[141] CHAPTER X.

Of the Obligation arising from Ownership.

I. 1 HAVING explained, as far as is requisite for our purpose, the Right which we may have over persons or things, we must now see what obligation upon us arises therefrom. Now such obligation arises either from things extant, (including in things, persons,) or from things not extant.

2 From things extant, this obligation arises; that he who has a thing of mine in his power is bound to do so as much as he can that it may come into my power. I say, as much as he can: for he is not obliged to what is impossible, nor to restore the thing to me at his own expense; but he is bound to indicate it, that another may recover what is his. For as in the state of community of things, a certain equality came to be observed, so that one might be able to use those common things not less than another; so when ownership is introduced, there is a sort of association established among owners, that he who has in his power a thing belonging to another, is to restore it to the owner. For if ownership were only so far effective, that the thing is to be restored to the owner if he asks for it, ownership would be too feeble, and custody too expensive.

3 Nor is it here considered whether a person has obtained possession of the thing bona fide or mala fide, believing that he has a right, or not: for the obligation from delict (mala fides) is one matter, but the thing (and possession of it) is another. The Lacedæmonians tried to free themselves from the delict by condemning Phœbidas who had seized Cadmea, the citadel of the Thebans, in violation of the treaty; but as they, nevertheless, retained the citadel, they were charged with injustice: and this injustice, as being flagrant, was avenged by a singular providence of God, as Xenophon notes. So Cicero blames M. Crassus and Q. Hortensius who had kept possession of legacies by a will which was false, though fabricated without fault of theirs.

4 But because this obligation binds all men, as by a universal 142contract, and gives a certain right to the owner: hence it comes that special contracts, as later in time, are subject to exception. Hence light is thrown on the case put by Tryphoninus. A robber took my property and deposited it in the hands of Seius, who was ignorant of the crime: ought Seius to restore it to the robber or to me? If we look only at the giver and receiver, bona fides requires that the thing deposited should be restored to him who gave it. If we look at the equity of the whole matter, taking into account all the persons concerned, the property must be restored to me, from whom it was most wrongfully taken. And he rightly adds: I am of opinion that justice requires to give to each man his own in such a way, that it be not again to be transferred by the more just demand of another person. In fact, the claim of the owner is more just, in virtue of that right which we have spoken of as contemporary with ownership. And hence it follows, as we find in the same Tryphoninus, that he who in ignorance has received, as a deposit, a thing which is his own, is not bound to restore it: and the question discussed a little before, concerning things deposited by him whose property had been forfeited, is to be decided on these grounds, rather than by the consideration which Tryphoninus adduces, of the utility of the punishment.

5 It makes no difference in the nature of ownership whether it arise jure gentium or jure civili: for it always has along with it the accompaniments which are natural to it: among which is the obligation of every possessor to restore a thing to its owner. And this is what Martinus says, that, jure gentium, things may be sued for from him who possesses them without just cause.

From this source arises that which is delivered by Ulpian, that he who finds anything is so far bound to restore it to the owner, that he cannot demand a reward for finding it. Also the produce of the thing found is to be restored, saving the expense.

II. 1 Concerning things not extant, this is the rule established by mankind (the jus gentium), that if you are made richer by something which is mine, and which I am deprived of, you are bound to make restitution to the extent of your gain. For by what you have gained from my property, you have so much the more, and I the less. But ownership was introduced to preserve equality, that is, each having his own. So Cicero. [See.]

2 This rule of equity extends so far that the jurists define many points by means of it, without applying rules of law, referring to equity as the plainest ground. Thus a person is held responsible for the acts of a servant whom he has set over a shop, except he have warned people against trusting him. And oven when he has given warning, if the servant have only a share in the business, and if the surplus of profit go to the master, his warning is not held good. For, says Proculus, he appears to act fraudulently (dolo malo) who tries to get gain by the loss of others (the servant’s creditors); where dolus malus means anything contrary to natural right and equity.

143 If a friend, at the request of the mother, have advanced money for the son’s agent, he has not properly an action against the agent, for commission discharged or work done; nor was it properly the agent’s work which he did; for it was in regard to the mother that he gave his money; yet, according to Papinian, there will lie an (indirect) action for work done, against the agent, because he has been liberated from responsibility by the money of the friend.

If a wife have given money to her husband, which she could by law call back again, she has an action establishing her claim to that which has been bought with the money: for, says Ulpian, it cannot be denied that the husband is the richer by the proceeding: and there is to be an inquiry what he possesses which is his wife’s.

If money, which my servant stole from me, you have spent, thinking that it was his own property, I have an action against you, as if my property had come into your hands without any just title to it.

Wards are not bound to repay loans according to the Roman Law; yet, if the ward thereby become richer, an indirect action will lie.

If a debtor pledge a thing belonging to another, and it be sold by the creditor, the debtor is relieved, in respect to the creditor, to the extent of the price received for the thing: because, says Tryphoninus, whatever be the kind of obligation which the debtor has, the price paid in consequence of the debtor’s proceeding, may more equitably go to the debtor’s profit, than to that of the creditor. But the debtor will be bound to the buyer, because he is not to gain by another’s loss. If the creditor had taken a greater part of the produce than would pay him, be would have to account for the whole which he had received.

In like manner, if you dealt with my debtor, not as thinking him indebted to me, but to another person, and borrowed money of him, you are bound to me; not because I have entrusted money to you; (for this cannot be done without mutual consent;) but because my money, which has made its way to you, it is fair and equitable that you should render to me.

3 The later jurists extend these principles to other similar cases: for instance, that if a person have absconded and his goods have been sold, when he had a case which would have protected them, he is to be admitted to the money raised by the sale: and he who has lent money to support the son, if the father be insolvent, and the son have maternal property, has an action against the son.

These two rules being rightly understood (for extant and non-extant property), the answer will not be difficult to the questions which are wont to be proposed by Jurists and by Theologians, writing for the instruction of the internal tribunal of the mind.

III. In the first place, it appears that a bona fide possessor is not bound to any restitution, if the thing be destroyed; for he neither has the thing nor any gain from the thing: [a mala fide possessor is bound by his own act, besides the consequences of wrong doing.]

144 IV. Secondly, a bona fide possessor is bound to restore also the still extant produce of the thing: I say the produce of the thing; for the produce of industry, even if it would not take place without the thing, is not due to the thing. The cause of this obligation is ownership: for he who is owner of a thing is naturally owner of the fruits of the thing.

V. Thirdly, that a bona fide possessor is bound to restitution both of the thing and of the produce of it consumed by him, if in any case he would have consumed as much: for by so much he is held to be richer. And accordingly Caligula is praised for having, in the beginning of his reign, when he restored governments to persons, given them also the income of the interval elapsed.

VI. Fourthly, a bona fide possessor is not bound to restore the produce which he neglected to take; for he neither has the thing, nor anything which has come into its place.

VII. Fifthly, if a bona fide possessor has given to another a thing given to himself, he is not bound to restitution, except, in any case, without having this thing, he would have given something of equal value: for then he has gained by sparing his own property.

VIII. Sixthly, if he sell a thing which he have bought (belonging to another), he is not bound^*, except in so far as he sold it for more than he gave for it. If he have sold a thing given to him (belonging to another) he is held to restore the price; except it happen that be have spent the price, and would not otherwise have spent the money.

IX. I Seventhly, a thing belonging to another which has been bona fide bought, is to be restored, and the price paid cannot be demanded back^*. To which rule it seems to me that this exception should be made;—except in so far as the owner could not probably recover possession of his thing without some expense; as, for example, if it were in the hands of pirates: for then we may deduct as much as the owner would willingly have expended on it. For the actual possession of a thing, especially of a thing difficult to recover, is of itself a valuable matter, and in this the owner, after he has lost the thing [and recovered it] is richer than he was before. And therefore though the buying of a thing which is one’s own is not valid by ordinary law, yet Paulus says that it is valid, if it be agreed from the first that the possession which another has of it may be bought. Nor do I here require that the thing should be bought with a purpose of restoring it to the owner, in which case an action for agency would lie. Some hold one way, some the other. For the action for agency is the creation of the Civil Law, and has none of those foun145dations by means of which nature induces obligation. And we are here inquiring what is Natural Law.

2 Ulpian’s opinion respecting funeral expenses is of the same kind; that a just judge in such cases does not merely imitate the effect of an action for agency, but follows equity in a larger manner, the nature of the action allowing him to do so. And so, what the same writer elsewhere says, if any one has transacted business for me, not having a regard to me, but for the sake of his own gain, he may have an action, not for all that he has expended, but for the amount by which I am richer. And so the owners of goods which are thrown overboard to lighten the ship, recover a part from the others whose goods are saved by that proceeding; for a person who preserves, by any step, his property which was in danger of perishing, is by so much the richer.

X. Eighthly; the person who has bought a thing belonging to another, cannot restore it to the seller to save himself the price: because, as soon as the thing is in his possession, the obligation of restoring it has begun.

XI. Ninthly; he who has a thing the owner of which is unknown, is not naturally bound to give it to the poor: although this is a very pious course, in many places properly ordered. The reason is, because, in virtue of ownership, no one has a right except the owner. But that there is no owner, and no apparent owner, is the same thing to him to whom he is not apparent.

XII. Tenthly, by Natural Law, what is received either for a shameful cause, or for an honest cause to which any one was bound, [without reward,] is not to be restored: though such a rule is not unreasonably introduced by some laws. The reason is, that no one is bound by the reason for which the thing is given, except it be a thing belonging to another: but in the case now supposed, the ownership passes in virtue of the will of the former owner. It is another matter if there be something wrong in the mode of acquisition; for instance, extortion: for this is another principle of obligation, concerning which we do not now speak.

XIII. Let us add also this, erroneously ruled by Medina: that the ownership of things belonging to others may pass to us without the consent of the owner, if they are such things as are commonly valued according to number, weight, and measure. Things of this kind are said functionem recipere, to be such that one portion may pass for another, so that they may be restored by means of that which is not identical, but only the same in kind. But this can be done only when consent has preceded, or may, by law or usage, be understood to have preceded, as in lending; or if the thing, being consumed, cannot be exhibited. But without such consent, express or presumed, and without necessity, that function has no place.