Summa summae S. Thomae, Tomus III

The name of right is taken in various ways: first, for that which is just. But the just is taken in two ways: generally, for everything that is consonant with law; strictly, for the equality owed to another; for those things that are equalized are vulgarly said to be justified. And right so taken is the object of justice, as we shall say below.

Secondly, right is taken for the legitimate faculty of doing something, acquiring, possessing, alienating, etc.: in which sense one is said to use his right. But right taken in this second way is the foundation of right taken in the first way. For nothing is owed to another by way of equality without a right in the other, because what is owed is owed to a right; right and debt are correlatives.

Thirdly, right is taken for law, which is the rule of the just in general. Hence right taken in the second way depends on this right; for that anyone have a right to something is attributed to him either by the law of nature, or by positive law, or at least by free concession of God or men. Wherefore

I say secondly: Right taken in these three ways can be divided, by the same division, into natural and positive right.

And as to right taken for law, it is evident; because law is one thing natural, another positive. Eternal law is not included, because this division is made into members entirely diverse; but natural law is not a thing entirely diverse from eternal law, rather it is its participation in a rational creature, as is taught in Ia IIae, q. 91, a. 2, ad 1.

Positive right is divided into divine and human. Divine is one thing of the Old Testament, another of the New. Human positive right is divided into the law of nations, canon law, and civil law. Canon law, which especially concerns us, is compounded from the canons of councils, the decrees of Pontiffs, and the judgments of the Fathers.

Right taken for the just is likewise adequately divided into natural right and positive right¹ ; because right so taken is the just, or what is adequate to another. Now something can be adequate to another in two ways. In one way, from the nature of the thing, as when someone gives as much that he receive the same amount, and this is called natural right. In another way something is adequate or commensurate to another from the good pleasure of those who establish it, as when two private persons so covenant between themselves, or the community consents that such a thing be held as just, or the prince ordains by law that it be so; and this is called positive right. The other subdivisions are as in the division of law.

Right taken for "the legitimate faculty, etc.," is also divided, on the part of the principle, into natural, which belongs by law or by the consent of nature, and positive, which belongs by positive law or by the free concession of God or men. The other subdivisions are as in the division of law. Likewise this right, on the part of the term it regards, is divided into right in a thing and right to a thing.

Right in a thing is what one has in a thing already his and obtained. Hence it gives a real action upon the very thing. Three conditions are required for it: the existence of the thing, a legitimate title, such as purchase, donation, etc., and delivery of the thing. So has right disposed, except in certain cases.

Right to a thing is what one has in order that some thing become his. For this no other condition is required than a legitimate title. It does not give an action upon the very thing, but upon the person only. Such right² is acquired by donation, purchase, etc., before delivery. Also by election, presentation to an office, by collation of a benefice before acceptance, etc.

Since right taken in the second way, for the faculty of doing something, acquiring, etc., is the foundation of right or of the just, which is the object of justice, many necessary points concerning it occur to be examined, especially concerning dominion, which is its principal species.

Dominion is twofold: one of jurisdiction, which is the power of governing one's subjects; the other of property, which is the faculty of disposing of some thing as one's own for one's own advantage, and it is chiefly of this that we treat here.

Dominion of property again is twofold: one full and perfect, the other not full and imperfect.

Full dominion is the right to the property of a thing and its emoluments. Not full is the right to the property of a thing without the emoluments, and it is called direct dominion, such, e. g., as belongs to the prince with respect to a fief; or the right to the emoluments without the property, and it is called useful dominion, and such belongs to usufructuaries, feudatories, emphyteutae, etc.

Therefore

I say first: Full and perfect dominion of property, as it embraces direct and useful dominion, is rightly defined: "A right in a thing, or the legitimate faculty of disposing of a thing as one's own, for any use not prohibited by law, for one's own advantage." It is gathered from D. Thomas, here q. 66, a. 1, c.

It is said, "for any use not prohibited by law;" because, although dominion by its nature bestows power for any use whatever, this power can nevertheless be impeded by law so that it does not pass into act: as happens with a minor, who before the legitimate age cannot alienate his goods, although he is their true owner; hence, if he were to alienate them, he would not sin against justice.

But the same conditions are required for perfect dominion that are required for right in a thing, namely: the existence of the thing, a legitimate title, and delivery of the thing.

I say secondly: Usufruct is defined: "The right of using and enjoying the things of another, saving their substance." So in the law.

It is said, "of enjoying," that it may be distinguished from simple use.

For he who has simple use can only use the thing, e. g., a horse, a house, a garden, a field, a wood, etc., for his own daily necessity, so that he can neither let, sell, nor gratuitously cede to another either the superfluous fruits or the right he has; whereas he who has usufruct can do all these things, so L. 12, ff. de Usu.

But fruits are reckoned not only in immovables, as hay, crops, shoots, timber trees, bois taillis in an estate (for fruit-bearing trees are not reckoned fruits), but also in movables, as wool, milk, offspring, etc., in a flock. Where note that timber wood, even if cut out of season, is in fruit, just as an olive picked unripe, likewise hay cut unripe. L. 48, ff. de Usufructu. As to harvest and vintage, however, the usufructuary must wait for ripeness.

Note further that, if the usufructuary die before he has gathered the fruits, even if ripe, these are acquired by the owner of the property, and not by the heirs of the usufructuary. So in Instit. de Rerum divisione, § Is vero. The reason is, because as long as they adhere to the estate they are held to be one with it. Hence they belong to the owner of the estate until the usufructuary by gathering them has made them his own.

It is said, "the things of another;" because usufruct is a servitude, which can be constituted only over the things of another. "For no one's own thing serves him, but profits him by right of dominion," as is said in L. 26, ff. de servitute praedior. rustic.

It is said, "saving their substance;" because the usufructuary must reserve the thing intact for the proprietor. Hence usufruct cannot properly be constituted over things that are consumed by a single use, as wine, oil, etc.

I say thirdly: Use is defined by the jurists: "The right of only using the things of another, saving their substance."

It is said the right of only using, and not of enjoying; because, as I have already said, the simple user can only take the fruits of a thing, as vegetables, apples, hay, for his own daily necessity, but he cannot sell or give them away, nor let the thing itself; which the usufructuary can do.

It is said, "saving their substance," because in use, as in usufruct, the thing must be preserved intact for the owner.

From this you have that this definition of use does not belong to things consumable by a single act, as wine, oil, bread, etc.; because by such use the substance of the thing does not remain safe. Hence, if use be taken more generally, as it befits both things consumable by a single act and non-consumable things, it is "the right of using a thing of another."

Concerning this use of things consumable by a single act there was once great controversy, not only among theologians, but also among Pontiffs: whether it should be distinguished from dominion? For whose resolution let there be

Use is distinguished in two ways: one independent and irrevocable at the nod of the grantor, as in a loan; the other dependent and revocable at the nod of the grantor, such as guests have at a banquet laid out, or individual religious at food or drink granted to them by the superior; for these things, whether the banquet, or the food and drink, can be taken away by the owner or superior without injustice as long as they exist.

Irrevocable use is called by Nicholas III, cap. Exiit, de verborum signific. in 6°, and by some theologians "use of right," because it is an absolute and solid right. Revocable use is called use of fact; because the right it imports or supposes is very weak, being dependent on the will of another.

I say: Revocable use in things consumable by one act is distinguished from dominion.

Proof. First. Separation is a manifest proof of real distinction. But revocable use, as in the conclusion, is separable from dominion. Therefore. — Proof of the minor. He who grants to another the faculty of using his thing, while retaining the power of revoking this faculty at his nod and of disposing of his thing to whatever use he wishes, grants the use and retains dominion. Therefore. — Proof of the antecedent. That he grants the use is evident in itself. That he retains dominion is proved. He is truly lord who can recall his thing to himself at his pleasure, no contract intervening, and dispose of it for any use whatever. Therefore.

Proof. Second. Individual religious have the use of those things that are granted to them for sustenance, revocable by the superior. But they do not have dominion over them, since by vow of poverty they have abdicated the dominion and property of all things¹ . Therefore.

It is confirmed by the example Nicholas III uses. A father of a family giving a banquet to guests gives them the use of foods revocable at his nod. Yet he does not transfer dominion to them. Therefore. — Proof of the minor. Guests are not lords of what is set on the table, nor can they use it for any use whatever, but only for eating, and that so dependently on the will of the father of the family that he would commit no injustice if he took away what he had set out. Therefore.

So with us think Nicholas III, Clement V, and before them Alexander III and Gregory IX, Soto, Navarrus, Sylvius, Lessius, and many others together with the entire school of the Scotists.

You will object: John XXII, Extravag. Ad conditorem, asserts the contrary of our opinion, and says that to say that in such things use can be constituted separately from dominion repugns to right and runs counter to reason. Therefore either he, or the Pontiffs praised above, erred.

I answer. First: suppose we admit that John XXII erred in this part, nothing absurd follows, since it is not a matter of faith or morals, but partly natural, partly civil; and besides he said this not defining as Pontiff, but reasoning as a particular doctor.

It can be answered secondly that John XXII did not err even in this; because he does not take dominion strictly and properly, but broadly and improperly for right however tenuous, or rather for the license of using a thing by consuming it, which since in things consumable by the use itself it is equivalent as to effect to dominion (for the Friars Minor consume food as freely as if they were owners), therefore the Pontiff called this right, though most tenuous and revocable, dominion, namely equivalently and analogically. This solution is intimated by the gloss in Clement., Exivi de Paradiso, § Proinde.

You will ask first what possession is.

I answer. Possession is said from the position of the feet, because over immovables it is usually acquired by the position of feet. It is commonly defined: "Detention of a thing with the aid of body, mind, and right."

It is explained. It is said, "detention:" under which name is understood also the first apprehension, which is the beginning and acquisition of possession.

It is said, "of a thing," not only corporeal, as a field, a house, or movables, but also incorporeal, as an annuity, a benefice, a servitude, and similar rights, which are said to be possessed in a manner.

It is said, "with the aid of the body;" because it does not begin, nor is it possession, unless there comes an external or corporeal act by which the thing is apprehended by foot, hand, eyes, or some similar way, in itself or in another in which it is held to be contained, as I shall say presently.

It is said, "with the aid of the mind;" because the intention of possessing and holding the thing for oneself and not for another is required. Hence a depositary does not properly possess the deposit, nor a tutor the goods of a minor.

It is said, "with the aid of right," not that it is necessary that right approve it, otherwise every possession would be just, but because for possession it is required that right not impede the detention of a thing from being held its possession. For this reason, detention of a sacred thing by a layman is not possession, not even of fact, since right prohibits it; but detention of a stolen profane thing, though unjust, is nevertheless true possession of fact, because right does not impede the detention of such a thing from sufficing for possession.

You will ask secondly in how many ways possession is twofold.

I answer. Among the various divisions of possession (for one is just, another unjust, one in one's own name, another in another's name), the principal is into civil, natural, and most civil.

Civil is that which, begun with the aid of the body, is retained and continued by the aid of the mind alone. Thus he possesses civilly who is absent from his things, but holds and occupies them as his own in mind and faculty, so long as he is not cast out of possession by another. It is called civil, because it rests more on civil than on natural law, since the natural mode of possessing is by bodily insistence, and also because it produces a civil effect, namely prescription.

Natural is that by which a thing is occupied by body and mind together. But one is held to occupy corporally when he is so near the thing that he can be present to it immediately. This natural possession can be separated from civil: for a thief, e. g., possesses my thing naturally, I civilly, until by abstraction of it from place to place it is put outside my custody; for then I am cast out of civil possession.

Most civil is that which is acquired by the sole disposition of law, even by one who knows nothing of it, and therefore without the aid of body and mind. Thus the infant heir possesses the inheritance of the deceased, especially in France and the country of Liege, where the dead clothes the living: Le mort saisit le vif. The reason is, because the mode of acquiring possession is subject to human law, which can establish diverse modes according as it seems more expedient for the commonwealth.

You will ask thirdly whether, possession lost, dominion is always lost.

I answer negatively. For of a thing lost or taken by theft I lose possession, yet not dominion.

You will ask fourthly what are the privileges of possession.

I answer. The chief privileges of possession are: first, that it produces prescription; second, that in doubt the condition of the possessor is better; third, that it is not for the possessor to prove that the thing is his, but for the assailant to prove that it is not. Concerning possession see more among the interpreters of the laws.