網頁圖片
PDF
ePub 版

ART. 1722.-If the partition, whether inter vivos or by testament, be not made amongst all the children living at the time of the decease and the descendants of those pre-deceased, the partition shall be null and void for the whole; the child or descendant, who had no part in it, may require a new partition in legal form. ART. 1723.-Partitions, made by ascendants, may

be avoided, when the advantage secured to one of the coheirs exceeds the disposable portion.

ART. 1724.-The child who objects to the partition made by the ascendant, must advance the expenses of having the property estimated, and must ultimately support them and the costs of suit, if his claim be not founded.

ART. 1725.-The defendant in the action of rescision may arrest it by offering to the plaintiff the supplement of the portion to which he has a right.

ART. 1726.—The rescision of the partition does not carry with it the nullity of a donation made as an advantage.

CHAPTER VIII.

Of Donations made by Marriage Contract to the

Husband or Wife, and to the Children to be born of the Marriage. ART. 1727.-Every donation inter vivos, though made by marriage contract to the husband and wife or to either of them, is subject to the general rules prescribed for the donations made under that title.

It cannot take effect for the benefit of children not yet born.

ART. 1728.–Fathers and mothers, the other ascendants, the collateral relations of either of the parties to the marriage, and even strangers, may give the whole or a part of the property they shall leave on the day of their decease, both for the benefit of the parties, and for that of the children to be born of their marriage, in case the donor survive the donee.

Such a donation, though made for the benefit of the parties to the marriage, or for one of them, is always, in case of the survivorship of the donor, presumed to be made for the benefit of the children or descendants to proceed from that marriage.

ART. 1729. A donation, in the form specified in the preceding article, is irrevocable only in this sense, that the donor can no longer dispose of the objects comprised in the donation, on a gratuitous title, unless it be for moderate sums, by way of recompense or otherwise.

The donor retains till death the full liberty of selling and mortgaging, unless he has formally barred himself of it in the whole or in part.

ART. 1730.-A donation in favour of marriage may be made cumulatively of the property present and future, provided that to the act be annexed a statement of the debts and charges of the donor, exisiing on the day of the donation, in which case the donee, on the decease of the donor, may accept merely the present property, renouncing the surplus of the property of the donor.

ART. 1731.--If the statement, mentioned in the preceding article, has not been annexed to the act containing a donation of present and future property, the donee shall be obliged to accept or reject that donation wholly; and in case of acceptance, he shall claim only the property existing on the day of the donor's decease, and he shall be liable to the payment of all the charges and debts of the succession.

ART. 1732.—Donations made by marriage contract cannot be impeached or declared void on prete ace of a want of acceptance.

ART. 1733.-Every donation made in favour of marriage, falls, if the marriage does not take place.

ART. 1734.- Donations made to the husband or wife, on the terms of articles 1728 and 1730, fall, if the donor survive the donee and his or her posterity.

Art. 1735.-All donations made to a married couple by their marriage contract, are, at the time of the opening of the succession of the donor, reducible to the portion that the law permitted him to dispose of.

CHAPTER IX.

Of Donations between Married Persons, either by

Marriage Contract or during the Marriage. ART. 1736.—Married persons can, by marriage contract, make to each oi her reciprocally, or ihe one to the other, what donations they think proper, under the modifications hereafter expressed.

ART. 1737.—Every donation inter vivos, of present property, made between married persons by marriage contract, shall not be deemed to be done on the condition of the survivorship of the donee, if that condition be not formally expressed, and it is subject to all the rules above prescribed for those kinds of donations.

ART. 1738.-A donation of property in future, or of property present and in future, made between married persons by marriage contract, whether simple or reciprocal, shall be subject to the rules established by the preceding chapter, with regard to similar donalions made to them by a third person, except that it shall not be transmissive to the children the issue of the marriage, in case of the death of the donee before the donor.

Art. 1739.-One of the married couple may, either by marriage contráct or during the marriage, in case of his or her leaving no children nor legitimate descendants, give to the other in full property, all that he or she might give to a stranger.

And in case the donor leaves children or legitimate descendants, he tan give to the other either a tenth part

in full properly, or the usufruct only of one-fifth of all his property.

ART. 1740.- The husband or wife, if a minor emancipated, can, by marriage contract, give to each other, either by simple or by reciprocal donation, whatever can be given by one of the parties who has attained the age of majority.

ART. 1741.-A minor, not being emancipated, can give only with the consent of those relations whose consent is requisite for the validity of the marriage, and with that consent he or she can give all that the law permits a married person of full age lo give to his or her consort.

If the relation, whose consent is necessary, be dead, the minor not emancipated cannot give without the authorization of a court of justice.

ART. 1742.-All donations made between married persons, during marriage, though termed inter vivos, shall always be revocable.

The revocation may be made by the wife, without her being authorized to that effcct by her husband or by a court of justice.

ART. 1743.—Those donations shall not be revoked by the birth of children, provided they do not exceed the quantum, which married persons are permitted to dipose of to each other, to the prejudice of their children, or legitimate descendants, as is above provided.

ART. 1744.–Married persons cannot, during marriage, make to each other, by an act, either inter vivos or mortis causa, any mutual or reciprocal donation by one and the same act.

ART. 1745.-A man or woman, who contracts a second or subsequent marriuge having children by a former, one, can give to his wife, or she to her husband, only the least child's portion, and that only as an usufruct; and in no case shall the portion, of which the donee is to

[ocr errors]

have the usufruct, exceed the fifth part of the donor's estate,

ART. 1746.-If a person, who marries a second time, has children of his or her preceding marriage, he or she cannot, in any manner, dispose of the property given or bequeathed to him or her by the deceased spouse, or which came to him or her from a brother or sister of any of the children which remain.

This property, by the second marriage, becomes the property of the children of the preceding marriage, and the spouse, who marries again, only has the usufruct of it.

ART. 1747.-Husbands and wives cannot give to each other, indirectly, beyond what is permitted by the foregoing dispositions.

All donations disguised, or made to persons interpos-. ed, shall be null and void.

ART. 1748.-All donations, made by one of the married parties to the children or to any one of the children of the other party by a former marriage, and such as are made by the donor to relations to whom the olher party is presumptive heir on the day of the donation, although the latter may not survive the relation who is the donee, shall be deemed made to persons interposed.

[ocr errors]

TITLE III.

Of Obligations.

CHAPTER I.

Of the Nature and Division of Obligations. ART. 1749.-An obligation is, in its general and most extensive sense, synonymous with duty.

ART. 1750.-Obligations are of three ki nds, imperfect obligations, natural obligations, and civil or perfect obligations.

« 上一頁繼續 »