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Traitement juridique de la prodigalité sous l'Ancien Régime

Abstract : It is difficult to categorize the concept of Prodigality: between madness, weakness of mind or a simple trait of character. The legislator hesitates not only about the solution to be adopted but also about the need to intervene.The Romans were undoubtedly the first to define and codify the curatorship of the prodigals in the law of the XII Tables by implementing the legal inability of the prodigal.The society of the Ancien Régime is a fertile ground for the development of prodigality. Indeed, both the bourgeoisie and the nobles wish to protect their wealth from the voracity of an heir. The former legal inability due to prodigality is then exhumed alongside other devices, constituting a real arsenal available to families.The relatives are ruthless, sometimes using very easily the legal measures at their disposal against the one who endangers the durability of the family inheritance. With prodigality, often associated with other failings such as gambling, debauchery, drunkenness or idleness, modes of neutralization become privileged tools not only to put an end to excessive spending but also to control attitudes that disturb the social order on which Ancien Régime society is based. The extension of the legal inability to "madly" remarried widows to persons too far from their social condition (article 182 of the Blois Ordinance of 1579), regardless of any prodigality, is a perfect illustration of this.Despite the changes made to the legal inability during the Ancien Régime, this provision has critical flaws (cost and length of the procedure, humiliating nature, difficulty in providing proof of prodigality, uncertain outcome) which will lead families to turn away from it. Thus, the excesses of the prodigals are sometimes curbed by a separation of property between husband and wife, an unofficial disinheritance , a fideicommissum , a promise to keep the succession or a confinement.The excesses of families are denounced by the Enlightenment. Thus, the royal power supervises certain devices more strictly and the magistrates themselves are reluctant to pronounce prohibitions for simple prodigals. To compensate for this lack, they are even at the origin of an original provision: the judicial council.With the Revolution, the question arose whether to continue interfering with the prodigal's affairs. In any case, if there is a neutralisation measure, it must respect individual freedoms and the right to property.After fierce debates, the preparatory work reveals that, the prodigal will continue to benefit from legal protection by transposing into the civil code the jurisprudential creation of the judicial council.This study will examine the different legal techniques available but also the foundations that have innervated legislation, jurisdictional activity and doctrine.
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Davys Masker. Traitement juridique de la prodigalité sous l'Ancien Régime. Droit. Université Paris-Saclay, 2018. Français. ⟨NNT : 2018SACLS117⟩. ⟨tel-01863410⟩

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