Elements of Morals Part 9

However, we should take into account the following circ.u.mstances:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An honest man puts up for sale a house, for defects only known to him; this house is unhealthy and pa.s.ses for healthy; it is not known that there is not a room in it where there are no serpents; the timber is bad and threatens ruin; but the master alone knows it. I ask if the seller who should not say anything about it to the buyers, and should get for it much more than he has a right to expect, would do a just or unjust thing. "Certainly he would do wrong," says Antipater; "is it not, in fact, leading a man into error knowingly?" Diogenes, on the contrary, replies: "Were you obliged to buy? You were not even invited to do so. This man put up for sale a house that no longer suited him, and you bought it because it suited you. If any one should advertise: _Fine country-house well built_, he is not charged with deceit, even though it was neither the one nor the other. And whilst one is not responsible for what he says, you would make one responsible for what he does not say! What would be more ridiculous than a seller who would make known the defects of the thing he puts up for sale? What more absurd than a public crier who, by order of his master, should cry: "Unhealthy house for sale!"

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

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

The Roman patrician, C. Canius, a man lacking neither in personal attractions nor learning, having gone to Syracuse, _not on business, but to do nothing_,[29] as he expressed it, said everywhere that he wished to buy a pleasure-house, to which he might invite his friends, and amuse himself with them away from intruders. Upon this report, a certain Pythius, a Syracuse banker, came to tell him that he had a pleasure-house which was not for sale, but which he offered him and begged him to use as his own, inviting him at the same time to supper for the next day. Canius having accepted, Pythius, who in his quality of banker had much influence among people of all professions, a.s.sembled some fishermen, requesting them to go fis.h.i.+ng the next day in front of his pleasure-house, giving them his orders. Canius did not fail to present himself at the supper hour. He found prepared a splendid banquet, and a mult.i.tude of boats before the grounds of his host. Each of the fishermen brought the fish he had caught, and threw them at Pythius' feet. Canius wondered: "What means this, Pythius?

How! so many fish here, and so many boats!" "Nothing to wonder at,"

says Pythius; "all the fish of Syracuse come up here. It is here the fishermen come for water. They could not do without this house."

Canius then becomes excited; he presses, solicits Pythius to sell him the house. Pythius first holds back, but at last gives in. The Roman patrician gives him all he asks for it, and buys it all furnished. The contract is drawn up, and the bargain concluded. The next day, Canius invites his friends, and comes himself early in the morning; but not a boat is in sight. He inquires of the first neighbor if it was a holiday with the fishermen, that he did not see any about. "Not that I know of," replied the neighbor; "but they never come this way, and I did not know, seeing them yesterday, what it all meant." Canius was no less indignant than surprised. But what remedy? Aquillius, my colleague and friend, had not yet established his formulas on fraudulent acts.[30]

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

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

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

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

=47. Violation of the property of others.=--_Theft._--In general, every kind of violation of property under one form or another, is called _theft_, and this action is condemned by morality. It is expressed by that ancient commandment: _Thou shalt not steal_.

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

It takes, then, three elements to const.i.tute theft: 1, _carrying off_; 2, _fraud_; 3, _the thing of another_.

Two kinds of theft are distinguished: the _simple_ thefts and the _qualified_ thefts.

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

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

2. _Times_ and _places_.--For example, thefts committed by night are more grave than those committed by day, because it is more difficult to antic.i.p.ate them, to catch their perpetrators, and because they place the injured person in greater danger. The places that aggravate theft are: 1, _the fields_; 2, _inhabited houses_; 3, _edifices_ consecrated to divine wors.h.i.+p; 4, _highways_, etc. It is easy to understand why these different places aggravate the crime by rendering it more easy.

3. _Circ.u.mstances of execution_, as for example: 1, theft committed by _several_ persons; 2, theft by _breaking open_; 3, theft with an _armed_ hand, etc.

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

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

_Embezzlement_ is a sort of swindling, with this difference, that "if the criminal has betrayed the confidence which has been placed in him, he has not solicited this confidence by criminal maneuvers." Among these may be cla.s.sed: 1, taking improper advantage of the wants of a minor; 2, misuse of letters of confidence; 3, embezzlement of trusts; 4, the abstraction of doc.u.ments produced in court.

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

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

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

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

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

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