PATRIA POTESTÀ

Machine translation of the 1948–1954 Italian original. The original text is authoritative.

### I. Concept and General Notes

The legal institution of patria potestà (parental authority) may be defined as the complex of rights and duties which the law attributes to parents over the persons and property of their children until they reach the age of majority or are emancipated. This complex of powers-duties is based on natural law and, more precisely, on the bond of blood that links the child to the father, from whom he has received life, and extends to the persons of the children and to the patrimony of which they are holders (v. GENITORI). Positive law more particularly determines the limits of these powers, regulates their specific use, and attaches sanctions to the corresponding duties, especially in the interest of the child, who is the weaker party in the relationship.

Following the transformation of the family, the evolution of customs and social needs, the ethical-legal conception of patria potestà has undergone profound changes even in Roman law, from which the Latin legal systems derive and which has also influenced those of the Anglo-Saxon world.

It passed, in fact, from being a means aimed at protecting the interests of the group rather than those of the subordinate, to a concept—within judicial law—close to the modern one (v. FAMIGLIA, III, 1). In modern legal systems, which are more informed by Christian principles, patria potestà presents itself as a power established for the benefit of the person subject to it, not for the benefit of the person exercising II. Therefore, it does not suppress legal capacity but substitutes its exercise; moreover, it is presumed that the child no longer needs protection when he reaches the age of majority.

Patria potestà is conferred by law not so much to grant rights as to impose duties; this is evidenced by the fact that not only the violation of duty but also the abuse or misuse of the faculties inherent in patria potestà often leads to its deprivation: patria potestà is lost if exercised poorly, but it does not expire by prescription, voluntary renunciation, or transaction, since it is a natural right.

### II. In Canon Law

Canon law, having sanctioned the natural-law obligations incumbent upon parents toward their offspring (can. 1133), does not establish any norm regarding the exercise of patria potestà in matters of property, recognizing instead the civil laws of the respective nations, provided they respect natural and positive divine law and the rights of the Church when dealing with baptized persons. It does, however, provide some particular norms regarding spiritual rights or those connected to them. Thus, when dealing with spiritual causes or those annexed thereto, it recognizes in the minor who has the use of reason the capacity to act either personally (if he has completed fourteen years) or through a guardian appointed by the Ordinary, or through a procurator chosen with the authorization of the Ordinary (can. 1688 § 3). It also recognizes in pubescent children exemption from patria potestà regarding the choice of a funeral church or burial place. Although it indirectly exhorts children not to contract marriage without the consent of their parents, it does not make such consent an indispensable condition for allowing their marriage, especially when the opposition of relatives is based on irrational motives (can. 1034).

### III. In Italian Law

Although the title to patria potestà belongs to both parents, to avoid inconveniences that could arise especially in cases of disagreement, the exercise of patria potestà is attributed by law to the father as head of the family (art. 316). The exercise of patria potestà passes by operation of law to the mother after the father's death, in the case of his absence, or when something prevents him from exercising it, as well as in the case of his judicial deprivation for abuse or misuse of patria potestà, for interdiction following a criminal conviction, etc. (arts. 316–17, 331).

Patria potestà includes powers relating to the person and property of the children, to which correspond particular duties on the part of the children (art. 315). The child must obey the parent in all things that the parent may command; in particular, he must not abandon his parents' home or the one that the parent has designated as the dwelling (art. 318). The duty of obedience is limited to the duration of patria potestà; once this ceases, the child acquires his own independence, more or less complete. The duty of honoring parents, however, does not cease; a duty to which he is bound at any age (by natural and positive divine law), and which must not be confused with the aforementioned duty of obedience.

Regarding the care of the child's person, the powers of the person exercising patria potestà include considerable disciplinary authority; the purpose of patria potestà is to safeguard morality by educating the minor, disciplining and directing the natural inclinations of those who have not yet reached adequate maturity. To safeguard the effectiveness of the powers inherent in patria potestà, the State lends its assistance to the person exercising it through the judicial authority (Juvenile Court).

With regard to the property and interests of minors, patria potestà entails in the exercising parent the representation of the minor in all civil acts, the administration of property (art. 320), and legal usufruct over it (art. 324). There are, however, certain acts in which the minor, once he has reached a certain age, is not represented by the parent, for example, marriage and testament (arts. 84, 90, 239).

Regarding the administration of property, the parent may perform all acts of ordinary administration; for those exceeding ordinary administration, the authorization of the guardianship judge is sufficient, but for the continuation of a commercial enterprise in the interest of a minor, the authorization of the court is required. If such authorizations are lacking, the acts performed by the parent on behalf of the minor child are voidable (arts. 320–22).

The aforementioned legal usufruct over the property of minor children does not apply to property acquired by the child through his own labor or bequeathed to him to undertake a career, or under the condition of the usufructuary's exercise of patria potestà, or property that has come to him against the will of the parent or due to the parent's unworthiness (arts. 324–26). The purpose of this usufruct is to facilitate the parent in fulfilling the duties arising from patria potestà; therefore, the income is earmarked for the expenses of the minor child's instruction and education, to which it must be allocated (art. 325).

Patria potestà, with all its powers, ceases upon the child's reaching the age of majority (21 years) or upon his emancipation. The latter occurs when the minor (of any age) contracts marriage (art. 390, emancipation by operation of law) or by order of the guardianship judge, upon the request of the parent exercising patria potestà or the guardian, or of the minor himself, provided that the minor has completed eighteen years. Upon emancipation, the judge appoints a curator for the minor (v. CURATELA).

The current Civil Code has clearly attributed, unlike the previous one, patria potestà also to the natural parent, though not legal usufruct. It should be added that patria potestà also belongs to the adoptive parent over the adopted child and to the person placing a child in guardianship over the ward who is a minor, always excluding the right to legal usufruct (arts. 301, 409).

IV. MORAL PRINCIPLES

These provisions of civil law do not in themselves appear contrary to natural law; indeed, in some respects they seem to supply determinations to natural law, which remains more general. As persons, even a minor child is capable of possessing patrimonial rights, but the father has the right and duty, arising from piety, to administer these in the interest of the children, if they, being minors or otherwise legally incapable of acting, are subject to his authority. The father who administers his child’s property may, in conscience, appropriate the fruits thereof to the extent that they cover the expenses he incurs for the support, education, and the like, of the children. He may do so all the more since the child also has the duty to assist his parents in case of need, when he can do so without serious detriment to himself. Given the intimate bond between father and child, even in matters of property one cannot rely solely on the principles of justice but must also consider the bonds of piety, a virtue that governs precisely the relations between persons bound by ties of blood. Naturally, the father will be less opposed to having some part of his patrimony taken by his child than by a stranger; and similarly, the child will less vigorously assert his rights over his patrimony against his father than against strangers. In other words, between the two, forgiveness may more readily be presumed, and thus the gravity of theft and the obligations of restitution are diminished. Finally, this same relationship affects the determination of grave matter in the relations between children and parents, which, in the case at hand, is to be reckoned as twice as grave as in relations with strangers.

BIBL.: P. Bonfante, Corso di diritto romano, I, Roma 1925, p. 69 ff.; L. Barassi, La famiglia legittima nel nuovo Codice civile, Milano 1947, p. 189 ff.; D. Barbero, Sistema istituzionale del diritto privato italiano, I, Torino 1949, p. 593 ff.; A. Cicc., La filiazione, in Trattato di diritto civile italiano, ed. F. Vassalli, III, 11, Torino 1951, p. 282 ff. For moral problems, besides treatises on moral theology, cf. A. Vangheluwe, De dominio filiorumfamilias, in Collettanea Brugense, 43 (1947), pp. 258-64.