Rights in the Family
Appendix 11. (1512).
It [the acquisition by the father of what the child acquired] was a consequence of the principle that the child formed a single person with the father. Samuel Cocceji sums up the Roman laws derived from this principle in the following way:
| Father and son are considered as one person. Hence, there is no possibility of obligation between father and son. The son solemnly contracted out by his father acquires no right, nor can he even be held as a promisee. No one can be obliged for and to the same thing (Dig., bk. 46, t. 1: 36). Nevertheless, the father's heir is held responsible for affairs relating to the father's property (Dig., bk. 12, t. 6: 38). Equally, if the father is solemnly contracted out by the son, no action is possible against the son; but the promisee given by the son is held (Dig., bk. 46, t. 1: 56). Since father and son are considered as one person, it is natural for the son to be the instrument of his father. Hence, the father in solemnly contracting out his son acquires on his own behalf (Dig., bk. 45, t. 1: 39); just as the son, in solemnly promising for his father, acquires for the father (Dig., bk. 45, t. 1: 38, §17) who may be ignorant of the whole affair (l. 18, l. 19, Pact. d. §4 d. l. 130). `The father's voice is considered as the son's, just as the son's voice is considered as the father's in those things which are acquired for the father.' Again if the son concludes an agreement `that he may not be requested from his father', this exception is acquired as the father's right (Dig., bk. 2, t. 14: 17, §7). Again if the son concludes an agreement `that he may not accede to a request for himself, this personal pact is also to the father's benefit (ibid., 19, §1). Again, if the son concludes an agreement concerning something which has been contracted with himself or with his father, this exception is acquired as the father's right (ibid., 18). It follows, then, from the same unity of person that children have nothing of their own and cannot acquire anything for themselves. |
Everything they acquire, they acquire for their father as the head of the family and master of the house, even if he is unaware of what is happening. Even when they take possession of something, they do so in the name of the father who is considered to will this (Dig., bk. 41, t. 1: 10, §2 and 53; and t. 2: 1, §5 and 4). It follows that the father can dispose as he wills of anything which comes to the children under any title whatsoever (Dig., bk. 41, t. 1: 10, §1; and Cod., bk. 6, t. 61: 6, and bk. 8, t. 47: 2; and Caj. Inst., bk. 2, t. 1, §10). And this is true even if the children have married. The reason is that children cannot institute any civil action in their own name, even if the father is willing (Dig., bk. 49, t. 7: 39). Roman law makes certain exceptions (Dig., bk. 44, t. 7: 9). According to Roman right (Inst., bk. 2, t. 12) a son cannot make a will, and a father can substitute for his son as for a ward (Dig., bk. 28, t. 6).
Such unity of person is present only if there is a question of acquisition, not in the case of obligation. A father is not held to the son's obligation; the son alone is held, both civilly (Dig., bk. 46, t. 4: 8, §4) and criminally (Inst., bk. 4, t. 8, §7; Dig., bk. 44, t. 7: 5, §5; and bk. 15, t. 1: 3, §11). If, however, the son has private property from some other source, his father is responsible for this property (Dig., bk. 41, t. 2: 1, §5 and 4). Again this unity gives rise to the fact that children, as heirs of their father, necessarily succeed to every right of the dead person. This is the real reason why in natural right the consent of the parents is required for the marriage of their children lest an heir be forced upon an unwilling father. As I said, father and son are not considered as one person 1. if the son puts himself under obligation; 2. if a third party, such as a promisee, takes upon himself the son's obligation (because children are naturally obliged to the father) (Inst., bk. 3, t. 20, §4); 3. in public trials where the son can judge his father (Dig., bk. 5, t. 1: 77; bk. 1, t. 6: 9) (Disert. Proem. 12, bk. 3, c. 4, sect. 2: 159).
More recently, Roman Right decreased patria potestas even with respect to goods, leaving to the children's disposition private property (peculium castrense and quasi-castrense), maternal goods, the benefits arising from marriage and espousals and all adventitious goods (Cod., bk. 6, t. 61). Moreover, the fathers' faculty for acquisition through their children was restricted to determined cases (Instit., bk. 2, c. 9).