Two Books of the Elements of Universal Jurisprudence. Samuel Pufendorf

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      To the third class belong those increments and fruits in which the operation of nature as well as the industry and effort of men concur. Such are all manner of crops which are improved through cultivation by man, trees which put off their sylvan nature as a result of ingrafting, and the fruits of the same; likewise the offspring and fruits of animals which are fed by men, or of those animals whose offspring and fruits are not produced at all without human effort, or else have to be sustained thereby. The fruits of animals I call milk, wool, hair, feathers, teeth, deciduous horns, and the like.

      To the second class we assign those things which, due to human skill, put on a form that is fit for definite uses, such as are practically all things with which the industry of workmen and artisans is occupied. Their industry is accustomed to fashion these rude benefactions of nature, as it were, for the most convenient uses of human life.

22. Here also may suitably be placed that which otherwise is a common matter of dispute among the jurisconsults, whether, namely, in regard to the production of a species out of material belonging to another, the artificial form follows the material, or the material follows the form.³⁷ Although the civil law, by virtue of sovereign authority, might have settled this controversy by distinguishing between the species which can be reduced to their earlier form and those which cannot, so that in the first class the form yields precedence to the material, in the second class the opposite is the case; nevertheless, for those who follow only the law of nature, the discrimination must be made as to whether a certain person applied his industry to the elaboration of material belonging to another either through error, or from a credibly presumed willingness on the part of the owner of the material; or rather did so with guile, and with the intention of defrauding him of the material by this means; and, in the next place, whether the material, or the value of the art employed, was the greater. For he who knowingly, and with malice aforethought, has given my material a new form so as to defraud me of it by this means, has neither acquired any right to <43> the material, nor is he any more able to demand from me the reward of his labour, than is the housebreaker, because with a great deal of trouble he has made a new entrance into my house. But if he has acted through error due not to absolutely heedless negligence, that is, if otherwise that material might easily have been replaced from elsewhere, or was not so very necessary to the owner, or under other circumstances he would have had it for sale, the option still remains with the owner as to whether he shall accept pay for the material and leave the product to the artisan, or prefers to pay for the effort and keep the thing himself. For it would be absurd that the error of another could produce a right to my property against my will, which would outweigh my own right to it, especially when the value of his effort does not exceed the value of the material. Thus, why should he who through an error has from my olives, grapes, or grain pressed out oil or wine, or has cooked bread, as though the materials had been his own, have a better right than I? Or why should he have the right of choice rather than I, especially when, as often happens, we neither can do without things of that kind nor desire to do so? But, indeed, where the cost of the material is out of all proportion to the form, as is the case in painted pictures, and in those articles which are manufactured out of less valuable materials, as, for example, bronze, iron, or wood, equity assuredly demands that the owner should yield the object to the artisan after receiving the value of the material, inasmuch as materials of that kind are generally of such a nature that, when their value has been restored, no loss redounds to the owner. But, whatever has been done under these conditions, on the credibly presumed consent of the owner, is just as valid as if the express consent of the owner had been given. Thus, for example, if I make a statue or anything else out of another’s bronze which was otherwise for sale, after I have presented a credible reason why I made use of his property without his knowledge, and after I have offered him the money for it, he cannot rightfully compel me to yield him possession of the object. But, when some one has built a house on another man’s land, or has sowed grain and planted trees, he has not thereby acquired any right to the soil, nor can he compel the owner of the soil to pay him any return at all for materials and labour, for the reason that an accident of this kind can scarcely happen except in consequence of utter and crass negligence. And, indeed, he who has built a structure can tear it down again and carry off the material, and claim that for himself; provided, however, that he is bound to repair whatever damage has been done to the land by that structure. But he cannot at all in the same way carry off a tree and a crop and keep them for himself, because they draw their nurture from the land, and the owner will have been prevented from having his own trees and crops put in their place. If, however, there was no <44> intent to deceive on the part of the other, it is fair for the owner of the soil to restore him as much benefit as has been rendered to his own land by the other’s tree or crop.

23. It remains for us to examine into illegitimate modes of acquisition. They can be brought under two principal heads, force and fraud; that is to say, when some one destitute of legitimate authority either extorts by violence, or fraudulently and surreptitiously steals away from another, that to which he himself has no right, and in such a way that the other’s right is injured. Here two things must be noted. (1) It frequently happens that a man has the right to a certain thing which is in the hands of another; as, for example, when that same thing or its equivalent value is owed him; and yet in states it is judged that he has not rightly taken possession of it, when he takes it to himself in private enterprise, violently or surreptitiously. For within states it is the established usage that no citizen should by his private authority [autoritate] extort from a fellow-citizen against the latter’s will that which is owed him, but he should use the assistance of the magistracy; although, by the mere law of nature, I may by any means at all take to myself from him who refuses to give it to me freely, that which is owed me. And thence it comes about that he who herein exercises violence in a state, commits the crime, not of theft or robbery, but of a breach of the peace, and of extortion by means of threat. (2) One may have to the goods of another a right which is either perfect, and, as it were, double, or a right which may be called one-sided (μονόπλευρον). It is the former, when, in very truth, my right to a certain thing has been acquired by some preceding act, in such wise that the other party also is under obligation to give it to me. It is the latter, when I, indeed, without doing injury, am able to appropriate something, in such wise, however, that on the other party there rests no obligation to give it to me. This is the case in war, where he who did the first injury is bound to make good nothing but the original damage which he did, and that which proceeds therefrom. Because, nevertheless, that same person, as far as he was concerned, broke the common bond of right with the other, and gave the injured party an unlimited authority over himself and what was his own (as will be set forth below),³⁸ the injured party can, without himself doing injury, appropriate by any means at all any goods whatsoever of the other’s, although the other is by no means bound to offer them or to yield possession of them freely to him; I mean thereby, of course, those goods which are in excess of the damage which has been done by him. Exactly as between two persons who by mutual agreement have come to fight, each has the authority to inflict blows upon the other, but neither is bound to offer himself freely to the one who is aiming a blow at him. Although that mode of acquisition has not been associated with wrong, and therefore should not be pronounced <45> out and out illegitimate, nevertheless, nature grants no further use of it than in the case of war, which, in a subsidiary manner, as it were, comes to the rescue of the security of men, when it is not permitted to employ peace.

24. Now under the aspect of species, various names are given to illegitimate modes of acquisition. Under the former class are listed rapine, brigandage, piracy, driving off of property, &c.; under the latter class, theft, peculation, sacrilege, and all manner of defrauding in contracts.

      But, in truth, the following point requires profounder consideration, whether, namely, the fault which adheres to a thing from the illegitimate means of acquisition may not possibly be corrected by a subsequent deed, or even by the mere lapse of time; and whether the fault remains even at the time when the thing comes to a third party by a good title.³⁹ СКАЧАТЬ