The Rights of War and Peace

by Hugo Grotius

IX. Seventhly, a bona-fide purchaser of what belongs to another is obliged to make restitution to the real owner, nor can the price he paid be recovered. To this however there seems to be one exception, which is, where the owner could not have recovered possession without some expence; so for instance, if his property were in the hands of pirates. For then a deduction may be made of as much as the owner would willingly have spent in the recovery. Because the actual possession, especially of a thing difficult to be recovered, may be ascertained, and the owner deemed so much the richer by such recovery. And therefore, though in the ordinary course of law, the purchase of what belongs to one's self can never constitute a bargain, yet Paulus the Lawyer says, that it may do so, if it has been originally agreed that we are to pay for the re-possession of what another has belonging to us in his hands.

Nor is it in the least material, whether a thing has been bought with an intention of restoring it to the owner; in which case, some say, that an action for costs may be maintained, whilst others deny it. For an action on the case, to recover a compensation for business done arises from the artificial rules of CIVIL LAW, and not solely from the simple dictates of natural justice; which are here the principal subject of inquiry.

Not unlike to this is what Ulpian has written on funeral expences, in which he says, that a compassionate judge will not rigidly regard the bare labour that has been given, but allowing some relaxation in favour of equity, will shew indulgence to the feelings of human nature.

The same writer, in another place has said, that if any one has transacted my business, not out of regard to me, but for his own interest, and has incurred expence on my account, he may bring an action on the case, not for what he has given, but for what I have gained by his labour and expence.

In the same manner, owners, by throwing whose goods overboard a ship has been lightened, may recover a compensation from others whose goods were by that means saved. Because those persons are considered so much the richer by the preservation of what would otherwise have been lost.

X. Eighthly, the person that has bought a thing of one, who is not the owner, cannot return it to that seller; because from the time that the thing came into his possession, he incurred an obligation to restore it to the lawful owner.

XI. Again, if any one is in possession of a thing, whose real owner is unknown, he is not naturally, and necessarily bound to give it to the poor; although this may be considered as an act of piety, a custom very properly established in some places. The reason of which is founded on the introduction of property. For, in consequence of that, no one except the real owner, can claim a right to any thing. To the person therefore, who cannot discover such an owner, it is the same as if there really were none.

XII. Lastly, a person is not obliged by the law of nature to restore money, which has been received upon a dishonest account, or for the performance of a legal act, to which that person was of himself bound. However it is not without reason that some laws have required restitution in such cases. The reason of this is, because no one is bound to part with any thing unless it belongs to another. But here the property is voluntarily transferred by the first owner.

The case will be altered, if there be any thing iniquitous in the manner of acquiring the thing; as if, for instance, it be gained by extortion. This gives rise to the obligation of submitting to penalties, which is not immediately to the present purpose.

XIII. The present subject may be concluded with a refutation of Medina's false opinion, that a property in things, belonging to another, may be transferred without consent of the owner; provided the things are such as are usually valued by weight, number and measure. Because things of that nature can be repaid in kind, or by an equivalent. But this is only, where such a mode of repayment has been previously agreed upon; or where it is understood to be established by law or custom; or where the thing itself has been consumed, and cannot be identically restored. But without such consent, either expressed or implied, or excepting the impossibility just mentioned, the things themselves must be restored.