Article I. Notions and Opinions

222. Concerning the alienation of goods in general. 1. No one doubts that, by the consent of two capable persons, it can per se come about that the right in a thing and the dominion of property itself are handed over from one to the other, so that there is a succession of one into the place of the other. Aristotle defined the right of property itself by this faculty of alienating.¹

¹ Ὅρος ... τοῦ τε οἰκεῖον εἶναι ... ὅταν ἐφ' αὐτῷ ᾖ ἀπαλλοτριῶσαι: “The definition ... of a thing's being one's own ... is when it lies within one's power to alienate it.” “The proper definition of a thing is that you can alienate it.” (Aristotle, Rhetoric, bk. 1, chap. 5, no. 7.)

Yet we are less pleased with the explanation of some who present this succession as consisting concretely in the conditional renunciation of one person and the acceptance of the other; as though one who gives, sells, or cedes property were disposed in mind thus: I yield my possession if another wishes to acquire it; while the donee or buyer, by his assent, satisfies the imposed law or condition; and by these two acts the whole transfer of the right is completed. Thus the matter is explained by John Duns Scotus, On IV Sentences, dist. 15, q. 2, no. 11; Carrière, On Contracts, no. 497; and Rev. Fr. Cathrein. They then prove the very power of giving from the faculty of relinquishing goods which belongs to the owner and from the faculty of possessing which is innate in man.

But if one person merely loses possession and another merely acquires a thing lost by the former, there is only material succession, by which one person comes after another, but he does not formally derive his right from the other. And in reality the donor then merely removes the obstacle which prevents the other from occupying, by the efficacy of his own will, the thing as though it were vacant. But if this is so, it is no longer apparent how the thing can come into the power of another without true occupation such as we established as requisite in article 2 of the preceding section, in order that someone might acquire a thing for himself by the power of his own will. Hence, moreover, by the very law of nature, true delivery would be necessary for alienating possessions. This explanation of succession must therefore be perfected; and in him who cedes his right there must be posited, in addition, the formal intention of substituting in his own place another who, if he assents, can continue strictly the same right. And this is done without any interval, so that the saying of the philosophers concerning the succession of forms can be transferred to this cause: the corruption of one is the generation of another.

But the faculty of alienating is proved by the fact that, without the commerce and exchange of things, men would not obtain from the right of property those utilities for the sake of which it was granted by nature. And just as, from the beginning, someone could perform in another's name the things required for the true occupation of a thing and thus acquire the thing for the other, so there is no repugnance in his later willing to be made, as it were, the cause of the other person and that those things by which he acquired for himself possession of the thing should benefit the other, so that by the same bond by which the thing was bound to the prior possessor it is thenceforth bound to the other.

223. The object of the question and the opinions. But now we are not treating of every succession, but of that by which someone succeeds into the place of the deceased, whether by testament or intestate; concerning this succession we ask only whether the right of testaments and inheritances has force by positive human law or also by the law of nature. Here again there occurs a rather great diversity of opinions.

a) The Scholastic Doctors, whose protection it would be helpful to employ, passed over the question in silence. Molina, however, who notes that the matter was already disputed in his own age, unhesitatingly asserts, loc. cit., concerning testaments, that “by the law of nations, indeed by natural law, it belongs “to the law of nations, indeed to natural law, that each person can dispose of his goods by a last will.”

b) The modern authors have various manners of opining, which can conveniently be distributed thus:

Some attribute both kinds of inheritance, taken generically—not as regards the various determinations of mode and degree which, it is agreed, must be traced to civil law—to natural law itself. Thus Rev. D. Marrès and the Most Illustrious Bishop Waffelaert, loc. cit.

Others judge that the devolution of goods upon the family is established by nature; but that one can give goods to another by testament they regard as a positive institution of law, although consonant with the wishes of nature. Thus Taparelli, S.J., seems to opine, loc. cit.

Several others, by an altogether inverse rationale, hold the faculty of making a testament to be natural, but not the entry upon an intestate inheritance. In their number we place those who, like Grotius, d'Annibale, and Rev. Fr. Cathrein, in the absence of a testament assign the goods to the family from a conjecture concerning the will of the deceased. For in reality they reduce all natural succession to a formal or presumed testament.

Carrière, On Contracts, no. 498, with not a few canonists—for example, Schmalzgrueber, bk. 3, title 26, nos. 3-9—rather denies a natural right of testaments. As regards intestate succession, he thinks that something must be attributed jointly to natural and positive law, so that he concludes: “The right of succession indeed has its foundation in natural law, and its origin, as regards its substance, can be attributed to this law; but the order of successions, or the determination of that whole matter, can also be traced to civil law.” (On Justice and Right, no. 503.5.)

Not a few legists, after Montesquieu,² attribute everything to positive law.

² De l'esprit des lois [The Spirit of the Laws], bk. 26, chap. 6.

Until now, however, most, not to say all, considered both kinds of succession so consonant with the wishes of nature and so necessary to the common good that they did not think even in the least of abolishing this right.

The socialists think differently. Hostile to this right, they wish all inheritance to be suppressed, unless perhaps you except that by which goods devolve upon descendants.

c) Finally, as far as we are concerned, we think this to have been certainly sanctioned by nature itself: that in society there be, “disjunctively,” either the right of testaments or intestate inheritance. Indeed, it seems to us that one must proceed further and establish that both kinds of inheritance, as regards their substance, proceed from nature itself.

N.B. This same variety of opinions can be observed in civil law itself. Thus, in Roman law, and consequently in the parts of France which employed written law (pays de droit écrit), everything was referred to a testament; when this was lacking, the law endeavored to distribute the goods to the heirs according to the judgment of the deceased. On the contrary, in the parts governed by customary law (pays de droit coutumier), the innate right of the family was instead sanctioned, so that among them no one was a true heir except him whom God had constituted. Hence these proverbs: Heirs are begotten, not written;—God alone can make heirs, not man.