36. Duties concerning the property of others.—After having established the right of general property, we have to expound the duties relative to the property of others.

The property of others may be injured in various ways, and in different cases. These cases are: 1, loans; 2, trusts; 3, things lost; 4, sales; 5, property strictly so-called.

37. Loans.—Debts.—The inequality of riches is the cause that among men some have need of what others possess, and yet cannot procure by purchase, for want of means. In this case, the first turn to the second to obtain the temporary enjoyment of the thing they stand in need of; this is called borrowing; the reciprocal act, which consists in conceding for a time the desired object, is called loaning. He who borrows, and who by this very act engages himself to return the thing again, is called debtor (who owes), and he who loans is called creditor; he has a credit on his debtor.

Several questions spring from this, some very simple, others very delicate, and often debated.

38. Rights and duties of the creditor.—Money interest.—Usury.—And first, is it a duty to loan to any that ask you? It is evident that if it is a duty it can be only a duty of charity, or friendliness, but not of strict justice. One is no more obliged to loan to all than to give to all. The duty of loaning, like the duty of giving without discrimination, would be tantamount to the negation of property; for he who would open his money-chest to all unconditionally, however rich he might be, would in a few days be absolutely despoiled. Besides, the same duty weighing equally on those who have received, they in their turn would be obliged to pass their goods over to others, and no one would ever be proprietor. In this case, it would even be better to hand all property over to the State, that it might establish a certain order and fixity in the repartition of it.

It is this doctrine which a Father of the Church, Clement of Alexandria, has expressed in these terms in his treatise: Can any rich man be saved?

It is therefore not a strict duty to loan to all; it is a form of benevolence, and we must put off to another chapter (ch. vi.) the conditions and the degrees of this duty.

But a question which necessarily presents itself here, is to know if, when one loans, it is a duty to deprive one’s self of all remuneration; or if it is, on the contrary, permitted to exact a price over and beyond the sum loaned. This is what is called money interest; and when this interest is or appears excessive, it is called usury. This question, discussed during the whole middle ages, was, before its true principles were established, first resolved by practice and necessity.

It is to-day evident to all sensible minds, that capital, like work, has a right to remuneration. Why? Because without the expectation of this remuneration, the possessor of the capital would forthwith consume it himself or allow it to waste away without use. This will be better understood in considering the two principal forms of remuneration for capital: interest and rent. Interest and rent are both the product of a capital loaned, but with this difference, that rent is the product of a fixed capital (house, field, workshop); while interest is the product of a circulating capital (money or paper).

The interest of capital represents two things: 1, the deprivation of him who loans, and who might consume his capital; 2, the risk he incurs, for capital is never loaned except to be invested, and consequently it may be lost. These are the two fundamental reasons which establish the legitimacy of interest, despite the prejudices which have long condemned it as usury, and the utopias which would establish the gratuity of credit.[24]

The principal reason against the legitimacy of interest is deduced from the sterility of money. “Interest,” says Aristotle, “is money bred from money; and nothing is more contrary to nature.” But, as Bentham remarks (Defense of Usury, letter 10), “if it be true that a sum of money is of itself incapable to breed, it is not the less true that with this same borrowed sum, a man can buy a ram and a sheep, which, at the end of a year, will have produced two or three lambs.” In other terms, as Calvin says, “it is not from the money itself that the benefit comes, it is from the use that is made of it.”

It has been said that he who loans does not deprive himself of his money, since he can do without it. (Proudhon, Letters to Bastiat, 3d letter.) But he does deprive himself of it, since he might have consumed it himself. The proof that a loan is a privation, is the pain men have in economizing and in investing their money. How many men are there who, in possession of a sum of one hundred francs, would not rather spend it than place it on interest?

As to what is called gratuitous credit, it could be possible only by being reciprocal. In fact, if I loan you my house, and you loan me in return your land, supposing they are of equal value, it is evident that, the one being worth as much as the other, and the two services equivalent, we need not pay each other anything; for it would be only an exchange of money. But nothing can be inferred from this, touching the most usual case: namely, where the capital is loaned by the possessor to him who does not possess; for then there is no reciprocity, consequently no gratuity.

As to the rate of interest it varies like all values according to the law of supply and demand in the money market. (See the Cours d’Economie Politique.) The greater the supply of capital the less dear it is. It is, then, the increase of capital that is to diminish interest and bring about a sort of relative gratuity. Every enterprise against capital will produce a contrary result.

As to the rent of capital, it has generally raised fewer objections than interest; for it is easier to understand that if I give myself the trouble to build a house, it is that it will bring me in something; but it is, on the whole, the same thing, with this difference, that circulating capital, running more risks than fixed capital, seems to have a still better right to remuneration.

The lender has then the right to exact a certain amount over and above the sum loaned. Certainly, he cannot exact it, as it often occurs among friends, and for very small sums. But as a principle, one is no more obliged to lend gratuitously, than to give to others gratuitously what they need.

In admitting that the interest of money is a legitimate thing, is one obliged also to admit that the money-lender has a right to fix the rate of interest as high as he wishes? Beyond a certain limit, will not the interest become what we call usury?

To which may be replied:

These arguments prove, in fact, that it is impossible to determine beforehand and absolutely the rate at which it may be permitted to lend, and there are many cases where a very high interest may be legitimate: for instance, in what is called bottomry-loan, which consists in advances made to shipping merchants on their ships; the law here sanctions very high interest, because of the exceptional risks this kind of enterprise runs.

Does it, however, follow, as some economists seem to think, that there is no occasion to speak of usury, properly so called, that the term usurer is an insult, invented by ignorance, which has no real basis? This we cannot admit. Political economy and morality are two different things.

Even if one should admit that there is no reason for legally fixing the rate of interest, because money is a merchandise like all others which should be left to free circulation, to the free appreciation of the parties, it would not follow that there could be no abuse made of the required interest. Experience proves the contrary. It is not so much the rate of the interest which constitutes the injustice thereof, as the reasons and circumstances of the loan. If, taking advantage of the passions of youth, one loans to a prodigal, knowing him unable to refuse the conditions, because he only listens to pleasure; or if, seducing the ignorant, one dazzles him with magnificent bargains; or, lastly, if profiting by the common desire among peasants to enlarge their grounds, we advance them money, knowing they cannot return it, and secure thereby the property they think they are buying, in all such cases, or similar ones, there is always usury, and morality must condemn such hateful practices.

The hatefulness of usury is brought into strong relief in Molière’s celebrated scene in The Miser (Act ii., Sc. i.):

The next scene shows with remarkable energy the spendthrift and the usurer in conflict with each other.[26]

39. Duties of the debtor.—After the duties of the lender and the creditor, let us point out those of the borrower or the debtor. The only duty for him here is to return what he has borrowed: it is the duty of paying one’s debts.

For a long time, the duty of paying one’s debts appeared to be one of those vulgar and commonplace duties intended for the generality of men, but from which the great lords freed themselves easily. The poor creditors have been the laughing stock in comedies.[27] But it is not doubted nowadays that to refuse to pay what one owes, is really taking from the property of others, and appropriating what does not belong to us.

This duty, besides, is so simple and stringent that it is necessary only to mention it without further development. The same principles apply to the various ways in which one may make use of property, and particularly to the three kinds indicated in the Civil Code—the usufruct, the usage, and the right of action. The common obligation in these three cases, mentioned by the Code, is to use the thing belonging to others as a prudent father would, which is to say, to use it as the proprietor himself would use it, without injuring the object, and even improving it as much as possible. It is especially in commerce that the act of paying one’s debts, is not only more obligatory morally, but socially more necessary than anywhere else. The reason of it is that commerce is impossible without credit. By exacting of every merchant the payment of cash, the springs of exchange would dry up; besides, most of the time it would be useless; for in commerce merchandise is constantly bought against merchandise. It would be loss of time, loss of writing, limitation of the market. In commerce one cannot say of him who owes that he is a borrower; for the next day, according to the fluctuations of demand and supply, he may be the lender. But it is just because credit is indispensable in commerce, that the obligations of the debtors are in some respect more stringent; for the greater the confidence, the more stringent the duty. So that commercial honor is like military honor—it does not admit of breaking promises.

40. Failures and bankruptcies.—However strict one should be in commerce in regard to keeping promises, there is nevertheless in the Code cause for distinguishing two different cases of promise-breaking—failure and bankruptcy; and in this second case, there is simple bankruptcy and fraudulent bankruptcy.

Failure is purely and simply the suspension of payments resulting from circumstances independent of the will of him who fails. Bankruptcy, on the contrary, is suspension of payments resulting either from imprudence or from mistakes of the bankrupt.

Simple bankruptcy occurs in the following cases: 1. If the personal expenses of the merchant or the expenses of his house are judged excessive; 2. If he has spent large sums of money in operations of pure chance either in fictitious operations or extravagant purchases; 3. If with the intention of putting off his failure, he has made purchases to sell again below par; 4. If after cessation of payment, he has paid a creditor to the prejudice of all others. (Code of Commerce.)

Bankruptcy is called fraudulent, when the bankrupt has abstracted his books, misrepresented a portion of his assets, or declared himself debtor for sums he does not owe.

It is useless to say that this third case is but another case of theft and deserves the severest denunciation. Simple bankruptcy is already very culpable; and failure itself should be regarded by all merchants as a very great misfortune, which they must avoid at any cost.

41. The commodate or gratuitous loan.—The gratuitous loan or commodate is a contract by which one of the parties gives to the other a thing to be made use of, on the condition that it be returned after having served its purpose. (Code Civ., Art. 1875.)

As a fundamental principle, the receiver must return to the lender the very thing he has loaned him. But in case of loss or deterioration of the thing loaned, resulting from the use made of it, on whom is to fall the loss?

42. The trust.—Trust, in general, is an act by which one receives the thing of another on condition to keep it and restore it in kind. (Code Civ., Art. 1915.)

He who deposits is called deponent (or bailor in England); he who receives the trust is called depositary (in England bailee).

The obligations of the depositary are morally the same as those found in positive law. We have then nothing better to do here than to reproduce the precepts of the Code on this matter.

1. The depositary, in keeping the thing deposited with him, must exercise the same care as with the things belonging to himself (Art. 1927).

2. This obligation becomes still more stringent in the following cases: (a), when the depositary offers himself to receive the thing in trust; (b), when he stipulates for a compensation for the keeping of the thing deposited; (c), when the trust is to the interest of the depositary; (d), when it has been expressly agreed upon that the depositary be answerable for all kinds of mistakes (Art. 1928).

3. The depositary cannot make use of the trust without the express or presumed consent of the deponent (Art 1929).—For example, if a library has been left in my trust, it may be presumed that the deponent would not object to my using it; but if the trust consists in valuable jewelry, it can be only by the express wish of the deponent that I could wear it. The difference is simple and easily understood.

4. The depositary should not seek to know what the things deposited with him are, if they have been left with him in a closed trunk or a sealed envelope (Art. 1931).

5. The depositary must return the identical thing he has received. Thus the trust consisting in specie, must be returned in the same specie.

The obligation to restore the thing deposited in kind, and such as it was when delivered, is evident, and constitutes the very essence of the trust.

However, we should take into account the following circumstances:

1. The depositary is not held responsible in cases of insuperable accidents (Art. 1929).

2. The depositary is only held to return the things deposited with him, in the state wherein they are at the moment of restitution. Deteriorations, through no fault of his, are at the expense of the deponent (Art. 1935).

Such are the obligations of the depositary; as to those of the deponent, they resolve themselves into the following rule:

The deponent is held to reimburse the depositary for any expense he may have incurred in the keeping of the trust, and to indemnify him for any loss the trust may have occasioned him (Art. 1947).

43. Possession in good faith.—Possession in good faith is analogous to trust. In fact, he who possesses in good faith a thing that is not his, is in reality but a depositary, but he is so without knowing it. Hence analogies and differences between these two cases, which it is well to point out.

The following are some rules proposed on this subject by Grotius (De la paix et de la guerre, B. 11, ch. xii., § 3); and Puffendorf (Droit de la Nature et des Gens, B. iv., ch. xiii., § 12). But as these rules appeared excessive to other jurisconsults, we give them here rather as problems than solutions:

1. A possessor in good faith is not obliged to restore a thing which, against his wish, has come to be destroyed or lost, for his good faith stood to him in lieu of property.

2. A possessor in good faith is held to return not only the thing itself, but also its fruits still existing in kind.

3. A possessor in good faith is held to return the thing itself, and the value of the fruit thereof which he has consumed, if there is reason to believe that he would have otherwise consumed as many similar ones.

4. A possessor in good faith is not held to return in kind the value of the fruit he has neglected to gather or to grow.

5. If a possessor in good faith, having received the thing as a present, should afterwards give it to another, he is not obliged to return it, unless he would otherwise have given one of the same value.

6. If a possessor in good faith, having acquired a thing by an onerous title, should afterwards dispose of it in some way or other, he need return but the gain it procured him.

It is necessary to remark here that in this matter morality should be more severe than the strict law; for if morality demands that a possessor be above all mindful of the rights of others, the law should also consider the rights of him who in good faith and ignorance enjoys what belongs to others. Hence, an essential difference between this case and that of the trust.

44. Things lost.—The question of things lost is related to that of possession in good faith. If the thing lost should fall into my hands by a regular acquisition, by purchase, contract, etc. (as, for instance, buying a horse in the market), it is evident that this case comes under possession in good faith, and that it is the business of the law to decide between proprietor and possessor. But if I appropriate to myself the thing lost, knowing it to be lost, and consequently not mine, there is fraud and converting to my own use the property of others. Public opinion was for a long time indulgent towards this kind of appropriation. It seemed that luck gave a certain title to property. The difficulty, moreover, of finding the true owner, seemed to give to him who had found the object a certain right to it. But to-day society plays the part of intermediary, and assumes the duty of restoring the thing lost to its owner. It is, therefore, to the authorities the object must be returned.[28]

For a long time a misjudgment of the same kind allowed wreckers a pretended right to the objects thrown on the strand by the tempest following a wreck.

45. Sale.—Sale is a contract by which one of the parties engages to deliver a thing, and the other to pay for it (Civ. Code, Art. 1982). There are, then, two contracting parties—the seller and the buyer. They are subject to different obligations.

Obligations of the seller.—The seller is held clearly to explain what he engages to do. An obscure and ambiguous agreement is interpreted against the seller (Civ. Code, Art. 1602). Such is the general and fundamental obligation of a sale. It implies, moreover, two others, more particular: 1, that of delivering; 2, that of guaranteeing the thing sold.

The first is very simple, and raises only questions of fact, as in regard to delays, expenses of removal, etc.; it is the business of the law to regulate these details.

The guaranty, in a moral point of view, is of greater importance. The two essential principles in this matter are expressed by the Code in the following terms:

1. The seller is held to his guaranty in proportion to the concealed defects of the thing sold, rendering it improper for the use for which it was destined, or so diminishing this use, that the buyer would not have bought it, or would not have given so much for it, had he known of these defects.

2. The seller is not held to the obvious defects which the buyer may have been able to see himself.

It is to this question of guaranteeing the thing sold, that the conscience-case mentioned by Cicero, in his treatise on Duties, is applicable:

Despite Diogenes’ railleries, Cicero decides in favor of Antipater and the more rigorous solution. The truly honest man, he says, is he who conceals nothing.

If it is a fault not to reveal the defects of the thing sold, it is a still graver one, and one which becomes a fraud, to ascribe to it qualities or advantages it has not. Cicero cites on this subject a charming and well-known anecdote.

46. The price in selling.—If we adhere to the principles of political economy, the price in selling is entirely free: it depends exclusively upon the agreement between the vender and the buyer, and as it is said, on the relation between the supply and demand. Nothing more unjust than the intervention of the law in commercial relations. If the buyer buys at such or such a price, however high, it is that he still finds it to his interest to buy even at that rate. If the vender sells at such or such a price, however low, it is that he cannot get more, and that it suits him rather to sell at that price than keep the thing.

It is then certain that the value of things being wholly relative, it is impossible to determine in an absolute manner what may be called the just price; for that depends on the frequency and rarity of the thing, on the market, on the wishes of the buyer, and the thousand continually varying circumstances. In short, the sale taking place when one wishing to sell and one wishing to buy, meet each other, it seems that their accord is a proof that the two interested parties have come to an understanding. There would, according to that, never be any unjust sale or purchase. We must consequently consider the definition of commerce given by the socialist, Ch. Fourier: “Commerce is the art of buying for three cents what is worth six, and selling for six what is worth three,” not only as satirical and hyperbolical, but also as unjust and anti-scientific; for we cannot say whether a thing is in itself absolutely worth six cents or three cents.

Does it follow, however, that there can never be any injustice in sale or purchase? If there is no absolute price, there is a medium price resulting from the state of the market. Now, the buyer may not know this medium price; and it is an injustice on the part of the seller to take advantage of this ignorance to sell above that. The same in the case of the vender’s not knowing the price of the thing he has for sale, which the buyer appropriates, paying for it below its real value.

Besides, whilst admitting that the prices are free, and that the law cannot intervene between vender and buyer, it is, however, necessary to admit that there is a certain moderation beyond which injustice begins, if not in a legal, at least in a moral point of view. But it is for particular circumstances to determine this limit; and there is no general rule for it. It is a case where not strict justice, but equity is just.

47. Violation of the property of others.—Theft.—In general, every kind of violation of property under one form or another, is called theft, and this action is condemned by morality. It is expressed by that ancient commandment: Thou shalt not steal.

The following are the various definitions of theft given by the jurists: “By theft is meant every illegal usurpation of the property of others.”[31]—“By theft is meant every fraudulent carrying off for gain a thing belonging to others.”[32] Finally our Code declares that, “whosoever has fraudulently carried off anything that does not belong to him, is guilty of theft.” (Penal Code, Art. 379.)

It takes, then, three elements to constitute theft: 1, carrying off; 2, fraud; 3, the thing of another.

Two kinds of theft are distinguished: the simple thefts and the qualified thefts.

The first are those in which are met the three preceding elements, but without any further aggravating circumstance. The second (qualified thefts) are those which to the three preceding elements add some aggravating circumstances. These circumstances are: 1, the quality of the agents (servants, inn-keepers, drivers or boatmen).

It is clear that this is an aggravating circumstance by reason of the facility given by the more intimate relations in which they stand with the injured persons, and the greater confidence these are obliged to grant them.

2. Times and places.—For example, thefts committed by night are more grave than those committed by day, because it is more difficult to anticipate them, to catch their perpetrators, and because they place the injured person in greater danger. The places that aggravate theft are: 1, the fields; 2, inhabited houses; 3, edifices consecrated to divine worship; 4, highways, etc. It is easy to understand why these different places aggravate the crime by rendering it more easy.

3. Circumstances of execution, as for example: 1, theft committed by several persons; 2, theft by breaking open; 3, theft with an armed hand, etc.

In a word, theft becomes greater in proportion to the difficulty of forestalling it, and its menacing character.

One particular form of theft is swindling. Swindling is a sort of theft, since it is a fraudulent appropriation of the thing of another. But it is characterized by the fact that it does not take place through violence, but through cunning, and in deceiving the victim by fraudulent maneuvers; for instance, in making him believe in the existence of false enterprises, in an imaginary power or credit, in calling forth the hope and fear of a chimerical event, etc.

Embezzlement is a sort of swindling, with this difference, that “if the criminal has betrayed the confidence which has been placed in him, he has not solicited this confidence by criminal maneuvers.” Among these may be classed: 1, taking improper advantage of the wants of a minor; 2, misuse of letters of confidence; 3, embezzlement of trusts; 4, the abstraction of documents produced in court.

We have to point out still several other kinds of theft: for example, theft at gambling or cheating; theft of public moneys or peculation, etc.

In one word, under whatever form it may be concealed, misappropriation of another’s goods is always a theft. In popular opinion it often seems, as if theft really takes place only when the criminal takes violent possession of another’s property. Very often a few false appearances suffice to conceal to the eyes of easy consciences the hatefulness and shamefulness of fraudulent spoliations. One who would scruple to take a piece of money from the purse of another, may have no scruple in deceiving stockholders with fictitious advertisements, and appropriate capital by fraudulent maneuvers. Theft thus committed on a large scale is still more culpable, perhaps, than the act of him who, through want, ignorance, hereditary vices, never knew of any other means of living than by theft.

48. Restitution.—He who has taken possession of anything that belongs to another, or retains it for any cause, is held to restitution as a reparation of his fault. This restitution must be made as soon as possible; otherwise it is necessary to obtain an extension of time from the injured person. If the thing has been lost, restitution should no less be made under some form of compensation. Restitution is independent of the penalty attached to the damage and fault.

49. Promises and contracts.—We have seen above that it is an absolute obligation for man to use language only so as to express the truth. Hence every word given becomes essentially obligatory. But it is as yet only a duty of the man towards himself. We have to see wherein and how the word given may become a duty towards others. This is the case with promises and contracts.

Promises.—A promise is the act whereby one gives his word to another either to give him something or do something for him.

According to jurists, a promise is obligatory only when accepted by him to whom it is made.

It may be true that in strict law, and from the standpoint of positive law, the promise may be obligatory only and capable of enforcement when it has been accepted, and accepted in an obvious and open way; but in natural law and in morality, the promise is obligatory in itself. Of course, it is understood that the promise bears on something advantageous to him to whom we make it; for if I promise some one a thrashing, it cannot be maintained that I am obliged to give it to him; and if he to whom I make the promise will not receive what I offer, I am by that very fact relieved from my promise; for one cannot give anything to another against his will; I am under no obligation to him who will not receive anything from me. But if the promise bears on something advantageous to any one, I am obliged to keep it without asking myself whether he to whom I made it, is disposed to accept it; presuming still that he will accept it. It is therefore not the explicit acceptance of a thing that renders the promise obligatory; it is the explicit refusal which relieves one of the promise; and together with that it would be necessary that the refusal be absolute and not contingent; for even then the promise may remain obligatory, at least in its general principles, while undergoing some modification in the execution.

Is one obliged to keep his promise when the fulfillment of it is injurious to those to whom it was made? “No,” says Cicero; for example:

The truth of this doctrine cannot be contested. However, it is necessary to understand this exception in the strictest sense, and not to seek in the pretended interest of the person one obliges, a pretext to change one’s mind. For example, if you have promised any one a post which he accepts and desires, you cannot be allowed to relieve yourself of it, by supposing that the post will in reality be a disadvantage to him, and that you will give him a better one another time.

Some other exceptions are pointed out by the moralists and jurists; for example:

1. Necessity relieves of all promise. If, for example, I have promised to go to a meeting and am kept in bed by a serious illness, it is impossible for me to go, and hence I am relieved of my promise.

2. One is not obliged to perform illicit acts: “for,” says Puffendorf, “it would be a contradiction, to be held by civil or moral law, to perform things which the civil or moral law interdicts. It is already doing wrong to promise illicit things, and it is doing wrong twice to perform them.”[35]

3. One cannot promise what belongs to another: for I cannot promise what I cannot dispose of.

50. Contracts.—A contract is an agreement by which one or several persons engage to do or not to do a certain thing for one or several others. (Code Civ., Art. 1101.)

Conditions of the contract (Art. 1108).—Four conditions are necessary to constitute a valid and legitimate agreement: