Article I: On Various Dominion

All rights, as the very ratio of right demonstrates, when the object is considered, imply some dominion, more or less perfect; and from the dominion of jurisdiction, of which we treated above, there is distinguished the dominion of property, which immediately, although not exclusively, exists and is exercised on account of the utility of the one having it. This alone we consider in this title. Again, with the subject considered, there can be singular dominion, or dominion of one person, or condominium of several.

Division From the Amplitude of Right. Full or perfect dominion is the right of disposing for one's own advantage concerning the substance and utility of a thing. To this is opposed imperfect dominion, which, in Roman law and in several laws derived from it, is distinguished into direct, naked, or also radical dominion, and into useful or indirect dominion. The former excludes the right of perceiving utility and is called direct, because it immediately affects the substance; naked, because it is a title without use and fruit; radical, because it regards the source or root of utilities and fruits. The other embraces utility alone, and is called useful, because it gives the advantages of dominion; indirect, because only by reason of the fruits or utility does it subordinate the fund itself to the owner of the utility. Useful dominion can exist more or less broadly; and thus, when there is question of external things, there exist various rights which are called by various names and are, as it were, drawn off or dismembered from perfect dominion.

In Latin and Germanic law there are numbered, as rights which subsist through themselves, usufruct, use, habitation, servitude, superficies, emphyteusis; as rights which suppose a principal obligation and accede to it: pledge, antichresis, privilege, hypothec.

American and English law by no means ignores many ratios by which fruits or utilities can be separated from the dominion of a thing; but it is not accustomed to use proper names of rights subsisting in a thing (or principal rights).

In English law imperfect dominion is designated by the generic word entail; and it is already judged imperfect on account of a merely nominal dependence on the republic, in which every private proprietor of an immovable thing is judged to be placed. But a multiple estate in immovable things is distinguished (in things real): in fee simple, when the right passes from the one having it to all heirs in perpetuity; in fee tail, when the right passes from the one having it to natural descending heirs in perpetuity; for life, when it is bounded by the life either of the owner, or of another, or even of several; for years, when it exists for a determinate epoch (for a month or for a thousand years); at will, when it can be ended at the discretion of the landlord (lessor) or tenant (occupier); estate on sufferance, when, after the end of the right, the occupier continues, as it were from the tolerance of the owner, to use or enjoy the field. The three former are called freehold estates, when their possessor must furnish nothing unworthy of a free citizen; the others are called less than freehold.

Often, however, the word estate designates property in the full sense; and practically freehold estates do not differ from property.

There is distinguished, moreover, real property, which is in immovable things (things real or realty) conceded for a non-defined time, i.e. in perpetuity or, for example, for life; and personal property, which affects movable things (things personal) or even immovable things but conceded for a defined time. Things real are all immovable things and connected rights: as the right of rent from fields, the right of having a road through another's field; even the dignity of "peer" (peerage), the office of judge.

I. Perfect dominion is the full right of property. Wherefore it permits the owner, with justice alone considered: a) use at will, even that use which accidentally harms one's neighbor, provided that the use is not prohibited by law; b) exclusion of others; c) disposition of the thing. That is, that right is the right of using and abusing exclusively (by which word the faculty of disposing or changing the substance is juridically designated).

Nevertheless this dominion is subject to the high dominion or jurisdiction of perfect society. This, with regard to the common good, can order and moderate the exercise of the right of property: indeed, can deprive a subject of his things, provided: a) that this be done as much as the necessity of promoting the common good requires; b) that the equality of justice be observed, and therefore that the damage inflicted on the subject be compensated from common goods. For, as we have said, that justice, in distributing burdens, easily becomes commutative.

Therefore a law cannot be approved which assigns to a citizen from whom it takes dominion only a ratable part of the value; while, on the contrary, a progress of justice must be acknowledged in the effort by which, after the immense war, they endeavored to distribute among all citizens the peculiar damages inflicted on certain persons on occasion of the war.

II. 1. Usufruct is the right of using and enjoying the things of another, with their substance preserved.

2. The usufructuary can make all fruits his own. Moreover, a fruit is "whatever is accustomed to be born and reborn from a thing." Fruits are some natural, others civil. In a somewhat broader use, under this name there also comes what is regularly extracted from coal-bearing veins, etc.

Natural fruits are truly produced from the thing: either by nature alone, and then they are called simply natural; or with the industry of men joined, and then they are industrial, or rather mixed. For that is properly called industrial which is owed wholly to industry.

Civil fruits do not arise from the body itself of the thing, but consist especially in money which, from a contract concerning the thing, must be paid constantly after individual intervals: say, the annual price of a leased house ².

3. Natural fruits are acquired by perception or separation (these, in the case, are not distinguished); civil fruits are judged to be acquired from day to day, so that, if the usufruct should have an end in the middle of the year, the rent belongs for one half to the owner and to the usufructuary.

Fruits pending at the beginning and at the end of usufruct, say crops mature but not yet cut, by mutual turn belong to the usufructuary and to the owner.

What is understood under the name of fruit can be defined differently in different law. A "treasure," however, is not customarily placed among fruits.

These things can be said generally. Yet various laws must be consulted. Thus English and U.S.A. law abstains from the name usufruct, although it does not ignore the thing, "right to the 'fructus' from property belonging to another." The Code of Germany, on the contrary, treats of usufruct at length, arts. 1030-1089, distinguishing the usufruct of things, of rights, of patrimony.

Must the usufructuary at the beginning of the right compensate expenses made for the fruits which he will collect; can he at the end exact compensation of the expenses of fruits which he does not acquire? Austrian, Canadian Q., and Spanish law concedes expenses of cultivation, while by the law of Latin America, Belgium, France, Holland, Germany, nothing must be paid to him: which, as not very equitable, is also censured by jurists, e.g. by Colin and Capitant, Cours de droit civil francais, I, p. 803.

4. Usufruct of itself cannot be constituted except in things which are not consumed by first use. Nevertheless in other things, say in oil, wine, a quasi-usufruct, or usufruct said more broadly, is admitted. - When it is ended, what must be restored is defined by the Italian Code (art. 483) somewhat otherwise than by the French Code. If things are consumed not by first but by slow use (say garments, furniture), it suffices that the thing be returned in the state in which, without deceit or fault of the usufructuary, they are found when the usufruct is ended (art. 484 Cod. it.).

For more, cf. the civil laws.

¹ Thus C. Gall., art. 578.

² The Code of Germany, omitting these distinctions, rather distinguishes (art. 99) fruits of a thing and fruits of a right; fruits which arise from a thing or right according to its destination, and fruits which must be attributed to some juridical relation.

III. Use and habitation. By Roman law, by canon law (before the Code), and by certain laws today, as the Austrian (arts. 504-508, 521), Belgian, French (arts. 625-635), German (arts. 1000-1003), Italian (arts. 476, 521-530), and that of the Argentine republic (art. 2537), there is designated by the name of use and habitation the real right of inhabiting another's house or of perceiving from another's field a utility circumscribed by the proper necessity and that of the family of the one using or inhabiting. - They can also, with usufruct, be designated by the general name of personal servitudes.

IV. A servitude is a certain real burden inhering in an immovable thing in favor either of another fund or of a definite person. - This is passive servitude, while the right born from it is active servitude.

Division. 1. A personal servitude is that which is constituted for the utility of a definite person; and certain of these, in several laws, we have just seen to be designated by a proper name (usufruct, etc.). A real servitude, or servitude of estates, exists for the utility of an immovable thing. Thus, besides the personal servitude of use, various uses of an immovable thing can be constituted for the utility of another fund (or of its proprietor), and this by law or agreement. Individual uses of this sort will be a certain ratio of real servitude. In a real servitude there is distinguished the servient fund, on which the burden is imposed, and the dominant fund: it is a kind of quality of this latter which cannot exist separately.

3. Real servitude is called urban or rustic, according as it is constituted for the utility of an urban estate, i.e. a building, or does not inhere in buildings. This division is absent from the Italian Code.

It is continuous or non-continuous, according as it has a perpetual cause: servitude of prospect, of aqueduct; or, because it must be exercised by human action, it serves at intervals: servitude of a path.

It is apparent or non-apparent, according as it is manifested by an external sign or not.

It is affirmative, which gives an active right of doing something, e.g. of passing through another's estate; negative, which merely prohibits, e.g. lest another build higher. Observe that a servitude cannot consist in doing, i.e. a servitude obliges no one to a positive act, but merely to tolerating or not doing.

The distinctions made must be attended to in the modes of acquiring, exercising, and extinguishing servitudes.

Legal servitudes are imposed by the law itself so that the right of property, especially among neighbors, may be prudently ordered.

V. In certain laws there is acknowledged, as a distinct right in the thing of another, superficies, by which someone has dominion either of all things (complete superficies), or at least of certain things (incomplete superficies), which are built or planted on another's fund.

In Belgium the right is ruled by the special law of January 10, 1821, which circumscribes the right by fifty years. Concerning that special right the Codes of the Argentine republic, France, and Italy are silent, although the French Code, arts. 552, 553, 661, and Italian Code, arts. 140, 448, 562, do not omit to treat of the dominion of things which exist below the soil or on the surface. That right then gives place to various doubts and controversies, concerning which jurists must be approached. - Concerning superficies the Code of Germany treats in arts. 1012-1027.

VI. Emphyteusis is a right in another's thing, by which someone can fully enjoy that thing, under this law, that he pay something (money or other species) to the owner annually, at least in acknowledgment of dominion. What must be paid is called the canon.

In Italian law, art. 1556, the obligation of improving the fund is placed in the description of emphyteusis, although, with the exception of a few dispositions, arts. 1562, 1563, 1564, full liberty of agreeing concerning mutual rights is conceded. In German law, under the name Erbpacht, as a right of certain States, it is named and admitted by art. 63 of the introductory law of the Code. Certain laws, like the Code of Holland and of Italy, admit that it be constituted in perpetuity; but the law of Italy makes that perpetual right essentially redeemable, once the capital which corresponds to the canon has been paid. In Belgium, by force of the law of January 10, 1824, its minimum time is 27 years, its maximum 99 years. Nor do the laws of the U.S.A. permit a perpetual lease of land; but they define the maximum time in various ways.

The Austrian Code, arts. 1122 ff., distinguishes hereditary lease-hire, for a just price; emphyteusis, for which a canon, far below a just price, is paid; and ground-rent, which is paid by him who enjoys by hereditary title the surface to the owner of the fund who at the same time enjoys those things which are below the soil. Concerning that right several Codes, e.g. that of France, are silent, but the law of June 25, 1902 acknowledges emphyteusis as a right in a thing, and assigns to it a minimum time of 18 years and a maximum of 99 years.

A fief, insofar as it still exists in England and Germany, designates a real, perpetual, and hereditary right in another's fruitful thing, with the added obligation of the feudatary (or vassal) of exhibiting homage and fidelity to the direct lord. By art. 59 of the introductory law of the Code of Germany, the laws of the States concerning fiefs are confirmed.

VII. On accessory rights. 1. General matters. Certain rights exist merely for strengthening the execution of a principal obligation, so that with this they fall: "the accessory follows the principal."

Every debtor obligates his patrimony, i.e. the universality of movable or immovable things of which it consists or will consist. But this obligation impedes no alienation, confers no right in a thing, and offers the same advantage to all creditors.

Nor must special things be said concerning the faculty which the law sometimes concedes of retaining certain things of another until he has satisfied certain debts connected with that thing.

But certain things must be indicated concerning pledge and antichresis, privilege (of exacting), and hypothec.

2. On pledge and hypothec. Pledge designates both the special right which falls to the creditor in the thing pledged, and the very object of that right, and the contract by which it is constituted. But the special right looks to this, that the creditor obtain possession of the thing, which the Code of Germany calls indirect, and then, either by sale or by acquisition of the thing, satisfy himself before other creditors.

By pledge properly so called, the thing is handed over to be possessed by the creditor formally or equivalently. Wherefore, of itself it is not constituted except in movable things and in titles (bearer titles) which represent rights.

Thus it differs from hypothec, by which name we understand the right in another's immovable thing, by which this thing, for the thing principally owed, is specially obligated to the creditor, so that he may be satisfied before others from the price of the thing. Even when the possessor has been changed, the obligated thing remains.

Moreover, a threefold hypothec is distinguished, according to its proximate source, which is law in legal hypothec, decree of the judge in judicial hypothec, agreement in conventional hypothec. Nevertheless, not all laws admit judicial hypothec as formally such.

Concerning conventional hypothec these things especially must be observed: the agreement or constitution, which for the most part must be made by an authentic act or before a notary; publicity, by which care is taken that what is inscribed in the registers can be known by all whom it concerns; the time through which it is preserved: for unless after a defined number of years it is renewed, the inscription is deleted by office, and the creditor at least loses his order; the order of hypothecs, since an immovable thing can be pledged to several creditors. But he who comes first in order, or who is said to have the first hypothec, obtains what is of interest before the others; he who has the second precedes the third, and so on. Finally, in several laws a conventional hypothec must be special, insofar as the obligated goods and the obligations to whose protection they are deputed are accurately defined.

But just as the constitution of a pledge can be so conceived that the dominion itself of the thing is transferred to the creditor until he has obtained payment of the principal debt, so again nothing is opposed to this, that a thing, even movable, without delivery, be affected for the security of some obligation. This can be done, for example, of a credit inscribed in the Code of Debts of the State (grand Livre de la dette publique). And most laws today acknowledge various forms of security of this sort: then, however, they are accustomed to require the solemnity of some inscription in public registers, so that without prejudice to third parties the right can be exercised. Pledge understood in this way scarcely differs from hypothec otherwise than by its object, which is movable.

From common pledge there is also customarily distinguished pledge in a commercial thing, which is constituted with lesser solemnity (e.g. by delivery alone without accompanying writing), and confers a more expeditious right of obtaining payment.

Of itself, the creditor is prohibited from using and enjoying the thing pledged. Nevertheless the contrary can be expressly or tacitly agreed upon, so that the creditor can perceive the utility and fruits first to compensate expenses and interest, then to extinguish the principal debt.

The laws which define the mode by which the creditor can sell or acquire for himself the pledge, and which prohibit certain clauses, endeavor to protect the debtor from abuses, especially those of "usurers."

N. B. Today not only on account of debt or defined obligations of private persons are pledges made and hypothecs conceded, but also several officials, public or private, who have great sums of money to administer, must give security concerning matters which can be imputed to them. This for the most part is done by depositing "titles" in a bank or by a similar pledge; sometimes also by a constituted hypothec, which is called a credit hypothec.

Various Civil Laws Concerning These Rights. 1. Latin law. By Italian law (arts. 1878-1890), French and Belgian law (arts. 2071-2084), Austrian law (arts. 451, 1368), Swiss law (art. 884 c. civ.), Dutch law (art. 1198), pledge cannot be constituted by words alone, but delivery of the thing is necessary; pledge gives the creditor a privilege by force of which, through the sentence of the judge, he either acquires the thing, once he has paid what its value exceeds beyond the debt, or obtains payment before others from the price of sale at auction ¹.

In Italian law, immovable goods, the usufruct of them, emphyteutic rights, titles of obligations of the State can be affected by hypothec (art. 1967). Everywhere today it is required that the hypothec be publicly evident. Wherefore, by Italian, Belgian, and French law it must be inscribed before the official whose name is "keeper of hypothecs." And after a certain time (before 30 years have elapsed in Italy, before 15 years in Belgium, before 10 years in France) it must be renewed.

Among several creditors who have the right of hypothec, those inscribed earlier are preferred to others. In Italian law (art. 2008), provision is made that those who present the document at the same time be placed under one number of inscription. But in Belgian and French law, they are estimated from the day of inscription, so that those who have obtained inscription on the same day are equal in time. In Canadian Q. and Dutch law they receive their order from inscription; except, in Canadian law, the hypothec by which provision is made for premiums which are owed to mutual societies of insurance against fire. The hypothec must be constituted through an authentic instrument (before a notary), and the conventional hypothec is subject to the law of "speciality," i.e. both the credit to which it gives security, and the goods which give security, must be defined individually. The possessor of the burdened fund can alienate it, but cannot make the thing worse to the prejudice of the creditors. To these belongs the right of "following" (droit de suite) the thing affected by hypothec, unless the new owner wishes, by making payment of the debt, to free it from the burden.

Spanish, Lusitanian, and Latin-American law is similar; in the law of the Argentine republic, however, attention must be given to the special law (n. 9661) which instituted agrarian pledge (prenda agraria) in machines and instruments of agriculture, in animals and movables assigned to the cultivation of fields, and also in the fruits of mines. The debtor becomes, as it were, the depositary of the thing pledged in the name of the creditor. That contract can be constituted by authentic or even private writing, but unless it is inscribed in public registers, it has no effects with respect to third parties.

By the Austrian Code pledge is used as a generic word, and pledge of a movable thing (pledge of French law) and pledge of an immovable thing or hypothec are distinguished.

2. Germanic law (arts. 1205-1257) differs scarcely from Latin law concerning pledge and antichresis, except that art. 232 enumerates various modes of giving security; because, in antichresis (Nutzungspfand) no distinction is made of movable and immovable thing. Concerning hypothec, however, these things come to be noted. First, without any relation to some principal debt, an immovable thing can be burdened with the obligation of paying, either once or also, in the manner of rent, periodically, some sum; and indeed in such a way that the written title by which the right is acknowledged belongs to the bearer: thus a predial debt or predial rent is constituted. Cf. arts. 1191-1198 and 1199-1203. That debt has been called abstract hypothec.

But, this omitted, the Code distinguishes Buchhypothek, which is our ordinary hypothec; Briefhypothek, or a hypothec which is not only inscribed in public registers (the registry), but besides must be proved by a certain written instrument, by the cession of which the right itself is yielded or transferred; finally Sicherungshypothek, by which someone makes secure in advance a credit perhaps future (arts. 1181-1190). Therefore a hypothec can be constituted in this way, so that the very sum whose payment it renders secure is not yet defined, but only the maximum beyond which the fund cannot be obligated is defined (art. 1190).

3. In English and U.S.A. law, pawn or pledge, lien, mortgage must be distinguished. Pledge, or pledge, is a contract by which a thing subject to personal dominion (personal property) is handed over to another for the security of an obligation. - Lien gives neither dominion nor possession to the creditor, but binds the thing, especially an immovable thing, to the security of the creditor's right. - Mortgage, by force of common law, transfers to the creditor himself the dominion of the thing or right until satisfaction has been made to the creditor. It can be constituted in personal or real estate (property). Constituted in personal estate it is called chattel mortgage. Delivery of the thing is not necessary. In most federated States of America, mortgage has been reduced by equity to a simple lien. Lien in an immovable thing comes very near to our hypothec.

In England, from the year 1879 there is a special law concerning Pawnbrokers (usurers) which rules loans which do not exceed ten pounds.

¹ In Italian law, akin to pledge is compulsory distraint (pignoramento) by which, at the request of the creditor, the movable thing and also the harvest of a debtor in mora are sold by public authority for extinguishing debts. But distraint confers on no creditor a privilege by which he is preferred to others. In French this is called saisie, and distraint of a harvest is called saisie-brandon.

3. On antichresis. By the name antichresis is designated a pledge whose fruits can be perceived by the creditor. Repudiated by the Austrian Code (art. 1372), which admits only the concession of use (arts. 459 and 1372), it is admitted by the German Code (art. 1213).

As pledge of an immovable thing, antichresis exists in the law of Italy (arts. 1891-1897), France, and Belgium (arts. 2071, 2085-2091), by which the creditor indeed acquires no privilege in the thing itself, but has the right of perceiving fruits, to be imputed first to interest, then to capital.

4. Privilege is a favor of law, founded in the very quality of the credit, by force of which the goods of the debtor, either all or at least certain ones, must serve for extinguishing certain debts (privileged debts) before others, even those which are protected by hypothec.

Therefore it can be general or special. Thus, in Italy, by general privilege in movable things are protected judicial expenses which redound to the common utility of creditors, funeral expenses; expenses for caring for health during the last six months of life; food, and certain fiscal credits. But a special privilege assigns the things which a traveler has brought into an inn for paying expenses made there. Cf. Cod. ital. arts. 1955-1963.

Privilege is constituted by law alone; nor is it estimated by time but by cause: whence, among the privileged, he to whom the law gives greater favor is preferred to the others; and those to whom the law gives equal favor concur equally.

Privileges of this sort occur in every law.

N. B. Except for perfect dominion, which is confused with the thing itself, all rights in a thing, just as they are a certain dismemberment of the right of property, so also are a certain servitude of one's own thing. This servitude is sometimes called by a proper name, use, usufruct, etc.; sometimes by the common name of servitude. Wherefore any right in a thing, if it lacks a proper name, can be called a servitude. Nor do all laws employ the same proper names in number.

Notions and Principle. With the number of those having the right considered, there is distinguished separated or singular dominion, i.e. of one physical or moral person ¹, and the condominium of several over an undivided thing. The common dominion of several, if it has profit or utility as an end commonly intended, pertains to society, concerning which we shall treat below under contracts; with that common intention excluded, there is mere undivided possession.

Then, with the diverse disposition of laws or agreements preserved, individuals can alone exercise juridical acts concerning their own aliquot part; but every act by which the material state of the thing is changed requires the consent of all. Since the regime of condominium is sufficiently impeded, modern laws favor it little.

Wherefore a right is generally acknowledged to individuals of petitioning for division, yet at an opportune hour or without damage to others, and with a contrary obligation induced by agreement preserved. This, however, by Latin law cannot bind the parties in perpetuity, but by one agreement can be established not beyond 5 years by the Code of France (art. 815); not beyond 10 by the civil Code of Switzerland (616-651), of Italy (673-684); not beyond life by the Code of Austria (831, 832). By one agreement, I say: for when the time has elapsed it can be renewed. (The numbers thus appended to laws are articles of the Codes.)

In Italian law the consent of all is not required for establishing various things concerning a common thing, but the assent of those who possess the greatest part of the common thing suffices.

For a grave cause, the judge can, notwithstanding an agreement, permit division.

The Code of Germany does not reject an agreement of perpetual community, but permits it to be rescinded for a grave cause.

Those things which we have said thus far must not be applied to certain accessory communities, such as walls common between two buildings or gardens, or those which flow from the nature of the thing, as if a house is sold and possessed through various stories. Perpetual common possession of a family tomb, of the family archive, is admitted also in France. Cf. concerning Italian law Pacifici-Mazzoni, III, p. 499 ff.; concerning French law Colin and Capitant, I, p. 770 ff.

¹ For a moral person is only one subject of right. Indeed, by ancient Germanic law, several who together possessed an undivided good were not judged singular possessors of an aliquot undivided part, but all were thought to have the whole thing, as it were, after the manner of one. Cf. Duynstee, C. SS. R., Burgerlijk recht en zielzorg, n. 588.