The Rights of War and Peace

by Hugo Grotius

If I have been robbed by my slave, and any one has spent the money under the supposition that it was the slave's own property, an action may be maintained against that person, as being unjustly in possession of my property. According to the Roman laws, minors are not answerable for money borrowed. Yet if a minor has become richer by the loan, an indirect action will lie against him, or, if anything, belonging to another, has been pawned and sold by a creditor, the debtor should be released from the debt in proportion to what the creditor has received. Because, says Tryphoninus, whatever the obligation may be, since the money raised accrued from the debt, it is more reasonable that it should redound to the benefit of the debtor than the creditor. But the debtor is bound to indemnify the purchaser, for it would not be reasonable that he should derive gain from another's loss. Now if a creditor, holding an estate in pledge for his money, has received from it rents and profits amounting to more than his real debt; all above that shall be considered as a discharge of so much of the principal.

But to proceed with other cases. If you have treated with my debtor, not supposing him to be indebted to me, but to another person, and have borrowed my money of him, you are obliged to pay me; not because I have lent you money; for that could only be done by mutual consent; but because it is reasonable and just, that my money, which has come into your possession, should be restored to me.

The later writers on the law have adduced this kind of reasoning in support of similar cases. Thus, for instance, if the goods of any one, who has been cast through default, have been sold, if he can make any good exception to the decision, he shall be entitled to the money arising from such sale. Again, when any one has lent money to a father for the maintenance of his son; if the father should become insolvent, he may bring an action against the son, provided the son is possessed of any thing through his mother.

These two rules being perfectly understood, there will be no difficulty in answering the questions often proposed by Lawyers and Theologians on such subjects.

III. In the first place it appears, that a person who has obtained possession of goods by fair means, is not bound to restitution, if those goods have perished, because they are no longer in his possession, nor has he derived any advantage from them. The case of unlawful possession which is left to the punishment of the law is entirely out of the question.

IV. In the next place a bona-fide possessor of a thing is bound to a restitution of the fruits or profits thereof remaining in his hand. The FRUITS or PRODUCE of the THING ITSELF are here meant. For the benefit derived from a thing owing to the industry bestowed upon it by the occupier thereof, cannot belong to the thing itself, though originally proceeding from it. The reason of this obligation arises from the institution of property. For the true proprietor of a possession is naturally proprietor of the fruits or produce of the same.

V. Such possessor in the third place is bound to make restitution of the thing, or reparation for the consumption of it occasioned by his possession. For he is conceived to have been made the richer thereby. Thus Caligula is praised for having, in the beginning of his reign, restored to different Princes along with their crowns, the intermediate revenues of their kingdoms.

VI. In the fourth place, an occupier of lands, for instance, is not bound to make a compensation for the produce thereof which he has not reaped. For if dispossessed, he has neither the thing itself, nor any thing in the place of it.

VII. In the fifth place, a possessor who has granted to a third person a thing of which a gift had been made to himself, is not bound to make a recompence to the original giver, unless he received it under stipulation, that if he granted it to a third person, and thereby spared his own property, he should make a return proportionable to such gain.

VIII. Sixthly, if any one has sold a thing which he has bought, he is not bound to restitution of more than the surplus arising from the sale. But if he had received it under stipulation to sell, he is bound to make restitution of the whole price, unless, in transacting the sale he has incurred an expence, amounting to the whole price, which he would not otherwise have done.[24]