Property Rights of Minors

Apart from positive law, a minor is capable of owning property in his own right just as if he were of full age. Considerable rights over a child’s property were granted to the father by Roman law. The minor had, indeed, complete ownership of what he earned by military service or by any public office, but the usufruct of what came to the son in other ways belonged to the father. Similar rights are commonly granted to the father by those modern systems of law which are derived from the Roman. According to English law, however, the father as such has no rights over any property which belongs to his child. During the child’s minority, if no trustee or guardian of his property has been appointed, the father or mother will usually be appointed guardian, and in that capacity they are bound to administer the property for the benefit of the child, nor may they use it for their own profit.

On the other hand, English law gives no right to children to share in their father’s property except in case of intestacy, differing in this also from the Roman and derived systems. The parent may by our law leave his property to whomsoever he will, unless, of course, it is entailed. As to entailed property, a tenant in tail in possession may now under the Law of Property Act, 1925, in certain circumstances bar an entail and dispose of it as a fee simple, not only by deed but by will.

When an intestate, whether husband or wife, leaves a surviving spouse and issue, the survivor of husband or wife takes (a) personal chattels absolutely; (b) £1,000 net free of Death Duties and costs, with 5 per cent. interest thereon from death till payment or appropriation; (c) a life interest in half of the rest of the intestate’s estate. Subject thereto the property is held on the statutory trusts for the issue.

If the intestate die leaving no husband or wife surviving, but only issue, then the issue take the whole of the estate on the statutory trusts. These statutory trusts provide for equal division of the estate per stirpes.

A child who has the means is under a moral obligation of supporting his parent when he is incapable of supporting himself, and this obligation is enforced by English law.

Moreover, if a minor living with his parent is earning wages the parent is not bound to support him free of cost, and until he is sixteen it would seem that the parent is justified in taking his earnings. Even after that age it may well be that an elder son or daughter who is in receipt of wages is bound to help to support younger brothers and sisters if the family is numerous. Apart from these obligations a minor acquires a full right to what he earns, and may enter into a contract with his parents for the payment of the cost of his board and lodging, reserving what is over of his wages for himself. If a minor works in his father’s house no contract for wages will be presumed; he is supposed to forgo them, or his keep is supposed to be an equivalent, unless an express contract for wages is entered into between them.

Minority ceases on the completion of the twenty-first year of the minor’s age, or by emancipation. A minor is emancipated from his parents’ control by marriage, by entering into religion, or when an adult child leaves the paternal household and enters the army or ordinary service as a domestic servant or labourer.¹

¹ Eversley, Law of the Domestic Relations, p. 599.

Children of the family are here understood as children born of a legitimate marriage, or legitimated, and still subject to parental power. Now:

I. Children of the family acquire direct ownership of all goods which come to them by a just title. This follows from the fact that they, just as others, are capable of ownership. Moreover, just titles are donation, inheritance, purchase, contract, and so forth. Hence parents sin against justice who transfer to themselves, alienate, or squander goods which have come to their children by a just title. For the rest, observe:

1. A child acquires a right in goods granted to him by his parents according as follows: he acquires a full right in those things which are truly given to him. Hence he obtains a full right in small things and in a small amount of money granted for recreation, so that by abusing them he does not violate justice. The contrary must be said of things given for a special use, for example for paying school fees, for buying books, clothes, or other necessities; by abusing these, the child is guilty of injustice.

2. A child who exercises an art or industry in common with his father, with any agreement set aside:

a) Does not acquire a right to a part of the profit, since he is not his father's partner. Moreover, he is considered to exercise an art or industry in common with his father when he works as the agent or helper of his father, whether he exercises the work in the paternal home or outside it, for example because the father, as an artisan, has hired out the works of the son to another.

b) Nor does he have a right to wages if he performs only labor to which he is held from piety or from an equitable precept; for what one owes from piety or obedience, he owes gratuitously. On the other hand, however, the father is bound from piety to support the son; and this piety again brings it about that, if suitable support is denied to the son, the son can procure for himself what suitable support requires (St. Alphonsus, III, 488, doubt 2).

c) The child acquires a right to wages for labor furnished beyond what is owed and not otherwise compensated, for example by a donation made in view of special labor, by equal labor of the brothers, and by the inheritance thereby increased. The reason is that, since the said labor is not owed, the child ought not to be of worse condition than a stranger. Make an exception, however, if the child has expressly or tacitly renounced his right; concerning this, however, observe that in itself the silence of the child does not contain a renunciation of the right, because often he abstains from explicit petition only from reverential fear (St. Alphonsus, III, 488, doubts 2 and 3).

3. If, on account of peculiar circumstances, equity seems to demand that the labor owed by the child be compensated by wages or a part of the profit, for example if the other children lead idle leisure, or, although subject to parental power, labor for themselves, an agreement between father and child can sometimes prudently be advised.

4. A child who exercises private labor or industry acquires a right in those things which he thus procures for himself. Moreover, private labor or industry is had if the child labors neither in the name of his father, or as his agent, nor in his service. Therefore it is present if the child has hired out his works in his own name, even if he dwells in the paternal home; likewise if he has been received as a servant by another family, even if the father entered into the contract. Yet these things do not prevent the child from being bound from piety to assist needy parents, and, if the father wishes it, to compensate for food and clothing perhaps to be received from the parents.

5. A child who does business with paternal goods acquires a right in the profit if he acts in his own name, but not if he acts as the agent or helper of his father. And this holds even if he stole money from his father; nevertheless he is bound to restore the damage and the profit ceased which followed for the father (St. Alphonsus, III, 488, doubt 1).

II. Children of the family do not have the administration of their own goods, but it belongs to the father or mother or guardian.

III. The right of the fruits is commonly determined by positive law. Therefore from that law it is to be drawn to whom it belongs. Again, however, note that the silence of the child in itself does not contain a renunciation of the right in the fruits which he enjoys by force of law.

26. Notions. Children of families are called all children of each sex, whether legitimate or legitimated, who are still constituted under paternal or maternal power. For having greater clarity and avoiding confusions, the following names must be distinguished:

a) An infant, or child, or little one, who has not yet completed the first seven-year period.

b) An impubes, who has not yet arrived at legal puberty, that is, at the 14th year of his age if he is a boy, or at the 12th year of age if she is a girl.⁸⁵

c) A minor or minor-aged person, who (whether impubes or pubes) has not yet attained the age of majority established by canon or civil law. In diverse nations there are diverse statutes concerning the age of majority; thus, for example, in Switzerland the completed 20th year constitutes majority, in Germany and in France it is the completed 21st year. The same is in canon law c. 88, § 1; in Austria it is the 24th year.

d) A major-aged son is not the same as an emancipated son, but as to practice there is a small difference, since an emancipated son does not indeed have the age of majority prescribed by law, but by the authority of a judge has been declared major-aged. Thus, for example, in Switzerland nuptials by that very fact give emancipation;⁸⁶ whence if some girl of 16 years has rightly entered nuptials according to civil law, by that very fact she is emancipated.

e) A legitimate child is he who was born from a valid or at least putative marriage.⁸⁷ Concerning him those things are valid which will be said below concerning the dominion of children of families.

f) But an illegitimate child, who was born from parents not joined in marriage, is not considered to be under the power of the father, but is of his own right. Hence those things which will be said below are not valid concerning him. And indeed an illegitimate child is not bound by so great gratitude toward his parents as a legitimate child; for he must often bear the disgrace of the parents and suffer many other inconveniences. Hence he is rightly considered to be of his own right. Whence German law establishes that an illegitimate child with respect to the mother and her blood-relatives has the same right which a legitimate child has with respect to his own parents; but the right of a parent does not belong to the mother.⁸⁸

⁸⁵ Cf. Cod. Iur. can. c. 88, § 2.

⁸⁶ Cod. civ. Helv. a. 14.

⁸⁷ Cod. iur. can. c. 1114.

⁸⁸ "The illegitimate child has, in relation to the mother and the relatives of the mother, the legal standing of a legitimate child" (Cod. civ. Germ. § 1705). "The mother does not have parental power over the illegitimate child" (ibid. § 1707).

27. Distinction Of Goods Which Pertain To Children Of Families. Roman law distinguishes the goods of children as castrensian, quasi-castrensian, adventitious, and profectitious.

Castrensian goods were those which a child of the family acquired by military service.

Quasi-castrensian goods were considered to be those which a child of the family acquired from the toga-wearing service, that is, from public offices, for example from the office of judge, advocate, physician, cleric.

Adventitious goods were those which came to the son from the mother, or from the maternal line, or by some other way, for example donation, inheritance, singular industry and labor; in one word: all those goods which came to the son without respect to the father.

Profectitious goods were considered to be those which came to the son from the father, or in view of the father, or which the son gained by doing business with the father's goods.

Modern civil codes are accustomed to distinguish only goods of two kinds of children of families, namely free goods, concerning which the son can dispose freely, and non-free goods, which pertain to the administration of the father and sometimes also to his usufruct. Which goods are free and which are non-free according to diverse civil codes will be said below.

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.

29. Preliminary Notes.

1. According to German law, every man is capable of dominion (rechtsfähig) immediately after birth,⁹² indeed he is capable of taking an inheritance (erbfähig) immediately after conception.⁹³

2. Only minor-aged sons and major-aged sons are distinguished; to the latter are equated emancipated sons (großjährig erklärte Kinder).

3. Minor-aged persons are considered to be those who have not yet completed 21 years of their age. To them are equated those who are declared by law altogether unfit or at least insufficiently apt for doing business (entmündigt werden).

4. Major-aged persons are considered to be men after the 21st year of their age. To these are equated emancipated children. But in order that someone be emancipated, three conditions are required, namely: a) that the son have completed the 18th year of age; b) that both he himself and sometimes also his guardian give consent; c) that the tutelary tribunal (Vormundschaftsgericht) authentically pronounce this emancipation, and indeed on account of the utility of the one to be emancipated.⁹⁴ Therefore according to German law emancipation is not had by the very fact that someone licitly enters marriage, as, for example, is established by the Swiss code.⁹⁵

Dominion Of Minor-Aged Persons.

1. Minor-aged persons before the completion of the seventh year of their age and after this seven-year period until the time of majority or emancipation are distinguished.

2. Minor-aged persons before the completion of the seventh year of their age are altogether unfit (geschäftsunfähig) for the exercise of any act of dominion. The same is valid concerning those who on account of insanity have been declared unfit by a judge.⁹⁶

3. Minor-aged persons after the completion of the seventh year of their age are limited as to the exercise of dominion (beschränkte Geschäftsfähigkeit).⁹⁷ The same is valid concerning those who have been declared by a judge not sufficiently apt. Moreover, not sufficiently apt for the exercise of any dominion can be declared: a) not only the insane, but also the demented; b) dissipators exposing their own or the family's fortune to danger; c) those addicted to drunkenness.⁹⁸ Nevertheless, minor-aged persons can have the free exercise of perfect dominion if with due permission of the tutelary judge and guardian they carry out some business or hire out their labors.⁹⁹

4. The administration and usufruct of goods proper to minor-aged persons pertain to the father or mother, unless nevertheless these goods are free goods.¹⁰⁰

5. Free goods of minor-aged persons are:

a) things pertaining to the personal uses of the son, for example garments, ornaments, utensils;

b) wages and revenues which the son has either from his labor or from some business legitimately undertaken;

c) inheritances or gifts received, if nevertheless the testator or donor expressly established that those gifts constitute the son's free goods.

Although the usufruct of these goods does not pertain to the father, but to the son, nevertheless administration seems ordinarily to pertain to the father, unless the contrary has been established concerning the goods enumerated under n. c). Whence the father can demand that sons hand over the wage received from labor done in another's workshop. Nevertheless, he must spend that wage for the good of the son. It is greatly to be advised (at least for the most part) that parents administer all goods of minor-aged persons, which otherwise, as experience proves, are often dissipated. But this paternal right of administering the free goods of minor-aged sons does not seem to induce so grave an obligation that the son of itself sins mortally if he wounds it. Hence minor-aged sons indeed are greatly to be warned that they hand over the wage received for their labors to the parents; if nevertheless they refuse this and at least compensate the parents for the expenses of support, they can be absolved in the confessional. A fortiori this must be said if the sons retain only a small part of the wage and hand over the rest to the parents.

6. Minor-aged persons not having free goods can make no onerous contract without the permission (at least presumed) of the father or guardian.¹⁰¹ Hence their purchases and sales are not valid, contracted debts do not oblige, etc.

7. Minor-aged sons have no right to a wage if they labor in the paternal house or workshop.¹⁰² Hence they sin against justice and are held to restitution if they secretly take anything from paternal goods. Concerning the quantity of this restitution and the causes excusing from it, the discourse will return below, n. 83.

Dominion Of Major-Aged Persons.

1. Major-aged sons have full dominion of their own goods; for they are perfectly of their own right.

2. Nevertheless, according to their powers and state, they are held to serve the parents as to the family estate and their affairs.

3. Unless a major-aged son has expressly demanded compensation for the fruits perceived by the parents from his own proper goods, he is presumed to have conceded fruits of this kind gratuitously to the parents.¹⁰³

4. Major-aged daughters have a right to a competent dowry, unless nevertheless the parents have legitimately objected against the marriage to be entered.¹⁰⁴

5. For the confessor, the following things seem to be noted in practice:

a) A major-aged son working outside the paternal house or workshop is indeed held to contribute to sustaining the paternal family, but the wage obtained is his property, and therefore he can dispose of it without wounding justice.

b) A major-aged son working in the paternal house or workshop does not have a strict right to a suitable wage, and therefore he cannot secretly compensate himself. But when the son by extraordinary labor increases the family estate of the father, and otherwise he would be of a much worse condition than his brothers or sisters, he can demand indemnity.

Scholion. In regions where the German civil code is in force, let this be the general rule: Before the fact, let the confessor generally admonish all children of families, whether minor-aged or major-aged, that they expend their labor gratuitously for the paternal family estate and be content with those goods which the father or mother liberally concedes. After the fact, namely if children of families, whether minor-aged or major-aged, have retained something of their wage, but have handed over a sufficient part for their own support, they are not to be compelled to restitution.

⁹² Cod. civ. Germ. § 1.

⁹³ § 1923.

⁹⁴ §§ 3-5.

⁹⁵ Art. 14.

⁹⁶ § 104.

⁹⁷ § 106 sqq.

⁹⁸ § 6.

⁹⁹ § 112 sqq.

¹⁰⁰ §§ 1649-1651.

¹⁰¹ §§ 102, 110-112.

¹⁰² § 1617.

¹⁰³ § 1618.

¹⁰⁴ § 1621.

30. Preliminary Notes.

1. According to French law, each person is capable of dominion and already from conception is capable of taking an inheritance.¹⁰⁵

2. Children are minor-aged up to the completed 21st year of their age. From this term they are major-aged; nevertheless, as to entering marriage, special statutes exist, namely, a son and daughter before the completed 21st year cannot enter marriage without the consent of the parents. If the mother dissents, the consent of the father suffices.¹⁰⁶ If one of the parents has died or from some cause cannot manifest his or her will, the consent of the other suffices.¹⁰⁷ In the case in which both parents are dead or cannot manifest their will, grandfathers and grandmothers bear their place in this matter.¹⁰⁸ After the aforesaid age, and indeed up to the completed 30th year, sons and daughters were held by a reverential act ("by a respectful act") to solicit the consent of the parents three times; but that respectful act was suppressed by the law of 21 Jan. 1907.¹⁰⁹ According to the discipline in force, it suffices that sons and daughters about to marry, by the work of a notary, notify the parents of the marriage to be contracted. 30 days after this notification the marriage can be contracted.¹¹⁰

3. Minor-aged children can be emancipated:

a) By a declaration of the father, or (if he is lacking) of the mother, made before the justice of the peace, if the minor-aged person has completed at least the 15th year of age.¹¹¹ When both parents have died, the same declaration can be made by the so-called family council, but only after the 18th year of age.

b) Minor-aged persons are emancipated by the fact itself when they enter marriage.¹¹²

4. An emancipated minor-aged person by no means has the same rights as a major-aged person, but in several actions depends upon his guardian. These individual actions are enumerated in art. 480 sqq.

Dominion Of Minor-Aged Persons.

1. Minor-aged persons have naked dominion of all things which have come to them by a just title, for example inheritance, donation, etc.¹¹³

2. The administration and usufruct of goods pertaining to a minor-aged son is in the hands of the father, and when he has died, in the hands of the mother, up to the completed 18th year of age. Nevertheless the following cases are excepted:

a) if the minor-aged person is emancipated;

b) if the mother, when the father has died, enters new nuptials;¹¹⁴

c) as to goods which the minor-aged person has acquired by separated labor and industry, or which have been given or bequeathed to him under the condition that the parents lack usufruct;¹¹⁵

d) if the parents have been declared unworthy,¹¹⁶ or if they have induced the daughter to prostitution;

e) if the surviving spouse has neglected to make an inventory of goods within three months after the death of the consort.¹¹⁷

3. Goods which a minor-aged person acquires by separated labor and industry seem to be all those which he does not acquire in the paternal workshop. Whence if a son, although living in the paternal house, conducts his own commerce, if he exercises an art altogether diverse from the father's art, if he labors in a workshop outside the paternal house, all these seem to be separated labor and industry.¹¹⁸

4. A minor-aged son, especially after the 18th year of his age, working outside the paternal house does not sin against justice if he pays the expenses of his support to the parents but retains the rest of the wage for himself. Nevertheless, he is to be warned (at least commonly) that he hand over the whole wage to the parents, since this is more conformable to piety and obedience.

5. A minor-aged son cannot make any contract except in the cases determined by law.¹¹⁹

Dominion Of Major-Aged Persons.

1. A son who has become major-aged (with the completed 21st year of his age) is plainly of his own right and capable of all civil acts.¹²⁰

2. From article 488 it seems to follow that a major-aged son owes nothing else to his parents except to repay the food to be received daily from them. If nevertheless the parents are in need, then already natural law itself commands that each child be held according to his powers to help them.

¹⁰⁵ Cod. civ. Gall. Art. 8 and 725.

¹⁰⁶ Article 148 received modification through the law of 21 Jan. 1907.

¹⁰⁷ Art. 149.

¹⁰⁸ Art. 150.

¹⁰⁹ Art. 152.

¹¹⁰ Art. 151 new.

¹¹¹ Art. 472.

¹¹² Art. 476.

¹¹³ Art. 389.

¹¹⁴ Art. 386.

¹¹⁵ Art. 387.

¹¹⁶ Art. 230.

¹¹⁷ Art. 1442.

¹¹⁸ Cf. Marres, De iust. l. 1, n. 29.

¹¹⁹ Art. 1124 sq.

¹²⁰ Art. 488; cf. also the law of 22 Jan. 1907.

31. 1. A minor is emancipated when he reaches the 21st year, or when he enters marriage, or when he leaves the paternal house and by reason of occupation ceases to be subject to the father, as if the minor becomes a soldier or the servant of another.¹²¹

2. If the son is supported in the paternal house and by his own labor acquires something, the father can take this up to the 16th year; for thus the support is compensated in some measure. But after this time the parents can demand from the son only the price of support. But when children labor without remuneration or hand over the whole wage to the parents, they are considered to renounce their rights.

¹²¹ Cf. Slater, Princ. Theol. mor., De iust. c. 3, § 2, and W. Eversley, The Law of the Domestic Relations p. 598.

32. 1. In North America a uniform law concerning the rights of parents does not exist. Nevertheless, the following things are rather commonly established.

2. Parents indeed are not held to pay debts contracted by children (unless, however, by the explicit or implicit authority of the parents the children contracted those debts); but they must suitably support the children.

3. Parents have the right that minor-aged children, i.e., up to the twenty-first year,¹²² dwell and labor under their service and custody.

4. Parents permitting children to devote themselves to labors or business outside the paternal house are judged by that very fact to permit them to have disposition over the wage received. In this case, however, the obligation of the parents to support their children also ceases.

5. Parents are obliged to repair damages which are committed by the children while they are in the paternal house, when the parents know of them and do not prevent them.

¹²² "In the United States some statutes have reduced the age required for majority." Thus Tanquerey, Suppl. pro Stat. Americ. Septentr. p. 9.

33. 1. Austrian law, just as it grants greater liberties to wives, so also grants them to children of families.

2. The father has administration of the goods which minor-aged children acquire.¹²³ If, however, a minor-aged son, living outside the paternal house, acquires something by his own industry, this is left to his free disposition.¹²⁴

3. Revenues received from the goods of a child of family ordinarily fall under the administration of the father, but they must be expended for the suitable education and support of the child. If anything of greater moment remains over, it falls to the advantage of the child; but if it is of lesser value, it pertains to the father.¹²⁵

4. Children become major-aged after the completed twenty-fourth year of their age,¹²⁶ and then they become entirely of their own right, unless the judge has determined the contrary.¹²⁷ Marriage entered by a minor-aged person does not make him major-aged.¹²⁸ Children can be emancipated before majority with the explicit consent of the father and of the judge, and moreover if the father consents that a son of twenty years conduct his own family affairs.¹²⁹

5. Minor-aged persons before the eighteenth year cannot make a testament except before a judge; but after this age they can freely make a testament.¹³⁰

6. Minor-aged persons generally cannot enter into any onerous contract without the consent of parents or curators.¹³¹

¹²³ Cod. civ. Austr. § 149.

¹²⁴ § 151.

¹²⁵ § 150.

¹²⁶ § 21.

¹²⁷ § 172.

¹²⁸ § 175.

¹²⁹ § 174.

¹³⁰ § 569.

¹³¹ § 865.

34. These laws agree sufficiently and establish that the usufruct and administration of all goods which pertain to minor-aged persons¹³² belong to the parents, unless the contrary has been expressly established. But when children live outside the paternal house with the consent of the father, the goods acquired by them are left to their free disposition.¹³³

¹³² In Spain a son becomes major-aged if he has completed twenty-three years (Cod. civ. a. 320); but in Italy after the completed twenty-first year of age (Cod. civ. a. 323).

¹³³ Cf. Cod. civ. Hisp. a. 159 (in Larraga-Saralegui, Comentarios n. 693), and Cod. civ. Ital. a. 394-397 (in Marc, Instit. mor. I, n. 861).

35. Preliminary Notes.

1. The old law of the diverse Swiss districts does not differ much from the French law explained above. But the new law introduced sufficiently great changes.

2. Capacity for dominion arises from the first moment of man's existence.¹³⁴ But the exercise of this dominion is not permitted except to those who are major-aged and endowed with the use of reason.¹³⁵ A man becomes major-aged either after the completed twentieth year of his age or through contracted marriage.¹³⁶ He is judged to be endowed with the use of reason who does not labor under insanity, dementia, drunkenness, or similar states of mind.

3. A minor-aged son can be emancipated after the completed eighteenth year, provided that this is done by the guardianship tribunal and with his own consent and that of his parents.¹³⁷

4. One who lacks the use of reason can enter into no valid contract.¹³⁸ One who enjoys the use of reason, but nevertheless is minor-aged or has been declared incompetent (entmündigt), can indeed acquire advantages, but he is not able to enter onerous contracts without the consent of the legitimate curator. If nevertheless he has done illicit acts, he is held to restitution.¹³⁹ This article is of great moment for the practice of the confessor. If, for example, a minor-aged person has contracted debts, or has completed contracts of purchase or sale, all these things are invalid, but the minor-aged person is held according to his powers to repair the damage to those with whom he contracted.¹⁴⁰

Dominion Of Minor-Aged Persons.

1. To the parents belongs the administration of all goods pertaining to the children, unless the contrary has been expressly established.¹⁴¹

2. To the parents belongs the usufruct of all goods pertaining to minor-aged children, unless the contrary has been expressly established. Nevertheless the parents must suitably care for the education and support of the children.¹⁴²

3. Goods which a minor-aged person acquires by his own labor done in the family community pertain to the parents; but goods which he acquires either by his own business carried on with the consent of the parents, or by labors done outside the family community, are left to the free disposition of the minor-aged person, with his obligations toward the parents nevertheless remaining safe.¹⁴³ These two articles are of great moment for the practice of the confessor. For minor-aged children have no right to demand a wage from the parents, nor can they secretly take anything for themselves on account of labors done in the family community; on the contrary, children living outside the paternal house as maids, servants, clerks, apparitors, etc., freely dispose of the wage acquired; nevertheless they are held to repay to the parents the expenses of maintenance and besides, in a case of want, to assist the parents.¹⁴⁴

Dominion Of Major-Aged Persons.

Major-aged children have free disposition over their goods. Therefore they can not only retain the wage of their labor done outside the paternal house, but even demand a wage for labor performed in the family community.¹⁴⁵ Yet they are held to contribute their works to the suitable support of the paternal family.¹⁴⁶

¹³⁴ Cod. civ. Helv. a. 11. "Everyone is capable of rights" (Rechtsfähig ist jedermann).

¹³⁵ Art. 13.

¹³⁶ Art. 14.

¹³⁷ Art. 15.

¹³⁸ Art. 18.

¹³⁹ Art. 19.

¹⁴⁰ Art. 411.

¹⁴¹ Art. 290 and 294.

¹⁴² Art. 292-294.

¹⁴³ Art. 295 and 296.

¹⁴⁴ Cf. art. 328 and 329.

¹⁴⁵ Art. 633.

¹⁴⁶ Art. 328 and 329.

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.

Positive law, for the good both common and private, has restricted the capacity of possessing that belongs to every intellectual nature. The capacity of ownership has been restricted in children under paternal power and minors, in wives, in moral persons (for example municipalities, convents, etc.), in those civilly dead and interdicted, in religious and beneficed clerics.

There will be discussion of those civilly dead and interdicted in n. 1042, of religious and clerics in n. 2156, 2245.

The goods and rights of children under paternal power (and of other minors) vary greatly among various peoples. We shall here relate the principal laws that exist concerning this matter (recall the things said concerning distinction of persons, n. 698). Since these various laws establish rights for the common good, they oblige in conscience (cf. 838, 1).

858. From Roman Law, in the goods of children under paternal power there are distinguished: 1. camp goods, which the son or ward acquires for himself from military service, or on the occasion of military service; to which quasi-camp goods come nearest, which he acquires from civil service or from public offices, for example of judge, advocate, lector, physician, cleric, etc.; - 2. adventitious goods, which come to a son under paternal power either from his mother, or from the maternal line, or in consideration of his mother, or by another way, for example inheritance, donation, fortune (as if he finds a treasure), business with non-paternal goods, or in his own name, etc.; - 3. profectitious goods, which a son receives from his father, or in consideration of his father, or which he gains from the things of his father by doing business in his name (Doveri, Instit. di Diritto rom., l. 1, § 134).

859. From the new Codes, the goods of children are generally divided into a double class. The former comprehends goods obtained by children by labor and separate industry, or those that are given to them with the express condition that their usufruct not come to the parents. The latter embraces all other goods that come to children, for example by donation or by another similar title.

860. Moreover, as regards both these kinds of goods, one must diligently distinguish between direct ownership, administration, and usufruct. - 1. Direct ownership of all goods that come to children by just title pertains to them, although they are minors and not emancipated, since they are capable of such ownership. Just title is donation, inheritance, separate industry, etc. - 2. Administration of all goods is in the possession of the father or guardian, who must supply the incapacity or inexperience of the children, until they themselves are of age or emancipated. Those of age obtain full administration of their goods, but emancipated persons restricted administration. - 3. Usufruct belongs either to the children or to the parents, according as positive law establishes.

861. In France. Usufruct, generally, pertains to the father (or, he being dead, to the mother remaining in widowhood), until the emancipation of the children or the completed eighteenth year. From the proceeds, however, the offspring must be fed and educated according to their condition. - We said generally, because there are excepted: 1. goods that children obtain for themselves by their own labor and separate industry; - 2. goods that are given to them under the express condition that their usufruct not come to the parents. Civil Code, 384-387.

In Italy. Usufruct is conceded to the father or mother having paternal authority, until the children are of age or emancipated. It is lost by either parent who, after the death of the spouse, contracts new nuptials. Fructuary parents are held to procure for the offspring such education as is consonant with his fortune and condition. - There are excepted: 1. goods that children acquire for themselves by their own labor and separate industry; - 2. goods that are given to them with the condition annexed that the parents not perceive usufruct; - 3. goods that come to them, according to the disposition of law, while the father dissents. Code, 228-239.

In Spain. Usufruct is generally conceded to the father (or mother having paternal power). There are excepted a) goods that are given to children so that they may serve for their education; - b) goods that children acquire by separate industry, if with the father's consent they live at their own expense outside the paternal home; - c) goods of children who have been recognized or adopted; indeed the father cannot even administer the goods of these unless security has been given (Gury-Ferreres, n. 545). Code, 160-162, 166.

In Austria. Usufruct belongs to children even minors and not emancipated, the expenses of education nevertheless being deducted. And although a son not yet emancipated does not have the administration of his goods, nevertheless he can freely (and therefore also validly, if nothing else opposes from another source) dispose: 1. of goods acquired by his own industry, provided he himself does not receive support from his parents; 2. of goods that are attributed to his use, provided he is pubescent (Delama, n. 37). Code, 149 seqq.

In Germany. The new law distinguishes the goods of children under paternal power into free and not free. - Those are called free: 1. which children have obtained for themselves by their own labor and separate industry; - 2. which they have received by gift, the parents being excluded from usufruct; - 3. which, by living sparingly, they have set aside from goods that had been conceded to them in full power for living, while they lived outside the paternal home. - All the rest are called not free. The father has the usufruct of these with administration, until the time at which the son passes out of paternal power. The usufruct of free goods belongs to the son, but administration to the father or to the third person to whom the author of the goods committed it (Pelt, o.c., p. 34 seqq.). Code, 1617 seqq.; 1649 seqq.

In England. Usufruct pertains to the children. But whether the expenses of education must be refunded from the goods of the father, or from the goods of the children, the tribunals are accustomed to decide according to the circumstances of the case (Crolly, n. 456-465).

862. Special Questions. It will not be beside the matter here to institute discussion both concerning the right to wages that children acquire when laboring for their father, and concerning the right in small and movable goods that they receive from parents or kinsmen.

I. Concerning Labor in the Paternal Home. 1. A minor son does not have a strict right to wages for ordinary labor that he performs for the advantage of the family; but he possesses that right for extraordinary labor. Reason for the first: parents can by right require that he labor for conserving and increasing the domestic estate; this labor of minors is owed from piety. - Civil law also agrees, for example German Law, § 1617. Reason for the second: extraordinary labor (i.e. that which exceeds the expenses of living, or by reason of age or condition is not owed) is equated with labor undertaken by strangers, and therefore it merits wages. Cf. St. Alphonsus, III, n. 488, 544, 810; Lugo, o.c., disp. 5, n. 42; Delama, n. 34, q. 1.

2. A son of age, for labor even ordinary, of itself merits wages: for they are owed to a stranger; hence, by parity, to a son of age. But it must be considered that a son of age is sustained by his father, that by his labor he also amplifies the father's estate. From this it follows that the wage owed to the son often must be diminished, namely with expenses for food, clothing, and habitation deducted, and with attention given to the hope of inheritance.

Note. Some authors attribute to the son, even a minor, a strict right to wages; others deny that a son of age possesses a right to salary for ordinary labor. Cf. the diverse opinions apud Tanquerey, II, n. 149; Noldin, II, n. 354; Lehmkuhl, in Theol. mor. and in Cas. Consc.; Delama, l.c. ad 1. Besides, some civil Laws (for example German Law, n. 1617) in general deny children a right to wages. - From this it follows: parents do not act unjustly if they do not increase the inheritance for laborious children; but children who, before the separation of goods, have set something aside for their labor, after the fact are not to be compelled to restitution, especially if other children contributed nothing toward increasing the domestic estate. But since the right to wages for ordinary labor, on the part of children of age, is not altogether certain, before the fact there is not securely present a right of compensation (n. 917).

II. Concerning Labor Outside the Paternal Home. 1. A minor son laboring outside the home, and hired out by the father, labors in the name of the father. Therefore the profit that he acquires seems to be a profectitious good, pertaining to the father. Reason: the same debt of piety, which we indicated above, flourishes here. Nevertheless, he does not certainly sin against justice if he retains something. Cf. German Law, 1651.

2. A son hiring out his own labors makes the profit his own. He would be held from justice to pay something to his parents if he were living at the expense of the family; from piety if the necessity of the parents were present.

3. A son doing business in the name of his father makes his own only that which he has gained from special industry, even if by theft he had procured his father's money for himself. Indeed, in this last case, if namely he intends to do business in his own name, the whole profit is to be ascribed to the son (Lehmkuhl, I, n. 565).

III. Concerning the Right in Goods Received. 1. In goods that are not immediately consumable by use, as garments, books, etc., a child under paternal power possesses only useful ownership; for, from common sense, the child, as regards those things, does not receive property, but only use. Therefore he cannot without the consent of parents or kinsmen, at least reasonably presumed, sell, give, or alienate them.

2. In goods that are consumable by first use, as foods or money, if they have been given without any condition, a child under paternal power has perfect ownership: therefore he can dispose of them at will. - But if they have been given under some condition, for example of buying books, paying board, etc., he sins against justice by spending them for other uses.

Whether, and when, a child under paternal power is held to restitution, see n. 907.

863. Things to be noted beforehand. 1. Goods serving in marriage can be ordered in many ways; hence it is necessary to know the diverse regimes of goods, so that the ownership of each spouse may be rightly delimited. - 2. The goods of wives can be either dotal, or paraphernal, or common (III, 489; H. Ap., tr. X, n. 5). This depends either on the will of those about to marry, or on law.

Dotal goods are those that are handed over by the wife, or by parents, or by another to the husband, for sustaining the burdens of marriage, i.e. for providing for the family.

Paraphernal goods (extra-dotal) are those that the wife has besides the dowry, and in which there is no right of the husband, except that which she herself has committed to him. - To paraphernal goods are to be reckoned those which a wife acquires for herself by peculiar skill, by administering the family estate more prudently and attentively, or by subtracting for herself from the goods conceded to her by her husband for food, clothing, and recreation.

Common goods are those that from the pact of the spouses (or from law supplying the place of pact) are brought into society. To these are rightly referred those things that either spouse acquires by ordinary labor and by care of the family estate.

Authors sometimes speak of goods of the family. These are those that have been given for the prosperity of the family or are acquired by common labor, although they cannot always be called common, because the husband can have ownership of them (Noldin, II, 376, c.).

864. Principle. From natural law, either spouse remains owner of his or her own goods, with the obligation of sustaining, according to a proportionate part, the burdens of marriage; but from positive law and from pact, the rights of spouses in goods can be very diverse. Therefore let us see the principal dispositions that the various Codes, or laws, of various peoples contain concerning this matter.

Roman Law. 1. It adjudicates the usufruct and administration of dotal goods to the man, but property to the wife; and therefore, when the man is dead, she is preferred to all his personal creditors for reclaiming the dowry. She can also reclaim the dowry during his life, if it is feared that the man may become unable to restore it. But if the dowry consists in money or consumable goods, or even in stable goods that are handed over to the man valued and with the intention of sale, then the man acquires full ownership, with the obligation of restoring the value when the marriage is dissolved; and therefore, if goods of this kind perish, they perish for the man. - 2. Of paraphernal goods the wife has full ownership and use. - 3. Of common goods (if they are present from a special pact) the property and use pertain to both spouses; but administration to the husband alone (III, 542; H. Ap., l.c.).

865. French Law.⁰¹ It concedes to the betrothed, before marriage, the faculty of making as regards their goods all the pacts that they wish, provided these pacts happen before a public notary, and are not opposed to good morals or laws, or to paternal or marital authority. But if the making of a pact of this kind is omitted, the betrothed are judged to enter a legal community. Now:

I. The Legal Community stands thus: 1. Immovable goods acquired before the nuptials, or afterward coming by donation or succession, remain proper to each spouse. But the proper goods of the wife become quasi-dotal, and the husband alone has their usufruct and administration; yet in such a way that without the wife's consent he cannot alienate them. - 2. Common become both movable goods possessed before marriage, and the fruits of immovables and other revenues, and also immovables acquired in marriage from the goods or by reason of the community. The husband can alienate, pledge, etc., these goods without the wife's consent. Yet concerning immovables, or concerning the totality or a quota of movables, he cannot dispose by gratuitous title. When the community is dissolved, the goods and burdens are divided into two parts, unless the wife or her heirs prefer to renounce the goods, and thus exempt themselves from the burdens.

II. By the Conjugal Pact can be constituted: 1. The regime of conventional community, by which the legal community is extended or restricted with respect to goods. - 2. A regime excluding community (but without separation), namely by which all the goods of the wife become quasi-dotal, and are handed over to the husband for use and administration, without the faculty of alienating. - 3. The regime of separation, by which all goods of the wife become quasi-paraphernal; for the wife retains the use and administration of all her goods, and contributes to the burdens of marriage only a third part of her revenues according to the norm of law, or another sum,

and this determined, whose full ownership is transferred to the husband. - 4. The dotal regime, by which dowry strictly such is constituted, nearly as in Roman Law.

It should be noted: a) There is no regime in which the wife is entirely independent from the husband;⁰¹ namely none in which she can alienate her immovable goods, or present herself in civil court, without the authority of the husband or judge. Nevertheless, even against the will of the husband, she can make a testament. - b) In the prenuptial contract, the betrothed can mutually receive certain donations from themselves or from others, which after the nuptials are prohibited by law.

866. Italian Law.⁰² It has these things proper to itself: 1. Dowry is generally constituted according to the rules of Roman Law (n. 864). This can also embrace future goods of the bride; but after the marriage has been entered, it can no longer be constituted or increased by the spouses. - 2. The betrothed before the nuptials can enter community, not indeed of goods, but of the fruits proceeding from those goods themselves, whether movable or immovable, whether present or future. But that society cannot comprehend debts and credits existing before the marriage. In other matters, Italian Law agrees sufficiently with French Law.

Spanish Law.⁰³ Dowry can be constituted, as in Roman Law; likewise paraphernal goods. But a prenuptial pact, which can be instituted, being excluded, the legal community flourishes, as in French Law. When the community is dissolved, first dowry and paraphernal goods must be restored, then common debts paid (Gury-Ferreres, n. 551, where all things are treated at length).

867. Austrian Law.⁰⁴ The goods of wives are subjected to almost the same rules as in Roman Law. - Only these things are to be noted: 1. Community of goods can be stipulated, whether before or after marriage has been entered, but under the conditions and in the form prescribed by law. Regularly, community is judged to have been entered only for the case of death; and therefore, during marriage, the property of common goods belongs to both spouses, the usufruct to the one to whom it belonged before the pact, and administration to the husband alone. When the marriage is dissolved, from the common goods that remain, half pertains to the surviving spouse. - 2. A special pact being excluded, either spouse retains the right of property of his or her own goods, and also the exclusive right to all those things that he or she acquires for himself or herself during the marriage, or that come to him or her. Yet the use and administration of the wife's goods are judged to have been handed over to the husband, as long as she has not contradicted. In doubt, because the wife must help the husband, the profit is presumed to have been made by the husband.

868. German Law. There is a legal or conventional regime (cf. Pruner, n. 609; Pelt, o.c., p. 39).

I. The Legal Regime⁰⁵ imitates the dotal law of Roman Law. Administration and usufruct of dotal goods belong to the husband, who nevertheless, if the wife requests it, is held to explain the state of the things;⁰⁶ nor can the husband alienate or pledge those goods without the consent of the wife. But that they may be placed in safety, there belongs to the wife the right of seeking security or separation of goods. But ownership of paraphernal goods and their free administration are in her possession. As regards debts, see § 1410-1426.

II. The Conventional Regime admits various pacts, which can be entered before or after marriage, and even after marriage be dissolved or changed.⁰⁷ - 1. Universal community can be instituted, by which all goods of the spouses become common, both those possessed before marriage and those acquired afterward; but it must be well noted that in this community of goods either spouse can reserve certain goods to himself or herself, which in the dotal regime and in partial community is granted to the wife alone;⁰⁸ or partial community, by which only a determined part becomes common. This community is twofold: a) community of acquisition, in which both profits made by the spouses and revenues of goods brought in become common goods; but goods, both movable and immovable, possessed by either before marriage remain proper to each. The wife (but not the husband) can reserve paraphernal goods to herself; - b) community of movable goods, which adds to community of acquisition the communion of movables possessed before marriage, and is subject to nearly the same rules as the legal community in French Law.⁰⁹ Administration of common goods belongs to the husband, who nevertheless cannot dispose either of immovables, or of the totality or quota of movables, without the consent of the wife.

2. Separation of goods can also be instituted either from the beginning, or during marriage, in which case the goods of the wife are held as paraphernal.

Under any regime, the wife can, without the consent of the husband, accept or repudiate an inheritance, legacies, and gifts offered to her.

In marriages contracted before January 1, 1900, the condition of goods continues to subsist according to the laws that flourished up to this time.¹⁰

869. English Law. From the year 1870 (August 9), a wife can by full right make her own, without the consent of the man, those goods that she has acquired by separate industry (by separate art or trade), so that both usufruct and administration pertain to her alone. - By the more recent law also (January 1, 1883), a woman who has married remains of full right, like an unmarried woman, concerning possessing, acquiring, and administering her goods. Wherefore, as regards the right of the husband, one must see what goods perhaps were conferred on the husband in the marriage contract.¹¹ - Concerning the inheritance of the husband or wife, see n. 1076-1078.

870. From the things said conclude: 1. Before marriage justice is violated: a) by either spouse, when one deceives the other concerning goods, by amplifying them, or concerning debts, by concealing them; - b) by both, when in the prenuptial pact they express what is false (for example if the bridegroom declares that a dotal good was given to him, which in fact was not given), so that a third party is deceived thereby.

2. After marriage injustice is committed: a) by the wife, if from goods either common or personal to the husband she takes away anything that is necessary neither for her own support nor for the support of her own people (father, mother, or offspring received from a prior marriage); or if in alms and gifts she exceeds the custom that other wives of the same condition observe; if, when the marriage has been dissolved, she renounces the community, or does not make an accurate inventory, in fraud of creditors; - b) by the husband, if he dissipates the dowry of the wife, or her paraphernal goods, or common goods, by juridic acts against the tenor of law, for example by giving by gratuitous title some immovables, or the totality or quota of movables; and in all these cases he is held to restitution.¹²

The question is whether a husband who dissipates common goods unworthily, by living lavishly, yet not against the tenor of civil law, besides the sin against piety that he certainly commits, also sins against justice? It is controverted: authors commonly affirm, in the case in which the wife has handed over all her goods, or the greater part of them, into community; otherwise, if she has handed over only the fruits, as happens from Italian Law (St. Alphonsus, III, 541, 5; Marres, de Just., n. 69).

Things to be noted as regards the wife. The wife is not a maidservant, but a companion, a helper of the man. Therefore it is equitable that there be conceded to her a certain liberty in administering the domestic estate, in making ordinary alms, and this even if the man does not know it, or, from hardness or avarice, is altogether unwilling. Cf. Ami du Cl., 1913, p. 377.

Therefore a wife can, if the man squanders goods to the detriment of the family, hide them and reserve them for the good of the family; or subtract something for the necessary expenses of the family. - She can also, if she does not have paraphernal goods, nor the man wish to give what is necessary, take something from the common goods, provided it is not very notable, for relieving the necessity of parents or children received from a prior marriage (probably, also brothers and sisters). - Finally she can employ means so that, according to her condition, after the man's death necessary things not be lacking to her: understand, if law has not sufficiently foreseen all things (cf. German Law, 2303).

601. • Children of a family are properly called in this place children of either sex born from legitimate marriage, or legitimated, and still subject to paternal power.

It is said: 1° Born from legitimate marriage, or legitimated. For the dominion of illegitimate children, if and insofar as it is not defined by civil law, is governed by natural right.

It is said: 2° Still subject to paternal power, or minors, not emancipated from paternal power. For although the obligations of children existing from natural right, and which exact offices of honor, love, and reverence toward parents, can never be dissolved, nevertheless this does not have place as to those which natural right does not impose forever, such as obedience, or which draw their origin from civil right alone.

602. • In Roman law various goods of children of a family are distinguished;² but since these distinctions are not found in the laws which we use, we set forth here only the dispositions of these. Hence:

603. • Quaer. 1° How many kinds of goods of children of a family are distinguished, and what right belongs to the father in them?

Resp. Among goods which come to a child of a family, some come from his own labor, others from another title, for example from inheritance, legacy, or donation. The father has the usufruct of these if either by law of the State,¹ or by the will of the testator or donor, this is assigned to him; but he has the administration² in every case, unless perhaps goods have been given or bequeathed to the son on this condition, that custody of them be committed to others and not to the father. But if the father has administration alone, the son who uses those goods against the will of the father or without his knowledge will indeed sin against the fourth precept of the Decalogue, but not against justice strictly so called: for in this case nothing of his own thing or of the fruits of the thing perishes for the father; for both the thing and the fruits of the thing, in the supposition, are the son's, not the father's. Yet in this case the son would sin against justice if the father also had the usufruct: for he would deprive the father of the part of the fruits owed to him.

The proper labor by which a son acquires goods is either private or common with the father. It will be private, if for example he carries on trade in his own name; if he exercises an art entirely diverse from the father's art; if he labors in a workshop outside the paternal house; if as a hired man he has hired out his work in his own name. Those things which the son acquires by private labor, with law forbidding this set aside,³ or with the father's consent, whether express or tacit,⁴ supposed,⁵ he acquires for himself, yet with the burden of compensating the father for the expenses of food, clothing, and shelter.

What if the son exercises a common industry with the father?

Resp. Setting aside a contract, for example of partnership, the son lacks right both to a part of the gain procured by his labor, because in this supposition he conducts the father's affairs only as helper or mandatary, and, if at least his labor is already compensated elsewhere by a just wage, to a stipend: for a double wage cannot be asked for the same labor. I say: if his labor is already compensated elsewhere by a just wage, for example by the increase of inheritance through equal labor of the brothers, or by food, clothing, etc., provided to him. Hence, that is, because of defect of compensated labor, he has a right to a stipend; and therefore he can demand it as owed to him by strict right, or, if from reverential fear or from another cause he has not demanded it, he can procure it for himself by hidden compensation, if his labor was certainly not owed. Such would be the case if either from his condition he was not bound to such labor, or by an indubitably extraordinary and undue excess he labored more with the father than the other brothers.¹

604. • Quaer. 2° Does a son have perfect dominion in movable goods given to him by parents or relatives?

Resp. 1° Affirmatively, if they are consumable by first use, because they are given absolutely to him for use, as for example money granted for amusements (pocket money). Make exception if they are given for a determined use, as money for buying clothes or books, etc.

Resp. 2° If they are not consumable by first use, such as books, clothes, etc., the son generally has, that is, outside the case of consent of the parents either express or reasonably presumed, only useful dominion of them, because parents commonly intend to confer nothing else upon them. Wherefore, if the son disposes of these things against the right granted by the parents, a burden of restitution arises.

I say. Every man, and only man, is capable of dominion. The reason is that, according to St. Thomas, the foundation of dominion is rational nature. And indeed, every man, and only man, can know the utility of things, will to apply them to himself if they belong to no one, and dispose of them thus applied to himself for his own end and his own advantage. Besides, he alone is capable of right or dominion who is capable of injury; but he alone suffers injury who suffers it against his will: however, he must be unwilling not indeed through the will by which he wills his own thing, but through the will by which he wills to retain the right to the thing itself, or to oblige others not to take it away. But brute animals cannot have such a will, since they can know neither moral obligation nor turpitude. Therefore.

Hence neither little children nor the insane themselves are incapable of dominion, as is clear from the practice of all peoples and from the reason just given; for, as was said, dominion is founded in the rational nature of men and its powers, but not in the actual exercise of those powers. Cf. St. Thomas, 2-2, q. 66, art. 1. - Lugo, disp. 3, n. 1.

Children of the family here are properly called those who, born from legitimate marriage or legitimated, of whatever sex they may be, are still subject to paternal power. - I said 1st. born from legitimate marriage or legitimated, because concerning the dominion of those who are spurious, judgment must be made only according to the equity of the right of nature, but not according to the special dispositions of the law. - I said 2nd. still subject to paternal power, because since only children not yet emancipated are reputed by law as infants, limitations are given only concerning their dominion, and therefore the question can be raised concerning them alone.

But emancipation can take place either by general law or by privilege and special declaration, and at a diverse age of children of the family, according to the diversity of regions. - Among us, with two or three States excepted, emancipation takes place in the twenty-first year both for males and for females. Cf. Wells, Every Man His Own Lawyer, p. 240.

You Will Ask. What can be the diverse goods of children of the family, and what dominion can they exercise?

Response 1st. From Roman Law the goods of children are: 1st. castrensia, that is, acquired on occasion of military service; 2nd. quasi-castrensia, or acquired from some public office, e.g., of judge, physician, etc.; 3rd. adventitia, which come from inheritance or donation, yet not made by the father or with a view to the father; 4th. profectitia, which the son gains from paternal goods, e.g., by carrying on business with the father's money, or which are given to him with a view to the father. - Moreover, of castrensia or quasi-castrensia goods the son has both dominion of property and usufruct; he also has administration if he has attained puberty. But the property of adventitia belongs to the son, but usufruct and administration to the father; finally profectitia in all respects belong to the father. Cf. St. Alphonsus, n. 488.

Response 2nd. Since, as Kenrick says, "these distinctions are not in force in the law which we use," the proposed question must be answered by distinguishing between the case in which the child of the family receives goods by title of donation or inheritance, and the case in which he acquires them by virtue of labor or industry. - In the first case, administration belongs to the father, but dominion of property and usufruct to the son. In the other, there is need of a new distinction; for either 1st. the son labors outside the paternal house and is not fed by the father, and then he will be able to make the goods which he gains his own, because he has been dismissed or is reputed dismissed; or 2nd. the son labors in the paternal house or outside it and is fed by the father, and then all things which he gains belong to the father.

But in that last case a threefold exception must be made in favor of the son, namely: 1st. if the father remits from his right, and he is considered to remit if he permits the son to contract marriage; 2nd. if the son by reason of his condition is not held to labor; 3rd. if he has evidently and undoubtedly labored more than the others of the family. - Although this last opinion can sometimes be held in practice, at least after the fact, nevertheless it is not to be taught publicly everywhere on account of the inconveniences which would follow through abuse. - Cf. St. Alphonsus, nn. 488 and 544. - Lessius, lib. 2, cap. 12, n. 81. - Kenrick, tract. 10, part. 1, n. 41. - Kent, Comment., vol. 2, nn. 191 and seq.

See Bouvier, Law Dictionary, 8th Edit., Parent and Child. Cf. Right to earnings of the child.

From Roman Law the goods of a wife are of three kinds, namely:

1st. Dotal goods, or goods which the wife already possessed, or which her father conceded to her for contracting marriage: the administration and usufruct of these are in the possession of the husband, but direct dominion is in the possession of the wife.

2nd. Paraphernal goods, or goods which the wife reserved to herself besides the dowry: these belong to her by full right.

3rd. Common goods, or goods which, by agreement had between the spouses or by determination of law, are brought into a certain partnership: of these, both direct and useful dominion belong to both spouses. - Cf. St. Alphonsus, n. 489. - Elbel, n. 69.

But in this region the three aforesaid names are taken otherwise, and the dominion of wives is different in it. For:

1st. "The dotal goods of a wife, according to our customs," says Kenrick, "are the third part of the immovable goods which the husband has possessed during marriage, which therefore he cannot alienate to the prejudice of the wife, unless she herself, questioned separately by a magistrate, has freely consented, and by her signature has renounced her right. If the husband by testament has left certain goods to the wife, that her dowry be excluded, it is in her power to reject them so that she may enjoy her right. Moreover, only during her life does her right remain, and when she has died, it passes to the heirs of the husband." Cf. Kenrick, n. 45. - Bouvier, Law Dictionary, under the word Dower.

2nd. Paraphernal goods among us mean all goods which pertain to the clothing or ornament of a woman, according to her condition, and which she used during marriage: these after the death of the husband belong altogether to the wife. - Cf. Kenrick, n. 42. - Bouvier, Law Dictionary, under the word Paraphernalia. - Wells, Every Man, etc., p. 82.

3rd. Common goods are those which are acquired by husband and wife together by title of purchase or of donation had during marriage. Each spouse possesses these goods as if the two spouses were one person, so that neither can sell them without the consent of the other. Cf. Kenrick, n. 44. - Kent, Comment., vol. 4, part 6, lect. 55. - Bouvier, Law Dictionary, §§ Dower, Husband and Wife.

Question 1. Can a wife give alms from common goods?

Response. Affirmatively, even if otherwise she has her own goods, provided that it is done according to the custom of other women of the same condition. The reason is that a wife is not a servant but a partner; therefore she must have a certain administration in the house of the husband. Besides, the husband is deservedly presumed to consent to those things which are done by the wife according to the respectable custom of condition and region; and if he shows himself unwilling, such dissent is considered irrational, because the husband cannot deprive the wife of a right conceded to her by legitimate custom. - Cf. St. Alphonsus, n. 540. - Kenrick, n. 46.

Question 2. Does a wife sin by giving something from common goods for relieving the necessity of parents or children whom she has had from a prior marriage?

Response. Negatively, if she does not have her own goods, and through this necessary things are not lacking to the husband and his family. The reason is that by the right of nature the wife is held to relieve the aforesaid blood relatives, and therefore the husband is reasonably presumed to consent to this. Cf. St. Alphonsus, n. 542. - Kenrick, n. 46.

Question 3. Is the wife held to restore goods given in this manner when, the husband having died, she comes into the inheritance of dotal goods, or before his death she has acquired paraphernal goods?

Response. Negatively, if the goods given are of small moment, because then they are held as common alms, which, if they are made moderately, do not carry with themselves the burden of restitution. Indeed, the response must also be negative, at least probably, if the goods withdrawn are of greater moment; because all burdens which, while marriage stands, naturally befall one of the spouses are considered common to the other, and therefore the husband cannot be reasonably unwilling.

The goods of clerics are distinguished into four kinds, namely: 1st. Patrimonial goods, which come from paternal inheritance or from any other profane cause, for instance from donation, succession, etc.; 2nd. Quasi-patrimonial goods, which are also called quasi-ecclesiastical or casual, and these are those which are acquired on occasion and in view of functions, e.g., by celebrating Mass, preaching, etc.; 3rd. Ecclesiastical goods, which are received from benefices of the Church, e.g., from revenues of benefices, etc.; 4th. Parcimonial goods, which a cleric sets aside by living sparingly from the fruits of a benefice, and which he could consume by living honorably.

I say. Clerics have perfect dominion in patrimonial, quasi-patrimonial, and parcimonial goods, so that they can dispose of them at will. The reason is both that that dominion is nowhere found restricted, and that in this all theologians, even the stricter ones, agree.

Although a benefice-holder may have other non-beneficial goods, he can freely use and enjoy benefice fruits which are necessary for his honorable support; but he is held by the obligation of expending superfluous fruits for the poor or for pious causes, with the prescription of can. 239, § 1, n. 19 being saved (Can. 1473).

§ 1. Unless the contrary is proved, those things which are donated to rectors of churches, even of religious, are to be presumed to have been donated to the church.

§ 2. A donation made to the church cannot be repudiated by its rector or Superior without the license of the Ordinary.

§ 3. If a donation has been illegitimately repudiated, on account of the damages which have arisen thence an action is given for restitution in full or for indemnity.

§ 4. A donation made to a church and legitimately accepted by the same cannot be revoked on account of the ungrateful disposition of the Prelate or rector (Can. 1536).

Question 1. Are clerics badly expending the surplus of ecclesiastical goods held to restitution?

Response. Certain strict theologians, such as Collet and Antoine, respond affirmatively, because they say: clerics are only administrators and stewards of ecclesiastical goods. But the opinion denying is probable, because although it is established concerning the precept of giving these superfluous goods, nevertheless it is not established concerning the origin of this obligation, namely whether it proceeds from justice. This opinion is also called probable by St. Alphonsus in his reformed propositions, especially on account of the authority of St. Thomas. Observe moreover that for the gravity of fault in the violation of this ecclesiastical precept there is required a quantity much greater than in theft, namely, according to the truer opinion, about a twentieth part of the superfluous goods. - Cf. St. Thomas, 2-2, q. 185, art. 7. - St. Alphonsus, n. 491; and QQ. Reform., n. 10.

Question 2. Whether the annual pension which is given to our Missionaries from the renting of pews is to be assimilated to ecclesiastical goods?

Response. According to the Constitution Romanos Pontifices, this annual pension is to be held as ecclesiastical goods.

§ 1. Temporal goods, whether corporeal, both immovable and movable, or incorporeal, which belong either to the universal Church and to the Apostolic See or to another moral person in the Church, are ecclesiastical goods (Can. 1497).

I say. Any man from natural right has a right in the fruit of his own ingenuity or industry. For if a thing bears fruit for its owner, a fortiori this must be true concerning internal faculties, since nothing can be more proper to a man. Wherefore the inventor of some art has a strict right that his secret not be stolen and, against his will, divulged to the public; but if this is done, the one causing damage will be held to restitution according to the measure of the injury inflicted. - Cf. Wells, Every Man, etc.; qq. 243 and seq.

Question 1. Does he violate another's right who publishes in type a manuscript work without the consent of the author?

Response. Affirmatively; and the reason is that it is established among all that a manuscript work is not in the public domain, but lies under the dominion of the author. The same must be said of one who would publish in type the public lectures of some professor or the sermon of an orator; for to teach publicly or to preach is not to hand over one's work to another for publishing and selling. - Yet except the case if someone delivers again from the pulpit a sermon already heard as if composed by himself, both because through this he does not properly claim the thing of another for himself, and because he does not necessarily and of itself harm the prior orator. - Cf. Carrière, n. 61.

Question 2. Does he who has published a book in type have the right of preventing anyone from committing it to the press and selling it with damage to the author or to the bookseller to whom the author has transmitted his right?

Response. Affirmatively, by positive right prevailing in most places, just as in these States, provided nevertheless that the conditions or formalities required by law have been fulfilled. But if there is question of natural right, it is controverted, and to some the denying opinion seems probable, because the author has a right in his work as long as it remains his own, namely is not handed over to the community, and thus as it were becomes of common right. Wherefore according to these, if someone in this region committed to type a book published in Europe without the permission of the author, strictly speaking and looking only to the right of nature, he does not seem to be accused of the temporal pecuniary damage which the author would suffer thence. I said 1st. strictly speaking, because by such a manner of acting, if not a right properly so called, public uprightness and natural decency seem to be injured. - I said 2nd. looking only to the right of nature, because if the contrary has been provided through international stipulation, the violator certainly would be held to paying the fine and congruous compensation. I said 3rd. concerning temporal pecuniary damage, for if the same or almost the same book were published under another name, then the true author would be damaged in the goods of reputation, which can never be lawful, and a sin of this kind is designated by a special name among all nations. - Cf. Carrière, ibid. - Kenrick, tract. 10, part. 1, nn. 13 and 14. - Bouvier, Law Dictionary, Ed. 8th. Cf. Copyright, De lege lata among us (March 4, 1909).

Those are called minors who have not yet reached that age at which, apart from the authority of the father, or tutor, or curator, they can act civilly. A person who has not completed the twenty-first year of age is a minor.

A minor, if male, is judged pubescent from the completed fourteenth year; if female, from the completed twelfth year.

One not pubescent before the full seventh year is called an infant or boy or little child, and is judged not master of himself; but after the seventh year has been completed, he is presumed to have the use of reason. All who are habitually lacking the use of reason are assimilated to an infant. - Cf. Can. 88. A minor in the exercise of his rights remains subject to the power of parents or tutors, except in those things in which the law regards minors as exempt from paternal power.

I say, 1st. By Roman law, minors not pubescent, even if they have the consent of the father, are not obliged if they contract concerning camp goods or quasi-camp goods; but those who are pubescent are obliged, provided it is not a question of alienating immovable goods or precious movable goods. But concerning profectitious and adventitious goods they can by no means dispose, because regularly they do not have their administration. But wards, by the authority of a tutor, and pubescent minors bereft of a father, with the consent of a curator, validly contract in all things, except immovable goods or precious movable goods, for which the decree of a judge is required.

I say, 2nd. By our law, minors can contract for things necessary for life and education, when the father or tutor does not supply them. But in other things they can indeed contract, but not irrevocably, so that if the contract certainly and evidently favors them, they can stand by it; otherwise they are able to rescind it. Cf. Wells, Every Man, etc., p. 240. - Kent, Comment. vol. 2, part 4, lect. 31, n. 235. - Kenrick, tract. 11, n. 5.

You Will Resolve. - 1st. A minor can use the benefit of the law with a safe conscience, excluding the case of bad faith, since the law was enacted in his favor. Nevertheless he cannot ask for rescission so that he may be exempted from restitution of money which he accepted as a loan and squandered, although he has derived no profit therefrom; for he is held to fulfill the obligation which he certainly knew while he was asking for and receiving the money. Nevertheless others deny this, because civil law, by establishing this incapacity of minors, intends to prevent minors from squandering their goods and wicked men from abusing their inexperience; but it would not attain this end unless it took away in both forums the obligation arising from these contracts. Therefore let others impute to themselves the damage which they suffer. - Cf. Genicot, n. 580. - Marres, n. 127. - Noldin, n. 474.

2nd. He who has contracted with a minor can stand by the contract until nullity is invoked by the minor or by his father or tutor. Nevertheless, private request is sufficient for him to be held to rescission, when the injury is entirely open.

3rd. The minor alone, both by himself and through others by whom he is represented, can ask for rescission of the contract; whence those who have contracted with him cannot oppose his incapacity.

4th. A minor can no longer impugn an act carried out in minority when, having now become of age, he has ratified it; because he was fully capable of contracting when he ratified the act.