Article I: On the Dominion of Children Under Parental Power

175. Notions. - Children under family power are called children of either sex, legitimate or legitimated, who are still constituted under parental power. They are:

a) legitimate, namely, those who were born from a marriage contracted according to the laws;¹

¹ According to canon law, which in this matter is specially competent, "legitimate are children conceived or born from a valid or putative marriage, unless to the parents, on account of solemn religious profession or received sacred order, the use of the marriage previously contracted was prohibited at the time of conception," can. 1114.

b) or legitimated, those who were not born from a legitimate marriage, but afterward acquired the rights of legitimate children through a subsequent marriage, and are judged legitimately born (C.C., a. 331-333);

c) those who are constituted under parental power, not that which belongs to parents by force of the natural law for demanding due reverence and obedience (a. 371), but that which by force of civil law is acknowledged to them over the persons and goods of children (a. 372), who are neither emancipated nor of full age.

Hence from parental power there are exempted:

1. natural children not legitimated, especially spurious children, because by law power over them is not conceded to parents,² since no one ought to obtain an advantage from his own delict, just as neither ought the children themselves, except for the right to support, harm the rights of legitimate children;

² It is established for French law from a. 384, which supposes marriage.

2. those of full age: in modern law the determined age of majority is generally the completed 21st year;³

³ Thus also in canon law, c. 88, § 1. - In Switzerland, however, it is the 20th year.

3. those previously emancipated, either by the law itself, for example, through marriage, or by a special juridical act. Emancipation through marriage is not acknowledged by German, Austrian, or Italian law; it is acknowledged by French and Belgian law (a. 476), Spanish, Dutch, English, and Swiss law; - emancipation by juridical act can be granted to a son after the completed 18th year according to German, Swiss, Italian, and Spanish law; also according to Dutch law, but imperfectly, and perfectly after the 20th year; by French and Belgian law by the father, and if he is lacking by the mother, before a judge after the completed 15th year (a. 477), and if they are deceased only after the completed 18th year by deliberation of the family council under the presidency of the judge (a. 478).

176. Principles. - Children under family power are capable of dominion, and, after the use of reason, also of its exercise. But they are judged not mature enough to manage their own things well and prudently, and certain burdens toward parents are incumbent upon them. Whence in them the right of dominion is deservedly restricted by various limits to be determined by law. Hence three principles:

I. Children under family power have direct dominion in goods which justly come to them.

II. They do not have the administration of goods, which is in the power of the father or tutor until the children's majority or emancipation.

III. Useful dominion or usufruct of itself belongs to the parents, by way of compensation for the support and education of the children, or also for the administration of goods;⁴ yet it belongs to the children a) for goods which come to them under the condition that the usufruct not come to the parents; b) for those goods which they have acquired by labor undertaken in their own name or by separate industry, unless otherwise established in civil law for compensation of education, as in Spanish law (a. 140) and American law, but for minors alone who remain at home. But French and Belgian law (a. 387), Italian (a. 229), Dutch (a. 366), German (a. 1649-1651), Austrian (a. 149), and Swiss (a. 296) leave the fruits of labor exercised in one's own name or of separate industry to the children.

⁴ The Austrian Code adjudges usufruct away from parents and concedes only administration (a. 149). Usufruct belongs to the children, after the expenses of education have nevertheless been deducted.

In particular, by French and Belgian law, minor children do not have usufruct before the 18th year of age, or before they are emancipated (a. 384),⁵ unless there is question of goods acquired by separate labor or industry (a. 387); - or donated under the express condition that neither father nor mother enjoy them⁶ (ibid.); - or coming from a succession for which the parents have been declared unworthy (a. 730).

⁵ The reason why this article was established is that parents, where possible, may in some way be made indemnified for the expenses which the education of children demands. But the law did not will these expenses to be mathematically computed in order to make compensation; rather it attributed to parents usufruct in the goods of children, lest they be held by the children as hired mandataries, from whom an account could have been demanded to the detriment of filial piety.

⁶ In Italian law, moreover, those things which were given to the son for learning an art or profession (a. 228-229); in Spanish law, those things which were given for education (a. 160-162).

Outside these cases, usufruct belongs to the father alone (a. 384 and 389) as if compensation for the labor of administration; it does not belong to the mother, if the father renounces, but only when she takes the place of an impeded father. When the marriage is dissolved, it belongs to the surviving spouse (a. 384); but if the mother enters a new marriage, she loses the usufruct,⁷ because a new family is constituted, the woman passing under the power of another (a. 386). The spouse against whom divorce has been pronounced is also excluded (ibid.); likewise the spouse who has neglected to make an inventory of the goods of the community (a. 1442). But the administration of all goods is in the power of the father or tutor (a. 389 sq.), until the children become of full age, who have administration in every respect⁸ (a. 488); or emancipated, who have restricted administration (a. 481-484), but full administration in matters of commerce (a. 487).

⁷ Italian law so establishes concerning either spouse who, after the death of the consort, passes to new nuptials.

⁸ According to the German Code (a. 1618), those of full age are of their own right; nevertheless, if they remain in the paternal home, until they demand compensation of fruits from their own proper goods, they are presumed to concede them to the parents.

177. Question: Whether children under family power have full dominion over gains which come from their own labor?

R. The separate and non-separate industry of the child is distinguished; and when there is question of non-separate industry, it is distinguished whether the child acts as a partner of the father (for example, if he conducts commerce together with the father), or as his mandatary (for example, as a servant or minister). Industry is called non-separate when the child labors and gains, whether in the paternal home from the father's things and about the father's things, or outside the paternal home among strangers but nevertheless in the father's name. Industry is called separate or proper when the child labors and gains either among strangers in his own name, or in the paternal home itself but not about the father's things nor from the father's things.

These things being noted:

1st. If the child makes gains by separate labor and industry, he has dominion and usufruct of that gain (C.C., a. 387); yet administration during the time of minority remains with the father; wherefore if the child, against the parents' will, retains and dissipates these goods, he sins against other virtues, not against justice. Moreover:

a) the child from justice must compensate the expenses of food and clothing: for parents are not bound to support a child who can provide for himself from his own gains;

b) from piety he must assist the grave necessity of his parents and family, namely, brothers and sisters.

Hence it happens that younger workers (to whom a high wage is not accustomed to come), even when laboring outside the paternal home and by separate industry, often must hand over the whole wage to the parents and cannot reserve a part for themselves except in extraordinary cases, for example, by reason of extraordinary labor or diligence, or if the parents freely consent, which nevertheless is not easily to be supposed among poor parents.⁹

⁹ In two cases children would not be accused of sin because they subtracted something of the salary received from the parents and from the father's administration: a) if the parents do not reserve for the children those things which exceed support, but spend them on superfluous uses; b) if the parents, being too sparing, deny the children those things which are suitable for honorable recreations. Yet, as is clear, these are not easily to be admitted.

2nd. If the child makes gains as a partner of the father, with the father's consent obtained and a true contract of partnership entered, he has full right to the part of the gains coming from the partnership. Therefore one must stand by that contract, provided it was entered justly, without injury to a third party, for example, other children. Such an agreement is generally not to be advised; at times, however, it is rightly concluded, for example, if the other children conduct their own affairs and one remains at home. But civil law (C.C., a. 854) deservedly requires that the partnership have been entered by an authentic act, lest frauds be committed and one child vindicate to himself from the goods of the family more than is equitable.

3rd. If the child, as happens more often and deservedly, acts as mandatary of the father, laboring in his name and at his risk, for example, if the father has hired out the labor of the child, the whole gain belongs to the father. There is excepted only gain from work wholly extraordinary and not owed, or from a business which the child establishes in his own name and at his own risk, whether with his own goods, or with paternal goods conceded to him or secretly taken. For although the child sins by taking the father's money, nevertheless he acquires the gain, provided he also assumes the risk of the principal and repairs to the father the damage arising from the surreptitious taking.

In this case it is further asked whether that child has a right to a stipend, or salary proportioned to his labor. R. Theoretically speaking, he probably has a right to so much stipend as would be owed to a stranger, after deducting those things which are owed to the father from justice and piety; although others deny this, because a father can always use the labor of minor children, at least by way of compensation for the education given, and impose it under the title of the debt of piety and obedience. Practically speaking, that right generally seems to be denied, because parents, who have made such great expenses for minors, can demand, as compensation for expenses made, that they labor for preserving and increasing the family estate, and be content with support received at home; moreover, the father, as superior, commanding is to be obeyed, until it is certain that he commands unjustly and exceeds the limits of his power. Especially, however, the child cannot urge anything:

a) if he has not explicitly asked for a stipend, or, on account of reverence for his father, at least implicitly: for then he is judged to labor gratuitously, as generally happens;

b) if all the children, either simultaneously or successively, labor in this way equally or almost equally; otherwise one would receive more than is equitable from the common inheritance;

c) if the father by himself or through others would have done the same without expense: for then the gain does not depend upon the labor of that child.

178. Practical conclusions. - From the principles established above the following conclusions follow:

1st. A child has dominion over goods conceded to him by his parents according to the explicit or implicit intention of the parents; namely:

a) over goods which were given absolutely, he has full dominion;

b) but not over goods given for a determinate use: thus, for example, he would act unjustly who spent money received for buying books or completing studies on another use, say, on immoderate recreations or pleasures;

c) if the express intention was not present, it can be discerned from the nature of the thing or the circumstances: thus consumable things are judged to be given absolutely, unless the contrary is established, namely, that they are given for a special end; on the contrary, non-consumable things (clothes, books, horse) are judged to be given only for use. Likewise, with children living outside the home for the sake of study or art or commerce, parents are to be presumed to indulge those things which are accustomed to be attributed to young persons of the same condition.

2nd. A child, with the father's consent, living outside the paternal home and laboring in his own name, is judged also to have disposition over those things which he acquires; this is not only conformed to French law (a. 387) and kindred legal systems, but is also explicitly stated by English, American, Austrian (a. 151), Spanish (a. 159), and Swiss law (a. 295).

3rd. The following sin against commutative justice and of themselves are bound to restitution:

a) parents, by taking the goods of the child, or by taking usufruct if according to civil law they would not have right to it, but the child would;

b) the minor child, by taking the goods of the parents, or by taking usufruct of his own goods to which he does not have right according to the prescriptions of the civil law of diverse nations.

179. Practical observations. - 1. Before the faithful, especially in preaching, the rights of children from the rigor of right are not to be explained minutely; nor generally are those agreements concerning dividing gain between parents and younger workers to be advised, by which it comes about that children become as it were boarders with their parents. Rather, by all means let mutual piety, paternal authority, and the unity of families be inculcated.

2. Yet let parents be admonished at an opportune time that they provide equally for their children, especially for those remaining at home, and also not deny them some money for honorable recreations.

3. If a confessor finds children very prone to occult compensation, then let him judge and act prudently: before the fact, let him rather set forth the stricter opinions and especially inculcate paternal authority; after the fact, let him incline toward the milder opinion for restitution and examine the causes which often excuse from it, nor impose it unless the obligation of making restitution is certain.

4. The things which have been said about a child under family power toward father and mother as to gains which he makes in the father's house are to be extended to a grandson, a granddaughter, and to any other blood relative who is found in a similar condition.