Part — Marc, Institutiones Morales
DISSERTATION I: CONCERNING THE RIGHT OF MAN IN EXTERNAL GOODS
St. Thomas, 2. 2, q. 58-78; St. Alphonsus, III, n. 486-962; ed. G., II, beginning; Lugo, de Just. et Jure; Lessius, de Just., l. 2; Carriere, 3 vol.; Delama; Vermeersch, de Just.; Marres, etc. - The authors who in moral theology have written excellently concerning this matter should also be consulted: Aertnys, Konings, Lehmkuhl, Noldin, Gury-Ferreres, Genicot-Salsmans, Tanquerey, Berardi, Gopfert, Schindler, etc.
The perfect right of man in external goods is of two kinds: right to a thing and right in a thing.
- Right to a Thing (jus ad rem), or personal right, is the reason which someone has that some thing become his; and therefore it gives an action, not against the thing, but only against the person; namely it effects that the debtor can, by the sentence of a judge, be compelled by the creditor to hand over either the thing itself or its price; but it does not effect that the thing can be occupied before the sentence.
Right to a thing is not only a hope of acquiring a good, but is a title, a way, a debt, by which right in a thing may be acquired. Such is, for example, the right of a legatee to a legacy left to him and not yet accepted.
That right to a thing may be acquired, a just title is sufficient, which is the cause and root of the obligation itself. This is either a contract or quasi-contract, or a delict or quasi-delict, or finally the authority of law. Hence this right will be treated most of all where there is discussion concerning restitution on account of unjust damage and concerning contracts.
- Right in a Thing (jus in re), or real right, is that which someone has in a thing already his own, and therefore it confers a real action, i.e. the right of exclusively occupying, retaining, and vindicating it, into whatever hands it has come. Such is the right of ownership of property, concerning which we shall soon treat.
That right in a thing may be acquired and retained, these things are required: a) Existence of the thing; for no thing can be said to be obligated which does not yet exist, and perhaps will never exist. Hence a usufructuary does not have a real right in fruits to be gathered in the following year, because they do not yet exist. - b) Legitimate title; because right in a thing presupposes right to a thing. Hence a thief does not have a real right in the goods that he possesses by theft. - c) At least for the external forum, all other conditions are required which the laws of each region attach so that ownership of the thing may be transferred. Thus, for example, in Austria and in Germany, as in Roman Law, delivery of the thing is regularly required, so that a buyer, donee, etc., may acquire a real right. Otherwise in England, France, Spain, etc., where determination or designation of the thing in the individual generally suffices, as we shall see in its place.
Right in a thing does not differ from ownership of things, taken in the broad sense. Wherefore it will be enough to have expounded concerning this ownership: 1. the nature and species or parts; - 2. the object and subject; - 3. the mode of acquiring.