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The Law of War and Peace (1625)

by Hugo Grotius

BOOK 2, CHAPTER 10
On the Obligation Which Arises from Ownership

I.     The origin and nature of the obligation to restore the property of another to its owner.
1.   HAVING explained, so far as our purpose requires, the right which belongs to us over persons or over things, we must see also what obligation in consequence rests upon us. Such obligation, moreover, arises either from things which exist or from things which do not exist. Under the term things I shall now include persons, so far as may be convenient for us.

2.   From things which exist there arises the obligation by which a person, who has property of mine in his possession, is bound to do what he can to restore it to my control.’ He is bound, I say, to do what he can; for there is no obligation to do what is impossible, or even to return the property at his own expense. The possessor is, however, under obligation to make the possession known, in order that the other may recover his own. Just as, in the state of community ownership, a certain equality had to be observed, that one might have the use of the common property as well as another, so after the introduction of property ownership a kind of mutual arrangement was entered into between owners, that one who had another’s property in his possession should restore it to the owner. If, in fact, the force of ownership had been limited to this, that property should be restored to the owner only on demand, the right of ownership would have been too weak, and the protection of property too expensive.

3.   No consideration is here given to the question, whether a person has obtained possession of the property honestly or dishonestly; for the obligation arising from a wrong is one thing, and that from possession of property another. The Lacedaemonians cleared themselves from the crime of Phoebidas, who contrary to the treaty had captured the Cadmeia, the citadel of Thebes, by condemning him; but they were themselves accused of injustice because they nevertheless kept possession of the citadel. Xenophon remarks that this outstanding act of injustice was punished by a special divine providence. So Cicero accused Marcus Crassus and Quintus Hortensius because they had retained their shares of an inheritance in accordance with a will which had been forged, though they were not to blame for the forgery.

4.   Now inasmuch as this obligation is binding upon all men, as if by a universal agreement, and creates a certain right for the owner of property, the result follows that individual agreements, as being later in point of time, are thereby restricted. This throws light on the passage of Tryphoninus:

Property stolen from me was deposited by a robber with Seius, who was ignorant of the crime of the depositor. Ought Seius to restore the property to the robber, or to me? If we take into account only the depositor and the recipient, good faith requires that the depositor receive the property which he has deposited. If we consider the equity of the whole matter, which includes all the persons having an interest in the transaction, the property must be restored to me, from whom it was mast wrongfully stolen.

He rightly adds:

And I agree that that is justice which gives to each man his own in such a way that it is not taken away from him in response to a more just demand of any other person.

Beyond doubt the demand of the owner is more just according to that right which we have said is as old as ownership itself. And from this is derived the following rule, which is found in the same Tryphoninus, that a person, who in ignorance has accepted his own property on deposit, is not bound to return it. Furthermore the question raised by the same author a little previously in regard to goods deposited by a person whose property has been confiscated must be decided in accordance with the principle stated rather than according to what Tryphoninus says about the utility of punishments.

5.   As regards the nature of ownership, it makes no difference whether ownership arises from the universal principles of law or from the law of a particular country. Ownership, in fact, always carries with it its natural implications, and among these is the obligation on the part of every possessor to restore property to its owner. This is affirmed by Marcianus when he says ‘that by universal principles of law suit can be entered for property against those who possess it wrongfully.’ From this source arises the rule laid down by Ulpian, that the finder of another’s property is under such obligation to return it to the owner that he is not even to ask ‘a reward’ for finding it. Moreover, the income of the property also should be restored, after deducting expenses.

II.     The obligation to restore any gain that a person has made from another’s property; this is illustrated by many examples.
1.   As regards property no longer in existence, mankind has adopted this rule, that if you have been made richer through possession of my property, while I did not have possession of it, you are under obligation to the extent that you have been enriched. The reason is that in the degree that you have been enriched from my property you have more while I have less. Now property ownership was introduced for the purpose of preserving equality to this end, in fact, that each should have his own.’ It is contrary to nature,’ says Cicero, ‘that a man should increase his own advantage to the disadvantage of another man.’ In another passage he adds: ‘Nature does not suffer this, that we should increase our means, riches, and resources from the spoils of others.’

2.   So great is the justice of this maxim, that in accordance with it jurists decide many cases outside the narrow purview of the laws, always appealing to it as most obviously fair. A man who has placed a servant in charge of business is bound by the act of the servant, unless he has given warning that the servant should not be trusted; but even though such a warning has been given, in case the servant has made personal gain under an agreement, or it has been turned to the profit of the master, action for fraud will be admissible. ‘The man who seeks gain from another’s loss,’ says Proculus, ‘seems to act with fraudulent intent,’ and in this connection the word fraudulent includes everything which is contrary to natural law and equity.

If at the mother’s request a person has given bail for the defender of her son, he has no right of action against the defender under the agreement, nor has he, properly speaking, acted on behalf of the defender, because he furnished bail out of consideration for the mother. Nevertheless, according to the view of Papinian, such a person will have right of action (in equity, unless I am mistaken) against the defender for services rendered, because the defender was freed by the money of the bondsman.

Similarly a wife, who has given to her husband money, which she could collect by law, is entitled to a civil action for restitution, or an action in equity for the thing purchased with the money; for, says Ulpian, it cannot be denied that the husband is richer in consequence, and the question is what of his wife’s property he has in his possession.

If you have spent money, which my slave stole from me, thinking that it was his, I am entitled to an action for recovery against you on that account, just as if my property had come into your possession without a legal title.

According to the Roman law wards are not bound to repay loans; nevertheless an action in equity will lie if the ward has thereby become richer. Again, if a debtor has pawned another’s property and the creditor has sold it, the debtor is released, as regards his debt to the creditor, to the amount of the price received. The reason is, Tryphoninus says, that no matter what the obligation is, it is more just that the price received through the instrumentality of the debtor should profit him than bring gain to the creditor. The debtor, however, will be liable to the purchaser, that he may not seek gain for himself from. another’s loss. For even if the creditor had received from the possessor income in excess of interest, he would be under obligation to place all the excess income to the debtor’s credit.

Similarly, if you have had dealings with my debtor, thinking that he was in debt to another and not to me, and have borrowed money from him, this you are bound to pay to me, not because I have loaned the money to you (for such a transaction could not be consummated except between parties to an agreement), but because it is fair and right that my money, which has come into your possession, should be restored to me.

3.   The later jurists rightly extend these principles to analogous cases. For example, a man, whose goods have been sold on his nonappearance, is entitled to the money received from his property, on properly filing an exception to the action. Another case is that a person who has loaned money to a father for the purpose of supporting a son, in case the father had become insolvent, would have the right of action against the son, when the son should have possession of his mother’s property.

If the two rules stated have been rightly understood, it will not be difficult to reply to the questions which are commonly raised by jurists and by theologians who lay down rules for the tribunal of conscience.

III.     That a person who has honestly come into possession of another’s property is not bound to make restitution, if the property has perished.
In the first place it is clear that a person who is honestly in possession of a thing does not have to make restitution if the thing has perished. In such a case the thing itself is not in his possession, and he has not received gain from it. The dishonest possessor will be liable for his own wrongdoing in addition to accounting for the property.

IV.     That such a possessor of another’s property is bound to restore the income that still remains.
Secondly, a possessor in good faith is bound to restore any income of the property that still remains. I speak of income from the property; for the income from the possessor’s industry is not due to the property, even if it could not be obtained without the property.

The reason for this obligation arises from ownership. For the person who is the owner of a thing is likewise naturally the owner of the income derived from it.

V.     That such a possessor is likewise bound to make good the income which has been used up, if under other circumstances he would have used an equivalent.
Thirdly, the possessor in good faith is bound to make restitution for the property and its income that have been used up, provided that he would have used just as much under other conditions. For in that degree he is judged to be richer. Thus in the beginning of his reign Gaius Caesar Caligula receives praise because to those to whom he restored their kingdoms he paid the income of the intervening period.

VI.     That such a possessor is not bound to restore income which he neglected to collect.
Fourthly, a person in possession of such property is not liable for income from it which he has neglected to collect; for he owns neither the property nor anything in place of it.

VII.     That such a possessor is not bound to make restitution of the property which he has given to another; herewith a distinction.
Fifthly, if such a possessor has given to another a thing which was given to himself, he is not liable for it, unless he would have given the same amount in any case, if he had not had this; for in that case the sparing of his own property will be considered as a gain.

VIII.     That such a possessor, again, is not under obligation if he has sold a thing which he has bought likewise herewith a distinction.
Sixthly, if such a possessor has sold property which he bought, he is not bound to make restitution except in so far as he may have sold it at a higher price. If he has sold property which was given to him, he is bound to restore the value, unless he has squandered the amount which he would not otherwise have wasted.

IX. When a person, who in good faith has bought property of another, can reserve the cost, or apart thereof.
1.   Seventhly, another man’s property, though bought in good faith, must be restored, and the price which it cost cannot be demanded back. This rule, it seems to me, ought to be qualified with the proviso,’ except in so far as the owner in all probability could not have recovered possession of his property without some expenditure,’ as, for example, if the property was in the hands of pirates.’ In such a case, then, whatever amount the owner would willingly have expended can be deducted. Actual possession, in fact, especially of an object difficult to recover, can be reckoned in terms of value. In this respect, therefore, the owner is considered to have been made richer than he was after the loss of the thing.

Consequently, although in ordinary legal usage the purchase of one’s own property is not valid, yet Paul the jurist says that it is valid if from the beginning the agreement is that the actual possession, which is lodged with a second party, is being bought. I do not here make the requirement that the thing should have been bought with the intention of restoring it to the owner,’ for some say that in such a case there arises a right of action for services rendered, though this is denied by others. The right of action for services rendered, in fact, arises from the civil law; it contains none of those basic elements by virtue of which nature imposes an obligation. But we are here trying to find out what the law of nature is.

2.   Similar is what Ulpian wrote about funeral expenses, that in this matter a just judge does not merely have in view the action for services rendered, but rather freely follows equity, since such a course is permitted to him by the nature of the action. Similar, likewise, is the statement made elsewhere by the same authority, that if any one has carried on my business without regard for my interest, but for the sake of his own gain, and has incurred some expense in transacting my business, he has a right of action, not indeed for what he has expended, but for the amount by which I am made richer. Thus also, in fact, the owners of goods, which have been thrown overboard to lighten a ship, recover a part of the value from the others whose property was saved by the lightening. The reason is that the person who has saved property that otherwise was about to perish seems in this respect to be made richer.

X. That purchased goods, if they belong to another, cannot rightfully be returned to the seller.
Eighthly, the person who from one man has bought property belonging to another cannot return it to the seller, in order to save the purchase price; for the obligation of restoring it to the owner commenced at the moment when the object came into his possession.

XI.     That a person who has in his possession property of which the owner is unknown is not bound to turn it over to any one.
Ninthly, the man who has in his possession property of unknown ownership is not obliged by the law of nature to give it to the poor, although this is a very noble act,’ and such procedure is rightly established as a law in many places. The reason for this is that according to the principle of ownership no one except the owner has any right to the property. But non-existence of an owner, and not knowing who the owner is, amount to the same thing, so far as the man who does not know the owner is concerned.

XII.     That according to the law of nature money received for a shameful cause, or under other circumstances for an act which one is under obligation to perform, does not have to be restored.
Tenthly, by the law of nature whatever a person has received for a shameful cause, or for an honorable service which it was his duty to perform, does not have to be restored. Yet such a rule has been introduced, not undeservedly, by certain laws. The reason is that no one is bound to render account for property unless it belongs to another. But in the case under consideration the ownership passed with the consent of the former owner.

The case will be different if there was illegality in the method of receiving the money, as, for example, by extortion.” That, in fact, involves a different principle of obligation, with which I am not here concerned.

XIII.     Refutation of the opinion that ownership of goods which are weighed, counted, or measured, changes without the consent of the owner.
Let us add also this, which has been incorrectly asserted by Medina, that the ownership of another’s property can pass to us without the consent of the owner if the things are such as are ordinarily reckoned by weight, number, and measure. For it is said that things of this kind admit of substitution, that is, that they can be replaced by that which is of the same kind. Even in this case, however, such use can be made only if consent has preceded, or may be presumed from law or custom to have preceded, as: in the case of a loan; or if the thing cannot be given back because it has been consumed. But such a substitution of an equivalent does not take place without consent, expressed or implied, or in the case of necessity.

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