Scottish Court of Session Decisions

Subject_1 PACTUM ILLICITUM.
Subject_2 SECT. VI.

Pactum contra Fidem Tabularum Nuptialium.

Paton
v.
Paton

Date: 21 July 1668
Case No. No 26.

In a son's contract of marriage, the father disponed to his son his estate, and was to receive the tocher, in satisfaction of the debts on the estate, and for provisions to his other children. A bond which his son privately granted to him before the marriage, was reduced at the wife's instance.

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Paton, in his son's contract of marriage, dispones to him his estate, and the tocher was payable to the father. After the contract, and before the marriage, the father takes a bond of 2800 merks from his son. The wife and her brother pursue a reduction of this bond, as fraudulent, et contra bonos mores, et contra pacta dotalia. It was alleged for the father, That he might very lawfully take a bond from his son, for provision of his children after the contract, and before the marriage, having infeft his son in his whole estate, which was worth 1000 merks yearly, and getting but 2500 merks of tocher, and having some debt, and many children. It was answered, That the estate was not worth 600 merks of rent, and the father's liferent of 400 merks reserved; so that the annualrent of this bond would exhaust the remainder, and they would have nothing to live upon.

The Lords having considered the contract and allegeances, thought that it was not sufficient to annul the bond, that it was after the contract, and before the marriage, if there was any reasonable cause; therefore, and before answer, ordained the communers at the marriage to be examined, whether it was communed and agreed, that the tocher should be accepted for satisfaction of the debt and bairns portions; and they having deponed affirmative,

The Lords reduced the bond, as contrary to the communing at the contract of marriage, the estate being very mean.

Fol. Dic. v. 2. p. 21. Stair, v. 1. p. 555.