point — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Point I. On the Dominion of Children Under Paternal Power
- Children under paternal power are here properly said to be those who, born from legitimate marriage, of whatever sex they may be, still lie under paternal power.
There are goods of children of different kinds, according to the diverse statutes of peoples.
I. Under Roman Law, goods are distinguished as: 1. castrensian, that is, acquired on occasion of military service; 2. quasi-castrensian, or acquired from some civil office, for example, of judge, physician, etc.; 3. profectitious, which a son gains from paternal goods, for example, by conducting business with the father's money: to this also belong goods which are given to the son with regard to the father; 4. adventitious, which come to the son from elsewhere than from paternal goods, unless they have been given to the son with regard to the father.
II. Under French Law are distinguished: 1. goods acquired by the separate industry of the son, or given to him alone; 2. the remaining goods coming to the son. But goods acquired by separate industry comprehend the castrensian and quasi-castrensian goods of Roman Law, and besides these, whatever the son gains by separate labor or commerce.
- Principles from Roman Law. I. The son has perfect dominion of castrensian and quasi-castrensian goods; yet if he is under puberty, he does not have their administration.
II. The father has perfect dominion of profectitious goods, provided the son is under paternal power 1. Yet he can cede to the son the usufruct of the profectitious goods.
1 Namely, if something is given with regard to the father to a son exempted from paternal power, it is no longer contained under the census of profectitious goods.
III. The son has dominion of property in adventitious goods, but the father has usufruct and administration 2. But if they are consumptible, the father can dispose of them, but with the burden of restitution, as generally is accustomed to happen in the case of dominion thus divided.
2 Yet sometimes also the usufruct devolves to the son. Compare Lugo (De Iust., disp. 5, from n. 23).
IV. If the son has conducted business with paternal goods in the name of the father, the gain is profectitious; but if in his own name, it is adventitious. But in doubt whether the gain came from the goods of the father or of another, it must be held as profectitious when the son has administered the paternal goods. - St. Lig., ibid.
V. If the son conducts business outside the house of the father from other goods than paternal goods, the gain is adventitious; but the gain of a son laboring in the paternal house and supported by the father is profectitious. - St. Lig., ibid.
- Principles from French Law. I. A son under paternal power has perfect dominion in goods acquired by separate industry, and in those things which are given to him alone, C.C. 387, although he does not have their administration before majority (21 years), or before emancipation. C.C. 389, 481 and following.
II. But in the remaining goods he has direct dominion before the completed eighteenth year, or before emancipation, which can take place after the fifteenth year. Meanwhile the father enjoys their usufruct; and likewise the mother, the father having died, provided she does not contract another marriage. C.C. 384, 386, 476 and following.
- Questions. Q. 1. Whether the son has perfect dominion in movable goods given to him by parents or relatives?
Resp. 1. Affirmatively, if they are consumptible by first use, because they are given to him absolutely for use, unless perhaps some restriction has been added, for example, for a determined use, as if it were money for buying books, etc.
Resp. 2. If they are not consumptible by first use, such as books, garments, etc., the son generally has only useful dominion, because parents almost never intend to confer anything else upon him.
Q. 2. Whether the son is judged to renounce the usufruct to which he has a right, if, while he sees and remains silent, the father receives this usufruct?
Resp. Negatively, at least generally speaking. The reason is that silence would be equivalent to renunciation only insofar as the son could easily protest; but most often reverential fear prevents him from being able to do this easily. - Common.
- Q. 3. Whether the son has dominion of those things which he gains in the paternal house?
Resp. 1. Affirmatively in the following cases: 1. if he is emancipated; 2. if he labors in his own name, but then the father is not bound to support him; 3. if he is not bound from his condition to labor; 4. if, by an extraordinary excess, he expends more work and labor than the other brothers.
Resp. 2. But negatively: 1. if the labor of the son is necessary for sustaining the life of the parents; 2. if he makes a small gain, because it would scarcely equal the expenses made for him by the parents.
Resp. 3. More probably negatively, even apart from the aforesaid cases, if the son labors and gains rather notably before his brothers, but not by an extraordinary excess; because then the son is judged to act as a member of the family, and thus the whole gain ought to yield to the good of the family. Besides, the peace of families demands that the cupidity of sons not be indulged beyond what is equitable, so that the gate to innumerable lawsuits may be closed. - St. Lig. (at least practically), n. 488 and 544. - Billuart. - Laymann. - Gousset, n. 684.
Nevertheless the opposite opinion appears sufficiently probable, because the son is not of a worse condition than a servant. But the son ought not per se to demand that gain before the death of the father, since it is difficult before then to judge whether the son has suffered damage or not. - Thus Pontas, word Compensation. - Lessius, l. 2, c. 12, n. 81. - Elbel, n. 77. - Collet, c. 2. - Bouvier, c. 2, art. 1. - Carrière, n. 244. - Vernier, n. 340. - Ituriaga, t. 1, cas. 3. - See Casus, n. 503 and following.
Moreover in practice one must not recede from the first opinion 3, at least before the fact, because of the danger of hallucination. Besides, the circumstances in which both the son and his coheirs are placed must be weighed, so that one may judge what the equality of strict right requires.
3 When the Author says that in practice one must not recede from the first opinion, while otherwise he confesses its opposite to be probable, he must not be understood as though an obligation ought or even could be imposed on anyone; for the Confessor is not a legislator, nor does he have the power of imposing or declaring a certain obligation when this is uncertain: and it is indeed uncertain when it is probable that it does not exist. Therefore the Author only intimates this, that that practice is prudently to be recommended: prudently, I say, lest while he fears hallucinations in the penitent, he himself hallucinate more gravely, and thus deprive the penitent of a not unjust utility.
But although the second opinion can sometimes be held in practice, at least after the fact, nevertheless it is by no means to be taught publicly on account of the inconveniences which would follow from it through abuse 4. - Thus Bouvier, ibid. - Carrière, ibid.
4 But neither should the first opinion be taught publicly, on account of the graver inconvenience of injecting a false conscience, which bears this mere fruit, that it builds unto Gehenna.