Question Two: On the Species of Right

S. Th. II-II, q. 57, a. 2 and 4.

156. Division of right by reason of origin. - Right, in the three more received significations, is divided, by reason of origin, into natural right, which arises from the very nature of things, and positive right, which is from the positive free will of God or of men (private or public); and this is subdivided into divine and human, and human into civil and ecclesiastical, which is called canonical.

This division belongs primarily to right taken in the sense of law, secondarily to the other significations, because law is the origin of subjective and objective right.

But natural right differs from positive right because 1st. it is founded in the nature of the thing, and therefore the things which it commands and prohibits are commanded or prohibited as good or evil in themselves, and are not good or evil only because commanded or prohibited; 2nd. it is from God as author of nature; 3rd. it obliges all; 4th. it is formally immutable as to principles, and also as to conclusions, the same circumstances in nature being supposed.

157. Division of objective right. - Right taken in the first signification for the just thing, or objective and passive right, is divided by reason of the term which it regards:

A. into right simply so called and right according to something. Right simply so called is toward another simply and perfectly distinct, and therefore is called the political just (burgerrecht), because it is among fellow citizens. Right according to something (the imperfect ratio of right) is toward another not simply and fully, but only under some respect distinct; and this is the just, either a) paternal (vaderlijk recht) between father and son as such, who is something of the father; - or b) dominative (meestersrecht) between master and servant as such, who in this way is something of the master; - or c) economic (mannenrecht, huiselijk recht) between husband and wife as such, who is something of the husband.¹

¹ Do not conclude from this that sins committed against right according to something are lesser, for as Cajetan notes, on II-II, q. 57, a. 3: "Between father and son there is not the just nor the unjust simply, but just as between them there is more than right, because there is unity, so also there is more than the unjust, because there is a violation of unity, which is worse than a violation of right. Whence, just as to kill oneself is supremely contrary to nature, and worse than other homicides, because identity is violated, which is more than equality, in which right consists, so when a son kills his father, or conversely, because he rises up as it were against himself, he commits something worse than the unjust, which is constituted by inequality." These sins are lesser in the aspect of injustice, but not in the aspect of sin.

Hence 1st. a father, master, or husband who has not supported son, servant, or wife does not owe restitution of support, but must support for the future. And a wife, son, or servant who has not obeyed or has not furnished assistance to him in need is not bound to make restitution to him; for they have not sinned against justice strictly so called;

2nd. on the contrary, a father, master, or husband who detracts from the reputation of son, servant, or wife has sinned against justice and is bound to restitution; and conversely: for this genus of goods belongs to them insofar as they are distinct human beings, and therefore in this genus of goods they retain their right against those persons no less than against strangers;

3rd. a son, servant, or wife who secretly takes from the goods of father, master, or husband goods not owed to himself or herself sins against justice and (unless condonation is presumed or restitution is impossible) is bound to make restitution; likewise the father, master, or husband, if he steals from goods proper to the son, servant, or wife;

4th. a son who attacks his father with contumelies or strikes him sins against justice and piety at the same time: against justice because the father, as a man, has a right against all men, even against his son; against piety because, as father, the love and service owed to him require that he not suffer injury from him over whom he has special power.

B. Right simply so called, by reason of the object, is distinguished into strict or rigorous right and non-strict right. Strict right is that which both in itself and as to things, and as to persons, is so determined that it can be demanded by force of coercion for one's own advantage: thus a field or horse legitimately acquired is owed. Non-strict right is that which is not sufficiently determined as to thing or person, so that it cannot be demanded by force of coercion: thus the right of individuals to alms destined by a testator for the poor in general; the right which the worthy have to obtain offices or duties of the community, or honorary distinctions. This is the object of distributive justice; that of commutative justice.

158. Division of subjective right. - Right, taken in the second signification for faculty, or subjective and active right, insofar as it is referred to passive right strictly so called, is divided by reason of object and effect into right in a thing or real right, and right to a thing or personal right. Right in a thing (sur la chose, op de zaak, zakelijk recht, eigendomsrecht) is that which someone has in a thing already his and obtained; whence it gives a real action upon the thing itself, and the legitimate faculty of disposing of the thing itself, and of vindicating it to himself wherever it may be and by whomever it may be held. Right to a thing (a la chose, om de zaak, persoonlijk recht, vorderingsrecht) is that which someone has so that some thing may become his; whence it does not give an action upon the thing itself, nor the faculty of disposing immediately of the thing, but only an action against the person of the debtor in order to obtain the thing. Whence right to a thing is the right of obtaining right in a thing, or the way to right in a thing.

For right in a thing three conditions are required:

1. that the thing truly exists, otherwise it cannot here and now be bound to one's own advantage;

2. that it be owed in the individual, otherwise no determinate bond with it can exist;

3. that it be bound to someone by a legitimate title, by force of which he can say here and now: this thing is mine; for example, a sold thing, received salary.

But if any one of these is lacking, there will be right to a thing; for this one condition suffices, namely, a legitimate just title by which the thing is strictly owed from justice, without here and now being attached to someone as his own, for example, a promise of selling a thing, salary to be received after work furnished, the right of a legatee to a legacy not accepted, reparation of damage inflicted, fulfillment of a contract, etc.

Right in a thing is also called dominion of property, which differs from dominion of jurisdiction, or the power of ruling subjects: for this is not true dominion over things, because the superior cannot use his power for his own advantage, but for the common good of subjects, even by disposing of their things when the public good requires this, yet only insofar as necessity demands it. But dominion is subdivided into full and half-full, according as it is a right over the property or substance and over the utility or advantages of the thing, namely, of disposing and enjoying the thing itself; - or only over one of the two, i.e., either only the right of disposing of the thing, or over the property and substance, not over the advantages and fruits (direct dominion or bare ownership), - or the right of enjoying or using, namely, over the fruits and advantages (indirect or useful dominion, as happens in usufruct, use, servitude, etc.) (C.C., a. 543). For full dominion can be restricted, because there is lacking either the power of enjoying (as in bare dominion), or the power of disposing (as in usufruct and use), or the power of perfectly excluding (as in servitude).

159. Full dominion (pleine propriete; volle eigendom) is defined as the real right of perfectly disposing (i.e., of enjoying and disposing) of some thing as one's own for one's own advantage, unto any use not prohibited by law (C.C., a. 544²). It is said:

² In the notions handed down here we indicate the articles of the French Civil Code, which also has force in Belgium. But similar things are found in almost all modern legal systems.

1st. right in a thing or real right, attached to the thing itself, so that it may be distinguished from a mere right to a thing;

2nd. of perfectly disposing, i.e., both of using the emoluments and fruits of the thing, and of disposing of the thing itself as to substance; in one word, it is the right of destining it to all uses, or of alienating, selling, donating, exchanging, using, enjoying, destroying one's thing, or, as the ancients said, of using it up, i.e., of destining it to a use which cannot be renewed, or of using it even to destruction;

3rd. of a thing, namely, of any thing whatever, whether corporeal (field, house) or incorporeal (right, office, benefice, servitude, mortgage), whether movable or immovable, from which an advantage of stipend or honor is perceived;

4th. as one's own, all others being excluded, i.e., in one's own name and authority, and thus it is distinguished from the power of him who holds a thing without ownership, such as a depositary, procurator, curator, usufructuary, or user, who dispose of the thing but not as their own;

5th. for one's own advantage, even if it were nothing other than the exercise of one's own liberty, for example, in a thing to be given gratuitously, and thus it is distinguished from dominion of jurisdiction, which a superior cannot exercise for his own utility but for the common utility;

6th. unto any use not prohibited by law, i.e., by civil law, whose part it is to circumscribe the exercise of right for the common good, and a fortiori by natural or divine law, and similarly by ecclesiastical law, because right cannot be given against a just law; - indeed, neither unto acting against any law or virtue. And yet dominion remains full, because the restrictions of law do not remove one part of dominion, but only impede its exercise; whence he who uses his own thing unjustly against another sins against justice because he injures the right of another, but not because he uses his own thing badly.

160. Corollary. - From the nature of dominion there follow four principles of right which govern dominion:

1. The thing cries out to its owner, or toward its owner.

For a thing legitimately pertaining to an owner is so connected with him that, if it has been separated from him, it always strives to return to him, and thus as it were cries out to its owner. Therefore the owner can reclaim his thing wherever he finds it; and for that reason the possessor is bound to return it as soon as morally possible, unless he proves that he holds it by a just title.

2. The thing fructifies for its owner, because the fruits are an accessory of the thing; but the accessory follows the principal.

Therefore if the thing pertains to the owner, the fruits, insofar as they belong to the thing as cause, pertain to the owner of the thing; but the fruits of the possessing person, or of mere industry, insofar and to the extent that they proceed from the industry of another, pertain to the possessor, not to the owner: for then the thing was only the occasion or condition of the fruit, not its cause.

3. The thing perishes for its owner.

For if the thing pertains to the owner, if it fructifies for the owner, it is also equitable that it perish for the owner, unless it perishes through the fault of another. For when the thing is taken away, and consequently the bond to it which was the foundation of dominion, by that very fact the right in that thing perishes. Yet if the thing subsists virtually or in an equivalent, the foundation of dominion and the right remains, for example, if the possessor has received the price of the thing, or by using it has spared his own goods, or preserves its fruits.

4. No one ought to be enriched from another's thing, as from a cause, with the injury or loss of another; otherwise the thing would not fructify for the owner.

For it is repugnant to natural right that someone become rich from an injury inflicted upon another. Yet it is not repugnant that someone become richer on the occasion of another's thing, if, by using that thing, he produces something by his own industry alone: for this is truly the fruit of his own labor, in no way of the thing which then was not the cause of the fruit but a mere condition.

161. Usufruct (usufruit; vruchtgebruik of -genot, vruchtverbruikingsrecht) is the real right of using and enjoying another's thing like its proper owner, its substance being preserved³ (C.C., a. 578). It is said:

³ The Italian Code treats of usufruct, a. 477 sq.; Spanish, a. 467 sq.; Dutch, a. 803 sq.; Austrian, a. 509 sq.; German, a. 1030 sq.

a) real, i.e., attached to the thing itself, so that it may be distinguished from the right of a tenant or farmer, which is personal, insofar as the lessor is personally bound toward the tenant, while in usufruct the obligation is bound to the estate itself or to the thing. Hence 1) the usufructuary can renounce his right, the tenant cannot; 2) the usufructuary has against the owner a right in the thing, that he not be impeded; the tenant has a right to the thing, that enjoyment of the thing be procured for him;

b) of enjoying, i.e., not only of using but also of receiving its fruits, just as if the usufructuary were owner;

c) its substance being preserved: for since the right of disposing remains with the owner, the usufructuary cannot alienate or consume the thing, or transmute it into another form, even a better one, but must preserve it whole for the owner.

A. Usufruct arises either from law (which is diverse for diverse peoples), and then it is called legal, such as the usufruct of a father or mother in the goods of children, of a husband in certain goods of the wife, of a beneficiary in ecclesiastical goods; - or from the will of man, whether by testament, or by act among the living, as by donation or sale, or even by prescription, and then it is called constitutional (a. 579). But it can be constituted in three ways: either purely, or for a day, or under condition (a. 580); and indeed in all things, whether movable or immovable (a. 581).

B. The usufructuary has the rights of an owner, the substance of the thing being preserved; hence:

1st. He can, without any recompense, receive all the fruits of the thing, whether natural, which are produced without special industry, or industrial, which are acquired especially by labor, or civil, which are owed by force of a contract or some obligation, such as the price of leasing, rent, interest for money lent, servitudes, and other rights which the owner can enjoy.⁴ And indeed natural or industrial fruits are acquired by perception or separation, but civil fruits are judged to be acquired from day to day. Whence a) at the beginning the usufructuary makes his own all natural and industrial fruits still pending, and civil fruits which are owed from the day the usufruct began; but he has no right to fruits already separated from the land or thing, nor to civil fruits already owed but not yet received. On the contrary b) when the usufruct is completed, he or his heir can take fruits already mature and separated, but not immature fruits and those collected too soon, nor mature fruits still pending; but civil fruits owed up to this day, even if not yet paid (a. 582 sq. and 597).⁵

⁴ In German law, natural and industrial fruits are called fruits of the thing, but civil fruits, fruits of right.

⁵ In Spanish law (a. 452) and Portuguese law (a. 495), the owner can take all fruits still pending; otherwise he is bound to pay expenses made for cultivation and to divide with the possessor both the production and the remaining burdens, according to the proportion of the time of possession.

Yet by our law a) in a usufruct comprising things which are consumed by first use, while he consumes them, he is bound, when the usufruct has ended, to restore their entire value (a. 587); b) under the name of fruits there do not come treasures found in the land, nor new mines or mines to be opened which, at the time when the usufruct began, were not yet being worked (a. 598), but only those things which are drawn from already existing mines or which grow and are received at certain times (a. 598 and 591).

2nd. He can also sell, lease, or donate his right to another, provided nothing is changed in the condition of the owner, whether as to the perception of fruits, or as to the extinction of the usufruct: for he can enjoy either by himself or through another (a. 595).

C. As to the duties or obligations of the usufructuary, he must not abuse, but use the thing and enjoy it as a good father of a family, and take care that it does not perish, become changed for the worse, or be burdened with undue servitudes by his own deed or that of others, and this under penalty of repairing the damage inflicted upon the owner; hence:

1. When the usufruct begins, he must, in the presence of the owner or at least after the owner has been summoned, duly make an inventory in which are described all the goods of which he has the use and fruit; moreover, he is bound to provide surety, unless dispensation is made by law or by him who grants the use and fruit (a. 600-601).

2. During the usufruct, he must a) watch lest the thing be usurped or become worse; yet if it becomes worse by legitimate use, he returns it in the state in which it is found: the thing deteriorates for the owner (a. 589); b) make moderate repairs and conserving expenses, but not major repairs (a. 605-606); c) pay annual charges or periodically imposed charges which touch the enjoyment itself, such as taxes, real rent, wages of servants, expenses of litigation in which the usufruct is at issue (a. 608 and 613).

3. When the usufruct ceases, he must restore the thing in the state in which it ought to be found after good administration, and indeed with the fruits not yet collected (a. 585 and 590), with no compensation to be demanded from the proprietor, even if the land has become better from the usufruct (a. 599).

D. On the contrary, the duties of the owner are:

a) He suffers enjoyment, i.e., he must do nothing by which the enjoyment of the usufructuary is diminished or extinguished. To him indeed belongs the care of major repairs (a. 605), but he cannot be compelled to make them (a. 607). He pays the expenses of litigation when the dominion of the thing is at issue.

b) He does not furnish enjoyment, i.e., he is not personally obligated toward the usufructuary; he must leave the thing in the state in which it is found, but he is not bound to make it better.

E. Usufruct ceases: 1st. by the death of the usufructuary (a. 617), unless it was constituted until a third person should reach a determinate age; in which case it endures until the appointed time, even if the third person has died before then (a. 620);

2nd. when the appointed time has elapsed (a. 617), and when thirty years have elapsed if it was constituted in favor of a community (a. 619);

3rd. by consolidation, by which the usufructuary at the same time becomes owner of the thing, or conversely (a. 617);

4th. by prescription, i.e., by non-use of the thing for 30 years (a. 617);

5th. by the total destruction of the thing subject to usufruct (a. 617 and 623);

6th. by abuse of the thing, yet with the sentence of a judge intervening (a. 618);

7th. by the legitimate renunciation of the usufructuary, provided it is not done in fraud of creditors (a. 622);

8th. also by the dissolution of the right of him who constituted the usufruct, since, the right of the giver being resolved, the right of the receiver is resolved; unless, however, the law has determined otherwise (a. 132-133).

162. Use (usage; gebruik, gebruikrecht) is the real right of using some thing of another for one's own utility alone, like the owner of the thing, its substance being preserved. When the right of using is applied to a house, it is called habitation (bewoning).

The principal difference from usufruct is that the usufructuary can receive from the thing of another any use and any fruits whatever, whether for his own utility or not, while the user cannot receive them except insofar as they serve the use of himself and his own. He can use the thing for his own daily necessity, so that he cannot lease, sell, or gratuitously cede to another either the superfluous fruits or the right which he has, while he who has the use and fruit can do all these things. Whence the user has a right to use without being able to alienate the fruits.

Use is acquired and lost in the same way as usufruct, and gives rise to similar obligations (C.C., a. 625-631).⁶

⁶ The Italian Code treats of use, a. 476 and 521 sq.; Spanish, a. 523 sq.; Dutch, a. 865 sq.; Austrian, a. 504 sq.; German, a. 1090 sq.

163. Real servitude, passively considered (servitude; erfdienstbaarheid), is a burden imposed upon a thing in favor of another thing (a. 637), for example, passage through another's land, the right of drawing water from another's spring. Actively considered (erfdienstrecht) it is a real right which the owner of one estate has, on the occasion of the estate itself (the dominant estate), of receiving some advantage from the estate of another (the servient estate).

Whence servitude is real in two ways: because it falls upon an immovable thing, and not upon a person; and because it yields directly to the advantage of another thing, and only indirectly to the utility of him who possesses this thing.⁷

⁷ All species of useful dominion can be called servitudes, because the thing, while remaining to the direct owner, as it were serves another; and thus personal servitudes can be distinguished, when a thing serves another person, and real servitudes, when it serves him as owner. But the French legislators, from love of liberty and horror of merely personal servitude (servage), designated real servitude alone by the name servitude, calling the remaining species by the name droits de jouissance. Thus Waffelaert, o. c., n. 62.

By reason of mode it is either continuous, if it can endure without the act of man, for example, the servitude of aqueduct, of dripping; or non-continuous, if it cannot be exercised without such an act, for example, the right of passing through fields, of drawing water, of pasturing cattle (a. 688). Likewise it is apparent if it is manifested by an exterior sign, for example, by a door, aqueduct, window; or non-apparent if it shows itself by no exterior sign, for example, the prohibition of building in a certain place, or of raising a house or wall higher (a. 689).

By reason of origin, servitude is (a. 639) either 1st. natural, which is founded in the natural situation of places, for example, the lower land must receive waters which naturally flow down from the higher land; - or 2nd. legal, which arises from the disposition of law, whether for the public good (for example, the obligation of leaving a way for the drawing of ships on the banks of rivers, of constructing or repairing a public road), or for the private good (for example, obligations by which proprietors are legally bound to one another and which especially pertain to a common wall or ditch, the distance to be observed for certain constructions, windows and openings onto the property of a neighbor, dripping from roofs, the right of passage); - 3rd. conventional, which can be acquired by legitimate title from mere convention, e.g., donation, sale, testament; indeed also by prescription of 30 years without title, provided it is a servitude that is continuous and at the same time apparent, for example, the servitude of an aqueduct which runs through another's land (a. 690). Such servitudes are similarly extinguished (a. 703 sq.).

As to rights and obligations, let it be noted:

a) The possessor of the servient estate who suffers the servitude is bound to abstain from all things by which the right of another would be impeded, diminished, or taken away (a. 701); but if by the title of servitude he is bound to something further, he can always free himself from that burden by abandoning the servient estate (a. 699).

b) The possessor of the dominant estate who enjoys the servitude can do at his own expense, even on another's land, whatever is necessary for the use of his right; but he must take care lest he render the condition of the servient estate worse or more burdensome (a. 697-698; 702), otherwise he is bound to furnish indemnity.

It is useful to note here:⁸ "1. Those things which concerning ... servitudes have been wisely established by the legislator for the mutual concord of citizens are to be observed in conscience.

⁸ Waffelaert, o. c., n. 86; cf. Marres, De Iustitia, n. 447-460. - Of servitude there is treatment in the Italian Code, a. 531 sq.; Spanish, a. 530 sq.; Dutch, a. 721 sq.; Austrian, a. 472 sq.; German, a. 1018 sq.

2. Since lawsuits which are usually brought about these matters, being generally intricate, easily furnish cause for hatred among citizens, and for the ruin of families, let the parish priest and confessor attempt either to forestall them or to remove them before they wound the litigant; and therefore let him himself know legal principles and examine the matter, and at the same time exhort others, especially litigants, to observe the laws, so that in a matter so uncertain they may rather yield somewhat in right than expose fortune and concord to danger."

164. Observations. - 1st. In the aforesaid definitions the discussion is about the substance of a thing. Here this is taken juridically for that form and figure by which the thing has a certain utility and name; for example, it is a meadow rather than a field or vineyard, or it is a house of such an external form or of such an internal order of parts. Whence the usufructuary cannot change the external form of a house, or the general internal order of its parts.

2nd. Other real rights are acknowledged in law, namely, privilege (voorrecht), mortgage (grondpand), and pledge (pandrecht). Moreover, emphyteusis and the right of superficies approach the nature of usufruct, which they extend.

These two in Belgium are governed by the law of Jan. 10, 1824. Emphyteusis (erfpacht) is a real and temporary right of having the full enjoyment of another's immovable thing on this condition, that an annual payment be paid to the owner in recognition of dominion.

Therefore it is never granted by gratuitous title, while usufruct can be given gratuitously; but it can pass to heirs, while usufruct is extinguished by the death of the usufructuary.⁹

⁹ Emphyteusis is acknowledged by Austrian law (a. 1122), Italian (a. 1556), German in certain States, Dutch (a. 767); also by French law, but from the law of June 25, 1902. In France it can be granted at minimum for 18 years, at maximum for 99 years; by Dutch law for a time of 75 or 100 years, even in perpetuity; likewise by Italian law it can be established in perpetuity, but then it is redeemable. In Belgium: at minimum for 27, at maximum for 99 years.

The right of superficies (recht van opstal) is the real temporary right of having buildings, works, or plantations on another's land.¹⁰

¹⁰ In Belgium it can be granted for 50 years. It is also acknowledged by German law (a. 1012-1027), and Dutch law (a. 758 sq.); French or Italian law has nothing explicit.

3rd. To the aforesaid things possession itself is not to be added, which is not right and dominion, but as it were a sign of dominion. It is the detention of a thing not prohibited to be possessed, with the intention of having it as one's own. Formerly there was distinguished: possession of right, i.e., the real right of possessing or detaining a thing not prohibited; and possession of fact, or the act of possessing, namely, detention of a thing by the help of intention (the will of possessing), body (the external act), and right (the law permitting possession). But in modern law, possession is not a right but the mere fact of detaining a thing under one's power, whether justly or unjustly; whence by itself alone it is not a mode or title of acquiring right.

4th. For determining the rights of men, and consequently in treating the whole matter of justice, one must attend both to natural and divine law, and also to positive human law, and by name to the Civil Code. The power of the civil legislator to make laws which determine or explain the right of property, enjoyment, or use is certain. For just as the natural law which indeterminately commands that God must be worshiped ought to be determined by the Church, which prescribes the mode, place, and time of divine worship and other circumstances to be observed; so the natural law which indeterminately establishes that right is to be attributed to each one and that justice is to be observed in operations toward another, needs the determination of civil law, which defines what in fact are the rights of each one and how justice is to be observed in concrete circumstances (I, n. 263).

But such civil law obliges also in conscience, provided a) it is just, and repugnant neither to natural law, nor also, in matters subject to the Church, to ecclesiastical law; b) it is not merely penal but preceptive, which is established either from the nature of the thing or from necessity (as is generally verified for laws which determine the mutual rights of citizens, or directly procure the common good), or from the tenor of the law or of the attached penalty, or from the common interpretation of good and God-fearing citizens (cf. tr. de Legibus, I, n. 287).

In France and Belgium one must stand by the Code which, established by Napoleon I, is commonly called French law, yet with attention to the special laws by which that code was afterward very much corrected or even increased.¹¹

¹¹ Hence the articles of law cited, unless otherwise noted, are those of the French Civil Code.

165. Corollary. - From the definition given it follows that usufruct and use properly do not belong to things consumable by the first act, such as bread, wine, oil, money, etc.; hence:

1st. In these things use properly so called, independent and irrevocable (usus iuris), cannot be separated from dominion: for he who has such complete use, for example, of drinking from a barrel of wine until it is emptied, seems to have nothing less than he who has dominion over it.

2nd. Yet dependent and revocable use (usus facti) can be separated, such use as these are judged to have:

a) those invited to a banquet, respectively to the foods proposed; for they cannot use those things which are placed on the table for any use whatever, but only for eating, and thus dependently upon the will of the one inviting, so that he would commit no injury if he removed the things that had been set out;

b) religious solemnly professed, in particular, as to food and clothing, dominion remaining with the community; - and the Friars Minor or Capuchin Friars Minor, both in common and in particular, as to all temporal things whose use is licit for them, so that the Order itself professes that it has dominion of no temporal things, but only simple use of fact, revocable at will, dominion remaining either with the donors or with the Apostolic See. Nevertheless he who took away their things would commit injustice by depriving them of the use of fact.