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judgement； in any case； deciding upon whom the incidence of any loss
must fall； cannot therefore be determined from the conditions of the
contract in itself； but only by the principle of the court before
which it comes； and which can only consider what is certain in the
contract； and the only thing certain is always the fact as to the
possession of the thing as property。 Hence the judgement passed in the
state of nature will be different from that given by a court of
justice in the civil state。 The judgement from the standpoint of
natural right will be determined by regard to the inner rational
quality of the thing； and will run thus： 〃Loss arising from damage
accruing to a thing lent falls upon the borrower〃 （casum sentit
commodatarius）； whereas the sentence of a court of justice in the
civil state will run thus： 〃The loss falls upon the lender〃 （casum
sentit dominus）。 The latter judgement turns out differently from the
former as the sentence of the mere sound reason； because a public
judge cannot found upon presumptions as to what either party may
have thought； and thus the one who has not obtained release from all
loss in the thing； by a special accessory contract； must bear the
loss。 Hence the difference between the judgement as the court must
deliver it and the form in which each individual is entitled to hold
it for himself； by his private reason； is a matter of importance；
and is not to be overlooked in the consideration of juridical
judgements。
39。 III。 The Revindication of what has been Lost。
（Vindicatio）。
It is clear from what has been already said that a thing of mine
which continues to exist remains mine； although I may not be in
continuous occupation of it； and that it does not cease to be mine
without a juridical act of dereliction or alienation。 Further； it is
evident that a right in this thing （jus reale） belongs in
consequence to me （jus personale）； against every holder of it； and not
merely against some particular person。 But the question now arises
as to whether this right must be regarded by every other person as a
continuous right of property per se； if I have not in any way
renounced it； although the thing is in the possession of another。
A thing may be lost （res amissa） and thus come into other hands in
an honourable bona fide way as a supposed 〃find〃； or it may come to me
by formal transfer on the part of one who is in possession of it；
and who professes to be its owner； although he is not so。 Taking the
latter case； the question arises whether； since I cannot acquire a
thing from one who is not its owner （a non domino）； I am excluded by
the fact from all right in the thing itself； and have merely a
personal right against a wrongful possessor？ This is manifestly so； if
the acquisition is judged purely according to its inner justifying
grounds and viewed according to the state of nature； and not according
to the convenience of a court of justice。
For everything alienable must be capable of being acquired by
anyone。 The rightfulness of acquisition； however； rests entirely
upon the form in accordance with which what is in possession of
another； is transferred to me and accepted by me。 In other words；
rightful acquisition depends upon the formality of the juridical act
of commutation or interchange between the possessor of the thing and
the acquirer of it； without its being required to ask how the former
came by it； because this would itself be an injury； on the ground
that： Quilibet praesumitur bonus。 Now suppose it turned out that the
said possessor was not the real owner； I cannot admit that the real
owner is entitled to hold me directly responsible； or so entitled with
regard to any one who might be holding the thing。 For I have myself
taken nothing away from him； when； for example； I bought his horse
according to the law （titulo empti venditi） when it was offered for
sale in the public market。 The title of acquisition is therefore
unimpeachable on my side； and as buyer I am not bound； nor even have I
the right； to investigate the title of the seller； for this process of
investigation would have to go on in an ascending series ad infinitum。
Hence on such grounds I ought to be regarded； in virtue of a regular
and formal purchase； as not merely the putative； but the real owner of
the horse。
But against this position； there immediately start up the
following juridical principles。 Any acquisition derived from one who
is not the owner of the thing in question is null and void。 I cannot
derive from another anything more than what he himself rightfully has；
and although as regards the form of the acquisition the modus
acquirendi… I may proceed in accordance with all the conditions of
right when I deal in a stolen horse exposed for sale in the market；
yet a real title warranting the acquisition was awanting； for the
horse was not really the property of the seller in question。 However I
may be a bona fide possessor of a thing under such conditions； I am
still only a putative owner； and the real owner has the right of
vindication against me （rem suam vindicandi）。
Now； it may be again asked； what is right and just in itself
regarding the acquisition of external things among men in their
intercourse with one another… viewed in the state of nature
according to the principles of commutative justice？ And it must be
admitted in this connection that whoever has a purpose of acquiring
anything must regard it as absolutely necessary to investigate whether
the thing which he wishes to acquire does not already belong to
another person。 For although he may carefully observe the formal
conditions required for appropriating what may belong to the
property of another； as in buying a horse according to the usual terms
in a market； yet he can； at the most； acquire only a personal right in
relation to a thing （jus ad rem） so long as it is still unknown to him
whether another than the seller may not be the real owner。 Hence； if
some other person were to come forward and prove by documentary
evidence a prior right of property in the thing； nothing would
remain for the putative new owner but the advantage which he has drawn
as a bona fide possessor of it up to that moment。 Now it is frequently
impossible to discover the absolutely first original owner of a
thing in the series of putative owners； who derive their right from
one another。 Hence no mere exchange of external things； however well
it may agree with the formal conditions of commutative justice； can
ever guarantee an absolutely certain acquisition。
Here； however； the juridically law…giving reason comes in again with
the principle of distributive justice； and it adopts as a criterion of
the rightfulness of possession； not what is in itself in reference
to the private will of each individual in the state of nature； but
only the consideration of how it would be adjudged by a court of
justice in a civil state； constituted by the united will of all。 In
this connection； fulfillment of the formal conditions of
acquisition； that in themselves only establish a personal right； is
postulated as sufficient； and they stand as an equivalent for the
material conditions which properly establish the derivation of
property from a prior putative owner； to the extent of making what
is in itself only a personal right； valid before a court； as a real
right。 Thus the horse which I bought when exposed for sale in the
public market； under conditions regulated by the municipal law；
becomes my property if all the conditions of purchase and sale have
been exactly observed in the transaction； but always under the
reservation that the real owner continues to have the right of a claim
against the seller； on the ground of his prior unalienated possession。
My otherwise personal right is thus transmuted into a real right；
according to which I may take and vindicate the object as mine
wherever I may find