Morals of the Church
Library › Prümmer, Manuale Theologiae Moralis › Volume II › Treatise XI. On The Virtue Of Justice And The Opposed Vices › Section I. On Right And On The Virtue Of Justice Itself › Question I. On Right Itself › Chapter III. On The Subject Of Right Or Dominion › Article II. On The Dominion Of Children Of Families

Section — Prümmer, Manuale Theologiae Moralis

§ 1. On The Dominion Of Children Of Families According To Roman Law

28.

28. According to Roman law,89 the following principles were established by theologians:

  1. The son has full dominion of castrensian and quasi-castrensian goods.

  2. The son of a family indeed has direct dominion of adventitious goods, but not administration and usufruct; these pertain to the father. Nevertheless certain cases are excepted in law.

  3. Of profectitious goods the son has neither direct nor useful dominion, but the whole is the father's.

Concerning the second and third principle, the Corpus iuris civilis establishes:90 "It has been sanctioned by us that, if anything from the father's thing comes to him [namely, the son], according to the ancient observance he acquires this whole for the parent. (For what envy is it, that what has proceeded from the occasion of the father should return to him?) But what the son of the family has acquired for himself from another cause, of this he will acquire the usufruct indeed for the father, but the dominion will remain with him, lest what has come to him by his own labors or by prosperous fortune should, by passing to another, proceed mournfully for him."

To anyone considering it, wonder immediately occurs why the son has full dominion in castrensian and quasi-castrensian goods, but not in adventitious goods. Looking only at natural law, there does not seem to be a sufficient reason for establishing such a difference. For why, for example, could a young physician living in the paternal house retain goods acquired through the exercise of medicine (they are quasi-castrensian goods), but his full brother living in the same paternal house, but conducting commerce with goods received gratuitously from an uncle (they are adventitious goods), would be held to give the acquired profit to his father, who has usufruct of that profit? Likewise, if a son receives certain goods from his father and with them makes profit, all these things according to old Roman law belong to the father, as being profectitious goods; but if the same son receives those goods from his mother and with them makes profit, they pertain to him, as being adventitious goods, although the father has administration and usufruct. All these things indeed in present times would be admitted by the faithful only with difficulty, and nevertheless all moral theologians established the principles stated above as obliging in conscience. Therefore no other sufficient reason seems able to be assigned for the moral obligation of those principles except Roman civil law, which at that time was accepted by the Church as sufficiently agreeable to right reason and natural law. Since these things are so, in this matter the same obligation in conscience seems to be attributed to present-day civil codes, since their statutes are likewise sufficiently conformable to right reason, natural law, and the circumstances of places and times. Thus also several modern theologians, for example Aertnys, saying: "Laws which absolutely define property are valid in conscience. Such are, for example, those which establish modes of acquiring dominion through accession, usucaption, invention, etc.; likewise those which attribute property to children of families and authors of books; which concede to the father usufruct in the goods of children and of the wife; and also those which define succession from intestacy beforehand."91 This at least seems certain: present-day cases concerning the goods of children of families cannot be resolved according to ancient Roman civil law, as is done by certain authors. For the distinction of castrensian, quasi-castrensian, profectitious, and adventitious goods today seems to be of no use. Whence for modern practice only free and non-free goods must be distinguished.

General rules in our times can be had:

  1. A major-aged (or emancipated) son does not sin against justice if he retains for himself everything rightly acquired (even by working in the paternal house), after deducting those things which are spent by the parents for his support. Thus is the common opinion.

  2. A minor-aged son living and working outside the paternal house does not sin against justice if he retains his own wage. Thus also several modern codes establish, for example, Cod. civ. Helvet. a. 295, Cod. civ. Gall. a. 387.

  3. A minor-aged son living in the paternal house but receiving a wage for labor performed outside the house does not sin against justice if he pays the expenses for his own support, but retains the rest for himself. But some modern codes establish that those wages pertain to the parents, for example Cod. civ. Helvet. a. 295.

  4. A minor-aged son living and working in the paternal house seems to sin against justice if he secretly takes something from paternal goods which is not necessary for his own suitable support.

  5. Against piety all children of families, whether major-aged or minor-aged, sin whenever by the retention of goods they cause an undue burden to their parents.

How children wounding justice must restore to parents, cf. below n. 83.

89 Dig. l. 49, 17, 10; C. 12, 36.

90 Lib. 2 Institutionum, tit. 9 "Per quas personas."

91 Suppl. ad VII praec. according to German law, p. IV.

The Ownership of Sons Under Family PowerProperty Rights of Minors