Summa summae S. Thomae, Tomus III

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 ¹ 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:

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 ² 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.

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 ³ . 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.

Prussian law ⁴ . 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.

English law ⁵ . 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 ⁶ .

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 ⁷ .

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 justice⁸. 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 ⁹.

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 ¹⁰, with others.]

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.

As to the goods of pupils and minors, all these, from the time of their emancipation, are either castrensian and quasi castrensian or adventitious, as is sufficiently evident. — These things premised, the following are to be established:

PRINCIPLES: First. Of castrensian and quasi-castrensian goods the son under paternal power has full dominion. For it conduces to the common good that the son not be withheld from public war service, etc. He can therefore dispose of them, whether by contracts, or by last will; nor is the consent of the father required, provided he be pubescent. But if he be not yet pubescent, he can dispose of them with the authority of the judge. And this very thing a pupil can do without the consent of the tutor, and a minor without the consent of the curator.

Secondly. Of adventitious goods the son under paternal power has the property; but the father the administration and usufruct, unless a special condition or the nature of the thing stand in the way, as if there were donated expressly to the son a usufruct for life, etc.: in which case the adventitious peculium of the son is said to be irregular and full. — But if the father have spontaneously emancipated the son, he himself retains, as long as he lives, as it were in remuneration, half the usufruct previously held; otherwise, if the son have been emancipated on account of dignity, e. g. a bishopric, etc.

Thirdly. Of profectitian goods the son under paternal power has neither property nor usufruct (for they are the father's), but only the administration. — Nevertheless he obtains these goods: first, if the goods of the father have been occupied by the fisc; secondly, if the father have emancipated him without reclaiming the said goods.

II. — FROM THE NEW CODES.

Of the distinction of persons we have said enough. — As to goods is distinguished: direct dominion, administration, and usufruct. — Direct dominion of all goods which come to the sons by just title belongs to them, although they be minors and not emancipated, since they are capable of such dominion. Just title is donation, inheritance, industry separated, etc. — Administration of all goods is in the hands of the father or tutor, who must supply the incapacity or inexperience of the sons, until they themselves be majors or emancipated. Majors obtain full administration of their goods, but the emancipated restricted administration. — Usufruct belongs either to the sons or to the parents, as positive law establishes. Now indeed

In France ¹¹: Usufruct generally pertains to the father, or, he being deceased, to the mother remaining in widowhood, until the emancipation of the sons or the completed eighteenth year. Yet from the proceeds the offspring must, according to its condition, be fed and educated. — We have said "generally," because are excepted: first. Goods which the sons acquire for themselves by their own labor with separated industry; secondly. Goods which are donated to them under the express condition that their usufruct not accrue to the parents.

In Italy ¹²: Usufruct is granted to the father or mother holding paternal authority, until the sons be majors or emancipated. It is lost by either parent who, after the death of the spouse, flies to new nuptials. Parent usufructuaries are bound to provide for the offspring such education as is consonant with its fortune and condition. — Excepted are: first. Goods which the sons acquire by their own labor and separated industry; secondly. Goods which are given to them with an annexed condition that the parents not receive the usufruct; thirdly. Goods which come to them according to the disposition of the law, the father dissenting.

In Austria ¹³: Usufruct belongs even to minor and non-emancipated sons, however with the expenses of education deducted. And although the son not yet emancipated does not have the administration of his own goods, nevertheless he can freely (and therefore validly too, if nothing else stand in the way) dispose: first. Of goods acquired by his own industry, provided he himself do not receive aliment from his parents; secondly. Of goods which are assigned to his use, provided he be pubescent.

In Germany ¹⁴: The new law distinguishes the goods of sons under paternal power into free and non-free. — Free are called: first. Those which the sons have procured for themselves by their own labor and separated industry; secondly. Those which they received by gift, parents excluded from the usufruct; thirdly. Those which, living sparingly, they set aside from the goods which were granted to them, living outside the paternal house, for sustenance into full power. — Non-free are called all the rest. Their usufruct the father has, until the emancipation or majority of the son. — Usufruct of free goods belongs to the son, however with the expenses of education deducted.

In England ¹⁵: Usufruct pertains to the sons. But whether the expenses of education ought to be refunded from the goods of the father or from the goods of the sons, tribunals are accustomed to decree according to the circumstances of cases.

You will ask first whether the son under paternal power can sometimes retain profits which arise from his own industry.

I answer. First. He can retain (unless perhaps the debt of piety forbid it): first, if he live outside the paternal house at his own or others' expense, and labor with separated industry, e. g., serving someone, exercising his own art, trading with the goods of others, etc.; secondly, if he bestow extraordinary labor in the paternal house, or labor otherwise anyhow undue, e. g., if from his condition he is not bound to labor; for he can ask from the father what he would give a stranger for such labor, or even retain it secretly, if reverence or shame do not allow him to ask, as St. Liguori admits ¹⁶ with Lugo, etc., against Molina and others, who do not permit secret compensation to the son.

I answer. Secondly. He cannot retain, apart from the express consent of the father: first, if he bestow ordinary labor, or services not exceeding what the father can exact by paternal right. For the father has the right that, according to the condition of his status, he be aided by his sons; therefore, if the services are already owed from piety, the son can demand or retain nothing from justice. So commonly. Secondly. If he have a right somehow doubtful, e. g., because doctors dispute much about it, or because it is not established that the labor is undue, etc.; for in doubt it is not licit secretly to compensate oneself.

You will ask secondly whether the son under paternal power has perfect dominion over small and movable goods given to him by parents or relatives?

I answer. First. If these goods are not immediately consumable by use, as clothes, books, etc., the son of the family has only useful dominion in them; for, by common sense, the son as to these receives not property but only use. Therefore he cannot, without the consent of parents or relatives, at least reasonably presumed, sell, give away, alienate the same.

I answer. Secondly. If those goods are consumable at first use, as food or money, and were given without any condition, he can dispose of them at his nod; because they are held given into property. But if they were given under some condition, e. g., buying books, paying a pension, etc., he sins against justice by expending them for other uses ¹⁷