De la classification des propriétés, ou de la distinction des biens.

CHAP. 53: On the classification of properties, or the distinction of goods.

HAVING seen what are the elements of which properties are generally composed, and what are the diverse ways they can be shared, it remains to examine how they must be classified, and how they have been, either by the jurists, or by the legislators.

Only individuals exist in nature; species and genera are only conceptions of our mind: they are methods by means of which we make our studies easier, and give to our language more precision and generality.

By designating with a single word all the individuals between which there exists a great number of points of resemblance, or common qualities, we can give to our affirmations and our reasonings a generality that would be impossible without the use of this means.

If one did not divide into species and genera the individuals that exist in nature, there would be no science possible; one would know only individual facts from which one could draw no general conclusion.

But what can be, in the science of legislation, the object of classifications or of the division into diverse species, of things or of persons? Is it to facilitate the observation of all the particular qualities that are found in the persons or the things that one divides into several classes? No, doubtless; if one classified properties by the differences or by the points of resemblance that exist between them, one would form an infinite number of genera and species, and these divisions would be of no utility.

The object for which one divides, in legislation, things or persons into diverse classes, is to subject to certain rules or to certain legislative dispositions, the things, persons, or actions that have a certain number of points of resemblance: it is thus, for example, that one divides into genera and species punishable actions, in order to subject to the same penalties the persons who commit them; it is also thus that one divides persons into diverse classes, in order to be able to subject some to rules that would not be suitable for others.It is not enough, to form a particular class of properties, that they be the object of a special disposition of a law; for, if that were sufficient, an immense number of divisions would have to be made. There is, in effect, almost no object fit to satisfy any of our needs upon which the legislative power has not thought it necessary to take some measure. Laws have been made on forests, on mines, on vines, on beverages, on tobaccos, on saltpeter, on gunpowder, and on a multitude of other things. One would, however, make a very bad classification in a code of laws, or in a general treatise on legislation, if one said that immovable properties are divided into vines, forests, mines, fields, or meadows.

There are two ways of considering the things to which we give the name of properties: in themselves or in their nature, and in the relationships they have with a certain class of persons. If we consider them in themselves, we do not have to concern ourselves with all the points by which they resemble each other, and those by which they differ; it is enough for us to observe the qualities that influence the ensemble of the legislation. We must neglect the others, even when they have been the object of special laws.

The proper way to classify properties depends on the matter with which one is concerned: if a man is treating of police, he may consider them from the standpoint of safety, healthfulness, rarity, abundance; if he is treating of taxes, he may consider them in the relationships they have with public revenues; he may distinguish those that are taxable from those that are not, and make of the former as many divisions as there are different taxes.

We have to concern ourselves here only with general legislation: all properties are of our domain; but we must consider them only in the relationships they have with the ensemble of the laws. If, in considering them from a general point of view, we find that there exist, between some and others, differences so marked that they dominate the ensemble of the legislation, and influence most of the laws that govern properties, we are obliged to form diverse classes of them, in order to be able to designate by a single word those that must be subjected to the same rules. If the differences that strike us have no influence on general legislation, if they require only a few special dispositions for determined cases, they are not sufficient to justify a particular classification, however great these differences may be otherwise.

One will be good enough not to lose sight of the fact that this is only a question of method; everything comes down to finding the order most proper to facilitate the operations of our understanding; for a legislator who divides into genera and species the diverse objects with which he is concerned, it is only a matter, as for a jurist, of classifying things in such a way that he can expound his thoughts in the fewest possible terms, and with enough clarity to be always perfectly understood.

The Roman jurists had divided things into a great number of classes. They first distinguished those that are in our patrimony from those that are not, a division that included everything that exists in the universe. In practice, this distinction could be of no utility.

They had made another division that included the universality of things: they had put on one side all corporeal things, and on the other incorporeal things, such as rights and obligations.

A third division contained four classes: things common to the human race, public or national things, things belonging to cities or corporations, and finally things belonging to private individuals.

A fourth division included sacred things or those belonging to religion, religious things or those consecrated to the dead, holy things or those placed under a special protection of the laws, such as the gates of cities, walls, fortifications.

A fifth division contained fungible things, that is to say, those that are consumed by the first use one makes of them, such as our foods, and non-fungible things, such as houses.

Finally, they had divided things into movables and immovables: this last classification has been conserved among all nations.

A philosopher-jurist, who has rendered immense services to legislation, Jeremy Bentham, has proposed to classify in a new way the things that fall under the empire of the laws; but he seems to have forgotten, in his classification, the principle of utility that guided him in most of his research.

All his divisions are founded on the very nature of things; but that is not enough to have them admitted: it would be necessary, moreover, that they be appropriate for the science for which they are made, and that is what they lack.

Bentham first divides things into natural and artificial. The former, according to the definition he gives of them, are those to which their respective names can apply in the state in which they are found when they leave the hands of nature, before being modified by human industry, such as animal or vegetable productions. The latter are those that can acquire their respective appellations only by virtue of the qualities that human industry gives them, such as furniture, clothing.

The author of this division recognizes that the two classes touch at an infinite number of points, and that the line by which one separates them will most often be arbitrary; but that does not prevent him from being persuaded of the necessity of this classification in a good civil code; he believes it indispensable, if only to have peace.

We have had peace, although this decision was not admitted, and when war has occurred, it is not because things had not been classified into natural things and artificial things. Things should form a particular class, as I have already remarked, only when the qualities that are inherent in their nature exercise some influence on the general dispositions of the laws. Now, the circumstance that a thing is natural or artificial in no way influences the ensemble of the legislation; the laws under whose empire are placed the wheat, the wool, the fruits that compose a farmer's harvest, are no different from the laws under whose empire are found the cloths of a manufacturer or the flour of a miller; and if artificial things must be governed by the same dispositions as artificial things, what good is it to distinguish them from one another in the science of legislation?

Bentham's second division is that which the laws of all countries have admitted; it classifies things into movables and immovables; but it is not motivated. We will soon see its importance and necessity.

The divisions of things into employable and consumable, into simple and complex, and some others that the English jurist thought he should adopt, are no less useless than that which distinguishes them into natural and artificial. A mirror, a vase, a candlestick, are simple things; a clock, a watch, are complex things; but what is the influence that these differences can exercise on a civil code, on a penal code, or on a code of procedure? The division to which Bentham attached the most importance is that which distinguishes objects into sensible and or insensible; according to him, this division, with which the Romanists did not concern themselves, is worth all the others. I cannot share this opinion; the distinction in question here is no less useless in a treatise on legislation than most of those of which I have previously spoken.

The English have thought that they should repress, by police penalties, the gratuitous cruelties exercised on certain animals, and particularly on domestic animals. The dispositions they have taken in this regard are very wise, and should be adopted everywhere; for nowhere should acts of cruelty be tolerated, especially with regard to the animals that render us the greatest services, and which, because of that, are constantly exposed to the brutality of men.

But it is not enough, I have already observed, that a thing be the object of a special law, for it to be good to make a separate class of it in a general code. Let us admit that a law represses the gratuitous cruelties exercised on certain animals; this repression will doubtless require a small number of dispositions in a police code; but the circumstance of the sensibility or insensibility of things will be without influence on the other parts of the legislation. To be convinced of this, it is enough to survey the dispositions of the diverse codes that exist among us; not only does one not feel the necessity of such a division, but it is impossible to find a single case where it would be good to make use of it. It is all the less admissible as there is a multitude of sensible beings that it would be ridiculous to place under the protection of the laws.

Several jurists had divided the things that are the object of legislation into corporeal properties and incorporeal properties. M. Toulier adopts this division as the best; he considers it the most general, the most exact, the most proper to make known the true nature of things. This opinion seems to me ill-founded: there is, it seems to me, little utility in putting in one class all things or all properties; and in putting in another, rights and obligations. This classification exercises no influence on the ensemble of the laws, and consequently it is at least useless.

One must not lose sight, in effect, that the principal object of any division is to simplify the work of the mind, or to give more concision to language, by designating a great number of things with the aid of a single word; it is thus, for example, that by means of the word immovables one designates woods, fields, meadows, vines, houses, and many other things, and that by means of the word movables one designates a still greater number of things. But, when one makes useless divisions, one does not make ideas clearer; on the contrary, one obscures them; instead of simplifying the work of the mind, one complicates it; one makes it more difficult. All useless division must therefore be rejected.

I have already observed that there are two ways of considering things: in themselves, and abstracting from the persons to whom they belong, and in the relationships they have with those who possess them.

When one considers them in themselves, and by the qualities inherent in their nature, the simplest and most natural classification, that whose influence is felt in almost all parts of legislation, is that which the authors of the Civil Code have adopted, that which ranges all properties and all goods under the denominations of movables and immovables.

These denominations are all the better chosen as they indicate the principal differences that exist between things, and as they thus justify, at least in part, the differences in the rules to which they are subjected. One designates, in effect, by the word movables, all things that are mobile by their nature, or that one can transport from one place to another without degrading them. One understands, on the contrary, by the word immovables, all things that, by their nature, are immobile and that one could not move without destroying them or at least making them undergo considerable degradations. The differences that exist between these two kinds of goods are very numerous, and their influence is felt on the principal branches of legislation; thus this classification is admitted by all polished nations, and it exercises everywhere almost the same influence.

Here are the principal points on which these two kinds of goods differ, and which have required for the ones, dispositions or rules that were not believed necessary for the others.

Movables, as the word indicates, can be easily moved without degradation; immovables, as the word again indicates, cannot be moved.

In general, movables of the same species resemble each other, and can be distinguished from one another with difficulty; immovables, on the contrary, always occupying the same place, and having determined limits, can never be confused, even with those that are of the same species.

Movables are very varied in their species, their number is in a way incalculable; immovables are on the contrary very little varied in their species; they are parcels of land or buildings. Movable goods are produced and consumed with more or less rapidity; it is, on the contrary, of the nature of immovables to be durable, and in a way indestructible.

Most movable goods subjected to the action of human industry undergo continual transformations; immovables can receive some modifications, but their identity can always be ascertained.

Movables pass rapidly from one hand to another; this rapid circulation is an essential condition of the existence of society; immovables, on the contrary, remain for a long time in the same hands. Movables can be easily taken, stolen, hidden, without it being possible to find them again, or to recognize them if they are found; immovables, on the contrary, are not susceptible to theft; one can steal or falsify their titles, but the thing always remains in evidence.

These numerous differences are inherent in the nature of things; they are independent of human wills. Now, it is enough that they exist by themselves, and that it not be in the power of men to make them disappear, for their influence to be felt on the principal branches of legislation. Their existence being in the nature of things, they have, in legislation, consequences that nations are obliged to accept, as they are held to submit to the laws of gravitation.

Thus, we must remark that this distinction of goods into movables and immovables is found in the laws of all polished nations, and that the differences that exist between the ones and the others are followed everywhere by almost the same consequences. The denominations are not, it is true, the same in all countries; the English, for example, call personal property what we call movable goods, and real property what we call immovable goods; but the difference is only in the terms, it is not in the classification.

I have said that the differences that exist, by the nature of things, between movables and immovables, exercise a certain influence on the principal branches of legislation; if it is a matter, in effect, of minority, interdiction, marriage, divorce, sale, exchange, lease, pledge, mortgage, procedure, jurisdiction, seizure, possession, prescription, immovables are subjected, on a great number of points, to rules that are not applicable to movable goods, and the latter, on the other hand, are subjected to dispositions that do not apply to immovables.

It would be easy for me to show that the differences found in the laws are necessary consequences of the differences that exist in the nature of things; but this demonstration would lead us too far, for it would require the examination of a considerable part of our civil laws, our laws of procedure, and even our political laws; this examination, moreover, would be foreign to the nature of this work.

The Civil Code, after having declared that all goods are movable or immovable, adds that goods are immovable, either by their nature, or by their destination, or by the object to which they apply. It places in the rank of immovables by their nature, parcels of land and buildings, windmills or watermills fixed on pillars and forming part of the building; harvests pending by the roots, and the fruits of trees not yet gathered, the ordinary cuts of coppice woods or of high forests placed under regulated cuts, as long as the trees have not been felled. The pipes serving for the conduct of water in a house or other heritage are considered as forming part of the objects to which they are attached, and are consequently placed in the class of immovables.

There are things that are movable by their nature, and that are subjected by our laws and by those of almost all peoples, to the same dispositions as the immovables to which they are attached. The Civil Code, for example, declares that the animals that the proprietor of the land delivers to the farmer and to the sharecropper, for cultivation, whether estimated or not, are deemed immovables, as long as they remain attached to the land by the effect of the agreement. It disposes moreover that the objects that the proprietor of the land has placed there for the service and exploitation of that same land, are immovables by destination.

One therefore considers as immovables by destination, when they have been placed by the proprietor for the service and exploitation of the land, the animals attached to cultivation, the agricultural utensils, the seeds given to the farmer or sharecropper, the pigeons of the dovecotes, the rabbits of the warrens, the beehives, the fish of the ponds, the presses, boilers, stills, vats, and all the utensils necessary for the exploitation of forges, paper mills, and other factories, the straw, manure, and all the movable effects that the proprietor has attached to the land, to remain there in perpetuity.The proprietor is deemed to have attached movable effects to his estate as a permanent fixture when they are sealed in plaster, lime, or cement, or when they cannot be detached without being fractured or deteriorated, or without breaking or deteriorating the part of the estate to which they are attached. The mirrors of an apartment, paintings, and other ornaments are considered placed as a permanent fixture when the frame to which they are attached forms one body with the woodwork. As for statues, they are considered immovables when they are placed in niches made expressly to receive them, even though they can be removed without fracture or deterioration.

The Civil Code places in the rank of immovables by the object to which they apply, the usufruct of immovable things, servitudes or land services, and actions that tend to reclaim an immovable.

There are peoples who do not subject all movable goods attached to immovables to the laws by which these same immovables are governed. In the canton of Vaud, for example, the Civil Code has been adopted; but it was deemed suitable to suppress the dispositions of article 524, which consider as immovables by destination the objects that the proprietor of an estate has placed there for the service and exploitation of that estate.

It would be difficult to say whether these dispositions were rejected because the wording appeared flawed, or because they appeared bad. It was possible to make some slight reproaches to the wording; one could believe that it was little in conformity with the nature of things to put in the class of immovables, horses, pigeons, and rabbits; but if the expression lacked exactness, nothing was easier than to correct it; it would have been enough to say that, although these diverse objects were movables by their nature, they would be considered as forming part of the immovables to which they were attached.

I must remark here that nothing is more common than to encounter in the laws of almost all peoples what are called legal fictions, that is to say, mendacious suppositions imagined to subject certain things to rules made for different things. It is thus, for example, that after having established certain dispositions for immovables, and different dispositions for movables, one will say that rabbits are deemed immovables, in order to subject them to the rules that govern the estates on which they are placed. Fictions or falsehoods of this kind could be necessary for the Roman jurists, who did not have the power to change laws they found harmful, and whose application they wished to elude; but a legislator has no need to make the facts lie to prescribe what appears to him to be just.

The authors of the Civil Code, instead of dividing immovables into three classes and saying that goods are immovable by their nature, by their destination, or by the object to which they apply, would have done better to leave to each thing its natural denomination, and to declare then in what cases certain movable objects could not be separated from the estates to which they had been attached, or would be governed by the laws made for immovables; but this is only a matter of a flaw in wording, and this flaw is not very dangerous.

A more important question is that of knowing whether it is good that, in certain cases, things that are movable by their nature be considered as forming part of the immovables to which they are attached, and that they be governed by the same laws.

To resolve this question, one must first observe that the dispositions that subject things movable by their nature to the same rules as immovables do not in any way infringe upon the faculty that every person has to enjoy and dispose of his goods as he deems suitable; every proprietor can dispose of his properties whatever their nature, without being stopped by classifications.

The dispositions that consider certain movable objects as forming part of the immovables to which they are attached have only two legal effects; the first is to dispense a proprietor who disposes of his goods from a multitude of explanations to make his will known. He who gives, sells, exchanges, or mortgages an immovable, knows in advance that he is alienating or encumbering, if he does not manifest a contrary will, the objects he has placed there to exploit it. This does not prevent him from being able, in the act of alienation, to divide his property as he deems suitable; to give to one person the land and to another the capitals consecrated to its exploitation.

The second effect of the dispositions that consider certain objects that are movable by their nature as forming part of the estates to which they are attached, is to prevent a person's creditors, in order to obtain their repayment, from having the objects that serve for the exploitation of an estate seized and sold, unless they have the immovable to which they are attached seized and sold at the same time.

The disadvantages that result from such a prohibition are not very considerable; they are reduced to diminishing, relative to some persons, the credit of landowners. When one can obtain payment of a small debt only by means of a seizure of immovables of great value, one lends less willingly than when one has the faculty of having movable goods seized, and of proportioning the seizure to the claim for which one wishes to obtain payment; but the evil that can result from this hardly deserves to be counted, when one compares it to the unfortunate effects that the contrary system would produce.

The importance of any property is always in proportion to its value or the services it can render; everything that diminishes the value therefore destroys a part of the property. Now, when two things have been made for one another, and they are useful only by means of the services they render each other, one cannot separate them without a more or less considerable loss resulting from their separation. If one separated, for example, the pieces that compose the most perfect watch, and if one tried to sell them separately, one would find no one who would want to buy them; they would have no value. It would be the same for the pieces of the most considerable and most precious machines; he who sold separately the diverse parts of which a steam engine or a ship are composed would not obtain a much higher price for them than if he sold raw materials.

It follows from this that one cannot separate things that draw a great part of their value from their union, without needlessly destroying a part of the property; if things that were worth six thousand francs, for example, when they were united, are worth only half this sum when they are separated, it is clear that the separation is equivalent to the gratuitous destruction of a property that would be worth three thousand francs.

It is, doubtless, less difficult to replace the objects necessary for the exploitation of a farm, when one possesses sufficient capital, than the pieces that are missing from a watch; but, in one case as in the other, there is necessarily a destruction of value; to separate the fodder from the animals it is destined to feed; the fertilizers and agricultural implements from the lands they are to fertilize; the pigeons from their dovecote, is to render these things unproductive, it is to diminish their value considerably.

A farm, like any other great industrial establishment, is productive only by means of each of the things that are consecrated to production; it would sometimes suffice to remove one of these things, in certain circumstances, to stop the action of all the others; the seizure of seeds or agricultural implements, or of draft animals, or of fodder, or of fertilizers, could have the effect of paralyzing everything; it would be as if one operated the seizure of one of the wheels of a carriage.

The evil that would follow from it would not be limited to causing the proprietor a considerable loss; it would extend to the farmer and his family, and to a multitude of workers who would be deprived of work and of all means of existence; it would even extend to a more or less numerous part of society, since the products necessary for its conservation would be less considerable.

There were therefore very powerful reasons for considering as forming part of an immovable the movable objects that the proprietor has attached to it, either to make it productive, or to increase its value. Every time doubts arise on the question of knowing whether a thing movable by its nature should be considered as forming part of an immovable, it is enough to examine whether it is or is not necessary to make it fit for the use to which it is destined. The question can be equally resolved by examining the influence that the separation must produce on the value of the two things. If they cannot be separated without a more or less considerable destruction of value resulting for one or the other, it is good that they remain united.

According to the Civil Code, there are two kinds of movables: some are so by their nature; others are so by the determination of the law. We can again observe here that it would have been more reasonable to place in the rank of movables only those things that are mobile by their nature. One could have then declared which things would be governed by the dispositions made for this species of goods.

The Civil Code places in the class of things that are movable by their nature, bodies that can be transported from one place to another, whether they move by themselves, like animals, or whether they can change place only by the effect of an external force, like inanimate bodies. The size or the price of things that are mobile by their nature does not prevent them from being placed in the class of movables. One therefore places there boats, ferries, ships, mills and baths on boats, and generally all factories not fixed by pillars, and not forming part of the house. One also places there materials coming from the demolition of a building, and those that are assembled to construct a new one, as long as they have not been employed by the worker in a construction.

The Civil Code considers as movables, by the determination of the law, the obligations and actions that have for their object sums due or movable effects, the shares or interests in financial, commercial, or industrial companies, with regard to each associate only, and as long as the society lasts; perpetual or life annuities, whether on private individuals, or on the State. Shares or interests in financial, commercial, or industrial companies are considered as movables, even when immovables dependent on these enterprises belong to the companies [^322].

In dividing into two great classes, into movables and immovables, all the things that can fall under the empire of the laws, the authors of the Civil Code could not change the language, and oblige the citizens to give to the terms a sense different from that which they were in the habit of attaching to them. Now, in the ordinary practice of business, one never gives to the word movables a sense as extended as that which it has in the general classification of goods. It was therefore necessary to foresee that this term would have, in a great number of cases, a more restricted sense.

Thus, according to the dispositions of the Civil Code, the word movable used alone, either in a law, or in the dispositions of a person, without other addition or designation, does not include what is the object of a commerce; it does not include either cash, precious stones, active debts, books, medals, instruments of sciences, arts and crafts, body linen, horses, equipages, arms, grains, wines, hays, and other foodstuffs.

The words household furniture include the movables intended for the use and ornament of apartments, such as tapestries, beds, seats, mirrors, clocks, tables, and other objects of this nature; they include, in addition, the paintings, statues, porcelains that form part of the furniture or decoration of an apartment; they do not include the collections of paintings that may be in galleries or particular rooms.

The expression movable goods, those of movable property or movable effects, generally include all that is deemed movable, according to the rules previously established. The sale or gift of a furnished house includes only the household furniture. The sale or gift of a house, with everything found therein, does not include cash, nor active debts and other rights whose titles are deposited there. It includes all other movable effects, whatever their nature.

After having divided things by considering them in their nature, they have been divided by considering them in their relationships with the diverse classes of persons to whom they belong. A class has been made, for example, of the goods that are the property of a nation; another of those that belong to cities, to communes; another of those that belong to private individuals or to families. The basis for making these distinctions was that the properties thus divided are not subject to the same rules. This motive should have pushed the division further; it should have led to distinguishing the properties that belong to minors from those that belong to majors; those that belong to women placed under marital power from those that belong to entirely free persons.

A great part of the goods that belong to a nation or a commune are of the same nature as those that belong to private individuals; the properties of a minor do not differ in any way, by their nature, from the properties of a major. If, on some points, all are not subject to the same legislative dispositions, that is not due to the nature of things; it is due to the differences that exist in the capacity of persons. It is therefore only after having treated of persons that one can have to concern oneself with it.

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Notes

[^322]: Any rent established in perpetuity for the price of the sale of an immovable, or as a condition of the transfer for consideration or gratuitously of an immovable property, is essentially redeemable. It is nevertheless permitted for the creditor to regulate the clauses and conditions of the redemption. He is also permitted to stipulate that the rent cannot be reimbursed to him until after a certain term, which can never exceed thirty years: any contrary stipulation is null. Civil Code, art. 530.