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the science of right-第17章

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  The confusion of personal right with real right may be likewise

shown by reference to a difference of view in connection with

another contract; falling under the head of contracts of hiring (B II。

I); namely; the contract of lease (jus incolatus)。 The question is

raised as to whether a proprietor when he has sold a house or a

piece of ground held on lease; before the expiry of the period of

lease; was bound to add the condition of the continuance of the

lease to the contract of purchase; or whether it should be held that

〃purchase breaks hire;〃 of course under reservation of a period of

warning determined by the nature of the subject in use。 In the

former view; a house or farm would be regarded as having a burden

lying upon it; constituting a real right acquired in it by the lessee;

and this might well enough be carried out by a clause merely indorsing

or ingrossing the contract of lease in the deed of sale。 But as it

would no longer then be a simple lease; another contract would

properly be required to be conjoined; a matter which few lessors would

be disposed to grant。 The proposition; then; that 〃Purchase breaks

hire〃 holds in principle; for the full right in a thing as a

property overbears all personal right; which is inconsistent with

it。 But there remains a right of action to the lessee; on the ground

of a personal right for indemnification on account of any loss arising

from breaking of the contract。



     EPISODICAL SECTION。 The Ideal Acquisition of External

                   Objects of the Will。

         32。 The Nature and Modes of Ideal Acquisition。



  I call that mode of acquisition ideal which involves no causality in

time; and which is founded upon a mere idea of pure reason。 It is

nevertheless actual; and not merely imaginary acquisition: and it is

not called real only because the act of acquisition is not

empirical。 This character of the act arises from the peculiarity

that the person acquiring acquires from another who either is not yet;

and who can only be regarded as a possible being; or who is just

ceasing to be; or who no longer is。 Hence such a mode of attaining

to possession is to be regarded as a mere practical idea of reason。

  There are three modes of ideal acquisition:

    I。 Acquisition by usucapion;

    II。 Acquisition by inheritance or succession;

    III。 Acquisition by undying merit (meritum immortale); or the

claim by right to a good name at death。

  These three modes of acquisition can; as a matter of fact; only have

effect in a public juridical state of existence; but they are not

founded merely upon the civil constitution or upon arbitrary statutes;

they are already contained a priori in the conception of the state

of nature; and are thus necessarily conceivable prior to their

empirical manifestation。 The laws regarding them in the civil

constitution ought to be regulated by that rational conception。



               33。 I。 Acquisition by Usucapion。

                   (Acquisitio per Usucapionem)。



  I may acquire the property of another merely by long possession

and use of it (usucapio)。 Such property is not acquired; because I may

legitimately presume that his consent is given to this effect (per

consensum praesumptum); nor because I can assume that; as he does

not oppose my acquisition of it; he has relinquished or abandoned it

as his (rem derelictam)。 But I acquire it thus because; even if

there were any one actually raising a claim to this property as its

true owner; I may exclude him on the ground of my long possession of

it; ignore his previous existence; and proceed as if he existed during

the time of my possession as a mere abstraction; although I may have

been subsequently apprized of his reality as well as of his claim。

This mode of acquisition is not quite correctly designated acquisition

by prescription (per praescriptionem); for the exclusion of all

other claimants is to be regarded as only the consequence of the

usucapion; and the process of acquisition must have gone before the

right of exclusion。 The rational possibility of such a mode of

acquisition has now to be proved。

  Any one who does not exercise a continuous possessory activity

(actus possessorius) in relation to a thing as his is regarded with

good right as one who does not at all exist as its possessor。 For he

cannot complain of lesion so long as he does not qualify himself

with a title as its possessor。 And even if he should afterwards lay

claim to the thing when another has already taken possession of it; he

only says he was once on a time owner of it; but not that he is so

still; or that his possession has continued without interruption as

a juridical fact。 It can; therefore; only be a juridical process of

possession; that has been maintained without interruption and is

proveable by documentary fact; that any one can secure for himself

what is his own after ceasing for a long time to make use of it。

  For; suppose that the neglect to exercise this possessory activity

had not the effect of enabling another to found upon his hitherto

lawful; undisputed and bona fide possession; and irrefragable right to

continue in its possession so that he may regard the thing that is

thus in his possession as acquired by him。 Then no acquisition would

ever become peremptory and secured; but all acquisition would only

be provisory and temporary。 This is evident on the ground that there

are no historical records available to carry the investigation of a

title back to the first possessor and his act of acquisition。 The

presumption upon which acquisition by usucapion is founded is;

therefore; not merely its conformity to right as allowed and just; but

also the presumption of its being right (praesumtio juris et de jure);

and its being assumed to be in accordance with compulsory laws

(suppositio legalis)。 Anyone who has neglected to embody his

possessory act in a documentary title has lost his claim to the

right of being possessor for the time; and the length of the period of

his neglecting to do so… which need not necessarily be particularly

defined… can be referred to only as establishing the certainty of this

neglect。 And it would contradict the postulate of the juridically

practical reason to maintain that one hitherto unknown as a possessor;

and whose possessory activity has at least been interrupted; whether

by or without fault of his own; could always at any time re…acquire

a property; for this would be to make all ownership uncertain (dominia

rerum incerta facere)。

  But if he is a member of the commonwealth or civil union; the

state may maintain his possession for him vicariously; although it may

be interrupted as private possession; and in that case the actual

possessor will not be able to prove a title of acquisition even from a

first occupation; nor to found upon a title of usucapion。 But; in

the state of nature; usucapion is universally a rightful ground of

holding; not properly as a juridical mode of requiring a thing; but as

a ground for maintaining oneself in possession of it where there are

no juridical acts。 A release from juridical claims is commonly also

called acquisition。 The prescriptive title of the older possessor;

therefore; belongs to the sphere of natural right (est juris naturae)。



               34。 II。 Acquisition by Inheritance。

                   (Acquisitio haereditatis)。



  Inheritance is constituted by the transfer (translatio) of the

property or goods of one who is dying to a survivor; through the

consent of the will of both。 The acquisition of the heir who takes the

estate (haeredis instituti) and the relinquishment of the testator who

leaves it; being the acts that constitute the exchange of the mine and

thine; take place in the same moment of time… in articulo mortis…

and just when the testator ceases to be。 There is therefore no special

act of transfer (translatio) in the empirical sense; for that would

involve two successive acts; by which the one would first divest

himself of his possession; and the other would thereupon enter into

it。 Inheritance as constituted by a simultaneous double act is;

therefore; an ideal mode of acquisition。 Inheritance is

inconceivable in the state of nature without a testamentary

disposition (dispositio ultimae voluntatis); and the question arises

as to whether this mode of acquisition is to be regarded as a contract

of succession; or a unilateral act instituting an heir by a will

(testamentum)。 The determination of this question depends on the

further question; whether and how; in the very same moment in which

one individual ceases to be; there can be a transition of his property

to another person。 Hence the problem; as to how a mode of

acquisition by inheritance is possible; must be investigated

independently of the various possible forms in which it is practically

carried out; and which can have place only in a commonwealth。

  〃It is possible to acqu
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