Page:An introduction to Roman-Dutch law.djvu/74

From Wikisource
Jump to: navigation, search
This page has been proofread, but needs to be validated.
34
Roman-Dutch Law

derived may have excluded the father from the administration and appointed a curator nominate in his stead.[1] 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.[2] The father may apply the income of property belonging to the child for his maintenance, education, and other like purposes.[3] He may invest his child's money,[4] and (within limits) contract on his behalf.[5] 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.[6]

A minor child, being unemancipated, is unable to contract without the consent of his father.[7] Any contract entered upon by him without such consent is ipso jure void, and will not bind either the child or the father[8] 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.[9]

A father may represent his son in Court[10] and sue and defend in his name, but if he does so without leave from
  1. Gr. 1. 6. 1, and Schorer, ad loc.
  2. Gr. ubi sup.; V. d. K. Th. 103. The rule in the text has never been observed in Brit. Gui. [G.].
  3. Van Leeuwen, 1. 13. 2.
  4. Van der Byl v. Solomon (1877) Buch. at p. 27.
  5. Gr. 3. 1. 28; e.g., he may bind him by a contract of service. V. d. K. Dictat. ad loc.
  6. Van der Byl v. Solomon, ubi sup.
  7. V. d. L. 1. 4. 1.
  8. 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.
  9. 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.
  10. 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.