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Present: Lascelles C.J. and Wood Renton J.
MANAKULARATNA v. WICKRAMANAYAKE.
42—D. C. Colombo, 34,245.
Husband and wife—Liability of husband for debts of wife—Ordinance
No. 15 of 1876, s. 10,
The husband is liable for the debts incurred by his wife tradingwith his consent.
Ordinance No. 15 of 1876 (section 10) has not altered the commonlaw with regard to the husband's liability for debts incurred by hiswife as publica mercatrix.
rjTJIE facts appear from the judgment.
H. A. Jayewardene (with him AnUanandam) for first defendant,appellant.—Section 10 of the Matrimonial Rights Ordinance hasby implication repealed the Roman-Dutch law as to the liabilityof the husband for the wife’s trade debts. Under the old law thehusband got the benefit of the wife’s earnings by trade; theearnings became part of the community. It was because of thecommunity that the husband was liable for the debts. Under thepresent law there is no community; the reason for the husband’sliability has therefore gone. [Wood Renton J.—Section 10 doesnot make any difference between those married in community andthose married under the Ordinance of 1876.] It follows from theexistence of separate property that the debts are also separate.
The following authorities were referred to: Mannikan v. Peter; 1Fernando v. Ammal;2 Hal&bury’s Laws of England, vol. XVI.tp. 352; In re Sheppard.s
A. St. V. Jayewardene, for the plaintiff, respondent.—Section10 should not be held to have introduced a radical change inthe law in this indirect manner. The Ordinance of 1876 doesnot consolidate the law, but only amends the law in certainparticulars.
The reason why the husband was liable under the Roman-Dutchlaw for the debts of his wife was because the husband was thecurator of the wife, and as the wife when carrying on .trade wasdeemed to be an agent of the husband*. The liability was not anincident of community. See Voet 23, 2, 41-44. Counsel also citedHalsbury's Laws of England, vol. XVI.f sec. 842, p. 416; AbdxdCoder v. Baba.*
Cur. adv. vult.
i (1890) 4 N. L. R. 243,at page 247.2 (1879) 10 Ch. D. 573.
– 2 (1009) 12 N. L. R. 200.* (1859) 3 Lor. 207,
Mandkula*ratna • v.Wickrama-nayake
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March 15, 1913. Lascblx-es C.J.—
This case raises a point of some interest with regard to theliability of a husband for his wife’s trade debts. The learnedDistrict Judge has found as a fact that the second defendant wastrading in betel leaves independently of her husband, and hasdisbelieved the evidence that the betel leaves in respect of whichthe action is brought were supplied on the husband’s orders. Hehas also found that the second defendant carried on the betelbusiness with the knowledge and consent of her husband, and thatthe betel leaves were sold by the wife alone. On these facts it iscontended that the husband is not liable for the wife’s debts. Theargument is that section 10 of the Matrimonial Eights and Inherit-ance Ordinance, 1876, has by implication repealed the common lawwith regard to the husband’s liability for debts incurred by hiswife as a publica mercatrix. It is said that the recognition of theseparate property of a married woman in the profits of any businesscarried on by her separately from her husband is inconsistent withthe husband’s liability for debts incurred by his wife in suchemployment.
Before discussing this argument it should be noticed thatralthough the Ordinance has been in force for some twenty-six years,section 10 of the Ordinance has never been understood to have thisfar-reaching effect. It should further be noticed that if it was theintention of the Legislature to repeal an important branch of thecommon law, it is reasonable to expect that this intention wouldhave been specifically expressed. It is difficult to believe that itwas intended, by section 10, to deal at all with the question ofthe husband’s liability for his wife’s debts.
The argument addressed to us was to the effect that under thecommunity of goods the husband got the benefit of his wife’searnings, which would go into the community and thus be underthe husband’s control; hence, it was argued, the husband wasreasonably held responsible for his wife’s debts. But as soon asthe wifeJs separate property in the profits of her separate tradingcame to be recognized, the reason for the husband’s liability cameto an end.
This reason would not be without a certain plausibility, if thehusband’s liability under the Eoman-Dutch law for his wife's tradedebts were an incident of and derived from the community of goods.But this is not the case. The liability of the husband arises from atotally different source, namely, .the marital power which the civil lawattributed to the husband; a power which Yoet (23, 2, 41) observes,“jure vetere parum apatria potestate'dietabatThe effect of marriagewas to constitute the husband the curator of his wife (Voet 23, 2, 41),Hence, when the wife contracted with the consent, express orimplied, of the husband, the latter was held responsible for herdebts. And it was reasonably considered that the consent of the
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husband must be implied when the wife was publica metco-Mxand the debt incurred mercatura intuitu. In such cases the wifewas held to have contracted as the husband's agent and on hismandate.
On this view of the fundamental principles of the Roman-Dutchlaw with regard to the husband's responsibility for his wife’s debts,it is dear that section 10 of the Matrimonial Rights and InheritanceOrdinance, 1876, cannot be construed to have repealed by implica-tion the existing law on the subject.
The appeal, in my opinion, should be dismissed with costs.
Wood Renton J.—
This appeal raises, apparently for the first time, an interestingpoint in the law of husband and wife in Ceylon. A woman, marriedafter the Matrimonial Rights and Inheritance Ordinance, 1876(No. 15 of 1876), came into operation, trades independently of herhusband, but with his knowledge and consent. She is admittedlyherself liable for debts incurred by her in the course and for thepurposes of this trade. But is her husband liable also? Thelearned District Judge has answered this question in the affirmative,and, in my opinion, he has done so rightly.
The case turns on the interpretation and scope of section 10 ofthe Ordinance of 1896. That section is in these terms
The wages and earnings of any married woman, whether marriedbefore or after the proclamation of this Ordinance, which may beacquired or gained by her after the proclamation of this Ordinance inany employment or trade in which she is engaged, or which she carrieson separately from her husband, and also any money or property soacquired by her through the exercise of any literary, artistic, or scientificskill, shall be deemed and taken to be her separate property, indepen-dent of the debts, control, or engagements of her husband, and she shallhave as full power of dealing with and disposing of the same or anyinvestment thereof as if she were unmarried, and her receipts aloneshall be a good discharge for such wages, earnings, money, and property,and the principal and interest of any investments thereof.
It is contended that when the Legislature in this enactmentprovided that the wife should have as full power of dealing withand disposing of the class of separate property which it created asif she were unmarried, it must have intended to free her husbandfrom all her liabilities in regard to it. I do not think that decisionsunder the English Married Women’s Property Acts give us muchassistance in dealing with the point raised by this appeal. Thesedecisions turn largely on considerations as to whether or not amarried woman in contracting debts should be deemed to be her -husband's agent, whereas Roman-Dutch law, on which the Ordinanceof 1876 was grafted, subjected the wife's power of contracting to herhusband's control, because it regarded her as being under hisguardianship or curatory. It will be. observed that section 10
applies whether the marriage was contracted before or after thecommencement of the Ordinance. Under the Roman-Dutch law;apart from the Ordinance, where a wife with the consent of herhusband publicly carried on a trade, her debts incurred in thecourse of such trade became debts of the community (see Burge,2nd ed., vol. 111., p. 400). Section 8 of the Ordinance of 1876abolishes for the future the community of goods as a consequenceipso jure of marriage, and section IQ relaxes, in the case of womenmarried in community before the Ordinance came into operation,the old law of community to this extent, that it makes the classof property with which it deals the exclusive property of the wife..But section 10 does not provide that in such cases debts incurredby the wife in regard to her separate property shall be her debtsalone, nor does it contain any language that would justify us inlaying down such a rule even in regard to marriages contractedafter the Ordinance came into operation and, therefore, not subjectto the law of community. Section 10 confers upon the wife expressrights, and, I have no doubt, also implied liabilities, in regard to herseparate property. But it contains nothing that would warrant usin holding that it releases a husband from his common law obligationsas to debts incurred by his wife while trading with his consent as apublic merchant. I would dismiss this appeal with costs.
MANAKULARATNA v. WICKRAMANAYAKE