Chap 6: Servitudes
- The second kind of real rights is servitudes.
- These are burdens which one man has on another person’s property.
- These rights were at first personal.
- They were entered into by a contract between the persons.
- I need to have a road to the market town.
- If a man’s estate lies between me and the town, I must bargain with him to have a road through it.
- This contract produces only a personal right.
- I should bind him not to sell this estate without the burden.
- If the land were sold and the new proprietor refused the road, I could not sue the new owner on a personal right on the previous owner.
- I must first pursue the previous owner, whom I had the right.
- He then must pursue the new buyer.
- If the land has gone through several hands, this would be very tedious.
- To remedy this, the law made servitudes real rights, demandable a quocumque possessore.
- Servitudes were
- rusticae, or
- Examples are:
- the right of a road to the town or river
- feeding so many cows on another man’s pasture grounds
- Examples are:
- urbanae,
-
- Examples are:
- the right of leaning the beams of my house on your gable,
- the right of obliging the owner of the lower floors to make his wall strong enough to support mine, etc.
- Examples are:
- rusticae, or
- These are all naturally personal rights and are only made real by lawyers.
- Life rents on estates and many other things are also servitudes, and are properly personal.
- Feudal burdens were only persons’ rights.
- Therefore, every new vassal must renew his homage and the promise of fealty.
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- In the beginning of the feudal law, if the proprietor did not perform his duty in every article, he forfeited his feu;
- Similarly, if the tenant encroached on his lord’s grounds, what he had feued returned to the superior.
- The right of the vassal is founded on the charter of the superior.
- Every article of it must be fulfilled.
- Every new possessor must renew the obligation.
- When tenants became independent and had a real property, they were said to have the dominium directum, not the dominium utile.
Chap 7. Pledges and Mortgages
- Pledges and mortgages are certain securities for the payment of debts.
- At first they could not be claimed as real rights.
- Afterwards, the law considered them as such.
- Pledges properly regard moveable subjects, and mortgages immoveable.
- If a pledge be not redeemed at a certain time, it is forfeited.
- People in bad circumstances are naturally slothful.
- The negligence of debtors among the Romans gave occasion to the lex commissaria.
- It empowered the creditor to:
- seize the pledge, and
- return the overplus.
- By the English law, if no day be named, the pledge falls to the pawntaker on the death of the pawner.
- In immoveables, lands are mortgaged but not delivered.
- In case of failure, they are forfeited.
- The Roman law and ours are much the same on this head.
- If payment is not made within some few months after demand, the creditor adjudges the land for the whole sum and the penalty incurred.
- But his property is not secure without long possession.
- Because the proprietor has a power of redeeming it within a reasonable time.
- But upon redemption, there is much trouble [129] in examining old accounts and the like.
- The law has made 20 years the stated time in England for redeeming mortgages.
- Hypothecs are another kind of pledges really arising from contract.
- These are made real rights by the civil law.
- By them anciently, the landlord was empowered to detain the tenant’s furniture and stock if he turned bankrupt, and could claim them a quocumque possessore.
- This arose from the practice of keeping tenants by steel-bow.
- In this practice, the whole farming stock was the landlord’s.
- At present the landlord has only a right of preference.
- We do not have so many hypothecs as the Romans had.
- All pledges are naturally personal rights, and are only made real by the civil law.
Chap 8: Exclusive Privileges
- Exclusive privileges are the last division of real rights.
- Among these is the right of inheritance.
- This is not a creature of the civil law, but arises from nature.
- The heir has a privilege of demanding what belonged to the deceased.
- After he is admitted heir, it is his real property.
- If a person starts to chase a wild beast, he has an exclusive privilege of pursuing it.
- Whoever comes in on the chase can be punished because he breaks the exclusive privilege.
- In 1701, an English man-of-war attacked a French merchant ship which was just about to fall into their hands, when a Scotch privateer came and carried off the prize.
- A lawsuit commenced and the Scotch privateer was declared guilty of breach of property.
- But upon strict inquiry, we shall find that it was only breach of privilege.
- Though these and some other exclusive [130] privileges arise from nature, they are generally the creatures of the civil law.
- Such are monopolies and all privileges of corporations.
- They might have been conducive to the country’s interest.
- However, they are now prejudicial to it.
- The riches of a country consist in the plenty and cheapness of provisions, but the effect of monopolies is to make everything dear.
- When a number of butchers have the sole privilege of selling meat, they may agree to make the price what they please.
- We must buy from them whether it be good or bad.
- Even this privilege is not of advantage to the butchers themselves, because the other trades are also formed into corporations.
- If they sell beef dear, they must buy bread dear.
- But the great loss is to the public, to whom:
- all things are rendered less comeatable, and
- all sorts of work worse done
- Towns are not well inhabited.
- The suburbs are increased.
- However, the privilege of selling a new book or a new machine for 14 years does not have so bad a tendency.
- It is a proper and adequate reward for merit.
- A right to servitudes and exclusive privileges may be acquired by prescription.
- Those are the different kinds of real rights.
- We proceed now to personal rights.
- These arise from contract, quasi-contract, or delinquency.
Chap 9: Contracts
- That obligation to perform a contract is founded on the reasonable expectation from [131] a promise.
- This differs considerably from a mere declaration of intention.
- If I say that I want to do something for you but I do not do it, I am not guilty of a breach of promise.
- A promise is a declaration that you want the promisee to depend on you to perform it.
- A promise produces an obligation.
- Its breach is an injury.
- A breach of contract is naturally the slightest of all injuries because we naturally depend more on what we have than what others have.
- A man robbed of £5 thinks himself much more injured than if he had lost £5 by a contract.
- Accordingly in rude ages, all crimes are slightly punished, except those that disturb the public peace.
- Society is far advanced before a contract can sustain action or its breach can be redressed.
- This was caused by:
- the little importance of contracts in those times, and
- the uncertainty of language.
- The first contracts that sustained action were those:
- where the damage done was very great.
- where there the person surely intended to the contract to be fulfilled.
- Accordingly among the ancients, promises entered into with great solemnity first sustained action.
- No stipulation could be made unless the contractors were personally present.
- No promissory note in writing was binding.
- No promises by the Roman law sustained action without a stipulation.
- By the English law, a consideration or cause for the promise was at first necessary to make it obligatory.
- It was thought contrary to good manners to insist on a promise.
- If a man promised a certain sum to his daughter, there is a consideration.
- Therefore, he was obliged to perform it.
- But if he promised it with any other man’s daughter, it was sine causa.
- Unless she was a relation, he could not sustain action.
- If I made you a promise, it did not sustain action
- But [132] if I again promised not to forget my former promise:
- the latter promise was obligatory, and
- the former was the consideration that made it so1.
- But [132] if I again promised not to forget my former promise:
- By the civil law, the first promises that sustained action were those entered into in presence of a court.
- With a court, there could be no doubt of the intention.
- Accordingly, recognizance of every promise was taken before some court.
- A recognizance is when a debtor comes before a court with the creditor, and acknowledges that he owes him a certain sum;
- A copy of this acknowledgment was given to the creditor.
- Another copy is given to the clerk.
- Whenever the creditor showed his copy, if it was found to correspond to the other copy, he could pursue for his money.
- Afterwards, a recognizance before the magistrate of a staple town served the purpose2.
- The next contracts that sustained action were the contractus reales.
- These were entered into by the delivery of a thing to be returned itself, in species, or in value.
- These are of four kinds:
- Mutuum
- It is when I lend anything to be returned in value, as money.
- This soon sustained action.
- The mutuum does not infer interest, and in a bond, unless the interest be specified, it will carry none.
- It is when I lend anything to be returned in value, as money.
- Commodatum
- when the thing itself is to be restored, like a borrowed horse.
- Depositum
- when a thing is committed to another’s care but not to his use.
- Pignus3.
- It is a security for debt.
- Mutuum
- All these sustained action before the four consensual contracts:
- Buying and selling,
- If the contract is not fulfilled, you lose your earnest money.
- Letting [133] and hiring
- This once comprehended leases, day’s wages, building, and almost everything with regard to society.
- If a small price be paid for borrowing something, it becomes letting and hiring.
- Partnership, and
- Commission.
- If this was performed gratuitously, it could not at first sustain any action.
- But if a reward was given, it was nearly the same with the commodatum.
- Buying and selling,
- The Roman law also had a pactum nudum.
- This is a bare promise without any consideration.
- It created an exception or defence against the pursuer’s action.
- Contracts deprive men of that liberty.
- A very small defence would set them free.
- Originally, no contracts were sued before any court but the ecclesiastic.
- But they came gradually to civil courts.
- The canon law judged from principles of honour and virtue.
- It obliged men to perform even those promises that were made gratuitously.
- This was imitated by the civil law.
- By English law, if a promise is clearly proven, he who promises must perform it.
- In general, the law gave only action for damages until the court of chancery was introduced.
- It is the natural idea of a court to redress injuries.
- Accordingly if a person refused to perform his contract, he was only obliged to pay the loss which the other had sustained.
- But the court of chancery forced the person to a performance of the agreement.
- The present and ancient state of contracts are most different.
- Execrations and the most [134]solemn ceremonies were sufficient to secure the performance of a contract.
- Ceremonies to impress the mind were invented:
- drinking blood mixed with water,
- bleeding one another,
- promising before the altar,
- breaking a straw, etc.
- At present, almost anything will make a contract obligatory.
- There are some questions concerning contracts much agitated by lawyers, especially one when the coin becomes debased1.
- If I borrow £100 when the coin is 4 oz. the pound, and it is debased to 2 oz., should I pay £100 of the new coin or £200?
- When the government alters the coin, it is to answer some urgent necessity.
- In 1705, the crown of France had a demand for 10 million.
- But it could raise only 5 million.
- They cried up the coin and paid the ten with five.
- As the government allows private persons to pay with the new coin, the injury is not great.
- The coin’s debasement cheapens all commodities and provisions for some time, since all are paid in the new coin.
- Therefore, the uses of money may be served by the new as well as the old coin.
- In 1705, the crown of France had a demand for 10 million.
Chap 10: Quasi-Contract
- A quasi-contract is founded on the duty of restitution.
- If you find a watch, you should give it back by the right of property, because a man does not lose property with possession.
- But if you and I balance accounts, and you pay me but you afterwards find that you did not owe that sum, how [135] will you claim it?
- You cannot ask for it because you alienated that sum.
- You cannot claim it by contract, for there never was one made between us.
- But I am a gainer by your loss.
- Therefore restitution is due.
- In the same way, if a man was called away by a sudden order of the state without leaving an attorney to manage a lawsuit that he had going on, and a friend undertakes this office without commission, as the defence is necessary, and the undertaking it prudent, restitution of his expenses are due.
- On the same principle were founded the Roman law’s actiones contrariae.
- If you lent me a horse which had cost me extraordinary expenses, by the contract commodate, you could redemand your horse in the same [state] in which you lent him.
- But I could claim my extraordinary expenses by an actio contraria.
- The same principle takes place in many other cases.
- If a person borrows money and gets three of his acquaintances sureties for him, jointly and severally, and if he turns bankrupt, the creditor pursues the ablest surety, who has a claim by the duty of restitution on the other two for their thirds.
- The Scotch law carries this still farther.
- If a bankrupt had two estates, and two creditors A and B.
- A has a security on both estates, B has security only on the best.
- A has a liberty of drawing his money from either estate he pleases, and draws from that on which B has his security.
- As B in this case is cut out, the law obliges Ato give up his security on the other estate to B.
- If a bankrupt had two estates, and two creditors A and B.
- The Scotch law carries this still farther.
- The same was the case in the Roman law with regard to tutory.
- If a person borrows money and gets three of his acquaintances sureties for him, jointly and severally, and if he turns bankrupt, the creditor pursues the ablest surety, who has a claim by the duty of restitution on the other two for their thirds.
- On the same principle were founded the Roman law’s actiones contrariae.
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