A.D.

[1872. New scheme published by the Council of Legal Education; some knowledge of the Roman Civil Law rendered compulsory for Examinations at the Inns of Court.]

COMMENCEMENT AND TERMINATION OF RIGHTS. tion of a 'legal

§ 17. IN GENERAL.

right.'

and Lindley,

also the differ

ology of

EVERY right supposes a SUBJECT, or Person capable cr. § 6 of being subject of rights, an OBJECT which can be Intn. to Jurisgoverned by Law, and a FACT with a legal basis, i.e., an prud. App. ii; external act or event by which, in consequence of an ent terminexisting rule of law, the Object is brought into relation Holland, pp. with the Subject, is brought under the control of his 69, 89Q. will. A right arises, is acquired by a person, when the Object is brought under the legal control of a Subject of rights; it terminates, passes from the person, upon the introduction of a Fact which destroys that control.

Every acquisition of a right is either original, immediate, primordial,' i.e., the right in question arises altogether for the first time as a new one in the person of the party acquiring (e.g., acquisition of property by occupation or prescription); or it is 'derivative,' i.e., the right already exists in the person

BOOK I. Chapter 1.

a The case is similar with the loss of a right.

of another, by whom it is transferred to the party acquiring (e.g., Traditio)." That acquisition of a right is called Succession' by which an already existing right without change of its content passes from the Cf. Holland, person of the one hitherto entitled, or auctor,' immediately to another Subject by virtue of a juristic relation between the two, which accordingly itself is governed by the earlier right.

p. 119.

Ulp. Nemo plus iuris ad alium transferre potest, quam ipse haberet.-D. 50, 17, 54.'

Paul. Non debeo melioris condicionis esse, quam auctor meus, a quo ius in me transit.— 1. 175, § I eod."

A distinction is made between 'singular' and 'universal' Succession, according as it has for its object a separate right of property or the totality of Ibid., and see the proprietary rights of another as a unit.o

Bell, Dicty. of

Scotch Law,'

8. VV.

Cf. §§ 6, 77.

Pomp. Heres in oinne ius mortui, non tantum singularum rerum dominium succedit.-1. 37, D. de A. v. O. H. 29, 2.

The Fact, to which the Law attaches the commencement or termination of a right for a person, representing the ground of such commencement, acquisition or termination, consists either in an expression of will of such person (as a contract) or in an external event a cr. §§ 84, 89., independent of his will (as in lapse of time).

130.

In

contrast with the voluntary extinction or surrender of a right, which is 'alienatio' in its wider sense, exemplified by Conveyance (or alienatio in its narrower sense), is extinction that is necessary, or not of Cf. §§ 25, 97. choice.

1 No one can make over to another more right than he himself

had.

2 I must not be in a better position than my predecessor from whom the right passes to me.

3 An heir succeeds to the whole rights of the deceased, not merely to the ownership of the several things.

THE EXPRESSION OF THE WILL AS GROUND OF THE

COMMENCEMENT AND TERMINATION OF RIGHTS.

§ 18. NATURE AND SPECIES OF JURISTIC ACTS; LEGAL TRANSACTIONS IN PARTICULAR.

a

BOOK I. Chapter 1.

Juristic Acts are expressions of the Will, positive or negative, which have a legal result, whether this lie in the intention, more or less conscious, of the agent, or take place independently of, even in opposition to, it. To acts of this kind belong Legal Transactions, i.e., By Holland named generithe declarations of will which are immediately directed cally Juristic to the commencement, extinction or change of a legal cf. Markby, Acts,' (p. 85). relation, and designed for it. To acts never intended s. 235. to have a legal result belong those that are disallowed, illegal, 'delicta.'

Legal transactions are divided into unilateral' (e.g., a disposition by last will) and bilateral' or mutual acts (agreements), according as the result intended by them is produced through the declaration of the will of one person, or through the consentient declaration of the will of two or several persons in relation with one another.

Ulp. Est pactio duorum pluriumve in idem placitum et (?) consensus.-D. 2, 14, I, 2.1

6

Acts are further divided into onerous,' gratuitous,' or lucrative;' and into those between living persons, or transactions inter vivos,' and those on account of death, or transactions mortis causa.'

An act with juristic result can be undertaken only by one who is not merely capable of being subject of right, but at the same time has the capacity to act, i.e., possesses the capacity himself actually to exercise the will which attaches to him as a Person."

Upon the grounds of imperfect and limited capa

Every legal transaction is composed of two elements city to act, see

1 A pactio is the determination and consent of two or more persons with the same object.

§§ 58, 899.

BOOK I. Chapter I.

-the inward one of the direction of the will, and the outward one of its declaration: there must be agreement between these. The legal result of a declaration. of will presupposes that the will which is declared is the actual will of the agent. But since the inward element of the direction of will eludes examination, the legal result is already annexed by the provisions of Law to the fact of the declaration, as the outward manifestation of the will; and that which is declared is regarded as having been actually intended, so long as no proof is afforded from external circumstances that free will directed to the substance, or to the legal result of the declaration, has been absent. There must be no 'reservatio mentalis,' i.e., no appeal is admitted to any such consideration as that the declaration was a But see be- inwardly willed as such, but not its substance." As actual will, Law recognises only that which is outwardly free, that is, self-determining.

ow, ad fin.

• Cf. Markby, 88. 254-259.

See §§ 21, 28, 30, 137.

The freedom of the will is infringed, though not completely extinguished, by illegal influence of the determination, especially by—

1. Coercion, 'vis compulsiva,' 'metus,' i.e., illegal menace of a greater evil, which awakens well-founded fear no matter whether produced by word or by deed -so as to move the other person to a declaration of will. A compulsory transaction in Law is not null from the commencement, but can be disputed by a person that has been under pressure.

Ulp. Ait praetor: QVOD METVS CAVSA GESTVM ERIT, RATVM NON HABEBO. Olim ita edicebatur QVOD VI METVSVE CAVSA; vis enim fiebat mentio propter necessitatem impositam contrariam voluntati; . . . sed postea detracta est vis mentio ideo, quia quodcumque vi atroci fit, id metu quoque fieri videtur.-1. 1, D. h. t. qu, metus, c. 4, 2.1

=

1 The praetor says:-'I will not countenance that which shall have been done out of intimidation.' Formerly the Edict used to run thus:-'That which because of violence or intimi