Page:An introduction to Roman-Dutch law.djvu/120

 Rh 80 THE LAW OF PERSONS notification.^ It is for the judge- to say whether a par- ticular contract falls within the permitted class. Much depends upon the custom of the country, the husband's condition and resources, and the previous course of dealing. It is all one whether the wife has purchased goods for domestic use, or borrowed money for the purpose of doing so.* (h) Ex- 8- As above observed, the wife is entitled* and bound H"*°*,. by the husband's post-nuptial contracts. She is liable biiity for for them to the fullest extent during the continuance of the marriage, and after its determination to the extent of one-half.^ B. Effect B. Ejfect of marriage in respect of the property of the spouses. By the common law of Holland, in the absence of ante-nuptial contract, marriage creates ipso jure a com- husband's contracts, of mar- riage as perty of munity of goods {communio bonorum — gemeenschap van spouses., J. . Com- spoken of as statutory, not that it was introduced by any mumty of specific statute, but because its existence is recognized by numerous ancient statutes and privileges,' as forming ^ Gr. ubi sup. i 't welok een man niet en kan beletten, ofte hy most sijn vrouw oock dat bewint reohtelick verbieden, ende 't selve doen afkondighen. The meaning of ' reohtelick ' appears from Voet (23. 2. 46), who says : nisi hujusoemodi rei domesticae cura ac circa earn contrahendi lioentia ad mariti desiderium uxori publica magi- stratus auctoritate justas ob oausas interdictum sit. Does this hold good to-day ? " When the trial is by judge and jury it would be for the judge to say whether the contract in question could, in law, come within the permitted class ; and this being decided affirmatively, for the jury to say whether in fact it did so. ' Voet, ubi sup. after the dissolution of the marriage to the extent of one-half. « Gr. 1. 6. 22 ; Voet, 23. 2. 52 ; V. d. L. ubi sup. ; unless com- munity of goods and of profit and loss has been excluded. V. d. K. Th. 93. Even when community of profit and loss has been excluded, she is liable, after her husband's death, to the extent of one-half for goods applied to the maintenance of the family, retaining, however, a right of recourse against the husband's heirs. Cens. For. 2. 1. 11. 7. « Gr. 2. 11. 8 ; Voet, 23. 4. 1 ; Hoola van Nooten, vol. i, p. 399 ; V. d. K. Th. 216. The historical origin of community of goods has been much discussed. See Voet, 23. 2. 66, and authors there cited. For the results of modern research see Fock. And., vol. ii, pp. 164 S. ' Hoola van Nooten, vol. i, pp. 401 and 408. Many of these are collected in Rechtsg. Obs., pt. 2, pp. 90 S.
 * '^^ goederen) between the parties.® This community is often
 * Gr. 2. 11. 17 ; 3. 1. 38 ; V. d. K. Dictat. ad loc. ; i. e. she is entitled