Limited Ownership: Usufruct, Use, Servitude, Possession

369. Notion. Possession is the holding of a thing not prohibited to be possessed, with the mind of having it as one's own.

a. Holding supposes apprehension of the thing: for possession is begun by apprehension, by which someone occupies the thing, and by holding possession is continued. As to rights, their apprehension ordinarily consists in acceptance and holding consists in their exercise.

b. By the name thing is signified the object of possession, which can be not only a corporeal thing, such as money, a field, a house, but also an incorporeal thing, such as a right. In the former case there is possession properly so called; in the latter there is possession improperly so called, or quasi-possession.

c. For possession it does not suffice that someone physically apprehend and hold some thing, but it is required that he hold it with the mind of having it as his own. Therefore it is required that he apprehend the thing not only by body but also by mind or will; therefore a depositary does not properly possess the deposit.

d. For true possession a right in the thing possessed is indeed not required; for even a thief possesses, although unjustly. But it is required that the law not declare a certain thing incapable of being possessed, or a certain person incapable of possessing. Thus public things cannot be possessed by a private man, and some sacred things cannot be possessed by a layman.

e. Therefore three things are required for having possession: alpha. holding of the thing, or if the matter concerns a right, use of the right; beta. the mind of having it for oneself; gamma. permission of the law, which indeed does not approve the possession, but does not prohibit it.

370. Division. Possession is divided: a. into legitimate possession or possession of right, which is begun with a title which of itself can transfer ownership, such as donation, purchase; and into illegitimate possession or possession of fact, which lacks a title which can transfer ownership, such as possession from theft.

He who doubts whether a thing which he assumes for possession is his own or another's begins to possess it legitimately, if it is in the possession of no one and he himself has the mind of inquiring and restoring the thing to the certain owner.

b. Possession of fact is either possession of good faith, doubtful faith, or bad faith: possession of good faith is had if the possessor invincibly thinks that the thing is his own; possession of doubtful faith is had if the possessor, either at the beginning or in the course of possession, doubts whether the thing is his own; possession of bad faith is had if the possessor knows that the thing which he possesses is another's.

He who doubts whether a thing which another possesses is his own or another's possesses illegitimately if he assumes it for possession against the will of the other. The same must be said concerning him who doubts whether a thing which another possesses is this one's or a third person's.

371. Effects of possession. 1. All rights attribute certain privileges to possession, both because the very fact of possession, if it is of good faith, founds a presumption of law, namely that with possession there is also joined a right in the thing possessed, and because these privileges conduce to public tranquility and arouse the diligence of citizens in guarding their own things. These privileges, which belong to possession both from the law of nature and from civil law, are reckoned as two:

a. In an equal cause or doubt the condition of the possessor is better, that is, possession gives the right of retaining the thing possessed until it is certain, or at least established by a stronger motive, that it is another's.

Therefore no one can be despoiled without injustice of a thing which he possesses unless it is sufficiently established that another has the right of possessing it.

b. Possession of good faith begets prescription, but nevertheless it does not transfer ownership of the thing except by the help of prescription.

2. Possession does not confer these privileges unless it is certain and legitimate; doubtful possession or possession of bad faith has no value.

There are various principles or axioms suitable for the purpose of forming one’s conscience when in doubt. They are for the most part taken from canon law, but they are also used in questions belonging to the forum of conscience.

In dubio melior est conditio possidentis—Possession is properly a physical fact, and consists in the corporal detention of a thing. In a wider sense rights are objects of possession, as a right of way, or the right to one’s liberty; so that if one’s liberty has hitherto been unrestricted, it is said to be in possession. The very fact of possession gives a right to continue in possession unless there is an adverse and stronger claim. There is also in the possessor a presumption of title to possess, for all men are jealous of their rights, and usually do not allow their property or rights to be held by others as owners. If, then, I am in possession of some object or right, and a doubt supervenes as to whether I am entitled to possession in the case or not, the question may be solved in the forum of conscience as it would be in a court of law, by applying the maxim —In dubio melior est conditio possidentis.¹

If, then, a doubt arises as to whether I have said my breviary, I must say it, for the law is in possession; if on the contrary a doubt comes into my mind as to whether I have taken food after midnight, I may go to Holy Communion, because my right to receive is in possession.

¹ Cf. Irish Eccles. Record, Sept. 1899.

One who strictly doubts about the cessation or fulfillment of a law, in other words, one who holds it as equally or almost equally probable that the law has not ceased or has not been fulfilled, is held to observe it.

It is said "one who strictly doubts," or "one who holds it as equally or almost equally probable"; since it is commonly admitted that the obligation of observing the law is absent in broad doubt about the cessation or fulfillment of a law, in other words, where it is more probable that the law has ceased or has been fulfilled. Besides, in doubt about the fulfillment of a law several principles are at hand, in view of which the fact of fulfillment can commonly be held as more probable. Principles of this sort are: What regularly, what ordinarily happens, is judged to have happened; from things commonly occurring a prudent presumption is made.¹ Likewise: In doubt every fact is presumed to have been done rightly;² or: In doubt one must stand for the validity of the act³ (St. Alphonsus, I, 26). With these points noted, the thesis is proved:

I. From the authority of St. Alphonsus. Although I would not wish to deny that this thesis is not to be valued as much as the first and third theses are to be valued, nevertheless it cannot be denied that it extends very widely and pertains to the whole system, so that what we said above (nn. 214, 225) about the authority of St. Alphonsus is also to be applied to this thesis. But the holy Doctor, who had previously adhered to the more benign opinion, after considering the matter better, revoked it (I, 29) and defended the stricter opinion (I, 26-34); which in any case is now commonly admitted even by the adversaries themselves.⁴

II. From the authority of theologians. Our opinion was formerly commonly admitted, even by those authors who adhered to Probabilism. The witnesses of this assertion are Suarez⁵ and Laymann.⁶ The fact that afterward several withdrew from this opinion does not prevent the consensus of ancient theologians from supplying us some argument.

III. From reason. First, in strict doubt the condition of the possessor is better; or, to abstain from the ambiguous word "possessor," in strict doubt the condition of that which is prior seems to be better than the condition of that which is posterior.⁷ But the law itself is prior to its cessation and fulfillment. Therefore, in strict doubt about the cessation or fulfillment of a law, the condition of the law seems to be better (St. Alphonsus, I, 29-34).

The major is established by these arguments: first, our principle of its own accord pleases reason more than the contrary principle, which would have to be admitted by the adversaries, namely: in strict doubt the condition of that which is prior seems to be worse than the condition of that which is posterior. This spontaneous inclination of reason indeed seems to supply an argument for our doctrine. Second, a principle which favors stability, or a stable manner of acting, seems to be preferred to a principle which fosters mutability, or a changeable manner of acting. But our principle favors stability, while the contrary favors mutability. Third, there is added that the principle stated by us has force for the external forum. Why, precisely, would the contrary principle have to be admitted for the internal forum?

Then our thesis is proved from the fact that the thesis of the Probabilists is at least doubtful: namely, a law which has doubtfully ceased or has doubtfully been fulfilled obliges unless it is demonstrated, or certain, that it does not oblige. But no one who hears prudently will contend that that is certain.

The major is evinced from a principle admitted by all: in a practical doubt not entirely solved, the safer part is to be followed.

To prove the minor, it will be enough to advert to these things: first, the arguments of the adversaries, as we shall soon see, either involve a begging of the question, or are such that they themselves require further proof. Second, add that always very many, and those grave and distinguished, theologians supported the contrary opinion. Third, finally, our arguments seem to be of such a kind that not even the adversaries will deny them all probability. Once all these things have been attended to and well weighed, no one will have affirmed that the opinion of the Probabilists has been placed beyond doubt.

¹ Suppose someone, while praying Sext, doubts whether he has said Terce. In the case he can commonly hold it as more probable that Terce has been said, since from things commonly occurring a prudent presumption is made. But it commonly happens that Sext is not begun before Terce has been said.

² Suppose someone doubts whether he has confessed with true sorrow. In the case he can commonly hold it as more probable that true sorrow was present.

³ Yet this principle, which canonists and moralists commonly use, is very ambiguous; namely, it has force only insofar as it rests on another principle of presumption. But this happens when there is doubt about the manner in which an act has been placed; in which case it can be held as more probable that all those things required for validity were done. It is otherwise if the manner in which the act was placed is known, but it is disputed whether the act so placed is valid.

⁴ Cf. De Minusprobabilismo, pp. 133-139, where those things which some formerly objected are refuted.

⁵ Suarez, treating the question whether one who has doubtfully fulfilled an oath is still held to fulfill it, responds: "It is beyond controversy that he is held," because "in doubt the condition of the possessor is better" (De Relig., tr. 5, bk. 2, cap. 33, n. 7); this solution is a mere application of our thesis to a particular case.

⁶ Laymann speaks thus: "But the latter part of the assertion is common" (Theol. mor., bk. 1, tr. 1, c. 5, § 3, n. 31), namely, that one who doubts whether he has fulfilled a vow or promise, or satisfied any other debt whatsoever, is held by the obligation.

⁷ In this sense St. Alphonsus and others take the principle of possession, insofar as it regards matter distinct from the matter of justice; but since others explain it otherwise, we have abstained from that designation, mindful of this: "It belongs to the wise man not to care about names" (St. Thomas, In II Sent., dist. 3, q. 1). With these points noted, those things which several theologians object concerning the nature of the principle of possession do not harm our argument.

I. A man does not have direct ownership, but he does have useful ownership, of those goods which pertain to his substance and integrity, such as life, members, and the faculties of the soul. The first is proved from Sacred Scripture: "See that I alone am, and there is no other God besides me: I shall kill, and I shall make live."¹ The reason is that direct ownership exists only over a thing distinct from him who has ownership. Besides, ownership imports a certain superiority with respect to the thing of which direct ownership is had. But no one is superior to himself. The latter is clear; for to what end would those goods have been granted by God, if man lacked the right of using them?

II. A man has full ownership of those internal goods which do not pertain to his substance and integrity, such as operations and habits produced by natural activity. The reason is that a man is the owner of those things which he has acquired by his own industry. The same seems to be said in some way of grace, of habits, and of supernatural acts. For it is rightly admitted that these have truly been given by God as a gift to man. There is added, as regards an adult, that "through the use of free will with the help of God, man disposes himself to such goods, and therefore they are effects of cooperating grace, because man obtains them from God by cooperating with His help for receiving them."²

III. A man has full ownership of reputation and honor. The reason is that a man has acquired these by his own labor. Besides, "if a man were not owner of his own reputation, he could not condone or remit restitution of it; for no one can remit what is not his own. But nevertheless this is often done, and is done laudably."³

One who without proportionate cause neglects his reputation is guilty of the sin of prodigality, just as one who without cause dissipates riches.⁴ Hence Sacred Scripture says: "Have care for a good name; for this will remain to you more than a thousand precious and great treasures. The number of days of a good life is limited; but a good name will remain forever."⁵ This warning must especially be attended to if our reputation is necessary to our neighbors.

"Our reputation," says Lessius,⁶ "can be necessary to our neighbors in three ways. First, when the reputation of a neighbor so depends on our reputation that from our disgrace his disgrace follows; as from the disgrace of a monk there follows a certain disgrace of the monastery. Second, when our reputation is necessary so that we may render to a neighbor an office due to him by strict right; as the reputation of a public person, a Bishop, a Pastor, an Abbot, is necessary so that he may govern subjects well; and in these two events, in the judgment of many, one who disgraces himself sins against justice: not because precisely he deprives himself of reputation, but because as a consequence he harms his neighbor, either by bringing disgrace upon him, or by rendering himself unfit to perform the due office for him. Third, when we are bound to benefit a neighbor not from office but only from charity, and through disgrace we are rendered unfit for this, then one who disgraces himself sins only against charity; just as he sins against charity who throws away money by which he could have benefited the poor."

IV. A man can have full ownership of external goods or goods of fortune, provided they are such that they can be the object of ownership. The truth of the proposition is clear both from Sacred Scripture⁷ and from those things which we said concerning the legitimacy and necessity of private ownership.

I said, however: provided they are such that they can be the object of ownership. In order that this can have place, it is required: 1. that the thing can be subjected to man or occupied by him; hence, for example, the stars are excluded; 2. that the thing can be useful; nevertheless, observe that sometimes a thing which seems useless can be for some use; 3. that the thing is not of inexhaustible use, that is, such that all can use it without harm to anyone, of which sort are, for example, air and daylight.

To the question to what extent the sea can be the object of ownership, Waffelaert responds thus: "If there is question of the vast ocean, then it can scarcely be guarded; then certainly the use, which is major fishing and navigation, is inexhaustible. But if there is question of the parts of the sea washing the land, of gulfs and straits, the use, which is fishing, the finding of pearls and other precious things, the collecting of shells, and so forth, is not inexhaustible, especially since things of this sort and certain kinds of fish are frequently found in determinate and not very spacious places. Besides, provision would not be sufficiently made for the security of a maritime nation if, without any precaution, it were lawful for anyone to bring armed ships to the shore."⁸

V. A man cannot have direct ownership of those goods which pertain to the substance and integrity of the members of another; nevertheless he can acquire useful ownership of them. It is said:

1. A man cannot have direct ownership of those goods which pertain to the substance and integrity of the members of another. This is clear from the fact that ownership imports that the thing of which someone is owner is referred to him as to an end. But it is repugnant that one man be referred to another as to an end.

2. Nevertheless he can have useful ownership of these. This is clear from Sacred Scripture,⁹ and from those things which we shall say concerning the different titles on which the aforesaid ownership can rest. Moreover, the said ownership or servitude, by which someone is bound to furnish all his works to another for food and other things necessary for life, can be introduced:

a) By free agreement; for since man has useful ownership of himself, he can freely transfer it, and indeed entirely, to another.

b) By just condemnation, or as a penalty for a delict; as is clear.

c) By right of war, and by birth from slaves; these, however, with every fault set aside, even original fault, cannot be just titles. "There is," says St. Thomas, "a twofold subjection, one servile, according to which the one presiding uses the subject for his own utility; and such subjection was introduced after sin" (I, q. 92, a. 1, ad 2; I, q. 96, a. 4).

Corollary. Servitude which is extended so far that a man, as if an irrational animal with respect to his works, can be bought and sold, is altogether unbecoming to man, and therefore is judged to be abolished by law.¹⁰

VI. An author has a right in the fruit of his mind, that is, in literary, musical, or other works of the liberal arts; an inventor has a right in the art or industry invented, according as follows:

1. When the work has not yet been published by the author, he certainly has the right that another not seize and publish the manuscript, or steal the secret, for example of a known art. One who has violated that right is bound to restitution of the damage thence following; and therefore, if the author would have published the work, he must compensate the damage hoped for from publication. The same must be said of one who uses knowledge to which he has come by fraud or from a communication made by the author under secrecy.

2. When the work has been published in some measure, for example a writing printed for private use, lectures given, sermons delivered, the author seems to have the right that another not publish it. The reason is that from the circumstances themselves and from common estimation, the aforesaid things have not yet been made simply of public right, but he has retained them as his own. This posited, another also seems to lack the right of making them of public right. Nevertheless custom permits some publication, or even an entire publication, of sermons in newspapers.

3. When the work has been plainly published, one must speak thus:

a) With natural law considered, it is disputed whether the author has the right that another not further disseminate the work, for example by reprinting it.¹¹ Moreover, the opinion which is theoretically sufficiently probable and therefore safe in practice denies this, both because a work published by the author by that very fact becomes of public right, or destined for common use, and because the buyer of the work acquires ownership of it, and therefore can use it according to his will.

Finally, for the same reason the doctrine handed down seems also to be applied to a law which grants someone the right or privilege of using a commercial trademark exclusively.

Corollary I. If someone, within the limits determined by civil law, inflicts some detriment on an author or seller, he does not sin against justice; for by the very fact that civil law determines the right of authors, beyond these limits it takes away their right, if perhaps it exists, by force of high ownership. The same holds concerning international agreements.

Corollary II. The custom even of God-fearing persons commonly permits many things against the right of authors and inventors, namely: 1. the right of buying what has been publicly displayed, even though contrary to law; 2. the right of representing scenic and musical works in circles; 3. the right of making for private use some work for the manufacture of which the author's license is required, because the damage which the inventor suffers, if he suffers any, is very slight, since often it would not have been bought. From the said custom, laws which prohibit the things set forth rather seem to be merely penal.

Objection 1. The author has the right of receiving a fitting reward from the work.

Resp. The assertion is very ambiguous and must be distinguished: the author has the right that others buy the work and thus procure a reward for him, I deny; he has the right that others, for example by reprinting the work, not be the cause why less profit comes to the author, this must be proved; indeed, on account of the arguments adduced, it seems it must be denied.

Objection 2. Authors, at least today, by exposing their works for sale, add the tacit condition that others not reproduce the work by their own authority; in other words, authors sell the spiritual use, but not the commercial use of the work.

Resp. Besides the fact that that condition is asserted gratuitously, it seems one must deny that a condition so vague or indeterminate is validly attached.

Concerning the right of religious in manuscripts and so forth, we shall speak in the treatise on the duties of religious.

b) With civil law considered, which, as order and natural equity demand, has commonly determined this matter, an author, that is, a writer or inventor, seems to have a strict right to those things which the law establishes for his advantage; for legislators in this case expressly declare that they grant the author an exclusive right. Unless the nature of the thing or the context of the law suggests something else, this word seems to be understood of a full or strict right. Nor again should it be objected that the legislator does not care about obligation in conscience; for the explicit or implicit intention of granting a right suffices. Hence a transgressor of the law is bound to restitution of damage even before the sentence of a judge; but penalties established against transgressors do not oblige except after the sentence of a judge.

Some,¹² indeed, do not apply the doctrine handed down to inventors to whom patents (brevets) have been granted, because they are accustomed to increase too much the natural price of the invented thing, which is against the common good. But the fact that they act thus does not seem to impede Authority from being able to grant them a right in the thing invented and published; and that in fact it has granted them a right is to be deduced from the fact that, with the terms of the law considered, it equates them with writers and so forth.

¹ Deut. 32:39.

² Salmanticenses, tract XII, chapter 2, point 5, n. 46.

³ Billuart, IV, dissertation 3, article 2.

⁴ Billuart, loc. cit.

⁵ Ecclus. 41:15 ff.

⁶ Book 2, chapter IV, doubt XI, n. 59.

⁷ Gen. 1:28, 29; 9:1, 3; Ps. 8:7-9.

⁸ De Iustitia, I, n. 88.

⁹ Exod. chapter 21; Lev. chapter 25; Deut. chapters 20-21; cf. Eph. 6:5.

¹⁰ Cf. Leo XIII, letter In plurimis, May 5, 1888.

¹¹ Cf. Lehmkuhl, I, 904; Goepfert (II, 68) and Sweens (n. 39), who affirm; Waffelaert (I, 171) and Vermeersch (n. 248), who deny.

¹² Vermeersch, Quaestiones de Iustitia, n. 250.

To limited ownerships, or those more or less imperfect, there especially pertain: usufruct, use, servitude, and in some respect also possession.

I. Notion. Usufruct is the right of receiving the fruits of another's thing, with the substance of the thing preserved. In Roman Law it is called: "the right of using and enjoying another's things, with the substance of the things preserved."¹ From the notion handed down, it is clear that usufruct is not constituted in things which are consumed by first use. A right in things of this sort, for example in wine or oil, is sometimes called quasi-usufruct (St. Alphonsus, III, 487).

¹ Law 1, Digest, De Usu fructu.

II. Acquisition. Usufruct can be acquired: 1. by law, for example where the law grants parents a right in the fruits of the goods of minors; 2. by the will of the owner, who, for example by contract or testament, assigns usufruct to someone.

III. The rights and burdens both of the usufructuary and of the proprietor, what precisely they are, you should deduce from the title by which the usufruct is constituted, and from civil law.

IV. Cessation. Usufruct ceases: 1. by the lapse of the time for which it was constituted, or by fulfillment of the resolutory condition; 2. by the death of the usufructuary, or, if there is question of a moral body, by its dissolution; 3. by the fact that ownership of the thing passes to the usufructuary; 4. by renunciation by the usufructuary of his right; 5. by prescription or non-use for the time required by law; 6. by the destruction of the thing.

I. Notion. Servitude is a right consisting in this, that the owner of some estate,¹ as its owner, has some favor over the estate of another. The favor is called active servitude; the burden inhering in the estate of another is passive servitude. The estate which is considered to have the favor is called the dominant estate; the estate in which the burden inheres, the servient estate.

¹ Under the name of estate come corporeal immovable things, such as fields, pastures, houses, and so forth.

I. Notion of possession. Possession, as is drawn from what has been said, is understood here as detention of a thing, with the intention of ownership. It is said:

1. Of a thing; moreover, under the name of thing there is understood not only a thing properly so called, for example a field or house, but also the use of a thing, such as dwelling in a house or the exercise of authority.

2. Detention; by this word are comprehended physical detention, or its equivalent, if there is question of a corporeal thing; the very acts of using a thing, if there is question of the use of a thing.

3. With the intention of ownership, that is, with the intention of having the thing as one's own.

II. Division of possession. Possession, not indeed by reason of itself but by reason of the mind with which it is possessed, is divided into possession of good, bad, and doubtful faith.

1. Good faith is had when the possessor judges that he licitly retains the thing; in other words, it is had: 1. when the possessor is conscious that the thing is his own; 2. when the possessor, although he doubts whether the thing is his own, nevertheless detains it without fault or, if there is question of a grave thing, at least without grave fault. These things will be explained more fully later.

2. Bad faith is had when the possessor judges that he illicitly retains the thing; in other words, it is had: 1. when the possessor is conscious that the thing is another's; 2. when the possessor doubts whether the thing is his own and detains it with fault, if there is question of a light thing, or with grave fault, if there is question of a grave thing.

3. Doubtful faith, strictly speaking, is not had, because one who doubts whether the thing possessed is his own necessarily detains it either without fault or with fault; in that case he becomes of good or bad faith, as the case bears according to the things explained above. But what is lawful for one doubting whether the thing possessed is his own, we shall explain later. I said strictly speaking; but doubtful faith is customarily taken for the doubt of a possessor whether the thing possessed by him is his own. What is lawful for one thus doubting, however, we shall say at once.

III. Effects of possession. 1. Possession in good faith, and in some way also in doubtful faith, creates some presumption of an existing true right.

2. Possession, if doubt about the right in the thing possessed persists after truth has been investigated, brings with it the right of continuing the use of the thing, or even, if there is question of a thing which can be consumed, of consuming it, if: 1. the possession was begun in good faith; 2. the possession is such as is required by a just law; 3. the judge has not justly determined otherwise. The reason is sought both from the fact that the common good requires this; and, as regards ecclesiastical matter, from rule 50 in Sexto: in doubt the condition of the possessor is better; and, as regards civil matter, from civil law. What the law is, if possession began in doubtful or bad faith, you should draw from what is to be said later about the possessor in doubtful or bad faith.

Three Kinds of Unlawful Possessors.—The second root of restitution mentioned above (1762) is unjust possession, which includes the acceptance or the retention of another person’s goods against the latter’s will. There are three kinds of unlawful possessors:

(a) the possessor in good faith, who is one that has been invincibly ignorant of the unlawfulness of his possession, but now learns his error (e.g., a buyer who discovers that the horse he purchased did not belong to the seller but was stolen property);

(b) the possessor in doubtful faith, who is one that has serious reasons for fearing his possession is unlawful (e.g., the buyer of a horse learns that the seller is known to have sold some stolen property, or that the price he charged for the horse was remarkably small);

(c) the possessor in bad faith, who is one that knows his possession is unjust (e.g., a buyer who purchases a horse which he knew had been stolen by the seller).

Obligations of the Possessor in Good Faith in Reference to the Property Itself.—(a) If the property is still in his keeping, he is generally obliged to return it to the owner, for a thing calls for its owner. An exception would be the case in which the possessor can not return the property to the owner without a greater loss to his own property.

(b) If the property has perished, the possessor is generally obliged or not to restitution according as he has been enriched or not by the property; for one person should not be enriched at the expense of another, but property perishes to its owner.

(c) If the property is in possession of a third party to whom the possessor transferred it, he is generally obliged or not to restitution to the third party, on the latter’s dispossession, according as he has been enriched or not by the third party’s goods; for if he received nothing for the goods, he is clearly bound to nothing, but if he received payment, he must indemnify the buyer who is evicted for lack of title.

Note: An exception, and a true and illogical exception of probabilism, is the limitation which some probabilists and equiprobabilists add to probabilism from the principle of possession: In doubt the condition of the possessor is better. Therefore, they say, a doubtful law, in doubt about the existence of the law, does not indeed oblige, because liberty possesses. But a doubtful law in doubt about its cessation obliges, because the law possesses. Hence if it is probable that you did not emit a vow, you are not bound by the vow. If you certainly emitted a vow, and it is probable that you satisfied it, you are still bound to satisfaction.

But thus to admit probabilism halfway concerning the existence of the law, and not concerning the cessation of the law, is to admit the principles and deny the conclusions. If a doubtful law does not oblige, precisely because it is doubtful, whenever it is doubtful it will not oblige. Now the law is as doubtful in doubt about its existence, namely about its first existence, as it is doubtful in doubt about its cessation; for if its cessation is probable, by that very fact the existence itself of the law becomes doubtful. But the law obliging is not a law which existed, but one which exists; nor is it the law which exists in the abstract, but one which binds us in the present by its certain obligation.

But if a probable opinion is had concerning the cessation of the law, however that may be understood, its obligation becomes doubtful, and its existence likewise becomes doubtful; namely again, not the very existence itself of the law in the abstract, but its force of obliging in the concrete, in the particular case, here and now. L. 1. 1. n. 63. 78. And thus, although it is certain that a vow was emitted and at some time existed, if you probably satisfied it, that certain vow, insofar as it once existed, becomes doubtful insofar as it binds you here and now; and that saying has force: A doubtful law does not oblige.

Possession indeed constitutes a prevailing right insofar as he who possesses is shown by possession itself, or at least is presumed, to be the owner of the thing which he possesses. But how can that be either demonstrated or reasonably presumed when the opposite is established by true or grave probability? For then it is established by true and grave probability that the possession is not legitimate, which alone can constitute a prevailing right. For if the fact alone of possession, without legitimate title, at least reasonably presumed, constituted that prevailing right, then all thieves and robbers could retain another's property by the prevailing right of possession. Cf. 157. 4; Troplong, Della Prescrizione c. 2 del Possesso a. 2228; D'Annib. ed. 4. p. 1. n. 260. 268.

The material fact itself of possession by no means constitutes a prevailing right in the internal forum, as regards the very right of dominion and ownership of the thing, but only as regards proof in the external forum, which must be instituted by the plaintiff against the possessor, because of the aforesaid presumption of dominion. But presumption yields to truth. Hence if someone has possessed in bad faith, even for a very long time, he must restore the thing even spontaneously and without proof or petition by the plaintiff. D'Annibale himself, who ed. 4. p. 1. n. 264 seq. follows the rule of possession, asserts n. 256 note 5: "Justice forbids giving damage to him who is in certain possession of his right....

I said, who is in certain possession of his right; for if the right of another is uncertain, either the condition of the possessor will be better, or at least because no certain right of another is violated, there will be no obligation of restitution." Behold how D'Annib. himself requires certain and legitimate possession, so that it really constitutes a prevailing right. And the same D'Annib. l. c. n. 259 note 18 also asserts: "Namely, certainty against true probability is not given." How therefore will the obligation of the law be certain, if it is probable that that obligation already ceased long ago?

See also ibid. n. 169. 181. 203. - Cf. 143. S. Alph. l. 3. n. 112 par. Secundo says: "When it is probable that the obligation of the law never began, or that it has been abolished, then the presumption in favor of the law ceases, and liberty possesses." Behold, the limitation of probabilism through the principle of possession is finished; and from S. D. also, it has no value except from presumption. S. D. joins indifferently the two cases, that the law never began, or that it has been abolished, and when each is probable, from S. D. the obligation of the law is not present. - Likewise n. 290 he says that probable custom suffices for excusing from the law. Behold again, no account is taken by S. D. of possession of the law.

And then, distinguishing well altogether between doubt and probability, he says: "that in doubt about custom the precept possesses, whence a dispensation must be sought; otherwise, if it is probable that custom is present." Cf. L. 1. 3. n. 325, par. Infirmi, n. 483, l. 4. n. 47. Besides, D'Annibale asserts the law of possession in a threefold case, namely in doubt 1. whether it receives a restrictive interpretation, 2. whether it is just, 3. whether it has ceased. P. 1. n. 262. And in the preceding n. 261 note 30 and n. 263 note 1, he affirms that S. Alphonsus perpetually used this rule of possession. - Now D'Annibale himself, cited n. 262 note 35, says: "except the 2nd case, in which all agree, Cf. here 157, in the others even those who seem to profess it depart from our rule."

And among these he expressly cites and reports only S. Alphonsus! And while the praised author notes this against Probabilism, that it must use exceptions which his rule of possession does not need, l. c. n. 266, he then candidly admits that his rule is not perpetual, and that it fails in several cases which he enumerates, l. c. n. 269 note 30. - But the alleged exceptions of Probabilism, namely when the question concerns not only the honorableness of an action, but an end to be obtained absolutely and the objective truth of the thing, l. c. n. 266, 256 note 5, are not really exceptions.

Cf. here 120. What he likewise says, l. c. n. 267, that the probabilist is forced to give contradictory responses, is in no way true. Cf. here 128. And it is certainly surprising that the learned theologian found a contradiction, cited n. 267, as regards that same case in which he himself had expressly affirmed a little before, namely n. 263, that it is licit to follow each of two contrary probable opinions. - Finally he asserts n. 264 that that rule of possession enjoys a better right, and n. 269 that it is better than the others not only as to the truth of the thing, but also as to practice; but in the following n. 270, immediately afterward, he affirms that it is licit to follow opinions truly and gravely probable; and n. 263, after he has set forth the various systems and also established his own rule n. 262, he says, let it be licit for each one to choose what pleases him more.

Perhaps to avert contradiction it can be said that the illustrious D'Annibale regarded that rule of possession not for the case of true probability, but for the case of doubt, which he seems sufficiently to suggest n. 269; and thus it is altogether true that theologians most commonly teach that rule, n. 268, and in this sense we also admit it and diligently explain it. Cf. here 143 seq. And certainly that rule is stated in doubt.

In doubt the condition of the possessor is better. C. 6 de Praescript. This axiom in the external forum, both ecclesiastical and civil, has been received as a certain rule of judgments. For it is to be presumed that he who possesses a thing possesses it by right, unless the contrary is clear. The same certainly has force in the internal forum of conscience. For certain and legitimate possession produces moral certainty concerning the dominion of the thing, L. 1. 1. n. 35, l. 4. 210, l. 6. n. 905. 927; and the reason is that, given human customs, no one is, morally speaking, negligent; indeed on the contrary all are diligent and very diligent in guarding their own things. Moreover, where one does not proceed from a false supposition, the right of the external and internal forum is the same; for each forum is founded on the principles of natural justice and equity. Hence theologians commonly admit the aforesaid rule for the forum of conscience. L. 1. 1. n. 26. Now some say that this axiom has force only in the matter of justice. "Yet I," says S. Alph. l. c., "do not know how it can be denied in all matters." And this certainly is by far the more common and truer opinion. The reason for this extension also to other matters, with due proportion, is the same as in the matter of justice. For no one can justly be despoiled without sufficient reason of a good which is his own. But man naturally, and therefore certainly and altogether legitimately, possesses his liberty, which certainly is some good and right of his own. Therefore this good also pertains to justice, and he who unjustly either takes it away or weakens it violates justice. Without injustice a free man cannot be subjected to servitude. But there can be no doubt that in doubtful laws liberty is always in prior possession of itself. For upon whom is law imposed except a free man? Whence it is that what is licit is not whatever the law permits, but what the law does not prohibit, L. 28. § 2 Ex quib. caus. maior., and therefore this prohibition must be manifestly proved, C. 23 de Verb. signif. - Suarez tr. 3. d. 12. s. 5. n. 8; Lugo De Iust. et Iur. d. 17. n. 87, d. 23. n. 110. In doubt: that is, in negative doubt, and the reason of the axiom is then clear, because possession stands for the possessor, and therefore moral certainty; for the petitioner no prudent reason is had. Cf. Lugo De Iust. et Iur. 23. n. 110. But in positive doubt, or probability, if probability is present on each side, so that on one side possession and probability of right stand, and on the other only equal or almost equal contrary probability of right, the condition of the possessor is again better, as is clear of itself. But if on one side indeed possession stands, but on the other contrary probability of right; or on one side possession and at the same time probability of right, and on the other far greater contrary probability of right, then certainly the condition of the possessor is not better, but doubtful. Indeed the first opinion holds that the judge is bound to adjudge the thing to the plaintiff, because the right of possession prevails in an equal cause, but not in a less probable cause. For Rule 65 of the Law in the Sixth has it thus: "In equal fault, or cause, the condition of the possessor is stronger"; and in L. 128 ff. de div. Reg. Iuris it is said: "In an equal cause the possessor ought to be held stronger." But the second opinion holds that the condition of the possessor is still better, and that the judge cannot despoil him of possession. The reason is that "it is certain that legitimate possession gives to each a certain right of retaining the thing, until the right of another is not established, as they say most commonly... a certain right, which cannot be overcome except by the certain right of another through certain convincing reasons." For possession is defined: the right of insisting in a thing not prohibited to be possessed. L. 1. 1. n. 36; Ithur. Cas. 1. n. 2. Cf. L. 1. 3. n. 547. 562. 711, etc.

Therefore the possession about which the present saying speaks is certain and legitimate possession. It is called certain, that is, that the fact of possession is certain; legitimate, that is, begun and continued in good faith, and likewise begun and continued by a just title, at least apparent, or at least thought to exist, or presumed, such as, for example, donation, purchase, inheritance, and similar things, through which ownership of some thing is usually acquired. Therefore if possession is doubtful, or begun with doubtful faith, or by a doubtful title, it by itself does not exhibit to the possessor a special prerogative and presumption against which no contrary probability has force. L. 1. 1. n. 36. 47, l. 4. n. 210.

Probability of right, which can be only on one side or on each side, is the probability of a real just title, or of one actually existing, from which true and real dominion and ownership of the thing arise. For for legitimate possession, about which the axiom speaks, it suffices that the just title at least appears, because, for example, a donation or purchase intervened from him who was thought to be owner, although he was not; or at least was thought to exist, because the action signified by the title is thought to have intervened, although it did not intervene, as happens when someone thinks that the thing was given to him or bought by him, and nevertheless this was not done; or at least presumed, because, for example, because of length of time in peaceful possession or other circumstances, it is prudently thought that some title intervened, although the possessor cannot allege any determinate one. Therefore this probability of right, as is clear, is altogether outside possession itself, which only gives the right of insisting in the thing, or of holding it, although perhaps its dominion and ownership does not belong to you, since a just title was not really present. Now the probability of a real just title, or of one actually existing, can be in two ways: 1. Probability of the justice of the title for beginning or continuing possession and ownership of the thing, for example, a testament lacking legal formalities. 2. Probability of the reality or existence of a just title for the same effect, for example, of donation, when it is also probable that the thing was taken by theft. The former probability is called of right; the latter is called of fact. Where this latter is treated, "when the fact is not plainly proved, it is not probable that the accused can be condemned, since laws never permit the accused to be condemned unless the crime or debt is fully proved; but it is not proved fully and sufficiently for a sentence when, although two or three witnesses testify, nevertheless other witnesses testify the contrary; for through these the testimony of the former is destroyed or diminished, and therefore the sufficient proof required for full proof and condemnation does not remain." Lugo De Iust. et Iure d. 16. n. 100. Cf. also d. 23. n. 100, d. 16. n. 34. 96. 99.

Of how many kinds is vain observance? - There are four species of vain observance, which are distinguished only materially by reason of effects. 1. If certain useless things are observed for acquiring an infusion of knowledge, without other study, and it is called the notory art. It differs from divination because the latter directly regards speculative knowledge; the former directly regards an infusion of knowledge for one's own convenience, but indirectly the knowledge itself. Thus they sin who take a prepared potion, or employ a certain prayer, so that they may immediately become learned. 2. If useless things are observed for obtaining health, and it is called the observance of healths. Thus they sin who use unknown names and certain empty ceremonies for driving away animals; or who carry amulets, wrappings, or something similar for repelling diseases. L. 18; S. Th. 2. 2, q. 178, a. 2. 3. If from consideration of some trifling event it is determined what will be future, and someone thence regulates his actions, and it is called the observance of events. It differs from divination, both because observations of this sort are without any reason and art, whence they are more vain and superstitious, and because they look to directing one's own acts; but divination rather intends speculative knowledge of hidden things. Thus he would sin who refused to sit with thirteen at table as though this were a sign of death, although this for the most part can be excused, since no true faith is given to this matter, but there is a certain simple and empty fear. 4. If the observance concerns bodies to be variously changed and other wondrous or harmful effects to be produced, and it is called magic or malefice. Malefice contains a threefold moral malice against religion, charity, and justice. One malefice is amatory, or a philter; another is poisonous. The former is for exciting carnal love or hatred toward some person, the demon moving the phantasy of the man or the humors of the body, yet doing nothing upon the will; whence it does not induce necessarily to committing sin. But the latter is for inflicting harm upon someone, whether in his goods or in his health.

Job 1:12; S. Th. 2. 2, q. 178, a. 2. But here it must be noted that possession consists in this, that a demon in some way is united to a human body, and works extraordinary things in it and through it. But if the demon does not seem to reside in the body of a man, but only works externally, vexing it in various ways, then there is obsession. It must be noted besides that "power over demons has not been committed to man, so that he could licitly use them for whatever he wished." S. Th. 2. 2, q. 96, a. 2 ad 3. Struggl 28, 41, 42, 43; Suarez, cc. 15, 16; L. 15, 23; S. Th., Quodl. 4, q. 9, a. 16; 2. 2, q. 96.

What is paternal power? - Paternal power is the complex of rights of parents over children, and it arises from a twofold cause: 1. because children have had life from them; 2. because parents must educate them fittingly. C. A. 147; C. L. 137. It is from Natural and Positive Law at the same time, positive law defining and determining natural right. For the rights of parents over children flow from natural and civil law. By Natural Law, piety is owed to parents, whether legitimate or illegitimate, namely to father and mother, and it belongs to them equally and perpetually as to love and honor, but not however as to obedience after the son has become major, or has been emancipated. C. I. 220. Besides this, power belongs to parents as to those things which pertain to the spiritual salvation of children. And this also belongs equally to each, indeed also to grandfather and grandmother. But if they disagree among themselves, he prevails who consults the salvation of the child. And, when the father has died, if the mother as tutor and the paternal grandmother disagree, the latter will be stronger. Benedict XIV, Ep. Probe te, §§ 20, 21, 23; Ep. Postremo mense, §§ 16, 17; C. Ex litteris 2, de Conv. infid. - The natural power of parents in those things which pertain to the salvation of the soul ends when infancy has passed; in those things which pertain to the choice of state it ends at puberty, C. Cum virum 12, de Regul.; C. A. 148; in those things which pertain to domestic care and discipline it ends by emancipation. But in those things which regard the sustenance of the body and generation of offspring, children are their own masters. And as to entering marriage, they commonly are bound only to seek the counsel of parents. L. 335.

But emancipation is naturally had when the son of the family has already grown sufficiently by age, so that he himself can now be father of a family, and by himself duly consider and oblige himself concerning those things which pertain to his own person and to his exterior goods. C. 11, 12, de Regul.; S. Th. 4 D. 27, q. 2, a. 2; D. 38, q. 1, a. 1, q. ult., sol. 3; 2. 2, q. 104, a. 5; S., q. 43, a. 2; q. 58, a. 5; St. Basil the Great, Epist. 276, Migne, vol. 32, col. 1011.

By Common Law paternal power belongs only to the father of the family, and it was per se perpetual. Inst. 1, l. 1, t. 9, §§ 2, 3; t. 12; lib. 1, tit. 6, ff., §§ 3-5, de Patr. pot.; l. 8, t. 46, C.; C. 2, de Convers. infid. But from the More Recent Laws it belongs also to the mother of the family. C. I. 220; C. G. 372; C. B. 1634, 1684, 1685; C. L. 138; C. He. 274. But the mother does not use it as long as the father uses it, to whom it principally belongs. C. I. 46, 220, 230, 331; C. G. 141, 373, 507; C. A. 144, 147; C. H. 154; C. B. 1634; C. L. 139, 155. Moreover it belongs over legitimate and natural children, over natural children acknowledged, over natural children acknowledged and legitimated, and at least in some way also over adoptive children. C. I. 66, 184, 194, 210, 211, 220; C. H. 154; C. A. 183; C. B. 1306, 1757, 1765; C. L. 166. Cf. here n. 663.

Paternal power is exercised by the father, and when he has died or is absent, by the mother with equal right. C. I. 46, 220, 231; C. H. 154; C. G. 141, 390; C. A. 144, 147; C. B. 1627, 1684; C. He. 274. Yet a father dying has the right to prescribe to the surviving mother the manner he wishes to be observed in the education of the children and the administration of goods. C. I. 235, 1059. Cf. C. G. 391; C. B. 1852 seqq. If the mother enters second nuptials, it will be in the power of the family Council or pupilary Judge to permit or remove guardianship from her. C. I. 237; C. G. 395; C. A. 255. When parents are lacking, and a tutor has not been named, guardianship by law belongs to the paternal grandfather; and, he being lacking, to the maternal grandfather. C. I. 244; C. B. 1776.

Moreover paternal power is exercised partly over the persons, partly over the things of children. C. B. 1627.

Paternal Power is exercised, 1. over persons by the faculty which the father has of retaining the son at home, C. He. 273, unless the son wishes voluntarily to give his name to military service. C. I. 221; C. G. 374; by the faculty which the father has of moderately correcting and punishing a disorderly son, C. He. 275; also of barring him from his own house, and even having recourse, where there is need, to the tribunal, and of placing him in another house of education or correction. C. I. 222; C. H. 155, 156; C. G. 375 seqq.; C. A. 145; C. B. 1631, 1632; C. L. 143; L. 3, de Patr. pot., C. Moreover the son is prohibited without the consent of parents from giving himself into adoption, C. I. 208; C. G. 346; C. A. 181; C. B. 1747, and from entering marriage. C. I. 63; C. G. 148; C. A. 49, 153; C. H. 1305; C. L. 1058, 1061; C. He. 98. But when the mother dissents, the consent of the father suffices. C. I.; C. G., ll. cc.; C. He. 274. Finally the right of appointing a tutor belongs to the last surviving parent. C. I. 242; C. G. 397; C. B. 1777; C. He. 274.

Excepting marriage, which before puberty is null from canon law, as to other acts and contracts sons of a family who are minors are only naturally obligated; and if in due time they do not seek restitution in full, they can also be civilly obligated, and those who contract with them are naturally and civilly obligated. Therefore, if they have entered betrothals, if they have emitted a vow, they are bound by the betrothals and by the vow. If they have donated anything, they transfer dominion to the recipient; and if they themselves receive something as a gift, they licitly acquire and retain dominion. C. I., de Desp. impub.; C. I. 1304; C. G. 1314; C. H. 160, 161; C. A. 244, 246; C. B. 106; C. L. 98, 99; Inst. 1, l. 3, t. 19, § 6; S. Th. 2. 2, q. 88, a. 8; 4 D. 27, q. 2, a. 2; L. l. 3, n. 918; Lugo, de Iust., d. 22, nn. 228, 295, 300.

But although a minor validly contracts, from the More Recent Laws he does not contract firmly if various prescriptions of those laws are not observed, and then restitution in full is conceded to them, which also holds in the forum of conscience, since a law of this sort is definitive of right and just; since it is for protecting good morals, for the peace and good of families, and for the common good. C. G. 2012; C. I. 317, 319, 1899.

From C. I. a minor is restored because he is a minor, and an action of nullity is admitted: 1. If a non-emancipated minor performed an act by himself without the intervention of the father or his legitimate representative. 2. If an emancipated minor performed by himself an act for which the law requires the assistance of a curator. 3. When the formalities constituted for certain acts by special dispositions of law are not observed. But an action of nullity is not admitted: 1. If the minor by evil art and deceit concealed his condition as a minor. 2. If the matter concerns an obligation arising from delict or quasi-delict. 3. If it is proved that what was paid was turned to the convenience and utility of the minor. C. I. 1300, 1303, 1305, 1306, 1307, 1899.

From C. G. a minor is restored because he was harmed, and an action of nullity is admitted if the prescriptions of the law in contracts of minors were not observed. Rescission is not admitted: 1. If the harm happened from a chance event. 2. If a minor exercises commerce or some art, as to contracts entered by reason of his commerce or art. 3. If the matter concerns an obligation flowing from delict or quasi-delict. 4. If it is proved that what was paid went to their convenience and utility. C. G. 1304, 1305, 1306, 1308, 1310, 1312, 2012; L. l. 3, nn. 514, 918. Cf. Troplong, della Vendita, cap. 2, art. 1594, num. 166 seqq.

From C. H., the formalities of law not having been observed, the contract of a minor becomes liable to rescission. But he is not bound to restitution except insofar as he became richer by the thing received. C. H. 317, 420, 1163, 1304, 1764, 1765. From C. A., in general a minor indeed cannot be validly obligated without the consent of the father and the other prescriptions of the law. Yet he can freely dispose of things acquired by his own industry, and of others given to him for his own use after puberty has been attained. C. A. 151, 152, 244, 246, 248. From C. B., a minor needs the consent of his representative for any declaration of will whatever, unless this procures a juridical advantage for him, or unless the matter concerns things left to his free disposition. Without the aforesaid consent of the representative, the act can be rescinded. C. B. 108 seqq. From C. L. 297 seqq., the acts of a minor are null if they are made without due authority. But they themselves cannot use this nullity as to obligations upon things of their own art or profession, or if they use deceit so that they may be held as majors.

The power of the father is exercised, 2. over the things of children. From common Law the son was at first a thing of the father of the family; whatever he acquired belonged to the father. Afterwards peculium was recognized. Peculium is any good whatever proper to the son, separated from paternal goods. It is fourfold: 1. Castrense, acquired by military service or on the occasion of military service; and this whole thing, in perfect dominion, belongs to the son. Yet one below puberty does not have its administration.

2. Quasi-castrense, acquired by the profession of sciences or liberal arts, or by some civil office, for example, of judge, advocate, physician, teacher, from an ecclesiastical office or benefice; and the perfect dominion of this also belongs to the son. Yet administration belongs to the father if he himself is below puberty.

3. Adventitious, which comes to the son from elsewhere than from paternal goods, and not by regard for the father, for example, what comes to the same son from the mother, from the maternal line, or by regard for the mother, or what is acquired by his own industry and labor, by the liberality of others, by chance and fortune. The dominion of ownership belongs to the son; the usufruct and administration of this peculium belongs to the father as long as he lives. Therefore by Roman Law the father has the usufruct of all these goods of the son; and this usufruct ends only by the death of the father, otherwise than is had by More Recent Law.

4. Profectitious, which either is acquired from paternal goods, or has been donated to the son by regard for the father. And this whole thing belongs to the father, in ownership, usufruct, and administration. Inst. 1, l. 2, t. 9, §§ 1, 2; l. 3, t. 29; Lugo, d. 5, n. 23 seqq. The father can dispose of adventitious goods if they are consumable, with the burden however of restitution. If the son trades outside the father's house from goods other than paternal goods, the gain is adventitious. If he labors in the paternal house and is fed by the father, or trades from the father's goods, it is profectitious. "If a son trades with the money of the father, either received as a loan or secretly stolen, at his own risk, so that he seriously determines to preserve the father unharmed in any event whatever, it is certain from the common opinion of all cited by Laymann, l. 3, tr. 4, c. 8, n. 12, that the whole gain pertains to the ownership of the son as adventitious peculium. Why is this? Because although he obtains the whole gain by the money of the father, he obtains it in such a way that the whole gain is derived not from the money of the father, sterile of its own nature, but from the industry of the son, which renders the money fruitful." Ithur., Cas. 3, n. 6; L. 488.

The father of the family and the son of the family are held as one person. Since therefore no one can contract with himself, if they contract, the pact is civilly void. Civilly, for naturally they are mutually obligated and obligate. Inst. 1, l. 3, t. 19, § 6. A son of the family, not even with the father consenting, can make a testament concerning adventitious or profectitious peculium; but he can, even against the father's will, concerning castrense or quasi-castrense peculium. Inst. 1, l. 2, t. 12.

From More Recent Laws, minors are held by law incapable of protecting themselves and their own goods. Hence as to each, he with whom paternal power is represents them. C. B. 1630; C. L. 98, 100; C. He. 279.

The administration of all goods of minor children is in the hands of the father or mother, or tutor, who must supply the incapacity or lack of skill of the children until they become majors or obtain emancipation. Exceptions must be made, from C. B. 1638; C. L. 147; C. He. 294; C. I. 224, of goods given to the son with exclusion from this administration of the father. Cf. C. L. 146, 147. Majors are altogether free in managing their own affairs, unless in some case the law specially forbids this to them, and therefore they have full administration of their own goods; but emancipated persons have it only limited. C. I. 323, 310 seqq.; C. G. 488, 476 seqq.; C. A. 149, 187, 251. Cf. C. L. 305 seqq., 311.

Hence he who exercises paternal power manages the affairs of the son. C. I. 224, 242; C. G. 389; C. A. 149, 152. He, not the son, acts in judgment, enters upon inheritances coming to the son after an inventory has been made, accepts donations, C. I. 226, 1059; C. A. 205, 222 seqq., 243, and administers his goods, C. I. 224; C. G. 389; C. H. 159; C. A. 149. But goods, whether immovable or movable, excepting those which cannot be preserved by being preserved or become worse, he cannot alienate, bind by mortgage or pledge, nor likewise receive a loan in the name of the son, nor exercise other acts which exceed acts of simple administration, except from a cause of necessity or evident utility and by decree of the civil tribunal. C. I. 224, 225; C. H. 164; C. G. 389; C. B. 1640 seqq.; C. L. 150; C. He. 290, 299, 300.

The father, or mother exercising paternal power, has the usufruct of those things which come to the son by succession, donation, or another lucrative title. C. I. 228, 229, 231; C. G. 384, 386; C. H. 160; C. B. 1640, 1685; C. He. 294, unless the goods were left to the son by testament, or given by donation, on this condition, that the usufruct not pertain to the parents, C. I. 229; C. G. 387; C. B. 1651; or were left to the son by testament, or given by donation for undertaking some course of life, art, or profession, C. I. 229; or for his education and instruction, C. H. 162; or unless, against the will of the parents, the son accepted the donation or legacy, or entered upon the inheritance, C. I. 229. Likewise excluded from that usufruct are those things which the son acquired for himself by labor, profession, or separate industry, C. I. 229; C. G. 387; C. B. 1650, 1651, and the goods of the succession of a son as to which parents have been declared unworthy. C. I. 728; C. G. 730.

To this usufruct there inheres the obligation of feeding, sustaining, educating, and instructing the children. C. I. 230; C. G. 385; C. B. 1602, 1603, 1606, 1656; C. L. 148; C. He. 293. Neither father nor mother has the usufruct of the goods of natural children. They can only administer their goods, but with the burden of rendering an account also concerning the fruits. Gousset on a. 384, C. G.; C. I. 184. Cf. C. L. 166, 167.

From C. A. 149, 150, 151, 154, all goods, administration excepted, simply pertain to the son; yet the father can deduct the expenses of education from the revenues. From C. H. 161, goods acquired by children from the goods of the same parents simply pertain to the parents. From the same C. H. 160, the usufruct even of those goods which the son acquired by his own labor and industry pertains to the parent exercising paternal power. From C. L. 145, 146, 147, the usufruct of goods which a son of the family acquires by his labor, his industry, his means, or by any other gratuitous title whatever, pertains to the parents, unless they were given with exclusion of this usufruct, or the children acquire by arms, letters, liberal arts, or acquire by their own labor and industry, but live from themselves with the father's permission.

Usufruct of this sort ends by the emancipation of the son, or by death, or when minority or legitimate age has been completed; by the widowed father or mother passing to other nuptials; if the father abuses paternal power, either by not caring for the obligations imposed or by administering goods badly, with a sentence of the tribunal added; and likewise it ceases with respect to the spouse by whose fault divorce has legally been pronounced. C. I. 156, 228, 232, 233; C. G. 384, 386; C. H. 167, 172; C. B. 1666, 1673, 1679, 1680; C. He. 297 seqq. From C. B. 1661, 1662, usufruct also has an end by the marriage of the son, and by renunciation of the father. From C. G. 384, 386, usufruct is conceded to the father, and after he has died to the mother remaining unmarried, up to the eighteenth year of the children, or their emancipation. Cf. C. L. 149; C. He. 274, 292.

But when the son has become a major, those things which have been done by the parents, if they were done according to law, remain ratified; but otherwise they can be made void by him. And if meanwhile a conflict arises as to goods between father and son under paternal power, the latter will be able to have recourse to the tribunal. C. I. 224, 227, 1304; C. G. 1314; C. H. 165; C. A. 271; C. B. 1667, 1668; C. L. 153; L. 488, 543, 544; Gousset 682; C. He. 283, 284, 297 seqq.

Paternal power is dissolved by the death of the father or son, C. H. 167; C. L. 170; C. He. 274; by adoption of the son, C. H. 167; C. B. 1757, 1765; C. A. 183; by emancipation of the son, C. I. 220, 311; C. G. 372, 476-479; C. L. 170; C. H. 167; C. A. 172, 252. But a son is emancipated by the law itself through marriage, C. I. 310; C. G. 476; C. L. 304; C. He. 14, otherwise from C. A. 175. Emancipation is a legitimate act by which a father dismisses his minor son from his power, so that he is made his own master. Emancipation cannot be made before the completed eighteenth year, C. I. 311; C. He. 15. It is dissolved besides by majority of age, C. I. 220;

C. G. 372; C. A. 172; C. L. 170. Cf. here 664. From C. B. 386, which does not admit emancipation, declaration of majority can be had in the eighteenth year of age. It is likewise dissolved if the father abuses paternal power, with a sentence for the crime added. C. I. Poen. 392; C. H. 171; C. B. 1666, 1680; C. A. 177, 178. Paternal power ought to consist in piety, not in atrocity. If the mother survives, she does not simply lose it, although she passes to other nuptials. Yet in this case, from C. I. 237, she can be removed from the administration of the son's goods. From C. B. 1697, a mother passing to other nuptials loses paternal power in part. Cf. C. L. 155 seqq.; C. He. 286. When parents are interdicted, insane, or mad, their paternal power remains suspended. C. I. 220, 229 seqq.; C. A. 179; C. B. 1676 seqq.

When paternal power has been dissolved, the son of the family becomes his own master. But whether he is his own master or is still subject to paternal power, the father of the family can usefully contract with him, and from the eighteenth year of age he can make a testament. C. I. 763, 1107; C. A. 271, 596; at the sixteenth year, but in a limited way, from C. G. 903, 904. Inst. 1, l. 1, t. 12.

Is a son judged to renounce the usufruct to which he has a right, if, with him seeing and silent, the father receives this usufruct? - R. Negatively, at least speaking generally. The reason is that silence would be equivalent to renunciation only insofar as the son could easily protest. Now reverential fear for the most part stands in the way of his being able to do this easily. From C. I. 234, if, after usufruct has ceased, the parents still continue to receive it, with the son staying with them, and without the condition of rendering an account having been established, the parents or their heirs are bound only to the fruits existing from the day on which they are demanded.

What are the rights and obligations of spouses concerning goods? - If Natural Law is considered, marital society does not prevent both husband and wife from retaining ownership, usufruct, and administration even of goods which they had before marriage, and which they acquire during marriage. Yet they must concur for expenses necessarily to be sustained on account of common burdens. Moreover, it is fitting that the husband either have the whole administration of goods, or certainly assist the wife as much as is necessary for supplying her weakness.

But if positive Law is considered, the husband's power in this matter is broader. Hence by positive Law various goods of the wife are distinguished. S. Th. 2. 2, q. 57, a. 4.

Some goods of the wife are dotal, whose fruits the husband enjoys for sustaining the burdens of marriage; others are paraphernal, namely beyond the dowry, which the wife has beyond the dowry, and which she specially reserves to herself; others are common, which by pacts of the spouses or by determination of law are brought into a certain society. Before entering marriage, spouses can determine under what conditions their goods are to be subjected, with certain statutes of the law observed. If they have omitted to do this, the law will supply.

From Roman Law: The wife has direct dominion of her dowry, but the husband has usufruct and administration. When the husband has died, she is preferred to all personal creditors of the husband, and even during life she can juridically seek the dowry again if she fears lest the husband become unable to restore it. If the dowry consists in money, or in other things consumable by use, or in appraised things handed over, full dominion of the dowry is indeed attributed to the husband, but with the obligation of restoring the value, dominion being transferred for the wife into all goods of the husband according to the rate or quota of her dowry. The wife has full dominion and administration of paraphernal goods, so that concerning these the husband, with her unwilling, can dispose of nothing. Hence as to these she in no way depends upon the husband.

The ownership and utility of common goods pertain to each spouse; but administration of the same pertains to the husband alone. But this community of goods can admit various conditions or restrictions, and therefore attention must be given to the various dispositions of places. Gury 549; Elbel 69; L. 489; Troplong, della Prescrizione, c. 3, n. 483 seqq.

From More Recent Law: In the first place we can distinguish goods of the wife, goods of the husband, and common goods. As to goods of the wife, these likewise are either dotal or extradotal, or paraphernal. Dowry is goods brought to the husband for sustaining the burdens of marriage. But any goods whatever of the wife not constituted as dowry are held as paraphernal. C. I. 1388, 1425; C. G. 1540, 1575; C. A. 1218.

That there be dowry it is necessary: 1. that it was expressly constituted by this name, C. I. 1388; C. H. 1336. Therefore those things which are donated to the woman by contract of marriage are not dotal, unless something else has expressly been provided. But it is otherwise from C. G. 1541. Moreover, dowry can comprehend all goods, even future goods. C. I. 1389; C. G. 1542; C. A. 1218, 1227; C. H. 1336, 1337. 2. That an instrument be drawn up by a notary, and, if the dowry is constituted by the spouses themselves, before marriage. C. I. 1382, 1391; C. G. 1394. For after marriage dowry can neither be constituted nor increased by them. C. I. 1341; C. H. 1338; and from C. G. 1543, not by others either. Cf. C. A. 1225; C. H. 1344. 3. That nuptials have been entered from Civil Law. L. 3, de Iure dot.; C. I. 93; C. G. 165; C. A. 44; C. H. 42.

He who constitutes a dowry must furnish it from his own goods, even if the woman does not lack her own goods. C. I. 1392, 1393, 1394, 1395; C. G. 1544, 1545, 1546; C. A. 1224. Cf. C. H. 1340, 1341; and he furnishes security against eviction. C. I. 1396; C. G. 1547. But the husband is not bound to surety for the dowry unless he is obligated to it by agreement made, or is driven to it by sentence of the judge, if the dowry is exposed to danger, and the dowry was constituted by him who, if it were lacking, would be compelled to furnish support to the dowered woman. C. I. 1400; C. G. 1550, 1563; C. A. 1245. Cf. C. H. 1345, 1349, 1358.

Of those things which are given by reason of dowry, some pass into the full dominion of the husband, others do not, and constitute a permanent dowry. Things which are consumed by use pass into the full dominion of the husband, C. A. 1227; things, whether movable or immovable, which are given to him in payment, C. I. 1403; C. G. 1553; movable things, if they were given appraised, C. I. 1401; C. G. 1551; not likewise immovable things, unless this was openly expressed. C. I. 1402; C. G. 1551; C. A. 1228. From C. H. 1346, if nothing is determined in the marriage contract, the wife preserves dominion of all her dotal goods. Cf. C. B. 1227, 1228.

Of those goods which constitute a permanent dowry, natural and direct dominion remains with the wife; civil and useful dominion passes to the husband. C. A. 1227, 1228, 1230. Therefore, by force of the natural and direct dominion of the wife, the increase or damage of the dowry will belong to the wife. By force of the civil and useful dominion of the husband, the husband has administration and usufruct of dotal goods; whence he administers dotal goods as his own, acts in judgment for them, C. I. 1339; C. G. 1549; C. H. 1357, 1360, and all things which are contained under the name of fruits are his from the marriage entered, C. I. 1399; C. G. 1549; C. A. 1227; and if counted money was promised, interest by the law itself is owed to him, although delay for payment had been stipulated. C. I. 1397; C. G. 1548. But the husband must furnish that diligence in administering dotal things which he furnishes in his own things, and he must fulfill all obligations of a usufructuary, C. I. 1408; C. G. 1562. But he is bound to use the fruits for feeding the family, for this is why the fruits are assigned to him, namely for bearing matrimonial burdens.

A woman can obtain separation of dotal goods by the office of the judge if the dowry is in danger, or the affairs of the husband are turning to evil, or she has been judicially separated from him. C. I. 1418; C. G. 1563. When this has been obtained, she herself, in place of the husband, administers the dotal goods, C. I. 1424; C. G. 1449; C. H. 225, 1365; but together with the husband she must provide for domestic necessities and for the instruction of the children. C. I. 1423; C. G. 1448. Cf. C. A. 1241, 1263. It can be established in the marriage contract: 1. that the wife receive each year a part of the fruits for small expenses, C. I. 1399; C. G. 1549; 2. that the surviving spouse receive some gain beyond the dowry, with the legitimate portion of the children preserved. C. I. 1398; L. l. 3, n. 539.

Dotal goods regularly, while marriage remains, cannot be alienated, and an alienation made can be revoked even by the husband himself who consented to the alienation. C. I. 1407; C. G. 1560. Dotal goods, namely all from C. I. 1405, but only immovables from C. G. 1554. Regularly; for they can be alienated from a grave cause of necessity or utility, by decree of the tribunal and consent of each spouse, C. I. 1405; C. G. 1558; C. H. 1358 seqq.; or if alienation was permitted in the marriage contract itself. C. I. 1404; C. G. 1557. They cannot be alienated for any cause whatever from C. I. 1405, which distinguishes nothing, except the cause of placing some child from C. G. 1556. Alienation, moreover, also comprehends exchanges, servitudes, and mortgages. C. I. 1404, 1405; cf. C. G. 1554, 1559. While marriage remains; therefore also after separation from C. I. 1405; cf. C. G. 1449. But if, while marriage remains, a woman has legitimately contracted debt, or any obligation whatever, after the marriage has been dissolved even dotal goods are bound to creditors from C. I. 1407; but otherwise from C. G. 1558, 1560. Cf. C. A. 1260.

When the marriage has been dissolved, the dowry ceases and must be restored. The dowry must be restored to the wife, or to her heirs. C. A. 1229; C. H. 1365. Things whose civil and useful dominion only was in the hands of the husband must be restored immediately in their own species, as they then are. C. I. 1409, 1411, 1412; C. G. 1564, 1566, 1567; C. H. 1367; and if by the fault of the husband they have become worse, the loss is charged to him. C. I. 1408; C. G. 1562; C. H. 1360, 1375. But of things of which the husband had full dominion, only the price must be restored within a year. C. I. 1401, 1410; C. G. 1551, 1565; C. H. 1347, 1366, 1370. From these the woman can retain for herself linens and those things necessary for her ordinary use, with their actual price deducted, if, after an appraisal of the same had been made, they were first given. C. I. 1411; C. G. 1566. Cf. C. H. 1384.

Besides this, the fruits of the last year of marriage are to be restored, according to the proportion of time. The year is computed from the anniversary day of the marriage celebrated. But the widow can according to her judgment either demand these fruits, or support for the whole year of mourning. Besides, during this year housing and mourning clothes are owed to her. C. I. 1415, 1416; C. G. 1570, 1571; only mourning clothes, C. H. 1879. Cf. C. A. 1242, 1243. Finally, when the marriage has been dissolved, gains also or dotal increases are owed to the surviving spouse from the goods of the deceased, if a pact concerning them was present in the marriage contract. C. I. 1398.

Paraphernal or extradotal goods are those which the wife reserves to herself outside the dowry. C. H. 1381. These are the wife's by full right, and therefore she administers them and enjoys their usufruct. C. I. 1427; C. G. 1576; C. H. 1382. Yet she cannot alienate immovables, nor stand in judgment for them without the express consent of the husband, or, with the husband resisting, without sentence of the tribunal. C. I. 134, 136; C. G. 215, 217, 1576, 1538; C. H. 1387; cf. C. A. 91. The same must be said from C. G. 1536, if the wife is altogether separated in goods. But if the husband administers them from the express or tacit mandate of the wife and receives the fruits, he must restore only the fruits which then exist when the woman asks, or dies; but he must restore all the fruits which he received if the condition was added to the mandate that he render accounts of the fruits, or if the woman opposed herself at least by an extrajudicial act. C. I. 1427 seqq.; C. G. 1576 seqq. But from C. H. 1384, 1389 seqq., if paraphernal goods are handed over by the wife to the husband to be administered, they are then equated with dotal goods, whose dominion remains in the hands of the wife. From C. A. 1238, 1239, unless the wife opposes herself, by presumption of law the administration of the wife's free patrimony is judged to have been entrusted to the husband as legitimate procurator. But he is responsible only for the substance of the thing, or for the capital; he is not bound to give an account of the fruits received, unless this was expressly agreed.

To paraphernal goods belong, and they are the wife's, those goods which, during marriage, she acquires from her own goods, or from singular industry, or from her own extraordinary labor, especially if she exercises commerce in her own name, or also by subtracting something from what has been conceded to her for food, clothing, recreation, etc.; and also those things which were given to her with the express condition that they not fall to the husband. C. A. 1237; L. l. 3, n. 541.

As to the goods of the husband. The wife has no dominion over the goods of the husband. But since the wife is the companion of the husband, and the husband must feed the wife according to her condition, the wife can by her own right take for herself those things which are necessary to her for this reason. Lugo, de Iust. et Iur., d. 16, n. 72; Lessius, de Iust. et Iur., l. 2, c. 12, n. 85. And if by received custom of the region it is accepted that the wife spend something from the goods of the husband, she can also do this. Lugo, l. c. Therefore the wife can take not only those things which are necessary for the body, but also those things which pertain to relieving the mind and to the decency of her state. Lugo, l. c., nn. 68, 70. Nor indeed can she do this for herself only, but also for the children received from that marriage, for the utility of the family, or for removing some harm to it, and this even against the will of the husband. Therefore she can withdraw things from a prodigal husband in order to reserve them for the family in the future, or from an avaricious husband for making moderate alms. Lugo, l. c., n. 65; Lessius, l. c., n. 85. From the very nature of conjugal society the wife has administration of domestic things, the pantry, furniture, etc. C. He. 163; Lugo, l. c., n. 65; Lessius, l. c., n. 85. From C. I. 1432, if the wife administered the goods of the husband, she is subject to the same law to which he himself is subject in the administration of the wife's paraphernal goods.

But when the husband is absent or insane, the wife administers his goods, and she can spend them, according to the strength of the patrimony, for the sustenance and preservation of the dignity of the family, although perhaps the husband, if he were present or in control of himself, would not have spent them. From C. H. 1442, 1444, the wife administering all the goods of the marriage has the same faculties and obligations as when the husband administers them. Yet she cannot alienate or burden immovables. Lugo, l. c., nn. 16, 70; Lessius, nn. 12, 86; L. 541.

As to common goods. From C. I. 1433, 1435, 1436, 1438, 1439, 1441, in the marriage contract itself, although a dowry has been constituted, the spouses can enter together into a universal society, not indeed of goods, but of fruits coming from the goods themselves, whether movable or immovable, whether present or future. Yet this society cannot comprehend debts and credits existing before marriage, nor those which are later deferred by title of succession or donation while the communion itself lasts. The effect of this communion is to render common and divisible those things which are acquired by the spouses together or separately during the communion, whether by common industry, or by thrift made upon the fruits or incomes of the spouses, the debts of the communion itself always being deducted. Goods placed in common are administered by the husband, who cannot alienate them or subject them to mortgage except by onerous title, and if he leases them, he must observe the laws established for leasing which is done by a usufructuary. But the society ceases by the death of either spouse, by the declared absence of one, by definitive separation of persons, and by judicial separation of goods.

From C. H., when a contract concerning goods is lacking, by which they can also establish separation of goods between themselves, the marriage is judged to have been entered under the regime of legal society of gains, 1315, 1432. But if this society is excluded, without the rules by which the goods are governed being expressed, then the dotal regime is observed, and nevertheless the husband receives all the fruits of the society of gains just as if it existed, 1364.

Now by society of gains husband and wife make their own, by half, when the marriage has been dissolved, the gains and benefits indistinctly obtained by either spouse during marriage, 1392. By the law itself the proper goods of each spouse and the common gains are determined, 1396 seqq., 1401 seqq., and also the burdens and obligations of this society, 1408 seqq. The husband administers the society according to the established laws, 1412 seqq.; he can make moderate donations for the sake of piety and beneficence, but cannot reserve usufruct for himself, 1415.

The society is dissolved by dissolution of marriage, by the absence of either spouse, by separation of persons or goods, 1417, 1433. When the society has been dissolved, after an inventory has been made, and dotal and paraphernal goods have been restored, and the other burdens of the society have been satisfied, what remains is divided equally between husband and wife, or their respective heirs, 1418 seqq. Cf. ibid. 1435, 1436.

From C. G. 1393, even if spouses do not establish that certain goods will be common, nevertheless if any other pact is lacking, legal Community has place by force of law. For the pacts which can be entered by spouses before marriage constitute three classes, or a threefold regime, namely the dotal regime, concerning which we have already spoken, the regime of community, and the regime excluding community. Moreover, Community is either legal or conventional, according as it is constituted by law or by a special pact of the contracting parties. 1391, 1400 seqq., 1497 seqq., 1540 seqq. Legal Community coalesces: 1. from all movable goods which the spouses possessed on the very day of the marriage entered, or which afterwards come to them by title of succession or donation; 2. from all fruits and any revenues whatever of immovable goods possessed by the spouses before marriage, or coming to them during marriage; 3. from all immovable goods which were acquired from common goods during the time of marriage. Conventional Community consists in other pacts of the spouses, by which legal statutes can be restricted or relaxed. When these are lacking, the community is governed by the disposition of the law alone.

Under the regime of community the husband alone has administration of common goods. Indeed he can sell them, exchange them, and hand them over into mortgage, even without the consent of the wife. Yet he cannot donate immovables by gratuitous title, nor movables by universal title, or as to their universality or quota, that is, a half, third, or fourth part. He can dispose of some movable thing by gratuitous title, provided he does not reserve usufruct for himself. But when the community has been dissolved, goods and burdens are divided into two parts, unless the wife or her heirs prefer to renounce the goods, and thus to exempt themselves from the burdens. Debts are to be paid by each spouse, or by their heirs. The husband also has administration of the proper or personal goods of the wife. 1400, 1401, 1409, 1422, 1428, 1441, 1453, 1467 seqq., 1497 seqq.

A regime excluding community can be constituted by the spouses in two ways, namely: 1. by declaring that they enter marriage without community; 2. by establishing that each will be altogether separate as to goods. In the former case the man receives all revenues of the wife's goods and alone administers all things. But if they are consumed by use, he is bound to return their value. But in the latter case the woman has administration and usufruct of all her own goods. Each spouse concurs for the burdens of marriage by special pact; but if no agreement exists, the wife must concur up to a third part of her revenues. Therefore in this third regime, as also in the second, some dowry must be contributed by the wife, by which she may in part aid the burdens of marriage; but a dowry of this sort can be alienated by the husband. 1530 seqq., 1536 seqq. Cf. here 868, 1237.

From C. A. 1233, 1234. For communion of goods between spouses a special contract is required. But it is understood only for the case of death, and gives to the spouse a right to the half part of the goods constituted in communion which remain after the death of the other spouse. Cf. art. 1262, 1266.

From C. B. the regime of goods is twofold, legal and conventional. Legal matrimonial regime of goods. By the marriage contract the goods of the wife, even those which she herself acquires during marriage, are administered by the husband, who has their usufruct, but must sustain the expenses of marriage. The goods reserved to the wife are excepted, whether by law, namely clothes, precious gems, and instruments of labor, and goods acquired by labor or the personal exercise of a gainful profession; or by contract, namely those which were declared such by the marriage contract; by succession, legacy, or donation made with that reservation. The wife has administration and usufruct of these reserved goods. When administration and usufruct of the husband have ceased, the husband is bound to restore the goods to the wife and also to render an account of administration. But the wife can demand this cessation if her goods are placed in danger. C. B. 1363 seqq.

Conventional regime of matrimonial goods. Spouses can establish an agreement concerning goods both before marriage and after marriage has been contracted, and they can dissolve or modify the regime of goods. If by the marriage contract the administration and usufruct of the husband is excluded, or if the community of goods is dissolved, then separation of goods is had. But community can be either universal of goods, or particular, or particular of acquisitions, or particular of movables and acquisitions. The husband administers the community and sustains the burdens of marriage from the goods of the community. When the community has been dissolved, the debts having first been paid, those things which remain are divided into two equal parts between the two spouses, or the descendants of either and the widowed spouse. C. B. 1432 seqq.

Besides these things, which are constituted by various laws, all those pacts must be observed both by the husband and by the wife which in the marriage contract either were tacitly entered, according to the proper laws of the region, or expressly constituted by private will, provided however that these agreed pacts do not oppose good morals or the laws. C. I. 1378; C. A. 1217; C. G. 1387; C. H. 1315.

From C. L. It is licit for spouses before marriage to make a contract concerning goods, within the limits of the law, 1096. Agreements of this sort will not be valid unless they have been made by public writing, 1097. If no agreement is made, the marriage is judged to have been contracted according to the custom of the kingdom, 1098. A woman can reserve to herself the right of receiving part of the fruits of her goods, provided it does not exceed a third part, 1104. An agreement can be made of marriage according to the custom of the kingdom, of community of acquisitions, of separation of goods, of the dotal regime, 1099 seqq. Agreement according to the custom of the kingdom imports community of all present and future goods not excepted by law, 1108 seqq. Dominion and possession of these goods is with each spouse; administration is in the hands of the husband, 1117 seqq. When the Community has ended, its goods are divided between the spouses and their heirs, due equality being observed. But satisfaction must be made first to the woman, then to the man, 1123, 1124. Agreement of community of acquisitions does not comprehend goods which are had at the time of marriage, or which afterwards are had by succession or another gratuitous title, 1130 seqq. Agreement of separation of goods does not exclude from community goods acquired without express declaration, 1125. Each spouse preserves dominion of his or her own goods, and their free disposition, with however that restriction for the woman which is made by law, 1127, 1128. Under the dotal regime the husband can alienate movable goods, but is bound concerning their value, 1148. Immovable goods are inalienable except for cases permitted by law, 1149 seqq., nor can they be prescribed during marriage, 1152. When the marriage has been dissolved, dotal goods must be restored to the woman and her heirs, 1156 seqq.

C. He. has the regime of union of goods, communion of goods, and separation of goods. Unless otherwise disposed, spouses are subject to the regime of union, 178. By union of goods all goods which the spouses possess at the moment of the celebration of marriage, or acquire during marriage, are joined into one sole conjugal substance, 194. The part of this conjugal substance brought by the wife remains her property. The husband is owner of the goods which he himself brought, and of any conjugal substance which was not brought by the wife. The wife's revenues and natural fruits of goods brought by her are the property of the husband from the moment when they are owed or separated, 195. The husband administers the conjugal substance, uses and enjoys it as a usufructuary, 200, 201. When the wife has died, the goods brought by her pass to her heirs. When the husband has died, the wife recovers the goods brought by her. If, after separation has been made, an increase is had, two thirds of this pertain to the wife and her descendants, the third part to the husband and his heirs. If on the contrary diminution is had, it is to be sustained by the husband and his heirs unless it is proved to have been caused by the wife. And, if on account of debts made by the husband the wife would obtain less than half of the goods brought by her, her credit for completing this half part is privileged. The cession of this privilege in favor of individual creditors is null, 211 seqq.

By communion of goods all goods and revenues of husband and wife are joined into one undivided substance, which pertains to each. The husband administers it. By the death of either spouse, half part of the common substance pertains to the surviving spouse, the other half part to the heirs of the deceased. Increase is divided into two equal parts between the spouses or their heirs. Diminution must be sustained by the husband or by his heirs, unless it is proved to have been caused by the wife. 215, 216, 225, 240.

Separation of goods regards the whole substance of each spouse. Each preserves ownership, administration, and usufruct of his or her own substance. But the wife is bound to contribute, in an equitable portion, to the burdens of marriage, even with reserved goods. 192, 241, 242, 246. Goods are reserved either by matrimonial contract, or by the liberality of third parties, or by law. Reserved by law are those things which personally and exclusively pertain to either spouse; goods of the wife which serve her for the exercise of her profession or art; and the gain which the wife receives by laboring in her own name. Reserved goods of the wife are not comprehended in the union of goods. 190, 191, 194.

What is the distinction between slaves and servants? - Servants are distinguished from slaves. Slaves are those who, by the law of nations and civil law against natural liberty, are subject to another master, so that they can be possessed, alienated, and sold after the manner of patrimony. Schmalz., l. 4, t. 9, n. 1 seqq. "The appellation of slaves flowed from this, that our commanders are accustomed to sell captives, and by this to preserve them and not kill them." L. 239, de Verb. sign. But servants are not slaves, but free persons who freely enter contracts of service, by hiring their works for a certain or uncertain time in the service of a master and his family. Hence servants are of the family, and therefore are also called familiars or domestics. Servants are under the governance of the master, and masters have rights and obligations toward servants. Although by servants and those of the family is not properly understood one who furnishes the duties of service only for one or another hour of the day, nevertheless those are sufficiently understood as familiars who have a stable seat for the whole day in the house of the master and serve him, but sleep at night in their own house. S. Th. 2. 2, q. 102, a. 1.

Therefore servants are also distinguished from workers. For these hire their works to some master for a certain time and labor, but are not received into his house and family, nor are they properly subject to his governance. From the contract of works there arises an obligation of commutative justice, for the servant to furnish his works to the master, and for the master to pay the agreed wage. But from the fact that he is taken into part of the master's family, the master has the right and office also of ruling and governing the servant for the common good of the family; but the obligation of observance and obedience falls upon the servant in those things which pertain to domestic order. And thus S. Th. 2. 2, q. 65, a. 2, not from some pact or from commutative justice, but from the order of society, although imperfect, recognizes in the master, besides dominion of ownership over the works of the servant, dominion of jurisdiction or power extending itself over the person even to moderate correction of him.

What is usufruct? - Usufruct is: The right of using and enjoying another's thing, by receiving fruits from it in that very mode by which the proprietor himself would receive them, while nevertheless its substance is preserved, both as to matter and also as to form, as in use. C. I. 447; C. G. 578; C. H. 467; C. A. 509; C. B. 1030; C. He. 745; C. L. 2197, 2202; L. 487.

It differs from use in this, that it extends more broadly; for simply to use is to receive only necessary fruits, but to enjoy is to receive them as the proprietor himself would receive them. Thus, for example, if someone has the use of some garden, he can indeed take fruits from it for himself and his own, but he cannot alienate them and bestow them on outsiders; but he can do so if he has usufruct of the same. Those words, "of using and enjoying," are not added in vain; for usufruct, insofar as it regards a fruitful thing, is the right of using; but insofar as it regards the fruits, it is the right of enjoying, or of receiving fruits from it. And thus, if the revenues of some estate are bequeathed, it is not judged to be a usufruct, but a legacy of revenues, which is a personal burden, not a burden of the estate. And therefore it is said, "the right of using and enjoying another's thing, by receiving fruits from it," etc. Hence it is a real right constituted in the thing, and thus it differs from lease. "Another's thing," because usufruct is a servitude. The owner uses his thing by right of property. The one to whom usufruct belongs is called the fructuary. Inst. 1. 2. t. 4. section 1.

How many kinds of usufruct are there? - There is a threefold division of usufruct. The first is into proper and improper usufruct. The former is constituted in things which are by no means consumed by use, such as, for example, a house and a garden; the latter, however, is constituted in fungible things, as they are called, namely those which are consumed by use, such as linens and household furnishings. Improper usufruct is also called quasi-usufruct. C. I. 483, 484; C. G. 587, 589; C. H. 481, 482; C. A. 510; C. B. 1031, 1032, 1067.

The second division is into singular usufruct, that is, of certain things in species; particular usufruct, that is, of some part of goods; and universal usufruct, in which all goods are contained. C. G. 612; C. H. 469; C. B. 1038.

Finally, the third division is into usufruct of things and of rights, as, for example, usufruct of a life annuity, which brings a right of receiving even past and unreceived fruits. Thus from C. G. 588. Cf. C. I. 482; C. H. 469; C. A. 510; C. B. 1068 ff., 1085 ff.; C. He. 745; Inst. 1. 2. t. 4. section 2.

What are the rights of the usufructuary? - These in general are, apart from a special agreement:

1. Since the usufructuary is judged to act as the person of the proprietor with respect to useful ownership, his first right is that he can receive all fruits, whether natural, industrial, or civil, and make them his own, whether he has collected them by himself or through others. But they are understood to have been collected when they have been separated from the soil or from the thing. Hence, if the fructuary dies, fruits indeed mature but not yet separated from the soil or the thing do not belong to the heir of the fructuary, but to the proprietor of the thing, without the burden of paying for cultivation or seed, etc.; for fruits, as long as they adhere to the farm, are judged one with it. But if that heir, when the fructuary is already near death, has collected immature fruits, he is bound to restore them to the proprietor; for just as the fructuary could not collect immature fruits, so much less can his heir. On the contrary, the usufructuary receives natural and industrial fruits pending at the beginning, also without the burden of paying for cultivation or seed, etc. But civil fruits are acquired day by day, and therefore must be divided according to the proportion of the time during which the usufruct lasted. Inst. 1. 2. t. 1. section 36; C. I. 477, 479, 480, 481, 494, 496; C. G. 578, 582, 585, 586, 588, 598, 600; C. H. 471, 472, 474, 475; C. A. 509, 511. Cf. ib. art. 519; C. H. 472, 476, 477; C. B. 1039; C. He. 755, 756, 757; C. L. 2203 ff., 2252, 2253, 495.

2. In addition, he has a right to all those things without which usufruct cannot be had; therefore he has right of way to the usufructuary thing through the hereditary farm, if access does not lie open from elsewhere; likewise the right of using all servitudes adhering to the farm, because they are held as qualities of the farm itself; likewise he has a right to opened mines and to the individual instruments of the farm, unless the contrary will of the testator appears; for it is not to be presumed that the testator wished the fructuary to furnish instruments for himself for a farm which he is to use only for a time. C. I. 494; C. G. 597, 598; C. A. 511; C. H. 479. Cf. ib. arts. 476, 477; C. B. 1031; C. L. 2206, 2213, 2287.

3. Besides, he has the right that he can sell, donate, lease, lend, and subject to mortgage the fruits and the usufructuary things, and grant them to another to enjoy; indeed even hand them over as a pledge. For one who enjoys through another is seen to enjoy by himself. C. I. 492, 493, 1967; C. G. 595, 2118; C. H. 480; C. He. 758; C. B. 1059; Inst. 1. 2. t. 1. sections 36-38, t. 4. section 1.

4. As the usufructuary is not bound to make improvements, so he has no right to compensation for improvements made. For he is judged to have donated them. Nevertheless, he will be able to compensate an increase of price with losses, if any followed without grave fault of the fructuary. If this compensation cannot have place, it is lawful for the fructuary and his heirs to retake additions made, if they can be removed without detriment to the farm and with the utility of the fructuary, and the proprietor does not prefer to retain the additions made for himself after paying their valuation. But it will always be lawful for the fructuary and his heirs to recover mirrors, painted panels, and other ornaments, provided all things are restored to their former condition. C. I. 495; C. G. 599; C. H. 487, 488; C. He. 753; C. L. 2217, 2220. Cf. C. A. 514-517.

What are the obligations of the fructuary? - These in general are, apart from a special agreement:

1. The burden falls upon the fructuary both of furnishing custody and of undergoing ordinary expenses, so that the thing may be preserved in its whole condition, and also of making expenditures so that he may receive natural fruits from it. He is also bound to pay the ordinary burdens by which the usufructuary thing is burdened, such as salaries, annual taxes, and similar things. He is likewise bound to notify the owner if anything happens which may harm his property. C. I. 477, 501, 504, 506, 509, 511; C. G. 605, 606, 608, 614; C. H. 500-502, 504, 505; C. A. 512, 513; C. B. 1036, 1037, 1041 ff.; C. He. 764, 765, 767, 769; C. L. 2228, 229, 2238, 2240.

2. The fructuary must use another's thing as a good father of a family, and must return it such as it ought to be found after good administration. But the proprietor can do nothing by which the condition of the usufructuary becomes worse, because he suffers him to enjoy. C. I. 495, 497; C. G. 599, 601; C. H. 489, 497, 503; C. A. 513; C. B. 1051 ff.; C. He. 755, 759, 768; C. L. 2223, 2227.

3. The usufructuary thing must be restored to the owner, when the usufruct has ended, such as it was with respect to its substance when it began. C. I. 477; C. He. 751 ff. Therefore security must be given, and the condition of immovables and an inventory of movables must be made. C. I. 496, 497; C. G. 600, 601; C. H. 491; C. B. 1034 f., 1048, 1049. From C. I. 1922 either security or pledge can be given. Cf. C. G. 2041; C. He. 760 ff. But security is not to be given by a father or mother in legal usufruct, nor by one who sold or donated the thing while reserving usufruct to himself. C. I. 497; C. G. 601; C. H. 492. Nor indeed is security to be given, nor an inventory to be made, if the one who constitutes the usufruct remits all these things. C. I. 496, 497; C. H. 493. C. I. 483, 484; C. H. 481, 482; C. G. 587, 589; C. A. 518, 520; C. B. 1034, 1035, 1050, 1055; C. L. 2221, 2224.

4. Things which are consumed by use are to be restored according to their valuation made, or otherwise in the same quantity and quality, or at the current price, when the usufruct ceases. But things which deteriorate by use are restored in the condition in which they are when the usufruct ceases. C. I. 483, 484; C. G. 587, 589; C. B. 1050, 1067; C. He. 772; C. L. 2208, 2209.

From Roman Law: The usufructuary of a field has a right to hay, crops, willows, and trees to be cut, but not to large and fruit-bearing trees, to stakes, to stones, or to sand. In place of trees that have died, he is bound to substitute others, and the former belong to the fructuary; nevertheless he by no means ought to substitute trees overthrown by the force of a storm without fault on his part. And if there are bees, their usufruct also belongs to him. L. 9, 11, 18, 59 de Usufr. etc. From C. G. 594; C. I. 490: fruit-bearing trees which perish, or which are overturned by some accidental event, belong to the usufructuary with the burden of substitution. Cf. C. H. 483-485.

Usufruct of a forest. "The fructuary can cut a coppice wood and a reed-bed, as the father of a family was cutting, and sell them, even if the father of a family was not accustomed to sell but to use them himself; for it must be referred to the mode, not to the quality, of using." L. 9. section 7. de Usufructu et quemadmodum, etc. Cf. C. G. 590, 591; C. I. 485, 486; C. He. 770; C. L. 2211. "But if there were large trees, he cannot cut them." L. 11. de Usufructu, etc. Cf. C. G. 590, 592; C. I. 487, 579. "Labeo says that, when trees have been torn up or thrown down by the force of winds, the usufructuary can take them up to the measure of his own use and of the villa... He thinks that the usufructuary can cut timber as much as is necessary for the repair of the villa; just as, he says, he can burn lime or dig sand or take anything else necessary for the building." L. 12. de Usufructu, etc. Cf. C. G. 592, 593; C. I. 488, 489; C. A. 511; C. L. 2210, 2213, 2226. "I think that the fruit of a nursery belongs to the fructuary, yet in such a way that it is lawful for him to sell and to sow; nevertheless, for the sake of sowing the field, he must always renew the prepared nursery as an instrument of the field, so that, when the usufruct has ended, it may be restored to the owner." L. 9. section 6. de Usufructu, etc. Cf. C. G. 590; C. I. 485, 491; C. H. 485; C. L. 2112.

The usufructuary of a flock has a right to wool, milk, and offspring. Inst. 1. 2. t. 1. section 37, t. 5. section 4. But he is bound to substitute other heads from the offspring in place of heads that have died, unless he has the usufruct of the individual heads separately, not of all the heads collectively, or of the flock, herd, or drove, that is, of the universality. L. 68. section 2, 69, 70. section 3. de Usufructu, etc. Cf. C. G. 615, 616; C. I. 512, 513; C. H. 499; C. L. 2225.

How is usufruct acquired? - Usufruct is acquired: 1. From law, and then it is called legal; such is the usufruct of parents from the goods of children, or of a husband from the goods of his wife. 2. From agreement or contract, and therefore it is called conventional, for example by force of donation or testament. 3. By prescription. In its acquisition, the formalities of the various laws must be observed. C. He. 746.

C. I. 478, 901, 2137; C. H. 468; C. B. 1032, 1033.

How does usufruct cease? - "Lest properties be useless in general, when the usufruct has always departed, it has pleased the law that usufruct be extinguished in certain ways and return to the proprietor." Inst. 1. 2. t. 4. section 1; C. L. 2251.

Moreover, usufruct ceases: 1. By the natural or civil death of the fructuary; for since both use and usufruct are personal rights, they ought to be extinguished by the death of the one to whom they belong. Hence usufruct, that is, the stable right itself of using and enjoying, neither passes to heirs nor can even be sold without the consent of the direct owner. C. I. 515; C. G. 617; C. H. 498, 513; C. B. 1059, 1061; C. L. 2250. A usufruct granted to a community or moral body is extinguished after the space of 30 years, C. I. 518; C. G. 619; C. H. 515; C. L. 2244; of 100 years, C. He. 749.

2. When the time has ended, if any has been established by law or constituted by agreement. C. I. 515, 517; C. G. 617, 620; C. H. 513, 516; C. A. 528; C. He. 748; C. L. 2245.

3. By every manner of change, for example if a meadow becomes a pond, or by the total destruction of the thing, if, for example, the whole building is demolished. Total destruction; for if the thing perishes only partially, usufruct is sustained in that which remains. C. I. 515, 519, 520; C. G. 617-624; C. H. 513, 514, 517. Cf. C. A. 525; C. He. 748; C. L. 2243, 2246.

4. Likewise, usufruct is extinguished when the right of the one ceding the usufruct has been resolved. For example, if Titius sells a house to Caius under a pact of redemption, and meanwhile Caius grants its usufruct to Sempronius, once the house has been redeemed by Titius, the usufruct also ceases.

5. By consolidation, namely when the fructuary obtains the property and ownership of the thing itself, or when the owner also acquires the usufruct. C. I. 515; C. G. 617; C. H. 513; C. B. 1063.

6. By renunciation of the fructuary, provided it is not done in fraud of creditors. C. H. 513.

7. By abuse, by which the thing is made worse through the fault of the fructuary. But the sentence of a judge is necessary. C. I. 516; C. G. 618. Otherwise, however, from C. L. 2249, and from C. H. 520, 529, which establishes a distinction between usufruct and use, which is extinguished by grave abuse of the thing.

8. By prescription, namely if the fructuary does not use his right for so much time that the usufructuary thing can be usucapted by another; 30 years are required so that the owner can prescribe against the fructuary. C. I. 515; C. G. 617; C. H. 513; C. L. 2241; Inst. 1. 2. t. 4. section 3; C. G. 621, 622.

What is servitude, and how many kinds are there? - Servitude, taken actively and generically, is a right which belongs to someone, so that the thing of another, or another person, serves his thing or himself, that is, is applied to its or his utility. But servitude taken passively is the obligation of another's thing, or of a person, corresponding to the aforesaid right. "The thing of another, or another person"; for one's own thing does not serve its owner. Therefore the advantages which the owner receives from it, he receives by right of ownership, not by right of servitude. The same must be said a fortiori of a person.

Hence servitude can be: 1. Personal, which is owed by a person to a person, and is proper to a slave toward a master. 2. Mixed, which is owed by a thing to a person, of which sort are use, usufruct, habitation. C. A. 521. 3. Real, which is owed to a thing by a thing, as a burden imposed on an estate for the utility of another estate. The thing bearing the burden is called serving; the thing receiving the utility is called dominant. C. I. 531; C. G. 637; C. H. 530; C. A. 473; C. B. 1018, 1019, 1090; C. L. 2267.

Real servitude is divided into continuous and discontinuous. The former is exercised without the act of man, such as servitude of prospect, of drip, of aqueduct, of sewer. The latter is exercised by the act of man, such as servitude of way, of drawing water, etc. C. I. 617; C. G. 688; C. H. 532; C. L. 2270. Besides, one is apparent, another non-apparent. The former appears outwardly by some sign, such as servitude of door, window, aqueduct; the latter lacks this outward sign, such as servitude of not raising a building higher, of pasturing a flock, of cutting wood. C. I. 618; C. G. 689; C. H. 532; C. L. 2270; Inst. 1. 2. t. 3. sections 1, 2, 3; Book 8 of the Digest.

Real servitude is divided into urban and rural, according as it is for the utility of a building or of a field. L. 1. Communia praediorum, etc. "The rights of urban estates are such: of raising higher and obstructing the lights of a neighbor, or of not raising higher; likewise of turning drip-water onto the roof or area of a neighbor, or of not turning it; likewise of inserting beams into the wall of a neighbor; and finally of projecting (that is, making a projection; a projection is a member of a building extending out, sporto) and protecting (or making a projection in the roof of buildings, namely of projecting the roof, fare uno sporto nel tetto), and other things similar to these." L. 2. de Servit. praed. urbanorum. "The servitudes of rural estates are these: path, driving-way, road, aqueduct. A path is the right of going, walking for a man, but not also of driving a beast of burden. A driving-way is the right of driving. A driving-way is the right of driving either a beast of burden or a vehicle. Therefore he who has a path does not have a driving-way; he who has a driving-way also has a path, even without a beast of burden. A road is the right of going and driving and walking; for road contains in itself both path and driving-way. Aqueduct is the right of leading water through another's farm. Among rural servitudes are to be counted drawing water, driving cattle to water, the right of pasturing, of burning lime, of digging sand." L. 1. de Servit. praed. rustic.

By what modes is servitude constituted? Real servitude can arise from a threefold source. The first is the natural position of places; thus, for example, a farm which is in a lower situation is bound to receive waters flowing down from a farm which is in a higher situation. Servitudes flowing from this source are therefore called natural. C. L. 2271. And thus owners of an estate which has no communication with public roads have a right of passage through another's estates, with damage compensated to their owners. C. L. 2309 ff.

Another source is law, under which name also comes the sentence of a judge; thus, for example, because of public or private utility, the law prescribes rules to be observed as regards the construction and repair of roads, the drawing off of waters, the building of houses, the distance of walls, passages, etc. C. He. 686, 688, 699, 702; C. L. 2325, 2338. Servitudes arising in this way are called legal. C. I. 533 ff.; C. G. 649 ff.

Besides this, a servitude can be acquired by prescription. C. I. 2137; C. A. 480, 1469, 1470. Only apparent and continuous servitudes, such as the servitude of aqueduct through another's farm, can be acquired by usucaption, and only by prescription of 30 years. C. I. 629, 630; C. G. 690, 691; but C. H. 537-539 by prescription of 20 years. Cf. C. A. 1469. But in the forum of conscience good faith is necessary, by which one namely thinks that the owner, who suffers him to use the servitude, is not unwilling. Continuous non-apparent servitudes, such as the servitude of not raising higher, and non-continuous servitudes, whether apparent or non-apparent, cannot be established except by means of title. Possession, even immemorial, does not suffice to constitute them. C. I. 630; C. G. 691; C. H. 539; C. L. 2272, 2273.

Finally, the third source is agreement: namely, the proprietors of neighboring farms can, if law or public order does not obstruct, agree among themselves that one farm serve another, and conversely, if it so pleases. These servitudes are called conventional. C. I. 532; C. G. 639. In them transcription is required. C. I. 1932; C. He. 731, 732. Likewise a servitude can be constituted by destination of the father of a family, by some act of last will, or among the living. C. I. 629, 630; C. G. 692, 693; C. A. 480; C. B. 903 ff.; Inst. 1. 2. t. 3.

But here it must be observed: 1. Servitude in the things of the Church falls under the Extravagant Ambitiosae; for it is a certain alienation of right, and therefore cannot be imposed without Apostolic beneplacit. 2. C. I. 556: the faculty of making a contiguous wall common does not extend to buildings of public use, and therefore not to churches. 3. Agreements which constitute burdensome praedial servitudes, or moderate them, must be made by public act or private writing, under penalty of nullity. C. I. 1314. But if they are constituted by gratuitous title, a public act is required, since then donation is had; and all acts of donation without a public act are null. C. I. 1056. Cf. here 1011.

What is possession, and how many kinds are there? "Possession is so called, as Labeo also says, from seats, as if position, because it is naturally held by him who stands upon it; the Greeks call it detention." L. 1. de Possessione. Possession is often confused with property. Yet it differs from it, because possession is a right by which a thing is held as one's own; but property or ownership is the very right by which a thing is one's own, and someone is its owner. Possession is rather a matter of fact than of right. Nevertheless, possession is distinguished as twofold: one of fact, the other of right. C. B. 854 ff.; Troplong, On Prescription, c. 2, On Possession.

What is possession of fact and of right? Possession of fact is: the apprehension or detention of a thing, with the support of body, mind, and right. "Of a thing"; by this name we understand not only corporeal things, but also incorporeal things, such as censuses, patronages, etc.; these are said to be quasi-possessed, to distinguish them from corporeal things, which are said to be possessed. "Apprehension or detention"; because possession is considered either in its beginning, or in its continuation; in its beginning it is apprehension of a thing; in its continuation it is detention of the same. "With the support of body"; because, for some corporeal thing to be possessed, it must be apprehended by some bodily act, for example by hands, feet, etc. If the thing belongs to no one, true and real apprehension is required for acquiring it. If the thing belongs to someone who hands it over to another, fictive apprehension suffices, as if he hands over the keys of a house to another. Finally, if the thing is acquired by the disposition of law alone, legal apprehension suffices, as if an heir, without knowing, acquires an inheritance. From C. A. 441 legal possession is had from the fact that a document proving the right of property has been inscribed in a public book. If the thing is incorporeal, apprehension and detention are had by acceptance of the right, and by the very use or exercise of the right, or with the forms prescribed by law observed. "Of mind"; because for a thing to be possessed, it must be apprehended with the intention of having it as one's own, and retained by persuasion that it is one's own. Possession indeed is not had if someone detains a thing without any intention of receiving from it advantage and emolument as from his own. Hence if someone, while he is waiting for a friend, takes in his hand that friend's book which he found in a hall, and looks at the title, he holds the book, but does not possess it. Hence also one who by right of neighborhood or familiarity or mere tolerance enters a neighbor's farm, or draws water from a neighbor's well, is not understood to quasi-possess. Error, whether of law or fact, does not obstruct the aforesaid intention and persuasion, as is openly clear from C. I. 701; C. G. 550; C. A. 326. "Of right," that is, with right not resisting nor impeding; because for possession it is required that right or the laws not impede the detention of a thing from being judged its true possession, by rendering one incapable of possession. Thus, for example, detention by a layman of a sacred thing which belongs to a church, or detention by a private person of a public thing, cannot even be called possession of fact; because right, by rendering these persons incapable of such possession, impedes such possession. On the contrary, detention of a stolen profane thing by a thief is true possession of fact, although unjust, because right does not impede detention of such a thing from sufficing for possession. L. Qui universos de acquir. vel amitt. possess.; Inst. 1. 2. t. 1. sections 1, 3, 4; C. I. 685, 687, 688, 690; C. G. 2134, 2228, 2230-2232; C. H. 430-432, 437-440; C. A. 309-315; C. L. 474.

Possession of right is defined: the right of standing upon a thing as one's own, which is not prohibited to be possessed. "Right," by which it differs from possession of fact, which is the very occupation of a thing or its detention, by which either there is had a right, namely the right of standing upon a thing as one's own, if it is just; or it is not had, if it is unjust. Just, unjust: therefore the right itself of ownership and property does not arise and cannot arise from detention or possession; but on the contrary, just detention or possession arises from the aforesaid right. Hence in judgments there is given a twofold action: action in a possessory cause, and action in a petitory cause; in the former there is question of the right of possession; in the latter of the very ownership of the thing. Possession nevertheless carries with itself a presumption of property in favor of the possessor. C. L. 477. "Of standing upon a thing," that is, of peacefully detaining the thing against disturbers. "As one's own"; for if someone stands upon a thing in the name of another, there will not be true possession. Thus, for example, a tutor cannot be said to possess the goods of a minor, but the minor himself possesses through the tutor, because the tutor does not retain those goods as his own, but in the name of the minor. "Which is not prohibited to be possessed," that is, with no law resisting and impeding, as was said above concerning possession of fact. But for possession to be legitimate, besides this, the formalities prescribed by law must be observed. C. I. 686, 701; C. G. 540, 550, 2229, 2268; C. H. 430-432, 437-441; C. A. 316, 329.

From C. He. 919, 922; C. B. 854-857, possession is acquired by the fact of obtained power over a thing; this power, for retaining possession, can also be exercised through another. But when power over the thing has ended, possession ends; nevertheless it passes over to heirs and successors, and can be continued in them.

If a possessor has handed over a thing to another, so that the latter may exercise some limited real right, or a personal right, both are possessors. The one who possesses as proprietor has original possession; the other has derived possession. C. He. 920.

Acts of mere tolerance and facultative acts, as also violent and clandestine acts, cannot constitute the beginning of legitimate possession. C. I. 688, 689; C. L. 474. Only those things can be possessed which can be the object of property. C. L. 479. Or at least possession of things whose property cannot be acquired has no juridical effect. C. I. 690. Troplong, On Prescription, c. 2, On Possession, n. 253 ff.

What is natural and civil possession? Possession is divided into natural, civil, and most civil. Natural possession is that by which the thing possessed is retained by body and mind as one's own, namely when someone bodily stands upon the detention of a thing as his own; this is done by one who is so near to a thing placed within sight that he can be present to it immediately. Civil possession is that by which a thing apprehended by body and mind is retained by mind alone; thus he possesses his own house who is absent from the house, as long as he has the intention of retaining it for himself. Likewise the owner of a thing possesses civilly what a thief retains with himself. Finally, most civil possession is that which is retained by the disposition of law alone, without any support of mind and body; this happens, for example, in a little child to whom some inheritance has come; he possesses the inheritance of the deceased without any act of apprehension, indeed even without any cognition of intellect. C. L. 483.

Natural and civil possession are also distinguished insofar as merely natural possession is called the mere detention of some thing, or the mere use of some right, such as is the possession of one who detains a thing in another's name; but civil possession is called this same detention of a thing, or use of a right, but together with the intention of having the thing or right as one's own. Therefore someone possesses not in another's name, but in his own name, namely with the mind of an owner, whether indeed he detains the thing, or uses the right, by himself or through another, through a farmer, tenant, fructuary, etc. And thus a borrower for use, depositary, and lessee possess naturally; the owner possesses civilly. C. I. 685, 687, 688; C. G. 2134, 2228, 2232; C. H. 430-432, 438, 441; C. A. 309, 310, 313, 352; Inst. 1. 4. t. 15.

From C. B. 868 ff., if someone possesses a thing as usufructuary, lessee, depositary, or in another similar way, by force of which he himself has a right or obligation of possession with respect to another, this one also is a possessor, but by indirect possession. This indirect possession can be transferred to another by cession of the right to restitution of the thing to himself. He who possesses a thing as its proprietor is a possessor in his own name. Natural possession by body and mind altogether prevails over civil possession by mind alone. Thus, for example, Titius, lessee of a field, sells the field to Sempronius, who, buying it in good faith, cultivates the field for 10 or 20 years and receives fruits from it in good faith as his own. During that space of 10 or 20 years, Titius, from the interest of the price received, pays to Caius, the owner of the field, the rent owed for the lease. After 10 or 20 years Caius visits his field, and when he finds in it not the farmer Titius but the owner Sempronius, he claims his property, but in vain, because Sempronius opposes prescription, his natural possession in good faith prevailing. C. I. 2117; C. G. 2239.

What are the rights of a possessor? The rights and juridical privileges annexed to juridical possession are the following: 1. By taking possession of a thing belonging to no one, its ownership is acquired. C. A. 381. Likewise a possessor in good faith, after a certain time has elapsed, can prescribe against the direct owner of the thing and acquire ownership of it.

Nevertheless it always confers the right of standing upon the thing; and no one can by private authority deprive another of possession of a thing, and possession obtained in this way is defective. C. B. 858. Possession is continued by the law itself in the person of a successor by universal title. A successor by particular title can unite to his own possession the possession of his author, namely so that he may obtain the effect of it. C. I. 693; C. B. 221, 858, 943, 944; C. He. 941.

2. Possession in good faith, if it is immemorial, or if its beginning exceeds the memory of men now living, regularly supplies all defects from which otherwise legitimate ownership would not exist, as is clear from C. Quibusdam de Verb. signific. Cf. C. I. 530. From more recent laws a possessor in good faith makes his own the fruits received. Cf. here 1337. But possession itself stands in place of title as regards movable things, C. G. 2279, acquired from one who is not the owner, by onerous title, C. A. 367, because things by their nature movable, and as regards unnamed bank notes, not as regards a universality of movables, and in relation to third parties, C. I. 707. Movable things; not rights, such as credits, excepting the aforesaid unnamed bank notes from C. I. As regards found and stolen things, cf. here 893. "From one who is not the owner," as regards third parties; and therefore the owner can prove that the possessor possesses the thing in his name, for example a thing leased, deposited, given to him in pledge, etc. From C. He. 930 ff., the possessor of a movable thing is presumed to be the proprietor. But a possessor in good faith is not bound to restore bearer securities and money, although the preceding possessor had been unwillingly deprived of them.

3. A possessor who begins possession of a thing which no one possesses begins possession legitimately, although he doubts whether it belongs to another, but apprehends it with the intention of inquiring about the owner, whether he truly exists. But a possessor who begins possession of a thing which another possesses, while doubting whether it is truly his own, begins to possess illegitimately. A possessor in good faith, when doubt arises whether the thing is his own or another's, if the contrary cannot be shown certainly, can with a safe conscience retain the thing; and the judge, while such doubt stands, ought to adjudge the thing to him. In the external forum good faith is presumed. Likewise, by legitimate possession of a thing, property itself is presumed. But in whatever name, whether another's or his own, he began to possess, in that same name he is now presumed to possess. And thus one who at the beginning possesses a thing deposited with him by an unknown traveler, who left it from forgetfulness and could always return to seek it back for himself, cannot thereafter begin to possess it as though lost or abandoned. C. I. 687, 691, 694, 700, 702; C. G. 2230, 2231, 2268; C. A. 446, 459; C. A. 323, 324, 328; C. B. 1006; C. L. 477, 478.

4. A possessor in good faith can, by the sole title of possession in good faith, use the thing possessed according to his will, and he can even consume and destroy it, without responsibility. Nevertheless, no possessor of another's thing can further retain it by title of another debt. C. A. 329, 471; C. He. 938. But retention of goods belongs to him by reason of improvement made and existing in them, if indemnity is not sought in judgment without proof. C. I. 706.

5. A possessor at the time of contested litigation is to be defended by the judge in possession, unless he drew that possession to himself by force, secretly, or by sufferance; for then he would have to be deprived of possession. C. H. 446; C. I. 694; C. B. 861, 862; C. He. 933.

6. If a possessor has been driven from possession by private violence, before all things restitution of the despoiled person must be made, nor is the occupier first to be heard when he alleges title and wishes to prove the thing to be his own. C. In litteris de Restit. spoliat. Cf. C. I. 694, 695, 697, 700; C. A. 339, 346; C. He. 927; C. L. 484 ff.

7. A possessor in good faith can defend the thing possessed even with arms against an invader, provided this is done immediately and with the moderation of blameless defense, that is, defensively and not offensively. And he can immediately retake for himself a thing violently taken from him. L. 3. ff. de Vi et de vi armata; C. A. 344; C. B. 859; C. He. 926 ff.; C. L. 486.

8. If someone is successively obligated to donate or hand over the same movable thing to two persons, the one who first obtains possession of that thing also has its property, although his title is later, provided he is in good faith. C. I. 1126; C. G. 1141; C. H. 445, 1473; C. A. 322; L. 1. 3. n. 927, 1. 4. n. 210; Inst. 1. 4. t. 15.

From what titles can servitude be introduced? From the four following titles:

1. From pact, or one's own renunciation. For it is not repugnant that someone renounce his liberty in order to relieve his own need, etc.

2. From the right of war. For it is not repugnant that the victor sometimes inflict this penalty. For sometimes he could kill captives for the security of the nation; therefore a fortiori he could reduce them to servitude.

3. From delict, or from condemnation. For if a guilty person can be condemned to death, a fortiori to servitude, since deprivation of life is deservedly judged the greatest of all punishments.

4. From birth in a state of servitude, since by law those are slaves who are born from slaves. Thus from the law of nations, according to the common opinion. Inst. 1. 1. t. 3. sections 3, 4; Lugo d. 6. nn. 10-17; E. M.

Is the trade in Black persons lawful? It is altogether unlawful by every law, whenever Black persons are unjustly despoiled of liberty, and in crowds are transported from their regions like cheap cattle and sold, as happens in the nefarious commerce in them. Against so savage a trade various Apostolic Constitutions have come forth, namely of Paul III, Urban VIII, Benedict XIV, Gregory XVI, In supremo apostolatus, 3 Dec. 1839. Cf. the Letter of Leo XIII to the Bishops of Brazil, In pluribus, 5 May 1888, and the Letter Catholicae Ecclesiae, 20 Nov. 1890.

Those who have perpetrated so great a crime are bound at their own expense to vindicate them into liberty; and those who have bought them for a price must, even if they cannot recover the money, freely release them, insofar as this can be done without graver danger; for by retaining them they would continue the injury. But if there is question of Black persons or others existing in legitimate servitude, per se it is not absolutely unlawful, because once servitude has been admitted as legitimate, the master has a true right over slaves, or over their works, and therefore can transfer that right to others. Per se; for circumstances can obstruct, for example if a spouse would have to be separated from a spouse, or if civil laws forbid it, just as in fact servitude is generally forbidden in Europe. But a slave could flee if the master compelled him to unlawful things or treated him cruelly. Collectan. S. C. de P. F. nn. 2103, 2104, 2105, 2107; E. M.

Note: From C. I. 1628; C. G. 1780, someone cannot obligate his own labor into the service of another except for a determinate time and a determinate object. From C. H. 1583, someone can obligate his own labor without a fixed time, for a certain time, or for a determinate thing. Lease for one's whole life is null. From C. B. 624, lease of service for one's whole life is permitted. Nevertheless it can be rescinded after five years, with notice having been given before the last six months.

The Supreme Pontiff Pius X, in the Encyclical Letter to the Archbishops and Bishops of Latin America, Lacrimabili statu, 7 Jun. 1912, exhorts them to undertake paternal care for the miserable condition of the Indians, against whom cruel crimes and evils are committed. "This first," he says, "we earnestly exhort you, that whatever things have been instituted in your dioceses for the good of the Indians you most zealously promote, and likewise that you see to the instituting of those things which seem likely to be useful for the same matter. Then you will diligently admonish your peoples concerning their own most holy duty of assisting the sacred expeditions to the indigenous people who first inhabited that American soil. Therefore let them know that they ought to benefit this matter especially in a twofold way: by contribution of money and by the suffrage of prayers.... We condemn and declare guilty of a savage crime whoever dare or presume to reduce the aforesaid Indians to servitude, sell, buy, exchange, or donate them, separate them from wives and children, despoil them of their things and goods, lead and transport them to other places, or in any way deprive them of liberty, retain them in servitude; and also those who under any pretext and sought color furnish counsel, aid, favor, and assistance to those doing the aforesaid things, or preach or teach that this is lawful, and otherwise cooperate in any way with the foregoing." Therefore we will that the power of absolving penitents from these crimes in the sacramental forum be reserved to the local Ordinaries.

Is possession required for prescription? - It is certain that legitimate possession is required for prescription. This is clear both from civil law and from canon law: "Without possession prescription does not proceed." R. I. 3 in the Sixth. Possession as to things, quasi-possession as to rights, which consists in the use of a right, or in cessation from fulfilling an obligation, as if someone uses a servitude of passage or of aqueduct, if someone prohibits another from going through his land, or obstructs an aqueduct. Inst. 1. 2. t. 6; C. I. 2106; C. G. 2229; C. H. 1940; C. A. 1460; Laymann 1. 3. tr. 1. c. 8. n. 4; Struggl, Theol. univ. p. 2. tr. 8. d. 2. q. 3, a. 4. II; Troplong, della Prescrizione c. 2; E. M.

What of a possessor in good faith? A possessor in good faith, as soon as he knows the thing possessed to be another's, is bound to restore it, still extant, to the owner. The reason is that otherwise he retains another's good while the owner is reasonably unwilling, and therefore violates his strict right.

If meanwhile by his negligence he has made another's thing worse, he is bound to no compensation of damage. If he has lost or destroyed another's thing, even by his negligence, he is held to nothing. "He who neglected the thing as though his own is subject to no complaint." L. 31 § 3, Dig. de Haered. petit.; C. He. 938; C. L. 494; L. 607; C. B. 985, 993.

What of a possessor in bad faith? - A possessor in bad faith must restore the thing itself, materially or formally existing, for the thing cries out for its owner. Moreover, he is bound to compensate all damages which came to the owner from the unjust possession of the thing, for he is the per se efficacious cause of those damages. - Likewise he is bound to restore all those things in which he has been unjustly made richer from the unjust detention of another's thing; for no one can justly become rich from another's injury. C. A. 335; C. B. 985, 987-990, 992; C. He. 940; C. L. 496. According to C. I. 1147, he who received payment in bad faith is bound to restitution both of the capital and of the interest or fruits from the day of payment.

What of a possessor in doubtful faith? - A possessor in doubtful faith can be such either at the beginning or only during the course of possession. Concerning the first case it has been said above, n. 1327. Concerning the second, the discussion is here. - A possessor in doubtful faith must inquire after the true owner of the thing; otherwise he exposes himself to the danger of retaining another's thing through his own culpable negligence. Once inquiry has been made, and doubt perseveres, he can retain the whole thing if before the doubt arose he possessed in good faith. The reason is that peaceful possession of a thing in good faith exhibits moral certainty. L. 547, 608; Gousset 940, 1028; C. A. 323; C. I. 687; C. G. 550; C. H. 433.

Can the confessor at least sometimes, or when, use knowledge of Confession? - According to all theologians he can do this in the following cases: 1. to pray for the penitent, or to act more kindly toward him; 2. to consult books or wise men, prudently however, with danger of revelation excluded; 3. to direct himself by the experience acquired from Confessions, e.g., to temper rigor, and to direct himself from the Confession of one person toward prudently questioning or instructing others, while giving no suspicion of the prior Confession; 4. to reform his own morals, to correct his own defects, or to perform his office better, e.g., to cast off sloth, to watch more diligently over subjects generally, with suspicion of revelation in a particular case nevertheless excluded, and with any burden of the penitent and hatred toward Confession excluded, because each person is bound to correct his own defects as soon as he notices them; nor can any penitent reasonably be offended because the confessor, on account of things heard in Confession, changes his own life for the better, with no inconvenience or burden to him at all. 5. The same indeed is lawful in other similar cases, with the same restrictions always: that no revelation of Confession be had, no burden of the penitent, no hatred toward Confession. - L. 657.

What is the impediment of error, condition, and fury? As regards consent, there are impediments of marriage from error, condition, fury, fear, and abduction. Error dirimently impedes marriage by natural law if it is concerning the person, since it is a substantial error in the present matter, even if it is gross and concomitant, e.g., if Titius, falsely thinking that he is marrying Caia, says within himself: I would marry this woman even if she were not Caia. It is otherwise if he said: I wish to marry this woman, even if perhaps she is not Caia. Error concerning the qualities of the person, or concerning the nature and properties of marriage, provided that it is not concerning the thing itself of the contract, does not dirimently impede marriage. For it is very much in the interest of the public good that marriages not be dissolved because of any other error besides a substantial one, e.g., if someone contracts marriage with an error of fact, thinking that he is marrying a virgin, healthy, noble woman, and on the contrary marries a prostitute, a leprous woman, one born in the street, although he errs through the efficacious fraud of the spouse and certainly would not have contracted with such a woman; for this is an interpretative will, which, since it does not exist, can effect nothing. The same is to be said if someone errs with an error of law, thinking, for example, that marriage can be dissolved. And the same must be said if someone contracts while ignorant of the nature of the use of marriage. For for the validity of the contract of marriage it suffices to wish to contract as others contract, to wish to enter marriage as it was instituted by God and by Christ the Lord. A certain confused knowledge of marriage suffices, the general will of marriage prevailing and absorbing the aforesaid ignorance or error. Benedict XIV, de Syn., book 13, chap. 22, n. 7.

Three cases of accidental error must be excepted, which dirimently impedes marriage. The first case is when the quality is a condition under which consent is given; for it is manifest that when the condition is lacking, the conditioned thing, that is, consent, is also lacking.

The second case is when the quality is determinative of the person with whom one intends to contract; or when he does not know or determine the person with whom he contracts except from the indication and mark of that quality. Concerning this matter Pirhing, book 4, tit. 1, n. 163, says: "If by the quality in which there is error a certain and individual person is designated and conceived in the mind, who was previously unknown by sight, then error redounds into error of person." Likewise Sanchez, book 7, disp. 18, n. 38, says rather clearly: "To explain when error concerning a quality redounds into error of person dirimently impeding marriage, I say briefly that this happens when there is error concerning a quality which designates a certain person who was not previously known to the contracting party apart from that quality, namely except from that quality; and it is not established that the mind of the contracting party was to consent to the person present to him, whoever that person may be."

The third case is error concerning the servile condition of the spouse, which dirimently impedes marriage by ecclesiastical law, as is established from book 4 of the Decretals, tit. 9. This impediment no longer has place in Europe, not because the law ceases, but because the occasion is commonly lacking, unless perhaps in parts of the Turkish empire, or if some persons still bound to slavery should come from elsewhere into other parts of Europe. But error in this matter, according to the common opinion of doctors, dirimently impedes marriage even if it was gross. L. 1019; Schmalzgrueber, book 4, tit. 9, nn. 29-31.

But if the contracting party knows the servile condition of the other, or if a marriage contracted in ignorance is afterwards ratified after the error has become known, according to the opinion of all it is certain that the marriage is valid. But from the disposition of Canon Law, C. Si viduam 15, d. 34, one knowingly contracting with a female slave becomes irregular, L. 1018; Schmalzgrueber, l.c., nn. 15-18. And in the second case consent would have to be renewed before the pastor and witnesses, unless perhaps the nullity of the preceding contract were so altogether occult that it could not be proved; for then consent again emitted by the free party would suffice. Schmalzgrueber, book 4, tit. 3, n. 121, and tit. 9, n. 18. This impediment, moreover, as is clear, has force only as regards the marriage of a free person with a slave; for, and this must be carefully noted for places in which slavery still flourishes, marriages between slaves, beyond controversy, Schmalzgrueber, l.c., n. 7, are to be held valid, cf. C. 2, q. 2, c. 29, and St. Thomas, II-II, q. 104, a. 5, even if they are contracted without the consent of the master, C. Dignum 1, de Coniug. serv.; Schmalzgrueber, l.c., n. 10. Therefore just as a slave licitly contracts marriage even against the will of his master, so the master sins gravely against justice if he either positively impedes a slave from marriage, or treats him more harshly for this reason after he has contracted. Leo XIII, Letter, May 5, 1888; Sanchez, book 7, disp. 21, n. 15; Schmalzgrueber, l.c., nn. 13, 14. Italian Civil Code, 105; French Civil Code, 180; Austrian Civil Code, 57-59; German Civil Code, 1332-1334. "It must be said that madness either precedes marriage or follows it. If it follows, it in no way dirimently impedes it; but if it precedes, then either the madman has lucid intervals, or he does not. If he has them, then although, while he is in that interval, it is not safe for him to contract marriage, because he would not know how to educate offspring, nevertheless if he contracts, it is marriage. But if he does not have them, or if he contracts when he does not have them, then because there cannot be a contract where the use of reason is lacking, it will not be a true marriage." St. Thomas, Suppl., q. 58, a. 3. German Civil Code, 1325; L. 1009 ff.; St. Thomas, Suppl., q. 51, q. 52.

From defect of liberty, slaves are irregular where slavery is still in force, unless their masters have consented to ordination. Chap. 1 ff., de Serv. non ordin.; chap. Nulli 2, chap. Si servus 20, Dist. 24. To this somehow pertain, although in reality they are not irregular, married men, unless their wives consent and vow chastity, cf. 899; curials, i.e., those bound to a secular court by an oath having been given, as judges, advocates, etc., as long as they have such offices; soldiers, as long as they are bound by oath; treasurers, public depositaries, and those who administer the Republic, until they have renounced the office and rendered accounts, or satisfied creditors. Since these are not properly irregular, although they are prohibited from receiving sacred orders, if nevertheless they have received them, they are prohibited by no law from exercising them. Chaps. 1, 2, 3, Dist. 51; chap. Magnus un., de Oblig. ad rat. ord.; L. 455, 456; book 3, n. 838. St. Thomas, supplement, q. 39, art. 3; Pichler, book 1, tit. 17, n. 4 ff.; Schmalzgrueber, book 1, tit. 17, n. 2 ff.

Use is the right of using another's thing, its substance being preserved. Usufruct is the right of at once using and receiving fruit from another's things, their substance likewise being preserved.

593. • Principles. I. A usufructuary has the full use and fruit of another's thing, so that he makes all the fruits of the thing his own, and can dispose of them according to his pleasure, whether by himself or through another. The reason is that the usufructuary is judged to act as the person of the proprietor as regards useful dominion. - Thus by Roman Law and French Law.

II. The burden lies on the usufructuary both of furnishing custody and of undergoing expenses, if they are moderate, so that the thing may be preserved in its whole state, and also of making expenses so that he may receive natural fruits from it. He is also held to pay the ordinary burdens by which the usufructuary thing is burdened, such as salaries, annual taxes, and similar things.

III. The usufructuary must use another's thing as a good father of a family, and return it such as it ought to be found after good administration. But the proprietor can do nothing by which the condition of the usufructuary is made worse, because he suffers him to enjoy. - Thus various laws.

594. • Questions. Q. 1. How is usufruct acquired?

Resp. It is acquired 1. from law, and then it is called legal: such is the usufruct of parents from the goods of children, or of a husband from the goods of a wife; 2. from agreement or contract, and therefore it is called conventional.

Q. 2. How does usufruct cease?

Resp. It ceases 1. by the natural or civil death of the usufructuary; 2. by the time established; 3. by the destruction of the whole thing; 4. by consolidation, for example, if the usufructuary becomes owner of the thing; 5. by an all-mannered change, for example, if a meadow becomes a pond; 6. by abuse, by which through the fault of the usufructuary the thing is made worse; 7. by the renunciation of the usufructuary, provided it is not made in fraud of creditors ¹.

¹ These same things are valid as regards the acquisition or cessation of mere use. For (as L. 3, § 3, ff. De usufructu et quemadmodum, etc., has it) by the same modes by which usufruct both is constituted and is ended, by the same modes also bare use is customarily both constituted and ended.

595. • Resolutions. 1. Things consumable by a single act, such as wine, oil, bread, etc., do not come under use and usufruct, because by such use the substance of the thing is not preserved ².

² Usufruct can be had insofar as someone can consume things of this sort and then return their valuation.

2. The usufructuary has the faculty of receiving whatever is born on the estate, namely crops, hay, fruits of trees, etc.; to him also pertains the yield of fishing, the offspring of animals, their wool, milk, etc. Likewise he can cut in woods a certain portion of timber, namely that which a father of a family is accustomed to cut.

3. The usufructuary can cede his right to another by title of sale, leasing, or donation. But the very same cannot be said of a user; who nevertheless, if he has the right of using some house, will be able to dwell in it with his family, even if at the time when he acquired the use he was not married.

4. Natural and industrial fruits hanging at the beginning are received by the usufructuary without the burden of paying for cultivation, or seed, etc. And reciprocally, if he departs before the maturity of the fruits, he can reclaim nothing. But civil fruits are acquired from day to day, and therefore must be divided according to the proportion of time during which the usufruct lasted.

596. • Definition. Servitude, passively taken, is a burden imposed on a thing for the utility of another. - But actively taken, it is a right which someone has in another's thing, so that it may serve him ¹ or his thing.

¹ By this word "him," perhaps the Author indicates the broader range to which the name of servitude extends among the Doctors. For they take the name of servitude passively indeed for an obligation by which a thing or person is so bound to another that it serves him in some way; but actively for a right which inheres in someone, so that another's thing or another person may serve him.

Hence comes the distinction, concerning which the Author says nothing, according to which servitude can be 1. personal, which is owed by person to person, and is proper to a slave toward his master; 2. mixed, which is owed by a thing to a person, such as use, usufruct, habitation; 3. real, which is owed by a thing to a thing, and is customarily defined passively indeed as a burden imposed on an estate for the utility of another estate; but actively as a right inhering in an estate, so that another may serve it. And concerning this last alone both the Author and others are accustomed to treat in this place.

Division. 1. By reason of origin, servitude is either natural, legal, or conventional, according as it arises either from the disposition of places, or from law, or from mere agreement.

2. By reason of object, it is urban or rural, according as it is instituted for the utility of an urban or rural estate.

3. By reason of mode, it is continuous or not continuous, according as it can endure without the deed of man, as is the servitude of an aqueduct, or cannot be exercised without it, for example, the servitude of a path. Again it is apparent or non-apparent, according as it is openly declared by an exterior sign, for example, a door, window, etc., or lacks such a sign, as is, for example, the prohibition of building in some place, etc.

597. • Questions. Q. 1. What are the rights and obligations of servitudes?

Resp. Generally speaking, these depend on the nature of the thing, or on law, or on agreement; but these are chiefly established. 1. He who actively has a right to the servitude can perform all works which are necessary for using it and for preserving it. 2. If the estate for whose utility the servitude was constituted is divided, this servitude is owed to each part of that estate. 3. The owner of the servient estate can do nothing from which the use of the servitude could be diminished; and conversely he to whom the servitude is owed can do nothing whence the condition of the servient estate may become more burdensome. Thus natural equity bears, to which the laws also are consonant.

Q. 2. How are servitudes extinguished?

Resp. 1. By the established time having elapsed, or by the condition having been fulfilled; 2. by express or tacit renunciation; 3. by consolidation, by which the owner of the dominant estate becomes at the same time owner of the servient estate, or vice versa; 4. by prescription, or by non-use of the right of servitude for at least 30 years. Nay, since servitudes have the character of immovables, they can be prescribed through the space of time which is observed in prescribing these.

123. The right of freely disposing which belongs to perfect dominion is restricted in two ways:

(A) By the necessity of alienating, which the State can impose by force of eminent dominion: (a) on account of public utility:¹ for the particular good ought to yield to the public good; (b) on account of private utility,² which nevertheless redounds to the public good. In each case equitable compensation is owed, which generally is determined by the tribunals themselves.

¹ In France alienation of this kind, which is called expropriation for the cause of public utility, is established and defined by the law of May 3, 1841, in Riviere, Lois usuelles, p. 281-285.

² For France, cf. Civil Code, a. 682; Planiol, I, n. 1081-1087.

(B) By the prohibition of alienating, which can arise: (a) from a law prohibiting certain persons, e.g., minors, wives, interdicted persons, from alienating their goods; or prohibiting certain goods, e.g., a dowry estate, from being alienated; (b) from man, when the condition of not alienating is attached to some contract or testament.

130. (A) Notion. (a) The right of excluding others, which belongs to full dominion, is restricted through real servitudes (servitudes foncieres), which are defined: burdens imposed on some thing for the advantage of a thing belonging to another owner.²

² Cf. Civil Code, a. 637-710; Planiol, n. 1750-1926; Supplement, p. 16*.

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

131. (b) Servitudes are divided: 1) by reason of origin, into natural servitudes, which are founded in the situation of places or in the mutual relations of estates; legal, which arise from law; and conventional, which are established from a pact.

2. By reason of mode, into continuous servitudes, which can endure without the intervention of man, as an aqueduct; and non-continuous, which demand the intervention of man, e.g., the right of passing through a field or drawing waters; - into apparent, which are manifested by some external signs, e.g., a door or window; and non-apparent, which reveal themselves by no exterior sign, such as the prohibition that a house or wall be raised higher.

132. (B) Principles concerning servitudes. (a) He who suffers the servitude, or the possessor of the servient estate, cannot do anything from which the right of another would be impeded, diminished, or taken away; he can free himself from the servitude by relinquishing the servient estate.

(b) He who enjoys the servitude, or the possessor of the dominant estate, can, even on the estate of another, do whatever is necessary for the use of his right; but he ought to abstain from that which would render the condition of the servient estate worse.

For the rest, see the jurists.

Possession. A power existing in fact over a thing can accede to right, or right and fact are separated. Joined with right, possession gives to the one having the right all the advantages and privileges of a possessor. And even separated, according to itself, it binds a certain bond between the thing or right and the possessor, by force of which the possessor, as such, by the very law of nature is preferred to all who do not prove their right, and is sometimes also protected by several privileges of positive law.

Lest a more accurate exposition of a laborious question become too involved for the end of the present treatise, we shall use the customary definition, which nevertheless we shall temper or correct by a declaration of the words, reserving a somewhat fuller explanation for the smaller text. Therefore:

1. What possession is. Possession, which, as we all confusedly feel, is the connatural consequence of right, or a fact which regularly coheres with right, is still more commonly defined: detention of a thing with the mind of an owner.

In this definition, detention, which of itself would signify only the effect of corporeal apprehension, impossible in immovable things, must be taken much more broadly and even improperly; for it designates the relation of a thing to a person existing in fact, such as is required for freely taking the utility of the thing; or more briefly, a true apprehension or one equated in moral estimation. - Under the name of thing, they are also accustomed in some way to understand rights, yet in various ways. For some, considering that things alone can properly be possessed, in order to excuse the metaphorical use, add quasi-usufruct and quasi-possession of rights to the usufruct and possession of things; the Codes of France (art. 2228) and Italy (art. 685) equally admit possession of things and of rights, in these words: "Il possesso e la detenzione di una cosa o il godimento di un diritto che uno ha o per se stesso, o per mezzo di un altro, il quale detenga la cosa o eserciti il diritto in nome di lui"; better, in our opinion, and more consequently to the received division of dominion into direct and indirect, the Code of Germany (cf. arts. 854 and 868) acknowledges direct possession of the thing to the owner (true or supposed), but indirect possession to him who, on account of a right in another's thing or on account of a contract, e.g. of lease, readily dominates or is judged to dominate the thing. Finally, by the words "with the mind of an owner" there is excluded the possession of him who detains the thing for another. For someone can detain a thing through himself or through another. Detention itself is sometimes called the body of possession.

This is natural possession, which is born, remains, and ceases with the fact.

But, since possession is protected by positive law and is fortified by various privileges, possession to which positive law gives favor, i.e. civil possession, must also be considered. Moreover, positive law can deny its protection to certain natural possessions: thus certain sacred things cannot be possessed by a private person (c. 1510, §2), and c. 1695, §1, concedes an action of retaining possession only after a year. Of itself indeed it sanctions natural possession itself, so that for the most part natural possession is also civil; but sometimes it treats as possessor one who has lost natural possession: thus, by the laws of France and Italy, possession of land is not lost unless it has naturally ceased for a year; or it even judges him a possessor who never was a possessor. This possession is merely civil; or even most civil when it rests on civil law alone and was never natural. In the U.S.A., merely civil possession is called constructive possession or also possession in law or legal possession.

Fuller Explanation. Only the strange and not very scientific etymologies which once were admitted must be recalled. Thus Paulus, L. 1, Princ. D. De acquirenda possessione, wrote: "Possession is said from the feet, as if a placing of the feet"; others derived the name from the ancient pos, i.e. powerful, and sedeo, as if signifying: I sit with power.

2. But what possession is, jurists, according to Molina, tr. II, d. 12, n. 2, 3, always judged very difficult to define. Wherefore the Gloss on L. Stipulati, § Haec quoque, De verborum obligatione, pronounced: "the most expert have not dared to define possession." Then the definition of Hostiensis in the Summa was received rather commonly: "the detention of a corporeal thing by body and mind and with the support of right." Molina nevertheless judges that definition to be more causal than formal; he, in d. 17 of the same tr. 2, n. 3, proposes this formal one: "actual or habitual insistence in some thing, proceeding from apprehension by body and mind with the support of right." In this description, the word apprehension must be taken broadly and even improperly, and natural possession is not distinguished from civil. - Lugo, d. 2, n. 59, narrates the difficulty of the jurists, but neglects the question. In the nineteenth century, von Savigny (1779-1861), the illustrious interpreter of Roman law, propagated a definition similar to that of Hostiensis; after him, even the prudent men of our civil law began to speak expressly of the body and mind of possession. Recently, the celebrated Ihering, at the end of the nineteenth century, denied the necessity of the mind, since otherwise the demented would be incapable of possession; and he contended that the body of possession consists essentially not at all in physical power over the thing or in detention, or at least by no means formally flows from physical apprehension, since every possession is nothing other than a relation between person and thing existing in fact, such as relation the economic utility of the thing, which varies with the thing, requires. He proposed these things while the civil Code of Germany was being made; and he obtained that silence be kept concerning the mind, but not that possession be described otherwise than by physical power over the thing. (Cf. the text written by Savigny concerning the body of possession in the work of the magistrate de Meulenaere, Code civil allemand, Appendix and p. 230.) Concerning the body of possession we sufficiently agree with Ihering; we think that the difficulty made concerning the mind is none, since the same would return where there is question of the acquisition of dominion by the demented; namely, the persons who represent those incapable persons can have the mind for them.

For us, from the very notion of right handed down above, the description of natural possession is sufficiently convenient. For it is a relation of prevalence and subjection, existing in fact, between a thing and a person, which, if it is inviolable, constitutes the right itself.

What a Juridical Fact Is. A juridical fact is whatever, voluntary or non-voluntary, influences the various rights of persons. Nor can all voluntary things be recalled to contracts. Wherefore, under the name of juridical acts come testaments. Juridical facts are designations of offices, whether these have been sought or imposed on account of the common good. Juridical facts are delicts themselves and quasi-delicts.

I. To every right there is attributed some dominion, either toward the public common good, and it is jurisdiction; or toward the private good of the one having it and of his own, and it is the dominion of property.

II. To the dominion of jurisdiction pertains the so-called high dominion, by which, with regard to the common good, perfect society can order and moderate the exercise of the right of property, indeed, with the equality of justice preserved, which here easily becomes commutative and therefore exacts compensation of damage, can deprive a subject of his things. Now we must treat of private dominion alone.

III. In things there can be full dominion of property, which, with at least justice preserved, permits the owner use or enjoyment at will, exclusion of others even when use ceases, and disposition of the thing. By division it becomes imperfect: either, with utility excluded, there is preserved the right in the substance, which is called naked, direct, or also radical dominion; or it is of utility alone without disposition concerning the substance, which is called indirect or useful. This latter dominion can be dismembered, so that separately, in several subjects, there exist various partial rights which together would constitute full dominion. Concerning the individual ones briefly:

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

A fruit is "whatever is accustomed to be born and reborn from a thing." Those which a thing produces are called natural, at least in a broad sense; in the strict sense, if they are begotten by the nature of the thing alone; those which are owed to the industry of men are called industrial; while mixed are those which, as most are, are produced by the joined forces of nature and man. Finally, civil fruits are understood as monies which, from a contract concerning a thing, must be paid constantly after stated intervals: e.g. the annual price of a leased house.

Thus civil laws are accustomed to distinguish fruits according to their very nature; while the Code of Germany, attending also to the origin from which they come, distinguishes fruits of a thing, fruits of a right, and fruits which are owed to a juridical relation concerning a thing or right (art. 99 Cod. Germaniae).

In things which are consumed by first use, quasi-usufruct is constituted; what then, at the end of the usufruct, must be returned, the civil laws define.

2. Use and habitation, in certain laws, signify a circumscribed right merely of using a thing or habitation.

3. Servitude, passively, is a real burden by which an immovable thing is burdened in favor either of another fund (real servitude), or of a definite person (personal servitude).

For the acquisition, exercise, and extinction of servitudes, continuous and non-continuous, apparent and non-apparent, positive and negative servitudes must be distinguished.

5. Superficies designates dominion over all, or at least certain, things which are built or planted on another's fund.

6. Emphyteusis is a right in a thing, by which someone can enjoy another's thing fully for a long time or in perpetuity, under this law, that he pay something (a canon) to the owner, at least in acknowledgment of dominion. Liberation from that obligation is called redemption of the canon.

7. Thus far concerning rights which consist according to themselves. Besides, as accessory rights, existing merely for strengthening the execution of a principal obligation, there are: a) pledge, or a movable thing which, from a contract, is handed over by the debtor to the creditor, so that from it he may obtain payment of the debt before other creditors. Commercial pledge is distinguished from common pledge by facility of constitution and efficacy.

In certain laws antichresis is also acknowledged, as pledge of an immovable thing. And several other forms of security are acknowledged by laws today.

b) Privilege, or a disposition of law by force of which, for extinguishing certain debts (privileged debts), the goods of the debtor, either all (general privilege), or certain ones (special privilege), must serve before other debts (even hypothecary debts).

c) Hypothec, or, in another's immovable thing, the right by which the creditor can satisfy himself before others from the price of the thing. It is distinguished as legal, judicial, conventional.

Dominion can be singular or pertain to several. Undivided condominium is customarily little pleasing to modern laws, so that it cannot be established in perpetuity.

V. On possession. Possession properly is detention of a thing with the mind of an owner: in which definition detention must be taken very broadly; the thing can also be a right; the mind of an owner is opposed to the mind of possessing for another.

It is acquired by some apprehension of the thing - whether true or symbolic, which legally suffices - with the intention of an owner. But as long as the thing remains in our power, possession is preserved by the mind alone; indeed longer, if the law has so established. Possession itself in fact binds the thing to the possessor, so that deservedly he is preferred to others who do not prove a contrary right.

Besides this natural possession, there is also merely civil possession, which, by positive law alone, is judged to remain or to be constituted. There is also possession of right, which profits him who exercises that right as its owner.

Possession of good faith is distinguished, which, strictly taken, is joined with the persuasion of dominion or right, and possession of bad faith, or of him who knows the thing to be another's, or, in doubt, neglects due inquiry.

Simple detention of good faith is that of him who, without the mind of an owner, at least absolute, detains a thing, judging this to be lawful for himself.

Most broadly, every good faith signifies concord between intention and conscience.

Possession is called vicious with respect to him to whom force has been inflicted or possession concealed. Otherwise it is not vicious.

VI. What a juridical fact is. By this name is called every fact, voluntary or involuntary, which gives, takes away, or changes rights.

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).

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.

675. Definition. - Use (use) is the right of using another's thing, with its substance preserved, both as to form and as to matter. He to whom use belongs is called a user; but he to whom dominion of the thing belongs is called proprietor.

It is said: 1° right; for here we are treating of use of right, not of use of fact, which is nothing other than actual use of another's thing, revocable at the nod of the one conceding it, such as is the use of Religious as to things of the community handed over to them for use by a Superior or by the rule.

It is said: 2° of using, by which is signified 1) that the right belonging to the user extends only to those things which are necessary for daily use to him and his family, and to children about to be born to him, and guests, according to his condition. Hence, if a user at the beginning of the year has received those things which are necessary to him for the whole year and dies before the end of the year, his heirs must restore to the proprietor that which remains. - 2) That the user cannot transfer his right to another, for example by leasing a house to another, or by yielding the use of a horse to another; for use is judged to have been conceded to him and his own only, until it is clearly evident that a broader faculty was given to him.

It is said: 3° with its substance preserved, both, etc. Hence the user 1) cannot change the thing of which he has obtained the use even into a better form; 2) is bound to preserve the thing whole, i.e. in that state in which he received it, with the exception, as is clear of itself, of things which are consumed by first use.

676. Definition. - Usufruct (usufruct) is the right of at once using and enjoying another's thing, just as the proprietor himself, with its substance nevertheless preserved, both as to matter and as to form. The usufructuary is called the one to whom usufruct belongs.

It is said: 1) the right of at once using and enjoying, just as the proprietor himself. By these words is signified the principal difference which intervenes between use and usufruct. For the usufructuary has not only the use, but also full dominion of the fruits, so that he can dispose of them at his nod, whether by himself or through another; for he is judged to act the person of proprietor as to useful dominion of the thing.

It is said: 2) with its substance nevertheless preserved, both, etc. Hence the usufructuary: 1° must restore the thing to the owner in the state in which it ought to be found after good administration; 2° cannot change the thing, even for the better. Hence, if a pleasure-estate is given to him, he could not destroy unfruitful trees serving pleasant walks so that perhaps he may make kitchen gardens. Wherefore "if the tenant for life," who among us is equated with a usufructuary, "should, by neglect or wantonness, occasion any permanent waste to the substance of the estate, whether the waste be voluntary or permissive, as by pulling down houses" (voluntary waste), "suffering them to go to decay from the want of ordinary care" (permissive waste), "cutting the timber unnecessarily, opening mines, or changing one species of the land into another, he becomes liable, on a suit by the person entitled to the immediate estate of inheritance, to answer in damages, as well as to have his future operations stayed."¹

677. Division. - Usufruct is divided:

1° Into proper and improper. The former is constituted in things not consumable by first use, and concerning it the definition properly treats. But the latter is in things consumable by first use, such as bread, wine, etc. It is called improper or quasi-usufruct, because things consumable by first use cannot be preserved, and therefore through the use of them the substance of the thing does not remain preserved, as is required for usufruct. Yet usufruct can be had in these insofar as someone can consume things of this kind, and then restore to the owner the valuation of them.

2° Into usufruct by particular and universal title. The former is constituted in one or several movable or immovable things, yet determined, for example in such or such designated houses or lands. The latter is founded in the totality, or an aliquot part, of all the goods of the proprietor. Thus by common law a wife has usufruct of the third part of the immovables of her deceased husband.

3° Into legal, which is constituted by law, for example for a wife in the third part of the immovables of a deceased husband, and conventional, which is constituted by contract, for example by donation.

678. • The rights and burdens of a usufructuary, convention being set aside, in general are:

I. Rights. - 1° That he can perceive all fruits, whether natural or industrial, and make them his own, whether he has gathered them by himself or through others. Hence the usufructuary of a flock has right to the wool; the usufructuary of land to hay, crops, stones, willows, and all fallen trees, or trees which, when cut, grow again from stumps and roots. But fruits are understood to be gathered when they have been separated from the soil or from the thing. - Hence if a usufructuary dies, the fruits indeed mature but not yet separated from the soil or from the thing will not pertain to his heirs, but to the proprietor, without any compensation of cultivation, etc., being made. - But if the heir of a usufructuary about to die has gathered immature fruits, he is bound to restore them to the proprietor; for neither could the usufructuary himself gather immature fruits. - But he has a right in all civil fruits, for example the price of the leasing of a house or field, which nevertheless are not judged to be acquired except from day to day; therefore they belong to the usufructuary only in proportion to the time through which the usufruct endures.

2° That he can sell, donate, lease, and hand over fruits in pledge, for he who enjoys through another is judged to enjoy by himself, yet without damage to the proprietor. Therefore "tenants for life have power of making underleases," but only "for any lesser term."¹

II. Burdens. - 1° That he preserve the substance of the thing, according to what was said at n. 676. Therefore he is bound to ordinary or moderate repairs by which the thing is preserved whole, but not to extraordinary ones. Hence also the usufructuary of a flock is bound to substitute other heads from the offspring in place of heads dead, unless he has the usufruct of individual heads separately and not of all collectively.² For the same reason he cannot tear out fruit-bearing trees, and is bound to substitute other trees in place of dead trees;³ but "it does not please that trees overthrown by force of storm ... be substituted."⁴

2° "If the estate be charged with an incumbrance" (or taxes), "the tenant for life is bound, in equity, to keep down the interest" (or the amount of the taxes) "out of the rents and profits."¹

679. • Usufruct and use cease: 1° by natural death of the usufructuary or user; 2° by the appointed time; 3° by the destruction of the whole thing; 4° by consolidation, i.e. if the usufructuary or user becomes owner of the thing; 5° by every kind of change, for example if a meadow becomes a pond; 6° by abuse, by which the thing becomes worse through the fault of the one using; 7° by non-use, with prescription acceding, if meanwhile the proprietor uses it; 8° by renunciation of the usufructuary, provided it is not done in fraud of creditors. But legal usufruct is extinguished in the manner defined by the law itself.

You will ask first what possession is.

I answer. Possession is said from the position of the feet, because over immovables it is usually acquired by the position of feet. It is commonly defined: "Detention of a thing with the aid of body, mind, and right."

It is explained. It is said, "detention:" under which name is understood also the first apprehension, which is the beginning and acquisition of possession.

It is said, "of a thing," not only corporeal, as a field, a house, or movables, but also incorporeal, as an annuity, a benefice, a servitude, and similar rights, which are said to be possessed in a manner.

It is said, "with the aid of the body;" because it does not begin, nor is it possession, unless there comes an external or corporeal act by which the thing is apprehended by foot, hand, eyes, or some similar way, in itself or in another in which it is held to be contained, as I shall say presently.

It is said, "with the aid of the mind;" because the intention of possessing and holding the thing for oneself and not for another is required. Hence a depositary does not properly possess the deposit, nor a tutor the goods of a minor.

It is said, "with the aid of right," not that it is necessary that right approve it, otherwise every possession would be just, but because for possession it is required that right not impede the detention of a thing from being held its possession. For this reason, detention of a sacred thing by a layman is not possession, not even of fact, since right prohibits it; but detention of a stolen profane thing, though unjust, is nevertheless true possession of fact, because right does not impede the detention of such a thing from sufficing for possession.

You will ask secondly in how many ways possession is twofold.

I answer. Among the various divisions of possession (for one is just, another unjust, one in one's own name, another in another's name), the principal is into civil, natural, and most civil.

Civil is that which, begun with the aid of the body, is retained and continued by the aid of the mind alone. Thus he possesses civilly who is absent from his things, but holds and occupies them as his own in mind and faculty, so long as he is not cast out of possession by another. It is called civil, because it rests more on civil than on natural law, since the natural mode of possessing is by bodily insistence, and also because it produces a civil effect, namely prescription.

Natural is that by which a thing is occupied by body and mind together. But one is held to occupy corporally when he is so near the thing that he can be present to it immediately. This natural possession can be separated from civil: for a thief, e. g., possesses my thing naturally, I civilly, until by abstraction of it from place to place it is put outside my custody; for then I am cast out of civil possession.

Most civil is that which is acquired by the sole disposition of law, even by one who knows nothing of it, and therefore without the aid of body and mind. Thus the infant heir possesses the inheritance of the deceased, especially in France and the country of Liege, where the dead clothes the living: Le mort saisit le vif. The reason is, because the mode of acquiring possession is subject to human law, which can establish diverse modes according as it seems more expedient for the commonwealth.

You will ask thirdly whether, possession lost, dominion is always lost.

I answer negatively. For of a thing lost or taken by theft I lose possession, yet not dominion.

You will ask fourthly what are the privileges of possession.

I answer. The chief privileges of possession are: first, that it produces prescription; second, that in doubt the condition of the possessor is better; third, that it is not for the possessor to prove that the thing is his, but for the assailant to prove that it is not. Concerning possession see more among the interpreters of the laws.

Possession is the holding of a thing, or the enjoyment of a right, which someone exercises by himself or through another, yet in his own name. Holding of a thing is called possession simply, and enjoyment of a right quasi-possession. Each is divided into natural, civil, and mixed. Cf. Schmalzgr., lib. 2, tit. 12, n. 4. - Baller., note (a) and (b), p. 508.

Use is the right of using the thing of another, its substance being preserved. - It is called 1st. right, because this use is true dominion, and does not belong to those who have only use of fact, e.g., religious strictly so called. - It is called 2nd. its substance being preserved, because the right of destroying the thing or of abusing it belongs to him who has direct dominion or dominion of property. Usufruct is the right at once of using and of taking fruit from the things of another, their substance likewise being preserved. Wherefore usufruct imports more than use.

Question 1. What are the rights and burdens of a usufructuary?

Response. The usufructuary has the full use and enjoyment of the thing of another, so that at his own pleasure he can dispose of the fruits of the thing, whether by himself or through another. Yet he has the burden of using the thing of another as a good father of a family, and of returning it such as it ought to be found after good administration. Besides, upon him rests the burden both of providing custody, and of undertaking expenses if they are modest, and also of making expenditures that he may take natural fruits from it. The reason for all these things is that the usufructuary is considered to act as the person of the proprietor as regards useful dominion. But often from diverse agreements these rights and burdens are modified.

Question 2. How does usufruct cease?

Response. It ceases 1st. by the death of the usufructuary; 2nd. by the established time; 3rd. by the destruction of the whole thing; 4th. by consolidation, e.g., if the usufructuary becomes owner of the thing; 5th. by total change, e.g., if a meadow becomes a pool; 6th. by abuse, by which through the fault of the usufructuary the thing becomes worse; 7th. by renunciation of the usufructuary, provided it is not done in fraud of creditors. - Cf. Kenrick, nn. 94 and seq. - Bouvier, Law Dictionary, under the word Tenant.

Servitude is a right belonging to someone in the thing of another, by virtue of which the owner of the thing is held to suffer something in it, or not to do something, for the utility of that person. - It is called a right in a thing, not in a person; for if a person only were obligated to suffer or not do something, it would be called an obligation, not a servitude. Whence servitude is properly something of dominion which is taken away from him who owes the servitude, and accedes to him to whom it is owed. The taking away of this dominion is customarily called passive servitude, and the accession active servitude. Cf. Scavini, lib. 2, n. 517.

Servitude is divided in many ways. 1st. By reason of origin it is natural, legal, and conventional, according as it arises from the disposition of places, or from law, or from the mere agreement of the parties; 2nd. by reason of mode it is continuous and not continuous, according as it can last without an act of man, as is the servitude of aqueduct, or cannot be exercised without it, e.g., the servitude of passage. Again, it is apparent or not apparent, according as it is openly declared by an exterior sign, e.g., a door, window, etc., or lacks such a sign, as, e.g., the prohibition of building in some place, etc.; 3rd. by reason of object it is urban or rural, according as it is attached to an urban or rural estate. An urban estate is called any building erected for the sake of dwelling, whether in a city or in a village, and the garden annexed to it. - Rural estates are called a field, vineyard, meadow, stable for livestock separated from a house. Urban servitudes are four: 1st. that a beam be admitted into your wall; 2nd. that dripping water be received into your house; 3rd. that a wall not be raised higher; 4th. that a window not be opened in a wall. These two last do not seem to be in force among us. Some rural servitudes are called named, and are path, driving, road, aqueduct; and others unnamed, from the fact that they lack a special name in law. - Cf. Kenrick, nn. 97 and seq.

IV. Useful dominion is the right of using and enjoying another's thing, the substance of the same being preserved. One right is called the use of right, another the use of fact. But the use of fact is not a right, but the execution of a right. The proper right is the right of using, which is distinguished from other rights which afford no use, such as is the right of a depositary in the thing deposited, or of a creditor in a pledge. There is added and enjoying, which particle distinguishes usufruct from bare use: for a user is able only to use the thing to his own advantage; whereas a usufructuary can both use the thing and sell, alienate, or let out the fruits of the same, the substance of that thing being preserved. But the proprietary lord is able to alienate the thing itself. Usufruct is of two kinds, legal and conventional: the former is effected by law, the latter by agreement.

V. QUESTION II. What are the fruits which a usufructuary may enjoy, and what ought he to furnish? ANSWER. Whatever bears fruit, and can be perceived from it, is comprehended under the name of fruit. The usufructuary does not acquire dominion of the fruits unless they be gathered: wherefore if he die before the gathering, they belong to the lord. The usufructuary, as a good father of a family, ought to preserve the substance of the thing. If any head of the flock die or be rendered useless, if the plants of the vineyards wither, he is bound to substitute other fruitful head or plants. If without his negligence the things, or parts of the things, perish, whether by frost, hail, or invasion, he is held to nothing. The usufructuary may, with the proprietary lord consenting, but not if he refuse, cede his right to another.

VII. QUESTION IV. What is possession, and the manner of acquiring or losing it? ANSWER. It is the detention of a thing by the support of body, of mind, and of right. For true possession it is required that a man take possession of the thing in mind and in body, in the manner prescribed by law, namely with hands, with feet, or by another formula defined in the law. Possession is twofold. One is just, that is, of right together with fact. The other is unjust, and of fact alone. The former is called the detention of one's own thing with the right of detaining. The latter, on the contrary, is the detention of a thing as one's own without the right of detaining.

Titius thinks that by means of modern science the phenomena which theologians hitherto have been accustomed to attribute to diabolical possession can be sufficiently explained. Thus, in a recent case in which a certain nun is said to have received wounds inflicted by a demon, Titius attributes the phenomenon to the imaginative power of the nun herself; the power of the same nun to distinguish between ordinary and blessed water, a consecrated and an unconsecrated host, the effect of exorcism, and even knowledge of languages hitherto wholly unknown, Titius attributes to emanations from the brains of bystanders who knew those languages. Caius recognizes that such things are signs of diabolical possession commonly admitted not only by theologians but by the Church in the Ritual; hence he would very much like to know whether the explanation of Titius can be admitted. Hence it is asked:

1. Is diabolical possession truly found, and by what signs can it be established?

2. Can the theory of telepathy, or thought-reading, be admitted?

3. What is to be said of the case?

1. Does diabolic possession exist and by what signs may it be known? Diabolic possession certainly exists, as we know from the pages of Holy Scripture, and very similar cases have been reported in all times down to the present day. While the Roman Ritual warns priests not to be too ready to believe that anyone is possessed by the devil, it gives the signs by which they may be able to distinguish cases of true possession: “First, let him not easily believe that anyone is possessed by a demon, but let him know well those signs by which one possessed is distinguished from those who labor either from black bile or from some disease. The signs of a possessing demon, however, are: to speak many words in an unknown language, or to understand one speaking; to disclose distant and hidden things; to show strength beyond the nature of one’s age or condition; and other things of this kind, which, when very many concur, are greater indications.” — De Exorcizandis Obsessis a Daemonio.

2. Can the theory of telepathy, or thought transference, be admitted ?

Telepathy is the name given to a theory according to which thought may be transmitted from mind to mind through the ether or through other than the ordinary channels of sense. Many claim that the possibility of telepathy has been demonstrated by experiment. Others, however, stoutly deny this. Thus Dr. J. Milne Bramwell writes: "After many years’ hypnotic work, and frequent opportunities of investigating the experiments of others, I have seen nothing, absolutely nothing, which might be fairly considered as affording even the slightest evidence for the existence of telepathy, or any of the so-called occult phenomena.”¹ Sir Oliver Lodge and others invoke the theory of the subliminal consciousness in order to explain the wonders of hypnotism and spiritism. Dr. Bramwell rejects this and other theories as inadequate to explain the facts, and then adds: “As William James truly says, these manifestations of the hidden self are immensely complex and fluctuating things, which we have hardly begun to understand, and concerning which sweeping generalization is sure to be premature.”¹

1 Hypnotism, p. 142.

1 Hypnotism, p. 420. 2d ed., 1906.

3. The case. Titius thinks that the phenomena which theologians attribute to diabolical possession may be explained by the help of modern science. Thus in a recent case where a nun was said to have been wounded by the devil, Titius explains the facts by the force of the imagination. Theologians who are worthy of the name ask first for conclusive evidence of such alleged facts. If the wounds or other phenomena are certainly existent, theologians look for a natural explanation first, and only attribute them to the devil when all possible natural causes have been shown to be inadmissible. The nun's wounds may easily have been caused by some more ordinary means than her imagination, or in some special case the explanation of Titius might be the true one. Titius attributes to telepathy the nun's power to distinguish holy from common water, a consecrated from a non-consecrated host, the effect which exorcism produces on her, and her knowledge of languages hitherto unknown by her altogether. In this Titius has gone farther than science warrants. Whether telepathy exists or not in the very modest sense of transferring from mind to mind without the intervention of the senses the number of a playing card, or a geometrical figure, is still doubtful. Even granting that telepathy in this sense is vera causa, the gap from this to the applications of Titius is too wide for science to leap. Caius therefore will reject the explanation of Titius as being unscientific; but at the same time he will bear in mind the caution of the Ritual, which does not say that any one or two phenomena are indubitable signs of diabolical possession, but that when “very many such signs concur, they are surer indications” of diabolical possession.