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THE TRANSMISSION OF RIGHTS, AND
THEIR CONSEQUENT MODIFICATIONS

Chapter 3

1469. Let us now consider rights in the various forms they take when transmitted. We said that these forms are changed either at the moment of transmission (transitory alteration) or as an effect of completed transmission (final or stable alteration).

1470. Both kinds are seen in the two modes of transmission we have discussed: 1. abandonment and occupancy; 2. contracts.

1471. The simple abandonment of a right is not its transmission. The only necessary effect of the abandonment of right is the cessation in others of the corresponding obligation.

1472. If the right in question involves external ownership, a second effect arises in addition to the cessation in others of the obligation to respect that ownership. This effect is the freedom we all acquire to occupy an object which has no owner. But according to the distinction we made between what is lawful and what is of right, this freedom is not in itself a right;(437) it takes on the nature of right only in relationship to the person who capriciously disturbs my freedom (cf. 284).

1473. Moreover, if the abandonment of my right is not universal, but relative to only one human being, then this individual has the faculty to occupy the thing abandoned to him. He thus truly acquires a right ad rem (a third jural effect of abandonment); he alone can lawfully appropriate and use the thing ceded to him. The same happens in wills: the testator determines the heir by his will and, as we have already noted, the heir acquires the right to have the heritage in virtue of the act of the testator's will. This right would be injured if another person occupied the heritage without waiting for the heir's declaration of acceptance or renunciation.

1474. These rights of acceptance or renunciation of what has been abandoned and offered possess a transitory, not a final form. The concept of right to the occupancy or appropriation of a thing contains only a kind of principle regulating the appropriation, although appropriation is its end.

1475. The final forms which rights can assume by this first mode of transmission are as innumerable as the limits within which the abandonment took place and as the conditions of the acceptance. Because these forms, as divisions of rights, make an appearance when rights are transmitted in the second mode, the explanation we will give of their principal forms and divisions in the following article will be valid for both modes.

1476. We will first speak briefly about the transitory forms assumed by rights as a result of contracts, and afterwards about the final forms.

1477. During the time between the initiation and finalisation of nearly all contracts the words and mutual acts of the contracting parties can change the reciprocal rights of the parties.

1478. The acts which initiate but do not finalise a contract can produce alterations in the mutual rights of the parties. These alterations are of many kinds, but the principal kind is found in those contracts we have called `promissory',(438) and consist of:
1. the promissory part, which is distinct from the executory part and includes the conditions for the execution of the contract;
2. the guarantees, arbitrarily assumed or agreed relative to the execution of the contract;
3. the facts opposed to the contract's execution, which render it impossible, or extend the agreed time, or indicate reluctance about the execution;
4. the coercive means used by one of the parties to obtain from the other the execution of the contract;
5. the problems which arise concerning accepted agreements, or concerning acts performed or to be performed in order to effect the agreements;
6. the acts which deal with and solve these problems, the transactions, etc.

All six kinds of acts, which the parties can posit in the time between the agreement and its full execution, cause changes in the state of the parties' reciprocal rights.

1479. A little reflection upon each will easily persuade us that they alter the form of reciprocal rights.
1. The promissory part of the contract. A serious promise that has been accepted is enough to make the claim to what has been promised pass to the accepter, and the corresponding obligation to the promiser.

1480. The same is true for all contracts containing a promise: their execution is not accomplished by one or both parties in the act itself but takes place at a future time. In these cases, before the contract is finalised and executed, the form of reciprocal rights is changed. The party that has either not, or only partly executed the contract remains bound by the jural duty to do so, and the other party reciprocally contracts the right to demand its execution.

1481. These promises can concern a thing or an action. They can be absolute or conditioned, and can vary in a thousand ways. Consequently, the form of the rights and obligations affecting the two parties takes on corresponding differences.

1482. The conditions applied to promissory contracts deserve our special attention. They can be of different kinds.

Some are called suspensive because the validity of the obligation assumed with the contract depends on the actuation or non-actuation of a given event. Others, called resolutive, denote an event whose actuation or non-actuation terminates the right or rights which the contract attributed to one party or reciprocally to both parties.

1483. If the effect of the condition is bound to the actuation of the event, the condition is positive. If the effect is bound to the non-actuation of the event, the condition is negative. Finally, the condition is respectively positive and negative if both the actuation and the non-actuation of the event make a right pass from one party to the dominion of the other.

1484. This last case is verified in contracts of chance. Chance is usually an event which, no matter how it happens, produces a transmission of rights. Thus, gaming and contracts of chance are `contracts binding under conditions which are respectively positive and negative.'

1485. The conditions which bring about wins and losses in gambling and other contracts of chance cannot be accurately classified among suspensive or resolutive conditions. We therefore make them a separate class and call them attributive conditions because they always attribute to the parties a win and a loss respectively.

1486. 2. Agreed or freely assumed guarantees. If guarantees are agreed, they pertain to the promissory part of the contract; if freely assumed, they produce various rights and obligations in both parties, according to their nature, that is, whether they are assumed reasonably, unduly, etc.

1487. 3. Reluctance, delay in execution, etc. These are acts offensive to the other party which oblige the reluctant person to make satisfaction and restitution according to the circumstances and corresponding rights in the second party.

1488. 4. Coercive measures. Coercive acts are an exercise of rights acquired by a party injured by another's reluctance to execute everything agreed. These acts can cause various changes in the state of mutual rights, and various reciprocal jural attitudes, according to their quality, quantity or modality, and in so far as they effect execution of the promises contained in the contract.

1489. 5. Problems and disputes about agreements and about their fulfilment. The obscurity of agreements, the uncertainty of fulfilment - in a word, doubts of every kind that can arise after agreements have been made, whether the parties act in good faith or not - also alter the state and form of the parties' rights and their jural relationships.

1490. 6. Negotiations regarding settlement, transactions, etc. Finally, negotiations and adjustments by the parties are accidents which place the parties in different positions relative to rights. Every phrase or word, as it were, of one of the parties imposes on the other a jural duty of responding in one way or another.

1491. We must note with particular attention that all these different kinds of intermediary acts posited between the initiation and execution of a contract can be formed into special contracts, called `accessory' by some authors precisely because they are understood as completing another contract which, relative to them, is called `principal'.

1492. We call these contracts `executory'. The following are some examples: 1. Contractual penalty, by which both parties, or only one, oblige themselves to make compensation or undergo some penalty if they do not execute the contract, or if they withdraw from it.

1493. A penalty stipulated for the party who does not execute a contract which continues to subsist, is a true contractual penalty.

A penalty stipulated to allow withdrawal from the contract, is a kind of restitution or substitution (mulcta poenitentialis). An article of value is called a `pledge' if the party held by a penalty hands it over to the other with the intention of forsaking it in the case of non-fulfilment of the contract. A pledge given as proof and sanction of the contract, is a so-called probatory pledge; given in compensation for the possibility of withdrawing from the contract as a result of a change of mind, it is a penalising or liberating pledge.(439)

1494. 2. Guarantee on the thing sold against appropriation or defects discovered in it, which gives the purchaser the right to restitution from the seller.

1495. 3. Indemnity, by which a person assumes an obligation to give or do something for someone else, if the latter does not give or do it. This contract gives a creditor the right to demand what has been promised from the indemnifier provided the principal debtor has in fact failed to fulfil his obligation.

1496. 4. Pledge. By this contract a debtor consigns something of value to a creditor to satisfy him if the debtor does not pay by the stipulated time.

1497. If the thing consigned is immovable, the contract would correspond to mortgage in civil law.(440)

1498. Whenever a pledge is more valuable than a debt, and there has been no agreement that the pledge should remain entirely the creditor's if satisfaction is not made in time, the contract would contain a mixture of pledge and contractual penalty. Roman law calls this kind of pact `commissory law'.(441)

1499. If a pledge increases in value, the increase is understood to belong to the creditor and reduce the debt. In this case the contract is called `antichresis'.

1500. 5. Preliminary transactions, which prepare the way for final transactions to a dispute, are also executory contracts.

1501. One example is contractual sequestration, in which the parties agree to consign the disputed thing to the care of a third party until the dispute is solved.

All these and similar contracts arise during the time between agreements and their execution and fulfilment. During this interval they alter the jural relationships of the parties and thus produce reciprocal rights and obligations.(442)

1502. We must first distinguish between contracts of immediate and those of protracted execution. We call the former momentary contracts and the latter, lasting contracts.

1503. Donation, sale, barter, assignment, betting and games of chance are by their nature momentary contracts, because they can all be executed instantaneously.(443)

1504. Lasting contracts, such as commodatum, loan, usury, precarium, deposit, pledge, lease, employment, mandate, emphyteusis, rent, life annuity, agistment and social contracts have as their aim something whose execution requires time or a series of successive acts.

1505. What is the difference between lasting contracts and what we have called executory contracts? Contracts are called executory not because they accomplish what has been agreed, but because their purpose is to initiate the execution or the effective result. Hence, contracts are called lasting whose execution does not begin and end in a moment but lasts for some time before their completion.

1506. Consequently, some contracts considered under different aspects can be both executory and lasting; others, lasting and non-executory; others again, executory and non-lasting.

1507. For example, a pledge is an executory contract when considered as intended to obtain actual payment of a debt - it is not payment, that is, the effect and intention of the principal contract. But considered under a temporal aspect, it can be placed among lasting contracts.
On the other hand, employment is simply a lasting contract. If I engage a person for paid work, whatever he does forms a continuing series during the length of time for which I engage him; he has begun to execute his contract on the very first day he works for me. Thus the contract is always moving forward to its execution and completion.

1508. Executory acts and contracts therefore precede both momentary and lasting promissory contracts, whose execution they are intended to accomplish.

1509. The difference between the changes caused by momentary and lasting contracts in the forms of rights is as follows. Momentary contracts accomplish the execution of a contract instantaneously and therefore effect only one change. Lasting contracts, however, accomplish their execution a little at a time by successive acts, and therefore give rise to a series of purely successive changes; every step the parties take in the execution of the contract changes their jural state and their mutual relationships, reducing and altering their reciprocal obligations and rights.
If I let a house for three years, I make a lasting contract. It is clear that when the first year has ended and the rent has been paid, my right has been lessened relative to the tenant, and his obligation and right to me.

1510. Hence, in lasting rights, the time during which the acts of execution are carried out, or an obligation to carry them out is contracted, divides the rights and obligations in different ways, causing a continuous change in the forms of the rights and in the mutual jural obligations and attitudes.

1511. This division of the rights and the progressive change of the reciprocal obligations arises from the nature of the contract, which can be executed and completed only by degrees and after some length of time. But the rights and obligations also split in different ways because of the law they receive from the parties' will, which freely determines the terms of the contract.

1512. Let us first summarise what we have said so far about the changes taking place in the forms of rights as a consequence of the two modes of transmission described earlier. We said that:
1. Some changes in the forms of rights and obligations are produced by the simple abandonment of a right in favour of others who acquire the right of occupancy to what was abandoned. Their acceptance also gives them ownership of the abandoned thing according to the form and conditions of the abandonment. This form is one that can depend on the free will of the person who abandons his right to others. We will speak about it later.
2. Some changes in the forms of rights and jural obligations are produced by certain acts and contracts done in order to obtain and ensure the execution of (executory) agreements. We called these changes transitory.
3. Other changes are produced in those (lasting) contracts whose execution necessarily takes place gradually within a given period. These changes can be called successive.
4. Finally, there are changes which produce some final forms of rights. These forms remain in jural relationships between people after the transmission of rights is completed and contracts fully executed.

1513. The production of these changes is influenced first of all by the nature of things, that is, the nature of acts and contracts which have their own laws, and secondly by disagreement among the parties, one of whom is not entirely satisfied about the completed agreement. Nevertheless, the greatest influence in determining the forms which rights receive in their transmission is exercised by the unified wills of the parties, when they make the agreements. These unified wills are the theme, as it were, from which spring all the unwilled changes, resulting either from unforeseen accidents or the bad will of one of the parties who fails to fulfil the conditions of the agreement.

We can now indicate the most important of these final forms determined by agreements and the other two causes described above.

1514. We must first distinguish between the exercise and the substance of right.(444) We must also distinguish between the various ways in which a right is exercised and the various forms it can take. This distinction was discussed elsewhere, when we listed eight ways in which the same right can be exercised. We also said that these eight ways could accurately be called `variations' of right (cf. 970-974).

1515. The various ways in which a right can be exercised are causes modifying and changing the forms of rights, but they are not the forms retained by a right after its modification. We must now list these forms.

1516. Enjoying is a form of passivity; doing, of activity. When passivity and activity are subjects of our right, they must be respected; we must not be disturbed either in our enjoyment or in what we do. The first two most universal forms of rights are: the right to enjoyment and the right to action, that is, ownership and freedom, to which we have reduced all possible rights and from which all possible rights flow (cf. 59-67). The right to enjoyment presupposes the enjoyment of some ownership, and the right to act is freedom itself raised to the state of right.

1517. We are able to enjoy ourselves, our nature and the things joined to our nature; this is internal and external ownership. We can also perform two kinds of jural actions, that is, we can exercise the rights we already have and acquire new ones; we have freedom to exercise and freedom to acquire rights. The two primitive forms of rights therefore can be split into four: two kinds of ownership (internal and external) and two kinds of freedom (the exercise and acquisition of rights).

1518. The act of acquiring rights can in general be called appropriation, a word which includes all the particular ways in which acquisition can be carried out. But in addition to the act of acquisition there is the jural power of appropriation.
The act of acquisition is not always the exercise of one of our rights; it can be a simple lawful action, according to the distinction we made between simple freedom to act (innocuous freedom) and a right to act (jural freedom).(445)
The jural power of appropriation is a right which gives us a preference over other human beings in the acquisition of some good. We are directed to this acquisition either by the nature of the thing or by someone's authoritative will (this is frequently the case in natural or testamentary successions).

1519. These rights can be called rights of appropriation; we do not acquire them by our act but, as we said, by the nature of things or by someone else's act. Rights of ownership, on the other hand, require our act of acceptance.(446)

1520. Hence right ad rem, which consists `in the power to acquire a right', is a particular form of the very general right of jural freedom; but right in re is always some kind of ownership. We must now examine the principal, particular forms into which ownership and freedom are split through agreements.

1521. Agreements themselves are an exercise of our rights. Thus rights are split and individualised by their very exercise.

1522. Right is a relationship.(447) But relationships are the work of reason. Reason is therefore the cause of rights.
Reason is that which sees and posits various relationships between things, feelings and human beings, each of which is, or certainly contains, an abstraction. Abstraction is inexhaustible, and relationships therefore innumerable. A thing can be considered by the abstracting mind under countless partial aspects, each of which can become the term of a relationship with other things and with their partial aspects. By means of its faculty for abstraction and reference, reason is the cause of the splits in rights, splits which are themselves unlimited. Because our discussion is solely about jural relationships, we correctly call the cause of these relationships `jural reason'.

1523. Earlier we examined the principal relationships involved in the concept of ownership. We found that they could be reduced to three: 1. a predisposition to the use of the object; 2. its actual use; and 3. pure ownership of the object. We said these constituted the three groups of rights from which full ownership results.(448) These groups can be found or considered as separate. Thus we have the first splits in ownership.

1524. If only one of these groups of rights adheres to a person, the split in right concerns the form, that is, the moral faculty. If all three adhere to a person, but because of a defect in the object of right or because of an imperfect transmission cannot be put into act, the split in right concerns the matter, that is, the physical faculty joined to right.(449) Let us briefly analyse the principal contracts to discover how these splits in right of ownership are operative in them.

1525. The first group of rights in the class of ownership is the right of predisposition. This right can concern a right not yet acquired, or the use of a right already acquired.

1526. If it concerns a right not yet acquired, it is the same as the `power to acquire a right', which we described above.

1527. If the right of predisposition concerns the use of a right already acquired, it is `the power to carry out all that is necessary to make full use of some thing'.

1528. Various contracts relate to both these parts of the right of predisposition. We must note therefore that the principal contracts whose object is the right of predisposition are those which depend on suspensive or attributive conditions, in so far as the right of predisposition is `a right to acquire a right (jus ad rem).

1529. The conditions on which the acquisition of a right' depends originate either 1. in the will of the person who has the right; or 2. in the agreement made between the two contracting wills; or 3. in an event independent of, but indicated by the parties' wills as a condition of acquisition.

1530. The following therefore are contracts whose object is a right of predisposition:

1. Contract of donation. As long as the donation is proffered but not accepted, the donee has only `the right to acquire a right', that is, he has the first kind of right of predisposition. The condition for acquiring the right is acceptance, which is therefore dependent on the will of someone with a similar right.

1531. 2. Contract with withdrawal penalty. In this contract, the parties agree that either may withdraw from the contract on condition that the party who withdraws pays the other a stated fine. As long as the contract is not completed, the parties have no certain right over the object but an uncertain right, which may refer either to the object of the contract or to the fine. Because the matter is not determined, there is no right of ownership but only a right consisting `in the faculty to acquire the right of ownership'. In other words, a right of predisposition exists, and the condition for acquiring the right of ownership depends on the will of the agreeing parties.(450)

1532. 3. Contracts of chance. In these contracts the parties receive only a right to acquire a right'. We are still dealing therefore with the first kind of right of predisposition, which concerns an attributive condition whose fulfilment depends solely on the case itself, not on the wills of the parties.

1533. Every right of predisposition is something, and has a value; it can also be sold to others. In the contract by which the expectation of chance is bought, a right of predisposition is traded. This is the case of lottery-ticket sellers, of a longed-for win in a gambling game, etc, or of those who cede to another whatever eventual expectation they have.

1534. The object therefore of all contracts in which the transmission of rights depends on suspensive and attributive conditions is the right of predisposition (as I have defined it), that is, the right to acquire a right.

The same can be said about contracts qualified by resolutive conditions, but with this difference: because the contract is executed before the condition is fulfilled, two distinct periods exist: one between the contract's formation and its execution; the other between its execution and the fulfilment of the condition. Each period has its own forms of rights: in the first, the contract has given the parties only `a right to the acquisition of a right; in the second (during which the contract was executed) one of the parties has acquired a right of ownership, which he may lose upon fulfilment of the resolutive condition which restores things to their former state. Consequently, in this second period, the party who executed the contract has `a right to the re-acquisition of a right', while the other party has a corresponding obligation.

1535. The right of predisposition to acquire a right is of two kinds: it is a right to uncertain or certain acqisition

1536. The first kind is a right of expectation; the second, a right to certain acquisition.

1537. Because all the above-mentioned contracts are conditioned, their only subject is a right of expectation. We will consider a few examples of contracts whose subject is a right to certain acquisition:

1. Contract of loan. As long as the loan is not repaid, the lender has only the right to the certain acquisition of a right of ownership, that is, to the ownership of the sum to be repaid. Because the money lent is the property of the borrower, the lender has only the right to receive in exchange an equal sum of money. it is the borrower who provides the actual, real money for compensating the lender. Hence, as long as this money is not materially determined, the lender does not have any ownership, but only the right to certain acquisition of ownership.

1538. 2. Sales contract. As long as there is no payment for what has been sold and delivered, the seller has no ownership over the price. Because this is defrayed with money which is not materially determined, the necessary object of his ownership is lacking. He has only a right of predisposition, a right to certain acquisition of a right of ownership'.(451)

1539. The same argument applies to all commutative contracts where the thing to be given obligatorily by one party to the other remains undetermined. In these contracts, only the right to the acquisition of ownership, not ownership itself, can be transmitted by virtue of the agreement alone.

1540. However, in a contract of exchange, the things whose ownership is exchanged are generally determined. The ownership therefore can pass reciprocally from one party to the other by virtue of the agreement alone.

1541. But if one of the parties has taken on an alternative obligation, that is, an obligation to give something or other, the agreement gives the other party only the right to the certain acquisition of the right of ownership, not ownership itself.

1542. 3. Accepted promise of donation, in which a right to certain acquisition of a thing, but not its ownership, is acquired.

1543. Even this right of predisposition, that is, `a right to certain acquisition of a right of ownership has a value of its own and can be an object of alienation. Thus, whenever a credit is ceded in a contract of cession, only this right of predisposition is sold. The same happens in the circulation of money drafts, in the buying and selling of gilts, in the case of paper currency, etc.

1544. Let us now consider the other kind of right of predisposition, which concerns use. I have defined it as `the moral faculty to carry out, relative to a given thing, all that is necessary to exploit its usefulness.'

1545. The following is principally what we can do to a given thing in order to exploit its usefulness:
1. take it physically into our power;
2. keep it, once we have taken it;
3. guard and defend it;
4. work at it to make it usable, if it is not already so;
5. improve its condition;
6. do any work necessary to make it profitable.

These are minor rights, and they result from the division of that kind of right of predisposition which, we said, consists `in being able to do what is necessary with a given thing in order to exploit its usefulness.'

1546. All these particular rights can be the matter of contracts.

1547. The following contracts have one or other of the above-mentioned rights of predisposition as their matter:

1. Contract of deposit. This contract concerns the detention of something. The depositary, relative to everybody except the depositor, has as much right to keep the thing entrusted to him as he has to keep the rest of his property. The depositor, of course, has the right to take back what is his when he wishes, if it was freely deposited.

1548. 2. Conductio. This contract can concern my right to guard and defend my goods, if I pay someone to guard and defend them. This person acquires the right to guard and defend these goods relative to everybody except the employer .

1549. The same contract can also concern any work I have the right to do relative to my goods, either in making them usable (if they are not so already), improving them, or making them profitable, depending on which of these rights is the purpose of the contract. The person employed acquires the right, relative to everybody except the employer, to execute all the work entrusted to him . Thus, if someone prevented him from carrying out the work, his right would be violated .

1550. 3. Mandate. This contract can apply to any business entrusted to another, and therefore its matter can be any right of predisposition of the first or second kind.

I shall limit myself to the second kind. If I commission someone far away to send me some property of mine, I am by this mandate using my right to take what is mine. If I authorise him to form a commodatum for me or settle a dispute, I am again making use of different rights of predisposition, because these are acts with which, by means of another person, I wish to defend and take peaceful possession of my rights. The same must be said about other things.

1551. The right of use can also be split into minor rights in countless ways. We must always bear in mind the principle that `pure and simple right concerns only a single act'; other rights are complexes of many rights, that is, groups of rights.(452)

1552. The minor rights into which the right of use is commonly split arise from the limitations posited at the time of their use. The limitations can be time, or the tasks themselves, or any other circumstance posited by the nature of the matter, by human beings themselves or by contract. The two largest groups of these rights concern use (in the strictest sense), and the benefit from things.

1553. The following are the principal contracts which concern the right of use either entirely or partly:

1. Commodatum, in which we freely cede to someone for a determined time the use of something we own. If no time is determined, the contract is called precarium.
2. Location, in which the use of something is ceded against a price.
3. Emphyteusis of land, in which the usufruct of land is ceded to another in perpetuity but the naked ownership retained, whether the usufruct is ceded freely or against some form of payment.
4. Land rent, in which the productivity of land is ceded in return for money or something else, or ceded free of charge, although the person renting can free his land from the land rent by paying an agreed capital.
5. Agistment, that is, mutual hire. In agistment, one party hires to the other a large number of cattle; the second party hires his work to the first by obliging himself to care for the cattle on condition that he has a share in the offspring of the animals and in what benefits him. The matter of this contract therefore is both use (in the strict sense) and benefit, that is, the use of the work and the fruit of animals.
6. All contracts whose object is predial servitude involve the right of use, not in its entirety but divided up in a thousand ways.

1554. The right of servitude limits the use that an owner can make of his land, to the advantage of the owner of other land. Although the use can be limited in various ways, this can be reduced either to having to tolerate something being done on one's own land or having to refrain from doing something oneself.

1555. The land for which the servitude is an advantage is called `dominant'. When this land is used in a rural economy, the servitude is called `rustic'. Examples are the right to cross other people's land, to draw water, pasture cattle, cut wood, fish, hunt, excavate stones or sand, burn lime and so forth. It is clear that in all these kinds of servitude only a fraction of the total, complex use possible of a property is involved.

1556. If the dominant estate is not used for a rural economy, the servitude is called `urban'. Examples are the right to support a building against somebody else's, to introduce a beam into someone's wall, to pierce the wall with a window to obtain light or a view, to construct a roof or balcony which takes up a neighbour's space, to channel smoke through a neighbour's chimney, to drain water onto another's land, to disperse liquids, etc.

1557. Other kinds of urban servitude are not a right to do something on someone else's land, but a right by which a neighbour must not do anything on his land which is of disadvantage to the dominant estate. For example, he may not increase or decrease the height of his house, restrict the light, air, and view of the dominant estate; he may not divert his drainage away from another's estate because it is useful for irrigating the land or providing a water cistern, etc.

All these kinds of servitude involve only particular, possible uses of a thing.

1558. In emphyteusis useful dominion differs from dominion of naked ownership.

1559. Full or varyingly limited ownership is matter for contracts of accepted donation, sale, loan, usury and others.

1560. A human being, considered in isolation without any positive relationship with other human beings, can do 1. things that are lawful and 2. things that pertain to him by right. We therefore distinguished freedom into two branches: 1. innocuous freedom; 2. jural freedom.(453) Innocuous freedom can be indirectly limited without reducing jural freedom. But is this freedom, which is proper to right and due to every human being, reduced or split?

1561. I have spoken about two principal ways of acquiring a jural power over individual human beings: occupancy and generation. I said they are titles to new rights rather than modifications of previously existing rights (cf. 528-863). I now add, however, that occupancy and generation can be considered as causes which modify freedom, at least in their consequences if not directly.

1562. A baby can be occupied only because it does not have free judgment over itself, but must be allowed the exercise of its freedom to the extent that this free judgment reveals itself. Understood in this way, occupancy does not at all diminish the child's freedom because occupancy takes place while freedom is not in act; when it is in act, occupancy ceases. Occupancy therefore produces new rights in the occupier without reducing or splitting the child's rights.
When the child first gains the exercise of his faculties, he still has certain obligations towards the person who has occupied him. Truth therefore would not be violated if these remaining obligations were considered as a kind of modification, limitation or alteration of the child's jural freedom.

1563. In addition to early occupancy, the title of generation also leaves important consequences in the child's jural state. Even when his intelligence and personal freedom are in act, he still lives in a domestic society and consequently under patria potestas. This continues as long as his father lives and he remains part of the father's family even when he has left the family, he is still, in certain things, part of it. But can we say 1. that this continuing submission to his father's authority (which is certainly a limit to his freedom) is a diminution of his jural freedom or 2. that the limit of his freedom is the effect of his father as genitor?

1564. The first question must be answered negatively. Relative to the father, no jural freedom capable of being reduced by the father's authority exists in the child. We should rather say that jural freedom, relative to the parent, is limited itself, that is, by the original, natural relationship between father and offspring.(454)

1565. The second question must also be answered negatively. The limitation here is applied to personal freedom, which cannot in fact be limited, unless it co-operates with the limitation. We must distinguish between, on the one hand, the power assumed by a parent or occupier over a child who does not yet possess his own free judgment and, on the other, the power of paternal authority over the free judgment of the grown child. The first is exercised over the child in the same way as over a thing; free co-operation therefore is not necessary. The second is exercised over personal freedom itself which, if it must act, must act freely because it is free by nature. Paternal authority therefore, and any authority whatsoever imposed on the will as a moral-jural obligation, cannot be exercised without the will's consent.

1566. Hence, if we are to define paternal authority, or any similar authority, we must say that it is `a right to the willed obedience of the offspring', or `the right that the offspring consent to what the father commands.'

1567. The title and foundation therefore of this right is the unilateral fact of human generation, which in a child produces the obligation to submit willingly to obedience. This submission and obedience is posited in being only by the two acts of paternal command and filial consent, a consent which is obligatory and therefore physically, not morally free.

1568. What we have said about the lawfulness `of helping someone without knowing whether he consents or not, or even when, in certain cases, it is expressly against his consent',(455) justifies according to rational Right the faculty of tutelage, care and, generally speaking, management of others' affairs without a mandate.(456)

1569. Relative to tutelage and care, we must say more or less what we said about occupancy of a baby.

1570. Relative to the management of others' affairs without a mandate, we say that this is principally founded on a presumed consent and even more on the `will for good, which is essential to human nature'.

1571. In any case, these unilateral acts of beneficence do not, properly speaking, limit the right of freedom in those for whom they are exercised. This right, of its nature, does not extend to evil, that is, to harming oneself, and no harm is done if the acts are performed within just limits and with the respect due to the right which, as I have said, we each have `of judging what is helpful to our own good' (cf. 610).

1572. We must also note a limit and determination to the right of freedom resulting from its intrinsic nature. By this, I mean the limit imparted to freedom by the moral law, when the right is not simply limited but ceases to exist. The submission naturally due to people of wisdom, to benefactors, etc. is of this kind (cf. 675-680).

1573. Finally, we must distinguish between servitude and social dependence. The latter does not remove our freedom but directs and orders it to its greatest good.(457)

1574. From these considerations we can conclude that the reduction or splitting of the right to freedom can occur only by consent of the parties, that is, by an expressed or tacit contract. The contract however can be obligatory for one party or for both. In this case, a first title exists on which the right is founded prior to the contract itself.

1575. Servitude and seigniory originate in the splitting and alienation of natural freedom, which may be innocuous or jural. Through alienation a portion of freedom becomes the object of another's right.

1576. Servitude is not understood as any kind of dependence, but as only that whose direct purpose is the good of the person served, although in reality there may be some other good which as a consequence of his service benefits the servant.

1577. It is clear that no servile condition can exist without the consent or agreement of the parties. Consequently, according to the order of ideas, the first state in which we can imagine the human race is a state without any alienation of freedom and without masters or servants. Oral tradition has preserved a very ancient memory of this state.(458)

1578. Moreover, the bonds of dependence and seigniory must have been formed gradually, so that submission(459) and seigniory, which were not very noticeable in the second state of humanity, increased in the third state. Consequently, as we go back into antiquity, we find dependences and seigniories fewer and less burdensome. Such must have been the course followed by the natural, progressive development of the relationship of servitude and seigniory among human beings.

1579. We must always note, however, that unpredictable, disruptive and violent causes are at work in the human race alongside the natural, gentle progress of things. These causes explain the exceptions in human history that contradict natural human development. Let us therefore see what, on the one hand, is violent and unjust, and, on the one hand, peaceful and just in the various relationships of dependence and seigniory among human beings.

1580. We say `violent and unjust' because these two words are synonyms in the case of any servitude corresponding to a real seigniory.

1581. Seigniory is just if submission and dependence on another is spontaneous, consented to and agreed. It is unjust if obtained by force against the other's right of freedom.(460) As we said: the symptom indicating the violation of another's right is resentment. Thus, if someone does not experience a naturally resentment when he knows about another's action, we can say the action has not injured him.

1582. Aristotle defines a bond-servant as `an animate instrument'. It is clear that if this were the only quality considered in human beings, they would be hurt.

1583. But human beings can be animate instruments to the advantage of others without losing their personal existence and dignity.

If we consider individual human beings from this point of view, it is not at all absurd to find them in a servile state, which can be useful and desirable. Those who make themselves an animate and (I would add) reasoning instrument of the upright aims of others, and thus make a living for themselves, may really desire this state; indeed there may be no better state for them. Those who have sufficient ability to work at a trade, but not to govern and command others or make their living in a profession, can and should consider themselves happy because they are able to serve others with their skills. This can be so true that others in turn make themselves dependent on their ability. Hence, we can say, as Aristotle said (cf. 680), that those who have only the aptitude to serve others [App., no. 11] and for whom serving others is advantageous, are destined by nature to serve.

1584. This natural homogeneity for the servile state is principally connected with two things:
1. With a certain tranquillity, or even baseness, of spirit, and with certain lowly and depressed spirits, which makes people choose a state of submission providing them with happiness; they would not find any pleasure in the thrust and preoccupation of those who command.
2. With a lack of any aptitude or ability except that of earning a decent living or usefully employing their time by serving others.

1585. It is nearly always these two causes that induce human beings to consent to or even procure their own servitude.

1586. The first of the two causes guides a person instinctively to servitude. It is a human condition arising from human instinct(461) and acting in human beings without their noticing it. They find themselves in a state of dependence which they think they have acquired by chance, but about which they have in fact made a hidden choice. Moreover, when they reflect on it, they complain about their misfortune because the order of reflection is so remote and separate from that of feeling, instinct and cognition. We could say to such people, as Christ said to his Apostles: `You do not know of what spirit you are.'

1587. The second cause guides a person to servitude by reasoning and reflection.

1588. Sometimes we react against the dictates of reason, which clearly tells us we must serve for our own good. This happens because the instinct for domination, which is given to us and perhaps nurtured by us, opposes the conclusions of our reasoning about our real needs and accidental circumstances. If the instinct is strong, it has its way and we distance ourselves, by tremendous efforts, from the hard condition of servitude to which reason itself would reduce us. Sometimes, of course, our reaction to the conclusions of reason proceeds from wicked pride and great depravity. This kind of reaction is a considerable source of the miseries and crimes that brutalise the world.

1589. The first condition weakness and softness of spirit proceeds for the most part from involuntary, natural causes, for example, heredity and climate, although habit also plays a role.(462)

1590. The second condition is principally formed by an education that is excessively narrow and defective from the point of view of method, or slack and unhelpful. We are obviously speaking here about servitude caused by natural consent; only this kind can be in conformity with Right. We are not talking about servitude imposed by violence, which is a crime of human tyranny.

1591. We said that the origin of the first condition was principally heredity and climate. People throughout history, and all over the face of the earth have certainly believed that there are families capable in varying degrees of ruling or serving. Noah destined Canaan to be the bond-servant to his brothers' bond-servants, and saw in Canaan's people a tendency to servitude.

1592. In reference to climate, Montesquieu says:

1593. Need, which contributes to the production of the second condition, does not permit our learning anything except mechanical skills, and sometimes makes servitude an absolute necessity.

1594. Moreover, everybody benefits when the less wise and prudent are commanded and directed by those who are able to command and direct wisely.(464) We see therefore that dependence and servitude can be, and are in fact, accepted by certain kinds of human beings, and even be desired as the best thing possible for them.(465)

1595. Moreover, we see that this dependence and servitude acquires the character and dignity of moral duty, because to serve others is a duty for those who cannot otherwise obtain their living honestly. In this case, servitude is ennobled by morality.

1596. If however we consider a higher order of things, we discover an extremely noble dependence and servitude, where the very apex of moral perfection is resplendent. This is religious obedience, a kind of servitude to which a human being vows himself. As Count De Maistre noted, the religious of Christian societies have generously taken the place of the ancient slaves; they are the entirely free slaves of Christian charity, just as the others were slaves of violent pagan cruelty.(466)

1597. Let us summarise all we have said about the degrees of servitude. We distinguished between dependence, whose object is both the common good and the order necessary for it, and servitude, whose object is the particular good of the person to whom service is rendered. This alone is servitude in the true sense.(467) We said that dependence, whose object is the common good, is a consequence of association, which can also be jurally obligatory.(468)

Servitude, generally defined as `an obligation to render service to another', divides into two branches: innate servitude, which does not detract from natural freedom; and servitude which consists in a diminution of innate freedom. The first kind of servitude is that which children must render their parents.(469) We then showed that the servitude which detracts from innate freedom cannot take place without the person's consent. We presume that the person has not made himself culpable through his own action, about which we will speak later.

Nevertheless, we considered the case of an occupied baby, and said that as an adult, the child must repay its benefactor's costs (c. 599-636). Although the debt of repayment of the costs is only a real obligation, a person who possesses nothing cannot satisfy it except by his personal work and labour. But the `obligation of personal work' is itself, according to the general definition we have given, a degree of servitude. To help someone therefore can indirectly, but not necessarily, produce in the receiver a degree of servitude. Apart from this power to subject someone indirectly by an act of kindness, which always requires acknowledgement and often compensation, we entirely denied any faculty to subject one's fellow human beings by violence.

After we had examined our question relative to masters, we considered it relative to the person who becomes a subject. We first said that the latter can in varying degree alienate his own innate freedom but not that part which is intrinsically inalienable (cf. 130). A question then spontaneously presented itself: can a person contract, even reluctantly, an obligation to serve with his labour? We said this could happen through some kind of indirect consequence.(470) If the obligation imposed without his expressed will could be satisfied only by `a personal contribution', the obligation would bring with it a degree of servitude (cf. 599-636). In a broad sense, a personal contribution is always servitude. We will investigate in the next book the obligations which cause injury to others' rights.

1598. We see therefore that servitude can be of two kinds: direct, consisting in the obligation of `personal contributions' made for the sake of others, and indirect, consisting in the obligation of `real contributions' which cannot be satisfied except by `personal contributions', which consequently become obligatory.

1599. Authors have distinguished these two kinds of servitude but perhaps without defining them with the extension we think necessary. For example, Montesquieu limits them as follows:

1600. Servitude therefore is not present when human beings are obliged simply to a real contribution without personal services. But if personal services have been determined in order to satisfy the required contribution, servitude is present. This is the case of servi glebae (bond-servants of the glebe) who must cultivate the land, which they cannot abandon.

1601. Here we must ask: `According to rational Right can servitude be passed on by heredity?' In my opinion, servitude (taken in our general sense) follows indirectly from real obligations (when often it is not called `servitude').(472) It can therefore certainly pass to heirs because real obligations pass to them.

1602. But generally speaking, I think that direct servitude cannot pass to heirs because its nature is personal.

1603. Nevertheless, it would often seem to pass to heirs for the following reasons:

1. In an underdeveloped nation, many members are like children. In this state they have attained only very little free judgment of themselves. If servitude is introduced, a kind of occupancy of the bond-servants' children would continue in the masters, just as it would in abandoned children who had been taken in, but lacked development and only later (or never) attained dominion over themselves.

2. The servile spirit passes from one generation to the next. Families become accustomed to the life; aptitudes and abilities acquired by the children are servile; every thought or desire arising in them is servile. Consequently, their spirit does not find service distasteful; in fact, service is helpful to them, and the only state possible. Each succeeding generation tacitly consents to remain as it is.

1604. This consent however, when servitude is oppressive, can never be presumed. Resentment reveals itself or remains suppressed in the bond-servants, and at this point their service certainly becomes unjust. Montesquieu says:(473)

1605. What we have said so far indicates that consent to servitude can be either expressed or tacit.

1606. Consent is tacit when bond-servants neither feel their service as punishment nor show this externally.

1607. If consent is expressed also, it takes the form of a true contract, and is judged according to the rules of contracts.

1608. By means of this contract a person can subject himself to servitude in varying degrees.

1609. We note immediately that any servitude consisting in the alienation of one's own work can never include, without contradiction, alienation of the personal principle. Because alienation is a personal act, one of the contracting parties, if he intended to alienate his own person, would be non-existent. Granted that one of the parties is non-existent, there is no longer any possibility of a contract. A clear contradiction therefore is present in the concept of a contract by which one claims to alienate one's personship. The contradiction is even more evident if the contract is claimed to be bilateral.(475)

1610. We ignore such a shameful absurdity. The principal degrees of servitude, therefore, to which a person can subject himself depend on the following conditions:

1. The alienation of the product of his own labour while the management of work remains in his own power; the consignment of only the management of his work to another's judgment; or alienation and consignment of management together. This third kind of servitude is much greater than the first two.

1611. 2. The product of one's labour is obtained either by particular actions, that is, by a given skill, or by any other kind of action, in such a way that the person is constrained to earn as much as possible in every way for his master. The same applies to management, that is, management over a single determined work or over different works under the master's authority. At this second level servitude is much more onerous.

1612. 3. Any of these kinds of servitude is either permanent or for a determined time, or at the parties' pleasure. The last two kinds are a very light form of servitude, particularly the last.

1613. 4. Finally, there exists a contribution of an entirely free service determined by contract and compensated by a proportionate, agreed payment. Here, we can say, the two parties are in the same state because, while one renders service, the other pays the cost.

The difference between this and other kinds and levels of servitude is so great that even in remotest antiquity they were always distinguished by different names: bond-servants and wage-earners.(476)

In social Right we will deal with the classification of the different kinds and levels of servitude. What we have said here will be sufficient for the present.

(437) ER, 324-325.

(438) Cf. 1081-1107.

(439) Although in the state of nature a contractual penalty without a pledge might seem superfluous, the following reasons show that this si not so:

1.The failure to execute the contract does not entirely originate from wickedness; sometimes there may be simply negligence, forgetfulness, laziness or debility on the part of the offending party. Thus, when the applied penalty is burdensome and particularly well-defined, it helps to recall the obligation and fix it firmly in mind.

2. Because the offended party must first try to apply the contractual penalty, it helps him determine a procedure for maintaining his own right. He then can go further if the contract still has to be executed, or stop if it has not.

(440) In civil law, real consignment of what is immovable is not necessary; a symbolical consignment is sufficient, that is, some record in registers of public mortgages. Social pressure makes the registration effective, and more effective than consignment of what is immovable. But could a mortgage pact have any jural effect in the state of nature? It could have the effect of determining the creditor's procedure whenever he had to obtain satisfaction by taking over the debtor's goods. In other words he would first of all have to turn to the mortgaged goods; at least this would seem to be the sense of a mortgage.

(441) Ulpian., Dig., bk. 18, tit. 3, law 4; Cod. Teod., bk. De commiss. rescind. - Last book of Cod. de pact. pign.

(442) If we consider the intimate nature of executory acts and contracts, we find they are always a different exercise of the same right. Every right is exercised in many ways, of which we have listed eight (cf. 966). Every act therefore by which a right is exercised is the cause of some change in the right itself.

(443) I classify betting and games of chance among momentary contracts because their execution is carried out in a moment, when the event about which the bet has been made takes place, or at the end of the game where there is only winner or loser. Both the time which elapses until the jural event and the time necessary for the conclusion of the game are not part of the execution of the contract; they simply make way for and prepare the execution. This period of time therefore and the players' actions belong to the part of the contract preceding its execution, which we discussed in the previous paragraph.

(444) The substance of right is `a moral faculty'; the exercise, `an act of this faculty'.

(445) Cf. ER, 324-325.

(446) Possession of a thing is simply a fact. The fact, if legitimate, is not the substance itself of the right of ownership, but an exercise of the right of ownership. When, for example, we are given a donation, we have a right of acceptance or appropriation (jus ad rem); this right belongs to the group of rights we have classified under the title, Right of freedom relative to action (cf. 325). As soon as we have accepted and appropriated the gift, we have ownership (jus in re), that is, we have the right to all possible acts of the object; we can take possession of some thing which has already become ours. This right belongs to the group of rights of absolute freedom to a thing (cf. 251-253). Legislators distinguish between obligations arising from pure consent and those arising from consent connected with the handing-over of the thing. They acknowledge that pure consent sometimes involves a real right (jus in re). Ulpian, for example, says about pledge: `A pledge is contracted not only by handing-over but by pure consent even when it is not handed over' (Digest., bk. 13, t. 7, 1). However, they deny that it produces dominion. Reasons for their view can be found in Gomez (Resol., t. 2, c. 15, n. 23) and Loriotto (De transactionib. axiom., 60). - In my opinion the matter is clarified and simplified by distinguishing, as I have done, between promissory contracts and other contracts, and restricting the need for the real handing-over of the thing to these alone.

(447) Right is `a faculty sanctioned by the moral law which prohibits others from violating it.' It is clear therefore that the nature of right consists in a relationship between one who has the faculty and others who must respect it.

(448) Cf. 968-1003.

(449) I say `joined to right' because the inability to use a right joined to the subject does not, properly speaking, split the matter of right.

(450) It may be objected that the condition even in this contract depends on the will of only one of the parties, that is, of the one who withdraws. This certainly helps the fulfilment of the condition, but the event would not take place unless the other party's will accepts the withdrawal, willingly or unwillingly, from the contract to which he has obliged himself. Thus, although the parties do not contribute equally with their wills to the fulfilment of the condition, they both contribute, one actively, the other passively.

(451) When one party has executed a sales contract by handing over what has been sold, and the other party has not paid for it within the agreed time, the one who gave the article can freely request the return of the object or payment for it. In this respect, a sales contract has an implied resolutive condition, which is acknowledged by civil legislators. The code of the king of Sardinia says: `A resolutive condition is always understood as present in bilateral contracts when one of the parties does not satisfy his obligation. In this case the contract is not terminated with full right. The party for whom the agreement was executed has the choice of either constraining the other to fulfil the agreement, when this is possible, or to require termination together with damages and interest.' - Nevertheless, the resolutive condition inserted into these contracts differs from the resolutive condition established by the agreement of the parties. The latter is obligatory for both parties; the former is only facultative relative to the party who has executed the contract.

(452) ER, 322-323.

(453) Cf. ER, 324-325.

(454) The same must be said about our submission to God. Properly speaking, this does not diminish but determine our right of freedom. The submission is innate, co-existent with the right of freedom which, by its very essence, entails the limitation (if we wish to call it that). - What we say here about the creature's natural, essential submission to the Creator is true whether we consider the Creator in himself or in his witnesses such as (under the law of grace) Christ, the Apostles and the Church.

(455) We can see that our principle is in substance universally admitted if we consider it in its applications or in particular cases, discussed by most authors, in which the truth of what we are saying is more clearly revealed. One of these special cases is `the lawfulness of deferring or omitting entirely the restitution of someone's possessions purely for the owner's good'. Moralists generally acknowledge that this is sometimes the case and must be followed. They specify such cases and describe the circumstances. But, surely, they would not hold this opinion without recognising that `a faculty of helping someone against his will' does sometimes arise? - Cf. on the question Just. Vigler in his treatise De restitutione in genere, q. 31 entitled Quando bonum creditoris excuset a restitutione.

(456) Although acceptance of this kind of work purely for someone else's benefit comes within lawful actions pertaining to innocuous freedom, it is not a right pertaining to jural freedom. Hence, anyone prevented from assuming care of another is not injured in his right, but once he has assumed care, has acquired a right and would reasonably feel offended by anyone wanting to be involved in the work.

(457) Cf. my work, SP, bk. 1, cc. 6-9, for the distinction between the dependence to which members of a society are subject as a consequence of social order, and servitude.

(458) Plutarch refers to the state of primitive equality and independence which, although lost, was still remembered in his time, and which many wise people made an unsuccessful effort to resuscitate. The philosopher-historian says in his comparison between Lycurgus and Numa: `If anyone would make us place what has been said about the Helots among the political institutes of Lycurgus (which would be very cruel and indeed unreasonable), we would have to reply that Numa's legislation was far more in conformity with the spirit of the Greeks. He made all those considered by everyone as bond-servants enjoy and share the honour of free people; under him, it became a custom for them to be present with their masters at the saturnalia banquets. He also decided, we are told, that those who co-operated by their work in the annual income should share in and enjoy it afterwards. Some people said that this custom was preserved in memory of the equality allowed on the feasts of Saturn, when there was neither bond-servant nor master, and all were considered blood-relatives and equals.' - This and other laws of Numa seem to bear a trace of the Mosaic laws which prescribed that bond-servants were also to be invited to the banquets celebrated with the second tithes (Deut 12: 17, 18). Furthermore, because the Spartans were blood-relatives of the Hebrews (1 Macc 12, 14), it is probable that Numa obtained the idea from the Spartan colonies established in Italy. - Justinian's Institutes acknowledge that the state of freedom predated servitude, which was established by the Right of the nations, that is, it is a right subsequent to the right of nature: `This practice (manumission) took its origin from the law of the nations, because all are born free BY NATURAL LAW. Manumission was unknown because servitude was unknown. But when servitude was introduced BY THE LAW OF THE NATIONS, the BENEFIT of manumission followed' (bk. 1, tit. 5).

(459) The Decalogue which speaks only of paternal authority shows the state of a people in which the bonds of servitude based on consent and on political, civil seigniory are only in their initial stages.

(460) When corruption causes the human heart to nurture great hatred, inhumanity and arrogance, any lesser degree of cruelty is normally called `piety'. When those conquered in battle sold rather than killed themselves, their slavery was considered piety. This kind of treatment, if considered merciful and human, is a fortiori taken as even more just. Servitude was therefore instituted by the RIGHT of nations, and manumission was considered a KINDNESS, although at the same time the usual incoherent reasoning of depraved humanity revealed how contrary to nature the matter was: `Servitude is a constitution of the law of nations by which one person is subjected to another's seigniory CONTRARY TO NATURE (Instit. Just., bk. 1, tit. 3). Montesquieu refers to this when he observes: `Under despotic governments, where people are subject to political slavery, civil slavery is more tolerable than in other systems because everyone is glad to have ownership and life. Thus the state of a slave is not much more burdensome than that of a subject' (L'Esprit, bk. 15, c. 1).

(461) See what I have said about instinct in AMS.

(462) `Human beings accustom themselves to everything, even to servitude, provided one's master is not harder than one's servitude' (L'Esprit des Lois, bk. 15, c. 16).

(463) L'Esprit des Lois, bk. 15, c. 7. - Cf. also bk. 16, where he considers domestic servitude relative to climate, and; bk. 17, where he speaks about political servitude relative to climate. - Heredity, it must be noted, much more than climate, can exert an influence; the author of The Spirit of the Laws, who went rather far in exaggerating the moral influence of climate, did not note this cause.

(464) Plato himself observed in the first Alcibiades that `it is more helpful not only for a child but for an adult to be governed by a better person than to govern.'

(465) Among the Hebrews, servitude was not permanent. Bond-servants regained their freedom in the sabbatical year. However, the law had foreseen the case where a bond-servant might wish to remain a bond-servant always. If this happened, the bond-servant's ear was pierced as a sign of permanent servitude (Ex 21: 5, 6. - Deut 15: 16). This law shows and presupposes 1. that there can be people who voluntarily prefer the state of servitude to that of freedom; 2. that, with their consent, no harm is done by keeping them in servitude, precisely because every symptom of injury is lacking, that is, `the disturbed natural feeling'.

(466) In my opinion, the origin of servitude cannot be reduced to the sale of children by parents, as A. Granier de Cassagnac maintains in his work Des classes ouvrières et des classes bourgeoises (Paris, 1838). Nevertheless I think his work can be profitably read by those who wish to study the question of the spontaneous, natural origin of servitude and the origin of dependent classes in general.

(467) Cf. SP, bk. 1, c. 9.

(468) Ibid.

(469) We have already noted two elements in the relationship of children to their parents: 1. servile dependence; 2. social dependence. These two elements correspond to the bond of seigniory and of society contained in the concept of fraternity.

(470) If a person hates us so much that the hatred which has been proved with certainty could cause our death, natural right gives and permits us the exercise of a true dominion over our absolute, homicidal enemy for as long as the hatred endures.

(471) L'Esprit des Lois, bk. 15, c. 10. - Montesquieu makes an excellent observation here: `Simple-living people have only real slavery because their wives and children perform domestic work. Pleasure-loving people have personal servitude, because their indulgent way of life requires the service of slaves in the house.' - Tacitus in fact, speaking about the customs of the Germans, says that in the midst of the pleasures of life the master could not be distinguished from the slave.

(472) The executory part of promissory contracts can be considered a personal obligation. On this reflection Kant founded his distinction, later accepted by the Austrian code, between real rights and personal rights over things. - We must note however that the provision of labour, although personal by nature, is called servile only when the work to be done is burdensome, mechanical and of some duration. Handing over a sum of money, or any other exchange which requires no bodily effort, is not considered a service in the normal sense of the word. On the other hand, ability to have the work done by another does not remove its servile nature, if it is such. It simply excuses the person from providing servitude, from which he thus frees himself.

(473) L'Esprit des Lois, bk. 15, c. 16).

(474) Florus says: `The slave war devastated Sicily more cruelly than the Punic war' (bk. 3). - One injustice produces another: if injustice is accepted by positive laws, then positive law, which has declared just what is unjust, becomes an inexhaustible source of other equally unjust laws, and consequently creates a system of laws which protects evil. The so-called right to kill prisoners taken in battle (acknowledged as legitimate by positive Right) was a cause of servitude and persuaded people that human beings could be the property of other human beings. When this monstrous concept had entered positive laws, a master was eventually permitted every inhuman indignity against his slave. As long as masters were aided by the moral feeling of nature, they tempered their use of their extraordinary power. But when customs had declined, the slave became the wretched plaything of his evil master's cruelty. Eventually Rome had to enact the Sillanian senatorial decree and other very cruel laws against slaves under the pretext of defending the masters' lives. These laws, although they appeared just, were in fact extremely unjust, the inevitable consequence of prior injustices permitted and sanctioned by the law.

(475) `Sale presupposes a price: when a slave is sold, all his goods become part of the property of his master. In this case, the master gives nothing, and the slave receives nothing' (Montesquieu, bk. 15, c. 2). - Permission to be sold, peculia granted to slaves, and the laws imposed on slaves after their exclusion from the society for which the laws are made, are the incoherent, involuntary protests of human reason and common sense against the principle of slavery. They are a proof that human beings, and in particular a nation, can never act in coherence with a false principle. To act in this way they would have to be essentially unreasoning, despite the rationality which constitutes human nature. Is it really possible to have a creature, even outside the human race, who could act in coherence with what is absurd? Such a being would always and in every way be absurd, and less than nothing!.

(476) Hebrew law distinguished the bond-servant from the wage-earner, and if the bond-servant were a Hebrew, he had to be considered as a simple wage-earner, not as a bond-servant (Deut 15: 18).

Book 4

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