Front Page Titles (by Subject) CHAPTER II.: ANOTHER MODE OF ACQUISITION—CONSENT. - The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
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CHAPTER II.: ANOTHER MODE OF ACQUISITION—CONSENT. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 1.
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ANOTHER MODE OF ACQUISITION—CONSENT.
*It may, however, happen, that after any thing has been possessed (by a legal title), the individuals may wish to give it up, by abandoning its enjoyment to another. Shall this arrangement be confirmed by the law? Without doubt it ought to be: all the reasons which plead in favour of the ancient proprietor are no longer on his side, but plead in favour of the new. Besides, the former proprietor must have had some motive for abandoning his property. He who speaks of a motive, speaks of a pleasure or its equivalent: pleasure of friendship, or of benevolence, if the thing be given for nothing; pleasure of acquisition, if it be made an object of exchange; benefit of security, if it have been given to save him from some evil; pleasure of reputation, if he propose by it to acquire the esteem of his fellows. The sum of enjoyment, as to these two interested parties, is necessarily augmented by the transaction. The acquirer puts himself in the place of the collater as to the ancient advantages, and the collater acquires a new advantage. We may therefore establish it as a general maxim, that every alienation implies advantage. Some good always results from it.
If there be an exchange, there are two alienations, each of which has its separate advantages. This advantage for each of the contracting parties is the difference between the value which they put upon what they give up, and the value of what they acquire. In each transaction of this kind, there are two new masses of enjoyment. In this consists the advantage of commerce.
We may observe, that in all the arts there are many things which can only be produced by the concurrence of a great number of workmen. In all these cases, the labour of one would possess no value, either for himself or others, if he could not exchange it.
Causes of Invalidity in Exchanges.
There are some cases in which the law ought not to sanction exchanges, and in which the interests of the parties ought to be regulated as if the bargain did not exist; because, instead of being advantageous, the exchange would be found hurtful either to one of the parties or to the public. All the causes which invalidate exchanges, may be ranged under the nine following heads:—
1. Undue Concealment.—If the object acquired be found to be of an inferior value to that which has served as the motive for its acquisition, the new proprietor experiences regret, and feels the pain of disappointment. If this value be below that which he has given in exchange, instead of a gain, he has made a loss. It is true that the other party has made a profit, but the pleasure of gaining is not equal to the evil of losing. I have paid ten pounds for a horse, which is worth them, if he were sound; but since he is pursy, he is not worth two: the seller has gained eight pounds, and I have lost the same sum. When the interests of these two parties are weighed together, the bargain is not advantageous, but contrariwise.
However, if at the time of the bargain, this degradation in value was not known to the former proprietor, why should the bargain be void?—why should he be constrained to make a disadvantageous exchange? The loss must fall upon some one: why should it be made to fall upon him, rather than the other?
Suppose even that he knew of this circumstance which depreciated the value of the article: was it his place to make it known, rather than that of the buyer to inquire respecting it?
These two questions ought always to be asked in connexion with invalidity, resulting from undue concealment:—Did the seller know of the existence of the defect? Was the case one of those in which he was obliged to reveal it? The solution of these questions requires too many details and researches to have place here; besides, it is not possible to frame an answer which would embrace all cases, and different modifications would be requisite, according to the different kinds of things.
2. Fraud.—This case is more simple than the preceding. A fraudulent acquisition ought never to be permitted, if it can be hindered: it is an offence which approaches to theft. You have asked of the seiler if the horse be pursy; he has replied in the negative, knowing the contrary. To sanction the bargain, would be to reward a crime. The reason given in the preceding case may be added, namely, the evil for the buyer is greater than that for the seller, and it is clear that this cause of invalidity is well founded.
3. It is the same with undue Coercion.—The seller, whose horse is only worth two pounds, constrains you by violence and threats to buy it for ten pounds: suppose that you would have been willing to pay him two pounds, the surplus is so much gained by a crime. It is true, that this loss was an advantage to you in comparison with the evil with which you were threatened in case of refusal; but neither this comparative advantage, nor that of the delinquent, ought to counterbalance the evil of the crime.
4. It is the same with Subornation.—I understand, by subornation, the price of a service which consists in the commission of a crime; as money offered to engage a man to take a false oath. There are two advantages in the bargain—that of the suborned, and that of the suborner; but these two advantages are nothing equal to the evil of the crime.
I remark in passing, that in cases of fraud, undue coercion, and subornation, the law should not content itself with annulling the act: it ought to oppose a stronger counterpoise by means of punishments.
5. Erroneous Supposition of Legal Obligation.—You have delivered your horse to a man, believing that your steward had sold him; and this had not happened: you have delivered your horse to a man, believing that he was authorized by the government to make you give him up for the service of the state; but he had no such commission: in a word, you have believed yourself under a legal obligation to sell, and this obligation did not exist. If the alienation should be confirmed after the error is discovered, the buyer would find that he had made an unexpected gain, the seller an unexpected loss. But we have seen that the advantage of gaining, cannot be compared with the evil of losing; besides, this case may be referred back to the head of undue cœrcion.
6. Erroneous Supposition of Value.—If, in alienating any thing, I am ignorant of a circumstance which tends to increase its value, when I discover my error, I experience regret for the loss. But is this a proper cause of invalidity? On the one hand, if such causes of nullity are admitted without restriction, there is great risk of throwing discouragement upon exchanges; for where is the security for my acquisitions, if the former proprietor could break the bargain by saying, “I did not understand what I did?” On the other hand, there would be a lively pain of regret, if, after having sold a diamond as a piece of crystal, there were no method of recovering it. To maintain an even balance between the parties, the diversity of circumstances and things must be regarded. It is necessary always to examine whether the ignorance of the seller were not the result of negligence; and even in cancelling the bargain, if the case demand it, it is proper, before every thing else, to provide for the security of the buyer interested in its confirmation.
However, it may happen, that a bargain free from all these defects may at last be found disadvantageous. You have bought this horse only for one journey; and the journey is not made. You were ready to set out; the horse fell ill and died. You set out; the horse throws you, and you break your leg. You mount the horse; but it is that you may go to rob upon the highway. The fancy which led you to purchase it being passed, you resell it at a loss. Cases might be multiplied to infinity, where a thing, whatever it may be, acquired on account of its value, may become useless, or burthensome, or dangerous, either to its acquirer, or to another. Are not these exceptions to the axiom, that every alienation implies advantage?—are not these as reasonable grounds of invalidity as the others?
No: all these unfavourable events are only accidents, and subsequent to the conclusion of the bargain: the ordinary case is, that the article is worth what it sells for. The total advantage of advantageous exchanges is more than equivalent to the total disadvantage of unfavourable bargains. The gains of commerce are greater than its losses, since the world is richer at present than in its savage state. Alienations ought, therefore, in general, to be maintained. But to annul alienations for accidental losses, would be to interdict alienations in general; for no person would buy—no person would sell—if the bargain might at any moment be made void in consequence of some subsequent event, which could neither be foreseen nor prevented.
7. There are some cases in which, foreseeing the evil of contracts, the legislature has prohibited them beforehand. Thus, in many countries, prodigals are interdicted; that is to say, all bargains made with them are declared invalid. But they begin by stating the danger, that is to say, the disposition which renders the prodigal unable to guide his affairs: every body is, or at least may be, informed of the imbecility with which he is struck, by the tutelary hand of justice.
Interdiction exists every where with regard to the two analogous cases of infancy and mental imbecility. I say analogous; for what an infant is for a time, which can be tolerably well determined, though by a demarcation always more or less arbitrary, a madman is for an indeterminate time, or for ever. The reasons are the same as in the preceding case. Minors and madmen are, by their condition, either ignorant, rash, or prodigal. They are presumed to be so, by a general indication, which does not require to be supported by particular proofs.
It will be easily seen, that in these three cases, the interdiction can only extend to things of a certain importance: to apply it to the trifling objects of daily consumption, would be to condemn these three classes to die by hunger.
8. The law also renders bargains invalid, on account of some probable inconvenience which may result from them.
I have an estate situated upon the confines of the state: acquired by a neighbouring power, it might become the focus of certain hostile intrigues, or favour dangerous preparations against my country: whether I think of this effect or not, the law ought to think of it for the public; it ought to prevent the evil, by refusing beforehand the guarantee of its seal to such bargains.*
The restraints which it has been thought necessary to put upon the sale of drugs capable of being employed as poisons, belong to this same head. It is the same with the prohibition of the sale of murderous weapons, such as stilettoes, of which such frequent use is made in Italy, in the most ordinary quarrels.
It is to the same motive, well or ill founded, that all prohibitions relative to the introduction or sale of certain kinds of merchandise must be referred.
In the greater number of cases, the custom is to say, that the bargain is null in itself. It is only to open the books of law to see how much nonsense has been written upon this erroneous notion, and into how much embarrassment lawyers have fallen, from not having seized the only cause of nullity, as respects bargains made under these circumstances, which is, that more evil than good results from them.
After saying that these conventions are null in themselves, to be consistent, it is necessary to conclude, that they ought not to have any effect—that they ought to be destroyed—that no trace should be left of them. In many cases, however, it is enough to modify them, to correct their inequalities by compensations, without altering the foundation of the primitive contract.
No bargain is void in itself—no bargain is valid of itself: it is the law which in each case gives or refuses validity. But for permitting or refusing, there ought to be reasons. Equivocal generation is banished from sound philosophy: some day, perhaps, it will be banished from jurisprudence. This null in itself is precisely an equivocal generation.
Of Obstacles to the Alienation of Land.
To say that the power of alienation is useful, is as much as to say that the arrangements which tend to destroy it are in general pernicious.
It is only with regard to immoveables that this inconsistency has been exercised, both by entails and unalienable foundations; and yet, besides the general reasons in favour of the power of alienation, there are particular reasons in favour of the power of alienating lands.
1. He who seeks to get rid of his lands, shows plainly that it does not suit him to keep them: he cannot or he will not employ any thing in improving them; often, indeed, he cannot restrain himself from lowering their future value, in order to satisfy a present want. On the contrary, he who seeks to acquire them has certainly not the intention of deteriorating them; and it is probable that he purposes to increase their value.
It is true, that the same capital which would be employed in the amelioration of land might be employed in trade; but though the benefit of these two employments might be the same for the individuals, it is not the same for the state. The portion of wealth applied to agriculture is more fixed;—that which is applied to trade is more fugitive. The first is immoveable; the second may be carried away at the will of the proprietor.
2. By pledging an immoveable, a productive capital may be procured: thus one part of the value of an estate may be employed in ameliorating another, which, without this resource, could not be done. To hinder the alienation of lands is, therefore, to diminish productive capital nearly to the amount of their selling value; since, in order that an article may serve as a pledge, it is necessary that it be capable of alienation.
It is true, that a loan only has been here contemplated: there is no new capital created by the transaction. This same capital might have received a destination not less useful in the hands in which it was first found; but it ought to be observed, that the greater the means of employing capital, the more it will flow towards the country: that which is derived from abroad, forms a clear addition to that which is derived from home.
These restraints upon alienation, though condemned by the soundest notions of political economy, subsist almost every where. It is true that they have gradually diminished, as governments have better understood the interests of agriculture and trade; but there are still three causes which operate for their maintenance:—
The first is the desire of preventing prodigality. But it is not necessary, for obviating this evil, to hinder the sale of lands: it is sufficient to protect their value by not leaving it at the disposal of the individual. In a word, the specific method against this inconvenience is interdiction.
The second is pride of family, connected with the agreeable illusion, which represents the successive existence of our descendants as a prolongation of our own. To leave them the same amount of wealth is not enough to satisfy the imagination: we wish to secure them the same lands, the same houses, the same natural objects. This continuity of possession appears as a continuity of enjoyment, and presents a point of support to a fanciful feeling.
The third cause is the love of power—the desire of governing after death. The preceding motive supposes posterity: this does not suppose it. It is to this cause must be referred, as well those foundations which have in view an object of utility, well or ill understood, as those which repose only upon fancies.
If the foundation consist only in the distribution of benefits, without imposing any condition—without exacting any service, it seems sufficiently innocent, and its continuance is not an evil. It is proper to except foundations for the distribution of alms, applied without discernment, and adapted only to the encouragement of mendicity and idleness. The best of these establishments are those of charity for the poor of a rank already a little elevated—a means which offers to these unfortunate persons a more liberal relief than the general rule would allow; whilst, as to the benefices which are only granted upon the discharge of certain duties, as in colleges, convents, churches, their tendency is useful, indifferent, or hurtful, according to the nature of the duties required.
One singularity which deserves to be observed is, that in general these foundations, these particular laws that individuals have established by the indulgence of the sovereign, have experienced more respect than the public laws which originate directly with the sovereign. When a legislator has desired to tie the hands of his successor, this pretension has appeared either inconsistent or futile. The most obscure individuals have arrogated this privilege, and none have dared to disappoint them.
It would seem, that lands left to corporations, to convents, churches, would be liable to be deteriorated. Indifferent as to his successors, each passing proprietor would seek to squeeze as much as possible out of the transitory possession, and neglect the care of them, especially in old age. This may sometimes have happened: justice ought, however, to be rendered to the religious communities. They have more often been distinguished for a good, than a bad economy. If their situation inflame their cupidity and avarice, it also represses pomp and prodigality: if there be causes which excite their selfishness, there are others which combat it, by what is called esprit de corps.
There is no necessity for expatiating with regard to public property; that is, with regard to things used by the public, such as roads, churches, markets. To fulfil their design, they ought to possess an indefinite duration, with the exception of their admitting those successive changes which circumstances may require.
[* ]See the chapter Of Collative and Ablative Events with regard to Property. The explanation of the word Title will be found there. I have here avoided reference to questions of method and nomenclature.
[* ]The greater number of states, without perhaps thinking of it, have obviated this danger by a general law which interdicts the acquisition of landed property by strangers. But they have gone too far. The reason of this prohibition does not extend beyond the particular case which I have mentioned. The foreigner who wishes to buy an immoveable in my country, gives the least equivocal proof of his affection for it, and the most certain pledge of his good conduct. The state can only gain in this case, even under the simple head of finance.