An Introduction to Roman-Dutch Law/Book I/Chapter II

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Chapter II


Parentage. Birth implies parentage and the reciprocal duties of parent and children. These may be considered under two heads: (A) the reciprocal duty of support; (B) the parental power and its consequences.

A. The reciprocal duty of support.

The reciprocal duty of support between parents and children. A father must support his children,[1] i.e. he must supply them with necessary food, clothing, shelter, medicine, and elementary instruction.[2] The duty extends to emancipated children[3] (i.e. to such as have reached or are deemed to have reached full age), if they have not sufficient means for their ovm support;[4] and it includes illegitimate[5] as well as legitimate children or further descendants.[6] The obligation is personal and ends with the father's death.[7] The father does not escape liability by the fact that he has made other provision for a son, which the son has lost or squandered.[8]

The mother likewise is liable, together with the father during his lifetime, and solely after his death. The mother of illegitimate children is liable for their support.[9] In case of divorce, both parents may be required to maintain the children according to their means.[10] The obligation of support ceases if the children are able by their industry or from their own means to support themselves.[11] The duty is reciprocal. Children must maintain their parents,[12] and if they are minors or lunatic the Court may charge the cost of maintenance upon their estate.[13] In every case the proper process to enforce this duty is not an action but petition to the Court.[14]

B. The parental power and its consequences.

The parental power and its consequences. Parental power, or, as it is also called, natural guardianship, has little in common with the patria potestas of the Civil Law.[15] Van der Linden writes:

‘The power of parents over their children differs very much among us from the extensive paternal power among the Romans. It belongs not only to the father, but also to the mother, and after the death of the father to the mother alone. It consists in a general supervision of the maintenance and education of their children and in the administration of their property. It gives the parents the right of demanding from their children due reverence and obedience to their orders, and also in case of improper behaviour to inflict such moderate chastisement as may tend to improvement. Parents may not be sued by their children without leave of the Court, termed venia agendi.[16] No marriage can be contracted by children without the consent of their parents. The parents are entitled on their decease to provide for the guardianship of their children.’[17]

Whatever is here said of children must be understood to refer to minor children, for in the Roman-Dutch law parental power ceases when the child attains full age.[18]

The incidents of the parental power described by Van der Linden may be developed as follows:

1. Custody and control; 1. Custody and Control. The custody, control, and education of children belong to the father, and after his death to the person named in his will.[19] Failing any such disposition the Court will appoint a fit person to act in this behalf, and in the absence of good cause to the contrary the mother will be preferred to remoter relatives or strangers. Remarriage is not in itself a ground of exclusion.[20]

2. Administration; 2. Administration. During the lifetime of both parents, and in the modern law until the father's death,[21] the management of a minor child's property belongs to the father, except so far as the person from whom such property is derived may have excluded the father from the administration and appointed a curator nominate in his stead.[22] In the event, however, of property coming to the child by inheritance the parents must give notice to the proper authority, who will inquire whether the administration of such inheritance requires a special guardian or not.[23] The father may apply the income of property belonging to the child for his maintenance, education, and other like purposes.[24] He may invest his child's money,[25] and (within limits) contract on his behalf.[26] But an executory contract entered upon by the father in the name of his minor son, if prejudicial to him, will not be enforceable against the son unless expressly ratified by him after majority.[27]

A minor child, being unemancipated, is unable to contract without the consent of his father.[28] Any contract entered upon by him without such consent is ipso jure void, and will not bind either the child or the father[29] except in so far as either of them has been enriched thereby, and if any payment has been made by the minor under such contract, it is recoverable by the condictio indebiti. If, however, the minor's contract is authorized or ratified by the father, the father will be liable. So far and so far only may a minor son bind his father by his contracts.[30]

A father may represent his son in Court[31] and sue and defend in his name, but if he does so without leave from the Court he will be personally answerable for costs, if the suit proves unsuccessful.[32]

3. Consent to marriage of minor children; 3. Consent to marriage of minor children. The consent of parents is necessary to the marriage of minor children,[33] and without it the marriage is null and void.[34] Consent may be either express or implied. It is implied if the father knows that the marriage of the minor is about to take place and does not forbid it.[35] Strictly, the mother's consent is also necessary, but in case of disagreement the father's will prevails.[36] In the absence of fraud, publication of banns is, in the Cape Province, presumptive evidence of consent, and a marriage celebrated after publication of banns without objection by the father is neither void nor voidable.[37] But a marriage celebrated after special licence without the father's consent may be set aside at his instance. The consent of grandparents or remoter ascendants is in no case necessary,[38] nor is consent necessary to a second marriage of widows or widowers who are under the ordinary age of majority.[39]

4. Right to appoint guardians by will; 4. Right to provide testamentary guardians. This has been mentioned above,[40] and will be further considered under the head of Guardianship.

5. Rights in respect of minor children's property. 5. Rights in respect of minor children's property. The Dutch Law, following the Roman Law, distinguishes between peculium profecticium and peculium adventicium. Jure civili the first of these belonged wholly to the father;[41] of the second, which belonged to the son, the father had the usufruct. Peculium profecticium, according to Voet, comprises (1) gifts made by sponsors at baptism, which are deemed to be made to the father, not to the child;[42] (2) anything acquired by children residing at home and supported by their parents, whether acquired suis operis or ex re patris. Schorer is to the same effect. ‘What children acquire by their own labour and industry, while supported by their parents, is acquired for their parents,’ being set off against the cost of maintenance.[43] Adventitious property, however, i.e. property coming to the child from sources other than the above, belongs to the child in full ownership, and the father has no usufruct therein, unless this has been expressly conferred upon him by the person from whom the property is derived, or unless it is necessary for him to use the property and apply its proceeds about the maintenance and upbringing of the minor child.[44]

Thus far of the incidents of the parental power. It remains to see how it is acquired and lost.

How the parental power is acquired: how lost. The parental power is acquired[45] by: (1) birth in lawful wedlock; and (2) legitimation by subsequent marriage;[46] but not, as amongst the Romans, by adoption.[47] It is determined by: (1) the death of parent or child;[48] (2) emancipation, which is either (a) judicial, i.e. by order of Court made at the father's instance[49] or (b) tacit, as when a son is permitted to live and carry on business by himself;[50] (3) marriage;[51] (4) majority;[52] to which Voet adds (5) public office or priesthood;[53] and Grotius (6) the placing of the father under curatorship.[54]

  1. Gr. 1. 9. 9; Van Leeuwen, 1. 13. 7; Voet, 25. 3. 5; and grandchildren too if their parents are dead or indigent. Ibid. sec. 7. According to Van Leeuwen (ubi sup.), a man is obliged to support and educate his brother, sister, or brother-in-law, whether of the whole or of the half blood, in case they have become reduced to poverty, and also his natural brother. For Brit. Gui. see Ords. Nos. 13 and 14 of 1903, supplementing the common law [G.].
  2. Van Leeuwen, 1. 13. 8 (ad fin.); Voet, 25. 3. 4.
  3. Dig. 25. 3. 5. 1; Voet, 25. 3. 5.
  4. Dig. 25. 3. 5. 7; Voet, 25. 3. 14–15.
  5. Voet, 25. 3. 5; including incestuous and adulterine issue. Secus, jure civili. Nov. 89, cap. xv.
  6. Voet, 25. 3. 7.
  7. Voet, 25. 3. 18; so says Voet here and elsewhere (e.g. 23. 2. 82); contra, Groen., de leg. abr. ad Dig. 34. 1. 15. ‘Upon the question whether the obligation of a father to support his children passes to his heirs, the authorities are by no means agreed.’ Sir Henry de Villiers C.J., in Carelse v. Estate De Vries (1906) 23 S. C. at p. 536. In this case it was held that deceased's estate being more than sufficient to pay for the support and maintenance, according to their condition in life, of his legitimate children, it was competent for the Court to award to the mother of his illegitimate children as their natural guardian, such sum as would enable her to supply them with the means of subsistence, until they were old enough to earn it for themselves. Ibid, at p. 537.
  8. Voet, 25. 3. 5.
  9. So is the father if he is known. Gr. 3. 35. 8; Van Leeuwen, ubi sup.
  10. Van Leeuwen, 1. 15. 6; Voet, 25. 3. 6; and 48. 5. 6.
  11. Voet, 25. 3. 14–15. The child's whole capital must be exhausted before he becomes chargeable on his parent. Holl. Cons., vol. ii, no. 280.
  12. Voet, 25. 3. 8; Holl. Cons., vol. ii, no. 279.
  13. In re Knoop (1893) 10 S. C, 198.
  14. Voet, 25. 3. 13.
  15. Gr. 1. 6. 3; Van Leeuwen, 1. 13. 1.
  16. In the Cape Province venia agendi is abrogated by disuse. Mare V. Mare (1910) C. P. D. 437.
  17. V. d. L. 1. 4. 1 (Juta's translation).
  18. V. d. L. 1. 4. 3. Full age is now fixed by law at the twenty-first birthday. Infra, p. 37.
  19. Voet, 27. 2. 1; Van Rooyen v. Werner (1892) 9 S. C. 425, where de Villiers C. J. reviews the whole subject of paternal and maternal rights. Semble, a surviving mother is now absolutely entitled to the custody unless the Court sees fit to direct otherwise.
  20. Voet, ubi sup.
  21. In the old law the father's natural guardianship did not survive the death of the mother. It was necessary for him to apply to the Court to be appointed guardian along with the guardian, if any, named in the will of his deceased spouse. Except in this capacity the surviving father had no competence either to represent his minor son in Court, or to administer his estate. Gr. 1. 7. 8–9; Voet, 26. 4. 4. Van der Keessel is to the same effect. Dictat. ad Gr. 1. 7. 8 (in fine). This can no longer be regarded as representing the law in South Africa. See Van Rooyen v. Werner, ubi sup. at p. 428, where de Villiers C.J. said: ‘As to the father, he is the natural guardian of his legitimate children until they attain majority.’
  22. Gr. 1. 6. 1, and Schorer, ad loc.
  23. Gr. ubi sup.; V. d. K. Th. 103. The rule in the text has never been observed in Brit. Gui. [G.].
  24. Van Leeuwen, 1. 13. 2.
  25. Van der Byl v. Solomon (1877) Buch. at p. 27.
  26. Gr. 3. 1. 28; e.g., he may bind him by a contract of service. V. d. K. Dictat. ad loc.
  27. Van der Byl v. Solomon, ubi sup.
  28. V. d. L. 1. 4. 1.
  29. Gr. 3. 1. 34. Nor is a father liable for his son's delicts unless expressly made so by statute, as is sometimes the case. V. d. K. Dictat. ad loc.
  30. Voet, 15. 1. 11. Conversely the advantage of the minor child's contract accrues to the father. Gr. 3. 1. 38, and V. d. K. Dictat. ad loc.
  31. Gr. 1. 6. 1. ‘The right of a father to bring actions on behalf of his minor children has been repeatedly recognized by this Court.’ Van Rooyen v. Werner, ubi sup. at p. 430, per de Villiers C. J.
  32. Van der Walt v. Hudson (1886) 4 S. C. 327.
  33. Gr. 1. 5. 15, and Schorer, ad loc.
  34. Voet, 23. 2. 11; V. d. K. Th. 75; V. d. L. 1. 3. 6. Infra, p. 72.
  35. Voet, 23. 2. 8.
  36. Voet, 23. 2. 13; Schorer, ubi sup. At the Cape ‘He alone can consent to their marriage’. Van Rooyen v. Werner, ubi sup. at p. 429.
  37. Johnson v. McIntyre (1893) 10 S. C. 318. Semble, the marriage cannot in any case be impeached by the minor spouses themselves. Willenburg v. Willenburg (1909) 3 Buch. A. C. 409, per de Villiers C. J.
  38. Voet, 23. 2. 15; V. d. L. 1. 3. 6.
  39. Voet, 1. 7. 14; V. d. L. 1. 4. 3.
  40. Supra, p. 33.
  41. From which it follows that a father cannot make a valid gift to a son in power. Gr. 3. 2. 8; Voet, 39. 5. 6; but Schorer, following Groenewegen in notis ad Grot. loc. cit. and de leg. abr. ad Inst. 3. 20 (19). 6, says that this no longer obtains. See also V. d. K. Th. 485.
  42. Voet, 15. 1. 4; but see Van Leeuwen, 3. 16. 7; and V. d. K. Th. 104.
  43. Gr. 1. 6. 1; and Schorer ad loc.; Van Leeuwen, 2. 7. 7; Voet, 15. 1. 4 and 25. 3. 14. For Brit. Gui. see Rego v. Cappell (1901) Brit. Gui. Off. Gaz., vol. xiii, p. 704, where it was held that the property acquired by a minor by his labour belongs to himself, and not to his parents, and consequently is not executable for their debts [G.].
  44. Van Leeuwen, 1. 13. 2, and Decker ad loc.; Voet, 14. 1. 6; Schorer, ubi sup.; V. d. K. Th. 105.
  45. Voet, 1. 6. 4.
  46. Gr. 1. 12. 9; and Schorer ad loc.; Voet, 25. 7. 6; V. d. L. 1. 4. 3. Legitimation by act of the Sovereign is disused in Cape Colony (1 Maasd. p. 9), and probably elsewhere.
  47. Gr. 1. 6. 1; Van Leeuwen, 1. 13. 3; Voet, 1. 7. 7; V. d. L. 1. 4. 2; Robb v. Mealey's Exor. (1899) 16 S. C. 133. But see V. d. K. Th. 102.
  48. Voet, 1. 7. 9.
  49. Gr. 1. 6. 4; Voet, 1. 7. II. But see Decker ad Van Leeuwen, 1. 13. 5; V. d. L. 1. 4. 3 (note 4); V. d. K. Th. 107 and 110.
  50. The two conditions need not always co-exist. A separate establishment is enough, a separate business only if the parents have not expressed a contrary intention. V. d. K. Dictat. ad Gr. 1. 6. 4. According to Voet (1. 7. 12), the separate establishment must have continued for a year and a day.
  51. Gr. 1. 6. 4; Van Leeuwen, 1. 13. 4; Voet, 1. 7. 13.
  52. Van Leeuwen, 1. 13. 6; Voet, 1. 7. 15.
  53. Voet, 1. 7. 10. But see Van Leeuwen, 1. 13. 6.
  54. Gr., 1. 6. 5. But the child, of course, remains a minor. Van Leeuwen, ubi sup. A sentence of banishment (and in the modern law, no doubt, a long term of imprisonment) has the same effect. V. d. K. Th. 109.