Page:An introduction to Roman-Dutch law.djvu/127

 Rh MARRIAGE 8? . Exclude all community (a), (6), and (c) and the marital power {d) as well.^ In speaking of the legal consequences of marriage (sec. 3, In ante- supra) we used the phrase ' community of goods ' in the oontraJts sense of the statutory community of the common law 'com- with aU its consequences. This exists independently of ^odL*^is any contract. But in ante-nuptial contracts the phrase contrasted . . „, with oom- acqurres a narrower meamng, -viz. community of goods munity of whether (a) brought into the marriage, or (b) after- PJ°^* ^°*^ acquired (other than ' profits '), but not (c) community of profit and loss. Accordingly, where community of goods (alone) is expressly excluded, the phrase is understood in the narrower sense, and community of profit and loss is tacitly reserved ; ^ and, conversely, where community of profit and loss is expressly reserved, community of goods (in the narrower sense) is tacitly excluded.^ It is necessary, therefore, to determine with some precision the meamng of ' profits ' or ' acquests ', as they are also '^'^. called. Briefly, the phrase includes all post-nuptial ac- of profit': quisitions, which the law does not attribute to one spouse ^hat the alone. Thus it comprises: (1) the fruits* and other *j^*°" profits of all the goods belonging to the community or to either spouse severally, whether originally brought into the marriage or acquired subsequently ; (2) all profits accruing from the work, labour, industry, or skill of either of the spouses ; ^ (3) official and other salaries ; (4) rights ^ A writer in the S. A.L.J. (1912), vol. xxix, p. 37, criticizes the phrase ' exclusion, of the marital power ', and says ' It is certain that the marital power . . . cannot be entirely excluded by an ante-nuptial contract '. The phrase, however, is now statutory (Administration of Estates Act, 1913, sec. 83 (2) ), and means, I suppose, ' the marital power which the husband by law possesses over the property and the estate oi his wife ' (see Precedent of ante-nuptial contract, Appendix B to this book (infra, p. 109), clause 5). Hoola van Nooten (vol. i, p. 453) gives a clause of similar import,, viz., ' dat gemeenschap van goederen en van winst en verlies uitgesloten zal zijn; en dat de man geen recht zal hebben om de goederen van zijne vrouw te alieneeren, of te bezwaaren '. ^ Gr. 2. 12. 11 ; Voet, 23. 4. 28. = Voet, ibid. The profits of goods subject to fidei-commissum are included under the term 'fruits ' (Gr. 2. 11. 10) ; also the benefit of a usufruct. V. d. K. Th. 253. ' Voet, ubi sup.
 * Gr. 2. 12. 12 ; Voet, 23. 4. 32 ; Hoola van Nooten, vol. i, p. 427.