<<<home page index to Virtues>>>

 

Conferences on the Virtues

By Fr. Bruno Cocuzzi, ocd

 

Number 30

 

The Acquisition of Rights and of Ownership

 

This chapter proposes to deal only with those good things that are distinct from their human owners, that is to say, external goods.  The manner of acquiring “ownership rights” is really nothing more than the manner of acquiring a title, or an entitlement.  Each mode of acquiring the “title” consists in a fact or a state of affairs that enjoys the support of law, since every right is based on one kind of law or another, including “unwritten” law, such as the Natural Law.

 

Among them we speak of the Primal or “basic” means of acquiring property (things), namely, by personal labor and by appropriation.  The latter is a benign way of saying “outright seizure”.  Not quite the same as “appropriation” is “finding”.  The difference between finding and appropriation will be stated later on in this conference.  

 

Personal labor and appropriation are included under the one heading because some physical “effort” is required on the part of the ones acquiring the rights.  In connection with rights gained by one’s labor, it is possible to speak of rights gained by ACCESSION.  That is to say, in virtue of personal effort, certain “other” rights attach, to rights “already acquired”.

 

However, all other means of acquiring property are based upon these two, and presuppose them.  They are called Derivative Rights because they derive legally from natural or positive law (by prescription), or because they derive through consensus:  whether of the individuals comprising a society, or of mere private individuals (by succession or by contract, respectively).

 

Stated simply, as should be obvious, the derivative Rights are those which, by operation of law or by agreement, are transferred from one individual owner to another.

 

My textbook states that nothing special needs to be said about the acquisition of rights over non-corporeal fruits of human labor and genius.  What is said about acquiring external goods provides the necessary knowledge concerning the acquisition of rights over these other kinds of “goods”.  The author intends in this 5th question to deal exclusively with (1) “Appropriation”; (2) “Finding”; (3) “Accession” and 4. “Prescription”.

 

As a means of acquiring rights, personal labor can be reduced to one of the four just listed:  With regard to what is already one’s own, there corresponds the right of Accession.  With regards to the things that belong to another, the rights of Contract.  (Contracts will be dealt with in a later chapter).  If personal effort has to do with what belongs to no one, then it is included under “appropriation”.

With regard to things (goods) that belong to “no one”, it is possible to distinguish three separate categories.

 

            One would be the category of things that are LOST.  Strictly speaking they have (or had) an owner, but the owners have lost personal possession of them.  (We saw in a previous conference that the concept of “ownership” includes having personal possession and control of a thing).

            Another would be the category of things that have been “abandoned”.  These more truly are said to belong to no one because the former owners have repudiated and rejected the rights of ownership over them.

 

            The Third category would be comprised of those things that never had an owner, that is, no one ever previously had them in his/her possession or control. 

 

            Rights over these things in these categories can be acquired either by Appropriation or by Finding, depending upon the circumstances.

 

Article I – Appropriation…

 

It is defined as the taking possession of what belongs to no one with the intention of making it one’s own.  In order for this to be a legitimate means of acquiring rights of ownership four conditions must be met:

 

            First, the thing must by its nature be capable of being under private control.  In an earlier conference mention was made of those “things” which cannot be privately possessed and controlled (air, sunshine, public roads).

 

            Second, that the things appropriated belong to no one, i.e., fall into one of the three categories listed above.  This condition presupposes good faith efforts on the part of the one who intends to appropriate to discover whether the object is really “abandoned” by a former owner.  With regard to the third category listed above, it must also be reasonably clear from the circumstances that the thing “never had” an owner.

 

            Third, that some voluntary, perceptible act of “taking possession” must be manifested by the one appropriating.  It could be physically taking into personal custody, or some legally recognized act of indicating possession, as, for example, “putting up a fence” or “posting”.

 

            Fourth, that the INTENTION to make the thing one’s own must also be exteriorly manifested.  This fourth condition is needed because not all “taking into personal custody”, or publicly recognized acts of “taking possession”, in and of themselves necessarily convey the intention of making the thing one’s own.  There is such a thing as “protective” custody, which is based upon the intention to preserve a thing safe for its owner.  The manifestation of the intention must somehow be the equivalent of “staking a claim” upon the thing in question.

 

The author of my textbook makes the comment that nowadays there are very, very few things that we can say belong to no one.  Thus the possibilities of acquiring ownership by appropriation are extremely limited.  Nowadays they are restricted to “hunting, trapping and fishing” rights, and to “mining” rights.  All of these are pretty well regulated by civil law, and ordinarily are of no concern to anyone who does not “own” a fishing or a mining company.

 

Nevertheless, under this heading he has, among others, paragraphs entitled:  Appropriation of Wild Animals, Appropriation of Tamed Animals, and Appropriation of Domestic Animals.  There is also a paragraph entitled Violations of Civil Laws of Hunting and Fishing, and still another entitled Appropriation of Mines.  Others are entitled:  Gathering Wood and Pasturing, and, Appropriation of Land in a Just War.  Since I do not believe any of those paragraphs are applicable to the readers of these conferences, I will skip over them.

 

Article II – Finding…

 

“Finding” differs from “Appropriation” because the latter includes the prior knowledge that there is “something” out there that belongs to no one together with the INTENTION of making it “one’s own”.  The former is defined as:  The discovery (or the bringing to light) of a thing that has, in actual fact, been lost (separated from its owner).  As in the case of those things that appear to have been abandoned, in the case of things found, good faith efforts must be made to locate the owner.  When the thing found is of great value, and good faith efforts to locate the owner either fail or disclose that it is “abandoned” property, then according to the author of my textbook, the thing of value found is called a treasure.

 

The notion of “a treasure” as a special “subdivision” in the category of “things found”, helps to clarify the meaning of the word “discovery” as used in the definition of “finding”.  Treasures are not considered things that are “simply lost”.  A treasure is usually purposely “concealed” by a former owner, and ordinarily would consist of cash, jewelry, precious gems, objects of art, documents, and the like.  Thus, the treasure IS NOT “accidentally separated” from the custody and control of its former “owner”, as in the case of things that are lost.  Also, things that are found are usually also “accidentally noticed”.  Treasures are accidentally “uncovered” or “brought to light”, which implies that some physical activity or natural event directly led to the awareness of their existence.  Then too, a treasure differs from something that is lost in that no one can prove ownership of the valuables discovered.

 

Although it is hardly likely that any of the readers will unearth a treasure, the moral principles which apply to finders thereof are interesting:

 

1.       A treasure belongs to no one, not even to the person in whose field it has been buried or in whose house it has been concealed.  This could happen in the event a ditch were being dug on property for whatever reason, or in the event a house were being gutted for the purpose of total interior rehabilitation.  The key element is that no one can “prove” ownership.

 

2.       According to “natural law”, a treasure belongs to its finder (despite the fact that a companion may say “dibs” – I’m being facetious).  This is true even though the finder has merely “uncovered” it, and not yet had a chance to take it into his custody.

 

3.       Nevertheless civil law in some countries require that the treasure be divided between the finder of the treasure and the owner of the property in which it was concealed, and this is based upon a presumption that there is a connection between the ancestors of the owner, from whom the owner inherited the property, and the treasure itself.

 

4.       In those cases wherein professional “hunters” want to dig or search on private property for “treasures” known to exist and to have been deliberately concealed and never recovered, civil law in many countries prohibits them to do so without the express permission of the owners of the property.  The permission granted is considered a contractual agreement that the owner will share in that treasure, should it be found.

 

5.       According to “natural law”, it is not “unjust” for someone who knows a very valuable treasure is buried in a field to buy that field at market value for the purpose of keeping the treasure all to himself.  The justification for this is the fact that Our Lord likened the “Kingdom of Heaven” to a treasure that a man found in a field, re-concealed, then went and sold all that he had, and bought that field.  But given the “civil law” in many countries, that conduct would be “unjust”.

 

However, if one merely suspects that there is a treasure buried in a field, and buys it at market value before looking for it, and then finds it, that would not be a violation of justice, probably because of the “risk factor”.

 

Principles concerning things that are “lost”…

 

Since it is understood that someone who “loses” something of value does not “intend” that it should escape his personal possession and custody, and still considers himself its “owner”, the following principles apply:

 

1.       The lost object continues to belong to the owner for as long as there remains a reasonable expectation that he will recover it.

 

2.       If all attempts on the part of the owner to find the lost object have failed, such that he resigns himself to the fact that it is lost, then the object truly belongs to “no one”.

 

3.       The “finder of the now “lost” object is not obliged to pick up and take custody of the lost object, but if he does, he is obliged in justice to

 

a.       Diligently keep it safe for its owner as a “good steward”; and if it is not possible to preserve it intact, to sell it and keep the proceeds for the owner;

 

b.       Use “reasonable” diligence in trying to find the owner (the reasonableness depends upon the value of the object), but at the owner’s expense, should any costs be incurred in doing what is reasonably necessary to locate him.

 

c.       Should the owner be found, the finder is obliged to restore it to him, and in addition to being reimbursed for his expenses in finding the owner, he can (if the value of the lost object warrants it) rightfully ask for a “reward”.

 

4.       A finder who deliberately or through negligence does not make reasonable efforts to find the owner of a lost object, or does anything to make it more difficult for the owner to recover it, is said to be a possessor in bad faith and would lose any and all “rights” to the said object.  In addition, he would be obliged to make a kind of “restitution” by giving the object or its value to charity, or by performing other pious works, the “merit” of which would accrue to the one who had lost the object.

 

5.       If, after diligent efforts on the part of the finder, the owner remains totally unknown, and there no longer remains a reasonable hope of finding him, the finder may, unless civil law decrees otherwise, immediately assume ownership of the lost object. It would be very laudable, however, for the finder to donate the object or its value to charity, again to accrue to the benefit of the owner.  (By doing this, the finder would gain far more spiritual benefit than the actual owner, since Our Lord does not allow Himself to be outdone in generosity).

 

6.       If civil law prescribes that a certain length of time must elapse before the finder of a valuable lost object or of a large amount of money may consider himself its true owner, and

 

(a)    The finder, unaware of the prescribed time, has made diligent, reasonable efforts to find the owner and failed, such that he assumed ownership in “good faith”, should the owner show up before the statutory time has passed, the finder must in justice restore the property and its earnings to the owner.  In the event the thing found was “consumable”, and has been consumed, there is no obligation in justice to restore, because the finder acted in “good faith.”

 

(b)    The former owner turns up after the lapse of that statutory time; the finder is not obliged in justice to return it to the former owner. There is always the possibility, however, depending upon circumstances, that the finder would be “obliged” in charity to restore the object to its former owner.  (Actually, to say one is obliged in charity is a contradiction in terms.

 

Principles concerning abandoned property…

 

Property is abandoned when, without transferring dominion to another, the owner renounces ownership, in some clearly identifiable manner.  Included in the same category, as voluntarily abandoned property is that property “abandoned” due to the death of an owner who has no heirs.

 

As examples of things voluntarily abandoned my textbook includes examples from rural setting, such as fruit and produce left in the field after the harvest, and wood and fallen trees that are not picked up by the property owners.  In an urban setting, abandoned property is often “real property”.  The owners show that they have abandoned houses and parcels of land when they cease to maintain and to pay taxes on them.  The kinds of abandoned property we are most familiar with, however, as you all know, are the appliances, the furniture and the personal effects we put out on the curb to be picked up by the trash collectors.  Hence,

 

1.       According to the “natural law” anyone may appropriate abandoned property of any kind.

 

2.       Except for that property which is abandoned by “discarding it”, civil law governs as to the manner of acquiring “voluntarily” abandoned property.

 

3.       Property left abandoned by the death (without heirs) of its owner “escheats” (belongs by operation of law) to the Civil State.

 

Before leaving the section on “finding” as a way of acquiring ownership, my textbook points out that goods lost in a shipwreck, goods thrown overboard to save a ship from sinking, goods carried away by a flood, are not to be considered “abandoned” property.  He goes on to say that the principles governing “lost property” apply, unless civil law explicitly applies in such circumstances.

 

Article III – Accession…

 

This method of acquiring rights may be described as some kind of “increase” in the something one owns as a result of something else being added to it.  There are two kinds of “accession”.

 

            So-called accession occurs when the thing owned “produces” the “thing” that increases it.  The latter are called the “fruits” of the former.

 

            True accession occurs in virtue of an application of that other thing to the thing owned either by nature or by human industry and skill.

 

So-called Accession

 

There are three kinds of “fruits” produced by “property”.

 

First there are the Natural Fruits, which are produced by the operation of nature and which require no effort (or very little effort) on the part of the owner, such as trees, the fruits of trees, hay, etc.

 

Second the Industrial Fruits, which are produced only as a result of considerable human effort, such as commercial crops of grain, vegetables, wine, etc.  These are also called “mixed fruits”.

 

Third, Civil Fruits, which by a fiction of law are labeled or considered “fruits”, even though they do not “grow directly out of” the property owned.  These are such things as “interest”, “rent”, “pensions” and “profits” or “earnings” from a trade or a business.

 

The principle governing rights over things acquired by this So-called Accession is quite simple, we grasp it intuitively:  A thing bears it fruit to the benefit of its owner.

 

True Accession

 

In a previous conference we spoke of “movable” and “immovable” goods.  With regard to the movable goods there are three ways to acquire rights by Accession:

 

(a)    By means of “joining” or “attaching” the other thing to the thing owned, in such a way that the result is a single something distinct from the things joined, and which cannot then be re-separated without detriment (adjuctio).  The examples given are:  A precious stone set into someone else’s gold ring, a painting made on someone else’s canvas, a poem written on someone else’s paper.

 

(b)    By “working on” or “working with” raw materials (specificatio).  The examples given are sculpting a statue out of someone else’s marble, making clothes or shoes out of someone else’s cloth or leather. 

 

(c)    By “mixing” goods of the same nature belonging to different owners:  Wine with a like wine, oil with a like oil, grain with a like grain (commixtio).

 

Principles governing rights gained by Accession…

 

1.        The rights of accession are totally subordinated to the “natural” principles of EQUITY, such that the following “rules” are nothing more than “examples” of their application.

 

2.        In the case of adjunctio, the entirely new thing belongs to the owner of the chief or greater of the constituents, provided of course, the owner of the lesser constituent is paid its fair value.  The greater constituent is called the principal and the other the accessory.  In the case where one adorns or embellishes the other, the thing embellished is the principal and the adornment the accessory.  If neither can be clearly and unmistakably be called the principal, then the one of greater value is called the principal.  In the event the thing that embellishes exceeds the thing adorned in value (gold leaf applied to a wooden object), the resulting item still belongs to the owner of the wood.

 

3.        In the case of specificatio, the owner of the raw material may claim the finished product, having paid the cost of the material.  However, since in such cases the value of the finished product very often far surpasses cost of the raw material, it becomes the property of the artist or craftsman, who must then pay the fair value of the material.

 

4.        In the case of commixtio, the sum total of the goods mixed become the common property of the owners of the ingredients, pro rata.

 

+++

 

<<<home page index to Virtues>>>

 

* * * * * * * * * * *

MISSION STATEMENT: This web site was created for the purpose of completing the work of Fr. Bruno Cocuzzi, O.C.D These conferences may be reproduced for private use only. Publication of this material is forbidden without permission of the Father Provincial for the Discalced Carmelites, Holy Hill, 1525 Carmel Rd., Hubertus, WI 53033-9770.