Page:An introduction to Roman-Dutch law.djvu/125

 Rh MARRIAGE 85 to exclude or modify the incidents of marriage at the common law ; and secondly, if desired, to regulate the devolution of the property contributed to the marriage after the death of one or both of the spouses. In this latter event the contract plays the part of what in English Law is called a marriage-settlement. Generally speaking, any condition whatever may be what introduced into a marriage contract provided that it is *^™1 ° ^ may be not contrary to law or good morals.^ Some stipulations inserted in are disallowed as contrary to the legal nature of marriage, t^fcon? Such are conditions : (1) that the husband shall be under tracts? the guardianship of his wife ; ^ (2) that a second wife Certain shall take more than a child's portion under the first stipula- marriage ; ^ (3) that donations shall be permitted or naTper-" legacies not permitted between the spouses.* Provisions mitted. to the effect : (4) that the husband shall not change liis domicU without his wife's consent ; * and (5) that a husband shall not represent his wife in Comrt, but that she shall have a persona standi of her own,^ though con- demned by Voet, are allowed by Van der Keessel.^ The last of these indeed is so far from being open to objection at the present day, that where there is exclusion of com- munity and of the marital power, the yriie has as full capacity to appear in Court, whether as plaintiflE or defen- dant, as if no marriage had taken place.* A stipulation that a wife should share in profits but not in losses, though condemned by Grotius ^ and Neostadius,^" is in Van der Keessel's ^^ opinion free from objection. Voet, 23. 4. 19 ; Hoola Van Nooten, vol. i, pp. 457-8 ; V. d. K. Th. 228, and 233 fF. ; V. d. L. 1. 3. 4. Voet, 23. 4. 20. ^ Gr. 2. 12. 6. This only applies where the lex hac ediotali is unrepealed. Cod. 5. 9. 6. ° Voet, ubi sup. ; Hoola Van Nooten, ubi sup. ° Voet, ubi sup. and 5. 1. 14^15. ' V. d. K. Th. 228, and Dictat. ad loc. Boyes v. Versigman (1879) Buch. 229. ' Gr. 2. 12. 9. ^^ Neostad. de pact, antenupt. Obs. 21 {in notis). " V. d. K. Th. 249 ; for, as he says : creditoribus etiam nihil nooet, cum lucrum intelligi nequeat, nisi damno prius deduoto.
 * Voet, libi sup. ; Hall v. Hall's Trustee and Mitchell (1887) 3 S. C. 3.