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that a particular marriage will necessarily be an undesirable one? Too much protection is harmful. It would be going too far to assert that courts could not undertake satisfactorily to determine the impropriety of a particular person's marriage. The responsibility would be a serious and delicate one; yet courts have tasks of equal difficulty imposed upon them by the law. But it can at least be asserted that in the present field of decision it is fortunate that such a task is not committed to the courts.

I conclude, therefore, that except in the two classes of cases above mentioned, the courts, in the absence of express statute, should favor liberty of marriage and declare void any conditions against marriage in general.'

12. A condition against marriage, however, instead of being general in terms, may limit itself to some important feature, e. g., to a period of time, or to a person or class of persons. The bequest may be conditioned on not marrying before a certain age, or before the death of a certain person who is to be the object of the legatee's care, or before a certain number of years after the testator's death. Is such a limitation material to affect its validity ?

In my opinion, No. To be sure, one can readily concede that partial or temporary restrictions of liberty may often be condoned where the total denial of the liberty would not be. Extraordinary reasons or emergencies are necessarily allowed to infringe upon any liberty for a time. But in this class of cases even such partial restrictions seem dangerously prone to lead to unfortunate results. General considerations of morality point to their invalidity.10

13. A condition against marriage is sometimes framed thus : the gift will be revoked if the donee marries a person of a particular nationality or religion or social status. Let us assume that the class of persons thus forbidden is by general standards undesirable, e. g., an enemy alien. Should the condition stand ?

This type of condition, be it noted, is distinguishable from an apparently analogous one, already considered, in which the condition is (in my opinion) to be deemed valid, viz., a gift on condition of marrying a person having a specified status. But logically does it not follow that a condition against marrying a person of a specified (undesirable) status is also valid ? E. g., is not a condition against marrying a person who is not an American citizen the equivalent of a gift on condition of marrying an American citizen? There is this difference, indeed, that the latter involves an encouragement to marriage, which the former does not, in that the donee in the former retains the gift even though remaining celibate.

9. CONTRA however the Supreme Court Nov. 11, 1912 (Sirey 1914 pt. I p. 185; Dalloz 1913 pt. 1 p. 105 with Ripert's note).

10. But compare Demolombe XVIII 243.

But even though such a condition be limited to a particular (undesirable) class of persons, it seems to us a dangerous one, and therefore void. The fundamental principle, here as elsewhere, is that such a condition may have evil consequences, in point of public policy and morals.

14. Does the same conclusion strictly follow when the scope of such a clause is reduced to a minimum, viz., a condition not to marry a particular person? In proportion to the limited scope of the condition the obstruction to marriage, thereby involved, is also reduced, in theory at least. But this does not mean necessarily an actual reduction in influence. When a testator drafts such a clause in restraint of a legatee, it is nearly always because the particular marriage is actually in contemplation. And the more particular the prohibition against a named person, the more plain the implication that other persons are not in a position to offer for that marriage. The more precise the prohibition, therefore, the more important it becomes to protect the social ideal of preventing impediments to marriage.

15. Surveying these various types of conditions against marriage, should anything be allowed to turn on the common feature that the donor is a spouse, or a relative in one of the ascending degrees? We may return for a moment to this feature (already alluded to in passing), because some of the foreign codes show special favor to a condition thus imposed ?

The solution should depend upon the prevailing conception as to family authority, i. e., that of husband over wife, or of ascendants over descendants. Should such authority be given such ample respect as to attribute to it a survival after the death of husband or ascendant?

As for the husband's authority, this survival does not seem to be strictly required. In our modern civilization, the marital authority is sufficiently explained by the policy of assuring a certain unity in the governance of the household during joint lifetime. After the husband's death, there is no special reason for prolonging the authority.

As for the ascendant's authority, modern ideas do not concede to it that basis of clan chieftainship, which explains its presence, e. g., in Roman law. Ascendants have not so much a right as a duty, viz., to bring up those descendants who are too young to take

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care of themselves. One can understand that in such a view the ascendant who dies before the descendant might wish to impose a condition against marriage. But the condition could not be given legal effect except when limited to that period when the descendant would have remained under the ascendant's authority. A condition so limited would be sustainable, because conceivably, after the ascendant's death, the power over the minor would be in the hands of more distant relatives or of strangers having no motive of family affection. But this would not be true if the donee-descendant had another ascendant or relative in the direct line.

16. The reason for our attitude of strict disfavor to conditions against marriage, in general, is that they tend to exercise a pressure on the donee's mind to deter him from marriage, in that they generate a fear of losing the benefit of the gift. Hence, if the conditions of the gift do not in fact exercise such a pressure, their impolitic and therefore illegal element disappears. It is for this reason that certain codes exceptionally concede validity to conditions against marriage when attached to gifts of a life-interest only, as a condition subsequent. Here it is likely that the marriage, while putting an end to the life interest (annuity, etc.), would bring to the person other and equivalent resources—unless, indeed, the life interest were an exceptionally valuable one.

17. Another question, but closely related, arises when the donee of a gift conditioned against marriage is a person already vowed to celibacy, e. g., a Catholic priest. The condition for the time being appears needless, in that it merely reinforces a decision already made. But in countries where such religious vows are not recognized as binding by the secular law, one who wished to repudiate his religious vow would meet no legal prohibition. He could freely marry. Could it be supposed, in that event, that the gift's condition would not affect his purpose? In our opinion, a condition which merely reinforces a promise already morally binding on the promisee and which tends to move him to keep his promise, cannot be thought to exercise an influence which the law should condemn.

18. To sum up, a condition against marriage or re-marriage, while susceptible of numerous minor distinctions, should in most cases be deemed illegal. Such is the conclusion to which tend many of the codes dealing with the subject. Certain common trends are visible in all civilized legal systems.

11. Laurent "Droit civil” XI 497; Demolombe "Droit civil” XVIII 241.

19. As to the mode of enforcing this principle, the general tendency of the codes is to declare that the condition is "as if not written," i. e., void. The gift takes effect, but unconditionally.12 Often this follows merely as an application of a general principle that conditions contrary to law and good morals are to be deemed as though not written, in gifts or wills.13 In the other systems (except for a few express texts to the contraryl4) the same result can often be reached by interpretation of the donor's intention, which is deemed to regard the gift as the essence of the transaction, and not the accompanying condition.

12. The Swiss Code (Art. 482) and the Roumanian Code (Art. 1008) make void in general any gift to which an illegal condition is attached.

13. French Code (Art. 900), Italian Code (Art. 859), Spanish Code (Art. 792), Portuguese Code (Art. 1743), Netherlands Code (Art. 935), Chilean Code (Art. 1093), Mexican Code (Art. 3251).

14. Codes of Austria, Portugal, Spain, Chile, Colombia.

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COMMENT ON RECENT CASES

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