按键盘上方向键 ← 或 → 可快速上下翻页，按键盘上的 Enter 键可回到本书目录页，按键盘上方向键 ↑ 可回到本页顶部！
————未阅读完？加入书签已便下次继续阅读！
alternative will be clear from what follows。
Suppose I conclude a contract about a thing that I wish to
acquire… such as a horse… and that I take it immediately into my
stable； or otherwise into my possession； then it is mine （vi pacti
re initi）； and my right is a right in the thing。 But if I leave it
in the hands of the seller without arranging with him specially in
whose physical possession or holding （detentio） this thing shall be
before my taking possession of it （apprehensio）； and consequently；
before the actual change of possession； the horse is not yet mine； and
the right which I acquire is only a right against a particular person…
namely； the seller of the horse… to be put into possession of the
object （poscendi traditionem） as the subjective condition of any use
of it at my will。 My right is thus only a personal right to demand
from the seller the performance of his promise （praestatio） to put
me into possession of the thing。 Now； if the contract does not contain
the condition of delivery at the same time… as a pactum re initum… and
consequently an interval of time intervenes between the conclusion
of the contract and the taking possession of the object of
acquisition； I cannot obtain possession of it during this interval
otherwise than by exercising the particular juridical activity
called a possessory act （actum possessorium）； which constitutes a
special contract。 This act consists in my saying； 〃I will send to
fetch the horse；〃 to which the seller has to agree。 For it is not
self…evident or universally reasonable that any one will take a
thing destined for the use of another into his charge at his own risk。
On the contrary； a special contract is necessary for this arrangement；
according to which the alienator of a thing continues to be its
owner during a certain definite time； and must bear the risk of
whatever may happen to it； while the acquirer can only be regarded
by the seller as the owner when he has delayed to enter into
possession beyond the date at which he agreed to take delivery。
Prior to the possessory act； therefore； all that is acquired by the
contract is only a personal right； and the acceptor can acquire an
external thing only by delivery。
SECTION III。 Principles of Personal Right that is Real
in Kind。 （Jus Realiter Personale）。
22。 Nature of Personal Right of a Real Kind。
Personal right of a real kind is the right to the possession of an
external object as a thing； and to the use of it as a person。 The mine
and thine embraced under this right relate specially to the family and
household； and the relations involved are those of free beings in
reciprocal real interaction with each other。 Through their relations
and influence as persons upon one another； in accordance with the
principle of external freedom as the cause of it； they form a
society composed as a whole of members standing in community with each
other as persons； and this constitutes the household。 The mode in
which this social status is acquired by individuals； and the functions
which prevail within it； proceed neither by arbitrary individual
action （facto）； nor by mere contract （pacto）； but by law （lege）。 And
this law as being not only a right； but also as constituting
possession in reference to a person； is a right rising above all
mere real and personal right。 It must； in fact； form the right of
humanity in our own person； and； as such； it has as its consequence
a natural permissive law； by the favour of which such acquisition
becomes possible to us。
23。 What is acquired in the household。
The acquisition that is founded upon this law is； as regards its
objects； threefold。 The man acquires a wife； the husband and wife
acquire children； constituting a family； and the family acquire
domestics。 All these objects； while acquirable； are inalienable； and
the right of possession in these objects is the most strictly personal
of all rights。
The Rights of the Family as a Domestic Society
Title I。 Conjugal Right。 （Husband and Wife）
24。 The Natural Basis of Marriage。
The domestic relations are founded on marriage； and marriage is
founded upon the natural reciprocity or intercommunity （commercium） of
the sexes。* This natural union of the sexes proceeds according to
the mere animal nature （vaga libido； venus vulgivaga； fornicatio）；
or according to the law。 The latter is marriage （matrimonium）； which
is the union of two persons of different sex for life…long
reciprocal possession of their sexual faculties。 The end of
producing and educating children may be regarded as always the end
of nature in implanting mutual desire and inclination in the sexes；
but it is not necessary for the rightfulness of marriage that those
who marry should set this before themselves as the end of their union；
otherwise the marriage would be dissolved of itself when the
production of children ceased。
*Commercium sexuale est usus membrorum et facultatum sexualium
alterius。 This 〃usus〃 is either natural； by which human beings may
reproduce their own kind； or unnatural； which； again； refers either to
a person of the same sex or to an animal of another species than
man。 These transgressions of all law； as crimina carnis contra
naturam； are even 〃not to be named〃； and； as wrongs against all
humanity in the person； they cannot be saved； by any limitation or
exception whatever； from entire reprobation。
And even assuming that enjoyment in the reciprocal use of the sexual
endowments is an end of marriage； yet the contract of marriage is
not on that account a matter of arbitrary will； but is a contract
necessary in its nature by the law of humanity。 In other words； if a
man and a woman have the will to enter on reciprocal enjoyment in
accordance with their sexual nature； they must necessarily marry
each other； and this necessity is in accordance with the juridical
laws of pure reason。
25。 The Rational Right of Marriage。
For； this natural commercium… as a usus membrorum sexualium
alterius… is an enjoyment for which the one person is given up to
the other。 In this relation the human individual makes himself a
res； which is contrary to the right of humanity in his own person。
This； however； is only possible under the one condition； that as the
one person is acquired by the other as a res； that same person also
equally acquires the other reciprocally； and thus regains and
reestablishes the rational personality。 The acquisition of a part of
the human organism being； on account of its unity； at the same time
the acquisition of the whole person； it follows that the surrender and
acceptation of； or by； one sex in relation to the other； is not only
permissible under the condition of marriage； but is further only
really possible under that condition。 But the personal right thus
acquired is； at the same time； real in kind； and this characteristic
of it is established by the fact that if one of the married persons
run away or enter into the possession of another； the other is
entitled； at any time； and incontestably； to bring such a one back
to the former relation； as if that person were a thing。
26。 Monogamy and Equality in Marriage。
For the same reasons； the relation of the married persons to each
other is a relation of equality as regards the mutual possession of
their persons； as well as of their goods。 Consequently marriage is
only truly realized in monogamy； for in the relation of polygamy the
person who is given away on the one side； gains only a part of the one
to whom that person is given up； and therefore becomes a mere res。 But
in respect of their goods； they have severally the right to renounce
the use of any part of them； although only by a special contract。
From the principle thus stated； it also follows that concubinage
is as little capable of being brou