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Hugo Grotius (1583–1645). The Rights of War and Peace. 1901.

Book II

Chapter X: The Obligation Arising from Property

  • Origin and nature of the obligation to restore what belongs to another—Obligation to restore to the rightful owner the profits that have accrued from the unjust possession of his personal or real property—A bona-fide possessor not bound to restitution if the thing has perished—Such bona-fide possessor bound to the restitution of the profits remaining in his hands—Bound to make reparation for the consumption occasioned by his possession—A possessor not bound to make a recompence for a gift, with an exception—The sale of any thing that has been bought, obliges the seller to make restitution, with a certain exception—In what cases a bona-fide purchaser of what belongs to another may retain the price, or a part of it—He who has purchased a thing of one who is not the real owner, cannot return it to that seller—The possessor of a thing whose real owner is unknown, not bound to give it up to any one—A person not bound to restore money received upon a dishonest account, or for service done—Opinion that the property of things valued by weight, number and measure, may be transferred without consent of the owner, refuted.

  • I. HAVING explained in the preceding part the nature and rights of property, it remains for us to consider the obligation which we incur from thence.

    Now this obligation proceeds from things either in existence, or not in existence, comprehending, under the name of things, the right also over persons, as far as is beneficial to us. The obligation, arising from things in existence, binds the person, who has our property in his power, to do all he can to put us again into possession of it. We have said to do all he can: for no one is bound to an impossibility, nor to procure the restoration of a thing at his own expence. But he is obliged to make every discovery which may enable another to recover his own property. For as in a community of things, it was necessary that a certain equality should be preserved, to prevent one man from having an undue share of the common stock; so upon the introduction of property, it became, as it were, a kind of established rule of society among the owners, that the person, who had in his possession anything belonging to another should restore it to the lawful proprietor. For if the right of property extended no farther than “barely to enable the owner to make a demand of restitution without ENFORCING it by LEGAL PROCESS, it would rest upon a very weak foundation, and scarce be worth the holding. Nor does it make any difference, whether a person has fairly or fraudulently obtained possession of a thing not belonging to him. For he is equally bound to restore it, both by the positive obligations of law, and by the principles of natural justice. The Lacedaemonians had nominally cleared themselves of the crime, by condemning Phaebidas, who, in violation of their treaty with the Thebans, had seized upon the citadel of Cadmea, but in reality they were guilty of injustice, by retaining the possession. And Xenophon has remarked that, such a singular act of injustice was punished by the signal providence of God. For the same reason Marcus Crassus, and Quintus Hortensius, are blamed for having retained part of an inheritance left them by a will, the making of which had been procured upon false pretences, but in the management of which they had no share. Cicero blames them, because it is understood to be settled by general agreement, that all men are to restore what they are possessed of, if another is proved to be the rightful owner. A principle by which property is firmly secured, and upon which all special contracts are founded, and any exceptions to this rule, contained in them, must be expressly named as such. This throws light upon the passage of Tryphoninus. “If a robber, says he, has spoiled me of my goods, which he has deposited with Seius, who knows nothing of the fact; the question is, whether he ought to restore them to the robber or to me. If we consider him as giving and receiving on his own account, GOOD FAITH requires that the deposit should be restored to him who gave it. If we consider the equity of the whole case, including all the persons concerned in the transaction, the goods should be restored to me, as the person unjustly deprived of them.” And he properly adds, “I prove it to be strict justice to assign to every one his due, without infringing on the more just claims of another.” Now it has been shewn that the justest title on which any one can claim, is that which is coaeval with the property itself. From whence the principle laid down by Tryphoninus, that if any one unknowingly received goods as a deposit, and afterwards discovers them to be his own, he is not bound to restore them. And the question, which the same author puts a little before respecting goods deposited by one, whose property had been confiscated, is better settled by this principle, than by what he says elsewhere on the utility of punishment. For as to the nature of property, it makes no difference, whether it arises from the law of nations, or from the civil law; as it always carries with it peculiar qualities, among which may be reckoned the obligation, under which ever possessor lies to restore a thing to its rightful owner. And hence it is said by Martian, that according to the law of nations, restitution may be demanded, of those, who have no, legal title to the possession. From the same origin springs the maxim of Ulpian, that whoever has found a thing belonging to another, is bound to restore it, even without claiming or receiving a reward for finding it. The profits also are to be restored, with a deduction only of reasonable charges.

    II. Respecting things, non-existent, or whose identity cannot be ascertained, is a principle generally received among mankind, that the person, who has become richer by that property, of which the rightful owner has been dispossessed, is bound to make him reparation in proportion to the benefit, which he has derived from his property. For the true proprietor may be justly said to have lost, what HE has gained. Now the very introduction of property was intended to preserve that equality, which assigns to every one his own.

    Cicero has said, that it is contrary to natural justice, for one man to improve his own advantage at the expence of another, and in another place, that nature does not allow us to increase our resources, riches, and power, from the spoils of others. There is so much of equity in this saying, that many legal writers have made it the basis of their definitions, to supply the deficiency of the strict letter of the law, always appealing to equity as the most sure and clear rule of action.

    If any one employ a slave, as his factor, to trade for him, he is bound by the acts of that factor, unless he has previously given notice that he is not to be trusted. But even if such notice has been given, where the factor has a property in the concern, or the master a profit, the notice shall be deemed a fraud. For, says Proculus, whoever makes an advantage from the loss of another is guilty of a fraud; a term implying every thing repugnant to natural justice and equity. He, who, at the instance. of a mother, has put in bail for her son’s advocate, has no action on the case against the advocate for what is called an assumpsit or undertaking. For it was not strictly his business, which the advocate managed; the bail was put in at the INSTANCE of the MOTHER. Yet according to the opinion of Papinian, an action on the case for the assumpsit, or undertaking will lie against the advocate, because it is with the bailor’s money that he is discharged from the risque of the costs.

    So a wife who has given to her husband money, which she may by law demand again, has a personal action of recovery against him, or an indirect action upon any thing purchased with the money. Because, as Ulpian says, it cannot be denied, that the husband has been made richer by it, and the question is, whether what he possesses belongs to his wife?

    If I have been robbed by my slave, and any one has spent the money under the supposition that it was the slave’s own property, an action may be maintained against that person, as being unjustly in possession of my property. According to the Roman laws, minors are not answerable for money borrowed. Yet if a minor has become richer by the loan, an indirect action will lie against him, or, if anything, belonging to another, has been pawned and sold by a creditor, the debtor should be released from the debt in proportion to what the creditor has received. Because, says Tryphoninus, whatever the obligation may be, since the money raised accrued from the debt, it is more reasonable that it should redound to the benefit of the debtor than the creditor. But the debtor is bound to indemnify the purchaser, for it would not be reasonable that he should derive gain from another’s loss. Now if a creditor, holding an estate in pledge for his money, has received from it rents and profits amounting to more than his real debt; all above that shall be considered as a discharge of so much of the principal.

    But to proceed with other cases. If you have treated with my debtor, not supposing him to be indebted to me, but to another person, and have borrowed my money of him, you are obliged to pay me; not because I have lent you money; for that could only be done by mutual consent; but because it is reasonable and just, that my money, which has come into your possession, should be restored to me.

    The later writers on the law have adduced this kind of reasoning in support of similar cases. Thus, for instance, if the goods of any one, who has been cast through default, have been sold, if he can make any good exception to the decision, he shall be entitled to the money arising from such sale. Again, when any one has lent money to a father for the maintenance of his son; if the father should become insolvent, he may bring an action against the son, provided the son is possessed of any thing through his mother.

    These two rules being perfectly understood, there will be no difficulty in answering the questions often proposed by Lawyers and Theologians on such subjects.

    III. In the first place it appears, that a person who has obtained possession of goods by fair means, is not bound to restitution, if those goods have perished, because they are no longer in his possession, nor has he derived any advantage from them. The case of unlawful possession which is left to the punishment of the law is entirely out of the question.

    IV. In the next place a bona-fide possessor of a thing is bound to a restitution of the fruits or profits thereof remaining in his hand. The FRUITS or PRODUCE of the THING ITSELF are here meant. For the benefit derived from a thing owing to the industry bestowed upon it by the occupier thereof, cannot belong to the thing itself, though originally proceeding from it. The reason of this obligation arises from the institution of property. For the true proprietor of a possession is naturally proprietor of the fruits or produce of the same.

    V. Such possessor in the third place is bound to make restitution of the thing, or reparation for the consumption of it occasioned by his possession. For he is conceived to have been made the richer thereby. Thus Caligula is praised for having, in the beginning of his reign, restored to different Princes along with their crowns, the intermediate revenues of their kingdoms.

    VI. In the fourth place, an occupier of lands, for instance, is not bound to make a compensation for the produce thereof which he has not reaped. For if dispossessed, he has neither the thing itself, nor any thing in the place of it.

    VII. In the fifth place, a possessor who has granted to a third person a thing of which a gift had been made to himself, is not bound to make a recompence to the original giver, unless he received it under stipulation, that if he granted it to a third person, and thereby spared his own property, he should make a return proportionable to such gain.

    VIII. Sixthly, if any one has sold a thing which he has bought, he is not bound to restitution of more than the surplus arising from the sale. But if he had received it under stipulation to sell, he is bound to make restitution of the whole price, unless, in transacting the sale he has incurred an expence, amounting to the whole price, which he would not otherwise have done.

    IX. Seventhly, a bona-fide purchaser of what belongs to another is obliged to make restitution to the real owner, nor can the price he paid be recovered. To this however there seems to be one exception, which is, where the owner could not have recovered possession without some expence; so for instance, if his property were in the hands of pirates. For then a deduction may be made of as much as the owner would willingly have spent in the recovery. Because the actual possession, especially of a thing difficult to be recovered, may be ascertained, and the owner deemed so much the richer by such recovery. And therefore, though in the ordinary course of law, the purchase of what belongs to one’s self can never constitute a bargain, yet Paulus the Lawyer says, that it may do so, if it has been originally agreed that we are to pay for the repossession of what another has belonging to us in his hands.

    Nor is it in the least material, whether a thing has been bought with an intention of restoring it to the owner; in which case, some say, that an action for costs may be maintained, whilst others deny it. For an action on the case, to recover a compensation for business done arises from the artificial rules of CIVIL LAW, and not solely from the simple dictates of natural justice; which are here the principal subject of inquiry.

    Not unlike to this is what Ulpian has written on funeral expences, in which he says, that a compassionate judge will not rigidly regard the bare labour that has been given, but allowing some relaxation in favour of equity, will shew indulgence to the feelings of human nature.

    The same writer, in another place has said, that if any one has transacted my business, not out of regard to me, but for his own interest, and has incurred expence on my account, he may bring an action on the case, not for what he has given, but for what I have gained by his labour and expence.

    In the same manner, owners, by throwing whose goods overboard a ship has been lightened, may recover a compensation from others whose goods were by that means saved. Because those persons are considered so much the richer by the preservation of what would otherwise have been lost.

    X. Eighthly, the person that has bought a thing of one, who is not the owner, cannot return it to that seller; because from the time that the thing came into his possession, he incurred an obligation to restore it to the lawful owner.

    XI. Again, if any one is in possession of a thing, whose real owner is unknown, he is not naturally, and necessarily bound to give it to the poor; although this may be considered as an act of piety, a custom very properly established in some places. The reason of which is founded on the introduction of property. For, in consequence of that, no one except the real owner, can claim a right to any thing. To the person therefore, who cannot discover such an owner, it is the same as if there really were none.

    XII. Lastly, a person is not obliged by the law of nature to restore money, which has been received upon a dishonest account, or for the performance of a legal act, to which that person was of himself bound. However it is not without reason that some laws have required restitution in such cases. The reason of this is, because no one is bound to part with any thing unless it belongs to another. But here the property is voluntarily transferred by the first owner.

    The case will be altered, if there be any thing iniquitous in the manner of acquiring the thing; as if, for instance, it be gained by extortion. This gives rise to the obligation of submitting to penalties, which is not immediately to the present purpose.

    XIII. The present subject may be concluded with a refutation of Medina’s false opinion, that a property in things, belonging to another, may be transferred without consent of the owner; provided the things are such as are usually valued by weight, number and measure. Because things of that nature can be repaid in kind, or by an equivalent. But this is only, where such a mode of repayment has been previously agreed upon; or where it is understood to be established by law of custom; or where the thing itself has been consumed, and cannot be identically restored. But without such consent, either expressed or implied, or excepting the impossibility just mentioned, the things themselves must be restored.