357. Definition. Ownership is the legitimate faculty of disposing according to one's choice concerning some thing as one's own, unless the owner is prohibited from elsewhere.

a. To be owner of a thing signifies that the thing is one's own, and has such a connection with its owner that in having it and in its use he ought to be preferred to all others. Therefore, although he must render an account of its use to none of men, nevertheless he must render it to God.¹

b. Of disposing, that is, of possessing, using, selling, exchanging, giving, destroying, etc. According to one's choice: ownership gives to the owner the faculty of disposing of his own thing as it shall please him, without injuring justice; therefore by an arbitrary disposition, for example, by a prodigal donation or destruction of the thing, he can sin against another virtue, say liberality, charity, or piety, but he does not sin against justice. Concerning some thing is to be taken generically, insofar as it signifies corporeal and incorporeal things: for there is ownership not only of corporeal things, such as gold or a field, but also of incorporeal things, such as reputation, honor, right of inheritance. As one's own, so that ownership may be distinguished from a simple right to a thing, which does not give the faculty of disposing of the thing, from mere possession, even legitimate possession, which, for example, gives to a tenant the right of disposing of a thing, but not as his own, and finally from the power of a curator and procurator, who likewise dispose of a thing, but not as their own.

c. In various ways the owner can be impeded from disposing of his own thing according to his choice: alpha. by civil law, as if minors are prohibited from selling their own things; beta. by agreement, as if someone sells another his house with this pact, that it not be converted into an inn; gamma. by the will of a testator, as if someone transmits an estate by legacy to another on this condition, that it cannot be sold.

¹ Cf. Lugo, De iustit., disp. 1, n. 5.

358. Principles of right. From the nature of ownership these principles are deduced and explained, of which there is frequent use in law:

a. A thing cries out for its owner.

This principle exhibits the very right of ownership: for since by force of the right of ownership the thing itself is bound to the owner, it tends to return to the owner when it has escaped from his possession.

b. A thing bears fruit for its owner.

This follows immediately from the notion of ownership: for if the whole substance of a thing pertains to the owner and ought to serve for his advantage, the fruits also begotten from it fall to the owner.

c. A thing perishes for its owner, or more accurately: a thing which perishes by chance perishes for its owner; a thing which perishes by fault perishes for him who committed the fault.

This likewise follows immediately from the nature of ownership: for since the owner by force of ownership possesses a right in the thing itself, when the thing perishes the right in it also naturally perishes. But if the thing perishes by another's fault, the thing itself indeed perishes for the owner, but because he by whose fault it perishes is bound to render to the owner an equivalent price, it is said to perish for him who committed the fault.

d. It is not licit to grow rich from another's thing.

This follows from the second principle: for he who grows rich from another's thing turns the fruits of another's thing to his own utility, which is opposed to justice. But he who grows rich not from another's thing, but on the occasion of another's thing, injures neither another's right nor justice.

359. Divisions of ownership. 1. Ownership is divided into high and low: high ownership is the power which belongs to public authority of establishing concerning the goods of its subjects for the common utility; low ownership is the ownership which private men have in their own things and is called private right.

a. It is clear that high ownership is not ownership of property in the true name (for civil power has no property in the goods of subjects), but in reality is nothing except ownership of jurisdiction or the right of prescribing concerning the goods of citizens those things which the prince has judged expedient for the common good. Therefore the prince can transfer ownership from one to another, restrict the exercise of ownership in various ways, indeed he can even deprive subjects of their goods by the right of expropriation, or rather compel them to abdicate ownership of their goods.

b. A twofold condition is required that supreme power can use this ownership of its own: alpha. that a cause of necessity or of great public utility be present; beta. that, if it can be done, it make the subjects who are deprived of their goods by the right of expropriation unharmed.¹

2. Low ownership is divided into perfect or full and imperfect or semi-full: the former is the power of disposing according to one's choice concerning the substance and the utility of a thing; the latter is the power of disposing either concerning the substance of the thing or concerning its utility.

3. Imperfect ownership is divided into direct or radical ownership, which is power over the substance alone of a thing, and indirect ownership or useful ownership, which is power over the utility alone of a thing, and is defined: the power of receiving utility from another's thing while its substance is preserved. The chief species of indirect ownership are use, usufruct, and servitude.

Note. Recent codes reduce the diverse species of imperfect ownership to servitude, and therefore treat use and usufruct as species of servitude, as will be clear from the things to be said below concerning servitude.

¹ Cf. Van Gestel, l. c., n. 46 s.

360. On use. 1. Use is the right of using another's thing while its substance is preserved.

a. He to whom the use of some thing belongs is called a user, so that he may be distinguished from the proprietor of the same thing.

b. It is one thing to use some thing; it is another thing to enjoy some thing. He who can use a thing can receive for himself and his own from the thing that utility which necessity requires; but he who can enjoy a thing receives by right every utility from the thing which it can offer.

2. To use are usually referred: a. habitation or the right of using some part of another's house; b. gathering wood or the right of gathering wood in another's forest; c. pasture or the right of leading cattle into another's pastures; d. diverse species of loan for use, as the use of a horse, garment, etc.

3. Use, as it is taken here, is a right of using some thing which is not revocable at will. From this use there must be distinguished use revocable at will, of which sort is permission of using some thing, such as religious receive from their superior.

Formerly a sharp dispute arose whether there is true use of a thing when the substance of the thing is consumed by use, as happens in food and drink, or rather whether the use of a thing consumable by its first use contains ownership of it. Religious gave occasion to the question, who (as the Friars Minor) said that they had ownership of no thing, not even the least, but only use. Those who affirmed that the use of a thing which is consumed by use cannot be separated from its ownership argued in this way: he who can dispose concerning the substance of a thing has ownership of it; but he who can use a thing which is consumed by the very use disposes concerning its substance. But those who affirmed that the use of a thing consumable by the very use can be separated from the ownership of the same thing used this distinction: if use is understood as an irrevocable right and independent from the will of the one granting, the use of this thing contains ownership; but if the use of a thing is understood as a right revocable at will and fully dependent on the will of the one granting, the use of this thing does not contain ownership, even if the thing is consumed by the very use.¹

¹ Cf. Holzmann, Theologia moralis, IV, n. 166 ss.; Elbel-Bierbaum, Theologia moralis, II, pr. 5, n. 40 ss.

361. On usufruct. Usufruct is the right of using and enjoying another's thing while its substance is preserved. Usufruct is distinguished as legal and conventional, according as it is had from canonical or civil law, or from contract.

a. He to whom the usufruct of some thing belongs is called a usufructuary or fruituary, so that he may be distinguished from the owner or proprietor of the same thing.

b. Usufruct differs from use in this, that the fruituary has the right not only of using another's thing, but also of receiving the fruits which arise from it. Indeed he has perfect ownership in the fruits, so that he can receive not only the fruits necessary to himself, but all, and alienate them according to his choice.

c. By canonical law beneficiaries have the usufruct of their benefices; by civil law parents have the usufruct from the goods of minor children, and sometimes the husband from certain goods of his wife.

362. On servitude. a. Servitude (Dienstbarkeit) taken actively is the right which someone has, that another's thing may serve him or his own thing; taken passively it is a burden inhering in a thing, by force of which it ought to serve another for some advantage. Thus if a right of passing through another's field belongs to someone, he himself is the subject of active servitude, but the field is the subject of passive servitude.

b. Passive servitude is twofold: one personal, when some thing ought to furnish utility to another person, of which sort are use and usufruct, if they are taken passively; the other real or praedial, if some thing ought to furnish an advantage to another thing, as is the servitude of pasturing a flock in some forest.

c. For constituting a real servitude two things are required, of which one bears the burden and is called serving (the forest), the other receives the utility and is called dominant (the flock).

Note. 1. The law of servitudes is drawn up in modern codes with diligent study; and since it determines rights and conduces to preserving the mutual concord of citizens, it obliges in conscience.¹

2. Since the law of servitudes, especially real servitudes, is very intricate, it often gives occasion for disagreements among neighbors. Let the pastor take care either to forestall or to remove disputes of this kind, and for obtaining this end let him admonish the opposing parties that they should rather yield somewhat from their right than expose goods of fortune and mutual concord to danger.

¹ C. A., Section 472-530; C. G., Section 1018-1093.

363. Fruits of a thing. By the name fruits of a thing is understood everything which arises from the thing. Fruits are divided by reason of origin into spontaneous, industrial, and mixed, and by reason of collection into pending, to be received, and received.

1. a. Those are called spontaneous which the thing produces without special industry of men. Special is said because there will scarcely be a fruitful thing which bears fruits without any industry and labor of man.

Spontaneous fruits are either natural or civil, according as they are produced by nature itself, such as hay of a meadow, wood of a forest, offspring of animals, milk, wool, eggs, etc., or are received by force of a contract or another obligation, such as the price which is acquired for the rental of a house, interest which is acquired for money lent, a pension which is acquired for an office.

b. Those are called industrial which are acquired by the industry and labor of man alone, although by means of some thing or instrument, such as the works of artisans and workers, profit received from trading.

Profit received from simple sale can be considered as a fruit of industry; for that profit received can be called a fruit of industry, it is not required that singular and extraordinary industry have intervened, but true work and industry of the person suffices.

c. Those are called mixed which are produced partly by nature and are owed partly to human industry, such as crops, wine, oil, cheese, butter. And because even natural fruits require some industry, it is sometimes difficult to say whether some fruit ought to be reckoned among natural or mixed fruits.

2. a. Those are called pending which have not been separated from the thing, such as offspring of animals not yet brought forth into light, apples still hanging from the tree, crops not yet harvested.

b. Those are called to be received which the possessor could have received if he had wished, but did not receive, whether by negligence or by fraud.

c. Those are called received which have already been separated from the fruitful thing and collected by the possessor. These again are divided into consumed and extant.

Article Second. On the Object of Ownership

The object of ownership is that of which man can be owner. Those things of which man can be owner are usually called goods, and are distinguished into three kinds: internal, mixed, and external. Among internal goods are reckoned man's life, powers, members, and actions; mixed goods are reputation and honor, which are, as it were, midway between internal and external goods; external goods which fall under man's ownership are sublunar things.

364. On internal goods. 1. Of those internal goods which are not distinct from man himself, such as life, powers, and members, man does not have direct ownership, but only useful ownership, so that he receives every utility from them and is their administrator and guardian.

a. God has given no one the right over his own life and members, but has reserved it to Himself: "See that I alone am, and there is no other God besides me; I will kill and I will make alive."¹ And indeed no one can truly be lord of himself, because lord signifies superiority with respect to him whose lord he is. b. He ought to have the power of using them for obtaining his end, and he cannot be impeded by any man in this use, since in tending to his own end he is independent from any man and fully in his own right.

2. Of those internal goods which are distinct from man, such as actions both natural and supernatural and the goods effected by them, man has full ownership, and therefore can dispose concerning them at will. For since he can use his own faculties as his own, he has ownership both in their operations and in the goods arisen from the operations, which are the fruits of the operations.

¹ Deut. 32:39. Cf. Wis. 16:13 s.

365. On mixed goods. Man has full ownership of reputation and honor: for he has ownership of those goods which are the fruits of his own industry; but reputation and honor are acquired and increased by his own industry. Besides, by the consent of all, acts of ownership concerning reputation and honor belong to man: for by defaming himself he can cast them aside for seeking counsel, and he can condone restitution to a calumniator. Nevertheless this ownership is sometimes restricted by another and higher law.

366. On external goods. It will be said below that man can acquire full ownership in external goods; here it is helpful to set forth the various distinctions of external things of which man can have ownership.

1. Things placed in commerce are those which can be in the ownership of a private person; and things placed outside commerce are those which cannot be in the ownership of a private person. Of this kind are: a. public things of the Church, such as sacred places, temples, cemeteries; b. public things of civil society, such as public roads, squares, public bridges, city walls; c. common things, such as air, light, the sea, of which things the use is common to all, but ownership belongs to none.

2. Things are movable and immovable according as, with their substance preserved, they can be transferred from place to place, such as animals and furniture, or cannot be transferred, such as a house or forest. Some things are movable and immovable from their nature, others from the disposition of law, concerning which the civil codes must be consulted.

Civil law also counts fruits not yet collected and the "stocked estate," that is, those things which are necessary for carrying on domestic economy, among immovable goods in some cases.

3. Fungible things (vertretbare) are those of which one can perform the function of another in payment or restitution, in which therefore attention is given not to the species (that is, to the individual thing), but to the genus (to quantity and quality), such as oil, wine, wheat, money, in which not the substance of the coin but its value is considered. Non-fungible things are those of which one cannot perform the function of another, but which must be handed over in the individual, in which therefore attention is given to the species (that is, to the individual thing), not only to the genus, of which sort are animals, garments, etc.

4. Finally, things consumable by first use and things not consumable by first use: the former in their first natural use are destroyed or changed into another substance, such as bread, wine, wood for burning; the latter are indeed worn by use, but are not corrupted, but endure in their substance after use, such as a garment, house, furniture.

The division of external things into corporeal, which can be touched, such as a house, field, money, and incorporeal, which cannot be touched, such as diverse rights, for example, the right of hunting and the right of fishing, which was of great importance in Roman law, scarcely occurs any longer in recent codes.