§ 1. On Children Under Family Power

I. Principles. Considered solely by the right of nature: 1) children are capable of separate property; 2) from piety, parents and children contract a mutual obligation of bearing help according to necessity and according to the means which they have; 3) the natural weakness of lesser age demands administrative tutelage; 4) the express or tacit consent of parents and children less separates temporal real rights as to possession itself; as to management itself; as to grave matter of injustice; as to the obligation of restitution after injury has been done.

— From this various corollaries flow.

1. On the capacity of possessing, a) By the law of nature itself, neither a madman nor a child under family power is struck by any incapacity of right: he is a person; therefore he is a subject of right. And from nature itself he has certain things inviolably bound together with himself: members of the body, faculties, reputation. But the condition of acquiring, at least stably, exterior goods seems lacking in them, so long as they are incapable of human acts, if only the natural law is considered; nor is their need provided for by natural law in such a way that anyone can efficaciously supply their will; but they are protected only by the offices of piety and charity. Cf. Molina, Iust. tract. 2 d. 18, n. 3; Lugo, Iust. d. 3, n. 14-17; Tanquerey, III, 143. Positive laws ought, and are accustomed, to supply the natural law in this matter.

b) But from the time when they are capable of true consent, the full aptitude of separate dominion has been conferred on them by the law of nature.

2. On the mutual obligation of support, a) Children, of themselves, labor under very great need. To come to the aid of this is an office of piety imposed on parents. Yet because the immediate title of the obligation seems unable to be demonstrated as anything other than need, the natural law permits parents to compensate themselves from the goods of the children for the expenses of support and instruction; nor can children urge the obligation of support except insofar as they are destitute of goods. Cf. Tanquerey, III, 148.

b) In turn, however, piety obliges children to provide, insofar as they can, for the accidental need of parents.

c) Although piety does not beget any strict right to a thing, it nevertheless effects that he who takes for himself what is owed from piety, which otherwise would not be paid, cannot be accused of violated justice, since the owner cannot be reasonably unwilling.

For a similar cause, it is whole for parents, insofar as there is need, to provide for the common necessities of the family from the wages or goods of the children, since thus they execute the offices of piety of the children.

3. The very incapacity of lesser age gives a right to parents or to those who bear the care of children or of madmen, that they prudently administer their affairs, unless another has legitimately undertaken that office. And besides strictly so-called expenses to be repaid, they do not seem able to be prohibited, in rigor, from demanding an equitable compensation for the labor rendered.

4. On express or tacit consent, a) Various little gifts which parents or relatives, on the occasion of a feast or first communion, offer to children who are self-possessed, are fully acquired by these children, so that not even the parents themselves can take those things from the children with justice preserved. But clothes which children wear have been given to them for personal use, so that without injustice they cannot be sold by them or exposed to play.

b) A child, even impubescent or younger by birth, is bound of himself to compensate the expenses which are reasonably made for him, both from his own goods and by ordinary labor ¹ congruent with his state. Yet one who has retained for himself a part of his wages cannot immediately be accused of injury, since some think that the obligation of supporting children lies on parents absolutely, without consideration of the resources of the children. Much less, because of easily presumed condonations, will he have to be condemned to restitution. Yet he must be earnestly exhorted to strive to act sincerely and liberally with his parents and to bear help to them with a willing mind, which piety and gratitude require from him.

c) Whatever of money the child has attributed to his parents from his own labor is presumed to be given absolutely to the parents.

d) In itself, indeed, Lessius (L. 2, c. 12, n. 81), whose authority in this matter is appealed to by many, uses this principle: that a son, no less than a stranger, is worthy of pay for his labor. Wherefore, if he has rendered to his father useful labor which the father would obtain neither by himself nor through another gratuitously or for less, the son can receive as much as a stranger would receive. But tacit renunciations must be observed. Now, until they have come to that age at which children are accustomed to have a state (which age varies by region and also by civil condition; but in Belgium, France, and Italy it can be estimated at about 25 years), they are judged to cooperate gratuitously with their parents.

After that age, the matter becomes less expedient. With express agreement set aside, which of itself is desirable, these things seem to have to be attended to. Cooperation must be presumed gratuitous: a) if the other children render similar labor and have the same ratable part to be expected from the common mass; b) if the cooperation is useful to the child himself, insofar as by it he is prepared for a state, especially if he himself is to succeed into the place of his father in the office; c) if the parents were poor, or if the modest gain of the child is compensated by his support. - But it is least of all to be presumed gratuitous if the cooperation of the children or the right of inheritance has been notably unequal, especially if by a certain shamefacedness the children are prevented from asking for pay.

It happens that pay for such unequal labor is expected from a future legacy. What then, if, either forgetful of the matter or prevented by death, the parents have remunerated the special services of some son or daughter by no peculiar disposition? In that matter, rather thorny, children who are pressed by temporal necessity seem to have to be distinguished from richer ones. A child who from a rich inheritance wishes to compensate himself for frustrated hope, even if this had been equitable, does not seem to be favored; but on the contrary, if some reason of temporal need, even broadly so called, has acceded, reasonable compensation does not seem to have to be refused. For it can be said that in these circumstances the services were not rendered except under the condition of compensation of this kind. But we shall more easily be able not to condemn compensation already made than to promote it by antecedent counsel.

e) Various causes of incapacity, abuse, prodigality, or profusion of goods permit those closely joined, such as parents and children are, that for the good either of the abuser himself or of the family, they openly or secretly usurp a certain administration of the family property. Nevertheless, care must be taken that they do not make their own what belongs to others, nor procure any other use of the things except that which the other ought reasonably to concede.

f) On account of intimate conjunction, authors judge that grave matter of injustice can be doubled, at least when there is question of children. It seems that the same must be said of parents.

g) What a child has received for a definite end, e.g. studies, he cannot expend otherwise with justice unimpaired. Yet when there is question of the debt of restitution, the question is certainly to be moved only when the matter seems sufficiently extraordinary. And then often the child himself, by a sincere answer, will be able to know the intentions of the parents better than the priest and therefore to solve the knot itself of the matter.

Counsels in this matter look to this: a) that we promote mutual benignity and liberality; that they not be solicitous about moderate things; b) that we inculcate in children a grateful and devoted mind toward parents, who sometimes by sweat and vigils have furnished them the means of a more cultivated education; c) that we advise clear and express agreements, and that equitable compensations not be deferred to testaments.

¹ The fruit of extraordinary labor or extraordinary gain, say the prize of a lottery, the child can ascribe to himself. Cf. Génicot, I, 471.

II. What Positive Laws Have Sanctioned. A) On legitimate children. 1. All positive laws set parents, or other faithful persons, over the management of the goods of those who are weaker by age or mind; and they admit that these persons can efficaciously have the intention of acquiring for them.

2. On the cautions by which minors or impubescent persons are protected, lest they imprudently contract obligations, the discussion will soon return below in the general exposition of contracts.

3. But, besides the protective incapacity of age, by positive laws other things are not rarely established concerning the patrimony of children on account of the useful sanction of the family bond. This is now being treated.

a) Latin law. By ancient Roman law, all goods pertained to the father of the family, i.e. to the head of the family, who could be younger by birth or impubescent. But gradually the full incapacity of children was tempered, so that, in the law which for a long time ruled the greatest part of Christian Europe, there was distinguished the peculium castrense, acquired on the occasion of military service; the quasi-castrense, acquired on the occasion of an ecclesiastical benefice or of a magistracy or public office; the profecticium, composed of goods coming from the parent or given on his account; and the adventicium, consisting of other goods.

Parents had full dominion of the peculium profecticium; they had usufruct of the peculium adventicium, certain goods excepted, while paternal power remained; while the castrense and quasi-castrense peculium pertained fully to the children. From that law Latin law has its origin. In French, Italian, and Belgian law, goods which children under family power, constituted under paternal power, acquire by separated labor or industry, or which have been donated or bequeathed to them with an express condition excluding the usufruct of the parents, must be distinguished: these are fully attributed to them. In the other goods of children, the parent who exercises paternal power obtains a legal usufruct of special character, in Italian law, so long as that power remains; in Belgian and French law, until they have completed 18 years of age. Often also excluded from usufruct are monies which have been deposited by the child in the public savings bank. But all the goods of the children (again excepting privileged deposits of the savings bank) are administered by the same parent.

Similar things are disposed by Spanish law (arts. 159-166) and by the law of Latin America. In the Spanish Code, separated labor is understood to be that of a child who, with the parent consenting, lives outside the paternal home. In the Argentine republic, excluded from the usufruct of parents are goods which the child acquires on the occasion of a civil, military, or ecclesiastical office; which the child acquires by his own labor or even by fortuitous chance; which have been donated or bequeathed with a clause excluding usufruct; which he acquires by inheritance, because the father could not be heir.

By the Brazilian Code, excluded from the usufruct of parents are goods bequeathed or donated with a clause excluding usufruct, goods bequeathed to the child for a certain and determinate end; and excluded from usufruct and administration are goods acquired by reason of military service, magistracy, or public office; goods bequeathed or donated with a clause excluding administration (arts. 390, 391). - The Code of Holland distinguishes the regime of paternal power and the regime of tutelage. The former ceases by the death of either spouse or by the dissolution of the marriage. Then the regime of tutelage succeeds, which the surviving parent will regularly have, while nevertheless preserving the usufruct until the child shall be of age or emancipated (366 ff., 100 ff.). It is proper to the Austrian Code that it denies legal usufruct, but concedes the universal administration of goods to the father (arts. 139-154).

b) By the law of the Germanic Code, the father or mother, if exercising paternal power, preserves the usufruct of the goods of the child up to the child's majority or marriage (unless it was celebrated without the father's consent, when that was necessary). Excepted are things for personal use, those things which the child has acquired by his own labor or by a personal art permitted to him, or which have been bequeathed or donated to him with a clause excluding usufruct. The father can renounce this usufruct (arts. 1649-1688).

c) The laws of England attribute no right in the goods of children to parents. But if the child earns wages, parents are not bound to support him gratuitously. Stipulations concerning support between children and parents are permitted.

d) In the U.S.A., the father, or after his death the mother, has a right to the services and gains of the child as long as the non-emancipated child is received under their roof and supported by them. Nothing else has been established.

B) On illegitimate children. They can be unacknowledged, acknowledged by either parent or by both, and finally legitimated. The unacknowledged child of himself obtains the condition of an orphan without family; nevertheless he is not prohibited from demonstrating his filiation with respect to the mother, indeed also, according to several laws, with respect to the father. And the certain mother is accustomed to give him a name and ought to perform the offices of a mother. For the most part, as long as he is younger by birth, he is represented by a tutor. Acknowledgment, when it is permitted (for often adulterine and spurious children are forbidden to be acknowledged), confirms mutual obligations, paves the way for legitimation, and produces other juridical effects in one law and another. By legitimation an illegitimate child is equated to a legitimate child. (Cf. nevertheless above, n. 302, on canon law.) Everywhere legitimation by the subsequent marriage of the parents is admitted.

A mode also often admitted is a decree of the Prince or of the supreme magistrate of the republic. For this the Code of Germany, arts. 1723-1740, substitutes a declaration by which, at the petition of the father, public authority declares the child legitimate.

By the Austrian Code (165-171), illegitimate children assume the name of the mother, can demand support and instruction from the parents, but are represented by a tutor. By the Code of Holland, an illegitimate child assumes the name of the mother; yet, when acknowledged, he can use the name of the father; but except for the obligation of support, with which the father is burdened, an unacknowledged child has no juridical relations with the parents. By the Code of Italy (179-193), an acknowledged child takes the name of the parent by whom he is acknowledged; the father's, if he has been acknowledged by both parents; and both in obligations and in rights he becomes already sufficiently similar to a legitimate child; but legitimation is obtained both through the marriage of the parents and through a royal decree (194-201). Spain uses a similar law. The Brazilian Code (379-395) directly subjects to paternal power, insofar as they are minors, legitimate children, legitimated children, legally acknowledged children, and adopted children. An unacknowledged child is subject to the mother. The parent who has acknowledged him obtains usufruct in the goods of the minor. By the law of 2 June 1907, the condition of illegitimate children has been more fully ordered in France. Paternal power, not excluding usufruct, is assigned to the parents who have acknowledged them; nevertheless the parent who exercises paternal power administers the goods not as parent but as tutor. - Cf. Colin and Capitant, I, 588 ff.

By the Code of Germany (1589, 1705-1718), an illegitimate child is, toward the father (except for the obligation of support) and toward his family, as if a stranger; while toward the mother and her family he is juridically as if legitimate. He is called by the name of the mother; nevertheless he always has a tutor.

By the law of England, the mother possesses paternal power over illegitimate children; by acknowledging the child, the father contracts merely the obligation of supporting him.