' losses ' aiARRIAGE 89 Community of profit implies also community of loss, so that if either of these is named the other is taken to be implied.^ As between themselves, indeed, the spouses may make any terms they please, e. g. to share the profits, but to throw all the losses on the husband's estate.^ But such a clause will not avaU against creditors who, where there is community of profits, are entitled, at all events, to enforce half the amount of their claim against the wife's estate. The word ' losses ' is no less wide in its application than What is the word ' profits '. Without attempting a complete ^^°^^^^ enumeration of possible cases of loss, it is enough here to t^e term say generally that it mcludes all post-nuptial donations, unless clearly in fraud of the wife, made by the husband of the common property or of the separate property of either spouse ; ^ all commercial losses which do not attach to the separate property of one of the spouses only ; * and all UabUities arising out of the post-nuptial contracts of the husband, and also of the wife so far as she is competent to bind her husband by her contracts.^ But the term ' losses ' does not cover the ante-nuptial debts or Habilities of either spouse,* nor (semble) KabiUties arising ex delicto,' nor loss or deterioration of property belonging exclusively to one of the spouses ; * nor necessary expenses.*
Cens. For. 1. 1. 12. 18 ; Voet, 23. 4. 48. ^ q^^^^ jp^^ i i 12. H.
» Voet, 23. 2. 54. • * Voet, 23. 4. 49. ^ Hoola van Nooten, vol. i, pp. 431 £E. « Voet, 23. 4. 50. ' In other words, the joint estate is not chargeable, aa between the spouses, with pecuniary liabilities arising ex delicto. See Boel ad Loen. , no. 99, p. 640 ; V. d. K. Th. 94 and 225, and Lorenz ad V. d. K. Th. 94; Nathan, Common Law of S.A., vol. iii, pp. 1547-8. Infra, p. 279, n. 2. ^ Voet, 23. 4. 49 ; V. d. K. Th. 257 ; unless the loss or deterioration in question is imputable to the fault of the other spouse. Voet, 24. 3. 2 1 . Useful and voluptuary expenses incurred by one spouse in respect of the other's property must be made good so far as the property is found at the dissolution of the marriage to have been thereby increased in value. Voet, 25. 1. 3-4 ; V. d. K. Th. 257. Any excess of value over outlay is reckoned as profits and accrues to the joint account of the spouses, if community of profits is not excluded — otherwise to the hus- band. Voet, ibid. ° Voet, 25. 1. 2 ; V. d. K., ubi sup. Necessary expenses are such as
are required to preserve property from depreciation. Useful expenses
