The Ownership of Sons Under Family Power

372. Declarations. A son under family power is called a legitimate son (or legitimated son) who is not yet in his own right, but is subject to paternal power.

a. Distinction of persons. An infant is called a man up to the completed seventh year of age; an impubes is called one who has not yet arrived at puberty, therefore up to the fourteenth year of age if he is a boy, and up to the twelfth if she is a girl; a minor or minor of age is called one already pubescent up to emancipation; an adult or one of full age exists after emancipation. The year of emancipation is different in different laws.¹ A ward is called an impubes who by the death of the father or by sentence of the judge (for example, on account of a physical or moral defect of the father) has gone out from paternal power; for him by force of law a tutor is constituted. For a minor who, already pubescent, has gone out from paternal power, a curator is constituted for the administration of goods.

b. Distinction of goods. From Roman law the goods of sons were distinguished into castrensian goods, which a son acquires for himself from military service or another public office; profectitious goods, which a son receives from his father or gains from the goods of the father; adventitious goods, which come to the son from elsewhere, for example, by inheritance, donation, special industry and labor.

Recent codes distinguish: alpha. free goods, which the son acquires by separated industry (while outside the paternal house he devotes himself to an office or labor, even if he lives at home) or by donation or a similar title; beta. non-free goods, which the son acquires by non-separated industry (laboring at home together with the father, or trading from paternal goods).

¹ According to several codes (C. G., Section 2), children are minors up to the completed twenty-first year; according to C. A., Section 21, up to the completed twenty-fourth year. Emancipation according to some laws happens by that very fact when the son has attained legitimate age, according to others only must happen if the son wishes; with the conditions prescribed by law observed, it can also happen before this age.

373. Rights of sons, in establishing which recent codes nearly agree.¹

a. Of goods which are called free, the son himself, even if he is a minor, has ownership; but their administration, and sometimes also usufruct, pertain to the father.²

alpha. Therefore where the son has not only direct ownership but also useful ownership of these goods, all their fruits pass into his ownership. And if the son dissipates these goods against the will of the parents, he sins against other virtues, but not against justice. - Although a minor son acquires for himself of himself those things which he acquires outside the paternal house by furnishing service or exercising his own art or trading with another's goods, nevertheless, since their administration belongs to the father, he ought to hand them over to the father; and if he secretly retains some things for himself without the father's knowledge, he acts illicitly by arrogating the administration to himself.

beta. If the son labors outside the paternal house, but lives and is fed at home, he ought to pay for his sustenance. For the father is not bound to feed a son who can provide for himself. Wherefore he ought to hand over the whole wage to his parents for paying the expenses of sustenance, unless perhaps he receives an extraordinarily great wage, or undertakes labor altogether extraordinary, or the parents consent that he retain some part of the wage for himself. But if, without the father's knowledge and against his will, he secretly retains part of the ordinary wage for himself, so that he does not pay the expenses of sustenance, of himself he sins against justice.

gamma. In a twofold case sons are not to be accused of sin because they withdraw something of the wage received from the father's administration, provided they have paid as much as is sufficient for sustenance: alpha. if they notice that the parents do not reserve those things which remain over after sustenance for the sons, but spend them for superfluous uses; beta. if sparing parents do not grant to sons, for honest recreations, those things which they can prudently expect from them.

b. Non-free goods of themselves pertain to the father, even if the son is of full age. For the fruits of the labor which the son exercises not in his own name but in the father's name fall to the father. Wherefore if the son withdraws or dissipates these goods against the will of the parents, he acts against justice.

¹ C. A., Section 140 ff.; C. G., Section 1627 ff.

² From C. A., Section 149, administration alone; from C. G., Section 1649 ss., partly also usufruct pertains to the father.

374. Whether a son can demand some wage by laboring in the paternal business.

a. A minor son constituted under paternal power cannot demand a wage for his labor: for as long as he is under paternal power, the parents can demand by right that he labor for preserving and increasing the domestic estate, and that he be content with the sustenance received at home.

b. A son of full age can demand nothing for owed labor. That labor is judged owed which, according to the condition of the father, is necessary for the decent and suitable sustenance of the family: for the father has the right of demanding from the son services which are necessary for the sustenance of the family. For example, a farmer can demand that he be helped by his son in agriculture; but for those things which are owed from piety no stipend can be demanded.¹

c. A son of full age can of himself demand a wage for labor not owed, unless he intended to labor gratuitously; for parents have no right of demanding from sons services which are not necessary to their state and condition. But the son cannot demand a greater wage than an outsider would receive for the same labor; profit received from the business and labor pertains to the father, yet the father can by right subtract the expenses of sustenance and therefore diminish the wage.

alpha. But the son cannot demand the owed wage immediately; rather it must be committed to the father at what time and in what way he wishes to pay the debt owed to the son.

Ordinarily parents are not accustomed to pay wages to sons laboring at home, nor to increase the inheritance on account of their labors. Nor by this way of acting is justice judged to be injured: for ordinary labors are nearly compensated by food, clothing, peculium, and other advantages received in the paternal house. But on the other side, if sons, especially those of full age, remaining and laboring at home, steal something from paternal goods for the labors undergone or secretly compensate themselves, after the fact they are not easily to be compelled to restitution.

beta. And this, namely that the son cannot demand or take for himself another compensation for ordinary labor furnished in the paternal house, is valid even if other brothers meanwhile have been idle or have given themselves to studies; for these circumstances, merely external, do not make the profit of the labor fall not to the family but to the son. Yet parents are accustomed, either by donations or by other ways, to see to it that the industry and diligence of sons has its reward.

d. Yet if the labor not owed is extraordinary, which notably exceeds the customary labors of others or is very useful to the family estate, the son can of himself demand a greater wage or part of the profit, with the expenses for food deducted, unless from the beginning he had the express intention of furnishing those labors gratuitously; for if he had such an intention, it is not licit for him afterward, with his will changed, to demand a stipend.

If the son, without the father's knowledge, receives profit by trading from his goods, it must be distinguished in this way:

alpha. If the son acted in the father's name from the presumed permission of the father, he committed no sin, but the whole profit is the father's.

beta. If the son acted in his own name with money which he had made his own, the profit is the son's, but he committed sin because he took the money, and he ought to repair damage to the father if any arose in the father's business from the lack of money.

gamma. If the son acted in his own name with money which remained in the father's ownership, he can retain half the profit: for the matter can be considered as a partnership business, to which the father contributed the money, and the son the industry. Whether the son in this case committed sin depends on whether he acted against the father's will or from the presumed permission of the father.²

¹ Cf. Lugo, De iustitia, disp. 5, n. 42.

² Cf. Lehmkuhl, Casus consc., I, n. 565 ss.

375. Whether a minor son has ownership in goods given to him. - To determine the ownership which a minor son living outside the family has in goods given to him by parents or relatives, attention must be given to the will of those giving, whether expressed or reasonably presumed.

a. If goods are given absolutely, the son acquires full ownership of them, and therefore can dispose of them at will. In this way things consumable by their very use, money destined for recreation, and things which are given not by parents but by relatives, are usually given. Therefore if the son spends these things for vain uses, he sins by prodigality, but not by injustice.

b. If goods are given exclusively for a determined end, for example, money for buying books, garments, paying room and board, etc., the son does not acquire full ownership, and therefore he acts against justice and of himself is bound to restitution if he spends them for other ends, especially vain or dishonest ends. Yet he is often excused from restitution, because condonation by the parents can be supposed.

c. If things are given generally for occurring necessities, with no condition attached, the parents are judged to transfer full ownership of them to the son; wherefore he can spend some part of them, according to the state and condition of the parents, even on honest recreations. But if the son spends them against the will of the parents for vain uses, he sins against obedience, but not against justice.

d. If goods are given by the parents for use, as it is said, which are not consumable by first use, such as garments, books, etc., the son indeed has perfect ownership of them;¹ nevertheless he ought to use them according to the intention of the giver, to whom he owes obedience. Hence if, for example, he were to sell books and dissipate the money received from them, he would not indeed sin against justice, but nevertheless, besides prodigality, also against obedience.

Note. Of itself it is not to be advised that agreements be made between parents and sons who live together and labor in the paternal house; much less are secret compensations to be promoted. Rather, the piety of sons toward parents and of parents toward sons is to be fostered and inculcated. But parents are to be exhorted to grant a just peculium and an equitable wage to sons remaining and laboring with them.

¹ C. A., Section 151.

543. • Children under paternal power are here properly said to be those who, born from legitimate marriage, of whatever sex they may be, still lie under paternal power.

There are goods of children of different kinds, according to the diverse statutes of peoples.

I. Under Roman Law, goods are distinguished as: 1. castrensian, that is, acquired on occasion of military service; 2. quasi-castrensian, or acquired from some civil office, for example, of judge, physician, etc.; 3. profectitious, which a son gains from paternal goods, for example, by conducting business with the father's money: to this also belong goods which are given to the son with regard to the father; 4. adventitious, which come to the son from elsewhere than from paternal goods, unless they have been given to the son with regard to the father.

II. Under French Law are distinguished: 1. goods acquired by the separate industry of the son, or given to him alone; 2. the remaining goods coming to the son. But goods acquired by separate industry comprehend the castrensian and quasi-castrensian goods of Roman Law, and besides these, whatever the son gains by separate labor or commerce.

544. • Principles from Roman Law. I. The son has perfect dominion of castrensian and quasi-castrensian goods; yet if he is under puberty, he does not have their administration.

II. The father has perfect dominion of profectitious goods, provided the son is under paternal power ¹. Yet he can cede to the son the usufruct of the profectitious goods.

¹ Namely, if something is given with regard to the father to a son exempted from paternal power, it is no longer contained under the census of profectitious goods.

III. The son has dominion of property in adventitious goods, but the father has usufruct and administration ². But if they are consumptible, the father can dispose of them, but with the burden of restitution, as generally is accustomed to happen in the case of dominion thus divided.

² Yet sometimes also the usufruct devolves to the son. Compare Lugo (De Iust., disp. 5, from n. 23).

IV. If the son has conducted business with paternal goods in the name of the father, the gain is profectitious; but if in his own name, it is adventitious. But in doubt whether the gain came from the goods of the father or of another, it must be held as profectitious when the son has administered the paternal goods. - St. Lig., ibid.

V. If the son conducts business outside the house of the father from other goods than paternal goods, the gain is adventitious; but the gain of a son laboring in the paternal house and supported by the father is profectitious. - St. Lig., ibid.

545. • Principles from French Law. I. A son under paternal power has perfect dominion in goods acquired by separate industry, and in those things which are given to him alone, C.C. 387, although he does not have their administration before majority (21 years), or before emancipation. C.C. 389, 481 and following.

II. But in the remaining goods he has direct dominion before the completed eighteenth year, or before emancipation, which can take place after the fifteenth year. Meanwhile the father enjoys their usufruct; and likewise the mother, the father having died, provided she does not contract another marriage. C.C. 384, 386, 476 and following.

546. • Questions. Q. 1. Whether the son has perfect dominion in movable goods given to him by parents or relatives?

Resp. 1. Affirmatively, if they are consumptible by first use, because they are given to him absolutely for use, unless perhaps some restriction has been added, for example, for a determined use, as if it were money for buying books, etc.

Resp. 2. If they are not consumptible by first use, such as books, garments, etc., the son generally has only useful dominion, because parents almost never intend to confer anything else upon him.

Q. 2. Whether the son is judged to renounce the usufruct to which he has a right, if, while he sees and remains silent, the father receives this usufruct?

Resp. Negatively, at least generally speaking. The reason is that silence would be equivalent to renunciation only insofar as the son could easily protest; but most often reverential fear prevents him from being able to do this easily. - Common.

547. • Q. 3. Whether the son has dominion of those things which he gains in the paternal house?

Resp. 1. Affirmatively in the following cases: 1. if he is emancipated; 2. if he labors in his own name, but then the father is not bound to support him; 3. if he is not bound from his condition to labor; 4. if, by an extraordinary excess, he expends more work and labor than the other brothers.

Resp. 2. But negatively: 1. if the labor of the son is necessary for sustaining the life of the parents; 2. if he makes a small gain, because it would scarcely equal the expenses made for him by the parents.

Resp. 3. More probably negatively, even apart from the aforesaid cases, if the son labors and gains rather notably before his brothers, but not by an extraordinary excess; because then the son is judged to act as a member of the family, and thus the whole gain ought to yield to the good of the family. Besides, the peace of families demands that the cupidity of sons not be indulged beyond what is equitable, so that the gate to innumerable lawsuits may be closed. - St. Lig. (at least practically), n. 488 and 544. - Billuart. - Laymann. - Gousset, n. 684.

Nevertheless the opposite opinion appears sufficiently probable, because the son is not of a worse condition than a servant. But the son ought not per se to demand that gain before the death of the father, since it is difficult before then to judge whether the son has suffered damage or not. - Thus Pontas, word Compensation. - Lessius, l. 2, c. 12, n. 81. - Elbel, n. 77. - Collet, c. 2. - Bouvier, c. 2, art. 1. - Carrière, n. 244. - Vernier, n. 340. - Ituriaga, t. 1, cas. 3. - See Casus, n. 503 and following.

Moreover in practice one must not recede from the first opinion ³, at least before the fact, because of the danger of hallucination. Besides, the circumstances in which both the son and his coheirs are placed must be weighed, so that one may judge what the equality of strict right requires.

³ When the Author says that in practice one must not recede from the first opinion, while otherwise he confesses its opposite to be probable, he must not be understood as though an obligation ought or even could be imposed on anyone; for the Confessor is not a legislator, nor does he have the power of imposing or declaring a certain obligation when this is uncertain: and it is indeed uncertain when it is probable that it does not exist. Therefore the Author only intimates this, that that practice is prudently to be recommended: prudently, I say, lest while he fears hallucinations in the penitent, he himself hallucinate more gravely, and thus deprive the penitent of a not unjust utility.

But although the second opinion can sometimes be held in practice, at least after the fact, nevertheless it is by no means to be taught publicly on account of the inconveniences which would follow from it through abuse ⁴. - Thus Bouvier, ibid. - Carrière, ibid.

⁴ But neither should the first opinion be taught publicly, on account of the graver inconvenience of injecting a false conscience, which bears this mere fruit, that it builds unto Gehenna.

144. 1. Notion. Children under paternal power are called legitimate, or legitimated,² children who are still under paternal power, and who therefore are neither emancipated nor of age.

¹ Lessius, l.c., n. 7-12; Lugo, disp. V; St. Alphonsus, n. 488; Carriere, n. 226-245; Ball. P., n. 43-50; Marres, l. I, n. 28-39.

² Legitimate are those who have arisen from a marriage contracted according to the laws; legitimated are those who, although not born from a legitimate marriage, nevertheless afterward by the authority of the Prince acquired the rights of legitimate children.

Now they become of age at the age determined by law, i.e., in France when the twenty-first year has been completed. - But they are emancipated either explicitly, by a special juridical act, or implicitly, by contracting marriage.

145. 2. Principles. (A) The right of possessing, which naturally belongs to minors, is restricted by various limits according to various laws, especially with regard to the administration of goods; and rightly so: for although they are capable of dominion as soon as they have acquired the use of reason, they are judged not mature enough to administer their own affairs prudently;¹ moreover certain burdens are incumbent upon them in relation to parents, as is explained in the Treatise on the Various Obligations of States, n. 972-973.

¹ By Roman law, which the older authors follow, the goods of children were of a fourfold kind: military, which children acquired by reason or occasion of military service; quasi-military, acquired by reason of some public office; profectitious, acquired from the things of the father, or in view of the father; adventitious, which came from elsewhere. Cf. Ball. P., n. 44-45.

146. (B) By French law, (a) children, even minors, retain direct dominion over all goods legitimately coming to them; (b) but they do not have usufruct before the eighteenth year of age, or before they are emancipated; unless there is question of goods acquired by separate industry, - or given under the express condition that neither father nor mother enjoy them, - or coming from a succession in which the parents have been declared unworthy. - Outside these cases, the usufruct yields to the father, or, when he is dead, to the mother if she has not entered a new marriage; this was established by way of compensation for the education of the children; (c) but the administration of goods is in the hands of the parents or tutor, until the children become of age or emancipated.²

² Civil Code, a. 371-396; a. 476-487; a. 730; Planiol, I, n. 2105-2238; Allegre, I, p. 256 sq.; Supplement for France, p. 21*-24*.

147. 3. Corollaries. (A) When there is question of the right which children have in small goods given by parents, attention must be paid to the intention of the parents, whether express or reasonably presumed: (a) if they have been given absolutely, the children have full dominion over them, and can enjoy them for every legitimate use; (b) if for a determined use, e.g., for acquiring books, or carrying out studies, those act unjustly who expend the money received on another use, say on immoderate recreations or pleasures; (c) if the express intention has not been given, it can be discerned from the circumstances, especially from the nature of the thing itself; e.g., if there is question of a thing consumable by first use, it is judged to have been given in an absolute manner; if of a non-consumable thing, e.g., books, clothing, it is judged to have been given for a determined use, and therefore it cannot be sold so that the money may be employed for another use. - When money is given not by parents, but by relatives or friends, it is judged to be given absolutely, unless the contrary is said.

148. (B) When children, laboring either within or outside the paternal house, make profits, these things seem to be established:

(a) If they labor outside the father's house, and acquire something by their own industry, they can retain the profit for themselves, because this is implicitly granted by the parents by the very fact that permission to work outside the paternal house was given to them. - Yet except if they receive food and clothing from the parents: for then, since the father is not bound to support a son having his own goods, expenses of this kind must be compensated; - or if the parents labor under need: for then children ought to relieve their necessities, as is explained in the Treatise on the Various Obligations of States, n. 972-973.

149. (b) If within the house and from the goods or industry of the father the children gain profit, more probably they have a right to a stipend proportioned to their labor, which they can retain, after expenses for food and other things of this kind have been deducted, and with the obligation remaining of helping needy parents. The reason is that whoever labors has a right to obtaining wages, after expenses made for his sake have been deducted; nor is there any reason why minors should be deprived of this right. - I said more probably, because some think that nothing is strictly owed to minor children who labor at home, since the father can use their labor for administering domestic affairs, by way of compensation for the education given to them.¹ - Yet according to all it is expedient that children be allowed to gain something for themselves, so that they may be incited more efficaciously to labor.

¹ Thus Laymann, l. III, tr. 4, c. 8, n. 11; Antoine, Part III, c. V, quest. 13; Billuart, diss. IV, a. 4. But most theologians, both older and recent, favor our opinion. Since by French civil law, also flourishing in certain other regions, the usufruct of a thing acquired by common industry with the father belongs to the father until the minor son has reached the eighteenth year, he cannot occupy profit of this kind without the explicit or tacit consent of the father.

(c) When among several children some labor at home, and others can labor outside the house and gain something for themselves, it is equitable that the former obtain some stipend, after expenses for food, clothing, etc., have been deducted. - This especially holds if the children are already of age.

150. (d) So that all difficulties may be more easily removed, it is altogether expedient that an agreement be made between father and son when this son begins to gain something either at home or elsewhere; and this agreement must be observed. - If no contract has intervened, in practice it can be discerned from the circumstances, the customs flourishing in the place, and the presumed intention of the parents what the rights of the children are. If some doubt remains, before the fact hidden compensation is by no means to be counseled, by which namely the son would take something secretly from the parents as a reward of labor; - for this is full of dangers, as will be said below; - after the fact, those are not to be compelled to restitution unless they have morally certainly violated the rights of the parents.

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

— From this various corollaries flow.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

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.

Goods of the wife are distinguished of three kinds, namely paraphernalia [παρά, beside, φερνή, dowry] are those which the wife has or acquires beyond the dowry handed over to the husband. — Dotal goods are those which the wife hands over to her husband for the relief of marriage. — Common goods, which are acquired by the labor of either spouse during marriage.

I say first: The wife has full dominion, namely direct and useful, and the administration of paraphernal goods. So it is disposed in the law L. Hac lege, e. de pactis convent., l. 5, tit. 14. And reason urges this; because the wife, as to such goods that are her own, does not stand as a wife, but as a man distinct from her husband.

I say secondly: Of dotal goods the wife has direct dominion, but the husband useful dominion and administration. So in the law L. dotis 7, de iure dotium, l. 23, tit. 3, where it is said: "Equity suggests that the fruit of the dowry ought to belong to the husband; since he himself undertakes the burdens of marriage, it is fair that he also receive the fruits." By this law the second part of the conclusion is established, and the first is openly intimated. For if only the fruits of the dowry are granted to the husband, it follows that direct dominion remains with the wife. It is also evident from this: on the death of the husband, the dowry comes back to the wife without any contract, although she is not a necessary heir, at least where there are children. Therefore it is a sign that she previously had dominion over that dowry.

I say thirdly: Of the half of common goods the wife has direct dominion; because, as we were saying just now about the dowry, on the death of the husband this half comes to the wife. But useful dominion and administration belong to the husband; because, since he is the head and moderator of the family, to him pertain the fruits and administration of goods, not only dotal but also common.

All these things are of the common law; for there are various customs of places, which dispose otherwise. Thus, according to the first article of the custom of Liege, there are no paraphernal goods left to the free disposal of the wife unless a pact or convention intervenes to the contrary, but all present and future goods are subject to the dominion of the husband.

[From diverse European laws this matter is regulated as follows.

Principle. By natural law, each spouse remains lord of his own goods, with the obligation of bearing for his proportional part the burdens of marriage; but by positive law and by pact the rights of spouses over goods can be very diverse.

These are the principal dispositions which the various codes or laws of various peoples contain on this matter.

Roman law. First it adjudges the usufruct and administration of dotal goods to the man, however the property to the woman; and therefore, on the death of the man, she is preferred to all his personal creditors for reclaiming the dowry. She can also, during marriage, reclaim the dowry if it be feared that the man become unable to restore it. But if the dowry consist in money or in consumable goods, or even in stable goods, which are valued and handed over to the man with the mind of selling them, then the man acquires full dominion, with the obligation of restoring the value upon dissolution of the marriage: whence, if goods of this kind perish, they perish for the man. — Secondly. Of paraphernal goods the wife has full dominion and use. — Thirdly. Of common goods, if they exist by special pact, property and use belong to each spouse, administration truly to the husband alone.

Gallic law ²⁴⁶ grants to spouses, before marriage, the faculty of making concerning their goods whatever pacts they wish, provided these be made before a public notary, and be not against good morals, or the laws, or paternal or marital authority. But if the making of such a pact be omitted, the spouses are held to enter into legal community. — Now indeed: ²⁴⁶ Codex civ., art. 1387-1581.

First. Legal community is thus constituted: first. Immovable goods acquired before the nuptials, or afterwards 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 so that he cannot alienate them without the consent of the wife. — Secondly. Common goods 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 on account of the community. The husband can alienate, pawn, etc. these goods without the consent of the wife.

But he cannot dispose gratuitously of immovables, or of the universality or totality of movables. — The community being dissolved, goods and burdens are divided into two parts, unless the wife or her heirs prefer to renounce the goods, and so exempt themselves from the burdens.

Secondly. By conjugal pact can be constituted: first. The regime of conventional community, whereby legal community is extended or restricted with respect to goods. — Secondly. A regime excluding community, but without separation, whereby namely all the goods of the wife become quasi-dotal, and are handed over to the husband for use and administration, without faculty of alienating. — Thirdly. The regime of separation, whereby all the goods of the wife become quasi-paraphernal; for the wife retains the use and administration of all her goods, nor does she contribute to the burdens of marriage except a third part of her revenues, according to the norm of law, or another sum, this determined, whose full dominion is transferred to the husband. — Fourthly. The dotal regime, whereby a dowry strictly such is constituted, almost as in Roman law.

Let it be noted: first. There cannot be constituted a regime in which the wife is entirely independent of the husband, namely one in which she could alienate her immovable goods, or appear in civil court without the authority of the husband or judge. Nevertheless, even against the will of her husband, she can make a testament. Secondly. In the antenuptial contract, the spouses can mutually receive from each other or from others certain donations, which after the nuptials are prohibited by law.

Italian law ²⁴⁷ has these things proper to itself: first. A dowry is constituted generally according to the rules of Roman law. It can also embrace the future goods of the bride; but after the marriage begun it can no longer be constituted or increased by the spouses. — Secondly. The spouses can before the nuptials enter into a community, not indeed of goods, but of the fruits arising from those goods whether movable or immovable, whether present or future. But that society cannot comprehend debts and credits existing before the conjugal union. In other respects Italian law accords quite well with French. ²⁴⁷ Cod. civ., art. 1378-1446.

Spanish law. A dowry can be constituted as in Roman law: likewise paraphernal goods. But with the antenuptial pact set aside, legal community prevails, as in Gallic law.

Austrian law ²⁴⁸ . Goods of wives are subjected to nearly the same rules as in Roman law. Only these things are to be noted: first. Community of goods can be stipulated either before or after the marriage begun, yet under conditions and in the form prescribed by law. Regularly community entered is held to be only for the case of death; therefore, during the conjugal union, the property of common goods is of both spouses, the usufruct of him to whom it belonged before the pact, and the administration of the man alone. The conjugal union dissolved, the goods are divided. — Secondly. With the special pact set aside, each spouse retains the right of property over his own goods, and likewise the exclusive right to all those things which he himself acquires during the union, or which come to him. Yet the use and administration of the goods of the wife are held to be handed over to the husband, as long as she herself has not contradicted. ²⁴⁸ Cod., art. 1217-1266.

Prussian law ²⁴⁹ . First. It establishes, as a general norm, separation of the goods of each spouse, and separate dominion of them; in which respect it imitates the dotal law of Roman law. The administration and usufruct of dotal goods belong to the husband; but the husband cannot alienate or pawn those goods without the consent of the wife. That however they may be placed in safety, there belongs to the wife a right of hypothec over the immovable goods of the husband. But the dominion of paraphernal goods and their free administration are in her own hands. — Secondly. In most provinces of Prussia, community of goods is determined by particular laws, by force of which (more or less, according to the custom of the place), the spouses, as long as the marriage endures, exercise dominion of their goods in common. Community can be excluded in whole or in part, but by force of a pact entered before marriage. Likewise, in provinces where community of goods does not prevail, it can be, but only before marriage, constituted by pact, under the conditions and solemnities which the laws prescribe. However, if the spouses change domicile, they can follow the laws prevailing in the province of the new domicile. ²⁴⁹ Cod. Boruss., II, 1, §§ 205-433.

English law ²⁵⁰ . First. From recent law, it is permitted to the wife to possess her own goods in no way subject to the power of the husband. Such a status in immovable or movable goods, or in revenues, is constituted by antenuptial pact, by the father of the wife, or by the husband himself, or even by a stranger. It is moreover usually committed to trustees, that she may enjoy greater security. In the same manner is usually constituted the jointure, that is, the revenue to be received by the wife during her life, if she survive the husband. — Secondly. If the pact fail, all the goods of the wife acquired before or after the nuptials pass into the dominion and power of the man. Fields indeed cannot be alienated by him, but they can be occupied by his creditors; indeed they pertain to him absolutely, if he survive the wife. — Thirdly. The man by testament can leave not only children destitute, but even the wife entirely; but if he die intestate, the wife by right obtains all the immovable goods which were common, that is, which during marriage had been given to either spouse or bought jointly by them. Finally from the personal goods of the man she receives a third part, if the deceased leave descendants; otherwise, a half ²⁵¹ . ²⁵⁰ Cfr. Grolly, n. 486-497. ²⁵¹ Marc. Instit. morales Alphons., n. 864-870.

You will ask first whether it is lawful for the wife to make alms from common goods or from the fruits of her dowry.

I answer affirmatively, even if otherwise she have her own goods, provided she follow the custom prevailing among women of the same condition. The reason is, because the wife is not a servant, but a companion and mistress, and as such she ought to share in the dispensation of common goods. Besides, the husband ought to consent, and if he deny consent, he is irrationally unwilling. So commonly, with St. Liguori ²⁵² . ²⁵² Lib. IV, n. 340.

You will ask secondly whether the husband be bound to restitution, if he have spent a notable part of the common goods prodigally or imprudently.

I answer. It is disputed. The first opinion, probable, affirms, because the wife has dominion of half the common goods, and her right was violated. The other opinion, likewise probable, denies generally, that is, unless the husband exceed the limits prefixed by law, within which he is constituted as it were lord of these goods, which he can alienate without the consent of the wife, without being bound to render her an account: besides, the wife can guard against such dissipation by demanding juridical separation of goods. Whence it is concluded that the husband acting so sins indeed gravely against charity, but not against justice²⁵³. But by Gallic law the husband exceeds the prescribed limits if he give away gratuitously any immovables, or the totality or totality-number of movables, or if he appropriate common goods to himself alone ²⁵⁴. ²⁵³ So Carrière, de Iure et Iustit., n. 276. ²⁵⁴ Cod. civ., art. 1422 et 1437.

You will ask thirdly whether the wife sin, relieving her parents or children born from a prior marriage out of common goods, or out of the fruits of her dowry.

I answer negatively, if she have no paraphernalia, nor the man wish to furnish what is necessary for this; because by natural law this obligation falls upon the wife, and the husband is bound to consent to it, since such a burden ought to be held common. But if the wife survive her husband, she will have to compute these expenses in her part of the community, unless the sum of goods so distributed be of small moment, having regard to the condition of the spouses. So St. Liguori ²⁵⁵, with others.] ²⁵⁵ Lib. IV, n. 542.

On the dominion of sons under paternal authority.

Note that the goods of sons living under paternal power, which are called peculium, are of four kinds: castrensia, quasi castrensia, adventitia, and profectitia.

Castrensia are those which are acquired in just military service, or on occasion of military service.

Quasi castrensia, so called because, although they are not castrensia, they nevertheless enjoy the privilege of castrensia. They are: first. Those which are acquired in sacred military service, namely the clerical state, whether from ecclesiastical benefice or from elsewhere; so that whatever arrives after the clerical state, which would otherwise be adventitious, is held quasi-castrensian. Authent. Presbyteros, c. de episcopis et clericis. Yet goods possessed before the clerical state remain of the same condition as before. Secondly. Those which are acquired on account of some public non-mechanical office, such as judge, advocate, notary, or by profession of some liberal art, as theology, law, medicine. So l. cum multo, c. de bonis quae liberis.

Adventitia are those which do not come from the father, nor formally from his goods, nor are given to the son or daughter for his sake or principally on his account, but come to this one by succession or by donation made on some other principal account than the father's, or by his own industry, or by chance. These goods are called adventitious with respect to the father, because they do not come from him.

Profectitia finally are those which the son acquires from the goods of the father, e. g., by trading with them, or administering them, or those which were given to him, bequeathed principally on account of the father.

I say: A son under paternal power has full dominion of castrensian and quasi-castrensian goods. Of adventitious goods he has only direct dominion or property, the father useful dominion, or usufruct. Of profectitian goods finally the son has neither direct nor useful dominion, but the whole is the father's.

The first part is established in the law ff and c. De castrensi peculio. The second and third parts in lib. 2 Instit., tit. Per quas personas, 9, where Justinian, correcting the old law, which did not distinguish between adventitious and profectitian, but assigned both to the father, establishes and says: "It is holy with us that, if anything come to him from the patrimony of the father, namely to the son, this according to the ancient observance be acquired wholly by the parent; for what envy is it that what came forth on occasion of the father return to him? But what the son under paternal power has acquired for himself from another cause, let him acquire its usufruct indeed for the father, but the dominion remain with him, nor that which came to him from his own labors or prosperous fortune, passing into another, should turn out grievous to him."

But mark that, just as "children owe piety to parents, not services," as is said in l. penult. II de obseq. parent. praeb., so parents are not bound to provide from their own goods for children who have their own, that is castrensian, or quasi-castrensian, or adventitious goods; whence the expenses which parents make from their own goods for the food and clothing of sons ought to be deducted from these.

[Goods and rights of sons under paternal power, and of other minors, vary much among various peoples. We shall relate here the principal laws existing on this matter.

I. — FROM ROMAN LAW.

Distinction of persons. It is distinguished: first. The infant (non fans), who has not yet completed the first septennium; secondly. The impubescent, who has not yet arrived at puberty, that is at fourteen years, if a boy; twelve if a girl; thirdly. The minor or minor-aged, who is pubescent but has not yet completed twenty-five years; fourthly. The major or major-aged, who has completed these years.

A son under paternal power is a legitimate or legitimated son who, of whatever age he be, is not yet of his own right, but still stands under the authority of the father (that is, of the father or paternal ascendants). Opposed to him are then the emancipated son, whether major or minor; then the illegitimate son, of whom below. — Pupillus is called he who, impubescent, has gone out from paternal power: to him also against his will is given a tutor over person and goods. — Minor, in the strict sense, is called he who has gone out from paternal power, already pubescent: to the minor is given a curator, willingly indeed for the administration of goods, and even against his will for litigation and for certain more solemn acts.

Illegitimate sons are never, in the civil sense, under paternal power, but are of their own right. They are either spurious (incestuous, adulterine, sacrilegious), that is begotten of parents between whom, at the time when they were conceived and born, matrimony could not be contracted, and hence it is why they can never be legitimated; or natural, that is born of parents who at the time of conception were indeed not joined in matrimony, but capable of contracting it. These can be legitimated either by subsequent marriage, or even by rescript of the prince; and the Church itself admits legitimation of this kind.

Distinction of goods. At first all the goods of sons obtained on whatever account pertained to the father, as profectitian; indeed the sons themselves were things of the father. — Afterwards truly by the institutions of the Roman emperors goods were distinguished into castrensian, quasi castrensian, adventitious, and profectitian, as was said above.