Chap 6-10: Servitudes, Contracts

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
    • 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.
  • 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.


  • 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.
  • 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:
      1. 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.
      2. Commodatum
        • when the thing itself is to be restored, like a borrowed horse.
      3. Depositum
        • when a thing is committed to another’s care but not to his use.
      4. Pignus3.
        • It is a security for debt.
  • All these sustained action before the four consensual contracts:
    1. Buying and selling,
      1. If the contract is not fulfilled, you lose your earnest money.
    2. Letting [133] and hiring
      1. This once comprehended leases, day’s wages, building, and almost everything with regard to society.
      2. If a small price be paid for borrowing something, it becomes letting and hiring.
    3. Partnership, and
    4. Commission.
      1. If this was performed gratuitously, it could not at first sustain any action.
      2. But if a reward was given, it was nearly the same with the commodatum.
  • 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.

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.
            • 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.
      • The same was the case in the Roman law with regard to tutory.

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