CHAPTER IV.

DUTIES CONCERNING THE PROPERTY OF OTHERS.

SUMMARY.

=Of property.=--Its fundamental principle; work sanctioned by law. Communistic Utopia.--Inequality of wealth: it is founded on nature, but should not be aggravated by the law.--Different forms of the rights of property: _loans_, _trusts_, _things lost_, _sales_, _property properly so called_.

=Loan.=--Is it a duty to loan?--The _interest_ of money.--The question of usury.--Duties of _creditor_ and _debtor_.--_Failures_ and _bankruptcies_.--The commodate or things loaned for use.

=Trust.=--Duties of the _depositary_ and the _deponent_.

=Of the possession in good faith.=--_The thing lost._

=Sales.=--Obligations of _seller_ and _buyer_.

=Of property in general.=--Violation of property or _theft_.--The elements which constitute theft.--_Simple_ thefts and _qualified_ thefts.--_Abuse of confidence_, _swindling_.--Restitution.

=Promises and contracts.=--Differences between these two facts.--Strict obligation to keep one's promises: rare exceptions (practical impossibility, illicit promises, etc.)--Different _kinds_ of contracts.--_Conditions_ of the contract: consent, capacity of contracting parties, a real object, a licit cause.--Rules for the formation of contracts.--Rules for the interpretation of contracts.

The immediate consequence of the right of self-preservation which each has, etc., implies the _right of property_.

=31. Property.=--What is property? What is its origin and principle? What objections has it raised? What moral and social reasons justify it, rendering its maintenance both sacred and necessary?

"Property," says the civil code, "is the right to enjoy and dispose of things in the most absolute manner, provided no use is made of them prohibited by the laws or the rules." (Art. 544.)

"The right of property," says the Constitution of '93, "is that which belongs to every citizen: to enjoy, and dispose at will of his property, his income, of the fruit of his labor and industry." (Art. 8.)

These are the judicial and political definitions of property. Philosophically, it may be said, that it is the right each man has to make something _his own_, that is to say, to attribute to himself the _exclusive_ right to enjoy something outside of himself.

We must distinguish between _possession_ and _property_. Possession is nothing else than _actual custody_: I may have in my hands an object that is not mine, which has either been loaned to me, or which I may have found; this does not make me its proprietor. Property is the right I have to exclude all others from the use of a thing, even if I should not be in actual possession of it.

=32. Origin and fundamental principle of property.=--The first property is that of my own body, but thus far it is nothing else than what may be called corporeal liberty. How do we go beyond that? How do we extend this primitive right over things which are outside of ourselves?

Let us first remark that this right of appropriating external things rests on necessity and on the laws of organized beings. It is evident, in fact, that life cannot be preserved otherwise than by a perpetual exchange between the parts of the living body and the particles of the surrounding bodies. Nutrition is _assimilation_, and, consequently, _appropriation_. It is, then, necessary that certain things of the external world should become _mine_, otherwise life is impossible.

Property is then _necessary_; let us now see by what means it becomes legitimate.

Property has been given several origins: _occupation_, _law_, _work_. According to some, property has for its fundamental principle the _right of the first occupant_. It is said that man has the right of appropriating a thing not in possession of some one else; the same as at the theatre, the spectator who comes first has the right to take the best place. (Cicero.) So be it; but at the theatre I occupy only the place occupied by my own body; I have not the right to appropriate the whole theatre, or even the pit. It is the same with the right of the first occupant. I have certainly a right to the place my own body would occupy, but no further: for where would my right then stop?

"Will the setting one's foot," says J. J. Rousseau, "on a piece of common ground be sufficient to declare one's self at once the master of it? When Nunez Balboa took on landing possession of the Southern Sea, and of the whole of Southern America in the name of the Crown of Castile, was that enough to exclude from it all the princes of the world? At that rate the Catholic king had but to take all at once possession in his study of the whole universe, relying upon subsequently striking off from his empire what before was in possession of the other princes." (Contrat social, liv. 1er, Ch. ix.)

=The law.=--If occupation of itself alone is insufficient in founding the right of property, will it not become legitimate by adding to it _convention_--that is to say, the _law_? Property, we have seen, is necessary; but if every one is free to appropriate to himself what he needs, it becomes anarchy; it is, as Hobbes said, "the war of all against all." It is necessary that the law should fix the property of each in the interest of all. Property, under this new hypothesis, would then mean the part which public authority has fixed or recognized, whether we admit a primitive division made by a magistrate, or a primitive occupation more or less due to chance, but consecrated by law.

Certainly, the reason of social utility plays a great part in the establishment and consecration of property; and it would be absurd not to take this consideration into account. Certainly, even if property were but a fact consecrated by time, by necessity, and by law, it would already by that alone have a very great authority; but we believe that that is not saying enough. Property is not only a _consecrated fact_, it is also a _right_. It finds in the law its _guaranty_, but not its _foundation_.

The true principle of property is _work_; and property becomes blended with liberty itself: "_liberty_ and _property_," say the English.

_Work._--If all the things man has need of were in unlimited number, and if they could be acquired without effort, there would be no property. This, for example, takes place in the case of the atmosphere, of which we all have need, but which belongs to no one. But if the question is of things that cannot be _acquired_ except by a certain effort (as in the case of animals running wild), or even that can be _produced_ only by human effort (as a harvest in a barren ground), these things belong by right to him who conquers them or brings them about.

"I take wild wheat into my hand, I sow it in soil I have dug, and I wait for the earth, aided by rain and sunshine, to do its work. Is the growing crop my property? Where would it be without me? I created it. Who can deny it?... This earth was worth nothing and produced nothing: I dug the soil; I brought from a distance friable and fertilizing earth; I enriched it with manure; it is now fertile for many years to come. This fertility is my work.... The earth belonged to no one; in fertilizing it, I made it mine. According to Locke, nine tenths at least of the produce of the soil should be attributed to human labor."[20]

It has been said that work is not a sufficient foundation to establish the right of property; that occupation must be added thereto, for otherwise work alone would make us the proprietors of what is already occupied by others; the farmer would become the proprietor of the fields he cultivates from the fact alone that he cultivates them. Occupation is therefore a necessary element of property.

Certainly; but occupation itself has no value except as it already represents labor, and inasmuch as it is labor. The fact of culling a fruit, of seizing an animal, and even of setting foot upon a desert land, is an exercise of my activity which is more or less easy or difficult to accomplish, but which in reality is not the less the result of an effort. It is, then, work itself which lays the foundation of occupation and consecrates it. But when the thing once occupied has become the property of a man by a first work, it can no longer without contradiction become the property of another by a subsequent work. This work applied to the property of others is not the less itself the foundation of property, namely: the price received in exchange of work, which is called _salary_, and which again by exchange can obtain for us the possession of things not ours.

=33. Accumulation and transmission.=--The right of _appropriation_, founded as we have just seen on work, carries with it as its consequence, the right of _accumulation_ and that of _transmission_.

In fact, if I have acquired a thing, I can either enjoy it actually, or reserve it to enjoy it later; and if I have more than my actual wants require, I can lay aside what to-day is useless to me, but which will be useful to me later. This is what is called _saving_; and the successive additions to savings is called _accumulation_. This right cannot be denied to man; for that would be ignoring in him one of his noblest faculties, namely, the faculty of providing for the future. In suppressing this right, the very source of all production, namely, work, would dry up; for it is his thought of the future which, above all, induces man to work to insure his security.

The right of _transmission_ is another consequence of property; for if I have enjoyment myself, I ought to be able to transmit it to others; finally, I can give up my property to obtain in its place the property of others which might be more agreeable or more useful to me; hence the right of _exchange_, which gives rise to what is called _purchase_ and _sale_. Of all transmissions, the most natural is that which takes place between a father and his children: this is what is called _inheritance_. If we were to deprive the head of a family of the right of thinking of his children in the accumulation of the fruits of his labors, we should destroy thereby the most energetic instigation to work there is in the human heart.

=34. Individual property and the community.=--The adversaries of property have often said that they did not attack property in itself, but only _individual_ property. The soil which, if not the principle, is at least the source of all riches, belongs, they say, not to the individual, but to society; to the State, that is to say, to all, as common and undivided property: each individual is but a consumer, and receives his share from the State, which alone is the true proprietor. This is what is called the community system, or _communism_, which takes two forms, according as it admits the division to be made in a manner absolutely equal among the co-members of the society, which is the _equality_ system (_systeme egalitaire_); or by reason of _capacity_ and _works_. It is this form of communism which the school of Saint-Simon maintains at this day.

We need not point out the practical impossibility of realizing such a system. Let us confine ourselves to showing its essential vice. If communism means absolute equality (and true communism does), it destroys the main inducement to work: for man assured of his living by the State, has nothing left to stimulate him to personal effort. Work, deprived of the hope of a legitimate remuneration, would be reduced to a strict minimum, and civilization, which lives by work, would rapidly go backward: general wretchedness would be the necessary consequence of this state of things; all would be equally poor and miserable; humanity would go back to its primitive state, to get from which it struggled so hard, and from which it emerged by means of work and property alone. Moreover, as it is absolutely impossible to dispense with work, the State would be obliged to enforce it upon those whom their interest did not spontaneously incline to it; from being free, work would become servile, and the pensioners of the State would in reality be but its slaves.

As to the inequality-communism (_communisme inegalitaire_) which recommends a remuneration from the State, proportioned to merit and products, that is to say, to _capacity_ and _works_, it certainly does not so very seriously impair the principle of property and liberty; but, on the one hand, it does not satisfy the instincts of equality,[21] which have at all times inspired the communistic utopias; on the other, it attacks the family instincts by suppressing inheritance; now, if man is interested in his own fate, he interests himself still more, as he grows old, in the fate of his children; in depriving him of the responsibility for their destinies, you deprive him of the most energetic stimulus to work; and the tendency would be, though in a lesser degree, to produce the same evil of general impoverishment, as would communism properly so called. But the principal vice of all communism, whether of equality or inequality, is to substitute the State for the individual, to make of all men functionaries, to commit to the State the destinies of all individuals; in one word, to make of the State a providence.[22]

=35. Inequality of riches.=--Yet there will always arise in the mind a grave problem: Why are goods created for all, distributed in so unequal and capricious a manner? Why the rich and the poor? and if inequality must exist, why is it not in proportion to inequality of merit and individual work? Why are the idle and prodigal sometimes rich? Why are the poor overwhelmed by both work and poverty?

There are two questions here: 1. Why is there any inequality at all? 2. Why, supposing this inequality must exist, has it no connection with merit or the work of the individual?

Regarding the first point, we cannot deny, unless we should wish to suppress all human responsibility, all free and personal activity--in a word, all liberty--we cannot deny, I say, that the inequality of merit and of work does not authorize and justify a certain inequality in the distribution of property.

But, it is said, this inequality is not always in proportion to the work. It may be answered that as civic laws become more perfect (by the abolition of monopoly, privileges, abuse of rights, such as the feudal rights, etc.,) the distribution of riches will tend to become more and more in proportion to individual merit and efforts. There remain but two sources of inequality which do not proceed from personal work: 1, accidents; 2, hereditary transmission. But in regard to accidents, there is no way of absolutely suppressing the part chance plays in man's destiny; it can only be corrected and diminished, and thereto tend the institutions of life-assurances, savings-banks, banks of assistance, etc., which are means of equalization growing along with the general progress. As to the inequality produced by inheritance, one of two things is to be considered: either the heir keeps and increases by his own work what he has acquired, and thus succeeds in deserving it; or, on the contrary, he ceases to work and consumes without producing, and in this case he destroys his privilege himself without the State's meddling with it.

Besides, the question is less concerning the _relative well-being_ of men than their _absolute well-being_. What use would it be to men to be all equal if they were all miserable? There is certainly more equality in a republic of savages than in our European societies; but how many of our poor Europeans are there who would exchange their condition for an existence among savages? In reality, social progress, in continually increasing general wealth, increases at the same time the well-being of each, without increasing the sum of individual efforts. This superaddition of well-being is in reality gratuitous, as Bastiat has demonstrated. "Hence," as he says, "with a community increasing in well-being,[23] as by property ever better guaranteed, we leave behind us the community of misery from which we came."

"Property," says Bastiat, "tends to transform onerous into gratuitous utility. It is that spur which obliges human intelligence to draw from the inertia of matter its latent natural forces. It struggles, certainly for its own benefit, against the obstacles which make utility onerous; and when the obstacle is overthrown, it is found that its disappearance benefits all. Then the indefatigable proprietor attacks new obstacles, and continually raising the human level, he more and more realizes community, and with it equality in the midst of the great human family."

=36. Duties concerning the property of others.=--After having established the right of general property, we have to expound the duties relative to the property of others.

The property of others may be injured in various ways, and in different cases. These cases are: 1, _loans_; 2, _trusts_; 3, _things lost_; 4, _sales_; 5, _property_ strictly _so-called_.

=37. Loans.--Debts.=--The inequality of riches is the cause that among men some have need of what others possess, and yet cannot procure by _purchase_, for want of means. In this case, the first turn to the second to obtain the temporary enjoyment of the thing they stand in need of; this is called _borrowing_; the reciprocal act, which consists in conceding for a time the desired object, is called _loaning_. He who borrows, and who by this very act engages himself to return the thing again, is called _debtor_ (who owes), and he who loans is called _creditor_; he has a credit on his debtor.

Several questions spring from this, some very simple, others very delicate, and often debated.

=38. Rights and duties of the creditor.--Money interest.--Usury.=--And first, is it a duty to loan to any that ask you? It is evident that if it is a duty it can be only a duty of charity, or friendliness, but not of strict justice. One is no more obliged to loan to all than to give to all. The duty of loaning, like the duty of giving without discrimination, would be tantamount to the negation of property; for he who would open his money-chest to all unconditionally, however rich he might be, would in a few days be absolutely despoiled. Besides, the same duty weighing equally on those who have received, they in their turn would be obliged to pass their goods over to others, and no one would ever be proprietor. In this case, it would even be better to hand all property over to the State, that it might establish a certain order and fixity in the repartition of it.

It is this doctrine which a Father of the Church, Clement of Alexandria, has expressed in these terms in his treatise: _Can any rich man be saved?_

"What division of property could there be among men if no one had anything? If we cannot fulfil the duties of charity without any money, and if at the same time we were commanded to reject riches, would there not be contradiction? Would it not be to say at the same time give and not give, feed and not feed, share and not share?"

It is therefore not a strict duty to loan to all; it is a form of benevolence, and we must put off to another chapter (ch. vi.) the conditions and the degrees of this duty.

But a question which necessarily presents itself here, is to know if, when one loans, it is a duty to deprive one's self of all remuneration; or if it is, on the contrary, permitted to exact a price over and beyond the sum loaned. This is what is called money _interest_; and when this interest is or appears excessive, it is called _usury_. This question, discussed during the whole middle ages, was, before its true principles were established, first resolved by practice and necessity.

It is to-day evident to all sensible minds, that capital, like work, has a right to remuneration. Why? Because without the expectation of this remuneration, the possessor of the capital would forthwith consume it himself or allow it to waste away without use. This will be better understood in considering the two principal forms of remuneration for capital: _interest_ and _rent_. Interest and rent are both the product of a capital loaned, but with this difference, that rent is the product of a _fixed_ capital (house, field, workshop); while interest is the product of a _circulating_ capital (money or paper).

The interest of capital represents two things: 1, the deprivation of him who loans, and who might consume his capital; 2, the risk he incurs, for capital is never loaned except to be invested, and consequently it may be lost. These are the two fundamental reasons which establish the legitimacy of interest, despite the prejudices which have long condemned it as _usury_, and the utopias which would establish the _gratuity_ of _credit_.[24]

The principal reason against the legitimacy of interest is deduced from the _sterility of money_. "Interest," says Aristotle, "is _money bred from money_; and nothing is more contrary to nature." But, as Bentham remarks (_Defense of Usury_, letter 10), "if it be true that a sum of money is of itself incapable to breed, it is not the less true that with this same borrowed sum, a man can buy a ram and a sheep, which, at the end of a year, will have produced two or three lambs." In other terms, as Calvin says, "it is not from the money itself that the benefit comes, it is from the use that is made of it."

It has been said that he who _loans_ does not _deprive_ himself of his money, since he can do without it. (Proudhon, _Letters to Bastiat_, 3d letter.) But he does deprive himself of it, since he might have consumed it himself. The proof that a loan is a privation, is the pain men have in economizing and in investing their money. How many men are there who, in possession of a sum of one hundred francs, would not rather spend it than place it on interest?

As to what is called _gratuitous_ credit, it could be possible only by being reciprocal. In fact, if I loan you my house, and you loan me in return your land, supposing they are of equal value, it is evident that, the one being worth as much as the other, and the two services equivalent, we need not pay each other anything; for it would be only an exchange of money. But nothing can be inferred from this, touching the most usual case: namely, where the capital is loaned by the possessor to him who does not possess; for then there is no reciprocity, consequently no gratuity.

As to the rate of interest it varies like all values according to the law of supply and demand in the money market. (See the _Cours d'Economie Politique_.) The greater the supply of capital the less dear it is. It is, then, the increase of capital that is to diminish interest and bring about a sort of relative gratuity. Every enterprise against capital will produce a contrary result.

As to the rent of capital, it has generally raised fewer objections than interest; for it is easier to understand that if I give myself the trouble to build a house, it is that it will bring me in something; but it is, on the whole, the same thing, with this difference, that circulating capital, running more risks than fixed capital, seems to have a still better right to remuneration.

The lender has then the right to exact a certain amount over and above the sum loaned. Certainly, he cannot exact it, as it often occurs among friends, and for very small sums. But as a principle, one is no more obliged to lend gratuitously, than to give to others gratuitously what they need.

In admitting that the interest of money is a legitimate thing, is one obliged also to admit that the money-lender has a right to fix the rate of interest as high as he wishes? Beyond a certain limit, will not the interest become what we call _usury_?

To which may be replied:

"1. If the one borrowing consents to pay the price, it is that this service done him does not appear to him too dear. One may borrow at 20 and even 30 per cent., if one foresees a gain of 40. 2. Why not look at the thing from the lender's standpoint? If the return of the funds appears more or less doubtful, why should he not have the right to protect himself?" (_Dictionary of Politics_, by Maurice Block.)

These arguments prove, in fact, that it is impossible to determine beforehand and absolutely the rate at which it may be permitted to lend, and there are many cases where a very high interest may be legitimate: for instance, in what is called _bottomry-loan_, which consists in advances made to shipping merchants on their ships; the law here sanctions very high interest, because of the exceptional risks this kind of enterprise runs.

Does it, however, follow, as some economists seem to think, that there is no occasion to speak of _usury_, properly so called, that the term _usurer_ is an insult, invented by ignorance, which has no real basis? This we cannot admit. Political economy and morality are two different things.

Even if one should admit that there is no reason for legally fixing the rate of interest, because money is a merchandise like all others which should be left to free circulation, to the free appreciation of the parties, it would not follow that there could be no abuse made of the required interest. Experience proves the contrary. It is not so much the rate of the interest which constitutes the injustice thereof, as the reasons and circumstances of the loan. If, taking advantage of the passions of youth, one loans to a prodigal, knowing him unable to refuse the conditions, because he only listens to pleasure; or if, seducing the ignorant, one dazzles him with magnificent bargains; or, lastly, if profiting by the common desire among peasants to enlarge their grounds, we advance them money, knowing they cannot return it, and secure thereby the property they think they are buying, in all such cases, or similar ones, there is always _usury_, and morality must condemn such hateful practices.

The hatefulness of usury is brought into strong relief in Moliere's celebrated scene in _The Miser_ (Act ii., Sc. i.):

LA FLECHE: Suppose that the lender sees all the securities, and that the borrower be of age and of a family of large property, substantial, secure, clear and free from any incumbrances, there will then be drawn up a regular bond before a notary, as honest a man as may be found, who to this effect shall be chosen by the lender, to whom it is of particular importance that the bond be properly drawn up.

CLEANTE: That's all right.

LA FLECHE: The lender not to burden his conscience with any scruples, means to give his money at the low rate of denier eighteen[25] (5, 9 per cent.) only.

CLEANTE: Denier eighteen? Jolly! That's honest indeed! No fault to find there!

LA FLECHE: No. But as the said lender has not with him the sum in question, and, to oblige the borrower, he will himself be obliged to borrow from another at the rate of denier five (20 per cent.), it will be but just that the abovesaid first borrower should pay that interest without prejudice to the other, for it is only to oblige him that the said lender resorts to this loan.

CLEANTE: The devil! What a Jew! What an Arab is that! That would be at a greater rate than denier four (25 per cent.).

LA FLECHE: That's so: it is just what I said.

CLEANTE: Is there anything more?

LA FLECHE: But just a small item. Of the fifteen thousand francs that are asked, the lender can give in cash only twelve thousand, and for the thousand crowns remaining, it will be necessary that the borrower take the clothes, stock, jewelry, etc., of which here is the list.

CLEANTE: The plague on him!

The next scene shows with remarkable energy the _spendthrift_ and the _usurer_ in conflict with each other.[26]

=39. Duties of the debtor.=--After the duties of the lender and the creditor, let us point out those of the borrower or the debtor. The only duty for him here is to return what he has borrowed: it is the duty of _paying one's debts_.

For a long time, the duty of paying one's debts appeared to be one of those vulgar and commonplace duties intended for the generality of men, but from which the great lords freed themselves easily. The poor creditors have been the laughing stock in comedies.[27] But it is not doubted nowadays that to refuse to pay what one owes, is really taking from the property of others, and appropriating what does not belong to us.

This duty, besides, is so simple and stringent that it is necessary only to mention it without further development. The same principles apply to the various ways in which one may make use of property, and particularly to the three kinds indicated in the Civil Code--the _usufruct_, the _usage_, and the _right of action_. The common obligation in these three cases, mentioned by the Code, is to use the thing belonging to others as a _prudent father_ would, which is to say, to use it as the proprietor himself would use it, without injuring the object, and even improving it as much as possible. It is especially in commerce that the act of paying one's debts, is not only more obligatory morally, but socially more necessary than anywhere else. The reason of it is that commerce is impossible without credit. By exacting of every merchant the payment of cash, the springs of exchange would dry up; besides, most of the time it would be useless; for in commerce merchandise is constantly bought against merchandise. It would be loss of time, loss of writing, limitation of the market. In commerce one cannot say of him who owes that he is a borrower; for the next day, according to the fluctuations of demand and supply, he may be the lender. But it is just because credit is indispensable in commerce, that the obligations of the debtors are in some respect more stringent; for the greater the confidence, the more stringent the duty. So that _commercial honor_ is like _military honor_--it does not admit of breaking promises.

=40. Failures and bankruptcies.=--However strict one should be in commerce in regard to keeping promises, there is nevertheless in the Code cause for distinguishing two different cases of promise-breaking--failure and bankruptcy; and in this second case, there is _simple_ bankruptcy and _fraudulent_ bankruptcy.

Failure is purely and simply the suspension of payments resulting from circumstances independent of the will of him who fails. Bankruptcy, on the contrary, is suspension of payments resulting either from imprudence or from mistakes of the bankrupt.

Simple bankruptcy occurs in the following cases: 1. If the personal expenses of the merchant or the expenses of his house are judged excessive; 2. If he has spent large sums of money in operations of pure chance either in fictitious operations or extravagant purchases; 3. If with the intention of putting off his failure, he has made purchases to sell again below par; 4. If after cessation of payment, he has paid a creditor to the prejudice of all others. (Code of Commerce.)

Bankruptcy is called _fraudulent_, when the bankrupt has abstracted his books, misrepresented a portion of his assets, or declared himself debtor for sums he does not owe.

It is useless to say that this third case is but another case of theft and deserves the severest denunciation. Simple bankruptcy is already very culpable; and failure itself should be regarded by all merchants as a very great misfortune, which they must avoid at any cost.

=41. The commodate or gratuitous loan.=--The gratuitous loan or commodate is a contract by which one of the parties gives to the other a thing to be made use of, on the condition that it be returned after having served its purpose. (Code Civ., Art. 1875.)

As a fundamental principle, the receiver must return to the lender the very thing he has loaned him. But in case of loss or deterioration of the thing loaned, resulting from the use made of it, on whom is to fall the loss?

"It cannot be presumed, says Kant (Doctrine of the Law, French translation, p. 146), that the lender should take upon himself all the chances of loss or deterioration of the thing loaned; for it stands to reason that the proprietor, besides granting to the borrower the use of the thing he loans him, would not agree to _insure_ him also against all risks. If, for instance, during a shower, I enter a house, where I borrow a cloak, and this cloak gets to be forever spoiled from coloring matters thrown upon me by mischance, from a window, or if it be stolen from me in a house where I laid it down, it would be considered generally absurd, to say that I had nothing else to do than to send back the cloak, such as it is, or report the theft that has taken place. The case would be very different if, after having asked permission to use a thing, I should insure myself against the loss in case it should suffer any damage at my hands, by begging not to be held responsible for it. No one would think this precaution superfluous and ridiculous, except perhaps the lender, supposing he was a rich and generous man; for it would then be almost an offense not to expect from his generosity the remission of my debt."

=42. The trust.=--_Trust_, in general, is an act by which one receives the thing of another on condition to keep it and restore it in kind. (Code Civ., Art. 1915.)

He who deposits is called deponent (or bailor in England); he who receives the trust is called depositary (in England bailee).

The obligations of the depositary are morally the same as those found in positive law. We have then nothing better to do here than to reproduce the precepts of the Code on this matter.

1. The depositary, in keeping the thing deposited with him, must exercise the same care as with the things belonging to himself (Art. 1927).

2. This obligation becomes still more stringent in the following cases: (_a_), when the depositary offers himself to receive the thing in trust; (_b_), when he stipulates for a compensation for the keeping of the thing deposited; (_c_), when the trust is to the interest of the depositary; (_d_), when it has been expressly agreed upon that the depositary be answerable for all kinds of mistakes (Art. 1928).

3. The depositary cannot make use of the trust without the express or presumed consent of the deponent (Art 1929).--For example, if a library has been left in my trust, it may be presumed that the deponent would not object to my using it; but if the trust consists in valuable jewelry, it can be only by the express wish of the deponent that I could wear it. The difference is simple and easily understood.

4. The depositary should not seek to know what the things deposited with him are, if they have been left with him in a closed trunk or a sealed envelope (Art. 1931).

5. The depositary must return the identical thing he has received. Thus the trust consisting in specie, must be returned in the same specie.

The obligation to restore the thing deposited in kind, and such as it was when delivered, is evident, and constitutes the very essence of the trust.

However, we should take into account the following circumstances:

1. The depositary is not held responsible in cases of insuperable accidents (Art. 1929).

2. The depositary is only held to return the things deposited with him, in the state wherein they are at the moment of restitution. Deteriorations, through no fault of his, are at the expense of the deponent (Art. 1935).

Such are the obligations of the depositary; as to those of the deponent, they resolve themselves into the following rule:

The deponent is held to reimburse the depositary for any expense he may have incurred in the keeping of the trust, and to indemnify him for any loss the trust may have occasioned him (Art. 1947).

=43. Possession in good faith.=--Possession in good faith is analogous to trust. In fact, he who possesses in good faith a thing that is not his, is in reality but a depositary, but he is so without knowing it. Hence analogies and differences between these two cases, which it is well to point out.

The following are some rules proposed on this subject by Grotius (De la paix et de la guerre, B. 11, ch. xii., Sec. 3); and Puffendorf (Droit de la Nature et des Gens, B. iv., ch. xiii., Sec. 12). But as these rules appeared excessive to other jurisconsults, we give them here rather as _problems_ than _solutions_:

1. A possessor in good faith is not obliged to restore a thing which, against his wish, has come to be destroyed or lost, for his good faith stood to him in lieu of property.

2. A possessor in good faith is held to return not only the thing itself, but also its fruits still existing in kind.

3. A possessor in good faith is held to return the thing itself, and the value of the fruit thereof which he has consumed, if there is reason to believe that he would have otherwise consumed as many similar ones.

4. A possessor in good faith is not held to return in kind the value of the fruit he has neglected to gather or to grow.

5. If a possessor in good faith, having received the thing as a present, should afterwards give it to another, he is not obliged to return it, unless he would otherwise have given one of the same value.

6. If a possessor in good faith, having acquired a thing by an onerous title, should afterwards dispose of it in some way or other, he need return but the gain it procured him.

It is necessary to remark here that in this matter morality should be more severe than the strict law; for if morality demands that a possessor be above all mindful of the rights of others, the law should also consider the rights of him who in good faith and ignorance enjoys what belongs to others. Hence, an essential difference between this case and that of the trust.

=44. Things lost.=--The question of things lost is related to that of possession in good faith. If the thing lost should fall into my hands by a regular acquisition, by purchase, contract, etc. (as, for instance, buying a horse in the market), it is evident that this case comes under possession in good faith, and that it is the business of the law to decide between proprietor and possessor. But if I appropriate to myself the thing lost, knowing it to be lost, and consequently not mine, there is fraud and converting to my own use the property of others. Public opinion was for a long time indulgent towards this kind of appropriation. It seemed that luck gave a certain title to property. The difficulty, moreover, of finding the true owner, seemed to give to him who had found the object a certain right to it. But to-day society plays the part of intermediary, and assumes the duty of restoring the thing lost to its owner. It is, therefore, to the authorities the object must be returned.[28]

For a long time a misjudgment of the same kind allowed wreckers a pretended right to the objects thrown on the strand by the tempest following a wreck.

=45. Sale.=--Sale is a contract by which one of the parties engages to deliver a thing, and the other to pay for it (Civ. Code, Art. 1982). There are, then, two contracting parties--the _seller_ and the _buyer_. They are subject to different obligations.

_Obligations of the seller._--The seller is held clearly to explain what he engages to do. An obscure and ambiguous agreement is interpreted against the seller (Civ. Code, Art. 1602). Such is the general and fundamental obligation of a sale. It implies, moreover, two others, more particular: 1, that of _delivering_; 2, that of _guaranteeing_ the thing sold.

The first is very simple, and raises only questions of fact, as in regard to delays, expenses of removal, etc.; it is the business of the law to regulate these details.

The guaranty, in a moral point of view, is of greater importance. The two essential principles in this matter are expressed by the Code in the following terms:

1. The seller is held to his guaranty in proportion to the concealed defects of the thing sold, rendering it improper for the use for which it was destined, or so diminishing this use, that the buyer would not have bought it, or would not have given so much for it, had he known of these defects.

2. The seller is not held to the obvious defects which the buyer may have been able to see himself.

It is to this question of guaranteeing the thing sold, that the conscience-case mentioned by Cicero, in his treatise on _Duties_, is applicable:

An honest man puts up for sale a house, for defects only known to him; this house is unhealthy and passes for healthy; it is not known that there is not a room in it where there are no serpents; the timber is bad and threatens ruin; but the master alone knows it. I ask if the seller who should not say anything about it to the buyers, and should get for it much more than he has a right to expect, would do a just or unjust thing. "Certainly he would do wrong," says Antipater; "is it not, in fact, leading a man into error knowingly?" Diogenes, on the contrary, replies: "Were you obliged to buy? You were not even invited to do so. This man put up for sale a house that no longer suited him, and you bought it because it suited you. If any one should advertise: _Fine country-house well built_, he is not charged with deceit, even though it was neither the one nor the other. And whilst one is not responsible for what he says, you would make one responsible for what he does not say! What would be more ridiculous than a seller who would make known the defects of the thing he puts up for sale? What more absurd than a public crier who, by order of his master, should cry: "Unhealthy house for sale!"

Despite Diogenes' railleries, Cicero decides in favor of Antipater and the more rigorous solution. The truly honest man, he says, is he who conceals nothing.

If it is a fault not to reveal the defects of the thing sold, it is a still graver one, and one which becomes a fraud, to ascribe to it qualities or advantages it has not. Cicero cites on this subject a charming and well-known anecdote.

The Roman patrician, C. Canius, a man lacking neither in personal attractions nor learning, having gone to Syracuse, _not on business, but to do nothing_,[29] as he expressed it, said everywhere that he wished to buy a pleasure-house, to which he might invite his friends, and amuse himself with them away from intruders. Upon this report, a certain Pythius, a Syracuse banker, came to tell him that he had a pleasure-house which was not for sale, but which he offered him and begged him to use as his own, inviting him at the same time to supper for the next day. Canius having accepted, Pythius, who in his quality of banker had much influence among people of all professions, assembled some fishermen, requesting them to go fishing the next day in front of his pleasure-house, giving them his orders. Canius did not fail to present himself at the supper hour. He found prepared a splendid banquet, and a multitude of boats before the grounds of his host. Each of the fishermen brought the fish he had caught, and threw them at Pythius' feet. Canius wondered: "What means this, Pythius? How! so many fish here, and so many boats!" "Nothing to wonder at," says Pythius; "all the fish of Syracuse come up here. It is here the fishermen come for water. They could not do without this house." Canius then becomes excited; he presses, solicits Pythius to sell him the house. Pythius first holds back, but at last gives in. The Roman patrician gives him all he asks for it, and buys it all furnished. The contract is drawn up, and the bargain concluded. The next day, Canius invites his friends, and comes himself early in the morning; but not a boat is in sight. He inquires of the first neighbor if it was a holiday with the fishermen, that he did not see any about. "Not that I know of," replied the neighbor; "but they never come this way, and I did not know, seeing them yesterday, what it all meant." Canius was no less indignant than surprised. But what remedy? Aquillius, my colleague and friend, had not yet established his formulas on fraudulent acts.[30]

=46. The price in selling.=--If we adhere to the principles of political economy, the price in selling is entirely free: it depends exclusively upon the agreement between the vender and the buyer, and as it is said, on the relation between the supply and demand. Nothing more unjust than the intervention of the law in commercial relations. If the buyer buys at such or such a price, however high, it is that he still finds it to his interest to buy even at that rate. If the vender sells at such or such a price, however low, it is that he cannot get more, and that it suits him rather to sell at that price than keep the thing.

It is then certain that the value of things being wholly relative, it is impossible to determine in an absolute manner what may be called the just price; for that depends on the frequency and rarity of the thing, on the market, on the wishes of the buyer, and the thousand continually varying circumstances. In short, the sale taking place when one wishing to sell and one wishing to buy, meet each other, it seems that their accord is a proof that the two interested parties have come to an understanding. There would, according to that, never be any unjust sale or purchase. We must consequently consider the definition of commerce given by the socialist, Ch. Fourier: "Commerce is the art of buying for three cents what is worth six, and selling for six what is worth three," not only as satirical and hyperbolical, but also as unjust and anti-scientific; for we cannot say whether a thing is in itself absolutely worth six cents or three cents.

Does it follow, however, that there can never be any injustice in sale or purchase? If there is no _absolute_ price, there is a _medium_ price resulting from the state of the market. Now, the buyer may not know this medium price; and it is an injustice on the part of the seller to take advantage of this ignorance to sell above that. The same in the case of the vender's not knowing the price of the thing he has for sale, which the buyer appropriates, paying for it below its real value.

Besides, whilst admitting that the prices are free, and that the law cannot intervene between vender and buyer, it is, however, necessary to admit that there is a certain _moderation_ beyond which injustice begins, if not in a _legal_, at least in a _moral_ point of view. But it is for particular circumstances to determine this limit; and there is no general rule for it. It is a case where not strict justice, but _equity_ is just.

=47. Violation of the property of others.=--_Theft._--In general, every kind of violation of property under one form or another, is called _theft_, and this action is condemned by morality. It is expressed by that ancient commandment: _Thou shalt not steal_.

The following are the various definitions of theft given by the jurists: "By theft is meant every illegal usurpation of the property of others."[31]--"By theft is meant every fraudulent carrying off for gain a thing belonging to others."[32] Finally our Code declares that, "whosoever has fraudulently carried off anything that does not belong to him, is guilty of theft." (Penal Code, Art. 379.)

It takes, then, three elements to constitute theft: 1, _carrying off_; 2, _fraud_; 3, _the thing of another_.

Two kinds of theft are distinguished: the _simple_ thefts and the _qualified_ thefts.

The first are those in which are met the three preceding elements, but without any further aggravating circumstance. The second (qualified thefts) are those which to the three preceding elements add some aggravating circumstances. These circumstances are: 1, the quality of the agents (servants, inn-keepers, drivers or boatmen).

It is clear that this is an aggravating circumstance by reason of the facility given by the more intimate relations in which they stand with the injured persons, and the greater confidence these are obliged to grant them.

2. _Times_ and _places_.--For example, thefts committed by night are more grave than those committed by day, because it is more difficult to anticipate them, to catch their perpetrators, and because they place the injured person in greater danger. The places that aggravate theft are: 1, _the fields_; 2, _inhabited houses_; 3, _edifices_ consecrated to divine worship; 4, _highways_, etc. It is easy to understand why these different places aggravate the crime by rendering it more easy.

3. _Circumstances of execution_, as for example: 1, theft committed by _several_ persons; 2, theft by _breaking open_; 3, theft with an _armed_ hand, etc.

In a word, theft becomes greater in proportion to the difficulty of forestalling it, and its menacing character.

One particular form of theft is _swindling_. Swindling is a sort of theft, since it is a fraudulent appropriation of the thing of another. But it is characterized by the fact that it does not take place through violence, but through cunning, and in deceiving the victim by fraudulent maneuvers; for instance, in making him believe in the existence of false enterprises, in an imaginary power or credit, in calling forth the hope and fear of a chimerical event, etc.

_Embezzlement_ is a sort of swindling, with this difference, that "if the criminal has betrayed the confidence which has been placed in him, he has not solicited this confidence by criminal maneuvers." Among these may be classed: 1, taking improper advantage of the wants of a minor; 2, misuse of letters of confidence; 3, embezzlement of trusts; 4, the abstraction of documents produced in court.

We have to point out still several other kinds of theft: for example, theft at _gambling_ or _cheating_; theft of public moneys or peculation, etc.

In one word, under whatever form it may be concealed, misappropriation of another's goods is always a _theft_. In popular opinion it often seems, as if theft really takes place only when the criminal takes violent possession of another's property. Very often a few false appearances suffice to conceal to the eyes of easy consciences the hatefulness and shamefulness of fraudulent spoliations. One who would scruple to take a piece of money from the purse of another, may have no scruple in deceiving stockholders with fictitious advertisements, and appropriate capital by fraudulent maneuvers. Theft thus committed on a large scale is still more culpable, perhaps, than the act of him who, through want, ignorance, hereditary vices, never knew of any other means of living than by theft.

=48. Restitution.=--He who has taken possession of anything that belongs to another, or retains it for any cause, is held to restitution as a reparation of his fault. This restitution must be made as soon as possible; otherwise it is necessary to obtain an extension of time from the injured person. If the thing has been lost, restitution should no less be made under some form of _compensation_. Restitution is independent of the penalty attached to the damage and fault.

=49. Promises and contracts.=--We have seen above that it is an absolute obligation for man to use language only so as to express the truth. Hence every word given becomes essentially obligatory. But it is as yet only a duty of the man towards himself. We have to see wherein and how the word given may become a duty towards others. This is the case with _promises_ and _contracts_.

_Promises._--A promise is the act whereby one gives his word to another either to give him something or do something for him.

According to jurists, a promise is obligatory only when accepted by him to whom it is made.

_Pollicitation_ (promise) says Pothier,[33] produces no obligation properly so called, and he who has made such a promise may, as long as that promise has not been accepted by him to whom it was made, revoke it; for there can be no obligation without a right acquired by the person to whom it has been made and against the one under obligation. Now, as I cannot of my own free will, transfer to any one a right over my property, if his own will does not concur with mine in accepting it; so I cannot, by my promise, grant any one a right over my person, until that one's will concurs with mine in acquiring it by the acceptance of my promise.

It may be true that in strict law, and from the standpoint of positive law, the promise may be obligatory only and capable of enforcement when it has been accepted, and accepted in an obvious and open way; but in natural law and in morality, the promise is obligatory in itself. Of course, it is understood that the promise bears on something advantageous to him to whom we make it; for if I promise some one a thrashing, it cannot be maintained that I am obliged to give it to him; and if he to whom I make the promise will not receive what I offer, I am by that very fact relieved from my promise; for one cannot give anything to another against his will; I am under no obligation to him who will not receive anything from me. But if the promise bears on something advantageous to any one, I am obliged to keep it without asking myself whether he to whom I made it, is disposed to accept it; presuming still that he will accept it. It is therefore not the explicit acceptance of a thing that renders the promise obligatory; it is the explicit refusal which relieves one of the promise; and together with that it would be necessary that the refusal be absolute and not contingent; for even then the promise may remain obligatory, at least in its general principles, while undergoing some modification in the execution.

Is one obliged to keep his promise when the fulfillment of it is injurious to those to whom it was made? "No," says Cicero; for example:

Sol had promised Phaethon, his son, to fulfil all his wishes. Phaethon wished to get on the chariot of his father; he got his wish, but at the same instant he was struck with lightning. It would have been better for him had his father not kept his promise. May we not say the same of the one Theseus claimed of Neptune? This god having made him the promise to grant him three wishes, Theseus wished for the death of his son Hippolytus, whom he suspected of criminal love.[34] How bitter the tears he shed when his wish was accomplished! What shall we say of Agamemnon? He had made a vow to immolate the most beautiful object in his kingdom; this was Iphigenia; and he immolated her; this cruel action was worse than perjury.

The truth of this doctrine cannot be contested. However, it is necessary to understand this exception in the strictest sense, and not to seek in the pretended interest of the person one obliges, a pretext to change one's mind. For example, if you have promised any one a post which he accepts and desires, you cannot be allowed to relieve yourself of it, by supposing that the post will in reality be a disadvantage to him, and that you will give him a better one another time.

Some other exceptions are pointed out by the moralists and jurists; for example:

1. Necessity relieves of all promise. If, for example, I have promised to go to a meeting and am kept in bed by a serious illness, it is impossible for me to go, and hence I am relieved of my promise.

2. One is not obliged to perform illicit acts: "for," says Puffendorf, "it would be a contradiction, to be held by civil or moral law, to perform things which the civil or moral law interdicts. It is already doing wrong to promise illicit things, and it is doing wrong twice to perform them."[35]

3. One cannot promise what belongs to another: for I cannot promise what I cannot dispose of.

=50. Contracts.=--A _contract_ is an agreement by which one or several persons engage to do or not to do a certain thing for one or several others. (Code Civ., Art. 1101.)

_Conditions of the contract_ (Art. 1108).--Four conditions are necessary to constitute a valid and legitimate agreement:

1. The _consent_ of the parties.

2. The _capacity_ of the contractors.

3. A sure _object_ as a basis for the contract.

4. A licit _cause_ in the obligation.

(1.) The _consent_.--The consent is the voluntary acceptance of the charges implied in the contract. It is _express_ or _implied_: express, when it is made manifest by words, writing, or any other kind of expressive signs. It is implied, when, without being expressed by outward signs, it may be deduced, as a manifest consequence of the very nature of the thing, and other circumstances.

All consent presupposes, 1, _the use of reason_: the insane cannot contract any obligation; children neither;[36] 2, _necessary knowledge_. Therefore all real consent excludes error, at least "when it falls on the very substance of the thing which is its object."[37] It is, besides, for the jurists to define with precision what is to be understood by error in matter of contract; 3, the liberty of the contracting parties: whence it follows that consent extorted by constraint and violence is not valid.

(2.) The _capacity to make a contract_ is deduced from the foregoing principles. All those who are not supposed to be able to give an intelligent and free consent, are incapable and cannot make contracts: for instance, persons under age, persons interdicted, insane or idiots, etc.

(3.) The _matter of a contract_.--"All contract has for its object something that a certain party engages to give, or do or not do." It is evident that a contract without subject-matter and bearing on nothing, is void, and does not exist.

(4.) The _cause_ of the contract must be real and legal. Contracts are subject here to the same rules as are promises.

The preceding distinctions are all borrowed from the civil law; but they express no less principles of justice and equity which may be resolved into the following rules:

1. No one should take by surprise or extort a consent through artifice or violence.

2. No one should make a contract with one whom he knows to be incapable of understanding the value of the engagement he is called upon to make: for example, with one under age, incapable before the law, but of whom it is known that the parents will pay the debts; or with one feeble-minded, though not yet an interdicted person, etc.

3. No one should contract a fictitious engagement bearing on matters non-existing, or such as have only an imaginary or illegal cause.

_Interpretation of contracts._--Jurists give the following rules regarding the interpretation of obscure clauses in contracts. The rules which are to guide the judge in regard to the law are the same as those which are to enlighten the consciences of the interested parties:

"1. One should, in agreements, find out the mutual intention of the contracting parties, rather than stop at the literal sense of the words." (Art. 1156.)

"2. When a clause is susceptible of a double meaning, one should understand it in the sense in which it may have some effect, rather than in the one in which it would not have any." (Art. 1157.)

"4. That which is ambiguous is to be interpreted by what is customary in the country where the contract is made." (Art. 1159.)

"5. One should supply in a contract its customary clauses, though they be not therein expressed." (Art. 1160.)

"6. All the clauses of agreements are to be interpreted by one another, giving each the sense which results from the entire document." (Art. 1161.)

"7. If doubtful, the agreement is to be interpreted against the stipulator, and in favor of him who contracted the obligation." (Art. 1162.)