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ALTERATIONS TO THE RIGHTS OF OTHERS;
CONSEQUENT OBLIGATIONS AND
MODIFICATIONS OF MUTUAL RIGHTS

Book 4 - Introduction

SUBJECT-MATTER OF THIS BOOK

1614. The preceding book has described the modifications undergone by rights as a result of the correlative acts of more than one person. The present book has already been dedicated to describing the modifications undergone by rights as a result of what is done by a single person.
But the question we have in mind could be divided in two. In fact we know that every right consists in a relationship of a special nature between two parties, that is, between the party with the right and the party with the corresponding duty to respect that right. Our questions, therefore, could be: `What modifications occur in rights as a result of acts done by the party which possesses them?', and `What modifications occur to rights as a result of acts done by the party who is required to respect those rights?'. It is easy to see, however, that these two questions are intimately bound together, and that it is the second which requires special attention. For the first, it is sufficient to remember principally what we have said in various places as the need arose.

1615. This becomes more obvious as we recall that whoever has a right can do only two things when he acts alone without concurrence from other persons. He can 1. annihilate his right completely or in part by abandoning it or by destroying its matter; 2. offer or promise it to someone else.

1616. The first of these two things, that is, renunciation and annihilation, is not properly speaking a modification of the right. We have in fact spoken about this sufficiently in dealing with the ways in which rights are extinguished.

1617. The second is without doubt a kind of modification of one's right, a portion of which passes to the person to whom it was offered or promised. The offer immediately provides this person with a right to accept. This also has been dealt with, however, and we refer the reader to what has already been said.

1618. Why is this the only modification that a person can make, as a result simply of his own actions, to a right he possesses?
Modifications of a right presuppose that either a part or the whole of the right passes to another subject. However, if this subject refuses to receive it, the right does not pass because no one acquires a right except `as a result of an act of his own will.'

1619. In the case we have mentioned (donation, or some other contract offered to another person), the person to whom the contract or donation was offered cannot be said to acquire the right to acceptance by the sole fact of the offer. Rather, the offer, through its relationship with human nature, enables him to acquire it. Granted the essential act inclining human nature to good, those ways which lead human nature to acquire good must be kept open for it and the offer is such a way. It constitutes, however, only a right in potency, that is, a power of acquiring rights; it is a right to jural freedom, not a right of ownership.
All that is required, therefore, is that we should now examine the modifications which rights can receive from the acts of persons obliged to respect them.

1620. What acts can human beings carry out in relationship to the rights of others? Right is a faculty for acting. It is clear, therefore, that a person with a right can act in virtue of this right, that is, he can exercise his right. Obligation here consists in a duty to respect the other's right. It is a kind of passivity, a prohibition, a negation, through which we are forbidden to do what injures another's right.

1621. How is it possible for a person with this obligation to modify another's right without injuring it? It is true that harming others' rights through unlawful acts is the principal way they are normally violated by those with an obligation to respect them, but is there no innocuous modification that can be caused to others' rights as a result of these actions?

1622. This can indeed happen, but for the most part it takes place exceptionally. We can see this by making a synopsis of the lawful acts possible to us, and by considering their jural consequences.
We reduced human activity to two species of freedom: innocuous and jural. Through innocuous freedom we acquire rights; through jural freedom we exercise the rights we have already acquired.
We distinguished four classes of acts which can be carried out by innocuous freedom. We must now consider the jural effects of each of them.

First class: acts with which we occupy anything which is free. These acts do not modify others' rights, but simply restrict their innocuous freedom.

Second class: acts with which another's goods are used, but without causing the least harm, obstacle or annoyance to the owner. These acts also do not modify others' rights.

Third class: acts of beneficence without harm to the benefactor. These acts generate in the beneficiaries moral, not jural, duties of gratitude.

Fourth class: acts of beneficence which cause some harm to the benefactor, but are necessary to supply the needs of the beneficiary. These acts bring about a jural obligation of recompense in the beneficiary, and thus modify his jural state. Wardship, trusteeship and the administration of others' affairs without a mandate are acts of this kind. We have already spoken of them briefly.

1623. Acts of jural freedom can be grouped in two classes:

First class: acts with which one makes use of one's own right. These do not modify another's jural state except with the other's consent, as in contracts.

Second class: acts with which another's right is disposed of, but unknowingly. These are all the acts done by a possessor in good faith. They truly modify another's jural state because they give rise to jural relationships consisting in obligations and rights between the person acting in good faith, and the person to whom the right truly belongs.

1624. The jural effect of such acts consists in obligations arising not from consent, but from the thing itself. In other words, every time that something is moved, as it were, so that it no longer remains with its master, there is an obligation to restore it to the owner in accordance with the tag: res clamat ad dominum.(477)

1625. In this case, the true owner has a personal and real action allowing him to claim what is his.

1626. The personal action arises from the obligation, and the real action from what is his own.

1627. The possessor in good faith has the obligation of restoring what belongs to another as soon as he realises that it belongs to the other. This explains why the owner has a personal action in his regard; he can claim that the other fulfil his obligation by restoring the thing in question. If, however, the possessor is not persuaded that what he holds belongs to another, and cannot be persuaded, or were dead or absent, the owner would still be left with the possibility of real action. In other words, he would be able to claim and repossess the thing directly. The thing is his, and he can therefore dispose of it with his right of ownership.(478)
We do not think it necessary to examine such modifications further. What we have said about them in various places as occasion offered would seem sufficient.

1628. The sole argument of this book is, therefore, the modifications of others' rights when their rights are violated by another person. The book will be a treatise on penal Right, but restricted to the part which concerns human beings in the state of nature.

(477) We could mention here the case of accidental harm produced by something we own. Some legislations set a penalty for the person whose beast or cart accidentally kills another person. Even now in England the animal or wagon is confiscated for the poor. This penalty is called deodand, that is Deo dandum, something handed over to God and through God to his poor. It seems that the ancient British legislators wished to punish any negligence that could have occurred, but considered it more of an offence to God, the author of life, than a jural offence towards the human individual. This offence to God had to be recompensed with the sacrifice that Justinian calls noxa, that is the body that inflicted the harm (Inst. Just., bk. 4, tit. 8: 1).

(478) Obligations ex re also form part of contracts (cf. Inst. Just., bk. 3, tit. 15).

Chapter 1

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