PROPRIETÀ

PROPERTY. – A juridical term indicating the relationship of eminent sovereignty or dominion which a person (individual or collective, private or public) acquires, by virtue of legitimate titles, over a determined thing, so as to be able to dispose of it freely and exclusively for their own good, coordinated with the common good.

It is distinguished from simple possession (q.v.), which expresses only the fact of the current availability of the object; and from usufruct, which grants the right merely to the enjoyment of the fruits of a determined thing, excluding ownership of the thing itself.

OUTLINE:

I. Notion and general principles

II. Individualistic conception of the right of property

III. Collective conception

IV. Personalistic conception and the doctrine of the Church

V. The right of property with particular reference to the Italian legal system

VI. Acquisition

VII. Subject

VIII. Object

IX. Limitations

X. Cessation

XI. Protection

XII. Canon law

XIII. The right of property in eschatology.

I. NOTION AND GENERAL PRINCIPLES

The term property is often substituted by the term dominion, whose use is indeed earlier (alongside mancipium) in Roman law. The right of property is in fact a species of the right of dominion which, insofar as it is a right of a person over other persons, is *ius iurisdictionis*, while if it is a right of a person over a thing it takes the name of *ius proprietatis*. A fundamental principle of Christian thought is that no person can be reduced to a thing, i.e., to a mere instrument of another person, and therefore cannot be the object of the right of property (cf. SCHAIVTÜ).

As dominion, the right of property grants a faculty over the thing itself that is in itself indeterminate and indefinable, its concrete determination depending on the changing economic and social circumstances: hence it appears historically in various ways limited and circumscribed according to its insertion in a more or less organized social complex. Hence the necessity of a property regime in which the right of property is concretized according to the infinitely variable economic and social movement. According to the principle of the elasticity of dominion, the right of property expands or contracts according to the greater or lesser comprehension it receives from concurrent private and public rights. This is expressed in the definitions of the right of property deriving from Roman juridical tradition: *ius ac potestas in re propria tum utendi tum abutendi quatenus iure civili permittitur*; *ius de re corporali perfecte disponendi nisi lex prohibeat*. Others prefer the definition “the most general lordship over a thing, whether in act or at least in potency” (Bonfante).

These definitions are, however, incomplete, because they do not indicate the final cause of property, which, having no absolute value in itself but being merely instrumental for the perfection of the individual and social human being, must be defined only in the light of this finality.

Contemporary sociology concerns itself principally with the property regime in order to determine the social-economic laws of the various forms of property in successive phases of culture and in different historical periods. In this analysis, evolutionary and sociological positivism excludes any justification for the natural right of property, considering it as a mere product of egoistic instincts or social pressures; hence its preoccupation with studying above all primitive social regimes, with the preconceived intention of demonstrating the absence in them of any form of private appropriation (cf. E. D. Laveleye, *De la propriété et de ses formes primitives*, 4th ed., Paris 1891). The followers of historical and dialectical materialism (q.v.) make the historical development of the property regime the very essence of social becoming founded on class struggle: from a primitive communism due to a lack of economic needs, humanity tends toward the communism of the superabundance of goods, realized by a perfectly organized society (cf. F. Engels, *Der Ursprung der Familie, des Privateigentums und des Staats*, Zurich 1884). But an objective study of cultural and historical phases, while showing a continuous variability of the property regime according to the diversity of times and places, also reveals the constant fact of appropriation as an inviolable and exclusive right, claimed by individuals, families, and groups, and not only for economic reasons, but above all as an assurance of free activity and free development and as an affirmation of power. Even in primitive economies, private property is always found, surrounded by an intrinsically sacred respect (cf. R. Lowie, *Primitive Society*, New York 1920; M. Mauss, *Traité d'ethnographie*, Paris 1947 [q.V. infra, n. V]). Three types of property have constantly asserted themselves: the familial, closely tied to the progress of individuals; the public, concerning the life of the entire social group both internally and in its relations with other groups; and the religious, directed toward the needs of worship. If in certain cultural forms (the patriarchal period) the subject of the three fundamental appropriations may materially have been found united in the same person, formally the three types of appropriation have always remained distinct, as an expression of the natural exigencies toward the family, the State, and religion, which represent the pillars of human sociality (cf. L. Sturzo, *La società, sua natura e sue leggi*, Bergamo 1949). The perennial struggles that appropriation has provoked in history indicate the dual value of power and freedom that the right of property has in social life, as an instrument of liberation and affirmation of one’s own personality, of which historical awareness has been taken.

The problem, therefore, of the right of property cannot be resolved solely in the light of economic considerations, but according to the value attributed to individuals, society, and religion. There thus come to be three fundamental philosophical conceptions of the right of property: the individualistic, the collectivistic, and the personalistic, according to whether one conceives of man as essentially an atomistic individual, or as entirely subjected to social reality, or finally as a person realizing in social communion his human value.

The definitions of property rights given by the glossators and commentators of Roman law (Bartolo, Hotman), in light of the absoluteness and perpetuity of ownership and the necessary limitations arising from social life, were taken up by jurists who addressed the question of the foundation and justification of private property, particularly in opposition to monarchical absolutism. By natural law, all things are at the disposal of all and each (ius omnium in omnibus); but the social contract, giving rise to social life, creates the need for the private appropriation of certain goods, based on occupation or mutual agreement (Grotius, *De iure pacis et belli*, II, ch. 2), and at the same time the necessity of civil law to guarantee II.
With Locke, the liberal conception of individual property begins. The right of property is by him intimately connected with that of individual liberty, which, demanding the right to labor as an expression of free self-disposal, also establishes the right to absolute appropriation of the fruits of one’s activity. Material goods, which in themselves are at the disposal of all, are appropriated by the individual only insofar as he invests them with his labor and thus with his personality (*Two Treatises on Government*, London 1690, II, ch. 5), giving them that character of absolute inviolability which they possess by nature. Hence, property is to be understood as that which men have both over their persons and over their goods (ibid., ch. 2). Under the influence of the Enlightenment, property is regarded as an integral element in the liberal triumph of fundamental human rights: liberty, fraternity, equality. But the utilitarian individualism underlying it renders the principle of fraternity vain and ensures that the principle of equality does not entail state intervention to secure socio-economic equity, but merely a political-legal guarantee of free appropriation and disposal of what has been appropriated: hence free economic competition and conservatism against the propertyless classes. The Napoleonic Code defines property as: *le droit de jouir et de disposer des choses de la manière la plus absolue* (art. 544). It even goes so far as to admit the faculty of destroying what is one’s own, without regard for the harm done to the community (J. Pothier, *Traité de la propriété*, Paris 1831, p. 4).

Under the aegis of liberal codes, economic liberalism has given maximum development to present-day capitalism, characterized by the exploitation of capital holders over workers and the violent economic struggle leading to the destruction of small and medium property in favor of a few monopolists who, under the guise of anonymity, control the entire world economy. The result has been an economic order that has provoked the gravest reactions in the political-social sphere.

The voice of the Church has strongly condemned the individualistic conception for its anti-social nature. Private property must be defended as a requirement of nature; but it has a social structure and function that excludes any monopolism and imposes such a distribution of the world’s means of production and such remuneration of workers as will facilitate access to property for all, as a guarantee of the free social development of individuals, families, free associations, states, of the entire human community, and of the Church. Free initiative is fundamental; and the private property that derives from it is necessary by nature. But equally necessary by nature is that all economic activity be guided by right reason, and thus by morality and by state intervention, as a direction toward the common good. The state cannot abolish free initiative and private property; but it must ensure that all are truly free and that all can enjoy economic goods and have access to property, as an effective guarantee, willed by nature, for the fullness of their human life.

(cf. Pius XI, *Quadragesimo Anno*, nn. 19, 25, 37, 41, 42, 43; Pius XII, Christmas Radio Message, 1941, n. 6; Radio Message, 10 Sept. 1944, n. 11).

III. COLLECTIVISTIC CONCEPTION

This calls for the destruction of private property in favor of public collective property. Historically, it has first appeared as negative communism, and only recently as positive communism.

Negative communism derives from an ethical-ascetic attitude that imposes contempt for material goods in favor of and in service to higher goods: in service to the ideal unity of the state, representing the supreme human good, says Platonism (Plato, *Republic*, 462 C); in service to universal brotherhood realizing in charity the supreme divine good, says Christian asceticism of the Fathers (St. Basil, St. John Chrysostom, St. Ambrose, St. Augustine). While Platonic conceptions of the ideal city, taken up again in the 17th century, remained on the plane of pure utopia, Christian asceticism sought partial concrete applications in some primitive communities of the faithful (Jerusalem, Alexandria), in monasteries, in mendicant orders, and in any case served to orient minds toward a communal sharing in the use of their goods. Some medieval sects (Albigensians, Cathars, Moravian Brethren, etc.) not only denied the right of ecclesiastical property but even arrived at apocalyptic forms of communism, giving rise to anti-social movements against the very institution of family and state.

Positive communism arose in the 19th century, determined by a humanistic-materialistic conception that makes economic goods the fundamental value of man, and made possible by the modern conception of the totalitarian state. It presents itself under two contrasting ideologies, sharing in common a reaction against individualism (v.) and private capitalism and the complete absorption of private forces into the life of the whole state. To the economic totalitarianism of capitalism it opposes a state totalitarianism understood either as political power or as a unitary economic enterprise.

The State, as a totalitarian political power, derives from the same liberal conception of the absolute State (

V. ROUSSEAU, J

J.), but above all from the Hegelian doctrine of the State as the highest expression of the objective spirit and from vitalistic irrationalism, which makes force or power the category for the affirmation of the nation or race. In order to achieve its perfect internal autonomy and its imperialism abroad, it intends to make the entire economy of the nation a unitary and perfectly controlled instrument, aimed at maximum production, especially for military strengthening. Private property is in fact abolished, even if its forms are apparently maintained: it is no longer capable of fulfilling its fundamental purpose, namely, of allowing persons, families, and associated groups their free human development and the attainment of their own natural end. The Church has repeatedly condemned this total subjugation of the human person and all his demands for religious, familial, moral, cultural, and civil freedom, proclaiming that only effective private property can safeguard both the true good of persons and of States, which are not ends in themselves but instruments for the attainment of human civilization through the peaceful collaboration of citizens and peoples (Pius XI, Ubi arcano, 1922; Quadragesimo anno, 1931; Charitate Christi, 1932; Mit brennender Sorge, 1937; Pius XII, Summi Pontificatus, 1939; Alloc. natal., 1939; Radiomessage, 10 June 1941; Radiom. natal. 1941 and 1942; Radiom. 10 Sept. 1944; Radiom. natal. 1944).

The State, as a unitary and totalitarian economic enterprise, makes politics an instrument for organizing an economy of production capable of ensuring maximum economic well-being for all according to their actual labor, and thus securing the greatest happiness (state socialism). Underlying this is a demand for social justice, a futuristic vision of perfect earthly happiness; but also a materialism that makes economic well-being the highest good, and the absolute subordination of the individual to the social whole. Babeuf, Morelly (v.), invokes communism during the French Revolution in the name of the liberal principle of equality: in the Manifeste des Égaux, drawn up by Buonarroti (cf. G. Sencier, Le Babouvisme après Babeuf, Paris 1912, p. 21), it is demanded that the State be the sole owner and director of economic activity, with citizens having no freedom of choice in work or free disposal of the fruits of their labor. Saint-Simon (v.) seeks to abolish all social distinctions not based on labor and technical ability: the State must become an economic enterprise directed by technicians for the maximum well-being of the collectivity. The socialists see property as an instrument of labor; unearned income is unjust; the inheritance of goods must therefore be abolished; the State must be the distributor of property, i.e., of the means of production, to those capable of yielding the greatest profit.

A concurrent conception of associative socialism developed, claiming property for private collectivities of workers (Owen, Fourier, Proudhon). Proudhon (Qu'est-ce que la propriété, Paris 1847) defines the current form of individual property as theft. But this associationalism, to become a reality, increasingly orients itself toward positive state intervention, even if in words it condemns state capitalism (cf. E. Vandervelde, Le socialisme contre l'État, Paris 1918, p. 167) and seeks to constitute “public corporations under state control” (id., Le collectivisme et l'évolution industrielle, 1912, p. 12).

Marx (v.) initiated the organic formulation of totalitarian collectivism, later developed to its extreme by Russian Bolshevism (v.) through Lenin (v.) and Stalin. With the doctrine of surplus value, every legitimacy of capital is destroyed, and labor is considered the sole source of the value of produced goods: yet it is not the individual laborer who should be the owner of the means of production or of what is produced, but the collectivity of workers. With the doctrine of class struggle framed within historical and dialectical materialism, the history of the property regime is seen as a history of oppression and power by the owning class over the working class: all current civilization and all juridical, religious, and cultural expressions of present society derive from capitalist property that exploits the proletariat. The revolution of the proletariat, leading to the inevitable disintegration of the capitalist world, will bring the proletarian class to political power in the State, and through it destroy all other classes and the ideological superstructures deriving from their economic supremacy, seize all means of production, compel all to labor according to their abilities, and give to each a remuneration corresponding to their actual contribution to collective production. From this dictatorship of the proletariat there should arise a State no longer a political power but an immense and totalitarian economic enterprise directed toward the material well-being of all. Yet it is evident that to achieve this, the dictatorship of the proletariat must extend to all nations: hence Stalin’s doctrine of the leading State for world revolution. The natural value of private property has compelled even Stalin to concede a certain right to individual property, excluding however the means of production and regulating it in such a way as to deprive it of any meaning as a guarantee of individual and social freedom.

Leo XIII, in Rerum Novarum, condemns the socialistic conception as inept, unjust, and subversive: it indeed precludes workers from the free disposal of the fruits of their labor and thus the possibility of improving their living conditions (n. 4). The right to private property is natural to the individual as a rational being who, through his care, must provide for himself and his own (n. 5-6); it is an expression of the human person itself, and the universal consent of men confirms it (n. 7-8). Without the right to private property and the free transmission of goods, the family institution—antecedent by nature to the State—is destroyed (n. 9-11). Collectivism subverts the social order and reduces all citizens to total servitude (n. 12).

Pius XI, in Quadragesimo Anno and Divini Redemptoris, highlights the actual destruction of fundamental human values brought about by communist materialism and Bolshevism; and he also warns against all moderate and reformist socialist tendencies, on account of their principles and aims contrary to a true conception of the human person and of society.

Pius XII confirms these condemnations: “Social revolution boasts of elevating the working class to power; it is but empty words and a mere semblance of an impossible reality. In fact, you see that the working people remain bound, yoked, and enslaved to the force of state capitalism; which oppresses and subjects all, no less the family than consciences, and transforms workers into a gigantic labor machine” (Discourse, 13 June 1943, n. 6).

IV. Personalist conception and the doctrine of the Church

The Church defends the natural necessity of private property, but considers it as having a structural and functional social value. It is based on the distinction between the right to property and the right to its use: the use of material goods is by nature open to all men; yet this cannot be concretely realized without private property, which is the source of labor and wealth; the distribution of private property and its use must conduce to the maximum individual and social well-being, with a view to the enhancement of the human person in his communal insertion.

Aristotle, opposing both individualism and collectivism, asserts that “it is preferable to have a system of private property integrated with common use” (Politics, I, II, 1263 a), so that “property tends to become common even while remaining individual” (ibid.). Private property is indeed a requirement of nature, since “love of self is not the effect of caprice, but of nature” (ibid.). Interest and deliberation are the two fundamental motives that nature has placed in man to render him capable of attaining to the social life and to the enjoyment of society; appropriation and communication mutually integrate one another for the human perfection achieved through virtue. “Each person having property for himself, shares with friends the enjoyment of it, and in turn enjoys theirs” (ibid.). The State, which derives its self-sufficiency from the harmonious collaboration of the appropriative and social activities of its citizens, must intervene through moral education and sound laws, designed to prevent the selfishness of those not yet sufficiently educated.

Christianity views private property in the light of its doctrine of divine Providence and universal fraternal charity. The use of material goods is potentially at the disposal of all men, who, by employing them for their necessities and progress, elevate the universality of material things to render perfect glory to God. But this potential common use cannot become actual without the laborious work of individuals, who appropriate material goods and transform them into wealth for their own good and that of all humanity. From this there necessarily arise social inequalities, which only true charity can equalize, transforming the powerful owner into a responsible steward who administers and increases the goods entrusted to him by God, in order to carry out divine Providence for his own good and that of his neighbor (St. Basil, Homily VI: PG 31, 276).

Hence the splendid definition given by St. Thomas of private property: potestas procurandi et dispensandi (Sum. Theol., 2a-2ae, q. 66, a. 2). He adduces three reasons to confirm the exigency and natural value of the right to private property: “first, because each man is more solicitous to procure something that is proper to himself alone...; secondly, because human affairs are ordinarily managed better...; thirdly, because thereby the peaceful condition of men is better preserved” (ibid.).

Thus the social structure and function of individual property, which becomes an instrumental and providential means of wealth for the good of the individual and of the community: “in this respect man ought not to have external things as his own, but as common, so that he may readily share them in the need of others” (ibid.). The State must intervene with its laws to establish the concrete regime of private property, to sanction legitimate titles of appropriation, excluding every mode of acquisition that is illicit or contrary to nature (v. usury), and directing all economic activity to the common good. But it is moral virtue that ensures the common use of private property: first of all commutative justice, which achieves not merely legal justice but ethical justice; then general (social) justice, which, perfected by true friendship and above all by charity, enables the person, through frugality, to transform superfluous goods through liberality and magnificence into generous providence for the social good.

The natural necessity of private property and its social structure and function have been profoundly developed by contemporary Christian thought, with the aim of establishing a Christian social order in conformity with the personal and communal value of man, against the destructive egoisms of economic liberalism and the suffocating slavery of totalitarian collectivism.

In Rerum Novarum Leo XIII vindicates the natural necessity of private property and the inviolability of its right, as essential to the dignity of the person, the stability of the family, and the very welfare and social order; and he affirms that social justice is achieved not by the destruction of private property, but by the appropriate intervention in economic life of the educative and charitable action of the Church, the wise legislation and coordination of the State for the common good, and the free development and strengthening of professional associations.

In Quadragesimo Anno Pius XI deepens the problem of property and labor in the light of the new economic and state arrangements determined by private capitalism and state economic and political totalitarianism. He defends as the constant doctrine of the Church a “duplex ratio dominii, quam individualem vocant et socialem, prout singulos respicit vel ad bonum spectat commune” (ibid.). The right to private property is willed by nature, and public authority cannot abolish or practically frustrate it without violating the rights of persons, families, and free associations, and thus the very foundations of social life. Nevertheless, the concrete regime of property can vary according to times and circumstances; and it is the task of positive laws to establish such an order of private property that, while ensuring the maximum development of individuals, families, and free associations, is coordinated to the greatest good of all. But more than by state intervention, the common use of private property can be ensured only by moral virtues according to the Thomistic doctrine. The natural titles for the acquisition of property are the occupatio rei nullius and industry exercised in one’s own name. But the grave contemporary problem concerns the property of goods produced by the cooperation of capital employed for profit through the labor of others. Unjust are the claims of exclusive vindication both of capitalists (individualism) and of workers (collectivism): economic production is a social fruit of various elements that collaborate together not only for their own good but also for the good of the entire community. Just therefore is the wage, in which labor is not considered as a commodity nor as the sole cause of appropriation; yet it must be such as to express the personal and social dignity of the worker and to enable him to establish and develop a family, improve his condition, and finally form savings that allow him to acquire property.

This access of all to property, against the monopolistic destruction of small and medium properties and against state capitalism, is constantly defended in the discourses of Pius XII as the true social guarantee of the individual, familial, social, and religious freedom of the human person. Property is considered as “the vital space of the family” (Discourse, 1 June 1941, no. 13), as a necessary instrument for the elevation of the proletariat and social peace (Discourse, 1 Sept. 1944, nos. 7-14). The State must intervene not so much through nationalizations, which can be permitted only in cases of evident public necessity (Discourse, 11 March 1945), but by fostering an equitable distribution of property (Discourse, 1 June 1941, no. 10), especially landed property (ibid., no. 14), effective collaboration between employers and workers (ibid., no. 11), and the development of crafts and small and medium industries (Discourse, 13 June 1943, nos. 8-9). But Pius XII places the problem of access to property above all on the international plane (Christmas Message, 1942, no. 26); and indeed the present economic despotisms and state totalitarianisms impede the life of poorer peoples: only a free access to the sources of raw materials and free immigration to lands in need of human labor can enable all to work and all to achieve that property in goods which ensures the peace of peoples in the free development of the human person and of his values (Discourse, 10 June 1941, no. 15).

The problem of property and access to property by the labor force finds, in contemporary economics, its primary focus in the proper constitution of the enterprise, where capital and labor come together for the production of wealth and upon which all social prosperity depends. Pius XII, reiterating the teaching of *Quadragesimo Anno*, states: “A danger arises when wage earners belonging to an enterprise are claimed to have the right of economic management... Now, neither the nature of the labor contract nor the nature of the enterprise necessarily entails such a right in and of itself” (Address, 3 June 1950). “But this does not prevent employers from allowing the worker to participate in some form and measure, nor does it hinder the State from conferring upon labor the faculty of making its voice heard in business management in certain enterprises and under certain conditions where the rapacity of anonymous capital left to itself manifestly harms the community” (Letter from the Secretariat of State of His Holiness to the President of the XXV Social Week, Turin, September 1952). Above all, the Supreme Pontiff insists, “the personal dignity of the worker, far from being lost in the general structure of the enterprise itself, should lead it to greater efficiency, not only materially but also—and especially—by procuring for it the values of a true community” (Address, 31 January 1952). These personalist and communal characteristics of the enterprise, in its various forms, guide Christian thought in establishing that “new ordering of the productive forces of the people” which the Holy Father had hoped for in his address of 11 March 1945 (cf. Conclusions of the XXV Social Week, Turin, September 1952).

V. THE RIGHT OF PROPERTY WITH PARTICULAR REFERENCE TO ITALIAN LAW

Without defining property, the Italian Civil Code (art. 832) establishes that “the owner has the right to enjoy and dispose of property fully and exclusively, within the limits and with observance of the obligations established by the legal order.”

On the basis of this article and the entire body of norms governing the subject, it may be affirmed that the right of property is, first, autonomous, that is, considered in its natural unity and as recognized indistinctly by all (save for errors in determining who should be its subject), it is not conceived as a function or dependent upon others, but as the immediate dominion of the person over the good that forms its object. Secondly, it is exclusive (save for the limits imposed by law or voluntarily assumed), inasmuch as the subject of the right can assert the property that pertains to him against anyone and upon all, and precisely because it is full dominion, it can be, by the one who holds it, limited without restriction not only in its intrinsic attributes (inasmuch as it itself entails rights) but also in duration and in the active sharing of others in the very substantial title of property. Finally, given the nature of property, which often pertains to goods that by natural and therefore intrinsic right already have their own destination, the right itself, while remaining substantially within the reflections of autonomy and the immediate relation of the subject to the goods that constitute its object, may legitimately receive from positive law (which is the guardian and interpreter of natural law) limitations of varying extent.

From this it follows in practice that the right of property, although it is the preeminent real right, can nonetheless be so reduced as to be condensed into the title alone. Indeed, the distinction between full property or perfect dominion (comprising not only the psychic-moral relation of the person to the goods possessed but also their utility) and bare property or naked ownership, which entails only the title without any actual utility for the holder, is well known. It is evident, however, that even in this case property only apparently reduces to the title alone: not only because the extreme limits have been willed by the holder (who thus exercised his full power in disposing of his goods as he wished), but also because at the moment when the rights of others cease (by prior agreement or by subsequent interventions permitted or spontaneous), property naturally returns to him who remained its holder. Thus there arises another element of property, which is that of internal perpetuity. This is also why property is imprescriptible passively, that is, it does not cease to belong to the subject merely through non-use of the object that substantiates it; it can only be lost through usucaption by others according to the moral and legal norms proper to the case.

VI. ACQUISITION

Property is acquired by natural persons or by private and public moral entities through juridical factors of natural law or recognized by law or traditionally admitted by usage and custom. The titles that effect acquisition are original or derivative. Although traditional doctrine, from remote antiquity, has recognized the form of original title exclusively in the occupation (v.) of goods belonging to no one and taken with the intention of becoming their owner (and in the strictest sense this alone is an original title), nevertheless laws, due to the great affinity in many effects existing between this title and others that in themselves would not be original, treat as original also the finding, that is, the discovery of another’s things (art. 929, 932); accession, both natural, as in alluvions (art. 941), avulsions (art. 944), islands and union of land in a river (art. 945), in a riverbed left dry by waters (art. 942) and abandoned (art. 946), and artificial, as in sowing, planting, constructions (art. 934-38); specification (art. 940), union (art. 939), commingling (ibid.), and usucaption (art. 1158-67).

In reference to occupation, originally a principal mode of acquiring property—especially landed immovable property—it suffices to recall that today it has almost entirely lost its force and importance, given, above all in certain regions, the perfect and total distribution of land assets; however, true occupation still exists in the case of volatile, terrestrial, and aquatic animals that are the object of hunting and fishing (arts. 943–26), and especially in treasure, although this constitutes a distinct and special mode of acquiring property (art. 932).

Modes of acquisition that are entirely derivative, that is, arising from the spontaneous will of the interested parties, are instead all forms of contracts; mixed modes, deriving from both natural law and the will of persons, are successions upon death; compulsory modes, by operation of law, are all other ways established by the legislator and distinct from the preceding ones, whether with or against the will of the subject.

VII. SUBJECT

The subject of property is exclusively the human person, that is, anyone who is at least fundamentally capable of comprehending the utility of goods in all their aspects and of willing to employ them as means to attain certain ends. Therefore, not even madmen or children incapable of present discernment are excluded from property. Legal persons are also subjects of property.

In distinguishing subjects in concreto, however, one must guard against the danger of confusing individual property with private property and collective property with public property, even if in certain respects they may coincide. The distinction between private and public property concerns exclusively the fact that the goods forming their object belong respectively to private persons (even if juridical) or to public persons; whereas the distinction between individual and collective property denotes that the goods forming their object belong respectively to individuals in the first case and to the collectivity as such in the second. Collective property symbolizes and almost naturally culminates in its extremes in collectivism or communism, where no one is in concreto effectively the owner of one or more objects; whereas public property has distinct and determined subjects and objects without any communion of goods.

Nevertheless, a certain resemblance—albeit very limited and always voluntary—with collective property (but not public property) is found everywhere in the institution of the communion of goods (that is, the property of certain goods belonging to several persons in common). In this communion, also called co-ownership or condominium, each participant has a right to the whole property, though limited by the participation of others; yet it is characteristic of the institution that the goods are attributed to the individual co-owners not pro diviso, that is, partially, but in their entirety (arts. 1100–39).

VIII. OBJECT

Every thing that can in any way be useful may constitute the object of property. Inasmuch as they bring such utility, the things that form the object of property are better termed goods (art. 810).

IX. LIMITATIONS

It has already been noted that the right of property, while in principle entailing the fullest extent of enjoyment and disposition of the goods that constitute it, does not exclude the possibility of self-imposed limitations by the owner through more or less extensive but always voluntary agreements; by these, part or all of the utility of the thing is ceded, though in every case the title itself is excluded. Traditional examples of such limitations include the granting of use (art. 1021), usufruct (arts. 98–102), habitation (art. 1023), predial servitudes (arts. 1027–99), emphyteusis (arts. 957–77), and the like, made in favor of others over one’s own goods.

There are, however, other limitations that may be termed legal, inasmuch as they are imposed by public authority for the attainment of the common good. These are contained in various legislations and are more or less extensive and more or less burdensome. The Italian legislation provides for the following: the owner may not perform acts of emulation, that is, use his goods in a way that, without any benefit to himself, harms others when they have been so used (art. 833); all citizens may be expropriated in the higher interest of the common good of certain goods (art. 834); citizens are likewise subject to temporary requisitions of their goods in cases of urgent and grave military or civil necessity (art. 835); certain goods, habitually or in extraordinary contingencies, may be subjected to compulsory pooling (art. 837); objects of private property that have artistic, historical, archaeological, or ethnographic interest are subject to various limitations imposed by special laws (art. 839); urban immovable properties in many centers are subject to detailed regulations under town-planning schemes (art. 860); the same applies to the construction and preservation of buildings in areas declared seismic (art. 872); other limitations concern distances in constructions (art. 873), in boundary walls or otherwise (arts. 874–76), in adjoining constructions (art. 877), in enclosure walls (art. 878), and other minor ones covered by arts. 883–89; finally, various limitations pertain to lights and views (arts. 900–907), dripping water (art. 908), and waters (arts. 909–21).

A case of particular interest is that of limitations not on the rights of property but on the right to property or, more precisely, on its quantitative extent. It is relatively easy to understand the right of the State to intervene and limit the absolute freedom of disposition that the owner has in principle over his goods when these, especially if consisting of land that could easily be devoted to rational cultivation with consequent greater profit for the common and social good, are abandoned or otherwise not exploited as they might be. More difficult, however, may seem the question whether it is lawful for the State to impose limits on the extent of property, that is, to establish by law how much immovable property, generally land, a citizen may hold, and whether it is lawful for the State to expropriate those goods that exceed the established limits. In fact, in some nations both kinds of limitation on the right of property have been imposed, for example in Italy where the principles have entered even the Constitution itself (arts. 43–44) and are already being implemented through special laws enacted with regard to large estates.

X. CESSATION

The factors that bring about or cause the loss of the right of property are various, and not all are due solely to the will of the owner. In the first place, property is lost through juridical acts established for that purpose, either naturally or by positive law, principally sale, exchange, gift, and testament. In the second place, it is lost through juridical abandonment of the object in property, that is, dereliction, duly notified and deliberately effected with the intent of definitively severing the moral-juridical bond uniting the object to the person, even if no one in fact succeeds to the right of property. In the third place, it is lost through acquisitive prescription or usucapion by third parties operating independently and in opposition to the will of the previous owner; in this case, however, the right of property is lost by the previous owner only when it is acquired by the new titleholder. Finally, it is lost through measures of public authority, that is, through expropriation for the purpose of satisfying the creditors of an insolvent debtor or of effectuating a work of public interest.

XI. PROTECTION

The right of ownership is protected by three actions. The first is the action for recovery; through it the owner may reclaim from anyone who possesses or holds the thing, even if after the claim is made the latter has, by his own act, ceased to possess or hold it, the thing that constitutes the object of his ownership. The action for recovery is imprescriptible, except, of course, in the case of usucapion (art. 948). The second is the action for the regulation of boundaries. When the boundary between two estates is uncertain, each of the owners may request that it be established in court; this will take into account every kind of legitimate proof or will adhere to the boundary delineated by cadastral maps (art. 950). The third is the so-called negative action. Through it the owner may act to have declared the non-existence of rights asserted by others over the thing, simultaneously requesting that any disturbances or molestations of any kind cease, if they exist (art. 949). The Code adds the action for the placement of boundary markers when these between contiguous estates have become unrecognizable (art. 951), but this may be reduced to the second action referred to in art. 950.

XII. CANON LAW

By divine-positive will, the Catholic Church and the Apostolic See have an inherent right to acquire, retain, and administer temporal goods freely and independently of civil authority for the attainment of their ends (CIC, can. 1495 § 1). Likewise, individual churches and other juridical persons erected by ecclesiastical authority have, in accordance with sacred canons, the right to acquire, retain, and administer temporal goods (ibid. § 2). Goods belonging to the Catholic Church or to the Holy See or to another lawfully erected juridical person, whether corporal or otherwise, are ecclesiastical goods (can. 1497 § 1) and are called sacred if destined for divine worship through consecration or blessing, and precious if they possess notable intrinsic value or artistic or historical worth (ibid. § 2). The Church may acquire temporal goods in all lawful ways of natural and positive law by which this is permitted to others (can. 1499 § 1); all ecclesiastical goods, whoever may possess them, are subject to the supreme authority of the Apostolic See (ibid. § 2).

XIII. THE RIGHT OF OWNERSHIP IN ETHNOLOGY

Evolutionist ethnologists have represented primitive humanity as the realm of moral chaos, in which, regarding ownership, an unbounded communism would have prevailed, in the coexistence of individuals pure egoism, “the struggle for existence,” and in the mutual relations of groups, “the war of all against all.” Modern ethnology, on the other hand, has demonstrated the untenability of these theories, which were supported only by materialist presuppositions and philosophical a priori. It has further clarified that primitive peoples recognize a multiplicity of rights of ownership, as well as its social function and its moral and religious foundation. Only the manner varies.

Among the most archaic ethnological peoples (the Andamanese, the Negritos of the Philippines, the Semang of Malaysia, the Negrillos of Africa, the Fuegians of Tierra del Fuego, etc.), the territory for hunting and gathering is not the property of the individual person or of the individual family, but of the local group, ordinarily consisting of 30-70 people, blood relatives with their wives. This ownership consists in the possession of approximately 30-70 km² of land with defined boundaries, within which only members of the group may hunt and gather. Members of other local groups may not access it without the consent of the owning group, which is granted only when the respective territory is insufficient for hunting and gathering. Within the group, each individual family retains its economic freedom and independence; each has its own hut, where the husband and wife bring their hunting and gathering. They have the obligation to support their parents, who have become incapable of work. Ownership of weapons and tools, clothing and ornaments that each person has made or received, of the boat one has built, and of the hut that the woman has erected, is regulated such that everything that the husband, wife, or child has made with their own labor, as well as everything that has been given to them, is individual property. Thus, as noted by Fr. W. Schmidt, precisely at this first stage of civilization, there is a relatively greater number of owners.

This right of ownership is conceived and harmonized with social duties toward the less fortunate and is therefore imbued with love and altruistic sentiment. Among these peoples, there is great joy in giving gifts to others. Of the aforementioned Fuegians, it has been written: “It seems they wish to possess only in order to give.” The explorer Koppers reports the following observation regarding them: “When you wish to give something, give something good. The one who receives the gift will immediately notice and tell everyone that you are a good person.”

Among some of these peoples, friendly visits often occur at places many days’ journey away and last several days. During such visits, communal dances, games, hunting, and gathering take place, and there is competition in mutual gift-giving. They willingly lend their own things without demanding repayment, even when the lender is later in need that could be satisfied with the loan. However, if the borrower has obtained a profit from the loan, they must share the gain with the owner, though rarely on a fifty-fifty basis. What is lent is always promptly returned. Explorers are unanimous in affirming the complete honesty of these peoples: they do not touch the explorer’s belongings, even if left unattended; and items forgotten or lost by the explorer are returned, pursued and traced even over great distances.

The characteristic feature of pastoral peoples is their flocks and herds, which provide them with the means of subsistence. Whereas gathering peoples can make use of animals only when they have killed them, pastoral peoples have every interest in the multiplication of their livestock, for their wealth lies in large herds. The increase or decrease of the flock and herd depends not only on the skill and foresight of the shepherd but also on conditions beyond his control. Epidemics and natural disasters, such as prolonged droughts, can destroy entire herds and reduce owners to poverty, forcing them to place themselves, in order to live, in the service of another, more fortunate family; thus among pastoral peoples we find the first examples of servitude or slavery. From livestock not only meat and milk with its products, and the blood of oxen (in Africa) for food, are obtained, but also hides, and hence leather and felt, for clothing, tents, etc. All this is family property, except when it is a matter of the dowry brought by the bride, for in that case it is personal property. Similarly, weapons and what belongs to the horseman are personal property. Among pastoral peoples particular consideration is given to the so-called bride-price and the dowry. The bride-price may consist of 20–50 reindeer among the Samoyeds, 20–60 oxen among Africans, and 5 camels among the Arabs, and is regarded as compensation for the expenses incurred by the bride’s family. The dowry usually consists of clothing and ornaments, tools and other objects of feminine use, or even of some domestic animals, over which the bride herself often cannot dispose without her consent. The value of the dowry among the Samoyeds and Tungus equals half the bride-price, among the horse-breeders of Central Asia a quarter or a half. He who steals must make restitution tenfold, as among the Tibetan shepherds. Since pastoral peoples are nomadic, territory is of less interest to them than to gathering peoples, although they require more of it for the grazing of herds and flocks. It is tribal property. All property passes by inheritance to the eldest son of the patriarch of the family.

What distinguishes gathering and pastoral peoples from agricultural and totemistic peoples in the matter of land ownership is, first of all, that for the latter land becomes a place of fixed and stable habitation. With the cultivation of plants the field acquires a specific economic value for the support of life and becomes the personal property of the cultivator, who establishes his dwelling there, his storehouse and his garden, and keeps his domestic animals (the pig and poultry). Since the field is cultivated mainly by the woman, using the digging-stick and later the hoe, it is the woman who enjoys the right of ownership, a right which she transmits to her daughters, together with the house, the tools, the utensils, the vessels, etc. Men own the fruit trees they have planted, their weapons and personal belongings; and when secret societies arise, they reserve for themselves the meeting-place of the society, the house, the masks, etc. At initiation feasts women must provide the food. Totemistic peoples neither practice agriculture nor rear livestock, but by perfecting their tools and hunting methods they have given rise to a hunting industry and a tribal organization, known in ethnology as the higher type of hunting and social organization. The right of territorial ownership is extended, for the tribe as such is recognized to have a superior collective right of ownership over all hunting and gathering territories. This is the case in Australia. The development of crafts, industry, art, and commerce accentuates the right of personal ownership.

If, as P. Schmidt has observed, even in the civilization of gatherers the general juridical sense had come to admit that the producer of an object is ipso facto its owner, this sense appears more clearly when an object is the result of individual craftsmanship. In the fusion of totemism with other civilizations, especially with that of the matriarchal agriculturalists, this strong consciousness of individual ownership extends in other directions as well. P. Schmidt has called totemism also “commercial totemism,” because within it both individual and group commerce develop. Among members of the same totem great solidarity is observed.

In the course of the numerous and varied movements of peoples which have led to the formation and development of new civilizations, ownership has also taken new forms. With the predominance of pastoral peoples over agricultural peoples, land ownership is assumed by the emperor, who then grants it to vassal princes, transforming the agriculturalists into serfs, who in this way come to possess only movable goods. Among the Annamites a distinction is made between the wife’s and the husband’s property and the jointly acquired property of the family, to which both spouses have equal rights. In the division of family property among brothers a special portion is reserved for the cult of the ancestors proper to the group and is entrusted to the eldest brother. Similarly, in Chinese Turkestan the woman, on marriage, retains the right of ownership and use of her personal property. When she is left without a husband, the usufruct passes to her parents; if she has children she remains in the family. In case of divorce she recovers not only her property but also compensation for what was spent from it for the common family good. Among the ancient Mexicans there was land ownership of the clan, of individual families (transmissible to the firstborn), of the state domain (administered by the sovereign, worked by serfs and freemen, and exempt from tribute), and finally of the temple. This was augmented both by donations of nobles who became priests and by the assignment of parts of conquered territory after a victorious military expedition.

Primitive peoples do not regard ownership as absolute, but consider it a usufruct granted by the Creator; therefore gathering peoples offer to God the first-fruits sacrifice, that is, by sacrificing to Him a part, the first part, of the prey just captured. Pastoral peoples offer the first-fruits sacrifice at certain times of the year, either by reserving for God an animal from the flock, preferably white and without blemish, and letting it go free with a distinctive mark, so that others may recognize that it has been reserved for God and hence is not usable by men; or by offering to God the milk, just milked, or a product of it, such as kumis, fermented mare’s milk. The first-fruits sacrifice is also observed among agricultural peoples, such as the Lolo, the Po, and the ancient Chinese.

Consequently, among the most archaic ethnological peoples there is a clear distinction between the right of personal, family, and communal ownership, a right which then assumes various forms in different civilizations and is conceived also in a social and altruistic function and based on religion, that is, as a right derived from God. From what ownership is among present-day gathering peoples, it is right and proper to infer that it was not essentially different in the early days of humanity. Hence P. Schmidt could recently conclude: “This moral chaos of the early days never existed; it was merely a postulate necessarily derived from the pretentious progressive evolutionism. The reality ascertained by exact investigations among the most ancient peoples themselves has always demanded this postulate.”

The aforementioned art. 846 of the Civil Code specifies that it must be understood “by minimum cultural unit the extent of land necessary and sufficient for the work of a peasant family, and, if it is not a landed estate, to carry out suitable cultivation according to the rules of good agricultural practice.”

The social aspect of peasant ownership is manifested above all in the need to ensure that cultivators receive education and professional qualification, moral and family education, so as to guarantee them, with the aid of the State, the civic and technical preparation required to fulfil the new and elevated functions awaiting the small owner-cultivator.

Above all, it is necessary to prevent small landed property from becoming a closed economy, as occurred in Italy during the feudal period, to the serious detriment of the national community, or from remaining outside progress and agricultural technique, continuing to use traditional means and methods that are no longer suitable to meet the demands of modern agriculture.

The land reform that has recently been applied in Italy through the partial reform law (Law no. 841 of 21 Oct. 1951) in various national territories susceptible to agricultural and land transformation aims to replace a system of large landed estates with new small peasant properties that, through various forms of cooperatives and assistance, can mutually sustain one another.

Moreover, the same direction that seems to prevail in the reform of agricultural contract legislation is aimed at transforming the various labour relations into instruments for the advancement of the peasant masses towards land ownership, fulfilling a centuries-old aspiration—not only through a different distribution of products in sharecropping and the arbitral determination of a fair rent in leasing, for better remuneration of agricultural labour and the spread of savings, but above all through the legal recognition of the tenant’s right of pre-emption to purchase the farm on which he resides and works.