§ 25. IN CUJUS POTESTATE EST; ET QUI EUM, QUEM IN POTESTATE BOOK I I. THE LAW OF PROPERTY. CHAPTER I. GENERAL PART. § 26. Introduction. We have defined a person (§ 20) as a subject endowed with § 26. proprietary capacity. The Law of Property, which we now proceed to discuss, determines the orbit of this proprietary capacity. There are certain rules of law which apply, in an equal degree, to all proprietary rights. These are: firstly, the rules concerning juristic acts (by which proprietary rights may be created, transferred or extinguished); secondly, the rules concerning the protection of rights (i.e. the law of procedure). It is with these rules, which constitute the general part of the law of property, that we are, for the present, concerned. I. JURISTIC ACTS. § 27. The Conception of a Furistic Act and the Kinds thereof. It is a matter of observation that where a legal result is produced, § 27. such result may either be independent of the will of the person concerned (as when a right of action is barred by lapse of time) or § 27. again, it may be determined by the will of the person concerned, determined (that is to say) in one of two different senses: either in the sense that the law contravenes his will (as in the case of delicts), or in the sense that the law conforms with his will (as in the juristic acts). The juristic acts of private law are the means employed by a private person for the purpose of producing certain legal results affecting his proprietary position. In other words, when a private person expresses his will in such a way that the law annexes to such expression the result willed (and it is in this sense that the expression of the will is material for private law), we have a juristic act of private law. And juristic acts may be either unilateral, or bilateral (agreements), according as they give expression and effect to the will of one single person, or to the concordant wills of several persons. A testament, for example, is a unilateral juristic act. It follows from what we have said that an agreement, in the legal sense of the term, is any expression of consensus which produces a legal result. The object of the consensus from which the agreement springs is susceptible of the greatest variations. Its object may be to produce an obligation-in which case we have an obligatory agreement or contract; or it may be to produce any other legal effect, e.g. the discharge of a debtor, the creation of a real right (by transfer of ownership, by giving a thing in pledge). L. 1 § 2 D. de pactis (2, 14) (ULPIAN): Et est pactio duorum pluriumve in idem placitum et consensus1. 1 In spite of the wording of this not range of the law of obligations as agreements at all. (Cp. Pernice, ZS. der Sav. St. vol. ix. p. 195 ff.) The conception of an agreement, in the broad modern sense of the term (and it is in this sense that we have used it in the text) is far wider than that developed by the Roman jurists who were evidently influenced by the phraseology of the praetorian edict. § 28. Requisites of a Furistic Act. Every juristic act (sale, letting, &c.) consists of an expression of § 28. the will. Thus we always have two elements: (1) the will; (2) the expression. 1. The Will. There can be no juristic act, if the person expressing the will is legally incapable of willing (e.g. if he is a lunatic), or if, in any other way, the will is demonstrably absent'. This is what happens, for instance, if both parties to an agreement consent to will something different from what they express. Their expressions indicate, say, a sale, but they are agreed that the transaction shall be understood as a gift. And so in all cases, where expressions are used having reference to some juristic act, but are used in such a manner (e. g. in jest or for purposes of instruction) as clearly to negative the existence of any intention to produce a legal result. The same thing happens when a mistake produces a result demonstrably different from that intended by the doer. Where, however, the expression is unambiguous and there is no discoverable divergence between the inward will and the outward expression, the juristic act may, in some cases, be perfectly valid notwithstanding such divergence. The leading illustration of such cases is what is known as 'mental reservation,' i. e. one party to an agreement intends, without the knowledge of the other, to will something different from what he expresses. In the same way, too, an unintentional divergence between the will and its expression may be immaterial, in the sense that the person concerned is legally bound by his expression. Thus, for example, if a man goes into a restaurant and has dinner, and subsequently declares (with perfect truth 1 E. g. if the vendor, by mistake, asks for too low a price, and it appears at once from the surrounding circumstances that he is acting under the influence of a mistake. Cp. the Annalen des Königl. Sachs. Oberlandesgerichts zu Dresden, vol. ix. (1888), p. 528 ff. 2 Hartmann, in Jhering's Jahr bücher f. Dogmatik, vol. xx. p. 1 ff. ; § 28. perhaps) that he thought the dinner cost less than it actually did, such unintentional discrepancy between will and expression will be legally immaterial. 2. The Expression. By 'expression' or 'manifestation' we mean the notification by one party to another of his will to produce a legal result. Thus it is not every notification that produces a juristic act, but only an expression of intention which is addressed to the other party concerned in the juristic act, e. g. to a person witnessing a will, or to a person with whom it is intended to conclude a contract. In regard to the form in which the will is expressed, juristic acts are said to be either formal or informal. They are formal, when the law prescribes the form in which the expression of the will is to be made, in default of which form such acts cannot be validly constituted. A will is an instance of a formal juristic act. Informal juristic acts (and most juristic acts are informal) are those in which the will may be expressed in any form whatever, by writing or speaking, by messenger, letter, or otherwise, nay, even without any direct act of communication at all (by a so-called 'tacit expression of will') where the act is done in such a way as to imply an intention3. All that is required in informal acts is that the will should be expressed in some manner or other. L. 3 D. de reb. dub. (34, 5) (PAULUS): In ambiguo sermone non utrumque dicimus, sed id dumtaxat, quod volumus. Itaque, qui aliud dicit quam vult, neque id dicit, quod vox significat, quia non vult, neque id, quod vult, quia id non loquitur. 3 The will can thus be manifested in one of two ways, either explicitly, by the mere act of notification, or tacitly, by actually doing that which is willed. As an instance of the latter kind we may take the case of a person accepting an inheritance by merely carrying out his intention of being heir to the deceased, e. g. by paying his debts. As to silence, in so far as it can be regarded, under the peculiar circumstances of the case, as tantamount to an expression of the will at all, it will constitute, as a rule, not a tacit, but an explicit manifestation of the will. The practical distinction between the two cases is expressed in the rule that where the will is manifested by an act of notification, such manifestation is not legally complete till the notification has reached the party to whom it is addressed; where, however, the will is manifested by the act of carrying it out, the manifestation is complete at once on the doing of the act. |