The question whether to attach to the word alienatio its broad or its restricted signification, depends upon the nature and the purpose of the rule of law which it is sought to interpret 1).

Moreover, alienation might be voluntary, (voluntaria), or legally compulsory. (necessaria). The consequences of this distinction were manifested in the case of persons who had not the capacity of alienation, or had it in only a limited degree; for these incapacities, and the rules which affected them were generally without effect in regard to necessary (compulsory) alienations. L. 1. § 2. D. de reb. eorum. (27. 9). L. 1. 2. 17. C. de praed. vel aliis reb. (5. 71). L. 1. pr. D. de fund. dot. (23. 5). “Interdum Lex Julia de fundo dotali cessat, si ob id quod maritus damni infecti non cavebat, missus sit vicinus in possessionem dotalis praedii, deinde passus sit possidere; hic enim dominus fit, quia haec alienatio non est voluntaria” 2).

The renunciation of a right, (renuntiatio), in the true sense of the word 3), is the legal act by which a person abandons a right acquired, but without transferring it to another. In the case of a right not yet acquired, it is universally admitted that a unilateral declaration of volition, having a renunciation for its object, bound its author and was irrevocable. L. 4. C. de repud her. (6. 31). L. 1. § 6. D. de succ. Ed. (38. 9). “Qui semel noluit bonorum possessionem petere, perdidit jus ejus, etsi tempora largiantur; ubi enim noluit, jam coepit ad alios pertinere bonorum possessio aut fiscum invitare." L. 4. pr. D. quis ordo (38. 15).

1) See Windscheid, § 69. note 12. Thus the rejection by a minor under tutelage, of an inheritance or a legacy was considered as an alienation; but the same by an insolvent debtor was not so considered as towards his creditors. L. 5. § 8. D. de reb. eorum. L. 6. § 4. D. quae in fraud. cred. (42. 8). Compare, also, L. 16. D. de fundo dot. (23. 5). with L. 5. § 6. D. de don. i. v. et ux. "Thus then", as Wächter says, "even in cases where there has been no legal act, there may be alienation, if the word be taken subjectively; that is to say, in reference to him who has omitted to act." 2) See Neth. Code, Art. 455.

3) In a more general sense, the word renuntiatio was employed to designate as well the abandonment of a right not acquired, as the abandonment by which an acquired right was transferred to another.

L. 38. § 1. L. 44. § 1. D. de leg. I. (30). L. 59. D. de leg. II. (31). L. 1. C. de repud. bon. possessione (6. 19) ').

But it is, on the contrary, a disputed question, whether (putting aside the formalities which might be requisite for changing or modifying existing legal relations) a right actually acquired could be abandoned without the concurrence of him who profited by the renunciation; or in other terms, whether the volition of abandoning an acquired right, once declared, was obligatory upon him who had expressed it, or whether he could revoke it at his pleasure. The most acceptable opinion, seems to me to be, that which considers 2), that in the case of real rights, (the distinctive feature of which is the immediate subjection of the thing to the domination of the person entitled,) the isolated declaration, the unilateral

act, was sufficient to complete the renunciation; and this view is confirmed by the provisions of the laws concerning usufruct3); but that, on the contrary, in the matter of obligations, where the concurrence of volitions linked together, in a certain sense, the persons who were parties to the act, the legal relation existing between them could be annulled only by a new concurrence of volition 4).

1) According to French and Dutch law, the renunciation of an inheritance is not irrevocable, so long as other parties entitled have not availed themselves of it. Art. 1102. Neth. Code. Art. 790 Code Nap. It is otherwise in Prussian law, Part. I. Tit. IX. § 41. and Austrian law, § 806. 2) Bacher, Jahrb. für die Dogmat. V. p. 222, advances strong arguments in support of this view. The ideas of this author, except as to the law of mortgage (hypothecation) have the assent of Vangerow, D. I. § 127. The contrary opinion is taught by Sav. Syst. IV. p. 544. Fritz civ. Archiv. D. 8. No. 15. Wächter, II. p. 644. et s.; Unger II. p. 192; Windscheid § 69, note 14. and Arndts, § 57. note 4.

3) L. 48. pr. D. de usufr. (7. 1). "Sed si paratus sit recedere ab usufructu fructuarius, non est cogendus reficere." L. 64. D. eod. "Cum fructuarius paratus est usumfructum derelinquere, non est cogendus domum reficere, sed si post acceptum contra eum judicium, parato fructuario derelinquere usumfructum." L. 65. D. eod.

4) L. 91. D. de solut. (46. 3). "Si debitor tuus non vult a te liberari, et praesens est, non potest invitus a te solvi." Bacher (1. c. p. 259) shews, very clearly, the difference between real rights and obligations, in the connection now in question. "A personal right produces, by its nature, a duality, a sort of putting face to face, which supports that right; and the concurrence of which is, consequently, equally necessary for

Rights concerning the condition of persons and the rights of families, could not become the subject of a renunciation ). They are juris publici. (L. 34. D. de pact. (2. 14). "Jus agnationis non posse pacto repudiari, non magis quam ut quis dicat nolle suum esse.'

§ 54. CONDITIONS REQUISITE FOR THE EXISTENCE OF A

LEGAL ACT.

In order to the existence of a legal act, three conditions were requisite.

I. The capacity of the persons who acted; and sometimes, also, the coöperation or consent of other persons.

II. That their volition should be directed toward the accomplishment of an object which was lawful..

its cessation; but real rights are of an entirely different nature; they exist alone and by their own force, and include the idea of stable and permanent domination. At p. 241, the same author says, again, "Taking into account the nature of real rights, and the idea of sovereignty and of independence which they imply as towards all specified (determinate) persons, as well as the manner in which these rights are exercised and the effects that they produce, it must be confessed, that these rights, by their very essence, admit, logically and inevitably, the possibility of a unilateral renunciation. 1) Fritz, 1. c. § 5. Bacher. p. 255. et s. As to Prussian and Austrian law, see Unger, § 94. No. 25a. and the Pruss. Code, Part. I. Tit. XVI. § 378. The Dutch law treats the subject of the abandonment of real rights only in reference to usufructs; art. 854, No. 4. According to that article, it appears to me at least doubtful, whether this abandonment can take place, without the consent, or against the will of the owner. Neither the words ten behoeve van den eigenaar (for the benefit of the owner) nor the idea of the abandonment itself, justifies any such conclusion; which therefore Diephuis is wrong in deducing thence. (D. IV. § 301). This doubt is augmented still further, if we consider that the Neth. Code reproduces the art. 1477, No. 4, of the Project of 1820, but not the art. 1485, the object of which was, precisely, to permit, in formal terms, abandonment without the consent of the proprietor. Finally, in the matters of rents from land and of tithes, mutual consent is a condition required by art. 801. No. 2.

It

III. That their volition (will) should be duly manifested. The manifestation of volition might be express or tacit. was express, when it was effected either by words, pronounced viva voce or written, or by gesture ), or other signs whether by themselves, or accompanied by words 2). L. 38. D. de O. et A. "Non figura literarum, sed oratione quam exprimunt literae, obligamur: quatenus placuit non minus valere quod scriptura, quam quod vocibus lingua figuratis significaretur." Volition might, moreover, be manifested by actions or by omissions 3); and even silence might be equivalent to consent, in cases where the law formally attached to it that effect 4), or where the circumstances, in concreto, were such as to admit no other reasonable explanation 5).

1) L. 29. D. de adopt. (1. 7). L. 52. § 10. D. de O. et A. L. 21. pr. D. de leg. III. (32).

2) L. 58. pr. D. de her. inst. (28. 5). “Nemo dubitat recte ita heredem nuncupari posse, hic mihi heres esto; cum sit coram qui ostenditur."

3) L. 5. D. rem. rat. hab. (46. 8). L. 95. D. acq. vel omitt. her. (29. 2). L. 2. § 1. D. de pact. (2. 14). Art. 1094. 1475. Neth. Code.

4) As in the case of tacitly holding over property, after the expiration of a lease: "taciturnitate utruisque partis colonum reconduxisse videri." L. 13. § 11. D. loc. (19. 2). L. 4. § 4. D. de prec. (43. 26). Care must be taken not to confound with consent inferred from silence, certain cases in which the law admitted the existence of volition, although it was certain either that it did not exist, or that its existence was not necessary to produce legal effects. The L. 6. D. in quib. caus. pig. (20. 2). expresses this "in praediis urbanis tacite solet conventum accipi.” L. 4. pr. D. eod. L. 2. § 2. D. sol. matr. (24. 3): "ubi non potest per dementiam contradicere, consentire quis eam merito credet." Sav. Syst. III. § 133. Keller, § 57.

5) L. 142. D. de R. J. "Qui tacet non fatetur, sed nec utique negare videtur." Thus, when we read in the canon-law, "qui tacet consentire videtur," these words can, by no means, be understood as expressing a general rule. (Sav. § 132 a.) The Romans seem to have considered the absence or default of contradiction as equivalent to consent, chiefly in acts concerning the condition of persons, because of the peculiar importance of the matter. L. 7. § 1. L. 12. pr. D. de spons. (23. 1). L. 5. C. de nupt. (5. 4). L. 5. D. de adopt. (1. 7). L. 1. § 4. D. de agn. et al. lib. (25. 3.) But there were also other cases in which silence was equivalent to consent. L. 12. L. 16. D. de Scto. Maced. (14. 6). L. 38. § 1. D. de don. i. v. et ux. In general it may be said, that silence is equivalent to consent, in all cases where equity, good sense, and loyalty made it a duty for him who intended not to consent, to speak. When the publisher of a newspaper or a review sends me a specimen copy, and informs me that unless and

If volition was manifested by a means which did not express a specific purpose, the declaration so made was called tacit ), but a person could protect himself from the consequences of such a tacit declaration, by making a declaration to the contrary 2) (protestatio); although the latter would be of no effect, if the act against which it was directed admitted of no other explanation than that which was apparent. (protestatio actui contraria). The consequences of a tacit declaration could be avoided, also, by an express reservation of rights, (reservatio), in a case where the act would otherwise comport, or sustain the presumption of a renunciation 3). A presumption founded upon a tacit declaration of intention ceased to exist in case of violence or of error.

§ 55. OF THE FORM OF LEGAL ACTS 4), OR TRANSACTIONS.

By the form of legal (or juridical) acts, is meant the external shape in which volition or intention appears. Generally the acting parties could clothe their declaration of volition in such form

return it he shall consider me a subscriber, my silence in presence of such an intimation does not create, on my part, any obligation whatever; because it is not in the power of a person with whom I have no relations, to force me to speak or to act. But if, on the contrary, my own bookseller usually sends me books on approval, and I am in the habit of returning, within a certain time, those which I do not desire to keep; he would have a reasonable ground for regarding my failure to return a book as an acceptance of it. The Prussian Law, P. I, Tit. 4, § 61, goes too far, in attributing to silence the effect of consent only in cases where an express refusal is required by law. As to the Austrian law, see Unger, § 85, note 25. In the United stales, he who receives a news paper regularly, and continues to accept it without protest, becomes liable as a subscriber. 1) See examples in L. 69. pr. D. de leg. II; and in L. 11. § 4. D. de leg. III; Sav. 131; Arndts, § 64. obs. 3.

2) L. 20. § 1. D. de acq. vel om. her. (29. 2). L. 34. D. de neg. gest. (3. 5). L. 1. § 11. D. de agn. et al. lib. (25. 3).

3) L. 57. pr. D. de pact. (2. 14). L. 5. D. rem. rat. hab. (46. 8).

4) Note by the Translator. Although a large proportion of the "acts" here referred to, are those performed by means of written instruments, the application of the word is not restricted to things so done; and the learned Author being strongly of opinion that I ought to employ the word "act", and not the word "instrument", I have deferred to his opinion. The Dutch word is "Rechtshandelingen”.