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THE TRANSMISSION OF RIGHTS, AND
THEIR CONSEQUENT MODIFICATIONS

Chapter 2 (Part one)

Transmissions of rights which change their subject but not their form

1263. We have already said that the modifications of rights are sometimes reduced simply to a change of subject possessing a right; at other times, they consist in a change in the form of the right itself. The modifications which consist in the change of a subject of right and those which affect the form of right take place on the occasion of the transmission of rights.

In this chapter, therefore, we shall speak of the ways by which rights are simply transmitted from one subject to another without any change in the form of these rights. We shall deal later with the variations which take place in the form of right.

1264. The transmission of rights occurs in two ways, as we have seen: 1. when one subject abandons his right and another occupies it; and 2. through contracts. Let us see how rights can be passed from one subject to another in both ways while preserving their integrity and form.

1265. It is clear that if someone abandons part of his ownership, whether willingly or not, the right of ownership has to this extent simply changed its master without sustaining any division or alteration.

1266. This way of changing one owner for another takes place first of all in the cases we have listed above. It often occurs with nomad tribes and in colonies where people, having dwelt in a place and half-cultivated it, abandon their land for something better. It also occurs when rich people dispose of what is useless to them, but helpful to the poor. Another case in point is that of animals who have lost their master and regained their freedom, or of things whose owners cannot be traced. In all these cases, the object changes owner in the way we have described.

1267. If an owner is a collective, perpetual body, it is clear that, as individual members enter or leave the society, the ownership continually adhering to that body devolves upon differing numbers of members.

1268. This is the case with communal goods in Communes, and with all rights pertaining to members of States, provinces or districts; it is also the case with ownership in religious societies, relative to the use of and benefit from such goods. By entering these bodies, members acquire the rights connected with them, just as they lose them as soon as their membership lapses.

1269. The same is to be said in the case of a lifelong contract by which several persons agree to enjoy together a certain quantity of substances and rights with the entire benefit devolving successively upon the survivors until the death of the last.

1270. It is true that in all these cases we are dealing with a social contract or quasi-contract. To this extent, the transmission of rights under consideration could be regarded as part of the second manner of transference of ownership, that is, by contract. But we think it better to mention it here, while we are dealing with the first manner of transmission, because the social contract, or quasi-contract, is only the remote cause of the transmission of rights. It is in fact an occasion rather than a cause of transmission. The proximate cause on the other hand is, properly speaking, people's entry into the collective, owning body, or their departure from it.

1271. The family itself, according to the Right of nature, is also a collective body in possession of rights.

1272. In the family, man and woman are simply two portions of a single human being. Love unifies their life, their souls, their bodies. In this single being, the man is by nature the head, the ruler;(321) the child is the offspring of the union. Love, the principle of this union, flows down to the child which it holds indivisibly united to the twofold root.

1273. In order to know the nature of this natural unification of three persons in a single being, we have to abstract from whatever occurs outside or contrary to nature. We cannot reach any clear knowledge of the nature of family if we mingle within its concept the divisions and rifts springing from the free activity of its members. This, of course, is true of anything: we cannot know its genuine nature if we either destroy it or examine it in the light of deformed and corrupt reflection.

1274. This, I think, is the principal reason why many legislators offer such a poor definition of what composes family society. They fix their attention only upon the ignorance and weakness, the internal divisions, and all the abuses that can be perpetrated freely by each individual who forms part of a family, but usurps what belongs to others and tears the family apart. All this must be taken into account by legislators whose obligation it is to help diminish or heal such evils. Nevertheless, such deficiencies must be ignored from the outset when we are endeavouring to establish the theory of family right. First, we have to know what the family is in itself according to nature, and then concentrate on its natural, original Right.

1275. In considering this society as a collective, owning body, we find ourselves faced with the question: `Is there natural succession in families in such a way that ownership is transmitted naturally as people come into ownership through birth and relinquish it through death?' This is our question. First, I shall state my opinion, and then resolve the difficulties that arise.

1276. When we look at the origin of mankind, we see a single family, composed first of two individuals, husband and wife, and then of children also. As we said, this family is a society possessing the greatest unity that can exist between individuals of the human species: the father has the responsibility of governing and representing the family; the mother, subject to the father and superior over the children, acts as quasi-mediatrix between father and children. She puts them in touch with the father's commands, which she adapts and moulds for them, and fills out with her own authority whatever the father has left her to determine and decide.
In order to see what kind of transmission of rights must take place in this society through the death and birth of its individual members, we first consider the family in parents without offspring; we look at the couple's co-ownership and their mutual succession. Later, we consider the family enriched with children.

1277. Woman, when joined to man in an indivisible society, subordinates herself to him and consequently cedes to him all that she owns.

1278. This subordination and natural secession to her husband of what she possesses, although a transmission of ownership,(322) is however a relative and incomplete transmission.(323) In other words, the woman loses her ownership over all that she has relative to her husband with whom she forms a single indivisible unit, but not relative to other persons, for whom she remains the owner she was before her marriage. On the contrary, she now becomes the owner also of all the goods of her husband, with whom she is associated as co-owner.

1279. The nature of relative ownership springs, as we have said, from the following principles: 1. Whoever has full right of ownership over something belonging to another by right of relative ownership can use what is owned and even consume it, but only in a reasonable way. Outside this limit, he injures the right of the relative owner.

1280. 2. There may be co-ownership, as a result of association, between a person who has full right over something and another who has a right of relative ownership over the same thing. In this case, the former must use the goods held in common for the ends proper to co-ownership and to society. In the case of husband and wife, therefore, these goods must be employed for family expenses in proportion to their respective quantity.

1281. It is the responsibility of the absolute owner, that is, of the husband, to judge what is to be spent not only for family necessities, but also for the moral and physical benefit and betterment of the family and for decent pleasures. In carrying out this responsibility, he must not consume in a matter of days what he possesses for his own support and that of others, but take into account the continuation of such benefits for all the family.

1282. 3. As we said, the nature of the relative owner is such that his right of ownership is limited relative only to the person of the full owner. Consequently, the relative owner has preference with respect to all other persons in the use and dominion of these goods, and takes full possession of them when the full owner relinquishes them.

1283. This does not mean that the relative owner can limit the full owner's use and consumption of the goods, provided that they are used up reasonably and with the qualifications we have indicated. But the relative owner certainly has the right to require that these goods should be identified and distinguished from all other belongings of the full owner. What remains at the full owner's death will then pass entirely to the full ownership of the relative owner.

1284. In our case, if the wife's goods are found to be indicated in this way at the death of the husband, she can take possession of them immediately.

1285. It is true that the wife naturally succeeds to what belongs to her husband. However, others may have some relative ownership of those things of which she has now become full owner. A case in point is that of children, if the husband has left living offspring.

1286. The relative right that children have to the goods left by their father impedes the widow's full right over these goods except in so far as she is head of the house. As long as she lives in domestic society with her children as mother and ruler of the household, she dispenses all the family goods as the father did during his lifetime. But she dispenses them solely by this title; if she ceases to be head of this society, her power to dispense the goods left by her husband to his own family also ceases.

1287. The widow could cease to be head of the house of her dead husband because she retains her right to remarry and enter the house of another man after leaving her former house. In this case, she could not bring to her new family, of which she becomes a part, the goods of her husband, but only those which belonged to her originally. Her husband's goods belong by nature to the children who continue the family of which the widow has ceased to be head.

1288. However, if the children of the first husband lack what is needed for their support and education, she would have the natural jural duty to provide for them with her own goods, which she would not be able to bring in their entirety to the family of the new husband.

1289. If she is a widow without children, she may continue to live as a daughter in her father-in-laws house until her death, if her husband had not separated from him to form a household of his own. In this case, the father-in-law' should succeed to all the goods of the intestate widow of his son. She has in fact continued to be part of the son in his affection, which is the moral foundation of ownership.

1290. If the widow remains without children and father-in-law, she forms a family on her own. What originally belonged to the husband would naturally fall to his descendants; what originally belonged to her own paternal family, to these descendants [App., no. 7].

1291. If the wife were to predecease her husband, he would succeed to all her goods (unless some other agreement had been made with her father or family before the marriage but we prescind from that here) and become owner to the fullest degree without having to hold separately from his own goods what had belonged to her.

1292. If the husband has had children by the widow and remarries, the new wife, on entering the household, ought according to nature and reason form a single family with the husband and his children. On her death, whether she has children or not, what she owns is entirely her husband's. However, what remains of her goods should, at the death of her husband, be transmitted to her surviving children. These succeed to their mother as relative owners, while the widower continues as their full owner.

1293. Hence the husband should provide an exact account of all that belongs to his first and successive wives so that their offspring may, at his death, come into ownership of their mothers' remaining goods.(324)

We must now consider natural, consanguineous succession.

1294. In deducing this succession, and the previous one, we always have to begin from the principle of a permanent, co-owning society. Note carefully that an unequal society composed of superiors and inferiors does not render co-ownership impossible, but simply ensures that its various members enjoy an unequal right of ownership.(325)

1295. Granted this, we go on to note that if there are children in the family and the father dies, the family continues to exist and possess what it already has. The sole difference is that the mother has become the head of the family. It is understood that the laws of wise government which are obligatory for the father are equally binding on the mother. However, this does not diminish the authority that the mother possesses by nature.

1296. If the mother dies, the body of the family still exists. All the siblings together have co-ownership of the paternal and maternal estate.

1297. They can enjoy it in common, but in doing so have necessarily to set up amongst themselves some agreed administration. By natural Right, none of them is superior to the others, provided they are all adults.

1298. If the survivors wish to divide the estate, there is no reason why family goods have to be shared in unequal portions,(326) why daughters should have less than sons or be excluded from inheritance [App., no. 8]. All receive an equal part, therefore, in the goods possessed by the moral body, called family, to which they belong.

1299. Here we need to reconsider the nature of domestic society. The family is a collective body with its own proper nature. It is composed of individual persons, although everything personal is incommunicable and thus outside the society.

1300. Consequently, the head is a governor who cannot sacrifice the good of the society to his own individual good, but can nevertheless enjoy the society's goods provided its greater good is safeguarded.

1301. Again, the head must acknowledge and respect the bond of ownership which, although conditioned, has been contracted and is contracted with things by the individual members of the family.

1302. As we have said, the wife has a right to claim that the goods she brings to the husband's house should be identified so that she may take possession of them after his death. In the same way, any ownership acquired by the wife herself or one of the children through their own work belongs in the state of nature to the father or the surviving mother, but in such a way that of its nature it remains with the member who has earned it when the head of the family is no more. It is understood that this member has not renounced the ownership by willingly placing it in the common substance.

1303. The father, therefore, and after him the surviving mother, is master of all that belongs to the single members of the family within the limits of certain laws. One of these states that `what remains at the death of the parents is divided into that which belongs to all, and that which belongs to the individuals who have acquired it, say, by their individual work. The two kinds of substance have to be kept distinct and as such reserved for the individuals until the death of father and mother.

1304. If, therefore, a subject-member of the family acquires some new ownership through his personal work, it is just, despite the ownership that the head of the family has over the thing as long as he lives, that it should be identified at the request of the person who has acquired it. This ownership can then be distinguished when the head of the house and his right is no more, and the right of ownership restored to the one who would have acquired it if parental power had not impeded its full acquisition.

1305. The father or the surviving mother has the ownership of these goods but also the obligation to harmonise their right of ownership with that other right of ownership which the member acquiring the goods retains relative to all other human beings, and which he loses relative only to his parents and for the duration of their lives. At the death of the parents', these goods pass by that very fact to the member of the family who acquired them.(327)

1306. As long as one of the parents is alive, the subject-member of the family is not the owner, except in relationship to other people. As head of the house, the father is the full owner of every material substance that enters the house in any way whatsoever and is free to dispense it provided he does so in a reasonable manner. Reasonable here means at least that all the members of the family society can live off the substance which he can dispense.

1307. In fact, the members of a society of owners, such as the family in which there is perfect communion of goods, have the primary right to live off the common substance.

1308. Despite this right, however, members have an obligation to work for the common maintenance, as far as they can. Their right to eat is conditioned by this jural obligation of work in proportion to their forces.(328)

1309. If something remains from what a member of the family has earned with his own effort after the head of the family has dealt with expenses, it must all be marked and set aside so that it may be acknowledged after the death of the father and the last parent. Thus the person holding the title of acquisition over it will be its owner. The title, which was null relative to the father and the mother, is alive and effective relative to siblings.

1310. The entire family, in the person of the head, is heir if another member dies before the head.

1311. These successions of rights at death which have been examined up to this point pertain to rational Right, and I think this can be proved rigorously. Such rights have not been deduced casually. Before we began to deduce them, we set out the principle from which all rights are deduced as logical consequences. We called it `the principle of the determination of rights, and it should be familiar to those who accompany us in our study so that together we may apply it to the deduction of particular rights (this is the work we have undertaken). Such a principle is undoubtedly the only leading thread in the deduction of rights regarding natural succession. As we have said, it consists in the characteristic of ownership.(329)

We also said that the characteristic and nature of ownership as right springs from two elements: from a law issuing from human nature by which human beings bind things to themselves spiritually and intentionally this is the matter of right; and from a consequent moral duty arising in others to respect that right this is the form of right and a branch of the general duty not to cause disturbance to other persons. Such is the right of ownership, which enables us to state that whenever we can prove the presence of these two elements constituting the matter and form of right, we also prove the subsistence of a right.

But in every succession so far described, the first of these two elements stands out as an undoubted fact, obvious at all times and in all places. The members of a family have always assigned family goods to themselves at the death of one of their members, and have always felt themselves injured (a symptom of ownership) if strangers usurped what should have gone to the family. In the same way, any members of the family who either brought goods when entering it, or earned enough by their own efforts to accumulate some estate, always considered they had a right to what they had obtained for themselves or had devolved upon them (provided that these things were still in existence when the head of the family died).

Placing such things in the common holding, so that everything in it became one, was always looked upon as an act either of no consequence or of affection and liberality towards the family itself; it was never regarded as a jural duty. This undeniable fact gives rise, therefor e, to the duty of respecting the feeling founded in human nature if we are to avoid inflicting harm or pain on individuals. It is an obvious consequence of the precept: `Do not inflict harm on intelligent beings.' Hence each of the successions we have indicated is a rigorous natural right.

1312. The following successions also spring from the same principles of natural reason.
Both sons and daughters have a natural right to marry at the appropriate age.

1313. This right can be exercised by all the children if they so wish. They must however act in such a way that the rights of parents are safeguarded, and both jural and moral obligations are observed.

1314. They should certainly listen to the advice of their parents when choosing a spouse, although the final choice is theirs by right. It is understood that this does not give rise to a right to make a hare-brained choice, but only to a reasonable, wise option.

1315. Granted this, we can now reflect on the world's first family. The daughters had necessarily to choose brothers as husbands, and as a result were not obliged necessarily to leave the paternal family. The father could keep them, even married, at home. Everything was done in the house; they were still parents and siblings.

1316. But when both heads of the house had died and the children had split up(330) into different families (the bond tying siblings in a single family would have sprung from agreement, not from nature), the daughters of already separated families were able to choose a husband outside the family even of their living parents. In this case, they entered a new family and ceased to form part of the paternal family. Their sole remaining duty towards their fathers was that of respect.

1317. Because the daughters have this natural right, the father is obliged not to impede its exercise, but to help them exercise it to their best advantage. If necessary, therefore, he must give them the part of the substance which, in proportion to the family wealth, will ease their way to an advantageous settlement.(331)

1318. The substance that the father has to assign for the sake of an adequate settlement for his daughters varies according to the different periods and conditions to which the human race is subject. But the sole reason for the father's obligation is the best possible settlement for the daughters. When that has been achieved, no further reason for the obligation is present.

1319. In the period of society when the substance(332) of public power was formed by physical force, and consequently by population, the advantage lay with larger families. In this case, there was no need to provide wedding dowries for the daughters. On the contrary, it was the family of the bridegroom which had to provide the bride's father with a price. Examples of this are frequent in very remote antiquity not only in the East,(333) but also amongst the Greeks.(334)

1320. The wedding dowry which, when first required, was rather low,(335) gradually grew.(336) According to Montesquieu,(337) one reason for the increase is the monarchic form of government; a stronger reason is that artificial riches have much more weight in given periods of society than natural riches. In this case, the State is normally brought to a monarchic form and to the superior well-being which impedes numerous children.(338)

1321. The father's only obligation is to make the best possible settlement for a daughter who wishes to marry. He satisfies his jural duty according to times and circumstances either by receiving a price for the child on her marriage or by giving her away without a price, or by bestowing upon her a large or small dowry sufficient to procure her decent settlement.

1322. According to rational Right, the daughter, after being settled and leaving the paternal house to enter the household of her husband, no longer has any succession with her siblings in the inheritance of their parents. She has in fact ceased to be a co-owner with her brothers and sisters.(339)

1323. As far as I can see, one reason why many laws deprived women of the right to inherit was the underlying supposition that women would marry and thus, by separating from their original domestic society, loose their natural right to succeed to their parents.(340)

1324. If we continue to abstract from evil conduct on the part of parents, we shall easily see that the condition of women who marry, despite their disinherited status, is in no way inferior to that of their brothers. By entering another household they contemporaneously lose one co-ownership and gain that of the husband's house.
On the other hand, although a father or surviving mother can in certain periods marry off the daughters without providing a large dowry, or perhaps any dowry at all, there will be other periods when marriage becomes more difficult. Large dowries, equivalent to the daughters' share of the inheritance (and perhaps even greater) would be necessary.(341)

1325. In the light of the conditions we have described, no harm would be suffered by depriving of their heritage daughters who marry. Their marriage would not be rendered more difficult, but rather assured, and the general effect in the division of goods would be the same. If a small dowry were required for the marriage of a daughter, her own family would not lose a great deal, and the family of the husband would not gain excessively. Whatever the dowry, there would be a general levelling as dowries leave and enter families.

1326. It is true that there would be less movement of ownership, but this would in fact be beneficial. Change of ownership without profit is a costly nuisance.

1327. All this is valid in general terms, that is, from the point of view of the individual families. The position is the same for them all because anyone of them could have a disproportionate number of daughters or sons. However, when we consider what actually happens in particular, we find that giving an equal share in the heritage to women and men alike, including women who marry, produces a notable and unreasonable change in family substance some families get richer, others poorer.

In fact, families with a large number of daughters and few sons either have to prevent the women from marrying (blameworthy greed and cruelty on the part of parents is quite capable of this) and thus violate their sacred right, or leave the sons in a very reduced state. If, for example, six daughters take six shares of the paternal heritage (we are speaking only about lawful shares), it is clear that the one remaining son will have a substance entirely out of proportion to that held by his father in the house in which he was raised. This single male child will have in exchange only one woman who, granted the boy's poverty, will probably be poor herself.

Here I would point out that insurance is bought against fire, shipwreck, hail and other disasters in order to rescue families from the fear of repeated misfortunes of this kind. Many families, in fact, make a regular payment in order to assist the comparatively few families who would suffer in this way. Why, then, does the law provide that married women should have equal shares in the inheritance with the males when it is possible for certain families to be impoverished by having a swarm of daughters and very few sons, or even only one? Does it prefer people to use immoral means to avoid this kind of disaster? I think it would be better for positive legislation to follow rational Right here by ensuring by inescapable, rigorous obligation that parents give their daughters all that is necessary for a good marriage settlement. On the other hand, daughters should inherit in their own house, not outside it.

1328. It is true that laws which grant equal succession to daughters married or not French law is one example are advantageous in the sense that they eliminate the need for many minute dispositions and at the same time protect daughters against the cruel self-interest of parents. However this is one of those inflexible laws which attempt to submit various conditions and needs of different periods to a single rule. Inevitably, such laws will sometimes harmonise with the needs of periods of social life, and sometimes seriously contrast with them. The size of the necessary marriage dowry will vary from period to period so that the stable dowry fixed by law will sometimes be excessive and sometimes insufficient.

1329. When daughters are provided with more than they need to marry decently, we find useless movement of ownership, and boldness on their part proportioned to the amount these women acquired over and above the needs of the times. This boldness reduces their subjection to their husbands and union in their families; and evils habits increase with luxury.(342)

1330. We must now examine the question of primogeniture. I maintain that this is a right in nature, but only in certain periods of society. In others, it ceases to have effect.

1331. Natural affection on the part of the father brings him to give his first-born some share in his authority, to use his assistance in rearing the younger children, to treat him with greater trust, to see in him the shoot which assures the conservation of the line, and to view him as the desired fruit of his first love. However, while these affections are very strong in certain periods, as we said, it would seem that they diminish and peter out in others.

1332. I do not think that the principal reason for the rights of primogeniture, upheld throughout the whole of antiquity, is simply that of greater age. It is not this which gives the first-born preferential right to succeed the father, although I do grant that being first to enter the house and first to take possession of the relative ownership proper to the children seems to give rise in younger children to the concept of the need to respect the feeling already aroused of hoped-for seigniory over the paternal estate.

1333. As far as I can see, the principal reason favouring the rights of the first-born is that fathers, to avoid excessive burdens and divisions of ownership, sent or seconded younger children to industry and business outside the house. And precisely because they were separated from their parents' family, they lost the family heritage in the same way as the married daughters.

Nevertheless, something was given to the son who left, and in this sense the condition of daughters and cadets was the same. In both cases, the principle was that they ceased to be co-owners when they left the domestic society, and that fathers had the right, recognised by the whole of antiquity, to send the sons away from the house to seek their fortune. Naturally, the person who remained in the house received the paternal heritage.(343)

The contrary could also be maintained: that is, that the cadets were encouraged to turn to honest business and wholehearted enterprises because they knew they would be excluded from the inheritance. It seems that certain law-givers, such as Lycurgus, aimed to stimulate this attitude if it is true that only the first-born was heir in Sparta, and housed and governed his brothers in place of the father.(344)

1334. Does natural succession in the case of intestacy stop at the parents and children, or does it extend further? In my opinion, it extends much further, and must be considered relative to two circumstances, that is, relative to blood relations who together form a family, and relative to blood relations who have already left the family. Here, we want to examine what happens in the first of these two circumstances.

1335. We have said that the father inherits in the case of offspring who die in the house. If there is no father, the mother inherits. But it could happen that a paternal grandfather lives in the house and with him the spouse and children of the dead offspring. What is the natural succession in such a case? The right of full ownership in all these cases always resides with the head of the house who, in our supposition, would be the grandfather.

1336. But together with such a right of full ownership, there would co-exist the right of relative ownership for other members, who would succeed in the following way:
The grandfather inherits the right of relative ownership so that at the death of the father he inherits what remains of the children's estate.

1337. If the father dies leaving a widow, she inherits the right of relative ownership. Consequently, the residual substance of the husband falls to her at the death of the father-in-law.

1338. But if the widow has children when she becomes full owner at the death of her father-in-law, the children succeed at the same time to the right of relative ownership of the same estate. They acquire the full right either when the mother dies, or when she leaves the house and separates herself from them.

1339. It is clear now that this distinction between the right of full ownership and the right of relative ownership offers the possibility of deciding in the same way all cases of direct succession within the limits of a family, whatever the extension of the ascending and descending line. We can summarise what has been said as follows:

1340. Everything said so far is founded on the concept of the family society, which is an owner.(345) The family does not cease as one member departs, nor does it become another family as it acquires a new member. The owner, therefore, that is the family, cannot even succeed, properly speaking, through the death of a member because it remains an owner as before. Only the rights to common ownership, held by the various members of the family, change. And the changes take place in the way we have described.

1341. However, another question arises: does succession between related families exist in nature? Once more we have to turn to the principle we have established about the determination of rights, and verify a natural fact on which depends the right of ownership.

`Abstracting from positive laws, agreements and customs, is it natural for members of a family to expect possession of the estate of a closely related family when this family ceases to exist, or to look forward to inheriting in this way, or to feel pain when others occupy the abandoned patrimony?' This is the fact we have to verify. If this feeling arises of itself in human nature, without being provoked by the laws of civil society, the foundation of such ownership exists. In other words, a physical bond is formed from which the moral bond follows of its nature. This obligation states that all other human beings have `the duty not to offend this kind of natural feeling', and consequently that such an offence is already an injury to the right of ownership.

1342. For myself, I think it certain that such a feeling is natural to human beings. I deduce it from my observation that people are of their nature furnished with minds that have long memories of parental unions, and with spirits that live joined for a long time with those who no longer share the same roof. Moreover (although I am not so sure about this), there also exists a life instinct secretly drawing together and as it were attracting close blood relations. I also deduce the feeling from the same fact of succession established in all laws, and primarily in all customs. Such laws and customs are not sufficiently explained by the views of legislators about the body politic. These views, which arose only after customs had been formed, are first and foremost simply the written expression of the customs. Succession can only be explained by the feeling in human nature which produces of itself the customs we are considering.

1343. I admit, however, that this feeling varies as a result of the different states of perfection of human nature found in various individuals, and of the consequent variety in the strength, intensity, limitation and preciseness of feelings.

There is no doubt that the explanation for customs and various legislations must be derived from these feelings. In particular, we find in them the reason why succession in the case of intestacy is extended by some customs and laws to further degrees of relationship than by others. The right of succession finishes precisely at the point where the memory and feeling of a given population ceases to accompany close, lineal relationships. Persons exist whom no one remembers as blood relations, and towards whom there is no longer any affection of relationship. No one considers them as belonging to himself, or himself as belonging to them, nor lives with them in that society of feeling which denotes a trace of domestic society still extant in their spirits. Finally, there is no one who, as a natural consequence of such memories and feelings, expects to succeed to their estate. Such people are already lost to sight and have mingled with the common mass of mankind like a drop of water in t he ocean. Their sole relationship with others is likeness in a common origin. Every particular proximity has been annulled, and as they die, their estate, which remains without any master, belongs to the first occupier.

1344. But it is not true that less isolated persons, who still live in harmony with the memories and affections of their kindred, leave what they have to the first individual who occupies their estate. Even when these persons do not live in the same house, and hold nothing material in common with related families, their blood relations have a natural preference, which must be respected by others, in the occupancy of these goods. The strength of the preference, and consequently respect for this preference, depends upon the closeness of the blood relationship. In other words, people of this kind have a natural right to succeed to the goods left by their close kindred.

1345. Nevertheless, I think that relatives who together form a family in the strictest sense must, according to nature, be preferred in succession to closer relatives who have, however, separated from the family.(346)

1346. I see no reason for preferring males to females amongst those who have separated from the family. But natural succession amongst the separated relatives would mean in the first place that the spouse who separated would succeed to the partner who leaves no children or has no family. If there is no separated spouse, the father succeeds if united with the mother; if not united, each of the separated parents succeeds to half the estate; if the mother alone is alive, she succeeds. But if both parents are dead, their offspring and the offspring of others in the ascending line should succeed in such a way that the closest relative inherits everything, while equal relatives inherit in equal shares.

1347. Nevertheless, as I said, no natural limit could be assigned to this succession, which would have to be extended more or less indefinitely. The actual extent would depend upon the degree of social quality, affection, memories and other accidents which, by keeping people united, produce in the spirits of some, the feeling that they have to succeed when others are no longer present,(347) and as it were represent them on earth by occupying their portions.(348)

1348. It may be asked whether such protraction of people's expectation of succeeding to their relatives accords with any state of perfection in the human race. I think it does. First, because breadth of feeling appertains to perfection; second, because it shows a greater degree of the intelligence by which human beings rule;(349) third, because the act of bringing the human race to perfection requires a genuine bond between people. In fact, the ideal perfection of humanity supposes and holds that all individuals in the human species be considered more or less as brothers. We must not forget that all human beings are related by blood as a result of their common origin.(350)
In this way, therefore, succession in the case of intestacy would never be lacking; it would be determined for every possible case, and the revenue-authorities would have no pretext for claiming succession.(351)

1349. We have dealt with succession in the case of intestacy. According to rational Right, can this kind of succession be changed by the will of an owner who dies?
Before examining the question, we need to explore the territory it covers to see if perhaps we are being drawn away from the scientific terrain, as it were, to which this article is limited.

We want to know how `rights can pass without alteration from one subject to another through abandonment and successive occupation.' As long as we are dealing with succession through intestacy, rights pass from one subject to another through abandonment, as the dying person leaves them behind, and through successive occupancy on the part of the heir. Now, however, we have to take into account the acts of the dying person's last will, which determine who shall succeed. The transmission of rights, therefore, is no longer caused by simple abandonment and successive occupancy, but by the force of the act of will which determines the successor (we shall see later if this act of will is valid in the state of nature).

1350. It is true that the act of last testament, granted its validity, can give the destined heir only the right to claim the inheritance; it cannot bestow the inheritance itself, the occupancy of which depends upon acceptance. But the right to claim the inheritance is nevertheless a right, and a right with a new form (if indeed we do not wish to call it a new right). This right, therefore, would at least have its form altered and be transmitted not through the intervention of acts by both parties, but by the act of one party alone. Such a way of originating rights in a new form will be examined in the following book.(352)

1351. It is true, if we speak about the right to the inheritance which the heir acquires through accepting the legacy, that the rights held by the deceased do not necessarily change in transmissions of this kind. But it is also true that they could change because this depends upon the will of the deceased who can split them as he wishes, and condition them as he wants. From this point of view, these kinds of transmission would belong to the next chapter. However, I think our argument will be made easier if we avoid excessive fragmentation of the subject and continue, immediately after the work on natural succession, with our discussion about succession through dispositions made by a person's last will. I hope that this note about the many places where our present material could be found will be sufficient to enable the reader to refer the material mentally to the places in this treatise where it would be seen if the scientific order were followed. In this way, the series of discuss ions on succession will not be broken up, and systematic distribution will not be lacking.

Our question, therefore, was as follows: `Can natural succession be changed by the will of the testator?'

1352. The question contains several others. The two principal are as follows.

1. Given that a person has no relatives within the degree to which natural succession extends in the case of intestacy, and that his estate would not pass naturally at his death to one person rather than another, can he determine, through an act of his will, the persons to whom such goods should pass?

2. Would his act of will have jural force even within the limits of natural succession?
We shall deal briefly with both questions, starting with the first.

1353. The right to dispose of one's own goods at death can be conceived, and has in fact been conceived in various ways according to which it changes its nature and therefore becomes another right. First, we have to distinguish the different ways in which such a right can be conceived, and then examine the question we have proposed relative to each of them.

1354. There are two principal ways in which we can think of the transmission of goods after death to a chosen heir:
1. as a form of bilateral act by which one person gives and another receives;
2. as a form of unilateral act.

1355. The first of these two ways would be a contract. In fact, many authors consider wills solely as donatory contracts which testators make on condition of their death and of unrevoked wishes. The following have considered wills in this way: Grotius,(353) Daries,(354) Martini,(355) Rasp(356) and others who defend their validity in the state of nature, and Egger,(357) Zeiller(358) and others who attack this validity.

1356. We admit that the successory pact can be called a contract when it is made known to the heir and accepted by him during the donor's lifetime. We should deal with the transmission of ownership by way of contract only in the following article, but think it would be helpful to insert brief considerations about the matter here, granted its connection and affinity with our present subject. We must, however, be brief because we have to return to the question of testamentary succession. Therefore: are successory pacts valid?

1357. Zeiller, following Egger and other authors,(359) denies this. He says:

1358. But how can the successory pact lack any possibility of attaining its purpose if it is valid? It has no other aim, in fact, than to ensure that the rights of the donor pass after him to the donee. There is no reason to prevent this from happening.

1359. Nor can it be said that the declaration is not serious, just as it cannot be said that the necessary seriousness is lacking to a donation made by an emigrant who gives a friend his house or anything else, as he leaves his country with the firm intention of never returning. The fact that the emigrant is incapable of benefiting by what he gives does not mean that he has no right to give it to anyone he wishes. This argument is particularly strong in Zeiller's case because he concedes that an owner, without losing ownership of something he holds, has the right not to use it. On the other hand, giving is itself an exercise of ownership, although it is true that in every donation the donor can no longer make use of what he has given.

1360. To say that the donee does not begin to benefit by the thing until the donor naturally loses his rights through death does not prove the nullity of such a donation. The donation is made and received during life; as soon as the donee has accepted, he has acquired the right ad rem. This right is admittedly not exercised until the donor dies and we might say, ceases to have rights, but no objection can be based on this. The donee-heir, whose root of right was formerly founded in the donation, continues to live, and has a capacity to exercise his rights. At the death of the donor, he simply obtains the benefit dependent upon the fulfilment of the condition. In a word, he exercises his right at that moment; he does not acquire it. There seems nothing absurd in this. In fact, in every donation the donee enters into possession of the thing in question at the instant the donor leaves it. Could one person become the owner of something as long as another had not ceased to be its owner? Any moment can be established for transmitting ownership, so death can be that moment. But could it not be insisted that at the moment of death the dead person loses all his rights? That is true, but the heir, who is alive, already has the right to enter into possession of the dead person's rights, and thus reasonably takes possession of them.

1361. One reply to this difficulty ran as follows. If you are not happy that the donee-heir should enter into possession of the estate after the donor has already left it, anticipate the possession by an instant, and let the last moment of life of the donor be the agreed point in which the other person becomes owner.(361) Solving a difficulty by hair-splitting of this kind shows the inconsistency of the objection.

1362. Another way of proving the weakness of the difficulty is to render the donation unassailable by changing its form while leaving its substance intact. John gives what he has to William, who accepts the donation, but William contemporaneously leaves the free use of these goods to John for the length of his life. The two pacts coalesce, and withstand every objection.

1363. Again, all contracts made between human beings suppose the following principle: `The will of each of the contracting parties produces an effect which lasts beyond life.' If I give something today, and tomorrow die, the person to whom I have made the donation keeps it as his own even after my death in virtue of the act of will that I made while alive. It is totally indifferent whether the act with which I make the gift comes into being shortly before my death, or a long time before it. The effect of my act is perpetual of its nature, as all mankind agrees.

1364. Similarly, I can give an object to another person while reserving its use for myself for a year. In this case, the donee becomes the lawful owner of the object after a year, although I could die before the year is out. The accidental intervention of my death does not invalidate the right which has been acquired.

1365. We come now to those dispositions of last will which are properly called `testaments'. They are made solely by the testator; acceptance by the heir takes place after the testator's death. These, too, are treated by many authors as though they were contracts, although under the name `quasi-contracts''.

1366. The name `quasi-contracts' is inexact and absurd because it is impossible to conceive of anything halfway between a contract and a non-contract, between making an agreement and not making one. The word has therefore no place in a treatise on philosophical Right.

1367. To understand this truth better, we must examine the origin and nature of the acts called `quasi-contracts'. This will enable us to arrive at the concept of testament, and answer the questions which arise concerning it.
Quasi-contracts appertain to positive law.
Legislators introduced this term, and many other illogical names, because they found it convenient to persuade people of the existence of an obligation which is as binding and urgent as that resulting from contracts, although there was no question of contracts. Most people, even when society is still in a primitive state, understand perfectly well the force of obligations arising from pacts and contracts, but are not clear about obligations which come into being irrespective of contracts. As a result, legislators imagined fictitious contracts where contracts did not really exist, and from these fictions deduced the kind of jural obligations which do not spring from true contracts.(362)

1368. Vinnius defines the quasi-contract as: `an upright fact by which one person is obligated to another, or the second to the first, or both to one another WITHOUT ANY AGREEMENT'.(363) This is the true definition of quasi-contracts introduced into Roman laws. They are not contracts at all because they contain no agreement of any kind.(364)

1369. Hence, under the name `quasi-contracts, we have to distinguish both expressed and tacit contracts.

1370. Tacit contracts are those in which the consent of the parties, although acknowledged only indirectly, is nevertheless certain, or at least probable.

1371. Consent which is only probable, but such that at the same time it has to be considered certain,(365) is called presumed consent. It takes the form of a true contract, the essence of which is the consent of the parties.(366)

1372. In quasi-contracts, however, consent is altogether lacking. Their obligation comes not from consent, but from elsewhere. The law imagines consent and, through this fiction (fictio juris), presents an obligation to the people, while authorising itself to invent the expression quasi-contracts.

1373. The obligations which quasi-contracts were invented to explain arise immediately from the force of natural law. Granted certain facts, this law obliges us to certain undertakings and, in so far as it does not result from agreements or remains unwritten, or is contrary to what has been written, is also called the law of equity.(367)

1374. Because of this, some authors define the quasi-contract as `an upright fact from which, without any agreement, obligation arises for reasons of equity.'

1375. Hence William Beuch says that quasi-contract was always acknowledged, even before its establishment by Roman law, because it pertains to natural law.(368) This is true if we consider only the obligation posited by positive law in what is called quasi-contract and fictional contract. But it is not the case if it refers to the expression or fiction, which certainly does not exist in simply natural Right.

1376. As a result, fictitious consent in law has much more force in judgment than presumed consent. In fact, presumption of consent can in certain circumstances be impugned with the resulting annulment of the obligation, which depends on consent as an effect depends upon its cause. On the other hand, it would be totally useless to prove with even the clearest evidence that in fact there was no consent in quasi-contracts because the law not only does not presume this consent, but goes so far as to invent it. In this case, the obligation would remain equally stable because it does not truly follow from consent but solely from equity which has been clothed with the juridical phrase of fictitious consent.(369)

Notes

(321) I hold that polygamy, and even more polyandry, is contrary to rational Right when human beings are considered in an uncorrupt state. I shall demonstrate this in bk. 3 of Social Right. My only hypothesis, therefore, concerns the married union between one man and one woman.

(322) Cf. ER, 326-327.

(323) In fact, this transmission arises from a contract, that is, from the contract that takes place with marriage. We should speak about it, therefore, in the following chapter. But the connection of ideas and the need to unite under a single heading all that concerns the natural transmission of ownership in domestic society forces us to deal with conjugal transmission here.

(324) Roman legislation shows clear traces of this succession indicated by natural Right. It prescribes that when a spouse remarries, the goods obtained from the other deceased spouse (except those that come to him by law) are to become the property of the children of the deceased spouse with the condition that the remaining spouse should continue to enjoy their usufruct (L. feminae 3. Cod. de secund. nupt. - Cf. Voet. in pandect., bk. 23, tit. 2, n. 101. - Somereu, De jur. nov., c. 13, n. 5. - Wesel. ad novell. const. Ultrajectin., art. 11, n. 25 ss. and n. 36. -Sande Decis. Frisic., bk. 2, tit. 3, def. 3). If a child of the first wife dies intestate after his mother, the father enjoys the usufruct, and his blood-brothers and sisters the ownership of what the son has inherited from the mother. Such dispositions are maintained against attempts of evasion by multiple laws. Cf. Jo. Devoti, De notissimis in jure legibus, bk. 1, 1826 ed., p. 59 ss.

(325) It seems that normally the right of ownership is considered as something simple and absolute without any middle way between absolute ownership of an object on the one hand, and complete non-ownership on the other. This, I think, is a mistake which has its roots in the lack of a clear distinction between ownership, which is absolute, and the right of ownership, which is subject to degrees, divisions and limitations (cf. 966-1003).

(326) In France, primogeniture was introduced under the third dynasty. `This ancient right', says Chabot de l'Allier, `was handed down under Geoffrey, count of Brittany, in 1185: "The first-born should have the entire dominion, and should as far as possible provide the younger children with what is necessary for a decent living".'

(327) The portion of these goods used up by the father's disbursement from the common substance must be subtracted from them.

(328) St. Paul expresses this jural duty in the celebrated words: `If anyone will not work, let him not eat' (2 Thess 3:10).

(329) Cf. The Principle of the Derivation of Rights (ER, 318-360).

(330) As we said, according to natural law daughters have an equal portion with their brothers in succession to the family fortune when no will has been left (this is not the case with peculia). When daughters marry, they must bring this portion to the husband's family, in which they enter.

(331) The father's natural obligation to provide a dowry for his daughters was part of Roman civil law (L. Capite, 19 ss. De ritu nuptiarum. L. ad exactionem Cod. De dot. promiss.). The oldest laws on the point are those of Metellus Numidicus and of Augustus, called the Julian and the Papian laws. The last named established various punishments for parents who withheld dowries from their daughters. Dionysius of Halicarnassus and Livy mention the law of Metellus, while A. Gellius (Noct. Act., 1, 6) has saved for us a fragment of the address in which Metellus proposed his law. - On the obligation of fathers to constitute a dowry for their daughters (an obligation upheld by Roman laws), cf. Voet (in Pandectas, 1, 26, tit. 3, n. 11), and Cuiacius (Quaest. Papin., 1, 29, ad 1, 6, Cod. De Usar.) who believes that the Papian law also forbade the dowry for daughters to exceed one million sestercii.

(332) I have shown that the substance of the State, that is, its prevalent force, changes place in different social ages. Sometimes it is found in physical force, sometimes in riches, and sometimes in other objects. Cf. SC, c. 26.

(333) Amongst the Hebrews, the bride was bought, as the saying is. When the marriage was being arranged, gifts were made to the brothers of the bride, and her father received a price for her (Cf. Gen 29: 18, 27; 34: 11-12; Jos 15: 16; 1 Sam 8: 23, 26; 1 Kings 3: 4). The bride's price varied at different times because of the variation at different periods of society in the great number of members composing the family. I shall show this more at length in Della naturale costruzione della società civile. It would seem that at the time of Moses, the minimum price of brides was thirty shekels (about fifteen scudi) and the maximum fifty (twenty-five scudi) (Cf. Ex 21: 32; 22: 15; Hosea 3: 1-2; Deut. 22: 29). The bride was sometimes given away if the family was rich (Gen 16: 1, 3); sometimes, but this was exceptional, she also received a dowry from her father (Jos 15: 18, 19; Jud 1: 14-15; 1 Kings 9: 16).

(334) Plutarch, Apophthegm. Lacon; Aelianus, V. H., 6: 6; Justin, 3: 3. In Greece also, the disbursement for a wife first varied from high to low at different times, before dropping to nothing. Finally, a dowry was required.

(335) According to Strabo (bk. 4), the republic of Marseilles had fixed the maximum price for a dowry at one hundred scudi in cash, and five in clothes. If Montesquieu had considered this regulation as we do, he would not have said that `Marseilles was the wisest of the republics of its time'.

(336) Cf. Aris., Polit. 2, 6, 11. As usual, Montesquieu's description is factual rather than about right. He says: `Dowries have to be substantial in monarchies so that husbands can uphold their grade and their accustomed luxury (Would it not be better to curb the excesses?). In republics, where luxury does not hold sway, they must be at a lower level. Finally, they must be reduced to practically nothing in despotic States in which women are already almost slaves' (L'Esprit des Lois, bk 7, c. 15).

(337) L'Esprit des Lois, 27.

(338) The Papian law, established under Augustus to remedy the scarcity of the population, was the first to restrict the Voconian law and favour women in succession, and relatives in the female line. From then on, women were gradually more favoured up to the time of Justinian who completely overthrew the ancient right regarding succession on the part of women (Leg. 12, Cod. De Suis et legitimis liberis, Novell., 118, 127).

(339) `It is almost universally accepted that a woman moves to the family of her husband. A contrary custom, which causes no harm to anyone, is found in the island of Formosa, where the husband forms part of the wife's family' (L'Esprit des Lois, bk. 23, c. 4). Montesquieu's judgment is rather facile here. Is it true that this practice causes no harm to anyone? This is one of the many rash judgments found so frequently in this otherwise admirable author.

(340) We should reflect that in antiquity all daughters took husbands. Virginity was unknown to the Hebrews. According to the Mosaic law, girls inherited in the absence of males. But in this case, they then had to marry a close relative, a man of their own tribe, to prevent the inheritance passing to another tribe and family (Cf. Num 27: 1-11; 36: 1-12). From this point of view, the Voconian law of which we have spoken provided girls with an impetus to thinking about settling in marriage. If they did not marry, their situation was very precarious. - Christianity, after bringing virginity into such great honour, had to provide for women who wanted to remain in this state. Light came to the law-makers when they realised it was against the natural law to deprive women who did not leave their families of their parental inheritance. Justinian himself declared that the right enjoyed by males to succeed in preference to females was barbarous (Novel la, 21). One of Marculf's formulas speaks of the custom depriving daughters of succession to their fathers as impious (bk 2, c. 12). Barbarian laws did not disinherit daughters (Cf. Lombard laws, bk. 2, tit. 14, §6-8), although the feudal laws left them seriously disadvantaged.

(341) This change in the right of female children to a dowry is another example of those different modes in which specific rights come to be presented during the different ages of nations.

(342) Solon did not deprive of their inheritance the women who remained at home, but did forbid the grant of a dowry when they married. He decreed that the bride `should have no more than three woollen mantles and other drapes of little value.' Cf. Plutarch, Life of Solon.

(343) Thus Esau was Isaac's heir, although Jacob had acquired from his father the first-born's blessing. When he left the house, he could no longer make his right prevail.

(344) Procul's annotation to Hesiodus (Le opere e i giorni, vs. 374) indicate that according to Lycurgus it was necessary to have a sole heir dein ena kleronomon katakiptein. - Where polygamy is practised the father chooses one of the children from his different wives to be the principal heir and ruler of the others. His choice falls either on the best of the sons, or the one born from the dearest of his wives and therefore the fruit of his most cherished love. These are the reasons indicated by Scripture when it describes the succession of Abia, the son of Roboam: `Roboam loved Maacah, the daughter of Absalom, above all his wives and concubines. - and he put at the head of them [the other brothers] Abia the son of Maacah to be the chief ruler over all his brethren: for he meant to make him king. Because he was wiser and mightier than all his sons, and in all the countries of Juda, and of Benjamin, and in all the walled cities' (2 Chr on 11: 21-23). - David chose Solomon to succeed him for the same reasons (1 Kings 1 [Douai]).

(345) Schlettwein, who opposes wills, but nevertheless admits natural succession in families, turns to co-ownership to explain his ideas on succession (Cf. his Diritti dell'uomo, Giessen, 1784, §141-258).

(346) We are speaking, as always, of natural domestic society, not of society formed by agreement. The society amongst siblings, in the absence of parents, would depend on agreement. Consequently, if one of the parents survives, he or she would be the heir of offspring who died without spouse or children, even if this offspring lived in common with other children. On the other hand, the spouse who has separated from the family could not succeed the one who has family united to him in the ascendant or descendant line, although the united spouse succeeds to the spouse with whom he forms a single person.

(347) It will be objected that this means making the right of ownership depend upon a state of feeling, and upon changeable persuasion of mind. But although such an affirmation seems totally new, it is in fact shared by common sense and by law-makers. As a proof of this, I can appeal to the authority of Roman laws (to take one example from innumerable others). I leave the comment to one of the most accurate and careful authors on right. He says (and this needs to be considered carefully): `A person who loses something he owns, does not lose his ownership until he considers the thing as abandoned. He does this either freely, by ceding it to the one who occupies it, or necessarily, if it is morally impossible for him to recover it.' Notice how ownership depends here, according to this famous jurisconsult, on the judgment pronounced by the spirit of the owner: `unless he considers it abandoned.' This is confirmed by Roman laws §47, Inst. de Reg. Div. - bk. 2 ss., pro derelicto. He goes on: `Even the person who finds and keeps it does not acquire dominion over it, "unless he desires it as his own". This consequence is proved textually (bk. 1 ss., pro derelicto): "things cease to be our own in the same way as they are acquired." But they do not cease being ours except through an act of will, "only by an act of will with which we desire to have something as our own"' (William Beuch, Tract. de pactis et contractib., c. 1, §23). This is the common opinion of writers on law. It implicitly supports my theory which makes ownership depend upon the spirit. In other words, I have only followed my normal custom: of expressing explicitly what others will always have said before me, but implicitly.

(348) According to Baroli, `Some writers assert the necessity of conceiving a kind of species of ideal condominium in hereditary right. This condominium would be conditioned by the life of the person whose estate was in question, and would cease with his death when the heir would acquire the right of full dominion over the patrimony of the deceased' (Diritto naturale, §205, *1).
This consideration is correct when confined to natural successions. We have to keep in mind, however, that every dominion and condominium can always be called ideal in so far as all rights originate from intelligences and their ideas, which alone can unite persons and things (the bond of ownership).

(349) We have given four rules according to which the actual quantity of intelligence in nations can be measured. Cf. SP, bk 3, c. 5.

(350) Successions, therefore, are unlimited, and in ruling families are infinitely extended. Here civilisation is at its highest level, while the greatness of the heritage keeps the memory fresh and serves to bind more closely succeeding generations.

(351) It is clear from what we have said in this paragraph that we cannot agree with Zeiller and other jurists who maintain that `succession in the case of intestacy is founded on the presumed will of the testator to leave the inheritance to the nearest relative' (Diritto nat. privato, §140). On the contrary, we find the foundation of succession in intestacy to exist in the will and the feeling of relatives who appropriate for themselves the right to adhere to the heritage in the same was as they appropriate any other right of ownership, that is, by means of the moral-physical bond we have described when dealing with the principle of the determination of rights' (cf. 321 ss.). It is not the deceased, but the natural heirs who would be offended if someone else were to make himself master of the heritage. The question of an injury to the deceased depends upon our answer to the problem about the efficacy of his will after death, and our verification of a fact: `His will has been, or can be presumed in favour of the natural heirs.' If not, these heirs would not be less injured by the persons who relieved them of their heritage in the case of intestacy. - Other authors deny that succession in intestacy resides in natural Right. They begin, however, from the mistaken supposition that succession can only be explained through the presumed will of the person who dies. According to them, this will cannot be presumed without a supposed jural duty to do good to one's relatives. Nevertheless, this duty is only moral. The person who dies, therefore, is not jurally obliged to leave them his estate. It follows, they conclude, that the will of the deceased cannot be presumed unless he has manifested it. We need waste no words demonstrating the weakness of such an argument.

(352) The right to claim the inheritance is properly speaking a right of transitory form. We shall speak about the transitory form of rights in the following chapter, article 1.

(353) De J. B. et P., 6, §14.

(354) De acquir. haered. secundum jus nat., Jen. 1746.

(355) Positiones de lege naturali., Vienna, 1772, §788.

(356) Dichiarazioni del sistema del diritto naturale, Vienna, 1795, §788 ss.

(357) Dottrina del diritto privato di natura comune, e del diritto prussiano, P. 1, Berlin, 1797.

(358) Diritto naturale privato, §140-142.

(359) Schaumann, Diritto naturale scientifico, Halle, 1792, §321, note 2 - Schmalz, Dichiarazione dei diritti dell'uomo e del cittadino, Königsberg, 1798, c. 2. - Heidenreich, Sistema del diritto naturale, Leipzig, 1794, tom. 2, pref. - Klein, Principi della scienza del diritto naturale, Halle, 1797, §296 ss.

(360) Zeiller makes this objection against wills in general because he supposes that they are always contracts. I do not accept this supposition, and consequently consider the objection as restricted to successory pacts against which it does appear to have some force.

(361) Baroli, Diritto naturale privato e pubblico, §205, *1.

(362) It is possible, however, that some of the legislators themselves thought that there could be no obligation which was not deduced from a contract. Such a supposition would depend on the difficulty that the mind found in conceiving how a jural obligation could originate from a simple law applied to a fact. This does indeed seem to have been the opinion of the jurisconsult Pedius, an opinion approved by Roman law which states: `As Pedius neatly says, there is no contract, NO OBLIGATION, without an accompanying AGREEMENT expressed in fact or verbally' (bk. 1, §3, ff. De pactis.).

(363) Comment. ad Instit. Tit. De obligat. quae quasi ex contractu.

(364) Baroli (§202) and others are deceiving themselves when they call quasi-contracts agreements.

(365) Probable consent can be taken for certain:
1.when there is no burdensome consequence for the person presumed to have given his consent;
2.when consent is obligatory for the other party. In this case, we apply William Beuch's observations: `Because what is false cannot possibly be true, jural fiction cannot be converted into presumption; however, presumption, which is concerned with what could be true, can be changed by the ruler or the legislator into fiction' (De pactis et contractibus in genere, c. 1, n. 41). This decision was first enunciated by Ludovic de Sardis and by Müller (ad Stronium, Exercitat. 28, thes. 20). We add that in our case, this may be done by anyone, not only by the law;
3.when probable consent reaches maximum probability, or legitimate probability, according to the table of probability I have indicated in CS, 812-815.

(366) Beuch's usual accuracy has deserted him here. It is not true that so-called quasi-contracts can be considered a kind of tacit agreement (Tract. de pact. et contract. c. 2, n. 80).

(367) That which arises from agreements between human beings (these pacts are defined by the Roman legislators as private law, cf. bk. 51, ff. de action. empt.; bk. 1, c. de pactis; bk. 23, ff. de R. I.) or springs from the letter of public law, is referred to as strict right. That which springs from the natural law, and is not included in positive laws, is referred to as equity, which can be divided into two parts, equity of contracts, of which we have spoken (cf. 1185-1262) and equity of judgments in the application of the laws which we are discussing here. The equity to be used by judges in interpreting and correcting laws whose defects depend upon the legislator's incapacity for considering all possible cases, or even certain cases which he should have foreseen, is little by little consigned to writing. This forms a body of more recent legislation which in part is contrary to ancient legislation, relative to which it bears the title `equity'. This explains why the jurisconsult Celsus defines the art of Right as the art of what is good and equitable.

(368) `For a quasi-contract is at least a fictitious agreement' (he says `at least fictitious' in order to embrace within the definition the case of presumed consent, changed by the law into certainty through a fiction of the law itself to eliminate any contrary proof when judgment has to be given) `whose power of effecting action is never denied, and whose efficacy pertained to natural right, before it formed part of Roman right, precisely because natural right has to favour equity' (De pactis et contrib. in genere, c. 2, n. 81).

(369) This explains why, in judgments, laws do not permit any proof against presumption, which they change into fiction (bk 23, c. Ad SC. Velleyanum, bk. fin, c. Arbitrium tutel.), although this is admitted against simple presumption provided it is what jurisconsults call indirect presumption; in other words, it is directed to show that, in a particular case, presumption does not exist (Cf. Menochius, De praesumptionib., bk 1, q. 61 ss.). Legal practitioners also say that `in a fictitious case, fiction effects what truth effects in a true case' (c. 14, ff. De Cler. non resident., l. un. in princ. de Rei. Ux. vind.) and `fiction is about something certain, presumption about something doubtful' and therefore `fiction is taken absolutely and unconditionally for the truth, not conditionally, as presumption is.' Finally Menochio says that legal fiction cannot be i mpugned in any way except by demonstrating that in a given case equity, on which fiction is founded, ceases (bk 1, q. 6, n. 14).