Two Books of the Elements of Universal Jurisprudence. Samuel Pufendorf

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СКАЧАТЬ this much is certain, namely, that as long as a thing which has been unjustly taken away remains in the hands of the first robber, the fault always adheres to it, as long as that fault has not been quashed by the former owner, and that no matter how long the robber has possessed the thing. For mere time in itself can neither eliminate a fault nor produce a right, because, of course, by time a fault or right which was originally inherent is merely continued. But by the usage of nations, there have been introduced, and in most states accepted, usucaptions and prescriptions, by the force of which a thing that has been acquired with a good title, and in good faith, and has been possessed in quiet, is regarded, after a certain length of time, as possessed by a good right, so that the otherwise legitimate claim of a third party no longer obtains. That is both because no one is presumed knowingly to have desired to have his own property remain so long in the hands of another, when he might easily have asserted his right to it (at least without having made any contest of his right, whereby a full right is preserved), unless he himself regarded it as derelict, and approved of the other’s possession of it—and neglect so careless as that seemed to deserve the loss of such property; and also in order that the limitless crop of litigation should be suppressed, which litigation would necessarily be excited, when, after so long a lapse of time, the same property should be demanded from the fourth or fifth possessor, who had come into possession of the thing by a just, and possibly also by a burdensome title, especially since a number of accidents might happen by which this latter will be prevented from being able to demand restitution for the damage from the robber. And there is no obstacle to this conclusion in the fact that my property cannot be transferred to another without my own act, or that no one ought to be enriched by another’s loss. For here a non-deed, that is to say, supine negligence in claiming one’s own right, is regarded as a deed, and that is not regarded <46> as a loss, which one was willing to have inflicted upon himself. Now willingness here is presumed from such long-continued silence. Thence it comes about that he who has the thing in usucaption is safe in conscience also. For, before the time of usucaption, he possessed the property in good faith, as is supposed; and afterwards, if he live in a state, by civil law also the thing in question is adjudged to be his, which civil law utterly extinguishes the claim of the former owner. Among those who are not included in the same state, the same result is produced by natural equity itself. Furthermore, just as by the law of nature he who has done another damage by violence or by guile is bound to repair the same; so, since any one whatsoever can yield his right, the fault pertaining to the property expires, and the obligation of making restitution ceases with the one who did the damage, when he to whom it was done condones it voluntarily to the other, and does so, not from fear of further evil or molestation, or, as men commonly say, for the purpose of buying off trouble; and, indeed, so that the other may have the faculty of recovering his own property if he should so desire, and the robber may have the inclination not to defend by violence the thing which he is called upon to restore. And it makes no difference whether this act of condoning has been performed expressly or tacitly, that is, of course, by dissimulation, and, although you could do so conveniently, by not starting a controversy, or for a notable length of time making no signs as though you cared to put forward some legal claim to that property. Hence, if, for example, he from whom something has been taken away should die, and, when he was transmitting to his heirs the rest of his goods under express designations, made no mention of the property which had been taken away from him, it appears that he is treating that property as derelict, and therefore his heirs cannot recover it from the present possessor. However, in order for this act of tacit condonation to satisfy the conscience, it seems to be altogether required that it should somehow or other be brought to the attention of the former owner that the possessor is ready to restore his property if the former should demand it back.

25. But if, in truth, property unjustly taken away has come under a good title to a third party who is effectively ignorant of the fact that the second party is an unjust possessor of it (for he who knowingly, for example, has bought stolen goods, brings upon himself also the fault attending the acquisition, and therefore is required to make restitution, and he from whom the thing has been taken can appropriate it in the same way as he can appropriate it from the robber), and he from whom it had been taken chances to light upon it, the question arises whether he may immediately lay hands upon his own property and compel by litigation that third possessor to turn it over, leaving it to him to bring against the man who had alienated from the other faulty <47> property of this kind, an action for the reparation of damage; or, indeed, whether, leaving out of consideration the third possessor, one ought to go after the robber himself, so as to make him restore the property either in value or in nature, the transaction being instituted with the third possessor. In this case, although in many places positive laws favour the one from whom property has been taken, and grant him the right of laying hold of it wherever it has been found, nevertheless, those who follow the mere law of nature must carefully determine whether his ignorance regarding the fault which adheres to this piece of property, has been contracted by some negligence, or, indeed, not. For if the third possessor not only saw no fault adhering to the property, but, more than that, neither from the condition of the property, nor from that of the vendor could have suspected it with any degree of probability, as, for example, when it is a public presumption that such and such a man can possess such and such property with a good title, then it does not appear that the third party must be dealt with directly, but that the inconvenience must be brought upon the robber alone. For, inasmuch as the former had acquired that property in a way which is commonly recognized, and he could not have been aware of the fault, there is no apparent reason why he himself, rather than the man who is trying to recover his own property, ought either to be deprived of the aforesaid property without compensation, or weighed down with the burden of extorting payment for the damage from the man who sold it to him. For the faultiness in acquisition has not passed with any effect to such a possessor, because faults of that kind adhering to things, and obligations resulting to persons from them, cannot be derived upon a third person without an act or culpable omission on his part, such as is not found in the present case. The situation, however, is different when the condition either of the thing or of the person produces the probable suspicion that the property in question has been faultily acquired, or else an edict has been issued that no one should buy anything from such persons, edicts of that kind being promulgated not infrequently in war with regard to soldiers; for here the fault of failure to make proper inquiry about the property leaves the third person no ground for taking exception to the first owner coming into possession of his own property by the shortest possible route.

26. Now we lose proprietorship and right to property when we either treat it as derelict, or by any means whatsoever alienate it, or transfer it to another. It is easy to infer from the modes of acquisition the number of modes in which this takes place. For whenever another person acquires in a legitimate mode that which was our own, or we in any way whatsoever irrevocably transfer to another our right to the property, then that property ceases to be ours. Now, although through death a person ceases to be among men, and by that very fact every <48> right of his over persons and things expires, nevertheless, because it seemed undesirable that that which a man had acquired with such labour throughout the whole course of his life, should be regarded as derelict upon his death, in such a way that any one whatsoever might have the faculty of appropriating it to himself, it has been introduced by the customs of nations that even those goods which a person, while he was yet among the living, had not yet transferred or alienated to another, should go to him to whom the deceased wished them to go. That wish is either expressed or presumed. The latter is the case in instances of intestate succession, when a person has died without a will. For then the presumption of the wish on the part of the deceased ordinarily favours those who are the next of kin, among whom the very next of kin are severally understood to have the strongest right. Now the expressed wish of the deceased is learned from the testament, the codicils, or by whatever name those final dispositions are listed, by means of which the property is alienated in the event of death; but before death this alienation is revocable, and in the meantime the full right to the property which obtained before is kept. Hence the effect of these dispositions is not that, as soon as they have been conceived and expressed in signs, proprietorship of the property passes over to the heir, and the usufruct remains with the testator during his lifetime, СКАЧАТЬ