A Methodical System of Universal Law. Johann Gottlieb Heineccius
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that he to whom the thing is transferred, shall not be hindered from taking possession of it; and therefore oblige themselves to warranty, and to repair all his loss, if it be evicted by another with right, and without the possessor’s fault; since they have their shares safe and entire, while the other hath got a thing with an encumbered or burdened title.* <208>
SECTION CCLXXV
What tradition or delivery is, and if necessary to the transference of dominion?
We proceed now to tradition, by which an owner who has the right and will to alienate, transfers dominion to another, accepting it for a just cause. I say dominion. For tho’ the Roman law orders the thing itself and its possession to be transferred, and does scarcely allow any right in a thing to arise previously to delivery: l. 20. C. de pact. yet such subtlety cannot be of the law of nature,† as is justly observed by Grotius of the rights of war and peace, 2. 6. 1. 2. 2. 8. 25. and Pufendorff of the law of nature and nations, 4. 9. 6: and the Roman lawyers themselves acknowledge, “That nothing can be more agreeable to natural equity, than that the will of an owner willing to transfer his goods to another, should take place and be confirmed.” §40. Inst. de rer. divis. l. 9. D. de adqu. rer. dom. Whence we conclude, that the will of an owner concerning transferring his dominion to another, whether expressly declared, or deducible from certain signs, is sufficient to transfer his dominion to another without delivery. <209>
SECTION CCLXXVI
How it is done.
Since therefore the will of the owner to transfer his dominion to another, is equivalent to delivery, and is a valid transferrence of his dominion to another (§275), it follows, that it must be equal, whether one absent, by intervening letters or words, or present, by giving the thing from hand to hand, or by inducting him into it, whether by long or short hand, or by certain symbols, according to the usage of the province (§242), or in whatever way he delivers it; so that nothing hinders but that a right may be conveyed or transferred to another without delivery, or by a quasi-delivery.*
SECTION CCLXXVII
Who has a right thus to transfer dominion.
But since he only who hath dominion can transfer it or alienate (§275), it is plain that tradition can have no effect, if it be made by one, who either by law, convention, or any other cause, hath no right to alienate; much less, if it be made by one who is not himself master of the thing; for none can convey a right to another which he himself has not.† But, on the other hand, it is the same in effect, whether the master himself transfers his right immediately by his own will, or by his order and approbation. <210>
SECTION CCLXXVIII
By transference dominion is not transferred for every cause.
Because alienation ought to be made for a just cause (§275); but it is evident, from the nature of the thing, that by a just cause must be understood one sufficient for transferring dominion; therefore dominion cannot pass to another if a thing be delivered to one in loan, in trust, or letting; much less, if it be delivered to him on request and conditionally, or upon any terms revocable at the pleasure of the deliverer; yea, that no cause is sufficient, if he, to whom a thing is delivered, does not fulfil his bargain.* <211>
SECTION CCLXXIX
Nor does one always deliver with that design.
Besides, we said, in order to transfer, one must deliver with the design and intention of transferring dominion (§275). From which it is plain, that tradition cannot be made by infants, by madmen, by persons disordered in their senses, and other such persons, who are presumed not to know what is transacted: nor is it valid, if the owner gives a thing to one with the intention of lending, depositing, pawning it; or with any such like design; as likewise, that any one may reserve or except whatever right he pleases in transferring a thing; and that in this case, so much only is transferred as the alienator intended to transfer.
SECTION CCLXXX
The origine of full, and of imperfect dominion.
Whence it is easy to conceive the origine of imperfect or less full dominion. For since by that is understood nothing else but dominion, the effects of which are inequally shared between two persons; it is highly probable that its origine is owing to transferrence, with exception, or with reservation of a part of the dominion; which being done, there are two masters, one of whom acquires the right of excluding all others from reaping and using the fruits and profits of the thing, and of taking them to himself; the other has the right either of concurrence with respect to the disposal of it, or of exacting something, by which the acknowledgment of his dominion may be evidenced.* <212>
SECTION CCLXXXI
The various species of it.
Since the nature of the (dominium utile) or dominion with respect to the use, is such, that the superior owner reserves to himself the right of concurrence with regard to the disposal of the thing, or the right of exacting something in acknowledgment of his superior dominion (§280); the consequence is, that tho’ there may be various kinds of less full dominion, yet the whole matter in these cases depends on the agreement of the parties. However, if one stipulates with the possessor of the thing delivered to him for homage and services, and that the thing be not alienated without his consent; hence arise (feudum) the right of fief or fealty; if he stipulates that an annual tribute shall be paid in acknowledgment of his superiority; hence arises (jus emphyteuticum) the right of holding in fee. Finally, if he stipulates for a ground-rent, hence arises (jus superficiei) the right of ground-rent;* and these are the principal kinds of dominion with regard to use in any nations. <213>
SECTION CCLXXXII
If not the thing itself, and the dominion of it, but a certain use only be conveyed, he who receives it, acquires a servitude upon a thing belonging to another; and if the use be restricted to the person and life of him who is to have the use, it is personal; and if it be annexed to the estate itself, the use of which is conveyed, it is real. Since therefore in all these cases just so much right is transfered as the transferrer willed to transfer (§279), it follows, that in these cases likewise the matter comes to be intirely an affair of an agreement between parties; and therefore, almost all the subtleties to be found in the doctors about services are of positive law.†
SECTION CCLXXXIII
What right of pawn and mortgage, &c.
If a thing is delivered by the owner to his creditor, so that the deliverer continues to have the dominion, but the creditor has the possession for his security, then the thing is said to be in pawn. If it be delivered in these terms, that the creditor shall likewise have the fruits of it by way of interest, <214> it is called jus antichreticum. Finally, if the right of pawn be conveyed to a creditor without delivering the pawn, we call it hypotheca, mortgage. As therefore in the former cases the creditor has a right, the debt not paid, not only to retain the thing pawned, but also to dispose of it, and deduct from the price what is due to him; so, in the latter case, the creditor may prosecute his right of possession of what is pledged to him for his security, i.e. attach it; and then detain it until his debt be paid, or even dispose of it for his payment.*
SECTION CCLXXXIV
How dominion passes to the accepter.
To conclude; we said, that by transferring, dominion passes to him who accepts of the transferrence (§275). But we truly accept, when we testify by words or deeds our consent that a thing transferred should become ours, and we are presumed to accept, whenever, from the nature of the thing, it cannot but be judged that we would not refuse or despise the thing one would transfer to us. In like manner, a thing may be transferred by the will of the transferrer, either expresly declared, or presumable from certain signs (§275). The most certain sign is gathered from his end and intention who hath acquired a thing, and hath bestowed care in keeping and preserving it.* <215>
SECTION CCLXXXV
Transition