695
[end of lecture 40]

LECTURE XLI.

STATUS.—ERRONEOUS DEFINITIONS EXAMINED.

Recapitulation.

IN my last Lecture, I endeavoured to explain the import of the distinction between the Law of Persons and the Law of Things.

Endeavouring to explain the import of the distinction, I 696stated the meanings of the obscure and obscuring expressions ‘jus personarum’ and ‘jus rerum:’ or (in the language of the classical Roman jurists) ‘jus ad personas pertinens, et jus ad res pertinens.’ And I also stated the import of the distinction, as it was conceived in general by those who devised it: namely the same Classical Jurists in their elementary or institutional treatises.

Having explained the import of the distinction, and cleared up the terms in which it is usually expressed, I proceeded to illustrate its nature, by shewing its purposes and uses. I shewed that the distinction is purely arbitrary: or that the distinction was devised by its authors, to facilitate the arrangement and exposition of the corpus juris, or entire body or system of positive law. I showed that the arrangements which are built on the distinction (or which might be built on the distinction), are probably the most commodious of which the corpus juris will admit. And I shortly contrasted the arrangements which are built on this distinction, with certain possible arrangements founded on other principles.

The Law of Persons being the Law of Status, and the Law of Things being the Law minus the Law of Status, it is clear that the distinction between the Law of Persons and the Law of Things, turns upon the notion of Status or Condition, or upon the notion of person as meaning status or condition. The sets of rights or duties, capacities or incapacities, which are deemed status, conditions, or persons, are detached from the bulk of the legal system, and placed in a peculiar department styled the Law of Persons: Or certain sets of rights, etc. are detached from the bulk of the legal system and placed in that peculiar department, and are styled therefore status, conditions, or persons. And the bulk of the legal system, minus these status or conditions, is distinguished by the name of ‘the Law of Things,’ from that peculiar department to which conditions are banished.

‘I have remarked’ (observes Savigny, in the treatise on which I commented the other evening), ‘that the ideas of jus in rem et jus in personam (or dominium et obligatio) are, in the Roman Law, all-pervading; “überalleingreifend.”⁸⁵ And the same remark will apply to the idea of status: for on the idea of status the distinction between the Law of Persons and the Law of Things is founded.’

Accordingly, I endeavoured in my last Lecture to determine 697the notion of status. Or (rather) I endeavoured to shew that the notion cannot be determined with a close approach to precision: that certain sets of rights or duties, or capacities or incapacities, are, for the sake of commodious arrangement, detached from the body of the law, and placed in a peculiar department: and that to those sets of rights, etc., which for the sake of arrangement and exposition it is found convenient thus to detach, the name of status is applied, or is more particularly applied.

Certain erroneous definitions of the idea of status and of the distinction (founded on that idea) between jus personarum et jus rerum. First erroneous definition: Status an occult quality (Modern civilians).

I now will examine certain definitions of status, with certain definitions of the distinction founded on the idea of status, which, in my opinion, are thoroughly erroneous, and have engendered much of the obscurity wherein the idea and the distinction are involved.

According to a definition of status, which now (I think) is exploded, but which was formerly current with modem civilians, ‘Status est qualitas, cujus ratione homines diverso jure utuntur.’ ‘Exempli gratia,’ (adds Heineccius,) ‘alio jure utitur liber homo; alio, servus; alio, civis; alio, peregrinus.’⁸⁶

Now a given person bears a given condition (or, in other words, belongs to a given clam), by virtue of the rights or duties, the capacities or incapacities, which are peculiar to persons of that given kind or sort. Those rights or duties, capacities or incapacities, are the condition or status with which the person is clothed. They are considered as forming a complex whole: And, as forming a complex whole, they are said to constitute a status which the person occupies, or a condition, character, or person, which the person bears.

But, according to the definition which I am now considering, the rights or duties, capacities or incapacities, are not themselves the status: but the status is a quality which lies or inheres in the given person, and of which the rights or duties, capacities or incapacities, are merely products or consequences.

The definition (it is manifest) is merely a case of the once current jargon about occult qualities. Wherever phenomena were connected in the way of cause and effect (or of customary antecedence and sequence, or customary coexistence), it was usual to impute the so-called effect (not to the customary antecedent, or to the customary coexistent), but to an occult quality, or occult property, which was supposed to intervene in the business of causation.

698For example: In the case of volition followed by action or forbearance (which I analysed in a former lecture), the antecedent desire or aversion, with the consequent action or forbearance, are really the only entities. But, this notwithstanding, a certain entity styled the will (or a certain willing will), is supposed to be the cause of the desire or aversion which is truly the cause or antecedent of the consequent action or forbearance.

In the case of a condition or status, the occult quality (if it mean anything) is the fact or event from which the condition arises: that is to say, through or by which, or ratione cujus, the party bears the rights, or is subject to the duties, of which the condition is composed. In the case, for example, of the correlating conditions which are borne by husband and wife, the occult quality (if it mean anything) is the fact of the marriage: For through or in consequence of the marriage (or ratione ejus) the parties to the marriage contract ‘diverso jure utuntur;’ that is to say, they are clothed with the rights and capacities, and subjected to the duties and incapacities, which distinguish husbands and wives from persons of other classes, or which constitute the status or conditions borne by husbands and wives.

But, not content with this homely account of the matter, the scholastic jurists imagined a fictitious entity intervening between the condition and the fact engendering the condition: ‘qualitas ratione cujus homo diverso jure utitur:’ an occult quality inhering in the given person, by virtue whereof he is clothed with distinguishing rights, or is subjected to distinguishing duties. And to this fictitious entity (and not to those rights or duties, or to the fact which begets them), these scholastic jurists gave the name of status.

Before I dismiss the definition which I am now considering, I will remark that the qualitas in question (assuming its existence), will not distinguish a status or condition from another set or collection of rights or duties. If the rights or duties which constitute a status or condition spring from an occult quality lying in the person who bears it, every right or duty must spring from a similar quality in the person who is clothed with the right, or on whom the duty is incumbent. For example: An estate in fee-simple, or an estate for life or years, is not the effect or consequence of the descent from the deceased ancestor, or of the conveyance or demise. It is clearly the effect or consequence of a certain occult quality which lies in the tenant in fee or the tenant for life or years. It springs from an estate-in-fee-giving quality, or an estate-for-life or an estate-for-years-giving quality, 699which resides in the party who is clothed with the right or interest. As (in the scholastic philosophy) a house was burnt by fire, or a block split by a wedge, through a certain house-burning quality, or a certain block-splitting quality, which inhered in the fire or the wedge. It is pertinently asked by Thibaut, who, with his usual perspicacity, detects the absurdity of the definition, wherein the inlying quality of a husband or guardian can consist, unless it consists in the fact of the marriage, or in the acceptance by the guardian of the proffered wardship?⁸⁷ And if the marriage or acceptance constitute an occult quality inhering or lying in the husband or guardian, must not a similar quality reside in every party, who, by a contract, or by any other fact, acquires any right, or is subjected to any duty.

The supposition that a status is a quality inhering in the party who bears it, has every fault which can possibly belong to a figment. The supposed quality is merely fictitious. And, admitting the fiction, it will not serve to characterise the object, for the purpose of distinguishing which, the fictitious quality was devised.

It is remarkable that Bentham (who has cleared the moral sciences from loads of the like rubbish) adopts this occult quality under a different name. In the chapter in the Traités de Législation, which treats of États (or of status or conditions), he defines a status thus: ‘Un état domestique ou civil n’est qu’une base idéale, autour de laquelle se rangent des droits et des devoirs, et quelquefois des incapacités.’⁸⁸

Now this base idéale (which is distinct from the rights or duties constituting the condition, and also from the fact or event by which the condition is engendered) is clearly the fictitious quality (expressed in another shape) which, according to the scholastic jurists, forms the status.

And the error is the more remarkable, inasmuch as Bentham in the next sentence but one, tells us, with perfect correctness, that ‘connaître un état, c’est connaître séparément les droits et les devoirs qui y sont réunis:’ implying that a status or condition is nothing fictitious or ideal, but a lot of rights or duties marked 700by a collective name, and bound by that name into a complex aggregate.

I will briefly remark, before I proceed to the next topic, that the status consists of the peculiar rights or duties (or the peculiar capacities or incapacities), and not of the fact or event which is mediately or immediately their legal cause or antecedent. For example: The peculiar rights and duties of husband and wife, and not the marriage from which they arise, constitute the correlating conditions borne by the two parties.

The absurd definitions of status which I have examined, probably arose from neglect of the very obvious truth which I now have suggested.

Through an ellipsis (or an abridged form of expression) we ascribe the rights or duties which constitute a status (not to the fact or event which engendered the status, but) to the very status of which they are constituent elements. We talk, for example, of an action ex statu, or of a right of action founded on a status; meaning in truth (if we speak with a determinate meaning) a right of action arising from the fact by which the status was begotten. For the right of action being parcel of the status, is not the legal consequence of the status itself, but (with the rest of the status of which it is parcel) is the legal consequence of the fact from which the status arises.

The authors, therefore, of the absurd definitions in question naturally reasoned thus: ‘The fact or event from which a status arises, is not the status itself. Nor is status, conditio, or persona, a collective name for an aggregate of rights or duties: inasmuch as rights or duties are styled “ex statu,” or are said to be consequences of status. Consequently, there must be a tertium quid (distinct from the fact, on the one hand; and from the rights or duties, on the other), of which those rights or duties are products or effects. But what is that tertium quid? Why, clearly, an occult quality lying or inhering in the person by whom the status or person is said to be borne or sustained.’

I will also remark, before I proceed to the next topic, that the rights or duties which are constituted elements of a status, are of two kinds. 1°. Those which arise solely from the very fact or event by which the party was invested with the condition. 2°. Those which arise from the fact or event coupled with another and a subordinate fact or event. For example: The right of the husband or wife to the consortium or company of the other (either against the other, or against third persons or 701strangers), is a right which arises solely from the mere fact of the marriage. But a right or interest of either in goods or land acquired by the other, is the joint result of the causa or fact by which the goods or land were acquired, and of the marriage itself. From that acquisitive fact, the right of the husband or wife in the goods or land arises: By virtue of the marriage, that right or interest is so modified, that a right or interest in the same subject accrues to the other of the two parties.

Rights or duties which arise solely from the fact engendering the condition, are said to arise ex statu immediatè. Those which, arise from the fact engendering the condition coupled with another and subordinate fact, are said to arise ex statu mediatè. The latter are also said to arise from those capacities or abilities which are immediate consequences of the fact engendering the condition. For without the intervention of the particular and subordinate fact, the fact engendering the condition does not engender the particular right or duty: It merely engenders a capacity or ability to take or incur a right or duty of the kind, in case a particular or subordinate fact of the kind shall happen to intervene. For example: By the marriage, the husband (according to the law of England) is clothed with a capacity or ability to acquire choses in action belonging to the wife. But, in order that he may really acquire, in pursuance of that capacity or ability, two particular facts, subordinate to the fact of the marriage, must necessarily intervene: namely, the acquisition by the wife of a chose in action, and the reduction into possession by the husband of that same chose in action.

Rights which arise solely from the fact engendering a condition (or rights which arise ex statu immediatè), are closely analogous (as I shall shew in my next lecture) to the rights which are styled by Blackstone ‘absolute rights,’ and which are styled commonly ‘natural or innate rights.’

The only difference between them is this: The former are rights which arise solely from the fact engendering a condition: the latter are rights which arise solely from the fact of the party who bears them being under the protection of the state. By some writers, accordingly, absolute rights, or natural or innate rights, are styled, aptly enough, ‘rights arising sine speciali titulo.’ The only objection to the phrase is this: that it applies to rights arising ex statu immediatè, as well as to those more general (and, indeed, universal) rights, which are styled natural or inborn.

Second erroneous definition: ‘Consequences of the same investitive fact’ (Bentham).

According to the definition of a status which I now have 702examined, a status is an occult quality inhering in the person who bears it: Or it is an ideal basis on which the rights or duties, capacities or incapacities, really constituting the status, rest or repose.

In the chapter in the Traités de Législation, which treats of États (or of status or conditions), there is the following passage:

Having said very truly, that ‘connaître un état, c’est connaître séparément les droits et les devoirs qui y sont réunis,’ Bentham goes on to ask, ‘mais quel est le principe d’union qui les ressemble, pour en faire la chose factice qu’on appelle un état ou une condition?’ And to the question which he thus suggests, he gives the following answer: ‘C’est l’identité de l’événement investitif, par rapport à la possession de cet état.’

It may (I think) be inferred from this answer, that, in Bentham’s opinion, the following are the tests, or distinguishing marks, of a status, condition, or person.

1. A status is a set or collection of various rights or duties, or of various capacities or incapacities to take or incur rights or duties. 2. The rights or duties which are its constituent elements, are legal effects or consequences of one investitive fact, of one title or mode of acquisition, or (in the usual language of the Roman lawyers) of one causa or antecedent. It is the fact of their springing from a common source, or the fact of their arising in common from one antecedent or causa, which makes them the collective whole, or the complex aggregate, styled a status or condition.

Now it certainly is true, that a status is a set or collection of various rights or duties. And it certainly is also true, that the rights or duties which are its constituent elements, are legal effects or consequences, mediately or immediately, of one and the same title or investitive fact or event. The status, for example, of husband or wife, is a set or collection of various rights and duties, and various capacities and incapacities: All which rights and duties, capacities and incapacities arise from the status, mediatè or immediatè: that is to say, they arise, mediately or immediately, from the one fact of the marriage, or from the one title or causa by which the status is engendered.

But though these two properties belong to every status, they are not tests or character of a status, or will not distinguish status or conditions from those rights and duties which are matter for the Law of Things.

For, first, these properties belong to every of the aggregates which are styled by modern civilians universitates juris: that is 703to say, complex sets or collections of rights or duties. And though every status (which is not purely burthensome) may be deemed a universitas juris, there are many of these universities which are not esteemed status; but are always inserted (and, I think, properly) in that general department of the law which is styled the Law of Things.

The aggregate, for example, of the rights and duties which passes by testament or intestacy to the general representative of a deceased person, has never been deemed a status or condition, but has always been considered as part and parcel of the bulk of the legal system. In the institutional writings of the Roman lawyers, in the French and Prussian codes, and in every systematic code (or every systematic exposition of a corpus juris) of which I have any knowledge, the rights and duties of heirs (or of universal successors to deceased persons) are placed in the jus rerum and not in the jus personarum. And by our own Hale and Blackstone (the only systematic expositors of our own corpus juris), the rights and duties of the executor and administrator (who are properly the hæres testamentarius and the hæres legitimus of the Roman Law) are inserted in the general department which they style the rights of things, and not in the special and exceptional department which they style the rights of persons. By Hale, indeed, in his analysis of the law, the rights and duties of the heir (who, in some respects, though not in all, is successor universalis) are placed, inconsistently enough, in the Law of Persons, as well as in the Law of Things.

Now the aggregate of rights and duties, which devolves by testament or intestacy to the general representative of a deceased person, has both the properties (although it never is deemed a status or condition) by which, in Bentham’s opinion, a status or condition is characterised. For it is a set or collection of various rights and duties (and a set or collection extremely complex or composite). And the rights and duties which are its constituent elements, are consequences, mediately and immediately, of one and the same title: namely, of the testament, and the acceptance of the heritage by the testamentary heir or representative; or of the complex title, or complex mode of acquisition, by which the heritage, in the case of intestacy, passes to the legitimate successor.

And, secondly, the two properties, which, in Mr. Bentham’s opinion, characterise a status or condition, are not even peculiar to those aggregates of rights and duties which are styled by modern civilians universitates juris. They are found in most or many of those numerous rights or duties, which, as contra704distinguished to universities of rights and duties, are deemed particular or singular. For, as I shall shew hereafter, the difference between a university or complex aggregate of rights or duties, and a right or duty deemed particular or singular, is not a difference which can be described precisely, but is one of the vague differences which are styled differences of degree.

Most rights and duties are not in strictness singular, but are complexions or aggregates of elementary rights and duties. And the difference between a right or duty deemed singular, and a so-called university of rights and duties, merely lies in this: that the former is a less complex, and the latter a more complex lot.

Take, for example, a right, always esteemed singular, which is not the most complex of rights of that description: namely, the right of dominion or property in a specifically determined thing: as, a horse, a slave, a garment, a house, a field, or what not. It is manifest that the right, though deemed singular, is truly a collection or aggregate of rights of which an adequate description would occupy a bulky volume. It consists, for example, of the right of exclusive user or possession; of the right of disposing or aliening totally or partially; of rights of vindication, and other rights of action, in the event of a disturbance of any of those primary rights: Each of which rights, constituting the right of dominion, may itself be resolved into other rights which are less complex or composite.

Suppose that the thing, which is the subject of the right of dominion, is also pledged or mortgaged, and you get at a right in the mortgagor or mortgagee which is more complex still. For each has jus in rem, not less complex than the simple right of dominion, coupled with rights in personam availing against the other. And yet this intricate right of the mortgagor or mortgagee, is deemed a singular or particular right, and not a university of rights.

The two properties which, in the opinion of Bentham, characterise a status or condition, are therefore found in most of the rights which are deemed singular or particular; and which, in every code, and by every private expositor of a corpus juris, are placed in the general department styled the Law of Things. In the case of every right deemed particular or singular (excepting the elementary rights, which, in the last result, are the constituents of all others), the right, in truth, is not particular or singular, but like a status or condition, is a collection of various rights: which various rights, like the rights and duties that are con705stituent elements of a condition, are consequences, mediately or immediately, of one title or antecedent.

Third erroneous definition: Status constituted by the divisibility of the collection of rights and duties into those arising immediately from the title which engenders the aggregate, and those arising mediately from that title, through special titles.

I have remarked above, that the rights or duties which are constituent elements, of a status, are commonly divisible into two kinds: 1st, those which arise immediately or directly from the paramount and more general title which engenders the status: 2ndly, those which arise mediately from that paramount and more general title, through subordinate and more special titles.

And, at the first glance, I imagined that this was the distinguishing mark of a status or condition. But I am not sure, that every set of rights or duties, deemed a status or condition, is divisible in that manner. And I am quite sure, that univeisities of rights and duties not deemed conditions, with sets of rights or duties deemed particular or singular, are divisible in that manner: that is to say, some of the rights or duties composing the aggregate or set, arise immediately from a paramount and more general title by which the aggregate or set is itself engendered: whilst others arise mediately from that paramount and more general title, through subordinate and more special titles.

For example: All the rights and duties of the English executor (who, as universal successor, has properly juris universitas) arise in a certain sense, from one complex title: namely, the will and probate. But some of his rights and duties arise immediately and directly from that his paramount and more general title: whilst others are not engendered by that paramount and more general title without the intervention of secondary and more special titles. Such, for example, are rights arising from a contract into which the executor may enter, touching the effects of the testator; or a right of action arising from an injury done to him in his character of executor, and not arising from an injury done to the deceased.

And the rights which are constituent elements of the right of dominion or property (always deemed a singular or particular right) are divisible in the same manner. Some arise from the conveyance (or from the other title by which the dominion is acquired), immediately or directly. But others arise from the title by which the dominion is acquired, through the intervention of a secondary or more special title. For example: The right of dominion comprises (amongst numerous other rights) a right of vindication: that is to say, of restoration to the exercise of the right of dominion, if the exercise be prevented by eviction, 706or hindered by any disturbance. But before the right of vindication can completely accrue to the dominus, he must be evicted from the possession, or otherwise disturbed in the enjoyment.

Fourth erroneous definition. Status constituted by jus in rem in the complexion or aggregate of rights.

A person clothed with a condition, or bearing a person or character, has jus in rem (or a right availing against the world at large) in the complexion or aggregate of the rights which are constituent elements of the status.

At first I imagined that this might distinguish a status, from the set of rights or duties which are not status. But, for various conclusive reasons, I am convinced that this jus in rem over the status itself is not a character or distinguishing mark by which we can determine what a status is.

The jus in rem over the aggregate of the rights which are constituent elements of a status, is therefore not a character, or a distinguishing mark by which we can distinguish status or conditions from the sets of rights or duties which are not status or conditions.

For, 1st, in purely onerous conditions, the mark is not to be found: a right to a burthen, or to vindicate the enjoyment of a burthen, being an absurdity.

And 2ndly, the mark is to be found in universities of rights, which have never been deemed conditions or status, but have been placed by common consent in the Law of Things. Such, for example, are the universities or complex aggregates of rights which reside in the universal successors to testators and intestates.

3rdly, I almost incline to think that the same mark maybe found in many of the sets of rights which are deemed singular or particular. E.g. Right of dominion would seem to import a right in the set or collection of rights into which dominion may be analysed. When the owner vindicates his possession he reinstates himself in the enjoyment of many separate rights. And what more is done by an action ex statu, or by any other action founded on a juris universitas?

But to this consideration I must revert hereafter, and will not pursue it here.

Thibaut’s definition of status criticised.

In an excellent treatise on Jus personarum et rerum, which occurs in his ‘Versuche,’ or Essays, Thibaut of Heidelberg states the import of the distinction in the following manner.⁸⁹

He says that the department of the corpus juris which is styled jus personarum, is concerned with the differences between persons: whilst that department of the corpus juris which is 707styled jus rerum, is concerned with all other matters about which law is conversant, and more especially about things incorporeal, or about rights and duties. This account of the distinction accords exactly or nearly with that account of it which I gave in ray last lecture.

But, I think, it will not enable us to determine with precision, the subject or matter of the law of persons.

When he says that this department is concerned with the differences between persons, he means by the term ‘persons,’ homines, or human beings, or he means status or conditions. If he means status or conditions, he is right in saying that the Law of Persons is concerned with differences between persons: for it is concerned with describing and distinguishing the various status or conditions. But this leaves the main difficulty untouched. For why are the sets of rights and duties, which are detached from the bulk of the legal system and styled status or conditions, so detached in preference to others? Or, in other words, what is the common mark which severs the so-called status from the sets of rights or duties which have not been treated as such?

And if he means by persons, homines or human beings, the same difficulty presents itself in a somewhat different form. It is manifest that those differences between persons, which occur in the science of jurisprudence (or those classes of persons which occur in the science of jurisprudence), are entirely founded on differences between the rights and duties, with and to which persons, as meaning men, are invested and subjected: or, what comes to the same thing, they are founded on those differences between the facts and circumstances touching or concerning persons, which make it necessary to determine differently certain of their rights and duties. Whence, for example, the class of infants, or the difference between infants and other classes of persons? Why, clearly from the rights, duties, and incapacities, which are peculiar to infants: or, what comes to exactly the same thing, from that youth and inexperience, incident to infancy, which renders it necessary to arm and protect infants with those peculiar rights, duties, and incapacities.

This is admitted by Thibaut himself: who says, ‘The Law of Persons is concerned with differences between persons: not, however, absolutely; but only in so far as the differences between persons influence their rights and duties.’

Now, as I remarked in my last Lecture, there is no right residing in several persons, and no duty incumbent upon several 708persons, which might not be made the basis of a class of persons. Every right or duty (excepting a right or duty peculiar to a specifically determined individual) might determine the persons clothed with it, or the persons subject to it, to a kind or sort. Insomuch that the possible classes of persons are as numerous as the possible differences between rights and duties.

Why, then, are only certain classes of persons made the subjects of the Law of Persons ? Or (what is the same question put in another form), why are certain sets of rights and duties inserted in the Law of Conditions, whilst others are not deemed conditions, and are not detached from the bulk of the legal system?

Thibaut may probably mean, that the Law of Persons is not concerned properly with status or conditions, but only with the titles or facts by which status or conditions are invested and divested: the description of status or conditions, or of the rights or duties which are their constituent elements, being remitted to the Law of Things. This question, on which I touched in my last Lecture, I shall examine in my next.

Notes.

For Savigny’s conception of the order or method which is observed by Gaius and Justinian in treating the Law of Things, see Vom Beruf, etc. p. 66.

The two passages in his Vom Beruf, etc. pp. 98 and 66, are unfortunately the only parts of his works in which Savigny has intimated his opinion concerning the method of the Institutes.⁹⁰—See ante, p. 696.

The legal relations⁹¹ between private persons, apart from the 709political sanctions by which those relations are maintained, is the subject matter of Civil Law.

The consideration of these branches of Civil Law, should be preceded by a review of the various Status or Conditions: i.e. of the different capacities of different members of the society; or, in other words, of the varying clusters of rights and obligations of which they are severally susceptible.

Amongst the ancients the distinctions between the various conditions were much broader than amongst the moderns; with whom almost every legal incapacity is founded upon a corresponding physical one.

Of the various conditions or status, some are the creatures of government; others would exist without government; although the rights and obligations of which they severally consist would in that case be merely moral.

These various conditions constitute the subject-matter of the law which relates to persons; although it is more especially conversant with domestic or quasi-domestic conditions.—Marginal Note in Falck, p. 47, § 27.

Das Personen-Recht soll von den Verschiedenheiten der Personen handeln; aber natürlich nicht unbedingt, sondern nur sofern, als diess auf die Verschiedenheit der Rechte und Verbindlichkeiten Einfluss hat. Das Sachenrecht soll von Sachen handeln, und muss wieder in zwei Theile, Lehre von den körperlichen, und Lehre von den unkörperlichen Sachen, zerfallen. Zu dem letzen Theil gehört die ganze Materie von den Rechten und Verbindlichkeiten, weil diese Arten der unkörperlichen Sachen sind. Das Personen-Recht soll sich also mit allen dem Juristen wichtigen Verschiedenheiten der Personen, welche keine Rechte und Verbindlichkeiten sind, beschäftigen; das Sachenrecht mit Sachen, und besonders mit der Einen Art derselben, den Rechten und Verbindlichkeiten.—Thibaut, Versuche über einzelne Theile der Theorie des Rechts, vol. ii. p. 6.

[beginning of lecture 42]