Chapter 6: Servitudes
The second kind of real rights is servitudes.
This contract produces only a personal right.
- These are burdens which one man has on another person's property.
- These rights were at first personal.
- They were entered into by a contract between the persons.
- I need to have a road to the market town.
- If a man’s estate lies between me and the town, I must bargain with him to have a road through it.
If the land has gone through several hands, this would be very tedious.
- I should bind him not to sell this estate without the burden.
- If the land were sold and the new proprietor refused the road, I could not sue the new owner on a personal right on the previous owner.
- I must first pursue the previous owner, whom I had the right.
- He then must pursue the new buyer.
- To remedy this, the law made servitudes real rights, demandable a quocumque possessore
These are all naturally personal rights and are only made real by lawyers.Life rents on estates and many other things are also servitudes, and are properly personal.Feudal burdens were only persons’ rights.
- rusticae, or
- Examples are:
- the right of a road to the town or river
- feeding so many cows on another man’s pasture grounds
- Examples are:
- the right of leaning the beams of my house on your gable,
- the right of obliging the owner of the lower floors to make his wall strong enough to support mine, etc.
- Therefore, every new vassal must renew his homage and the promise of fealty.
- In the beginning of the feudal law, if the proprietor did not perform his duty in every article, he forfeited his feu
- Similarly, if the tenant encroached on his lord’s grounds, what he had feued returned to the superior.
- The right of the vassal is founded on the charter of the superior.
- Every article of it must be fulfilled.
- Every new possessor must renew the obligation.
- When tenants became independent and had a real property, they were said to have the dominium directumnot the dominium utile
Chapter 7: Pledges and Mortgages
Hypothecs are another kind of pledges really arising from contract.
- Pledges and mortgages are certain securities for the payment of debts.
- At first they could not be claimed as real rights.
- Afterwards, the law considered them as such.
- Pledges properly regard moveable subjects, and mortgages immoveable.
- If a pledge be not redeemed at a certain time, it is forfeited.
- People in bad circumstances are naturally slothful.
- The negligence of debtors among the Romans gave occasion to the lex commissaria.
- It empowered the creditor to:
- seize the pledge, and
- return the overplus.
- By the English law, if no day be named, the pledge falls to the pawntaker on the death of the pawner.
- In immoveables, lands are mortgaged but not delivered.
- In case of failure, they are forfeited.
- The Roman law and ours are much the same on this head.
- If payment is not made within some few months after demand, the creditor adjudges the land for the whole sum and the penalty incurred.
- But his property is not secure without long possession.
- Because the proprietor has a power of redeeming it within a reasonable time.
- But upon redemption, there is much trouble in examining old accounts and the like.
- The law has made 20 years the stated time in England for redeeming mortgages.
By them anciently, the landlord was empowered to detain the tenant's furniture and stock if he turned bankrupt, and could claim them a quocumque possessore.
- These are made real rights by the civil law.
At present the landlord has only a right of preference.
- This arose from the practice of keeping tenants by steel-bow.
- In this practice, the whole farming stock was the landlord’s.
- We do not have so many hypothecs as the Romans had.
All pledges are naturally personal rights, and are only made real by the civil law.
Chapter 8: Exclusive PrivilegesExclusive privileges are the last division of real rights.Among these is the right of inheritance.
The heir has a privilege of demanding what belonged to the deceased.
- This is not a creature of the civil law, but arises from nature.
If a person starts to chase a wild beast, he has an exclusive privilege of pursuing it.
- After he is admitted heir, it is his real property.
In 1701, an English man-of-war attacked a French merchant ship which was just about to fall into their hands, when a Scotch privateer came and carried off the prize.
- Whoever comes in on the chase can be punished because he breaks the exclusive privilege.
Though these and some other exclusive privileges arise from nature, they are generally the creatures of the civil law.
- A lawsuit commenced and the Scotch privateer was declared guilty of breach of property.
- But upon strict inquiry, we shall find that it was only breach of privilege.
The riches of a country consist in the plenty and cheapness of provisions, but the effect of monopolies is to make everything dear.
- Such are monopolies and all privileges of corporations.
- They might have been conducive to the country's interest.
- However, they are now prejudicial to it.
Even this privilege is not of advantage to the butchers themselves, because the other trades are also formed into corporations.
- When a number of butchers have the sole privilege of selling meat, they may agree to make the price what they please.
- We must buy from them whether it be good or bad.
But the great loss is to the public, to whom:
- If they sell beef dear, they must buy bread dear.
However, the privilege of selling a new book or a new machine for 14 years does not have so bad a tendency.
- all things are rendered less comeatable, and
- all sorts of work worse done
- Towns are not well inhabited.
- The suburbs are increased.
A right to servitudes and exclusive privileges may be acquired by prescription.Those are the different kinds of real rights.We proceed now to personal rights.
- It is a proper and adequate reward for merit.
- These arise from contract, quasi-contract, or delinquency.
Next: Chapter 9