administer these goods, when he is reasonably unwilling. It is otherwise if the husband is absent, insane, or foolish, or if he consents expressly or tacitly, or if he is not reasonably unwilling.

2. A wife can, as she pleases, contract or dispose, even when the husband is unwilling, concerning paraphernal goods, that is, concerning goods which she brought besides the dowry and reserved to herself. - Recall the things said concerning the dominion of wives, n. 548 and following. - See Billuart, Reuter, etc.

767. • 1. A wife generally cannot contract without the special consent of the husband, and in the absence of this without the authority of the judge, as was said in the Treatise on Justice, ibid. - (C.C. 217, 219). And therefore the acts which she placed without such authority must be rescinded if the wife herself, or her husband, or their heirs, but not others, oppose the nullity.

I said, 1. without the special consent of the husband; because a general consent given in the contract of marriage is not sufficient, but it is required that it be special for the individual acts of the wife, and indeed given in writing.

I said, 2. or without the authority of the judge; because the wife can have recourse to the judge if the husband is unwilling to consent, or even cannot consent, e.g. if he is absent, if he is interdicted, etc.

2. Nevertheless a wife can contract without the special consent of the man: 1. when she is engaged in public and separate commerce, because then the husband is judged to consent, except for the alienation of immovables; 2. when she purchases those things which are necessary for the support of the family.

3. According to the general laws, a wife can, as she pleases, dispose of her goods by testament without any intervention of the husband. The reason is that it matters little to the husband, insofar as lord of the woman, what the future testamentary disposition of the wife will be, since a testament obtains its effect only after the dissolution of the marriage.

768. • It is asked: Whether the nullity which affects the contracts of wives is of full law, or ipso facto, or has force only after the sentence of the judge?

I reply. The nullity is not to be held as of full law, since the sentence of the judge is required to declare it. Nor is it absolute, but only relative, or it can be pronounced only in favor of certain persons who alone can invoke it, namely in favor of the wife, the husband, and his children.

769. You will resolve from Gallic Law. - 1. If a wife contracts without the consent of the husband with lesion of his rights or goods, e.g. with respect to the goods of the community, or the revenues to be received by the man, the contract is wholly void. But a wife of bad faith, although in that case she cannot oblige either the husband or the goods of the community, nevertheless is bound to repair the damage inflicted on the other. - Carriere, n. 203, and others commonly, against others who say that the other contracting party ought to impute it to himself that he contracted with her and was thus deceived.

2. The nullity of the contract of a wife can be invoked by the man in conscience, even if he has not suffered lesion properly so called, because the nullity was sanctioned chiefly for his sake.

3. The wife herself also can invoke the nullity of the contract, as it seems, although the law does not precisely intend to favor her; because there does not seem a sufficient motive for excluding her from the benefit of the law, provided she has not deceived the other party. - Carriere, ibid., against others. But she must return all that in which she has become richer, and things must be restored into the same state as they were before the contract, provided she herself was not injured and deceived. Often, however, by reason of fraud she must be excluded from the benefit of the law.

4. A wife who asks another for money as a loan for her husband, obliging herself to restore it in default of the husband, is bound to restore it if the man cannot or will not make restitution; for she was the absolutely determining cause of the contract. Therefore she ought to fulfill the obligation freely undertaken, especially after the man has died; otherwise she would turn out to be of bad faith. A fortiori a wife must restore money borrowed by herself for her own utility, without the husband's knowledge. For thus natural equity cries out. - See Cases, n. 773 and following.