LITMIR.BIZ

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trouble; and, indeed, so that the other may have the faculty of recovering his own property if he should so desire, and the robber may have the inclination not to defend by violence the thing which he is called upon to restore. And it makes no difference whether this act of condoning has been performed expressly or tacitly, that is, of course, by dissimulation, and, although you could do so conveniently, by not starting a controversy, or for a notable length of time making no signs as though you cared to put forward some legal claim to that property. Hence, if, for example, he from whom something has been taken away should die, and, when he was transmitting to his heirs the rest of his goods under express designations, made no mention of the property which had been taken away from him, it appears that he is treating that property as derelict, and therefore his heirs cannot recover it from the present possessor. However, in order for this act of tacit condonation to satisfy the conscience, it seems to be altogether required that it should somehow or other be brought to the attention of the former owner that the possessor is ready to restore his property if the former should demand it back.

25. But if, in truth, property unjustly taken away has come under a good title to a third party who is effectively ignorant of the fact that the second party is an unjust possessor of it (for he who knowingly, for example, has bought stolen goods, brings upon himself also the fault attending the acquisition, and therefore is required to make restitution, and he from whom the thing has been taken can appropriate it in the same way as he can appropriate it from the robber), and he from whom it had been taken chances to light upon it, the question arises whether he may immediately lay hands upon his own property and compel by litigation that third possessor to turn it over, leaving it to him to bring against the man who had alienated from the other faulty <47> property of this kind, an action for the reparation of damage; or, indeed, whether, leaving out of consideration the third possessor, one ought to go after the robber himself, so as to make him restore the property either in value or in nature, the transaction being instituted with the third possessor. In this case, although in many places positive laws favour the one from whom property has been taken, and grant him the right of laying hold of it wherever it has been found, nevertheless, those who follow the mere law of nature must carefully determine whether his ignorance regarding the fault which adheres to this piece of property, has been contracted by some negligence, or, indeed, not. For if the third possessor not only saw no fault adhering to the property, but, more than that, neither from the condition of the property, nor from that of the vendor could have suspected it with any degree of probability, as, for example, when it is a public presumption that such and such a man can possess such and such property with a good title, then it does not appear that the third party must be dealt with directly, but that the inconvenience must be brought upon the robber alone. For, inasmuch as the former had acquired that property in a way which is commonly recognized, and he could not have been aware of the fault, there is no apparent reason why he himself, rather than the man who is trying to recover his own property, ought either to be deprived of the aforesaid property without compensation, or weighed down with the burden of extorting payment for the damage from the man who sold it to him. For the faultiness in acquisition has not passed with any effect to such a possessor, because faults of that kind adhering to things, and obligations resulting to persons from them, cannot be derived upon a third person without an act or culpable omission on his part, such as is not found in the present case. The situation, however, is different when the condition either of the thing or of the person produces the probable suspicion that the property in question has been faultily acquired, or else an edict has been issued that no one should buy anything from such persons, edicts of that kind being promulgated not infrequently in war with regard to soldiers; for here the fault of failure to make proper inquiry about the property leaves the third person no ground for taking exception to the first owner coming into possession of his own property by the shortest possible route.

26. Now we lose proprietorship and right to property when we either treat it as derelict, or by any means whatsoever alienate it, or transfer it to another. It is easy to infer from the modes of acquisition the number of modes in which this takes place. For whenever another person acquires in a legitimate mode that which was our own, or we in any way whatsoever irrevocably transfer to another our right to the property, then that property ceases to be ours. Now, although through death a person ceases to be among men, and by that very fact every <48> right of his over persons and things expires, nevertheless, because it seemed undesirable that that which a man had acquired with such labour throughout the whole course of his life, should be regarded as derelict upon his death, in such a way that any one whatsoever might have the faculty of appropriating it to himself, it has been introduced by the customs of nations that even those goods which a person, while he was yet among the living, had not yet transferred or alienated to another, should go to him to whom the deceased wished them to go. That wish is either expressed or presumed. The latter is the case in instances of intestate succession, when a person has died without a will. For then the presumption of the wish on the part of the deceased ordinarily favours those who are the next of kin, among whom the very next of kin are severally understood to have the strongest right. Now the expressed wish of the deceased is learned from the testament, the codicils, or by whatever name those final dispositions are listed, by means of which the property is alienated in the event of death; but before death this alienation is revocable, and in the meantime the full right to the property which obtained before is kept. Hence the effect of these dispositions is not that, as soon as they have been conceived and expressed in signs, proprietorship of the property passes over to the heir, and the usufruct remains with the testator during his lifetime, but that the entire ownership remains with the testator, while the right of the heir begins only at the moment of the testator’s death. The evident proof of this position is the fact that, even after the making of a testament, the testator is able to alienate the property, nay more, he can utterly change the heirs as well as the testament, without any complaint on the part of the previously recorded heir.

      As for the rest, although natural equity and ordinary affection (which, however, does not render unavailing whatever has been done in its despite) has been wont to urge that a man should leave his goods to his children or to relatives, rather than to aliens, unless by some notable fault the former have rendered themselves unworthy; yet, since nothing is required from parents as a natural debt other than that they should be at pains, according to their means, to have their children well brought up until they may be able to look out for themselves adequately; it rests in the free will of any man whatsoever, quite apart from the disposition of civil laws, to decide what he chooses to leave his children beyond that debt, and what, if anything at all, he chooses to leave relatives, out of his own goods. To have this situation the more clearly recognized, a number of civil laws have ordered that certain formalities be observed, and that, if they are not in evidence, the testament should be void, and this for the reason that it is not presumed that this was truly his desire, which he did not express in that way in which alone he knew it could be valid. Although, truly, <49> civil laws can define what a man ought to leave and to whom, nevertheless, the very complaints about a testament which is contrary to one’s duty do not so much raise the doubt as to whether the testator had the right to dispose of his own property according to his free will, as they seek from the judge that the reasons which moved the deceased be looked into, because he willed to do something which was contrary to common inclination, so that, if it be found that he had abused his authority [potestate], owing to the deception or fraud of others, the goods may by public authority [autoritatem] be assigned those to whom they would otherwise have come, if, indeed, he had brought reason to counsel rather than inconsiderate emotions. And the statement is not unqualifiedly true that parents acquire all things for the sake of their children, for each one primarily acquires for his own sake, and that which exceeds his own particular needs he is willing then to have go to those who are dearest to him, such as are ordinarily considered to be his children and his next of kin. But this is easily understood, namely, that he whose goods are held in a restricted mode of tenure can make no disposition of anything to the injury of the one who has had some superior or prior right in those goods; and this follows from the common axiom that no one can confer more right to another than he himself possesses.⁴⁰ Hence, in testaments, not only can no valid disposition be made which is contrary to the laws of the state,

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