Page:An introduction to Roman-Dutch law.djvu/130

 Rh 90 THE LAW OF PERSONS Various The above explanation will enable the reader to dis- termsin tinguish the effect of a clause excluding community of tM^con? goods only (class 2, supra), and of a clause excluding both as regards loss (class 3, supro). The effect of a clause excluding effects. community of goods only is that the spouses are not liable (a) Ex- ^Q creditors for each other's ante-nuptial debts.^ On ' com- dissolution of marriage each of them is credited as between ™"°^*y °* themselves with what he or she brought into the marriage/ only; plus subsequent acquisitions not being 'profits', plus half the net balance, if any, of profits over losses. Each of them is debited with half the net balance, if any, of losses over profits,* and by consequence with haK the outstanding post-nuptial debts. All this as between the spouses. The creditors may, if they please, recover the whole of their claim from the husband ; in which case he has the right of recourse against his wife to the extent of half. They may also, if they choose, after the husband's death recover one-half,* but not more, directly from the wife. If during the marriage the husband has apphed his wife's property in paying his own ante-nuptial debts, the money so applied constitutes as between the spouses a first charge * upon the net balance, if any, of profits over losses ; that is to say, the wife is first credited with increase the value of the property, though their omission would not render it less valuable. Voluptuary expenses add to its amenity, but do not render it more profitable — speciem omant non fructum augent. Voet, 25. 1.1, 3-4. ^ Voet, 23. 4. 50 (because post-nuptial debts count as ' damnum ', ante-nuptial not) ; V. d. 'K.Th. 255. Gr. 2. 12. 14 ; Voet, 23. 4. 31 ; V. d. K. th. 256. Voet, 23. 4. 48. ^ Gr. 1. 5. 22. In an action against her for such haU, the plaintiff must aver and prove that the claim had been duly lodged with the person vested with the administration and distribution of the common estate and had not been satisfied. Faure v. Tulbagh Divisional Council (1890) 8 S. C. 72 ; and see Sichel v. De Wet (1885) 5 E. D. C. 88. contrary, the wife's property may siante mairimonio be taken in execu- tion for the husband's ante-nuptial debts. Van der Keessel [Th. 255) dissents. But if done by the husband's direction, it seems to be a logical consequence of the marital power.
 * P'^^g^^ community of goods and also community of profit and
 * Voet, 23. 4. 50. Voet says that in the absence of provision to the