898 

LECTURE LVII.

TITLES VARIOUSLY CLASSIFIED.

In my last two Lectures, agreeably to the order which I announced in the Lecture preceding them, I submitted to your attention certain remarks applicable to titles in general.

Titles by which rights in rem are acquired or lost.

I now proceed to certain leading divisions of the titles which properly belong to the department of the Law of Things, through which I am now travelling: namely, the titles by which rights in rem, considered as existing per se, are acquired or lost, or invested and divested.

But even in considering these titles, I shall be obliged to advert occasionally to titles of other classes.

Various attempts at classification. Doubtful whether any successful.

These various divisions are disparate and cross. They are various attempts to find a basis for a classification or arrangement of the various genera and species of titles. I am not certain that any such is practicable or useful:—whether it be not better to select the principal titles, and then to add a miscellany—ex lege.

This is the case in Blackstone, ‘the French Code,’ Ulpian, Bentham. In none of these is there any attempt to reduce in the first instance the whole mass of titles into two, three, or some small number, of very extensive genera, and then refer the various subordinate genera and species to them. They begin by placing on a line a considerable number of genera which are comparatively narrow: and perhaps eke out these by a miscellaneous head.

The great difficulty is the mixed character of most of the titles which in every system occur.

899Titles ex Jure Gentium, and ex Jure Civili.

Modes of acquisition ex jure civili are many of them not peculiar, but are merely peculiar modes of modes which may be deemed universal: modes accompanied by peculiar formalities.

Inconvenience of the division into titles ex jure gentium and ex jure civili as a basis for classification.

The arrangement of titles in Gaius and the Institutes, mainly founded on this division.

Absurd mode in the Institutes of placing servitudes between these two sorts of titles; servitudes being ex jure civili.

Acquisitions per universitatem are not included under either department.

But the distinction between prætorian and civil law does not quadrate with the distinction in question.

The only practical consequence of the distinction (as I have remarked already) applies to crimes juris gentium and crimes jure civili.

Original and Derivative Titles.

Import of the distinction. Its inconvenience as a basis for a classification of titles. Would separate modes of acquisition which it is convenient to consider together: as, e.g. occupation of a subject nullius—or by dereliction.

Succession not co-extensive with derivation. As, e.g.: in the case of constitutive alienation. So in the case of commixtion, specification, etc.

Succession sometimes means succession to the dead, ex testamento or ab intestato.

Investitive events are original or derivative: i.e. acquired from the State directly, as in cases of occupancy; or from or through a person in whom a right or its subject formerly resided:

The distinction appears to be confined by some to rights ex jure gentium:

By others, to acquisitions of dominium or property, pre-eminently so called, and other jura in rem: But is just as applicable to jus in personam: e.g. Assignee of a contract: Succession by heir to rights in personam of deceased.

The distinction appears to be useless, except for this purpose: 900that in many cases of derivative titles, the party is subject to duties passing from the party from whom his right is derived.

Attempts at Classification.

Title by descent and title by purchase.

A convenient division in the Law of English real property, for reasons given by Christian and Blackstone.³ But a division only of one class of rights: rights in rebus singulis falling under the law of real property.

It would not be a convenient basis for a general division: And, accordingly, modes of acquiring personal property are not divided in that manner.

It is not complete, even with reference to real property.

Having suggested certain of the leading divisions of the titles by which jura in rem per se are invested and divested, I shall now proceed to consider seriatim certain of their classes.

These classes are, in every system, extremely numerous: So numerous, that only some, and perhaps a comparatively few, have gotten concise names. Whence, as I remarked before, the expression, ‘ex lege;’—analogous to ‘variis causarum figuris’ in cases of obligations.

I shall only consider such as, in some form or other, occur in all or most systems; and of these, only the more important.

I shall consider them, principally, as they regard absolute property.

In treating them, I shall abide as far as possible by Thibaut’s division; i.e. shall consider first, the one-sided titles (or not alienations sensu stricto). For these I shall compare Mühlenbruch, Mackeldey, Thibaut, Blackstone, Bentham, and others.

One-sided Modes of Acquisition, and Two-sided.⁴

This seems to be substantially a division into alienation (strictly so called), and all other modes of acquisition.

It does not quadrate with original and derivative, or jus civile and jus gentium.

Mühlenbruch’s division (MS. see Table, in vol. ii. p. 245)⁵ 901is bottomed on the division of titles into such as are ex jure civile and such as are not.

Occupancy.

Occupancy is only a species of appropriation: (Sed qu^e.)—In case of the acquisition of a servitude, etc., præscription must combine with appropriation.

Occupancy, what. Occupancy of res nullius, and adverse occupancy of res alicujus. Physical and legal possession.

Distinguish between physical occupancy (or putting a thing to any of the uses of which it is susceptible), and legal occupancy.

Remark on the talk about occupancy being the origin of property, etc.

Why it ought to give a right.

Where society and law are established, the original reasons in a great measure cease. It is then little more than a mark. And this is a reason for carrying over to the fisc, or to private persons determined in the way of devolution.

Alienation.

Essentials of an alienation.—Voluntary transference.— Acceptance of transfer.—Causa or inducement being implied.

Voluntary alienation opposed to involuntary, as meaning alienation compelled by law. The latter would come under the head of ‘adjudication.’

The various modes of alienation, are merely evidentiary.

Solemnities adjected to Alienations:

1st. For the protection of the parties to the alienation: A doctrine including the doctrine of Evidentiary Instruments, and the doctrine of Considerations.

2ndly. For the protection of strangers to the alienation: A doctrine including that of Registration. See post, ‘Contracts,’ ‘combinations of jus in rem and in personam,’ ‘evidence.’

Limits to the application of registration and of other precautionary solemnities, arising from the nature of the subject.

902Many remarks touching solemnities adjected to alienations apply, mutatis mutandis, to solemnities adjected to other titles.

Where Jus in Re passes by tradition or delivery, the titulus or investitive incident consists: First, in an intention on the part of the alienor to alien; secondly, in such a causa, consideration, inducement, or motive to or for the alienation, as the law holds to be just or sufficient.

The tradition is merely preappointed evidence of the titulus; though in consequence of its being esteemed necessary evidence, it is often treated as part of that titulus (or as a mode of acquisition superinduced upon it), and is sometimes (for that reason) feigned to have taken place.

Instances in which property passes by force of the titulus, evidenced through some declaration of intention other than tradition, actual or symbolical.

The Causa or consideration may be insufficient to sustain the disposition as against the alienor himself (e.g.: fear of violence; fraud; which last may vitiate a consideration otherwise good); Or, as against third parties (e.g.: a gift, as against creditors).

Tradition seems to have been confounded with Modus acquirendi, on account of its having been preappointed and conclusive evidence of titulus; until (with the advance of civilisation) the real nature of the transaction came to be scrutinised.

Same virtue attributed to the English feoffment and livery. (Blackstone, vol. ii.)

Absurdity of presuming, not the titulus, but the tradition to be the evidence.

Evidentiary Instruments and other forms. Interpretation of, etc.

Preappointed evidence, actions, etc.; general notions of, as preliminary to dispositions.

Registration

(To be postponed to the end of præscription.)

Limits to the application of registration, arising out of the nature of the subject.

Disposition.

‘Disposition’ may be conveniently used as a generic expression for any act by which a person assumes to transfer, or promises to transfer, his real or assumed Right, or any part of 903it, to another. The species will be Voluntary Alienation and Contract.⁶

Dispositions of which the consequences are predetermined (by the law) absolutely: and those of which the consequences (subject to restrictions) are left to the will of the parties. In which last case, consequences (to take effect in default of expressed intention by the parties) are marked out by the law or not.

Dispositions are valid or invalid:—If valid, the consequences are predetermined by the law, or they are left to the appointment of the parties: If left to the appointment of the parties, provisional dispositions (dispositions to take effect in default of such appointment) are laid down, or not. If there be no appointment by the parties, where there are such provisional dispositions, these take effect—1st: Either because they may be presumed to have been intended; or, 2ndly: Because they are the best—generally speaking—that the parties could have made; or, 3rdly: Because it must be presumed that they did not intend nothing, and here is a something which they might have meant. On the first and third suppositions, these provisional dispositions are indeed nothing more than dispositions of the parties (tacitly referring to consequences which they meant to adopt, and) which, by reason of known rules of law, it is not necessary to express. If there be no intelligible appointment by them, nor any in their default, the transaction is without effect.

By reason of the invalidity of certain dispositions, and of the necessity of making provisional dispositions, a large space is in every Law occupied with them. See ‘Combinations of Jus in Re,’ etc.

Termination of Rights.

The modes in which jura in rem terminate, are not described in the Institutes of Gains or those of Justinian.

It is necessary to describe the end explicitly and apart, only in those cases in which the end is not involved in a mode of acquisition.

Jura in Re are further divisible into—

9041st. Such as are available against all the world (or against men indefinitely and without exception);

2ndly. Such as are available against all the world with certain definite exceptions. The first of these is also called Property: The second, Possession (must be distinguished from possession, titulus); and is to property in the last sense, what property saddled with a servitus is to jus in re unsaddled with a servitus. Under this, therefore, may be included the jus in re acquired by a purchaser in Equity, as against all subsequent purchasers with notice; or rather as against all mankind except a purchaser without notice, etc.

List of Authorities referred to in this Lecture.

905 

Table copied from the margin of Mühlenbruch, vol. ii. p. 245, cap. 2: ‘De Dominio.’