Первый отдел. О вещах, или предметах обладания

Chapter one. General concepts § 1. General concepts about property. Its composition. Thing. When does a person’s personal strength acquire the meaning of property? Requirement. The right to someone else's thing. Separation of rights into real rights and claims Man, striving in civil life for the full development of his strengths and abilities, seeks to satisfy the organic needs of his nature. His first need is to bring his personality into consciousness in the midst of the external world and establish this consciousness outside himself. His other need is to complement and continue his personal existence in the organic union of marriage and family. The third need is to spread one’s activities in the outside world and expand one’s external well-being through the acquisition, assimilation and production of external goods. These external goods are the essence of the so-called property (bona, facultates), constituting, in relation to the human personality, its external accessory, its external addition, or its property. Human relations regarding property differ especially in the properties of law; they constitute the main content of civil law: the concept of mine and yours is especially attached to them. These relationships are determined by life itself and its economic conditions: law (law) strives only to recognize and embrace these conditions, to ensure as a rule the free action of the sound economic principle of life, just as in the sphere of family relations the rule strives to ensure moral principles, following them and applying to them, for the nature of family relations is primarily moral, while the property of property relations is primarily economic. The object of possession (property) can be anything that serves a person to achieve an economic goal. This includes, first of all, cash things: everything that exists by nature, in external nature, everything that has an independent existence outside of a person is a natural, cash thing, there is a material value, material property. But, from the same economic point of view, we see that the internal, organic forces residing in man himself, when directed to external activity and to individual objects of external nature, acquire, at a certain degree of their development, economic significance and economic value, and also become property, which has a special, personal property that distinguishes it, in the sphere of human property rights, from a cash, material thing. Having these forces within himself and the ability to dispose of them, a person recognizes them as economic force, creative force, the ability to produce things and values, and in this sense, these forces constitute his property. Only the word “property” in relation to the person himself, who has such powers, does not acquire legal meaning, because it does not contain the concept of a right or legal obligation. Every person is free to use or not to use, to develop or leave stagnant the inherent possibility of activity or creativity: one can speak about his right or obligation in this subject only from a moral point of view. Nevertheless, this internal economic force constitutes a person’s personal good, his spiritual property, and at the same time serves as a source for the production of material values, things that, receiving, relative to a person, external existence, objective meaning, at the same time become his property in the legal sense. But these personal powers, constituting for the person himself, to whom they belong by nature, only the possibility of creating things, the possibility of external separation of values, receive the meaning of value, property and separate right when another person acquires the ability to manage and dispose of them, i.e. when, by virtue of a free agreement, one person undertakes to act, on this or that subject, with his own personal strength and abilities, according to the will and for the benefit of another person, then the latter has the right to the personal power of the other; the former has a corresponding responsibility. Thus, personal power is objectified, acquires external meaning, material value, which constitutes the content of the positive right to demand, a personal relationship in the form of a contract or obligation. Things, without ceasing to be things, cannot be subject to human possession to the same extent. When I say: my house, my land, my horse, I have consciousness of a whole object, which by its entire nature belongs to me, so that by using it, I can exhaust all its economic properties from all sides until the last depletion of them, sometimes until complete consumption or destruction of the object itself in all its essence. This will be complete bodily possession of the thing. But in other cases, only one certain portion or aspect of the economic value of a thing is subject to human power; one use of the thing according to its properties, more or less long-term, urgent or continuous, is subject to the right to the essence of the thing, to its complete consumption. A person may, for example, have the right to live in a house, although this house is not his home, to use the land, although it is not his land, to cut down trees in the forest for his needs, although this is not his forest. And such a right, extending to a thing, although not in full bodily possession, can in a certain sense be recognized as a right to a thing, can be counted among the things that are part of a person’s property. Personal economic power, personal ability, personal activity of a person can also be in the possession of another person, as a result of a free agreement between two persons, by virtue of which the will of one is subordinated to the will of the other, and the action of one must serve the other to achieve an economic goal. One person obliges another to do work, deliver things, paint a picture, take care of property, organize a business, constrain himself in the free circle of his economic activity, etc. This kind of relationship, if only it has economic significance, can also acquire legal significance, and in this case, receiving a value that is more or less subject to accounting, it becomes part of the property belonging to a person. A person's power over a thing contains a right; the claim of a person to a person is also based on law. In both cases, the interest of law lies in the thing, since the requirements of civil law, for the most part, arise in relation to the thing. But the relation of the person to the thing, in both cases, is not the same. The owner of a thing has direct and immediate power over it; his relationship to her is direct and immediate. “My house, my book” - these words have a real, true meaning. But he who has a claim against a person regarding a thing is in an indirect relationship with it, touches it only through the person with whom he is in an obligation, and directly relates only to this person. I have money. As long as they are my property, I can say without mistake: my money, my thousand rubles; but as soon as I lent it, I no longer have the right to say: my money, in the strict sense. Now my demand, my loan letter, and the money passed into the power of my debtor and became his thing; An obligatory relationship has formed between him and me directly, and between me and money there is a mediocre relationship, through my debtor. I expect, with more or less certainty, that they will return to me, among my things; but this return no longer depends on my direct power over capital, which I no longer have, but on my power over the action of my debtor, and on this action. Ivan undertook, within a certain period of time, to make me a deed of sale for 200 acres of land in the Saratov province. This does not mean that with the completion of the contract I received the right to the land itself that was sold to me; this only means that in due time I have the right to demand from Ivan the transfer of the sold land. But if at that time this land leaves his hands, I cannot demand this land from anyone who has it; I can only demand compensation from Ivan for my loss from the vain calculation of acquiring land. Thus, having power over a thing, I have the thing acquired, I have acquired the thing itself; having a claim on a thing, I only have the right to acquire the thing. The first is an realized right to a thing, the second is an enforceable right to a thing. Thus, a thing is the center and main subject of any right to property, because a demand, for the most part, is a way to acquire a thing, but until the thing itself is acquired, and this demand is also property. Thus, all rights regarding the subject of actual (actual) possession are divided into two categories: real rights and claims. Having a property right, a person possesses a thing, has property that has the value of a thing. Having a personal right or claim, a person possesses, in one respect or another, the personal ability of another person, his will and activity, so that he can demand personal or material performance from him, can demand service for himself in person or thing. § 2. Property as mass and quantity. The totality of things and its quantitative significance. The measure of values ​​is money. Possession of rights and requirements. Law as a subject of possession Property rights owned by a person can be viewed from two perspectives. Firstly, each right separately, presented in connection with the person possessing it, receives the form of either a property right or a personal right or claim. Secondly, all property rights belonging to one person can be viewed in their entirety. Then they are presented in the form of a mass that is subject to analysis, decomposition into its component parts and accounting. This survey of the whole mass has economic significance. The entire mass of property belonging to a person constitutes his economy, and like any economy, it is measured in its composition and cannot have a constant form or the same quantitative value. This value depends on many accidents and changes almost every hour. In this sense, the property of each person has its own economic destiny: it is formed, decomposed, modified, subject to decreases and increases. A destructive or favorable phenomenon of nature or the action of its forces, fire, death, loan, alienation, loss of time, kidnapping, death, etc. events, in an infinite variety, change at one moment or another the quantitative type of property. In order to determine at a given time the actual, real value of property belonging to a person, it is necessary to resort to abstraction and, without dwelling on the content of the right associated with each individual item of possession, imagine all property in the form of an abstract quantity; then it is necessary to take into account not only the positive, but also the negative (passive) side of each right, i.e. all the obligations connected in it, all the values ​​lying on the object of possession; it is necessary to take into account, in addition to the relationship of a person to property as a master, and all his relationships to the same property as a debtor. The positive conclusion from this calculation will be presented either in the form of (plus), which constitutes the real value, or in the form of – (minus), when the totality of passive relations in property exceeds the totality of active relations, or in the form of 0 (zero), when one is balanced by the other and the ideal value of the mass turns out to be insignificant. This quantitative decomposition of the value of each property becomes possible by comparing property rights with the value common to all rights, the representative of which is money. On the other hand, the ideal concept of individual objects that constitute human property gives rise to the following idea. When the general question arises about what is included in property, what belongs to a person? We respond by listing each of its individual rights. Each of these rights, taken separately, has its own separate subject, being either a right to a thing, or a right to an action, a claim. So, for example, the following have a separate nature: from the rights belonging to one person - serfdom of a house, lifelong possession of an estate, a condition for the sale of a forest, a loan obligation, a lease agreement, etc., and a loan obligation, due to its legal nature, cannot in any way be mixed in the same category with the patrimonial right to a house. But with a general attitude towards a person of all the rights that are part of his property, it turns out that all these rights (of which each has its own separate object) in turn serve, in the ideal sense, as objects of possession for the person to whom the property belongs. In this sense, every right, both real and personal, acquires, in relation to its owner, objectivity, which it does not have, being taken in itself separately, it appears as a thing consisting of possession, an object of possession. Thus, for example, the obligation to hire, taken in isolation, cannot be imagined except as a personal relationship of a known person to another known person. But taken as part of the general composition of property, the right to collect a certain amount of an obligation can be represented as an object of possession, a right to the value contained in a certain obligation; a process initiated in court, although connected in itself with a separate legal relationship that has its own subject, in the general composition of property also appears to be a subject of possession, the right to use and dispose of the value contained in the process (dominium litis, dominium obligationis, jus obligationis, nomen, as the Romans called obligation in an ideal view, in the objective sense). Thus, the ideal idea, connected to the word thing, expands, and in this sense, Roman jurists speak of so-called incorporeal things - res incorporales. Any right to property, taken separately, is presented primarily from its personal (subjective) side, in connection with the person to whom it is assigned, to whom it belongs; but being presented, from another point of view, as the property of persons, every right receives objectivity, as an object of possession. The rights constituting a person’s property achieve the greatest objectivity in the ideal concept of an inheritance remaining upon the death of a patrimonial owner and passing to another person, and it is clear why the inheritance, in its entirety, is considered a patrimonial right and follows the laws of a patrimonial claim. But regardless of inheritance, it will help to explain the above when we imagine, for example, that an obligation belonging to a person (bill, credit paper, mortgage), can, in turn, become an object of use, which the owner of the obligation assigns to another person, can be pledged, etc. § 3. Categories of things according to differences in properties. Differences in the categories of the ancient world and the new. The Roman division of things into physical and mental and its repetition in new legislations A thing is a limited part of the external sensory world, an object taken from unfree nature. However, not every object of external nature can be the subject of private law, and not all to the same extent, because regardless of the physical or legal ability of each person to extend his power to objects of the external world, these objects have their own nature, their own properties, as a result of which they acquire special significance not only for an individual - for the owner, for the owner, but also for the whole society. Because of this political and economic significance of things, positive legislation has long been aware of the need to establish, at least in relation to some things, the limits within which private law can extend its power over them. In the ancient world, these restrictions were not as important and numerous as in the new, and especially in the newest. The reason for this is not difficult to find. In the legal life of the ancient world, the measure of any right depended almost exclusively on the individual. Here the beginning of man's personal, material power over nature prevailed; therefore, the legal definition of a thing was then very simple and at the same time meager; from this, for example, in Roman law, things are distinguished primarily by the mechanical properties of their nature, when, on the basis of these properties, it was necessary to determine legal relations regarding a thing (movable, immovable, divisible, indivisible, consumable, non-consumable). In the new civil law, the state, social, and economic principles are much more expressed. Its effect is noticeable everywhere and is reflected in all civil relations. From external and internal political relations, from the needs of political and social life, arise many legal definitions for things - definitions that were completely unknown before, so that the difference between things according to their physical nature no longer has the same importance. The Romans formed and accepted the division of property into physical and mental things (res corporales and r. incorporales). The first category included all available objects of external nature that could be privately owned. The last category included assets that, without having the properties of physical existence, have economic reality and are established solely on a legal representation, so that without this representation they cannot be found in nature (res quae non sunt sed intelliguntur, res quae in jure tantum consistunt). These properties do not exist in themselves as things, but exist only because they were created by human will, as a right belonging to a person. The following rights belonged to this category among the Romans and are included in the legislation that maintained this Roman division: firstly, inheritance as the totality of all relations of the deceased in property, the entire ideal mass of his property, universitas bonorum; secondly, jura in re, rights to another's property, easements, usufruct, emphyteusis, superficies and the right of pledge; thirdly – ​​claims and rights under obligations. In essence, among the Romans, private property alone belonged to the category of res corporales, and all other rights were classified as res incorporales. Among the new legislations, this division is positively recognized in the Austrian Code (Article 292); in the French Code civil it is also retained, although not expressed as a positive legal category of rights (Article 529); in Prussian legislation it is also partly accepted, because personal rights are also combined there into one category called unkörperliche Sachen. In this case, the example of Roman legislation was hardly worthy of imitation, since the Roman division itself does not have legal definition and is not caused by a practical need, but is based, in all likelihood, on the inaccurate use of terms transferred from common speech to the sphere of legal relations. § 4. The main signs of the difference between things. The ability to be in the power of a private person (public things). The relationship of things to the whole nature and to each other. The difference between movable and immovable. Natural and economic properties of both. Consumable and non-consumable things What are the essential aspects of the concept of a thing? First, the ability to submit to the dominion of man, to be in his power, to be his property. There are things that, by their physical nature or social significance, are absolutely incapable of constituting the subject of private individual law. Such, for example, is the air, such is the open sea (res omnium communes), in which use belongs to everyone, property cannot belong to anyone: in particular, public things (res publicae), public buildings, streets, squares, canals are called such; These are subjects of state law. Then, in modern times, the categories and types of things that are only partially and conditionally subject to the action of personal will and private law, for reasons of state economy, have multiplied. Secondly, the relationship of things to the whole nature and to each other. Hence the division of things into movable and immovable, which is of paramount importance in the new civil law. Those that are immovable by nature are those that are in an organic or mechanical connection with the earth, so that, losing this connection, they also lose their original meaning. Therefore, buildings erected on land for the purpose of a durable structure or installation, to satisfy a permanent, and not just a temporary economic purpose, are usually considered immovable. Movable ones, which, without changing at all in their essence, are capable of changing place. Real estate, in its essence and in the essence of the rights associated with it, is of particular importance, although recently movable capital and valuables have acquired great importance in social economy. Among real estate, the first place is occupied by land, and land ownership still remains, and probably will remain for a long time, the main basis of all other property rights, due to its special strength. Until now, the right to land ownership has always been inextricably linked with the provision of personal human rights. Landed property gives a person a stronger and more independent right than any other. He who sits on land is not so easily dispossessed from possession as from another right to movable property. Because of this, the acquisition and transfer of real estate, especially land property, is everywhere associated with particularly complex formalities and requires special government control, while the acquisition and transfer of movable property is much simpler, and the form of these actions is more dependent on personal will and mutual agreement. As a result of this, some things that are movable by nature, some rights to movable things, due to the special importance of these rights, the law, actually regarding their transfer, gives the meaning of immovable property. In the nature of things, man's dominion over the movable is much more complete and perfect than over the immovable; It is incomparably more convenient to handle the circulation of movables and transfer them from hand to hand. But movable property serves only to satisfy private, isolated and short-term needs, and is subject to rapid deterioration, destruction, and exhaustion from use. Movable things are replaced in the hands of the owner. As a result, there cannot be such a close, strong and inextricable connection between the person of the owner and the movable thing. He communicates his personality, his name to real estate, and especially to land, merging with it his tribal, family and social meaning. That is why land ownership was always considered the best guarantee of civil order, was also associated with political rights and was always the main goal and main basis of any acquisition, especially among the new European peoples. The owner of the property cannot take it with him; coming out from the edge, he is drawn to her and to the social position in which he belongs; That is why the owners of real estate constitute a particularly protective, conservative party in society, while the owner of movable property, especially capital, can be at home with him everywhere and is more conveniently disposed to change social life and its laws, in accordance with the needs and interests of his property; and the owner of the property is, of necessity, connected with social and government living conditions. political upheavals are especially sensitive to him: for example, in a ruined city, all houses lose their value, and goods and capital can move to another market. Real estate is predominantly subject to duties and fees, because it serves as their most reliable security and, at the same time, the most equalizing unit of distribution. Possession of it is connected, for the most part, with the class or social significance of a person; on the contrary, movables can belong to everyone without any difference. In immovable property, the concept of its belonging to a known person can be combined with the concept of its belonging to the entire family of the person (tribal), while with movable property the concept of exclusive belonging to only one person is connected. The greater or lesser economic importance of real estate depends on the degree of economic development. In those places where the division of labor has not yet been established, where the mass of the population supports itself by agricultural labor, the products of labor and capital still acquire very little independent value, and movable property appears for the most part in connection with real estate, as its accessory. In order for movable property to acquire the meaning of property on an equal basis with real estate, it is necessary that the labor force be separated from the land, that trade and fishing be separated from agriculture by a decisive line, that a complete division of labor occur everywhere between town and countryside. Where such a state has not yet arrived, as here in Russia, for example, there movable property has not yet left the subordination of immovable property. It is also necessary that movable things, separating from real estate as products or becoming isolated in the economy through labor and capital, can immediately enter the circle of free circulation of values, can immediately find themselves an extensive market for proper exchange. In our state there is no such an extensive market, but there are many separate markets that are so disconnected from each other that exchange between them is either extremely difficult or completely impossible. That is why in some areas, movable property has a predominant economic importance, there is a constant demand and sale for it, there are certain prices for it, while in other areas, remote and remote, it seems to be almost exclusively an accessory of a personal economy connected with the land. At the highest stages of economic development, the main significance for all things is their exchange value, while at the lower levels the value of things is measured almost exclusively by the interest in their use, which is unclear and fluctuating, and there is almost no exchange value at all. And therefore, as movable property, freed from the necessary connection with real estate, acquires independent meaning, real estate, on the other hand, comes closer and closer to the meaning of a commodity and to a certain commodity value. It turns out that it is possible to more accurately examine, define and weigh all the economic elements of real estate, all the interest of its productivity, and to establish for it also, with the value of use, an exchange, trade value: this is how, according to a well-known expression, the mobilization of real estate occurs: real estate and movables are equalized in the general law of property. Both are equally suitable for the concept of full ownership, although in two different forms, because, regardless of any degree of economic development, in the natural properties of one and the other property there will always be quite a few distinctive features that will require differences in the law, for example, in the forms of acquisition, in the internal content of the right, in the right of action, in the right of pledge or security in rem. Immovable things, by nature, differ from movable things in their durability and non-consumability, a property that, however, also belongs to many movable things, for example, precious stones. And among movable things, some exist exclusively for consumption, and as it is consumed, they are destroyed, for example, grain of bread. In movable things, this division into consumable and non-consumable has important legal significance (res fungibiles and non fungibiles). Free circulation is a necessary property of movable property, which by its nature changes its place in economic circulation. On the contrary, immovable things attached to the earth by their nature retain their location. Therefore, movable property is property, so to speak, nameless before the law, while real estate certainly bears the name of its owner. As a result, the circulation of real estate from one owner to another is not free, but is associated with strict forms of transfer and strengthening. § 5. Separation of things and rights under foreign laws. Movable property under French and German law. The English division of property into real and personal, physical and mental. The individual meaning of a thing. Quantity. Product. Under the French system, things are considered to be movable either by nature or by law. According to the law, the following are classified as movables: claims and obligations for money, for actions or for movable things; annuity or continuous income, hereditary and lifelong, credit securities, stocks and bonds, positions that are subject to evaluation and transfer from person to person (offices, officiers ministeriels). By nature, movable things are those that themselves move (se moventia), or are subject to movement from place to place (mobilia, mobiles). Further, French law distinguishes: meubles meublant - room furniture, biens meubles, mobilier, effets mobiliers - names that cover everything that cannot be considered real estate. Thus, French law extends the Roman concept of immovable and movable, which applied exclusively to objects of external nature, and transfers it to rights and claims, recognizing in them the difference between movable and immovable. French law also relates subjective, personal rights to real estate: right of use (usufruit and usage), when it extends to real estate, rights to an apartment (habitation), patrimonial easements and claims for patrimonial rights. Even claims for estate rights (questions d'état) are equalized with claims for real estate. In German legislation (Prussian, Austrian, Bavarian, Saxon) a similar principle is also adopted, i.e. that rights in themselves are movable, but when combined with real estate they are considered immovable; only a pledge, even if it is immovable, does not impart the properties of real estate to the right secured on it. Immovable (according to the French law) things are recognized either by nature or by the purpose of the owner, according to which movable objects can also be included in the composition of immovable ones; further, things attached to buildings or embedded in the wall; acts as belonging to real estate, etc. But all these things are only considered immovable until they are connected with real estate for a common purpose or are all combined into an economic whole. Real estate is considered to be everything that lies in the bowels of the earth or is connected to the soil, until separation follows at the will of the owner. In English law there is an original, historically formed division of property into real and personal. The first category includes only rights to real estate, and primarily to land, because the concept of property and possession was exclusively formed and developed in England in land rights. And now the concept of patrimonial ownership (estate, Seisin) is applied, according to the English concept, exclusively to real estate; movable property is not assumed to be patrimonial, i.e. independent ownership, but either ownership is assumed in connection with ownership, or conditional, dependent ownership. In the series of material rights, in the first place is full or free ownership - Freehold, i.e. (in the historical sense) land ownership, free from duties inherent in a subordinate, involuntary person, and subject only to duties that are combined with the title of a free person (as opposed to the so-called Copyhold - possession of a subordinate, dependent, subject to duties of a subject person). Further in the same category are: right of patronage (advowsons), the right to a continuous income or land rent (tithes), patrimonial easements (commons and ways), patrimonial right to positions and titles, legal rights granted to private ownership by privileges (Franchises and liberties, for example, the right to collect duties on an income item - markets and ferries, the right to hunt - forest and chase). All these rights have the property of hereditary or lifelong rights and are included in the category of free property or freehold (real estate, freehold). But the same rights, if they are only temporary in nature without hereditary and even without lifelong ownership, are ranked in the lower category of rights known as Chattels (from the ancient word Catall - livestock and movables, according to the Roman pecunia in the ancient sense, and our word bellies), - although in this category they are recognized as real rights (Chattels real); This includes any urgent and dependent right of possession (estate at will and by sufferance). But in the same category of Chattels is every right to movable things and every personal right to obligations, independent of land ownership, under the name of personal property (Chattels personal). The most important practical significance of this division is that real property is governed by different laws, and personal property by other laws. For example, the hereditary order in both categories is different. Only material property corresponds in the literal and strict sense to the concept of inheritance (hereditaments) - it passes directly to the person of the heir; on the contrary, personal property and movable property do not leave the subject of the inheritance and pass not directly to the person of the heir, but to the executor or administrator for liquidation, after which only the net remainder can be turned in favor of the one who inherited in the material property of the deceased. Each category of rights corresponds in the process to a special system of patrimonial and personal claims 243. There is also in English law the ancient division of rights into physical and conceivable (corporeal, incorporeal rights and hereditaments). The first includes free land ownership and ownership of movable property. The latter include all limited and dependent rights of land ownership, such as: easements, rights of use, real rights assigned to private individuals, land rent. This difference, however, is more historical than practical, and its main significance was the difference in the methods of acquiring these and other rights; for the acquisition of the former required patrimonial investiture, while the latter could be acquired by other means. § 6. Productivity. The concept of fruits and their various types. Fruit and product. Costs. Divisibility, independence and belonging. Things are indivisible and divisible. The mutual connection of individual things. aggregate things The individual meaning of things is very important. What is especially remarkable here is the relationship of an individual thing to the whole genus of things to which it belongs by nature; relationship of species to genus. It happens that types of things belonging to the same genus have unequal value. For example, in the number of houses, in the number of animals (farm horses), one unit cannot replace another, and the requirement extended to one of these things must necessarily be specific and relate to a known unit. But there are also such kinds of things in which each unit is completely equal to the other in meaning and value, so that one completely replaces the other. Here value can be determined by the genus itself, the quantity and generic quality of units, measure and weight; therefore, the requirement is determined by the same thing (vertretbare, unvertretbare Sachen - a difference corresponding to the above category r. fungibiles). Movable things in particular constitute the subject of trade circulation from hand to hand, and in this capacity acquire a special economic and legal significance as a commodity (Waare, marchandise). It should be noted that with the development of industry and the trade market, the concept of a commodity is expanding more and more, extending to such property that, by natural nature, was initially considered not subject to commodity circulation. Anything that is capable of acquiring a determinable and accountable market exchange value can become a commodity. In this sense, for example, real estate in the new industry acquires the value of a commodity. See article: Opérations sur les immeubles, in Revue critique de législation. 1869. Octobre. There are things that have meaning only by their presence, only by their real existence; meaning, so to speak, mechanical. Others are significant because of the organic or artificial force hidden in them, so that, as a result of this force, they are capable of producing new species by which the composition of the owner’s property is increased. Hence the concept of fruits. Organic products of a thing are called fruits. Theory and legislation establish different categories in the concept of fruits, distinguishing: purely natural fruits (fructus mere naturales); artificial, industrial fruits (fr. industriales); depending on whether the fruits came from one internal natural force, or from cultivation and human art; fruits in growth (i.e. on the root, on the branch, fr. pendentes, fr. stantes); harvested fruits (fr. separati), separated from their productive mainland; collected fruits (fr. percepti), when they are not only removed, but also constitute a separate item of possession, receive individuality, as special property. Everyone knows, finally, the ancient artificial division of fruits into natural and civil fruits (fr. naturales and fr. civiles). But this division has recently begun to be subjected to fair criticism (See, for example, Arch. für die Civil. Praxis. 1866. Schröder. Recht des Niessbrauchers). It is argued that this division contributes to the confusion of concepts and that it is much more accurate to understand fruits only in the natural sense, in the physical sense. In this sense, fruits are new things, organically separated from the thing that previously existed. The category of civil fruits subsumes under the concept of fruits any material profit that the ownership or use of a thing adds to the owner’s property: thus, perhaps, the right to pledge the house as collateral can be considered among the fruits of the house; but this would mean extending the concept of fruits far beyond its legal limits. A fruit is a new thing, separated from a thing that previously existed. Before separation, the fruit was part of the thing from which it was separated, or constituted an inseparable quality with it, constituted an organic part of it. Therefore, it would be inaccurate to classify a treasure as the fruits of the earth, caught animals as the fruits of the forest, or the skin removed from it as the fruits of a killed animal (the separation here is not organic, but mechanical). Physical separation of the fetus is assumed. In this sense, it would be inaccurate to count interest on capital among the fruits (usura pecuniae in fructu non est quia non ex ipso corpore, sed ex alia causa est, id est ex nova obligatione. Pompon.). This physical separation is natural, organic, and occurs in the order of the organic economy of the thing. A windfall, for example, cannot be classified as a fruit of firewood or timber timber. In this regard, the fruit must be distinguished from the work. The trees in the garden will be products of the soil, and not its fruits: their purpose is not for felling, but for bearing fruit. The division of fruits into ordinary and non-ordinary also does not have a strict legal meaning and does not stand up to strict criticism. Fruits make up the positive (active) part of productivity. Its negative (passive) side includes the concept of costs (impensae). The true value of fruits is determined only after deducting the costs spent on the production and obtaining the fruits (fructus non intelliguntur nisi deductis impensis), and therefore the one who, having collected the fruits at his own expense, is then obliged to return them to the real owner, has grounds to demand a deduction of costs. But the costs spent on a thing may not be the same in their economic significance. When expenses are made only to such an extent as to preserve a thing in its economic integrity, maintain its productive power, or satisfy legal conditions and requirements, they are considered necessary (necessariae). When they are made in accordance with the economic properties of a thing, to improve it, to excite and multiply the productive force, they are recognized as useful (utiles). In both cases the costs will be productive. But when expenses are made only for decoration, for the external convenience of using a thing, they are unproductive and are considered arbitrary, whimsical expenses (imp. voluptuariae). This difference is important when it comes to the return of a thing and its fruits and the settlement of the former owner with the present owner. Necessary expenses in all fairness should be deducted and returned if the previous owner owned in good faith; what came to the thing from whimsical expenses, the previous owner can take for himself, if the separation can follow without damage to the thing (jus tollendi) and if the owner does not want, leaving the profit, to compensate for the costs; An unscrupulous owner has only jus tollendi regarding useful costs. Severability, autonomy and belonging There are indivisible things that are not subject to mechanical fragmentation. This indivisibility can be either physical, so it is impossible to divide a thing without destroying its meaning and value, for example, a statue, a painting. Indivisibility can be legal or artificial, when the law declares a thing indivisible. This property becomes important in the case when several persons appropriate the same thing as their property on the same right. But if a thing by its nature is subject to division, then it may seem: 1) That a thing consists of homogeneous parts, which, when divided, do not lose either meaning or value. 2) The connection of parts of a thing to be divided may be essential and necessary, so that with the separation of one part from another, the entire nature of the whole thing changes or the thing is deprived of its essential belonging. From here the concept of accessories in relation to the whole thing is derived. This concept is very important in civil law, especially in relation to the accessories of real estate. In every immovable estate there are many movable things belonging to it or attached to it, placed in it by the will of the owner. Which of these movable things should follow the fate of the immovable estate as its essential accessory, which can be separated from it and receive a special purpose in the form of movable property, this is an important question in civil life. Different legislations resolve this issue differently and on different principles. A thing has independence when it not only physically, but also legally has a separate existence, i.e. may serve as the subject of a separate independent law. If it does not have this quality, then it is revered only as a member or part of the main thing or its accessory. What should be considered the main thing and what is an accessory is determined in other cases by law, and in most cases by consideration of circumstances, by the type of connection of things, by purpose and purpose: the connection between things can be economic, mechanical, physical, organic, mental, legal. Mechanical connection (for example, a wheel with a car, wallpaper with a room, a stern with a ship, an axle with a cart). Economic, household (for example, a stable or a cellar with a house, a barn, a barn with a farmstead, draft animals with a farmstead). Organic (for example, forest with soil, standing grain with soil, peat with swamp). Mental (for example, connecting someone else's car with the factory where it was delivered). Legal (deed with the estate on which it is written, wasteland with the main dacha to which it is adjacent). By nature, all its increments belong to a thing, i.e. everything that is external (extrinsecus) is added to it by the power of nature or human labor. In particular, everything that is affirmed on it or attached to it or embedded in it by nature or by the will and purpose of a person is considered to be an accessory of a thing (Pertinentia. Pertinenzen. Quae vincta fixaque sunt. Was erd-wand-band-mauer-niet- und nagelfest ist). A thing that has economic and legal integrity may consist of a combination of many component parts, attached to one another (res connexa): such, for example, is a house, a ship. But, in addition, things, each of which has an independent meaning and which are all essentially homogeneous, can be combined together for a certain purpose and receive the meaning of one thing, which serves as the subject of legal actions. Such collective things are usually made up of movable things. These are, for example: a goods warehouse, a herd, a pharmacy, a library. The significance of each individual thing included in such a collection becomes secondary; on the contrary, often individual things acquire the meaning of objects consumed and capable of being replaced by a homogeneous object. The main meaning belongs not to the parts, but to the whole, so that the internal change of individual parts does not significantly change the meaning of the whole; one thing can leave the collection, another can take its place, as long as this change of parts is carried out in accordance with the economic significance of the whole. Chapter two. On the properties of property or things according to Russian law § 7. Things that are not subject to private possession according to Russian laws. boundaries. Roads and transportation. Streets, waters and waterways. Public buildings. Cemeteries. House churches A great many things, according to Russian laws, are excluded from private arbitrariness, are not subject to private law at all, and cannot be the subject of private property. 1) Boundaries and interconnections. Between the boundaries of city, district, state and property dachas, an inter-cut is left, a strip of land from 3 fathoms to one fathom; it is divided in half from adjacent dachas and must remain inviolable for private ownership. Neither boundaries nor the rights connected to them depend on the effects of prescription. This is a subject of state law, not private law (vol. X, part 2, Law. Inter., ed. 1893, art. 443. Civil., 563. Code, 1605). 2) Roads. They are divided into five classes: main messages, state (broad 60 fathoms), large messages (30 fathoms), ordinary, postal communications between provinces (30 fathoms), district, postal and trade communications (30 fathoms), rural and field (3 fathoms) (Constitution of Put. Communications, art. 10; 524. Law. Inter., ed. 1893 g., Art. 404, note). Their space when surveying dachas is excluded and is not counted (Law. Inter., ed. 1893, art. 405, 406). They are inviolable, should not be occupied by anything, covered, etc. (Ust. Put. Communications, 882, 889, 890). Only the owner of the dacha, in which there is a country road, is allowed to build another one not far away, between the same points (Put. S., 891). Art. 891 Set. Put. Message Part I Vol. XII gives the owner of the estate the right to use for economic purposes the land located under the country road, but with the obligation to build a new road not at a far distance from the previous one, and according to Art. 892. of the same Const. the owner may be forced to clear the old road if the new one is longer or worse (Cass. decision 1873, N 311). Like roads, the permanent bridges and highways lying on them, even if they were built by dacha owners and ordinary people, do not constitute private property: no private person can establish tolls from them or from roads for his own benefit from passing people (Const. Put. Commun., 802 according to Prod. 1893, 840, 841, 842 according to Prod. 1893, 843 according to Cont. 1893). Some highways built by private individuals and companies also do not constitute private property, although they are taxed in favor of those who built them at a rate determined by law (Put. Commun., 876–878, according to Prod. 1893, cf. Full. Collection. Law. 1871, N 49717, on the highway from Kyakhta to Baikal, built merchants). The fee can be established from floating bridges and transportation, if they are maintained by ordinary people, and then with various restrictions, according to a tax approved by the Ministry of Internal Affairs, in the Caucasus by the Chief Civil Unit, and in Siberia in the eastern and Amur regions - by the governors general (843 to Prod. 1893, 844). The right to use passage and travel on roads belongs to everyone without exception (Put. Commun., 523, Gr., 434; cass. 1877, No. 25); in the same way, the grass growing along these roads in dimensional space is an object of common use (Gr., 435. Put. Commun., 572). Whether roads are subject to statute of limitations - the law does not mention this. One would think that they are not subject to this, with the exception of country roads. The routes of communication that must remain free for everyone include the streets. Charging a fee for traffic on the streets is not permitted. In this sense, the State Council decided the matter of passage through the so-called. singing streets in Moscow (see Full. Collection of Laws of 1864, N 40954 a). Railways can be the subject of private ownership, but under the full control of the government, not only in structure, maintenance and management, but also in the number of fees determined by tariffs (Constitution of Railways, ed. 1886, art. 18, 68, 69). Moreover, it is recognized by law, and according to the charters published so far, it is clear that this property is classified as eternal and hereditary, for in all cases the government grants itself the right, after a certain period, to turn the road into state property, or even to buy it from a private person before the deadline (cf. Statute of the Railway, ed. 1886, art. 143, 144). Access roads to railways, arranged, with the special permission of governments, by individuals and societies, constituting the private property of the organizers, just like railways, can be subject to redemption when they are built with benefits or benefits from the government (Regulations on Access roads, ed. 1893, vol. XII, part I, art. 1, 37). These paths can be public or private; for communication on the former, a fee established by the government may be charged, but movement along access roads for private use, if allowed by the owner for unauthorized persons and cargo, should be free (ibid., Art. 4–6). 3) Waters and waterways of communication. Sea waters, even in inhabited areas, like all lakes, which do not belong to anyone in particular, are not subject to private ownership, but must remain in common and free use for everyone (T. XII, part 2, Ordinance of Agricultural Economics, ed. 1893, Art. 267). Local exceptions are allowed from this general rule, where fishing constitutes a quitrent article (ibid., Art. 328 et seq., 356, 492) or the property of special departments and estates, for example, the Tungus (ibid., Art. 280), etc. The general rule regarding sea waters is that they are not subject to private ownership, but remain in common use: exceptions are allowed only by special privileges from the Highest. authorities. Therefore, it was recognized that the city of Feodosia did not have the right to lease out fishing in the waters adjacent to the shore (Cass. Resolution 1880, No. 36). Navigable rivers and their banks (in the space of the towpath) are considered state property in the sense that everyone is free to travel along them (P.S., 82, 359. Gr., 434) and use the towpath. But at the same time, the law assigns to the owner of the dacha the right to the waters within its boundaries, in the sense of using all the fruits and growths and fishing, along all navigable rivers (Gr., 424, 425. Establishment of agricultural affairs, ed. 1893, 271). 4) Fortresses, ports, harbors, church buildings (except house churches), monasteries, public monuments, public cemeteries and the like. Can cemeteries be privately owned? This question should, it seems, be answered in the negative. The cemetery is a subject of public, but not civil law. Cemeteries at monasteries constitute the property of the monasteries and the income of the monastery as an institution. For city cemeteries, places are allocated from the city, on pasture land, and they are arranged by the general support of the inhabitants (Ust. Vrach., ed. 1892, art. 693, 695, 700). Rural cemeteries, although they belong to the dacha structure, cannot be converted to any other use. No structure can be erected on them. The abandoned cemetery remains untouched; coffins and dead bodies are not transferred from it, and it is prohibited to wrap it around (ibid., art. 701, 717). And about a place purchased in a cemetery, it cannot be recognized that it belongs to the property of the person who bought it. The one who buys the place does not acquire a patrimonial right to it, but receives, by condition, the right to exclusively use this place for burial; and, moreover, it is still doubtful whether this right should be considered a civil right. House churches with their movable property are among the properties that are not the full property of the owner. The existence of a house church is allowed only until the death of the one to whom its establishment is permitted; the church does not pass on by inheritance, without new permission; does not belong to the building in which it is located; upon the death of the person to whom permission was given, all belongings of the house church become the property of the parish church. Est. Spirit. Consist., ed. 1883 (P.S. Zak., N 1495) Art. 49. Can streets in villages be private property? Our laws do not give a direct answer to this question, but streets in villages can be subsumed under the rule about roads, of which they form a part or continuation when passing through the village. Nevertheless, the streets in the villages, since they serve for internal communication with local residents, within the boundaries of the village constitute its territorial affiliation by force of 387 Art. Zach. Citizen – Article 27 of the Place. cross. positive It was decided that streets in villages do not count towards the peasant's allotment and are not subject to duties in favor of the landowner. In the decision (Cass. decision., N 1275) of 1870, the Senate refuted the reasoning of the chamber, which recognized that in the village of peasants who bought their plots, the streets, together with the market square, should be, regarding trade on the streets, recognized on the basis. 27 and 43 art. Location cross. floor. belonging to the landowner. From Cass. decide 1871, No. 51, the following conclusion follows: the right of peasants to use roads on land remaining at the direct disposal of the landowner is assumed by itself by virtue of Articles 434 and 449. I part X t., if these roads are the subject of public or private participation rights. There is no need to look for an establishment of this right in the charter. Senate (Cass. decision 1873, N 704) on considerations 434, 437, 439, 440, 674 and 685 art. X Vol. I Part., Art. 82, 85, 87 clause 3 and 359 Const. Put. Message vol. XII, part I St. Zak. found that only those rivers on which navigation is open, with towpaths installed, and which, after a proper study of their suitability and ease of navigation, are declared navigable, are recognized as navigable rivers provided for general use; all other rivers, by virtue of Art. 424 t. X, part I, are for the use of those owners through whose dachas they flow. We cannot agree with this reasoning. The above articles and nowhere in the law say that rivers must be declared navigable or floatable by the government. The procedure for declaring rivers navigable and raftable has not been established, but it has been decided that rivers are excluded from the list of navigable and raftable rivers only by special order of the government authority. It follows from this that, within the meaning of the current legislation, all rivers on which navigation is actually open and on which rafting is carried out should be recognized as navigable and raftable, and that by virtue of this circumstance alone, navigators and raftsmen have the right to a towpath. In this sense, in 1890, clarification took place in legislative order (Const. Put. Commun., Art. 359, note 3 on cont. 1893). On the question of whether the land allocated by the city from the pasture for the city cemetery should be recognized as church land, Citizens. Kassats. The department found that the law does not at all establish the alienation of part of the pasture land allocated for the city cemetery in favor of a church or monastery located near the city cemetery, but defines only the well-known rules for landscaping in cemeteries (Ust. Vrachebn., ed. 1892, art. 695 et seq.), and imposes on the owners of the land on which they were built the obligation to fence them off or surround them with a ditch, without eliminating and public administration officials from monitoring the safety of public cemeteries and graves. As a result, by equating the city cemetery land with church lands, the Judicial Chamber (Saratov) violated Art. 400, 402 and 403 t. IX and 439 art. vol. X, part 3 (corresponding to Article 336 of the Int. Law, ed. 1893), since a city cemetery established on pasture land belonging to the city does not cease to be land belonging to the city, although it has a special purpose - only for the burial of the dead - and is therefore withdrawn from use and disposal for other purposes, such as economic purposes (1883, No. 23). § 8. Limitation of private ownership of certain property by type. Structures and buildings. Factories and industrial establishments. Estate property. Single-yard and Cossack lands. Icons. Cash and debt property. Restrictions on the acquisition of church estates Very many objects, due to their close connection with the requirements of state and public improvement and decency, are subject to private ownership not unconditionally, but only under special conditions and rules established by law and limiting the free will of the owner and his freedom of civil rights. For urban and rural buildings, laws set restrictions regarding the material, internal location, appearance of buildings, the area in which they can be built, and distance from other buildings. In other cases, amendments, alterations, and repairs to a structure require government permission; in other cases, it is prohibited to repair or rebuild the building at all. These restrictions especially multiplied in Russian legislation of the 2nd quarter of the current century, under the influence of concern not only for safety and well-being, but often exclusively for the appearance and beauty of buildings. Many of them were subsequently canceled or weakened. Of course, for rural buildings these restrictions exist to a much lesser extent. Moreover, restrictions of this kind apply to buildings and establishments that are industrial or have any public significance. These are, for example, slaughterhouses, guest houses, shops, baths, theaters, wells, buildings near the railway line (Railway Regulations, ed. 1886, Art. 153, appendix) and the like. Factories and factories are subject to special regulations. In crowded places, for example, in capitals, they can be arranged only in certain areas, in other places it is completely forbidden to organize certain types of establishments, in others their number is limited; for example, in the capitals it is prohibited to set up establishments that require a lot of hands and firewood (Statute on Industry, ed. 1893, art. 73); in any case, the establishment of all establishments and factories requires the permission of the government and city councils, when factories, factories and other industrial establishments, due to their harmlessness, can be allowed everywhere (ibid., Art. 69–72, 74). Some industrial establishments cannot be established everywhere; for example, it is prohibited to establish private gunpowder factories in the provinces of Bessarabia, Western, Privislyansky, Tauride, in the Caucasus Territory, the Turkestan General Government and in the St. Petersburg and Moscow districts (ibid., Art. 267); tobacco factories are allowed to be established only in capitals, ports, provincial and district cities: the opening of tobacco factories in provincial and non-district cities, towns, towns, villages, villages and other non-urban settlements is allowed only with the special permission of the Minister of Finance (Vol. V, Statute on Excise Duties, ed. 1893, Art. 700). There are productions that constitute a monopoly of the state administration or some departments and are completely inaccessible to private industry (Article 66 of the Industrial Regulations). There are establishments that are subject to special and direct supervision of the government, for example: mining plants, salt works, distilleries, oil, match factories, tobacco, sawmills (Vol. V, ed. 1893, Law on excise tax on petroleum oils, Art. 890 et seq.; Law on shares with lighted matches, 916; Vol. VIII, Part. 1, ed. 1893, Art. 493; Art. 1893, art. Tavern and drinking establishments, printing houses, lithographs, pharmacies (Ordinary Doctor, ed. 1892, Art. 556), warehouses of flammable, incendiary and explosive substances are subject to special restrictions and special supervision. E.g. Full Collection Zach. 1879, N 59848; 1882, N 864. About pharmacies Complete. Collection Zach. 1873, N 52611; 1881, N 511; Est. Medical, ed. 1892, Art. 364–373. There are real estates that can only belong to members of one class, and therefore circulate and are transferred exclusively within the circle of this class. In the former Shchukinsky courtyard, shops can only be transferred to such persons who join the society of Mariinsky merchants (Poln. Sobr. Zak. 1864, N 40984, art. 7). All the so-called local real estate estates in the region of the Don Army belong to the owners as property, but the law, having in mind the integrity and inviolability of all estates that make up the service fund of the Don Army, until recently did not allow other owners within the boundaries of this region, except those who belong to this army, and therefore Don officials could sell and transfer their estates on the Don only to the same officials (Kaz., 210, 214 according to Prod. 1863). But in 1868 (Poln. Sobr. Zak., N 45448) this prohibition was lifted. Officials in. Donskoy, both non-estate and local, are subject to general laws in the ownership and disposal of their estates. In all Cossack troops without exception, Russian subjects of the non-military class have the right to acquire ownership of houses and all kinds of buildings (Law Civil Code, Art. 1403). The land under the buildings, while remaining the property of the army or local society, is in the constant use of the acquirer for the required fee; on the same basis, non-residents can build on military land, with the consent of the authorities. The ban on selling estates on the Don to non-residents did not exist until 1858. Before that, before 1835, landowners considered their lands not theirs, but military lands. In 1835, they were approved by the landowners as the property of 15 dessiatines per revision peasant soul, with full right of alienation, and only in 1858, according to the provisions of the Military Council, this right was limited, in the form of maintaining the isolation of the military class, and the sale of Don estates to non-residents was prohibited. I consider it not superfluous to point out the restrictions that exist for other Cossack troops, since they partly remain in force. Nonresidents are granted the right to own real estate in the following places: in the Orenburg and Ural troops; in Kuban - in the city of Ekaterinodar, in the villages where the District Directorates are remarkable for trade and industry, and in the places that remained free, after the resettlement of the Cossacks to the front lines, and in the Terek army. This right in the villages of the Ural and Orenburg troops, with the exception of Uralsk, Guryev town and Iletskaya Zashchita and Orskaya village, is limited to the construction and acquisition of premises only for the sale of drinks; and in these last places and in the villages of the Kuban army, where the District Directorates are located and which are remarkable for trade and industry, it extends to the purchase and acquisition of houses and trading establishments for all kinds of industry, in Ekaterinodar, in the places remaining free in the Kuban army, for the resettlement of the Cossacks to the front lines, and in the Terek army - it extends to the acquisition of estates. The land under buildings is permanent property: in Novocherkassk - the city; and in Uralsk, Guryev town and Iletskaya village and Kalach - troops, in other places - villages. Non-residents are required to pay an annual fee for the lands under buildings to the income of those places whose property they are, and for the lands acquired by them, also an annual fee. among non-residents who are allowed to acquire real estate in the designated places, with the exception of only Uralsk, Guryev town and Iletskaya village, persons of all classes are named, i.e. merchant, industrial and craft ranks, clergy and officials who have a permanent stay there due to service duties or due to family ties with the Cossacks; in the decree that allowed permanent installation in the three above-mentioned places, there was no mention of persons of clergy. The acquisition of buildings does not give non-residents the rights to either land allowances or civil rights belonging to the Cossack class. The highest supervision over the arrangement of buildings belongs to the Military Board. see 2 note according to Cont. 1863 to Art. 409 II volume of the Holy Institution. Cossack. 1134 art. II volume Uchr. Kaz. according to Cont. 1863 St. Military. Post., part 1, book. 2, 4933. Pos. Military Sov. 20 Dec 1862 and January 28 1863 About Kuban. army of the High. approved positive May 10, 1862 about the settlement of the foothills of the West. part Kavk (P.S. Zak., N 38256). About Tersk. V. High Rescript Jan 3 1865; see Full. Collection Zach. 1867, N 44504. The lands of the Little Russian Cossacks are considered the property not of society, but of their owners, but at the same time they are considered forever Cossack, i.e. subjecting the owner to the fulfillment of duties assigned to the entire class, and therefore can only be sold to Little Russian Cossacks (IX. 763, 764). General position about the cross. (Article 37) it was decided that peasants dispose of acquired peasant allotment lands and purchased estates with restrictions - namely, they cannot alienate them or mortgage them to outsiders who do not belong to the society for 9 years. A similar rule was established regarding some other categories of rural inhabitants, on the occasion of their liberation with land. With dismissal from society, the peasant must refuse to participate in the worldly allotment (Article 130 of the General Pol.; see also Full. Collected Laws of 1868, N 46133, Art. 41, etc.). For this reason, see about the rights of persons of the non-military class in the Kuban army (Full. Collected Laws of 1876, N 48640). See art. 763 et seq. Vol. IX about the cases in which little growth is permitted. Cossacks to sell Cossack lands to persons of non-Cossack origin. On limiting the right to dispose of estates in villages near the Novogeorgievskaya fortress (Complete Collection of Laws of 1875, N 55370). Restrictions on the right to use and dispose of forests encumbered by peasant easements in the Kingdom of Poland (Poln. Sobr. Zak. 1875, N 55435). Ownership restrictions in schedule forests in some districts of the Tauride province (Complete Collection of Laws, 1876, N 56323). Following the publication of rules on February 10, 1869, on the sale of public Bashkir lands and lands, cases of alienation began to appear in which vast areas of these lands, mainly forests, passed for next to nothing into the hands of individual private individuals. The closest study of this phenomenon discovered that some sales were made in clear violation of the above law even before the delimitation of the dacha with the patrimonials and before the issuance of an established certificate guaranteeing the inviolability of the patrimonial plots, according to sentences passed through deception, threats and violence, and indicated at the same time that such land purchasers, not inclined to conduct proper farming, concerned only with the speedy extraction of monetary benefits, cut down forests and sold them made up large capital for themselves. To eliminate this order of things, which caused damage to the property interests of the Bashkirs and had a detrimental effect on the economic conditions of the region, the government took measures that received final expression in the publication of the law on June 15, 1882, by virtue of which free public Bashkir lands could be sold only to the treasury or to peasant societies, and to restore the justice violated by the above-mentioned transactions, the law of May 9, 1878 granted the highest administrative power in the region, in the person of the former Governor-General, the right to initiate, in the specified order, with the imposition of prohibitions on the estate, claims for the abolition of already concluded incorrect serfdom deeds on the land sold by the Bashkirs. Seagoing and river vessels intended for navigation and transportation of heavy loads along waterways cannot be given an arbitrary shape, namely the one assigned by the government for different terrains and fairway sizes. They are certified during construction and during passage (U. Lesn., ed. 1893, 405, 712, 714. Establishment of Put. Communications, 95). Merchant ships are subject to mandatory capacity measurements according to special rules (Constitution of Trade, ed. 1893, art. 124 et seq.). Some items of trade and trade, although they are among the natural products of the earth, belonging to the owner by right of full ownership, are subject to various restrictions and awkward formalities in their circulation. These are, for example, the restrictions of the owner of a forest dacha and industrialists in the rafting of timber cut down from the dacha and in the market sale of it (699, 708 Art. of the Forest Code, ed. 1893). This includes regulations on the hallmarking of weights and measures, on the hallmark and hallmarking of gold and silver products (Cf. Ordinance of Trade, ed. 1893, art. 651 et seq.; 668). Among the military items and projectiles that serve the defense of the state, a distinction is made between projectiles, the use of which is available to one government (for example, guns, armor for ships, underwater mines, etc.), from objects, the use of which is also available to private individuals (for example, hand guns, cartridges, bullets, etc.). Privileges cannot be granted to the former, but to the latter they can (Industrial Regulations, ed. 1893, Art. 176). Retail sales of wax candles (by the count or weighing less than 20 pounds) are assigned exclusively to churches and shops set up by the church; in factories and general wax shops, only herd sales are allowed (P.S. Zak., Uk. 1808, N 23254; High. approved by the State Council. 1837, N 10606). Rules on the sale of gunpowder (Industrial Regulations, ed. 1893, Art. 273, note, appendix). On the manufacture and sale of playing cards (Full Collection of Laws, 1875, N 54868). New Assay Charter (Full Collection of Laws, 1882, No. 663; Statute on Industry, ed. 1893, Art. 489 et seq.). There is another type of thing that, by its nature, is subject to special legal restrictions - icons. It is a work of art and a thing, but a thing with which religious representation and religious veneration are associated. As a result, both the production and the circulation of this thing are not completely free, but are subject to various restrictions. The making of the icon itself is subject to special forms; they must be written in a certain form (Constitution of the Pres., ed. 1890, Art. 91 et seq.). Icons are not unconditionally and not completely, not to the same extent as other things, considered the property of the one to whom they belong; the law, considering them sacred objects, shows, on the one hand, a desire to remove them from circulation; but, on the other hand, an icon as an object of art and handicraft, as a thing, according to the conditions of civil life, must certainly have a certain value, which is recognized in circulation, and therefore cannot be unconditionally rejected by the law. But at least the law does not recognize market trade value for icons, and when it mentions the circulation of icons, it excludes the formal concept of sale. And in ordinary language they say: exchange icons. And the law, when it is necessary to express the concept of selling them, speaks of receiving a cash sum in return by mutual agreement (L. Gr., Art. 279). When selling the property of debtors, icons are excluded from it and do not go on public sale, but, without separating the salaries, are given to one of the plaintiffs by voluntary agreement with the debtor, and their price is included in the total amount of capital that goes to satisfy the creditors. If there is no agreement, the icons are given to the nearest parish church. They cannot in any way be ceded to Gentiles and non-Christians. If the frames turn out to be already separated from the icons, then it is ordered, leaving the sin on the conscience of the one who removed them, to turn them into sale, having first turned them into ingots and disassembled the stones and pearls (Vol. XVI, part 2, Pol. Vzysk. Civil., Art. 352, 353). Similar rules are established in the new judicial statutes (Ust. Civil. Court., Art. 1043 and 1044; Cass. decision. 1873, N 351); according to the new statutes, if icons do not have vestments and valuable decorations, then they are not at all subject to seizure from the debtor (973). Non-Christians of other faiths, when they inherit icons, parts of relics, etc., are obliged to transfer them into the hands of the Orthodox or to the church within 6 months; otherwise they are selected for the consistory (Z. Gr., 1188, 1189). See also rule 1186 art. Zach. Gr. Persons of non-Christian religion are prohibited from publicly selling icons, etc. objects honoring Christians (Const. Prev. Prest., ed. 1890, art. 100). The stated restrictions, which, however, are difficult to list all, stem mainly from public law. But there are properties of things that relate especially to their civil nature and stem from civil law. Our law does not mention the division of property into physical and mental (r. corporales and incorporales). We mention the division of property into cash and debt (Z. Gr., 416, 419); but this division is not carried out with complete consistency and does not completely coincide with the strict system of dividing rights into real and personal. A person’s cash property is considered to be things and everything that he himself has produced and belongs to him, and debt is considered to be everything that belongs to us under obligations and that is owed to other persons, therefore, claims and demands. Note 1. Ownership of real estate, and especially land, throughout the centuries was subject to various restrictions and prohibitions, as it was due to differences in class rights. Now almost everywhere restrictions of this kind have been lifted. Those that remain in force are explained, regardless of class differences, by other state considerations. This subject will be discussed in more detail in the doctrine of persons; Here we mention only some of the most important restrictions. This is, for example, the restriction on the rights to own real estate of various kinds of societies, corporations, especially church institutions, churches and monasteries - to acquire real estate. This limitation is explained, firstly, by the care of the state power to ensure that as little as possible there are properties withdrawn from free circulation and inaccessible or not easily accessible to private industry, and assigned to legal entities that maintain them in inalienability (manus mortua). Obviously, the greater or lesser urgency of this consideration depends on the economic development in society. Where the market for land values ​​is developed to the point that it is difficult to find spaces on it that lie idle without circulation and development, there, without a doubt, the ownership of large spaces by corporations and church institutions has a sensitive and harmful effect on the national economy, and it is understandable on the part of the state to limit the further multiplication and expansion of such holdings. But where the market value of lands is meager, uneven and unproductive due to the underdevelopment of economic relations, where the entire territory is filled with idle lands awaiting any kind of development, there an unconditional restriction in the sense shown would not be justified in practice or would lead to consequences contrary to the intention of the legislator, i.e. would lead to the destruction of existing, although perhaps meager, centers of productivity, where one cannot count on the formation of new, stronger and more active centers. Secondly, the mentioned restriction is explained in some legislation by the historical struggle between the church and the state. Nowadays, in all European states, although there is no decisive prohibition by church regulations from acquiring real estate, this acquisition is made dependent on the permission of state power, in which obstacles are rarely encountered. The new Italian legislation expressed itself more decisively than all others (which is explained by the struggle between the church and the state that had reached an extreme degree); in Italy, the state power, having eliminated all direct ownership of ecclesiastical institutions in lands, through a general and decisive secularization of property, replaced this ownership with a state rent in favor of the churches, commensurate with the amount of ownership. North American legislation, which sharply separates the state from the church, which has the legal significance of a spiritual corporation, determines the measure of value to which churches are allowed to acquire real estate, or allows acquisition to the extent of actual need, the determination of which is left to the court. However, the same legislation, as well as the English one, eliminating or limiting direct methods of acquisition and ownership, also leaves for churches an indirect method of ownership and use, characteristic especially of these legislations, through third parties (trustees), who own property, on behalf of the donor or alienating transferor, for the benefit of the church institution. In North America sometimes even allows the corporation itself to acquire property in its own name, as long as it manages it not directly, but through third parties who do not belong to the corporation (Collegium of Trustees). In Russia, as we know, monasteries and churches can acquire uninhabited real estate only with the Highest permission (IX, 386, 398). The rights of private companies to acquire real estate are determined by their charters. Regarding banks, in 1872 it was decided that they can only acquire property necessary for the establishment of their own and their institutions; but the acquisition of real estate for debt is not allowed to banks: property that came into the ownership of the bank due to unsuccessful or unsatisfactory bidding, the bank is obliged to sell (Constitution of Credit, ed. 1893, section X, article 7; 53). Persons of Polish origin are prohibited from acquiring ownership of landowners' estates in the nine western provinces by any other means than inheritance by law (Zak. Civil., Art. 698, note 2), as well as lands located outside cities and towns, for lifelong possession (ibid., note 5 according to Prod. 1891). Acts and transactions on the transfer of the aforementioned estates to persons of Polish origin were ordered to be considered invalid. Therefore, it is hardly possible to recognize the decision of the Citizens as agreeing with the exact meaning of the law. Cass. Dept. in the Lipsky case, in which the Department, guided by the Highest approved opinion of the State Court. Council on May 17, 1877 (P.S.Z., N 57377) in the Voinilovich case, i.e. by a separate decree, recognized that the transfer of an estate in the provinces subject to the law of December 10, 1865, to a person of Polish origin not by inheritance by law, but by acts made by the owner in the name of his legal heirs, can be recognized as not contrary to the spirit and purpose of the said law, but only on the condition that the transferred estate passes in the same amount in which it should come into the possession of the acquirer and upon the opening of inheritance in his favor by law, because in such a case everything that would have gone to the acquirer in excess of his inherited share would have passed to him, contrary to the law of 1865. (1886, No. 55. Compare Cass. decision 1883, No. 98; 1886, No. 50). In applying the Highest Order prohibiting the transfer of landowners' estates to persons of Polish origin, difficulty was encountered, since it does not express positively whether this prohibition extends to uninhabited spaces of land with fixed centers, such as courtyards, dachas with residential buildings (in the local expression, farmsteads), as well as forest and hay dachas and individual empty plots of land that do not belong to populated landowners' estates. The Senate (for the 1st Department), in 1868, found that in 9 western provinces, due to the compulsory redemption of the peasant allotment, there were no landowner estates already inhabited by peasants, and then the name landowner estates can only be applied to the master's lands and estates remaining behind the peasants' allotment, called farmsteads in the western provinces. By excluding the farmsteads from the prohibition of the sale of landowners' estates to persons of Polish origin, any practical application of the Imperial Decree of December 10, 1865 would be eliminated, for from the previous composition of the inhabited estates, after the redemption of the peasant allotment, the landowners were left only with the farmsteads with the lands belonging to them, and forests and quitrent articles. In the above-mentioned Highest command, no exceptions were made for estates or populated lands within the city limits, therefore, they are subject to the same prohibition, since the lands, according to their economic composition, represent farms, i.e. landowner's estate. The restrictions that we had for foreigners were abolished in 1860 (IX, Art. 1003), but recently in some areas restrictions on the acquisition of real estate by foreigners have been re-established; Thus, foreigners are prohibited from acquiring real estate in the Turkestan region, in the regions of Akmola, Semipalatinsk, Semirechensk, Ural, Turgai, Amur and Primorsky (1003, note 3, according to Prod. 1890; Law. Civil., Art. 698 note 7 and 8, according to Prod. 1893 g.) and outside the port and other urban settlements in the provinces of the Kingdom of Poland, Western, Bessarabian, Courland and Livonia (vol. IX, art. 1003, note 2, appendix, according to Prod. 1890). Jews have the right to acquire in the places of their settlement by purchase and other means all kinds of land, except for inhabited estates (IX Vol., Art. 959), with the limitation, however, that in the nine western provinces they cannot acquire land from landowners and peasants (ibid., 959, note 3 according to Prod. 1890). However, recently, by the regulation of the Committee of Ministers on May 3, 1882, the execution of deeds of sale in the name of Jews on real estate outside cities and towns was temporarily suspended (Article 959, note 4 of the 1890 Prod.), so that the rule of Art. 959 Volume IX is actually no longer valid. On the prohibition for Jews to acquire ownership of real estate in the region of the Don Army, see Ord. Passportn., ed. 1890, art. 13; Pos. oh the view. for residence, June 3, 1894, opinion of the State. Sov., paragraph V, VII. Note 2. Not without significance for private citizens. rights, the distinction between dachas with a lot of land and those with little land, which exists in our country and is mentioned in places in the law. It has a legal meaning, especially when determining the size of a land plot; see, for example, Full. Collection Zach. 1876, N 55687, art. 6. § 9. Movable and immovable. Signs and distinctive properties of real estate and movable property. Homes on foreign soil. Perishable and incorruptible property We have the most important and most practical division of things into movable and immovable. The legal difference between these concepts is ancient, but the terms themselves are used in legal language no earlier than Peter. We do not find in the legislation a general principle by which one should judge whether property belongs to one or another category: they are assigned to one or another category directly by the letter of the law, calculating the types themselves. Lands and all kinds of land, villages, houses, factories, factories, shops, all kinds of buildings and empty courtyard spaces, all with legal accessories, as well as railways with all their accessories are recognized as immovable (Z. Gr., 383, 384. Establishment of railways, ed. 1886, vol. XII, part I, art. 138). Should a house built on someone else's land be recognized as real estate or movable property? There are difficulties in resolving this issue; although houses in general (Article 384) are recognized by the law as immovable, a house also loses the meaning of immovable when it is separated from its inseparable connection with the land. However, this separation, in a house built on someone else’s land, is not necessary, legal: it receives legal significance only from the minute when it is accomplished in fact, by the deed itself, by necessity or by the will and purpose of the owner. So, for example, if a house is sold or transferred from one owner to another, in all its economic integrity, as was the case with the transferor, then it appears to be real estate; if it is sold or transferred for export, then it is movable, a totality, albeit integral, of building material. In the transition by inheritance, it is fair to understand such a house as immovable, if at the moment of transition it retains the economic significance and value of the immovable house, but if the transition is necessarily connected with the demolition of the building, then the house is movable. There is a positive rule in the law regarding houses built on state-owned public land (Article 319, Part 2, Vol. XII of the Establishment of Village Wealth): such houses are ordered to be recognized as real estate (Cf. Cass. decision of 1869, No. 475 on the question of what property should be recognized as a peasant house during division. Another decision of 1870, No. 669; 1871, N 272, 468; 1872, N 1035. In decision 1871, N 558, the Senate argues: in Article 384 of Part X, houses are classified as real estate, and Article 401, listing the types of movable property, does not mention houses built on someone else’s land; therefore, such houses constitute real estate; But this rule is necessarily subject to the above restrictions in application. It is obvious, however, that only a building intended for permanent residence and having a strong connection with the ground (a solid foundation), with a set of buildings serving it, can be recognized as a home, and not a separate building that has a non-residential and temporary purpose (for example, a booth, a barn, etc.). The sale or transfer of a house built on someone else's land usually requires the completion of a serfdom. For proprietary cities and towns in the western provinces, there is a special rule that houses built on the owner's land are transferred according to the conditions, with the approval of the landowner, without committing serfdom and collecting debt. duties (Vol. V, ed. 1893, Statute of Duties, Art. 193, note); but this rule obviously has only local significance, being caused by the local need to facilitate the ways of establishing the rights of local householders who have lived on the owner's land from generation to generation. Cass. decide 1872, N 251, it was recognized that a house built on city land, by force of 384 art. Zach. Gr., belongs to real estate, and that therefore the issue of ownership of this house, raised by a private person on the occasion of an inventory of it for the debts of another person, was not subject to a decision by the magistrate’s court. 1874, N 515. A house, although built on someone else’s land and sold for demolition, cannot be considered movable, firstly, because nowhere in the laws is it established that houses and buildings erected on one’s own land are considered immovable property, but those built on someone else’s land are considered movable property, and, secondly, because the difference between movable and immovable property follows from their very property, which determines the possibility or impossibility of movement without losing its integrity and appearance. Therefore, a house built on someone else's land and sold for removal continues to be real estate as long as it remains in the possession of the previous owner, strong on the ground and in a form that corresponds to the concept of a whole house, and is not reduced to the state of a pile of materials. 1873, N 737. According to Art. 384. X Vol. I Part. houses are classified as real estate without the reservation that this applies only to buildings reclaimed on their own land; This is how it was explained in the decisions of the Rights. Sep. 1869, N 537; 1870, N 609; 1871, No. 272 ​​and 558, etc. In the decision of 1869, No. 583, it was explained that buildings erected on someone else’s land under the condition that after the end of the lease period they become the property of the owner of the land, do not belong to the tenants by right of ownership, but only by the right of use and temporary possession, which is why the transfer of these rights is carried out not by deed of sale, but by other legally established methods; but it does not at all follow from the meaning of this decision that such buildings are classified as movable property. 1876, No. 127. Houses and other buildings, although erected on someone else’s land, constitute immovable estate with the exception of only buildings erected on someone else’s land with the purpose of demolition (cf. Cass. decision 1875, No. 321). 1874, N 159. A house not subject to demolition, on the basis of Art. 383 and 384 t. X, part I, constitutes real estate, regardless of whether it is built on land owned by the owner of the house or on someone else's land. 1873, No. 444. The acquisition of a building for demolition, without land, can be accomplished without a written act in the manner established by Art. 710 t. X, part I (corresponding to art. 711, ed. 1887) for movable property, therefore, a claim for the right to demolish a structure, without assigning the right to own it inseparably with the land, as a dispute concerning only the right to the material from which the structure is built, cannot be counted among the claims for real estate withdrawn under art. 31 Set. Gr. Court. from the department of magistrates. Real estate alone can be considered family property. Real estate in one way or another is necessarily under the control of the government, because it is subject to duties and cannot escape from them; it serves primarily as security for private loans and private claims that fall on it, so that even though it is in the possession of its owner, it can be free and unfree, clean and burdened with debts; its transfer is associated with many formalities that are not at all known when transferring movable property, and its transfer is connected with the necessary transfer of obligations and duties both to the government and sometimes to private individuals. Ownership of real estate requires certification, strengthening, and a deed. The owner of the property is presumed to be the owner until the contrary is proven. Movables differ from immovables in the inheritance rights of the spouse and daughter: the measure of the specified portion of both property is not the same. Movable property is also only listed by law. We do not express a general principle by which movable property should be distinguished. This deficiency often gives rise to questions that cannot be resolved without the help of the legislator. So, for example, there is no beginning to resolve the question: what to classify as a set of movable things that have a greater or lesser immovable mass, for example, a pharmacy, a store. Cash, capital, letters of borrowing, bills of exchange, obligations of all kinds belong to movable property (402). All these are signs of rights, rights and claims that are part of property, and not things in the proper sense, but our law understands them in a material sense, and therefore concerns the question of whether these rights belong to movable or immovable property. On this basis, movable property includes, for example, the right to live in a house under a rental agreement, although this right also extends to real estate; the right to use leased land; the law specifically mentions the right to develop gold mines allocated to private individuals on state-owned lands (Z. Gr., 403), positively classifying it as movable property. 1873, N 853. Although, according to Art. 402 t. X, part I, bills are recognized as movable property, and according to Art. 534 movable things are considered the property of the one who owns them, but the right of recovery for obligations is valid only between the contracting parties and their successors (569), therefore it does not belong to any third party, but only to the one in whose name the obligation is written, or to whom the first acquirer was legally transferred. According to our law, movable property is further divided into perishable and incorruptible, i.e. subject and not subject to rapid deterioration and damage, or destruction from consumption (405 Gr. Z.); The incorruptibles include: gold, silver, stones, dishes, haberdashery; to perishable things: pearls, furs, dresses, supplies, etc. The practical importance of this division is insignificant in a legal sense. This property determines the greater or lesser difficulty in storing things, the greater or lesser urgency of turning them into money, when there is no one who could freely dispose of them with the right of full ownership, for example: under guardianship, under a competition. Imperishable things, preferably before perishable ones, are accepted as collateral in some banks and credit institutions. regulations See, for example, Full. Collection Zach. 1865, N 46685. Wed. Est. Prev. Pr., ed. 1890, art. 298. Regardless of the property that a thing has in itself and in relation to other things, our law in other cases distinguishes the meaning that belongs to a thing according to its use to satisfy the necessary vital needs of the owner, or to maintain his household. In this sense, it was decided that some things belonging to household movables or household equipment should not be seized when recovered from the owner (Vol. XVI, Part 1, Constitution of the Civil Court, 973, 974). § 10. Accessories of real and movable property. Accessories of inhabited estates. Factories Houses Signs of belonging. The belonging of the movable to the immovable and to the movable. Redemption loan, claims, fruits, costs In connection with this division there is such a relationship of some things to others, according to which some serve as belonging to others; this does not always mean that belonging is necessary; it does not always mean that one thing cannot be conceived without the other. You can purchase a thing and own it without accessories. Things can be either by their nature, or by the nature of their use, or by purpose and the will of the owner, so that one serves as a complement to the other, belongs to the other not as a homogeneous part to the whole, but as an organic part to an organic body. When the face of the owner changes, and when a thing passes into other hands, this relationship is separated, then the question may arise: does one of the separated things follow to the other, as belonging to it. So, for example: a village is a collection of various individual things belonging to its composition, so that all together constitute one immovable estate. In particular, by the nature of real estate, it serves as a container for many movable objects and at the same time as an economic center, around which individual real estate plots are grouped. For example, a village includes a house, an estate, various lands, forests, meadows, wastelands, etc. The economic establishment, landowner's tools, livestock, grain, buildings, etc. also belong to it. during a sale, pledge, mortgage, it is not possible and not customary to designate by name everything without exception that is connected to the property by a mechanical or economic connection, and therefore the question may often arise: what exactly should be considered the property of the buyer as belonging to the estate, and what the previous owner has the right to keep as a thing separate from the estate. A house is rented out: the house also consists of a totality of both immovable parts and movable things belonging to it. The question may arise - which parts of the house and things should be given to the tenant for use by force of hire, and which the owner of the house, without violating the contract, can have as property separate from the house? For example, can he refuse to the renter winter frames, door keys, use of a well, mirrors, paintings that hung on the walls, etc. Affiliation is sometimes so obvious that it does not raise doubts; but sometimes doubt is possible, and in such cases a determination of law is required. Our legislation calculates in detail the ownership of lands, populated estates, factories, factories, houses, etc. The properties of inhabited lands are: church and other buildings, courtyards, mills, bridges, carriages, dams, and roads (Z. Gr., 386). Land properties in general: rivers, lakes, ponds, swamps, roads, springs and the like, all products found on the surface of the earth and all hidden minerals in its depths (387) 244. Supplies of factories and factories: establishments, buildings, utensils and tools, lands, forests, mowing, ore, salt brines, pipes, minerals (388) 245. On the ownership of tools and machines cf. cash register 1877, N 167, 175. In decision. 1880, N 151 see: in what sense is a forest recognized as part or accessory to an estate or an income item. In the regulations on the Turkestan region of 1886, wild forests on lands owned by the native population are recognized as state property; therefore, these forests, within the meaning of the law, should be viewed as separate, independent property, and not as an accessory to the land. Likewise, according to the same provision, buildings and plantings on someone else’s land, which are in the use of householders, are recognized as their full property (Vol. II, ed. 1892, Pol. Turk. Territory, Art. 257, 260, 275, 278). The accessories of an individual household, making up the mass of things needed for it, are sometimes called inventory (see Inst. of the Kazakh estates, ed. 1892, art. 5, 6; Inst. of village improvement, art. 115). 1872, N 1254. The actual meaning of 386–392 art. Part X, Part I, about accessories and main property is that the former are legally assumed to be the property of the owner of the latter and the contrary must be proven, but they do not at all give the owner of the main property the right to freely appropriate his accessories, which constitute someone else’s property. 1873, N 1180. by virtue of Art. 386. X Vol. I Part I buildings are recognized as belonging to the land on which they are erected, and therefore should be considered the property of the one to whom the land itself belongs, unless it is proven that the private owner, having retained the right of ownership to strengthen the land, separated ownership from this right and transferred it to another. 1890, No. 52. In the Sergeeva case, the question arose: does the owner of a factory or plant, leased according to the inventory, have the right, at the end of the lease period, to demand the return of the plant with all those machines, tools and utensils that were purchased by the tenant at his own expense, if the lease agreement does not say anything about the future fate of these machines, tools and utensils - and if he has the right, then do these items go to the owner factory or factory free of charge, or with remuneration to the tenant for everything that turns out to be in excess of the inventory. To resolve this issue, the Senate reasoned 1) that 388 Art. I hour X t., which determines that the ownership of factories and factories consists of all factory buildings, utensils and tools, cannot be interpreted in the sense that all machines, utensils and tools located in such factories must be recognized as belonging to the owner of the plant or factory by virtue of his property rights to this property and must be left to him at the end of the lease period free of charge, because illegal and even unscrupulous owners are allowed by law to take from someone else’s estates, everything that they contributed or acquired, if this can only happen without destroying the property; 2) that, on the other hand, the tenant, if he has delivered such machines to the plant that are brought into such an inextricable connection with the buildings of the plant that they cannot be removed without damaging the buildings themselves, does not have the right to break out these machines without permission, if the owner of the plant, without demanding that the plant be brought back to its previous condition, prefers to keep the machines for himself, and other items transferred or transported to it by the tenant, if only they can be separated with convenience and without damage to buildings of the plant, the tenant has the right to take with him, and 3) that it is the owner’s responsibility to compensate the tenant for those machines that are left to him in his favor not at the price at which these machines cost the tenant, but only within the amount by which the cost of the plant at a given time increases due to the presence of the said machines on it. As a result, the owner is exempt from such remuneration in those cases a) when it is discovered that the improvement was made from the owner’s materials, and b) when this improvement is a luxury item and is not only not necessary, but does not provide the plant and its owner with any benefit. The property of houses is considered to be parts of them that make up the interior and exterior decoration, and those decorations that cannot be separated from the building without damage, such as marble and piece floors, fireplaces, wallpaper, mirrors in the walls (Gr., 389; vol. XVI, part 2, Pol. Execution. Civil., Art. 63). Accessories of a bench are parts that make up the interior and exterior decoration of it (Cass. 1876, N 150). the accessories of real estate include acts of strengthening of their ownership (Gr. Zak., 390, vol. XVI, part 2, Pol. Execution. Civil., art. 87, 88, 91). These accessories are listed by name by law, but the general principles are not expressed in it; one can only distinguish some grounds of accessory recognized by law: mechanical and organic connection, economic significance and economic necessity; the impossibility of separating one object from another without upsetting or disturbing external harmony and appearance. There are cases in which the law recognizes the impossibility of separating one item from another without economic or business damage. So, for example, an unscrupulous owner who owned an estate unlawfully is obliged to return it to the rightful owner in the form in which he received it, and if he himself transported or transferred various objects there, he can take from the estate only in this case if they can be separated with convenience and without damage to the estate (Gr., 611). When putting up for public sale all or some part of a real estate estate owned by one owner, the question arises: in what composition should it be put up for sale in order to attract the largest number of buyers? Sometimes it is profitable to put the entire estate on sale as a whole, sometimes in separate parts. The law specifies in which cases estates are sold together (if, by law, they are inseparable or consist of a common boundary) and in which they are divided into plots. The owner of an estate in which division is possible by law, in any case, has the right to demand division (see Vol. XVI, Part 2, Pol. Execution. Civil., Art. 237. In Art. 241 of the same Regulations, see the rule how movable property cannot be separated from immovable property without disorder and is subject to sale together with it). A special question about the appurtenances of an immovable inhabited estate arises when making an inventory of estates put up for sale, pledged under private mortgages or in credit institutions, when it is necessary to determine what should go on sale with the estate as its accessory, and what can be taken out of it by the owner. In this case, the law classifies as inseparable accessories of immovable estate everything that constitutes agriculture, serving to maintain the master's economy, i.e. a) livestock used for rural work with the necessary agricultural tools; b) from the stockpiled supplies of food and fodder, the required amount for the first sowing and for feeding the house and livestock until the next harvest; c) factory machines and tools, utensils belonging to the factory, as well as all things fixed in the walls; d) livestock, bees and birds. On the contrary, provisions and fodder stored in reserve or for sale, constituting income from the estate, herds and herds, factory cattle raised in addition to ordinary livestock, and all movable things in general that are not related to the property of the estate itself, should be considered separate from it (Const. Cred., ed. 1887, section VIII, art. 30, 38. Gr. 392. Mn. State Council. January 25, 1837 according to the village of Pisemsky and Shcherbatova. It is fair to consider as belonging to real estate not only the economic establishments established in it, which make up the general economy of the estate, but also various kinds of quitrent and income items that presuppose the establishment of a fund from which income is obtained as a separate item, such as drinking houses, taverns, taverns, bazaars, shops, etc., but it would be unfair to consider factories and plants that require fundamental organization as a necessary accessory to the estate. having a special economic integrity and requiring completely separate economic management, for example, a distillery. Questions about whether such establishments belong to the estate are of particular importance when satisfying mortgages in which they are not named, contrary to the instructions placed in the forms of the mortgage and deed (appendix to 1420 and 1643 Art. Gr. Zak.). For example, we can point to the case of Chukhuryan and Sofonova in 1 General. Sep., 1870 The law also mentions: accessories of the state quitrent plot (Ust. village economy, edition 1893, art. 23, appendix, art. 28); composition and accessories of the settled estate of the time. obligated peasants (vol. IX, esp. adj., Local great. position, art. 37 et seq. Malor. 25. Gornozav. 18). In addition to the law, the ownership of real estate can be determined by a government act or fortress; for example, in a general land survey plan, all wastelands belonging to a certain dacha and consisting of one circumferential boundary can be designated; in the act by which the reserved estate was established, its accessories are indicated, such as: family papers, collections, etc. (Gr., 391). Or accessories may be determined by contract. Thus, the deed of sale indicates everything that goes on sale along with the estate. But when the boundaries of the property or all its accessories are not defined in the deed or are not clearly defined, then the question may arise about the accessories of the sold estate having a real relationship to it. Similar questions arose very often in the past, due to the great uncertainty of patrimonial rights, which were often transferred without proper strengthening; but they arise quite often even now. Here the question usually becomes: did such and such land attract such and such an estate, and from what time? For example, such a case: two estates in the same area were sold by the owner into different hands, so that the owner himself left nothing for himself. It turns out that there is some kind of wasteland that is not named in any of the deeds of sale, and a dispute arises as to which of the two sold estates it should be included in according to the right of sale; it is necessary to find out which of the two estates this wasteland led to, for the estate is usually sold with everything that belongs to it. Among the accessories of an immovable estate, there is also a real right to land located in other estates, but belonging to this estate (compare elsewhere what is said about the patrimonial right of entry, grooming, fishing, etc. in other people's dachas. Gr., 453, 363). A special patrimonial affiliation of real estate estates in some areas, namely in the Baltic provinces, is called so. the right of patronage when it is connected with the estate, i.e. the right to choose or recommend a pastor and preacher for this estate (XI vol. Establishment of in. isp., art. 657–667). The right to receive a redemption loan for peasant plots on this estate should also be respected as belonging to an immovable inhabited estate. When an estate, together with peasant plots, passes to another owner (for example, in the event of a sale at public auction for debts), the question may arise: should the right to a redemption loan be considered as belonging to the new owner who passed to him with the estate? This question does not raise doubts if, before the sale, the previous owner had not yet drawn up a redemption agreement with the peasants (or, in appropriate cases, the redemption verdict or redemption act had not taken place); for in these cases it is undeniable that the previous owner had, before the transfer of the estate, only a patrimonial right to the property, inseparable from all its accessories; on the contrary, after drawing up the act (of course, on the assumption that the act was subsequently recognized as correct and received approval), the question may arise: is a redemption loan scheduled for issuance after the sale of the estate and not included in the act of sale or in the inventory according to which the estate was purchased, considered to be an accessory to the estate and the property of the buyer, or a separate property of the previous owner? It is hardly possible to admit that by simply drawing up a redemption deed, the mobilization of the patrimonial right to the redemption loan has already been completed, since the owner’s right to it, in number and extent, has still been conditional, but in its unconditional meaning it is still inseparably connected with his patrimonial right to the estate, until the entire circle of the redemption operation has been completed, i.e. until the subject determination of the redemption institution has taken place, by virtue of which the redemption loan assigned is specially allocated and becomes, within the meaning of Art. 402. Zach. Gr., movable property. And so in this case, the dispute between the buyer and the previous owner (or his creditors) about the ownership of the redemption loan will be resolved in favor of the buyer, if only it can be considered reliable that not only the lands remaining for the peasant allotment, but also the lands of this allotment with the corresponding right to service according to the charter charter, were put on sale according to the inventory - or according to the deed of sale. If the lands of the peasant allotment remained outside of sale, then the right to a redemption loan also remained outside of it. (On this subject, Golubov’s case was carried out in 1872 at the 1st General Meeting of the Senate.) There was another thing. Landowner Gamaley all his well-being. he bequeathed the estate and movable property to his sister, and a special estate in the village of Zaimishche to Pokorsky-Zhuravko. But on this last estate, even during the life of the testator in 1864, a redemption loan was assigned for issuance. After his death, in 1865, the testator’s sister filed a claim for this amount as movable property, and Pokorskoy-Zhuravko began to demand it as belonging to the estate that was bequeathed to him. The Senate (according to the 2nd department of the 3rd D-ta, in 1868) decided that the redemption loan acquired by the testator during his lifetime constituted cash capital for the state, separate from other property. credit papers, and should be counted among his movable property. But in the opinion of the State Court. Sov. On March 9, 1871, in this case, it was resolved that only the amount that was actually given to him in cash and interest in papers, after all calculations and payments have been made, can be considered separate movable property of the landowner, but until the calculations are completed and the issuance has not followed, the owner only has the right to a loan. This right is finally established by the approval of the redemption transaction, but the settlement is not yet determined by it, and capital only from the time it comes into the actual possession of a person constitutes separate movable property. On this basis, it was decided in 1875 (Full. Collection of Laws, N 54378) in the village of Voronovsky and Lorer. A loan that remained unissued to the owner until his death is recognized upon death as belonging to the property. estates. See also Cass. decide 1879, N 364. Sometimes movable property is in an organic connection with immovable property and together with it also receives the properties of immovable property, for example, fruits, buildings on the ground, standing grain. It depends on the will of the owner to turn them into movable things, separating them from the land, removing the fruits, dismantling the structure, etc. Here an important question arises: from what moment do all these things acquire the property of movable property - from the minute when the act of separation took place, or from the minute when the will of the owner about the separation was expressed. For example: before the forest is cut down, during the sale itself, should it be considered movable? Before a building is dismantled when it is sold for scrap, is it considered movable? Our legislation does not give a direct answer, but essentially the law follows that such things become movable only from the minute they are separated or dismantled. Questions about the mobilization of fruits are of particular importance when changing ownership, when determining the rights of renters, buyers, and creditors to the ownership of property. Our law does not establish a general rule on this subject. In our civil laws (Article 431) there is a special rule about the offspring and increment of animals (increase from animals, it seems, should be recognized as dead material that is organically or mechanically separated from animals and receives independent value, for example, milk, wool, leather, manure, etc.). By law, offspring and increments belong to the owner of the animals, and, in particular, to the owner of the female from which the offspring comes directly; but a special claim for offspring is not allowed if the owner of the female did not look for her within a year from someone else's property. When a thing, although inseparably connected with immovable property, by its nature and economic purpose arises in order to be separated from real estate (such as, for example, sowing, albeit at the root), then there is no reason to understand it as immovable property when it, without having yet been separated from real estate, is the subject of a separate transaction that presupposes and has the purpose of precisely its separation. It would be strange, for example, to require the drawing up of a serf deed for the sale of standing grain, or to understand the act of securing the debt with standing grain in the sense of a mortgage (cf. Cass. decision 1871, No. 1255). Our law does not speak about the ownership of movable things; however, movable things can also have their own accessories, for example, a key to a lock, a ramrod to a gun, a bridle to a horse, etc. Custom is of great importance here; Thus, it happens that when ordering and purchasing handicraft items, in one place the property of a thing is considered to be something that is not revered in another place or from another master, and is put into a special price. The ship's accessories are of particular importance. As a general rule, it is accepted that the accessories of a thing are: 1) Deeds of ownership, if the property of the thing is such that it should be transferred only by deed, even if it was movable, for example, a ship, a seaworthy vessel. On the attribution of the act not only to the estate, but also to the person of the owner, see Cass. decide 1879, N 248. – For the horse certificate, see Cass. decide 1879, N 315. 2) Litigation and claims (417, 418, Gr. Z.). The right to a patrimonial claim is inextricably linked with the right of ownership of the estate to which the claim relates. Whoever cannot derive his ownership of the estate does not have his own right of action. The claims that are inextricably linked with the subject of the claim and arising from it, which are mentioned in Articles 332, 333, 747, should be recognized as belonging to the claim. Est. Gr. Court, such as: demand for interest, legal costs, increments, etc.; since these requirements are based on the obligation to preserve, during the litigation, the main subject of the claim, the property, intact, in favor of the party that is found to be right. 1876, No. 512. According to the law (Articles 420, 574, 684, 693 Vol. X, Part I), the owner of property has the right to protect its integrity and integrity, and in case of damage or loss caused to the property, to seek appropriate compensation. This right, constituting one of the essential accessories of the right of ownership, upon alienation of property passes undoubtedly to its acquirer, and by virtue of this right, the acquirer of property cannot be denied compensation for damage caused to this property and still ongoing, even if the act or omission from which this damage occurs occurred before he acquired the property. 3) Products of things, fruits, income, interest, offspring. Domestic animals are considered to be part of the herd or yard, and if separated from it, they must be returned to their place (Z. Gr., note 1 to art. 539). If the animal was in someone else’s illegal possession, then the offspring belongs to the rightful owner (Article 642). What should be considered income is not directly defined in the law (425, 486, 620, Art. Zak.Gr.). For a discussion of this, on the question of whether winnings on a ticket are considered income, see Cass. decide 1879, N 177. 1873, N 1263. According to Art. 431 t. X, part 1, the offspring and increments of animals belong to the owner, and only in the event of a dispute about animals in someone else’s possession, such a right of the legal owner to the offspring is limited to filing a complaint within a year from the date of taking possession of the animals; With the exception of this case, civil laws nowhere contain any indication of any other reasons why the legal owner of animals could be deprived of the right to their offspring. 1873, N 365. Future income from real estate cannot be classified as movable property, which the owner can freely dispose of. The law (401 and 402 Art. X Vol. I) when listing movable property does not mention income from immovable estate that has not yet been collected, because such income, until they are collected by the owner and have not received the value of cash movable property, constitute only such a right to property that does not yet exist in reality and is associated with the right of ownership of real estate or with the possession of it (424 and 425 Art. X, Vol. I h.). 4) Costs spent on property or things (Gr., 622, 623, 628–633). According to the civil charter. court. movable property recognized as belonging to real estate is not subject to arrest as separate movable property; Only in the absence of other property can certain household items be seized from the immovable estate (such as agricultural implements, working and domestic livestock, grain supplies, etc.), but this movable property is subject to sale separately from the immovable estate only when it can be separated from it without disturbing the estate, or when the estate itself cannot be sold (Articles 973–975, 1110, 1125). The minerals mined from the mine are considered to be the materials of a mine. Therefore, in the rules on private mining in the provinces of the Kingdom of Poland, it is decreed that if one miner, while constructing a drainage adit through someone else’s mine, encounters minerals, the extraction of which the owner of this last mine has the right to extract, then what was mined becomes the property of this owner. According to the same rules, auxiliary underground devices made by the owner of one mine, for his needs, in another mine, constitute the property of the mine for which they were erected (Vol. VII, Ust., Gorn., ed. 1893, Art. 401, 403, 404). 1874, No. 185. according to the explanation of Pr. Senate neither in 43 nor in 27 art. The local peasant situation is great. lips It is not expressed that even after the final delimitation of peasant lands and lands from landowners and after the redemption of allotments, roadways in villages remained the exclusive property of the landowner. § 11. Divisible and indivisible property. Legal indivisibility of houses and shops Our legislation also knows the concept of the difference between divisible and indivisible things; Article 393 Zak. Gr. does not quite accurately classify this property as just immovable property, although he also names movable property among indivisible property (394, paragraph 4). In this case, the law refers exclusively to a real property, i.e. seeks to determine which things are not subject to mechanical division into plots between partners in possession. Here common ownership is possible, but only with an ideal, mental, and not with a material division of parts. Legal indivisibility must be distinguished from economic and physical indivisibility: these properties do not always coincide. There are things by nature that are accessible and indivisible. The latter, when divided into parts, completely lose their individual meaning and either acquire a foreign value or are completely deprived of value; for example, a living being, a painting, a coin, a book. The first, consisting of a collection of homogeneous units, are freely subject to division, not changing at all, but only being fragmented in value (quantitates). This difference has both economic and legal significance, but our legislation has not accepted it into its categories of things. In the same way, our law does not categorically express the division of things into consumable and non-consumable. But it is worth mentioning one property that is taken into account by our law regarding certain objects that are counted and evaluated by weight and measure. This is the property of liquids and fossils to decrease in volume and lose their components under the influence of time and the atmosphere. This includes the concept of shrinkage, leakage and waste, which have important legal significance especially in contracts between private people and the treasury and in economic government transactions (see, for example, the Mining Charter, ed. 1893, art. 943, 945, 951). Our legislation draws attention to some things, mainly immovable, which have the property of legal indivisibility. Immovable things can most conveniently be divided into plots by their physical nature, and the law has in mind those cases in which such division into material plots is not legally allowed. Legally indivisible property includes: 1) Factories, factories in general (Z. Gr., 394; Establishment of Industry, ed. 1893, Art. 82) and especially possessional ones, i.e. those to whom villages and peasants were assigned. They are leased, sold, alienated, inherited and given for redemption, not otherwise than as a whole, and not in sections (Civil., 394, paragraph 1, 549, 1324, 1325). If there are several heirs to such property, then only one can receive it in kind, satisfying the others in proportion with money; Moreover, the right to choose is established by a special rule. 2) The shop (394, item 1, 1324) follows the same order. All yards, although declared in 1762 as undivided property, in 1827 this prohibition was lifted, and it was allowed to divide places and yards in cities for sale by plot. The measure of such areas was determined for Tsarskoye Selo, Peterhof and Gatchina (Gr. Zak., note to 394, Stroit., 307, 308). Houses 246 are not directly declared as undivided property anywhere, but in reality is it possible to divide them into plots? The law mentions plots only in houses owned fragmentarily by exdivisions, but at the same time it is decided that these plots can be sold only to the owners of other parts of the houses and in their entirety, without further fragmentation (Gr., 1389, note and cited in the citations of the legislation). It follows that, as a general rule, outside of this case, the actual division of houses into plots is recognized by our legislation as impossible. in this sense, there are also court decisions; Thus, in 1862, the Solvychegodsk Town Hall did not accept for entry into possession the separate act of the Rogozhin brothers, in which from one house one of the co-heirs was supposed to be assigned 2 trading shops on the lower floor and several rooms on the upper floor, and the rest would be retained by the other heir. General Collection, 4, 5 and Inter. D-tov approved this opinion of the town hall, recognizing that the house cannot be divided into special parts, so that each part was in separate ownership. This is not in accordance with Art. 393. Z. Gr. If we allow the house to be distributed among several owners by room, then the ownership rights of each will be incomplete, since without the consent of others they will not have the right to undertake construction and repairs in the walls that are physically no longer subject to division. In addition, the distribution of the house among several owners would have resulted in difficulties and disputes during the payment of taxes and the administration of duties (decided by the o.s. February 5, 1865). Should a courtyard in a city with a house and separate buildings built on it be recognized as undivided property? The Senate, agreeing that the laws do not contain a direct answer to this question, concluded, however, that the court, as long as it is not divided, should. recognized as legally indivisible property, since the division itself does not depend on the will of the owners unconditionally, but only with the permission of the police and the places supervising the implementation of the construction regulations (Cass. decision 1869, N 1330). in this case, it was necessary to determine: whether during the public sale of a house, which at that time constituted an indivisible whole, the rule was applied (1324 Art. I Part X Vol. and 2056 Art. Zak. Court. Civil., Ed. 1857; corresponding Art. 214 Pol. on Execution. Civil., Vol. XVI, Part 2), established in the law for indivisible or non-fragmentable assets? The positive answer given to this is fair, because in fact at that time the house was indivisible property. Nevertheless, the Senate itself recognizes that dividing the yard into plots is possible by law; therefore, it would hardly be correct to assign to the courtyard the property of an estate that is legally indivisible. In general, the indivisibility of the yard and the shop cannot be understood in an absolute sense, contrary to the indisputably existing fact of separate exclusive ownership. In practice, separate ownership is allowed, for example, of parts of a shop - half a shop, a quarter of a shop, etc. There is no reason to deny such ownership when it is actually delimited not only by a share of participation, but also materially. A semi-shop, for example, at least by its name constituted half of a shop in its original volume, having been delimited in ownership, it receives the actual meaning of a shop (cf. Cass. decision 1870, N 719). In the same way, it is not uncommon for cases of this kind that one person owns a shop, and another owns the basement under the shop (cf. Cass. decision 1869, No. 10). In 1870, the Senate reasoned that recognizing a semi-shop as a separate commercial premises does not include an interpretation of the divisibility of the shop and does not violate the law (Cass. decision 1870, N 935; 1871, N 820). 3) Owned, based on the rules of February 20. 1803 (P.S. Zak., N 20620), former state peasants received land plots containing no more than 8 acres. This means that the owners of these plots, former state peasants, although they have the right to sell, mortgage and inherit their plots, but should not split them into less than 8 acres. This is established in the types of support for the peasant economy, because the ownership of such peasants’ lands is not public, but private in plots (Gr., 394, paragraph 2). 4) Leases (Gr., 394, clause 3, VIII, part 1, ed. 1893, Statute of treasury estates, appended to note 3 to article 2). Some state-owned estates in the western and Baltic provinces were granted to various persons in the form of awards for rental maintenance or temporary use. This use was limited to the term or lifetime of one or more persons. For the transfer of these estates, special rules were established in 1824, according to which the estate of this family should be in the possession of one of the heirs, although the income belongs to everyone; Likewise, according to a will, they can be provided only to one of the heirs, and not to many. Since 1837, grants of such estates in kind have been discontinued, and instead rental income or money is granted, usually for a certain period, for several years. Some recipients of such a house, wanting to get it immediately, sold their right to capitalists; but in 1881 there was a ban on assigning the right to rental income to third parties. T. VIII, part I, ed. 1893, Const. breech noun, adj. to Art. 2 (note 3), art. 19. 5) Estates granted to private individuals on the basis of the right of primacy in the West. provinces (Gr. Z., 394, paragraph 5, 495, 1214). They always come by inheritance to one person without fragmentation, in the eldest tribe. 6) Plots allocated by Imperial command to poor nobles, who were given the opportunity to settle on state-owned lands in some provinces (Gr., 394, paragraph 6, 516, 1191). 7) Peasant land plots, purchased into ownership with benefits from the government, by peasants who emerged from the fortresses of dependence. Until the entire redemption loan to the government is repaid, such plot cannot be divided by inheritance or sale; however, if the plot is particularly large, division is permitted at the discretion of the provincial presence (Regulations on redemption, art. 167). On measures to ensure redemption payments during division, allocation and alienation from the allotment of former State peasants and colonists, see Complete. Collection Zak., N 48946, and Special. adj. to IX volume, XV, art. 19 and approx. to Art. 18, according to Cont. 1890 Family plots of Tsaran Bess. lips – not m.b. further crushed 1/4 of the highest size of the allotment (Special appendix to IX volume, ХVII, art. 37). See also Special. Adj. to IX volume, XX, Position. about the cross. Transcaucasia, Art. 84, on the indivisibility of uplift areas; there, Art. 2, approx. 2, adj., art. 43 – about the same subject. Landowners' lands, which are for the use of peasants according to the charter, until the obligatory relations between the landowner and the peasants are resolved, are considered undivided property and are not subject to fragmentation. Mn. State Sov. 19 Feb. 1861 on the alienation of landowners' lands, ch. 1, art. 6. In the western and Little Russian provinces, family and household plots of peasant owners are not subject to fragmentation beyond the prescribed measure. Pos. Maloros. 96; Pos. Kyiv. 88; Pos. Wil. 85. 8) Inherited family plots from state peasants (Institutions of rural improvement, 104, 107, 113, 115). They pass indivisibly to the eldest of the legal heirs. 9) Areas allocated from the treasury for the use of colonists. They pass inseparably to the youngest son (Constitution Col. 170). 10) Reserved hereditary estate, when declared as such by the Highest command, upon grant or at the request of the owner who wishes to establish a primordial estate in his estate. Such an estate in its entirety passes inseparably to one person in the senior line in the manner established by the founder or a special law for such estates (L. Gr., 395, 468, 1192). According to a special legislative act and a special position, the common estate of the Komnin-Varvatsy landowners was declared indivisible (See Complete Collection of Laws of 1866, N 43560). 11) Estates pledged to credit institutions and companies cannot be divided during inheritance and during division beyond the prescribed size (see the subject charters). 12) When dividing the estate, with which the right of patronage is connected in Ev. Lutheran Church, this right is granted by common consent to one of the participants, therefore it is indivisible. Est. In. Isp., 662. 13) Railways, with all their accessories (Gr., 394, paragraph 7). The division of fief and Jesuit estates is carried out only with the permission of the Ministry of State. property and under special conditions. Despite the division, the right to the treasury is ensured by the entire estate. (Constitution of Kaz. im., edition 1893, Appendix to Article 1 (note 1), Articles 12, 14). The indivisibility of fixed-term land plots allotted to officials of the Cossack troops was abolished, following the transition of fixed-term ownership into hereditary ownership (Constitution of Cossack villages according to Prod. 1863, appendix to Art. 53, § 4. Complete Collection of Laws 1871, N 49777). Gold mines on state and cabinet lands (Gr., 394, paragraph 4, 403. Ordinance of the Mining, ed. 1893, 429, 4306). Capital contributed to the state. debt book, not m.b. divisible into sections of less than 30 rubles. Est. Cred., ed. 1893, sec. II, art. 9. § 12. Ancestral and acquired property. Historical origin of family property. Signs of ancestral property and acquired property. Origin of capital. Properties of ancestral property. Hereditary estate in the Baltic provinces. Hereditary estate according to the Lithuanian statute. General remarks on the economic conditions of legislation and on criticism of old laws It is very important in our laws to divide property into ancestral and acquired property. The basis for this division is the origin of the property from the actual owner and the connection of this property not only with the personality of the owner, but also with the entire clan to which he belongs. This difference, in the meaning in which it is recognized by the current law, was legally determined in modern times, precisely not earlier than the last quarter of the 18th century. It existed from ancient times in the minds of our ancestors, only it did not initially have a defined legal character, but was expressed in the difference in names: patrimony, fatherland and grandfather, purchase, bellies, goods. Subsequently, the word votchina is no longer in the exclusive meaning of property received from the father and ancestors, but expresses a special type of ownership, combined with the most extensive right, in contrast to the word estate, and therefore expresses not the purely civil, but the state nature of the acquired right. Then the word patrimony in itself no longer became sufficient to express the concept of property acquired by inheritance; To do this, it was necessary to add the name to the word patrimony: ancient, ancestral. On the other hand, an estate acquired by the owner himself not by inheritance was also called a patrimony purchased, served, granted. So, in our ancient history, the concept of family property did not have the specific legal meaning that it has now, it did not refer to an integral legal institution. However, from the most ancient times, the concept of hereditary property as belonging to a clan, successively passed on by inheritance and circulating in the same clan, has taken root in us. Although the consciousness of this connection between the clan and hereditary property did not limit the free owner of its alienation through sale and mortgage, from ancient times it allowed the possibility of redeeming the estate from a stranger: this right of redemption in the 16th and 17th centuries extended only to the family estates, and to those that were granted in the name of the person with his descendants, i.e. of the entire family, but did not extend to the purchased estates. Subsequently, this right was extended to all established estates without exception. Since the 17th century, legislation has gradually restricted the right to gratuitously alienate ancestral estates through a gift and a will. Peter I, having abolished the distinction between estate and votchina, merged both into one quality and name of real estate. The decree on single inheritance abolished the distinction between ancestral and purchased property. All real estate, without exception and without distinction, received generic properties; it was generally allowed to alienate it only through sale, and a ransom was given for every sale. With the repeal of this law in 1731, the previous distinction between ancestral estates and those purchased and served was restored. But the general features of the current distinction between ancestral and acquired property were determined only under Empress Catherine II (1785), at the same time when the existing definition of the right to full ownership was established in our laws; The features of this difference are finally determined by the edition of the Code of Laws. According to current laws, ancestral property is generally considered to be property that has come down from its own family. Generic may be: 1) Only real estate (Zak. Gr., Art. 398), but not movable property. Movable things and rights themselves cannot have the property of patrimonial property; they can receive this property only in the general composition of immovable patrimonial property, when, due to an organic, economic or legal connection with it, they are considered appurtenances of the immovable property (Articles 387, 388, 389, 390, 391, 611). In general, when proving the right of inheritance in movable property, it is not acceptable, according to the force of Art. 398. Gr. Zak., dispute about the generic origin of monetary capital (Cass. decision 1869, No. 16; 1881, No. 3). 2) Only such real estate that was inherited by right of legal inheritance. Legal, i.e. not by will, but by law, regardless of the will of the former patrimonial owner; a will is an act of private will, and legal inheritance is determined by law, expressing public consciousness. If the estate came through a will, then it is considered family property only in the case where, even without a will, it could have gone to the same person by right of legal inheritance (“to that related person who would have the right of inheritance by law”). Art. 399, paragraphs 1 and 2. So, the property that I inherited, without a will, from my grandfather, father, uncle, brother, in general from a relative, becomes my family property, even if it was acquired from a previous patrimonial owner. The property inherited to me by will, for example, from my mother, aunt, or in general from a relative, no matter what degree of relationship he may have with me, becomes my family property, even if it was acquired from the testator, if only I had the right to inherit by law after the testator. In the general concept, the transfer of an estate under a deed of sale is associated with the idea of ​​acquisition. However, the purchase in itself does not serve as a sign that the property during the transfer received the property of an acquired property. When determining the quality of the buyer's estate, it is also necessary to pay attention to the following circumstances: whether there is a family connection between the seller and the buyer. What property and origin did the seller have? The purchased estate, no matter what it was from the seller, is generally deprived of its ancestral properties and becomes or remains acquired when it is purchased from a stranger. But when I buy from my relative an estate that was ancestral to him and he inherited from the same family as me, then this estate, although it passed to me by deed, retains the same ancestral property that the buyer had. If it was acquired from the seller, my relative, then, after purchase, it remains the same for me, even if I had not only a family connection with the seller, but also a hereditary connection, i.e. could be the heir after him (399 art., paragraph 3). For example, I have a brother from the same father, but from a different mother. According to our father, we both belong to the same clan, and according to our mothers, we belong to two different clans. he has an estate that he inherited from our common father, therefore from the same family as me, and there is another property that he inherited from his mother, therefore not from the same family as me. If he sells me the first estate, it, despite the fact that I acquired it by deed, will be my family property. If he sells me his last estate, it will not be my family’s, but acquired. My brother’s well-acquired property, which I bought from him, in any case remains well-acquired from me. In general, when purchasing an estate, the following relationships may arise between the buyer and the seller and the estate. A. The seller is a relative of the buyer, but the property is someone else’s, not from his own family. The property remains acquired. B. The seller is a stranger to the buyer, but the estate is native, experienced in the family. The property remains with the buyer or becomes acquired (Article 397, paragraph 4). B. The seller is a relative of the buyer, and the purchased property is his family. The buyer's estate remains ancestral (Article 399, paragraph 3). The question may also arise: should buildings and buildings erected on ancestral land be considered ancestral property or acquired property? Due to their close connection with the land, these buildings are considered family property as belonging to the land. therefore, a house built on ancestral land cannot be bequeathed to a stranger as a separate acquired property (4 paragraph 399 of Art.). The question of under what conditions should an estate be considered ancestral will be clarified in connection with a similar question regarding acquired property, for in this category there are only two divisions: non-family estate is certainly acquired, and that which cannot be called acquired is certainly ancestral. Wed. Cass. 1877, N 168. A well-acquired estate is generally considered to be one that has not been inherited, has no connection with the family of the acquirer, or is completely rootless. Both immovable and movable property can be acquired. In particular, the following is considered to be acquired: 1) Estate that came by any kind of strengthening (purchase, gift, will) from someone else’s family (Article 397, paragraph 2). On this basis, the following cases are permitted: a) Spouses, husband and wife, belong to two different families, and each of them separately owns their property. Therefore, property inherited by a son after his mother does not belong to the father’s family. Consequently, if a son sells such an estate to his father, it, having been a family property from the seller, becomes acquired by the buyer. The son belongs to the same clan as his father, but the son’s property, sold to the father, in the present case went to the seller not from the same clan as the buyer. It was bought into someone else’s clan, for the father is not an heir at all after his son, and if this estate were left after a childless son, then, due to the absence of his siblings, it would turn by inheritance into the clan of his mother, and not into the clan of his father (397, paragraph 3; decree of March 20, 1816). Of course, when such an estate, which was the son’s maternal property and was sold from him to the father, after the death of the father comes by inheritance to the same son, then the son will again become the ancestral property of the son, from what was acquired by the father, only it will be paternal, and not maternal, therefore, after the death of the son, it will go by inheritance to the father’s clan, and not to the mother’s clan. The same thing, and on the same grounds, that is said here about the estate that the son inherited from the mother and then sold to the father, should also apply to the estate that the son inherited from the father and then sold to the mother. b) The wife and husband belong to different clans. Therefore, one, in the strict sense, does not inherit after the other, but is allocated to one after the other a specified portion for subsistence (Article 1148). It follows from this that this specified marital part, even if it was separated from the family estate of the deceased, when transferred to another surviving spouse, loses its family property and the property becomes acquired (6 paragraph 397 of Art.), therefore, subject to will. Of course, however, if this acquired property for the specified part of the property, after the death of the spouse to whom it was allocated, is inherited by the children, then it becomes their ancestral or maternal or paternal property, depending on whether they inherited it from their father or mother. This generic property is acquired by the estate again, and the estate grows to the clan from which it was inherited, but its previous connection with the clan from which it was once allocated to the spouse for the specified part disappears completely. An estate received for a specified portion from a deceased spouse is considered to be beneficially acquired. In what sense should this word be understood: received? Having received this part through an allotment during his life, the surviving spouse, without a doubt, receives it at his free disposal, as cash, acquired property. But if the surviving spouse himself died without yet receiving his share through an allocation, then it may turn out that before his death he had already asked for the allocation of this share from the total inheritance after the spouse - in this case, the right to allocate this part does not disappear and passes to the heirs of the applicant for the specified part: the heirs have the right to demand this allocation for themselves. Or it may turn out that the spouse who had the right to the indicated part of the estate did not ask for an allocation until his death, but remained in undivided possession of his part together with the children or other heirs of his deceased spouse. In this case, after the death of a participant in the specified share, his right to allocate this specified share disappears irrevocably and cannot pass to his heirs, and this share turns to the heirs of the spouse from whose estate it should have been allocated (Art. 1152); therefore, when it was part of the family estate of a deceased patrimonial owner, it still remains part of the family estate. According to the same principle, the law (Article 1352) stipulates that if the widowed spouse did not demand the allocation of the specified part from the family estate of the deceased spouse and, remaining in undivided possession with his children or other heirs, together with them sold his specified part in conjunction with the other family estate of the deceased spouse, then in the event of the redemption by the relatives of the deceased spouse of the family estate alienated in this way, the right of redemption extends to the specified part, and the estate must be redeemed as a whole in which it was sold. Therefore, if we were to raise the question: does the widowed spouse have the right to bequeath the specified part that follows him, but has not yet been allocated, as his acquired property, or does not he have the right until it is separated from the family, this question would hardly be posed correctly. The widowed spouse transfers by inheritance his right to the allocation of the indicated part if he asked for the allocation during his lifetime, and does not transfer it if he did not ask for it during his lifetime. That's enough. Therefore, it is possible to bequeath the right announced by the request to allocate the specified part from the family estate. The right to the indicated part is retained in this case; but it cannot in any way be a patrimonial right of the surviving spouse: the property that has gone or should go to him for the specified portion will certainly be acquired: otherwise it cannot pass to him as acquired property. Therefore, one of two things: either the widowed spouse at death is completely deprived of the right to allocation, or, while retaining it, he retains it as an acquired property and can pass it on by will. c) Family property can be sold to one’s own family or to a stranger. The seller’s relatives have the right, within the prescribed period, to buy back this estate, and in this case it again becomes their family property (Article 1346), because during this period the connection of the family members with this estate, which has passed to a stranger, is not completely destroyed: it is only interrupted conditionally and restored at the moment of redemption. Redemption is a right not established by contract, but granted by force of law to relatives, and the purpose of this right is precisely to return the property to the clan and restore the ancestral property of the property in this clan. Buying and selling under a free contract is a completely different matter. When a deed of sale acquires an estate that is connected with the buyer’s family, this will be an accidental circumstance, which in some cases can give the purchased property the property of a family estate (Article 3, paragraph 399), but when the estate is redeemed, this certainly means that it is in a necessary connection with the buyer’s family and returns to its family. Therefore, when a family estate, sold by the owner to another family and becoming acquired from the acquirer, is subsequently not redeemed by the seller himself or his relatives by legal right, but is bought back under a free contract from a stranger, then the previous family property of this estate is no longer restored by returning to a member of the family from which it was previously sold, and this estate, having been in someone else’s family, becomes the property of the new one. buyer acquired on a common basis, as purchased from someone else's family. d) It has already been said above that ancestral property purchased from a relative who inherited from the same family as the buyer remains ancestral property with the buyer (3 paragraph 399 of Art.). But if the property purchased from a relative was acquired from him, then it remains acquired from the buyer (5 paragraph 396 of Art.). To determine the generic property of an estate when transferring fortification from one person to another, it is important not only the blood connection of the buyer with the acquirer, but also the connection of one or another family with the transferred estate. The persons between whom the estate is transferred by transfer may belong to the same family, and the estate, passing between them, remains acquired if the transfer is not hereditary, or if the history of the estate itself does not have a certain connection with the history of the family. 2) Well-acquired property is considered to be that which has been served or bestowed by the All-Merciful One (Article 397, paragraph 1). according to current concepts, it seems there would be no need to mention this in the law, since the grant, the official origin of the estate, apparently has no connection with its generic origin and with the family connections of the acquirer. However, the question of the property of the granted estate was controversial in our country until 1805, and this circumstance is explained by the history of our law, the generic nature of the civil service of the past. Our patrimonial right was closely connected with service; service determined the social significance of a person; his honor, not only personal, but also family, depended on service. The official honor of a person, according to the laws of localism, became the property of the entire clan to which the person belonged. From this it is clear that the patrimony, given for service, was in general opinion considered a family property, and according to the laws of the 17th century it was equal to the patrimony. This concept of a well-served patrimony should have disappeared when the service lost its generic meaning, but the law for a long time could not rid itself of the tradition about the former significance of the honored patrimony. So, on the basis of the above paragraph 1 of Article 397, the most graciously granted estate should be considered the acquired estate of the person to whom it was granted, therefore, in the inheritance after this person, it should follow the order that is generally established for inheritance in acquired estates. We know the following recent case. For the service of an officer killed in battle, real estate was granted to his widow and children for eternal hereditary possession. This widow died, having first buried all her children, and after their death she owned the granted estate for more than 20 years with full right of ownership. The closest members of her family declared themselves heirs after her; but her husband’s relatives, asserting the superiority of their inheritance right, argued that since the estate was granted for services to the fatherland of an officer killed in the war, the right to inheritance in this estate should belong exclusively to the descendants of his family. But this claim was rejected by the final decision of the courts, the estate was recognized as the acquired estate of the widow, to whom it was granted, and provided to the heirs from her family, since having owned this estate for undoubtedly 20 years after the death of her children, she became the sole patrimonial owner of the entire estate. 3) Property acquired through one’s own labor and industry is also considered well-acquired (Article 397, paragraph 7). On this basis, any real estate acquired with money acquired by one’s own trade, and given as a reward for labor and services, i.e., should be considered acquired. one of those acquisition methods mentioned in the note to Article 699 of the Civil Code. laws - (with the exception of those methods that have an analogy with inheritance) - as can be seen from the subsequent presentation of property purchased, donated, bequeathed, assigned as a reward for services, etc. In many cases it can be said reliably that the estate was acquired by one’s own labor and industry; but despite all this, such property may sometimes turn out to be not acquired, but ancestral to the acquirer; This will be, for example, the purchased estate, in the case specified in paragraph 3 of Article 399, even if the motivating reason for the will was the desire to reward for labor and services. From these examples it is clear that rule 7, paragraph 397, art. should not be understood in an unconditional sense with respect to immovable property, but with respect to movable property it has unconditional force. In general, the generic property of an estate is not an unconditional, constant, unchangeable property. A family estate can turn into an acquired property when it passes into someone else’s family and goes to a stranger; and vice versa, an acquired immovable estate can become a family estate if it passes from the acquirer, by legal inheritance, to a relative. Of the family estates, only the reserved property receives a strong, permanent property of the family, because the nature of the reserved estates is unconditional inalienability. Therefore, the question is: is such and such a family estate? – has no unconditional meaning, and cannot be resolved in an unconditional form. It receives meaning only in this form: should such-and-such property at such-and-such a moment belong to such-and-such a person as ancestral or acquired? This question is resolved by studying the history of the estate and its transfers from one person to another. The person closest in the list of transfers, from whom the property had the property of being acquired, is in this case called the first acquirer, and from him a line of transfers is drawn to the person who has the property at the moment and from whom the property of this property is to be determined. One should not think that this property of a family or acquired property necessarily belongs to the estate of a given person as a whole. The totality of all separate estates owned by one person constitutes his property; but from among these estates, one part may turn out to be ancestral, the other - acquired, for the estate could have been formed from parts that the owner acquired not at the same time and not in the same way. In this case, each of these parts follows along the lateral lines its hereditary law, in accordance with its properties and origin; in the family estate itself, its component parts are distinguished, depending on what clan each part is from, and accordingly, the paternal family goes to the father’s clan, the maternal to the mother’s clan. Moreover, sometimes there is a need to study each part’s special history in connection with the history of all those genera from which it came and in which it circulated, without ceasing to be generic. Thus, several historical layers could have formed on a family estate, so that not before opening and examining all these layers one by one, one can obtain the complete historical physiognomy of the estate up to that era or up to the genus on which the research can stop, and without this research it is impossible in many cases to resolve the question of the right of one or another genus to this or that estate. Such a study can reach considerable complexity when, when determining the inheritance rights of lateral lines, it is necessary to split the estate into its component parts in order to return each to the clan from which it came. For example, I left behind a family estate that I inherited from my mother. It came to my mother from three different clans: from the clan of her father and from the clan of her grandfather, etc. There will be no need to follow the history of the estate in all these families when the heir after me is my own brother from the same mother, because we had a common mother, and none of the relatives of the second side line can either remove my brother from the rights of inheritance, or enter into a division or competition with him. But if I did not have any siblings, my inheritance goes to the second lateral line on my mother’s side, and this line is divided into two (Article 206 of the Law of the Russian Federation), one of which is adjacent to my maternal grandfather, the other to my maternal grandmother. If in only one of these two lines there is a contender for my maternal family estate, then again there will be no reason to look for its further origin; but when both in the line of my grandfather and in the line of my grandmother there are relatives who claim the right to inheritance, then I will have to investigate what part of my ancestral maternal estate went to my mother from my father (my grandfather), and what from my mother (my grandmother), in order to return what is mine to each family. And when, due to the lack of relatives in the second collateral line, it would be necessary to turn to the third, then here, depending on the origin of the family estate and the number of applicants for the inheritance, the research may become even more complicated, because here my mother will already have two grandfathers and two grandmothers (my two great-grandfathers, two great-grandmothers), and my mother’s hereditary estate could be made up of parts passed on to her through her father and mother from all these families. The above example shows how detailed the investigation of the origin of a family estate can become complicated in other cases. In practice, such research is considered necessary when determining inheritance rights in lateral lines. It is true that others dispute, and in our opinion, unfoundedly, the need for such a study, citing the wording of Article 1138 of Zak. Gr.; but a detailed consideration of this issue already relates to the field of inheritance law. The distinction between ancestral (or hereditary) and acquired estate, with a limitation on alienation, exists in the Baltic region, except for Courland. Only the regulations on this subject are extremely diverse due to the different localities of that region, and, moreover, city estates are governed by one law, county estates by another. Alienation of other property is prohibited unconditionally, for others it is permitted with the consent of the closest heirs; There are areas in which hereditary capital is counted among the ancestral property. The alienation of ancestral property for compensation is generally limited by the right of redemption, which belongs to the legal heir of the seller or mortgagor. According to Livland zemstvo law, the last in the clan can freely alienate the inherited property. Another remarkable thing is the ruling of the same right in case of exchange of hereditary property: in this case, the exchanged property, in the amount of the value of the exchanged property, receives a generic property (Ostz. St. Zak. Gr., art. 960–978). According to the peculiarities of the Lithuanian statute (contained in the Code of Laws for the Chernigov and Poltava provinces), the value of family estates is much more limited than under the general law. The Lithuanian statute grants nobles, as free people, complete freedom to dispose of their paternal, maternal and other estates in perpetuity: give, sell, donate, exchange; It was only forbidden to bequeath the father's and mother's estates at will; but such estates were also allowed to be given “in case of death.” The Lithuanian right of donation in case of death was abolished by general law in 1842 (P.S.Z., N 15552). At the same time (P.S.Z., N 15534) was also approved for inherited property in Chern. and Polt. lips the same term that is used in the general law: ancestral property. But here, family estates are considered only those that have reached the right of legal inheritance (Gr. Zak., 400), while the general law also indicates other ways of origin of family property (399). According to local law, an estate inherited by a direct heir, even from a father to a son, on the basis of a will, is considered acquired. And family hereditary estates are allowed to be given to anyone (970), but it is forbidden to bequeath them past the closest heirs. There are differences in inheritance property - paternal and maternal, and this difference is practically expressed in the inheritance law of Chern. and Polt. lips In the mother's estate, daughters inherit on equal rights with sons, but in the father's estate they do not inherit at all, receiving only a dowry from the fourth part of it (Article 1113). Restrictions on the disposal of family estate, as well as many other restrictions on patrimonial law (such as the right of redemption, the law on noble estates, the 14th part of a daughter, etc.), have a historical significance, which in no case should be forgotten, because the historical consists for the most part in a close connection with the economic. A historical phenomenon is almost never a random occurrence; what happened, what arose in time (geschehenes) and took root in time, has its own reason, which must be sought in modern economic conditions of life. And therefore, criticism of all historical phenomena, and even more so of laws that have important historical significance, is impossible without a thorough study of those living conditions in the midst of which a legal rule or restriction arose. We sometimes approach this criticism too hastily, on the basis of one-sided impressions or on the basis of so-called “general principles,” giving them unconditional significance. But if every law that arouses criticism was presented to us in connection with the entire everyday situation and social organization in the midst of which it arose, then, before making a decisive verdict on its unworthiness and condemning it for repeal, we would certainly ask ourselves the question: have the conditions of our life, the beginnings of our social organization, and the requirements of our state idea changed so much that the rule we condemn seems unnecessary and harmful. Without posing and resolving this question, we run the risk of introducing into life a rule that does not correspond to it, of removing from the mechanism of social equipment a tool that belongs to its entire system, and inserting another, inappropriate one: it is obvious that as long as the general system has not changed, it is possible to correct it in individual parts only in harmony, and not in discord, otherwise the entire mechanism from inappropriate improvements may become disordered and will become unable to satisfy the urgent goals and needs for which it exists. Therefore, one cannot help but wish that criticism of our old laws relating to real estate, criticism, which has especially intensified recently, proceeds more cautiously in assessing the historical phenomena of our life. It is scary to condemn and destroy something that is not yet fully understood. Let us point out, as an example, the law on family estates. Born initially among the relations of the service class, which had the exclusive right to land ownership, this law was in connection with many different other restrictions that had in mind the state goal: to retain the estates of service people among the class obliged by public service, to support the importance and means of individual types of servicemen. The reasonable idea of ​​these restrictions, which was fully consistent with the entire organization of state life, is obvious at first glance. The richer in resources the clans, called up successively for service by their very origin, are, the more efficient they will be in the service and the less they will demand from the state. The representative of the clan and the hereditary holder of the estate is a man. A woman goes into someone else’s clan, sits on someone else’s root - she just needs to be equipped and released. These are the concepts on which our patrimonial and local law of the 17th century is based. at the beginning of the 18th century they were shaken strongly with Peter's reform, when the military service was given a different structure, civil administration received a new organization, a table of ranks was published, and estates were compared with estates in the same category of real estate. What happens next, these concepts become more unstable under the influence of further transformations or new conclusions from previous provisions. Real estate little by little became the property of other classes, and many of the rules established exclusively for the estates of the service class spread to other classes; Among the newly formed nobility, it is true that the concept of a noble estate became isolated, but a common path to the nobility was open to other classes - through education and length of service. The unconditional service obligation has been removed from the nobility, but the law still recognizes service - military and civil - as the predominant right of the noble class, and the rights remain for a long time the concept that the duty of the nobility and its need is to serve - a concept, it must be said truthfully, that is quite consistent with the state of society, in which there is in fact no middle class, education is concentrated among the upper class, state functions are extremely complex and varied, and are little place for private activities for state ones. goals. Finally, in recent times, with the liberation of the peasants, the meaning of the nobility and noble estates has changed radically, a new face of the landowner has appeared in legislation and in life, still in a vague outline, but already promising us a new characteristic type in the future, and has set out for new activities in the new estate of the zemstvo. All these are state phenomena of the first importance, and there is no doubt that they are preparing significant changes in our real estate laws. But to what extent and in what ways have changed, along with these state changes, those conditions of social life, life, morals, education - which existed before and to which the previous laws corresponded - is a subject that still requires careful study and consideration. Appendix to § 12. About family and acquired estate 1. The property of an estate that has come down by division and row. The difference between allotment and dowry from related concepts Family estate is considered to be that which has come down by right of legal inheritance. The inheritance opens upon the death of the patrimonial owner. How to recognize the property that was inherited during the life of the patrimonial landowner by his son or descendant, through allotment (Article 994), or to a daughter or relative, through the assignment of a dowry (Article 1001)? Having received property in one of these ways, do I have the right to dispose of it as if it were acquired, or am I embarrassed to dispose of it as if it were a family property? The law does not specifically mention allocation or dowry, as such methods of acquisition that give the estate the quality of a family property; However, these methods of acquisition consist not only in the closest analogy with an inheritance, but they themselves are nothing more than a preliminary inheritance. From the family estate, through these methods, only such part can be transferred as would be inherited by the acquirer upon the death of the transferring patrimonial owner (Article 996); and the acquirer by allotment or row may, upon the opening of the inheritance, receive a share from it only in addition to the previously received estate, up to the full composition of his inheritance share (997, 1003 art.). Therefore, the family estate, allocated or given as a dowry, is also inherited by right of inheritance, only forward, before the death of the patrimonial owner, who only enjoys the right to precede in property the consequence of his death, but to precede in no other way than to the extent of legal inheritance. It necessarily follows from this that the family estate, inherited by allotment or row, remains with the acquirer as family property during his lifetime, as well as after the death of the transferor or transferee. But does acquired property, transferred in the same way, become ancestral to the acquirer? This question is somewhat more difficult to resolve, because the owner is given complete freedom in the disposal of acquired property, and here the analogy of allocation with inheritance is not so obvious. When allocating a family estate, the hereditary estate is assigned to the person who has the right to inherit. When allocating an acquired property, a non-hereditary estate, an estate with which the necessary concept of inheritance law is not connected, is assigned to the person who has the right to inherit. Therefore, it would be possible to place the allocation of acquired property in the closest analogy with a gift; However, this method of acquisition is excluded by law from the circle of donations and received a special name and, therefore, a special quality of allocation, no doubt, not by accident and not in vain. Indeed, here the will of the deedor regarding the acquired estate is determined in favor of a relative, whom he wants not only to bestow with the estate, but to allocate, and therefore makes not a gift, but a separate entry. The very word separate, separate, indicates the existence of an alleged, general right, actual or only expected, which is carried out through the determination of the material part and transfer. This expected right in the present case is an inheritance right, and therefore the allocation of acquired property should also be called a preliminary inheritance. And if so, then for the reasons stated above, the acquired property, acquired through allotment, becomes ancestral to the one who received it. This, in our opinion, is the general situation. But one should hardly accept it in an unconditional sense: that would be unfair. In order to impart a generic property to an estate, the allotment must be a true allotment and fully correspond to its name. Let's take a closer look at the pure concept of allocation and dowry. I can transfer part of the estate to my son or daughter during my lifetime. This would be an undeniable allotment, because the named persons would have an undoubted and irrespective right to inherit in my estate after my death. During my lifetime, I can transfer part of the estate to my descendant descended from me (Article 994), grandson or granddaughter, great-grandson or great-granddaughter, despite the fact that their parents (my children or grandchildren) are still alive, i.e. those persons in whose degree those receiving the allocation could inherit after me (Article 1122). Regarding acquired property (cf. Art. 994 with Art. 996), such assignment is not prohibited and is called allocation. It is true that my grandson, for example, does not inherit after me when his father is still alive at the moment of my death, but between him and his father there is the same necessary, direct assumption and expectation of an inheritance that exists between his father and me, for the same estate that his father will get from me, he will get from his father. Consequently, here too, even when allocating part of the estate, for example, to a grandson, it was impossible to determine whether he would have the right by law to inherit after the allocating ancestor at the moment of his death and to what extent - nevertheless, by the force of the law on allotments, the assignment of property as an allotment will have an analogy with inheritance. We conclude from this that acquired property, obtained through allotment, receives the property of the ancestral property 247. But let’s assume that I, the owner of the acquired property, having my own children and grandchildren, i.e. closest heirs, I choose one of the distant relatives in the lateral line and give him part of the estate during his lifetime. Do I have the right to call the deed of transfer an allotment? When making a deed in such a case, it is impossible to foresee the possibility that the person to whom the estate is given could be the heir of the deedor at the moment of his death, and therefore, if you delve into the essence of the concept of allocation and compare it with the concept of a gift, then you should come to the conclusion that the act of transfer will not be an allocation in this case, but rather a gift. We will have the right to recognize such a conclusion as consistent with the spirit of our legislation and with the literal meaning of the laws on allocation. From a general consideration of the laws on allotment, it does not yet follow that allotment, in relation to acquired property, is an assignment in favor of a person belonging to the same family as the applicant. The law, regarding allotment, speaks specifically about parents and ascending relatives, on the one hand, and about descendants, on the other hand (994, 996, 181, 182, 190 art.), therefore, allotment can only be between persons who are in a direct line of kinship. The word: separated or allocated, within the meaning of general civil laws, is applied only to descendants in a descendant line. A brother cannot allocate an estate to his brother, an uncle to a nephew or great-nephew, and the like; these persons can only divide among themselves the property that they collectively received. Between them there is no necessary assumption of inheritance to one after the other, which exists, for example, between father and son, grandfather and grandson, but there is an assumption so distant, calculated on so many unforeseen contingencies, that the law does not and cannot place it as the basis of a special legal institution. So, if an estate is allocated, it should be considered ancestral, as if inherited, although it was acquired from the previous owner. If the acquired estate is assigned to one of the lateral relatives, to one who, only under a condition or through the combined action of various unforeseen accidents, could become an heir after the transferor at the moment of death, then the assignment will in essence not be an allotment, but a gift, and the quality of the estate during the transfer is determined not by the legal nature of the allotment, but by other considerations related to the gift. Special mention must be made about the dowry. The assignment of a dowry is made not only in favor of daughters and descendants, but also in favor of female relatives in general, as the law expresses it (Article 1001). The concept of a dowry contains a special idea, exclusively peculiar to it and developed by the history of our social life and our legislation. By limiting a woman’s right to property in the clan to which she belongs by birth, the law, which is in full agreement with the consciousness of society, presupposes the need for a woman to leave her clan to join her husband’s family. A man’s destiny is to serve the state with his property and face, and therefore a man should have the property fund of his family. A woman’s destiny is to build a new family and a new home, to join her husband’s foundation. This is the view that is evident in our historical law. But in order to join someone else’s family, a woman must separate from her own kind, and therefore in this kind the law presupposes a moral obligation - to arrange a woman for separation, to equip her for marriage. This moral responsibility rests primarily with parents; its full legal expression is in the daughter’s right to the specified part from the parental estate upon the death of the parents: until this moment, the daughter, like the son, has no right to demand an allocation. But this distinction is presupposed by law according to the economic concept of marriage: it is assumed that the bride is released from home with an outfit, i.e. with a marriage fund that she contributes to her husband's house. Hence the dowry and the form of the dowry, a row entry. In this sense, the assignment of a dowry to a daughter can indeed be called an allotment, and a daughter who has received her entire specified portion of the dowry in advance is called a separated daughter (Art. 1001, 1002, 1004). But when, after the death of her parents, the daughter remains unmarried, care of her passes to one of the members of the clan, and a moral obligation is also assumed to equip her for marriage - but only a moral, and not a legal, obligation, therefore, an obligation that does not, on the other hand, give rise to the right to demand. An orphaned daughter, if she has her own part after her parents, is married with this part; if not, she can be given away with a dowry by her grandfather, uncle, aunt, brother, etc. It is clear, therefore, that in this last case, the assignment of a dowry can only be called a division when the bride is actually allocated from the parental fund, which remains not completely divided, a part that is rightfully next to her; but if the share assigned to her as a dowry is taken from the estate of that relative who, out of good will and family love, wants to equip her from house to house, then this will only be a dowry, and not an allocation. Therefore, it seems to us that the purpose of the dowry cannot be subsumed in all cases under the rule of allocation, and that the words adopted by the wording of Art. 1001. “The allocation of daughters and relatives, on the occasion of marriage, is accomplished by assigning them a dowry,” should be understood in a limited sense. From here we draw the following conclusion: when a dowry is assigned by the parents of a daughter from a family estate, the assignment is made to the extent that the daughter’s participation in the inheritance is expected; Consequently, the transferred estate retains in any case the quality of the family estate. When a dowry is assigned from the family estate from a grandfather, grandmother, great-grandfather, great-grandmother, etc., then the same rule should be recognized here; for the appointment of a dowry can follow in these cases only when the bride, when making a row, is assumed to be the heir of the deedor, i.e. when there is no intermediary person in a direct line between him and her, and, moreover, there is no male person who would completely exclude her from participation in the inheritance (1122, 1126, 1127, 1130, 1132 art.). The same should be recognized when, according to the row record, the family estate is transferred by a relative in the lateral line to the bride, who is also assumed to be his direct and closest heir. Likewise, an acquired estate, transferred according to the row entry to a granddaughter, great-granddaughter, or relative, becomes her family property by virtue of the row entry only insofar as the bride, at the moment of the row, is assumed to be the heir of the deedor. Having my own children or grandchildren, I can give my acquired estate to my cousin’s niece according to the row record. At the moment there can be no assumption about the inheritance of this relative of mine after me, and therefore we do not think in any way that in such a case the estate would receive its ancestral property just from the fact that it passes along the successive record to the relative. We think that such cases should be discussed not according to the nature of the allocation, but according to the properties of the gift (see below). 2. The property of estates that came by will to the person who would inherit by law Ancestral property is recognized as having passed from its first acquirer, albeit according to a will, but to such a relative who would have the right of inheritance by law (Article 399, paragraph 2). Here the law, when mentioning the first acquirer, does not mean the testator of the family property (Article 1068), but the testator of the acquired property. There may be doubt in what sense the law uses the words: “which would have the right of inheritance by law.” I can bequeath my acquired property to anyone - a third party or a relative, and when I have many relatives - to any of them, near or distant. I can bequeath it to my only son, one of my sons, a daughter with a son; Having my own children, I can bequeath to my great-nephew, etc. There is no doubt that an acquired estate bequeathed to a son becomes a family property for the son, since there cannot be immediate heirs between father and son. But let's focus on the last example. My great-nephew would also have the right by law to inherit after me, in my acquired estate, whenever at the moment of my death I had no paternal relatives closer to him. Does this mean that my acquired estate, bequeathed to my grandnephew, or, no matter what kind of relative, becomes unconditionally his family property? The answer is no, and here’s why not. If the article were interpreted in this unconditional sense, then the rule of the law would not have a firm meaning at all, which practice cannot allow in the law. One can say unconditionally about a living son: he has the right of inheritance. This cannot be said unconditionally about any other relative; we must add: when, at what moment, for the inheritance right of every other relative is relative, both in quantity and quality depending on time and random events. Today I am the heir after my brother; Tomorrow my brother’s son was born, and I am no longer the heir. A month later the child died, and I was the heir again. As a second cousin, I cannot be the heir to his immediate family. But they can die, lose their rights to the estate, etc., and I become the heir. A sister with a brother cannot count on the inheritance of their common grandfather; her brother drops out and she becomes the heir. It is clear, therefore, that the words: would have the right of inheritance by law will not be understandable if we do not relate them to a certain moment. This moment will be determined by consideration of the logical construction of the whole phrase; we find it in the words: “those who have reached the spiritual will.” The law obviously means the minute of transition, the minute when the successive right to a thing is finally formed. This minute of transition regarding wills is the death of the testator: at the same minute the well-known right of legal inheritance opens (991, 1030, 1222, 1254 art.). From the decree of June 21, 1821, summarized in quotations under paragraph 2 of article 399, we discern the fundamental idea of ​​the law. The law, establishing the rule, had in mind precisely those cases when the acquired estate is transferred by will instead of inheritance and division to those persons who would have the immediate right to inherit after the testator (“: Izmailov’s nieces, the said estate, which was approved for them by close relationship, can no longer dispose of it as if acquired from a third party, but must use it according to the rules established for hereditary or family estates”). We do not hesitate to draw the following conclusion from here: an acquired property bequeathed to a relative becomes his family property, if this relative, at the moment of opening the inheritance, with the death of the testator, would have the right by law to inherit after the testator; if at that moment the inheritance right could not belong to him, then the bequeathed estate, on a general basis, remains as acquired. Thus, a well-acquired estate bequeathed, for example, to a son, or from a childless brother, becomes a family property, and a property bequeathed, for example, to a cousin under a sibling, remains acquired after the transfer. If, as a result of this interpretation, the property of the estate transferred under the will depends on the right to inheritance in terms of its quality, then, according to strict consistency, it also depends on the quantity of the inheritance right. Therefore, when, for example, when a daughter, while her brother is alive, receives from her father an acquired estate under a will, then only that part of this estate becomes her ancestral property, which she should have received after her father by law, and everything else remains acquired from her. Example. Marya Kristafovich, having a son, Andrei, left blessings. the estate was bequeathed not to him, but to his grandson, the son of his daughter Vasilisa, Konstantinov. Konstantinov, having accepted the estate, died childless. Upon his death, if this estate was his family property, it should go to the Kristafovich family, and if it was acquired, it will pass to the Konstantinov family. Application to this case of Art. 399. shows that Konstantinov, under Uncle Andrei, could legally inherit after his grandmother, in the degree of his mother, only 1/14 of the estate, therefore, having received it all according to the will, he had only 1/14 of it as ancestral, and 13/14 as acquired. See solve. 8 D. Sep. March 13, 1868 Wed. Cass. decide 1867, N 144; 1879, No. 3. Objections may be made to this opinion, and this is the form in which these objections are presented. “There is no reason to understand paragraph 2 of Article 399 in such a narrow, limited sense, and it is possible to explain the practical meaning of this article without relating the concept of the right of inheritance to a certain minute, to the minute of the testator’s death.” They point out the inconsistency of a different interpretation and say: if the law meant the right of inheritance in general, the possible right of inheritance, it would have expressed itself more clearly. Then it would be said: “property that came, albeit according to a will, but to a relative of the testator,” because according to our laws, all relatives have the opportunity to inherit, and the right of inheritance is not limited to any, even the most distant degree of relationship - in this case there would be no need to add: “which would have the right of inheritance according to the law.” But not every relative of the testator has the right to inherit in his acquired estate; there may be relatives in both the father’s family and the mother’s family; the latter, even if they were in the closest degree of kinship, are excluded from inheritance in the acquired estate, which, except for the case specified in Art. 1140, always goes to the father’s clan (Art. 1138) and becomes escheated if there is no one left in the father’s clan. Therefore, edition 2 of paragraph 399 of Art. does not contain any inconsistency at all, if interpreted in the broadest sense: the law generally means every relative belonging to the paternal family, who would have by law the right to inherit after the testator, who is not deprived by law of the right to inherit after him under certain circumstances, and not in particular only that relative who, at the moment of the testator’s death, appears to be his closest heir, has the right to inherit. The Decree of 1820 should also be understood in this general sense. There is no mention here of the opposition of some members of the clan to other members of the same clan, of the competition between them in the rights to inheritance, of the comparison of these rights at the moment of opening the inheritance. Here only one simple opposition is expressed: relatives in general, members of the clan in the aggregate are opposed to strangers, and not to other members of the same clan, and it is confirmed that among strangers, among strangers, among non-heirs, the bequeathed estate remains acquired, but among relatives, among persons who generally have the quality of an heir, it becomes family property; The decree mentions the closest heirs not as a general rule, but in resolving a particular case, in relation to the circumstances of the litigation, because in the case in which the decree was made, the persons who received the estate under Izmailov’s will also included the closest heirs of the childless testator, his relatives and nieces. The general rule is expressed in the decree in the following words: whoever, having been the first acquirer of real estate, bequeaths it to one of his relatives who has the legal right to inherit after him, then this estate, etc. If in this fundamental text of the law we recognized the indication of the closest heir at a certain moment, then there would be a clear contradiction of this text with the wording of Article 399, which is extracted from it; In the decree, according to the grammatical meaning of the phrase, it would be necessary to attribute this well-known moment not to the death of the testator and the opening of the inheritance, but to the drawing up of the will. “Our law,” the objectors say further, “does not at all connect the concept of acquired property with transfer by will; in general, the form of the act by which the transfer took place does not yet serve as a sign of one or another property of the estate; it is also necessary to know what the property was, where it came from to the applicant, and what personal relationship the applicant has with the new acquirer. If the law declared in the form of a rule that an estate passed by will is generally recognized as acquired, it would be possible to prove that an exception to the rule is made when, by will, the estate passes to the same person to whom it should pass by inheritance. But the law declares any property acquired through any fortification, provided that this property comes from someone else’s family (Article 397, paragraph 2): this is an essential sign by which the quality of the property can be determined upon transfer, and not just the form of the act serves as a sign here. A well-acquired estate may be passed on to a stranger by will, and it undoubtedly remains acquired. The acquired estate goes to a relative, but to one who is not capable of inheriting after the testator in this estate (for example, a relative on the mother’s side, with the exception of the case specified in Article 1140): it also does not lose its former quality. The acquired estate is bequeathed to a relative who is capable by law (would have the right by law) to inherit after the testator: it becomes patrimonial on the basis of paragraph 2 of Article 399. So, what is needed in order for an acquired estate, passed on by will, to be retained as acquired property? It is necessary that the acquirer of the estate under the will, whether a stranger or a relative, is absolutely unable by law to inherit after the testator in general, or especially in this name. According to the force of this rule, the acquired estate of a son, bequeathed to the father or mother, does not become their family property, because parents are not heirs after their children, but only in some cases receive the acquired estate after childless children for lifelong possession, for, as the decree of June 14, 1823 expresses, the acquired estate is always given (that is, given into ownership) to the clan, and not to the parents of the deceased.” All these objections seem to us unconvincing. Our interpretation of paragraph 2 of Article 399. It seems to us most consistent with both the literal meaning of the law and with the principle by which we generally determine the generic property of property when it passes from one person to another. For us, it is defined only as an event that actually took place, the very transition by inheritance, and not the ability to pass on by inheritance. When an estate has already become a family estate, it acquires the unconditional ability to be passed on by inheritance only in a legal manner, and to certain persons who have the right of inheritance. But when it comes to turning a previously acquired family estate into a family estate, it would be strange to judge the property of the estate from the new acquirer by some possibility of transition, without paying attention to how the transition itself took place. The law could not be based on such a shaky beginning - possibility. Any property, both ancestral and acquired, can be inherited; but this is an abstract concept that has no meaning when applied to a specific case. When it comes to famous persons, about a certain time, it is necessary to know from whom, to whom and at what time the estate should have passed by inheritance, and if it turns out that it should have passed by legal inheritance to the same person and at the same time to whom and when it passed by will, then we have the right to conclude that the will of the testator completely coincided with the rule of legal inheritance, and already by this rule determine the property of the property of the acquirer. In support of our opinion, we can also refer to Art. 1100. Zach. Citizen When a dispute is brought about the will that the estate, called beneficially acquired, is ancestral, the law, in order to resolve the issue of the position of the property in the continuation of the dispute, allows the court to enter into a preliminary consideration of evidence about the ancestral property of the bequeathed estate, and orders that the disputed estate be taken into custody when the presented documents clearly show that the bequeathed estate was inherited by the testator, or even though by will, but from the person upon whose death the latter the testator was the direct and immediate heir. 3. The property of an estate that came by gift to a stranger and to a member of the same family. Relationship of gift to allocation On what basis should the quality of property transferred under a deed of gift be determined? When the gifted property of the donor was ancestral, this question cannot arouse doubt. Family estate is prohibited from being given to relatives or strangers beyond the immediate heirs; family estate is subject to donation only in the name of the person who should inherit the donor, and to the extent to which the right of inheritance extends (Article 967); Therefore, in this case, the gift only precedes the inheritance, and the estate, passing to another person, does not lose its generic properties, just as it does not lose it when allocated. In this sense, the gift receives the meaning of an allocation, and back the allocation is presented in the form of a gift. In the same sense, it seems, one should understand Art. 1142, which stipulates that property transferred by parents to a son or daughter during life in the form of a gift, after the childless death of the son or daughter, returns back to the parents as a gift, to each what was received from him. From the wording of this article, in comparison with the previous article and from the decree summed up under it on June 14, 1823, it is clear that here the law means the ancestral estate of the parents: such an estate, having retained the quality of the ancestral estate during the transition from parents to children, must return with the same quality to the parents, as their property, as hereditary property (cf. note to Art. 399). We have no doubt that the signs signified in Art. 1142. with the words: “assigned to a son or daughter by parents during the latter’s lifetime in the form of a gift,” the same force applies to the family estate, which was transferred from parents to children through allotment. The law here does not indicate the form of the deed of gift, but the essence of gratuitous, donative alienation during life, and therefore is expressed in the words: in the form of a gift. The expression of the decree is even more specific: “when the estate is a family estate, assigned to a son or daughter by parents during the life of the latter and can be honored as a gift from them to children.” Obviously, when allocating it, it is the estate that is ceded by the parents during their lifetime and may well be considered a gift from them to the children; for it depends on the will of the parents to keep the property, albeit a family one, with them until their death, and even completely deprive their heirs of it through sales to a stranger; It is this freedom of disposal that parents give up for the benefit of their children, transferring their property to them during their lifetime. Therefore, here the allocation expresses precisely the gift nature of the assignment that the law mentions. But how to look at the acquired property of the donor when, according to a deed of gift, it passes not to a stranger, but to a member of the same family? In this case, does the estate remain acquired or does it become family property? The law does not resolve this issue positively, indicating only some, incomplete data for its resolution. At first glance, it would seem that such an estate should be recognized as a family estate. Article 397 states that acquired estate is considered to be that which was acquired by purchase, deed of gift, or other fortification from someone else’s family. Shouldn’t we conclude from this that, on the contrary, that which has been inherited by some kind of fortification from its clan is revered as a clan? On the other hand, Article 399 states that acquired property becomes ancestral when it passes by will to a member of the gens who would have the right of inheritance by law; and a spiritual will is the same gift, only it comes into force upon the death of the donor (Article 991). However, we cannot stop at these considerations. It is more reasonable to think that acquired property does not become a family property just because it goes as a gift to a member of the same family to which the donor belongs. Firstly, from the rule expressed in paragraph 2 of paragraph 397 of the article, it does not follow by itself, by contrast, another rule that everything, in any way received from its own clan, certainly becomes generic, and the law does not recognize such a rule in general force. Acquired property, purchased from a relative, does not become a family property; in the same way, there is no reason to recognize as ancestral something given to a relative. An estate that passes in one clan between its living members remains clan property when it was clan property (Article 399, paragraph 3); but in order for something acquired to be able to turn into a generic property during the transition from a relative to another, a special condition is needed for this: it is necessary that the transition be from the dead to the living, be a hereditary transition, or consist in an analogy with inheritance (Article 399, paragraphs 1 and 2). That is why, when transferring an estate under a will, the law pays attention to the hereditary relationship of the relative-testator to the relative-acquirer; but this property of a testamentary transfer, in the absence of a rule clearly expressed in the law, cannot in any way be extended to a gift transfer. There are similarities between a gift and a will, but this similarity concerns features that are far from essential: both a gift and a will refer to gratuitous methods of acquisition and are based on the expression of personal will. But between the one and the other there is a significant difference, which is very significant in the issue at hand. The donation is carried out during the life of the donor; and therefore the idea of ​​donation not only has no analogy with the idea of ​​inheritance, but is completely opposite to it. The property is alienated by the donor irrevocably, the ownership right passes decisively and definitively during the life of the donor. The concept of giving does not at all include the thought of a family connection, a family impulse, or succession by blood: all these are possible motives in giving, but accidental and not necessary. On the contrary, the legal, essential feature of a will is that it is carried out only after the death of the testator, and therefore represents a clear analogy with an inheritance. The transfer of an estate by will is generally likened to a hereditary transfer: it is completely and unconditionally likened when a family estate is bequeathed to a relative; It is similar under certain conditions when an acquired estate is bequeathed to a relative. It is the law that presupposes related motives on the part of the testator in the will, but it is not yet satisfied with them alone when it comes to determining the generic quality of the estate of the acquirer under the will. To do this, the law requires a complete analogy of testamentary transfer with inheritance, requires that the personal, family motives of the testator converge with the motives of the law itself in inheritance law, so that between the testator and the successor under the will there is not just a family, but a hereditary relationship, so that the successor has the right by law to inherit after the testator (Article 399, paragraph 2). Then, at the moment of transition, the bequeathed estate is clothed with the property of hereditary, ancestral property. But when the acquired property is transferred by gift, during the life of the donor, even to a relative, the relationship of persons has no significance before the law in terms of the essence of the gift: the transferred property itself does not bear the stamp of a gift, and in the transfer itself there are absolutely no signs of heredity: it is carried out like a civil transaction, through the simultaneous connection of two wills: the will of the giver with the will of the receiver, between living people. The estate passes from living to living, and after the transfer it remains as free from connection with the family of the gifted person as it was before the transfer, free from connection with the family of the donor (cf. Cass. decision 1879, No. 58). We talked above about the allocation and mentioned the gift property of the allocation. But if allotment partly has the property of a gift to a greater or lesser extent, depending on whether the family estate is allocated or acquired, then it does not follow from this that every gift between relatives has the value of allotment. Any allocation can be called a gift, but it is not a simple donation, but a donation with a special, clearly expressed intention to allocate a portion from the inheritance fund within the limits of a legal measure, or without any measure, to a person who has the right to inherit after the allocator. Where the intention to highlight is expressed, there we see the selection, and with the selection we connect the thought of heredity; where it is not expressed, but there are only signs of a gift, there we have the right to see only a donation (of acquired property) without any relation to heredity. Considering above rule 1142 art. regarding the return of property from a childless son to a parent, we did not distinguish a gift from an allocation; but there it was possible, because we were talking exclusively about the family estate, ceded by the parents to the children, for in relation to the family estate, the donation is made on conditions identical to the allocation and legal inheritance. 4. The property of a family estate, sold to the family and bought back. Decree on the Verderevsky case According to the laws that were in force until 1823, the family estate retained its properties until it finally went out of use by being sold to strangers; but its conversion by sale from some members of the general clan to others did not take away this property from it. But in 1823 our legislation deviated from this rule in the following case. A certain Verderevsky bequeathed an estate to his closest relatives, about which a dispute arose whether it should be considered ancestral or acquired. This estate went to the testator Verderevsky not by inheritance, but by purchase from his own family: one part, not previously in his possession, was purchased by him from a relative from the family line; the other part was sold by Verderevsky himself from the family to a relative and then returned again by purchase from this relative. As a result of the dispute that arose, the report of the Senate was followed by the Highest Decree in 1807, which stated that the family estate, having been sold to the same family, does not change its properties, and it was ordered that the family estate sold by Verderevsky to his family and then bought back by him should be considered family estate. Having thus resolved the issue of one half of the disputed estate, the Highest Decree did not resolve the other issue of that part of the bequeathed estate, which was simply purchased by Verderevsky from a family estate that belonged to a relative and was not previously in the possession of Verderevsky. The issue came up again for consideration by the Senate. By the force of the same fundamental law on which the Imperial Decree of 1807 was based, this part of the bequeathed estate should also be recognized as ancestral. But during a new consideration of the case, attention was paid not so much to the application to the issue of the general radical law on family estates, but to the application to it of the particular Highest Decree in the literal sense. Some recognized Verderevsky’s estate, simply purchased from a relative, as acquired only because it was not called family property in the decree of 1807; others, based on the general rule of law, to which this decree also referred in resolving a private case, recognized the disputed estate as family estate. The State Council in 1823 agreed with the first opinion, and as a result it was decided: that part of Verderevsky’s estate, which he bought from his relatives, without having previously been sold from him, should be considered an acquired estate, so that such a provision has the force of law in all disputes about inheritance, to which it can be applied in similar cases. Thus, a rule was introduced into our legislation that is completely opposite to its ancient origins. This error was corrected already in 1832, when the Code of Laws was published. The editors of the Code did not accept the rule expressed in the decree of 1823, and in Article 214 of Volume X it was still decided that property that came through deeds of sale from relatives who inherited from the same family should be recognized as family property. Meanwhile, from 1823 until the promulgation of the Code, the above rule had the force of law and was supposed to serve as a guide for private individuals in transactions and wills. Therefore, in 1836 it was ordered: to protect the rights of those persons to whom the estates could reach on the basis of the provisions of 1823, until January 1, 1835, i.e. Until the time when the Code entered into force of law, cases regarding such estates that arose during this period will continue to be resolved on the exact basis of the provisions of 1823. So, it is obvious that the rule introduced by the opinion of the Council of State in 1823 should not be considered only an interpretation of a previous law, which could have retroactive effect and application to transactions and acts of a previous time: this is a new rule, which had no historical basis in the previous legislation, and therefore was subsequently repealed. It follows that if, for example, before 1823, under the influence of previous laws, an estate was acquired as a family estate, then this estate from 1823 to 1835 could not acquire the character of an acquired property only because in that period of time there was a law in force, according to the meaning of which that method of acquisition already imparted to the estate the character of an acquired property. In short: the law that existed from 1823 to 1835 could only give effect to rights acquired during this period, and not to rights acquired through the operation of other rules of legislation, before 1823 and after January 1, 1835 (note to Art. 399). Here is a case that can explain these considerations. A certain Dmitry Dyatlov in 1778 acquired the villages of Shevardino and Kostino using a deed of sale from his grandmother Agrafena Dyatlova, who inherited these estates from her father Voeikov. In 1826, Dmitry Dyatlov bequeathed his entire estate to strangers. In a dispute between his legal heirs, the question arose as to whether Shevardino and Kostino should have been considered a family or acquired estate from the testator, and could he have disposed of these estates according to the will bypassing the heirs? If we apply the laws that were in force before 1823, the estate should be recognized as a family estate, as purchased from a relative who inherited it; if the law of 1823 was applied, the estate had to be recognized as acquired, as purchased from relatives to whom it had not previously been sold from the buyer. Many reasoned about this matter as follows: according to the meaning of the note to Article 399, the law does not mean to protect the rights of those persons who acquired an estate by purchase from relatives (for their right, based on deeds of sale, correctly completed, does not need any other protection), but cares about protecting the rights of those persons who, having received on the basis of the decree of 1823, an estate purchased by the first acquirer from relatives and alienated to them for lack of money act, in the form of an acquired property, would consist of the need to defend their rights against the heirs of this acquirer, who call that estate family property. The persons in whose favor the estate was bequeathed acquired it after the death of the testator in 1827, therefore, during the period from 1823 to 1835, when it should have been considered acquired and when the testator himself could consider himself entitled to bequeath it in this capacity. But this opinion was rightly rejected in the final decision of the case. It is recognized that the property of a given person’s property is generally determined by the minute when it was acquired by him, and by the laws that were in effect at that moment, and that, while remaining with the same acquirer, this property cannot change in its property with a change in the law, which is valid only for the future. The estate, acquired by Dmitry Dyatlov by deed of sale from a relative, passed to the buyer as a family property in 1778, according to the laws in force at that time, and could not change in property only because since 1823 a new rule in the legislation appeared. Consequently, even in 1826, this estate remained as a family estate and, as a family estate, was not subject to will. 5. Acquired property of movable property. Capital obtained from the value of a family estate. Movable accessories of family estates. Claims connected with patrimonial rights. Generic origin of capital Any movable property is unconditionally considered acquired property and no dispute about its generic origin is accepted (Article 398). This includes all those properties that are named under the name of movables in articles 401–403, 405 of the Law. Gr., therefore, cash capital, borrowed letters, bills, mortgages and obligations of all kinds. Therefore, if after the deceased there remains, for example, money capital formed from the sale of such an estate that was his ancestral property, it is impossible to give this capital the property of ancestral property, it is impossible to prove that this capital is considered a representative of the said property. The immovable estate, as soon as it was sold by the patrimonial owner, disappeared from the mass of the owner's ancestral property, leaving no traces of its ancestral property: money remained, but even though it was clear that this money came precisely from the sale of the ancestral property, it will no longer be a representative of it, but a representative of an indifferent value, which is expressed in monetary quantity. It is a different matter when, at the moment of the death of the patrimonial estate, the family estate will be part of the inheritance, but subsequently, before this estate is approved by the heirs, it will turn into monetary value and it will be necessary to determine who should have this value: whether the heirs of the family estate, or the heirs of the acquired estate. It may happen, for example, that a family estate mortgaged by a deceased patrimonial estate, upon his death, before it is approved for one or another heir, will be sold to satisfy the mortgage, and after satisfaction from the proceeds, some part of it will still remain free. Here, a paternal relative of the deceased cannot claim the remaining amount by right of inheritance on the grounds that it, as movable property, should be included in the acquired property; he cannot if the sold estate was the maternal patrimonial estate of the deceased and there are heirs to it in the mother’s family. But the above case does not constitute an exception to the general rule of Article 398, and the provision of capital to the heirs of family property does not in any way contradict this rule. The right to inheritance belongs to the heirs from the moment of death of the person after whom it was opened, even if much later than this minute the heirs were confirmed in their rights and taken into possession of the hereditary estate. Therefore, in relation to this moment only, and not any other moment, one can talk about the rights of persons declaring themselves heirs after the deceased, and one should consider the properties of the estates included in the inheritance. At whatever time the issue of inheritance after a famous person is discussed, in order to resolve this issue it is necessary to determine: who, to what extent and to what property of the deceased can be considered an heir at the moment of his death; what was at that moment ancestral and immovable must be distributed among the heirs in the manner established for inheritance in ancestral and immovable property. In the above case, the heir will receive the amount remaining from the sale of the family estate of the deceased patrimonial owner and from the satisfaction of the mortgage, because he is the heir to the family estate, and to the extent that he is an heir to this estate. He had the right to this family estate from the very moment of the testator’s death, but this right was given to him only with the corresponding obligation to satisfy the debt that lay on the estate. The mortgage is satisfied: the remaining money belongs to the one who has the right of ownership in the estate that served as security for the debt, for it was received from this estate. But this heir, having received money from the family estate or having only the right to receive it, is no longer obliged to look at this amount or this right as family property, and can dispose of it as acquired, just as the owner of the family estate is not constrained in the right to dispose of any capital received from this estate or for this estate. Let's imagine the following case. After the deceased landowner, an immovable populated estate, a family estate, remains. The heir closest to him does not have the right of nobility, therefore, cannot inherit the populated estate in kind. This estate must go to the treasury with the distribution of the required monetary reward to the heir. This reward, as is known, is not issued from the treasury soon, after preliminary research and by court order. The heir, not having time to receive money from the treasury, due to the failure to complete the proceedings, gives the following money to him from the treasury instead of the estate, according to the spiritual will. The question is, do the legal heirs of the testator have the right to challenge his will on the grounds that monetary compensation follows for the family estate? No right. Therefore, it is not right that the hereditary estate, which was the family estate of the patrimonial estate, did not and could not pass in kind at all, like an immovable family estate, to his heir, the testator. According to the law, a populated estate, inherited by a person who does not have the right to own peasants, immediately goes to the treasury department, it comes, therefore, not from the hands of the heir, but directly by force of law, from the deceased patrimonial owner, but the heir cannot be the owner of this immovable estate for a single minute, but receives only the right to compensation for it, therefore, the right to money, to movable property: therefore, this right must be respected by him from the moment of the death of the deceased patrimonial property, acquired property. But let’s assume that when a populated family estate is transferred to the treasury, there appears to be an excess amount of land and land, which, based on the peasants’ per capita allotment, can be separated from the populated estate and provided to the heir in kind (1305 Art. Gr. Zak., ed. 1857). In this case, this land, separated from the family estate and inherited by right of legal inheritance, will retain the property of the family property, and the money given to the heir for the peasants and for all other lands will come to him as acquired movable property 248. So, movable property is generally considered acquired. Article 401 includes in this category “sea-going and river vessels of all kinds, books, manuscripts, paintings, and in general all objects related to the sciences and arts, household furniture, carriages, agricultural implements, all kinds of tools and materials, horses, livestock, compressed and milked bread, all kinds of supplies produced in factories, available ores, metals and minerals, and everything that is extracted from the earth.” It is known that real estate, both city and county, as long as it is in the possession and disposal of its owner, becomes a container for a variety of movable things that are brought into it at the will of the owner or for personal use, or for the economic purpose for which this property is intended by its nature or which the owner has in mind when using his property. As long as the owner is alive, he brings whatever he wants into this real estate, separates whatever he wants from it, without being embarrassed by anything. But after his death, when several persons appear, claiming their rights to the inheritance to varying degrees, on different grounds and in different assets, the question may arise as to which of these movable things were so inextricably linked with the composition of the family immovable estate that they could not be separated from it by the deceased patrimonial owner himself for provision to a stranger, according to the will (see above § 10). Personal claims and demands, and the rights to bring such claims are generally classified as movable property. But when the claim arises from patrimonial right, from the possession of certain real estate, then without the will of the owner he cannot separate from this property and, together with it, relates either to the ancestral or to the acquired property. This is, for example, the right to seek compensation for the grassing of meadows, for the illegal seizure of land belonging to the estate. The question is, to what extent can the owner of a family estate transfer after himself, by will, the right to such a claim to an outsider, separating this right from the patrimonial right to the family estate? We think that in no case can the owner bequeath a claim for patrimonial rights in a family estate to a stranger; for example, having the right to search or having begun to search for land seized by a neighbor from a family estate, the patrimonial owner does not have the right to separate this claim from the estate and transfer this claim by will to a stranger. A plaintiff who, by the right of kinship and inheritance, seeks a family estate from the possession of a person who received it under the guise of being acquired, also does not have the right to bequeath this claim to a stranger. During his lifetime, he can assign his claim through sale, and not through a gift, to a stranger, and only if it is recognized that it is possible to sell a claim for an inheritance, to sell an estate for which the seller has not yet received ownership rights. But when the claim does not relate to patrimonial right, but is aimed at compensation for violation of patrimonial right, is it possible to separate it from the family estate and transfer it to a stranger under a will? It seems to us that it is possible in such a case when the patrimonial owner, during his lifetime, had already begun such a claim, for example, a claim for compensation for losses for the possession of land, since here the claim, meaning the satisfaction of an obligation, even during the life of the plaintiff received the meaning of a special right to compensation, and became capable of separation from the family estate as movable, at the will of the owner. On the contrary, if the owner, who did not initiate such a claim, during his lifetime bequeathed the very right to claim to a stranger, such a disposition would be illegal, for the right to claim here is inseparably linked with the patrimonial right on which it is based, with the estate to which it relates; Having not yet become a procedural right, without actually manifesting itself in the filing of a claim, it could in no case become movable property capable of being separated from the estate at the will of the owner. The acquired estate includes not only the right of ownership, patrimonial right, but also any right in general, both real and personal, therefore, the right of lifelong possession, the right of temporary possession and use of real estate. On the contrary, an estate can be called ancestral only in relation to patrimonial right. Therefore, a family estate, bequeathed, for example, for lifelong ownership to one person, with the fact that upon the death of this latter it must pass by inheritance into the full ownership of another person, remains family estate not only before the beginning and at the end of lifelong ownership, but also during lifelong ownership, for even at this time the right of ownership in this estate, although limited to the lifelong ownership of another person, belongs not to this person, but to the legal heir. It is impossible to prove the patrimonial origin of capital and movable property in order to assign them the property of patrimonial property. Such attempts, however, often occur on the part of litigants, especially when presenting rights to inheritance. Others think that by proving, for example, the origin of capital from father or mother, or the formation of capital from paternal and maternal property, they at the same time confirmed their inheritance right to property of one kind or another. But the origin of property from a known person, and even its successive circulation between persons who are in a hereditary relationship with each other, does not give at all a generic property to this property, when by its nature it is incapable of being generic. For example, it is known that in the lateral lines the paternal estate goes to the father’s clan, the maternal property goes to the mother’s clan, and acquired property generally goes to the father’s clan; and therefore, an acquired property is considered escheat when from the clan to which the deceased owner belonged on the father’s side, there are no relatives left, and there are also no half-brothers and sisters of the owner left (1138, 1163 art. Zak. Gr.); Consequently, when capital remains after the deceased owner, inheritance rights are presented only by persons from the mother’s clan, and the deceased has no brothers and sisters, then the capital, bypassing the maternal clan, goes to the treasury by escheat. In this case, when an heir from the maternal family proved that the disputed sum of money was inherited by the deceased from his mother, and proved, for example, that the very bank note that was left after him formed part of his mother’s dowry, then this circumstance would not have the slightest impact on the inheritance right of the seeker. This does not mean, however, that it is not at all interesting to prove the origin of capital and movable property when it is not a matter of assigning a generic property to this property. This can be important in many cases: for example, when identifying a stolen thing, when it is necessary to show from whom it was bought and where it came from, in a dispute about whether the property of the wife of an insolvent should be turned to satisfy his creditors, etc. Even for determining inheritance rights, the question of the origin of capital can sometimes become of significant importance, precisely when it comes to the inheritance of parents in the capital of childless children, if it is proven that these capitals came to the children from their parents (1144, 1145 Art. Gr.). Here the matter is not at all about the hereditary origin of capital, but it is only necessary to prove: 1) that the known capital was inherited by the son precisely from his parents, and 2) that he received it as a gift, and not in the form of payment or remuneration. 6. Restrictions on the disposal of family estate. The meaning and basis of these restrictions. Difference between gift and compensation methods of alienation. Restrictions on the disposal of family estate by will. Cash payments from the family estate. Will of a family estate for lifelong ownership. Elimination of inheritance in a family estate The difference in the rights of the owner to a family estate and an acquired one relates exclusively to the right of disposal. The owner of the acquired estate is considered its full owner. The right to the estate belongs to him personally and is not constrained by anyone else's rights: the owner can dispose of this estate as he pleases, in all ways that are allowed by law for the acquisition and alienation of property (Article 1011 note). And the family estate belongs to the owner with the right of full ownership. Personally, during his lifetime, no one has the right to demand an account of the dispositions of even family property. But ancestral property is assumed to be hereditary, and if it remains with the owner at the moment of his death, if during his lifetime it did not pass from him by consolidation into the property of another person, it must certainly and unconditionally pass to the legal heirs of the deceased patrimonial owner. Therefore, in a family estate there is not only the personal interest of the owner himself, but his interest as a member of a certain family to which he belongs and from which he received the estate. This estate is connected, therefore, with history and with the interests of a whole family. As a result, the owner of the estate, using the personal right to extract for himself any benefits from his property (423–425, 541 Art. Gr. Zak.), can exhaust all its contents in his own favor and even sell the family estate to an outsider when he recognizes this as necessary for his own purposes. But, on the other hand, in the interests of the family, the law positively prohibits it from: 1) such dispositions of the family estate, which are analogous to inheritance law, when these orders tend to change or circumvent the order established by law for inheritance in the estate; 2) such orders, which have the property of a gift, gratuitous alienation, express the will to benefit the acquirer when these orders are made in favor of a stranger, bypassing relatives. On the contrary, those methods of alienation that are not analogous to inheritance law, namely those that the law relates to the mutual acquisition of rights to property, are not considered prohibited for it. However, even here, regarding the sale, the right of inheritance also declares itself, for a certain period, a special right to redeem the alienated estate from a stranger. Many people find it unclear what this difference is based on? Why you can’t give away your family estate to someone else for free, when you can sell it to someone else. But there is a significant difference between one and the other method of alienation, recognized by almost all legislation. When selling an estate, the natural goal is to benefit from the transaction, exchange the estate for the corresponding value, and use this estate to satisfy a need or need. When I have the right to full ownership of an estate, it would be strange if I were deprived of the right to exchange it for monetary value, when my needs require monetary capital, and in order to obtain it I decide to part with material capital, for example, with real estate. No one has the right to prevent me from doing this, and by selling my property, I am not violating anyone’s rights or violating anyone’s legitimate interests. Such alienation has absolutely nothing to do with the inheritance after me: the inheritance is made up of those properties that remain in cash after the deceased, and if the monetary value I received for the estate is retained by me, or used productively for an economic purpose, it remains in one form or another after me as part of my inheritance; if I spent it, it was my good will, and my heir has nowhere and no one to find it from. But when I alienate my property by gift or gratuitously, I have in mind an additional or main goal - to freely benefit the one for whose benefit the alienation is made, and not to exchange one value for another, not to satisfy my material need or need. By selling property for money or exchanging it, I do nothing to the detriment of people close to me by blood who should inherit after me, for I am acting in my own interest, and my relatives cannot claim that for the sake of their future interest in my inheritance I should limit myself to my immediate interests. But by alienating property free of charge, in favor of a stranger, I place this stranger closer to myself than people who are close to me by blood. I am no longer acting in my own interest, but in the interest of an outsider. Before the motivating reasons for my interest in my estate, the personal interests of my relatives must give way, and the law, which affirmed my right to extract from the estate whatever benefits I want, also recedes. But it is just as natural that my relatives are suspicious of the interests that a stranger receives for free on my estate; the law is just as suspicious of them. This suspicion is aroused by the will that I make in favor of a third party; it is even stronger when during my lifetime I give my estate to a stranger. By making a will, I still do not deprive myself of anything, I do not take anything away from my property, I do not reduce my interests in the estate in any way, because the will will become valid only after my death, when all my personal interests in the property will already disappear. But by making a gift during my lifetime, I voluntarily deprive myself of part of my property, reduce my interests in property in favor of another person, alienate from myself capital that, if in my power, would be used by me for interesting purposes: here, therefore, even less than in a will, concerns about the interests of my own or related ones are expressed, and concern for the exclusive interest of a third party is even stronger. For this reason, almost all legislation, allowing the complete freedom of the owner to dispose of his property for interesting purposes, limits this freedom with respect to gratuitous, gift-based methods of alienation, and determines the extent beyond which the owner’s generosity to strangers should not extend if he has natural heirs, and even generosity to one of the heirs to the detriment of others, more or equally close. In our legislation there is no such general restriction, but there is a division of property into ancestral and acquired property, and in relation to the latter, complete freedom of disposal is allowed, while in relation to the ancestral estate, the freedom of gift disposal is almost certainly constrained. With the exception of England, where no such restrictions exist, from among the systems adopted in other states, one has to choose either a system of restriction through specified parts, allocations and returns, or a system of restriction by type of estate. We stick to the latest system. So, in our country, the disposal of family estate is constrained primarily in that method of alienation, which consists in the closest analogy to an inheritance, namely in a will, since a will establishes the order of inheritance, regardless of the legal order, according to the will of the owner of the testator. Acquired property can be bequeathed with unlimited freedom, but ancestral property can be bequeathed only to those persons and to the extent that these persons would have been called to inherit by law even without a will (1011, 1068, 1069 Art. Civil Code); otherwise, the order on the family estate placed in the will is invalid (Article 1029). An exception to this strict rule is allowed only for a childless owner, who is allowed, in compliance with a special ritual, to bequeath the family estate past the closest heirs to one of the members of the family from which the testator himself received the hereditary estate (Article 1068). The testator can oblige his heirs - however, only for the duration of their lives - to make monetary payments when he makes an order about the acquired estate: it depends on him to establish the very manner of ownership and use of the estate, to oblige the heir to perform such actions that are associated with costs that reduce the actual value of the acquisition. It is up to him to bequeath the acquired estate into full ownership, or for temporary use and possession, so that after a certain period, or upon the death of the first owner, the estate passes into full ownership of another designated or presumed heir. But the testator of a family estate does not use this freedom in cases where it is possible by law to bequeath it, and the owner of the family estate does not use it when he would like to impose on the heirs of this estate responsibilities, duties or actions associated with a decrease in any value from this estate, with the loss of a greater or lesser part of it. Such orders, although in themselves they do not represent anything illegal, are not binding on the heirs of the family estate, unless these heirs of their own free will agree to begin to carry them out (1011, 1086 art. Zak.Gr.). The law only says that the heirs have the right to refuse to execute such orders. This expression of the law is not without special meaning. If the law directly declared all such orders illegal, the heirs’ right to demand their destruction would be unconditional. But with the current wording of the law, the question may arise as to whether, for example, the heir to a family estate has the right to stop, before the deadline set in the will, an annual payment or payment to a third party, if he has already been making this payment for several years and if it is proven that he made it precisely on the basis of the will? Does the owner of a family estate have the right to bequeath it past the legal heirs, i.e. with a deferment of acquisition for them - for lifelong ownership? Until 1862, this question had to be answered in the negative on the basis of the general rule of Article 1068, which states that “family estates are not subject to will” - and this expression “not subject to will” must be interpreted in the broadest sense, i.e. – are not subject to testamentary disposition, are not subject to the constraining will of the testator not only regarding the acquisition of property, but also regarding possession and use. The above article has always been interpreted in this sense. However, the possibility of granting the family estate for lifelong ownership was allowed by our laws, only not by will, but by a special act drawn up during the life of the votchinnaya-administrator, with the Highest permission (Zak. Civil., ed. 1857, 1629 art., p. 2). From the decree summarized under this article on February 15. 1817, it is clear that in such a case, the patrimonial administrator had to turn to the Sovereign Emperor with an all-submissive petition, according to which a personal decree was given to the Senate, and then the Highest command was published everywhere by Senate decrees. At the same time, sometimes, at the request of the manager, the lifelong owner was given the right to pledge the estate; Regarding the acquired estate, this right could be granted simply by a spiritual will. Only this right, in this and in other cases, is not unconditional, and does not depend on the will of the lifelong owner alone. The pledge of an estate consisting of lifelong possession is made only with the permission of the Senate (1629 Art. Zak. Gr.); It is assumed, therefore, that the lifelong owner must also justify the need for a pledge by presenting to the Senate the reasons for this, and in the Highest decrees authorizing the transfer of a family estate into lifelong possession with the right of pledge, it is usually mentioned that a pledge can be made “only if necessary to maintain the estate, and in the amount that the Senate recognizes will correspond to the actual and proven need.” This rule still remains in force, but in 1862 an exception was made in favor of spouses from the general rule regarding the prohibition of bequeathing a family estate for lifelong ownership. A spouse can now bequeath the family estate to another spouse for lifelong ownership and without the Highest permission, through a serf will or a handwritten household will deposited in a special manner (see Civil Law, Art. 1070). The family estate can be disposed of in the event of death only in accordance with the procedure established by law. By virtue of this rule, the will of the patrimonial owner, regarding the inheritance after him in his family estate, is bound in both positive and negative activity. A patrimonial owner, on the one hand, does not have the right to grant after himself a family estate to the wrong person and not to the extent to whom and to what extent it would follow after him by law. On the other hand, he has no right to deprive the slightest part of this estate from those persons to whom the law grants the right to inherit in this estate. In a family estate, the patrimonial owner has no right to exclude from the inheritance or limit the rights of inheritance either to his children or to any of the relatives who have the right of inheritance. With regard to children, the law grants this right to parents only in one case, when, as a result of complaints from parents for guilt against them, children are excluded from participating in the parental inheritance. If a son or daughter entered into marriage without the consent or against the decisive prohibition of the parents, if the parents file a complaint against this, then the guilty, among other things, are deprived of the right to inherit in the estate of the parent whom they offended by their disobedience; however, this parent is given the opportunity to subsequently restore this right of the children at his own discretion (Code of Punishment, Art. 1566). By virtue of the same rule, a spouse cannot prevent his spouse from receiving the specified portion from the family estate: a testamentary disposition of this kind would be invalid and would not deprive the surviving spouse of the right to demand the allocation of the specified portion from the family estate. Testators often make mistakes in their calculations when, wanting to confirm their family estate exclusively for members of the clan, they assign, for example, to the wife a part of the acquired estate instead of the specified part, decreeing that the wife should no longer participate in the division of the family estate. The purpose of the will is in no way achieved by this: the wife will receive under the will everything that is bequeathed to her from the acquired estate, but at the same time she will also receive the specified part from the ancestral estate, unless the testator has bothered to positively express his will in the sense that the wife in such a case can only take advantage of the assignment of the acquired estate when she refuses to participate in the ancestral estate. 7. Restrictions on the allocation of family estate and the assignment of a dowry The right to dispose of family property is limited in allocation. An allotment in a family estate is a pre-inheritance, and therefore, from the family estate, parents and ascending relatives can assign to the allotted descendant no more than the portion determined by law (996 Art. Civil Code); children who did not receive their full part during the allotment can then, when opening an inheritance and when dividing it, demand the addition of their part from the family estate, which will remain after the death of the patrimonial owner (Article 997). It may happen that after the allotment, another heir arises for the applicant, who did not exist at all at the time of the allotment, for example, after the allocation of most of the family estate to the only son, another son is born to the applicant. The question is, will this newly emerged heir, after the death of his father, have the right to demand treatment in division with his brother and the estate that passed to the latter by allotment, or should he be content with the inheritance only in the family estate that the father will have at the moment of his death? We think that this heir should be content with what remains behind the scenes. Our law does not mention the right of return in such cases, but this right is special, and does not at all flow from the general provisions of our legislation on inheritance, so we cannot recognize it without having in mind a positive legal rule about it. According to the meaning of our legislation, allotment is carried out finally and irrevocably, on the one hand, alienation, on the other, acquisition of property, and a newly born member of the clan, in any case, can have patrimonial rights only in the estate that from the moment of his birth was in the property of a relative, after which an inheritance is opened for him. In relation to the dowry, our law gives reason to doubt whether the patrimonial owner has the right to assign to his daughter or relative, on the occasion of her marriage, more than the share of the family estate that would be due to her by law; in the articles of the law on dowry (1001–1004, 1006–1008), the positive prohibition expressed in Art. 996 is not repeated. Zach. Citizen regarding the allocation. There are two important questions here: 1) A patrimonial owner, when marrying off not only his daughter, but a relative in the collateral line, does not he have the right, within the meaning of Article 1001, to give a dowry from his family estate to such a relative who, with other close members of the clan, does not appear to be an heir after him? This question must be resolved in the negative, since the text of the law does not provide data for a different conclusion. The right to assign the family estate as a dowry to the immediate heirs would be a very important exception to the general prohibition, and this exception should in no way be assumed unless it is expressly expressed in the law: there is no mention of such an exception in any of the decrees that served as the sources of the Code of Laws. The decree of April 3, 1702 only says: if anyone’s daughter or sister, or any in-law, or the maiden, or the widow herself, agrees to marry someone, then: instead of row and agreement entries, write dowry lists, and the purpose of the decree was to prohibit for the future agreement entries with a charge or penalty. And 1001 article X vol. It should be understood in the sense that when an estate is assigned to a daughter or relative on the occasion of marriage, this assignment is called a dowry. Here some doubt is aroused by the word: allocation, used in the article. But this word allocation should be understood here in a general sense as the allocation of any part of the estate to one of the persons who are in a blood relationship with the applicant (Article 994), and not the allocation of a specific, designated, hereditary part that follows by law. In this last, further sense, the word allocation refers to the family estate; in an acquired estate, the deeder can assign to his descendant any part he wishes, also through allotment. Of course, the wording of Article 1001 should have been more precisely in agreement with the wording of Article 994, for it is obvious that allocation in both cases is not the same thing, and Article 994 refers the concept of allocation to children and descendants, and 1001 to relatives in general, and the meaning of the word relative is broader than the meaning of the word descendant. So, edition 1001 art. with some inaccuracy, it does not contradict, in our opinion, the general rule that in the allotment the patrimonial owner cannot, of his own free will, change the general order of inheritance law in the family estate. But here doubt arises on another issue, about the right of the patrimonial owner to assign a dowry from the family estate to one of his daughters, about the shares coming from the same estate to his other children. Exactly: 2) When a parent, having several children, from his family estate assigns to one daughter a part of more than her specified share, does his other unallocated sons and daughters have the right, when opening an inheritance after this parent, to demand equalization of their inherited parts by law, with the excessive part that their sister received upon marriage? The answer given on this issue by Article 1004 of the Law. Civil, as it were, contradicts with regard to the dowry everything that has been said so far about the nature of the ancestral property. The article is expressed as follows: “a daughter, separated and renounced from participating in the inheritance, cannot, in the presence of brothers and unmarried sisters, demand anything from the property left after her parents, but at the same time she is not deprived of the slightest part of the dowry allocated to her, even if the heirs do not receive, in proportion to the dowry given to her, the appropriate parts from the inheritance.” Therefore, others say, a parent has the right not only from the acquired property, but from his own family estate, to allocate to his beloved daughter, according to a row record, such a part as he wishes: upon the death of a parent, she does not lose the slightest part of the dowry allocated to her, no matter how small the hereditary shares of the other children of the deceased in the family estate left after him turn out to be. We cannot agree with such an opinion, and primarily for the same reason that such a rule would clearly contradict the fundamental law on family estates. In such a case, an important exception would be established for the dowry, and we have the right not to recognize such an exception if it is not expressly expressed in the law. The cited article 1004 does not at all express such a direct exception, but it is puzzling due to the inaccuracy of the edition. In order to determine the true meaning of an article, you should refer to the source from which it was extracted. Below the article is quoted a single decree of May 19, 1789; It follows, therefore, that it is assumed that from this source exclusively the compilers of the Code borrowed the wording of Article 1004. The decree contains the decision of the general meeting of the Senate on the case of Vadbolskaya and Molchanov. In 1751, Molchanov, when marrying his daughter to Vadbolsky, assigned her a dowry of 2,377 rubles, and instead of real estate for the purchase of a village, 2,000 rubles. After the death of her father, Vadbolskaya began to demand for herself, along with her brother and sister girls, a share from her father’s immovable estate, proving that she had not been awarded anything from her father’s immovable estate. The Senate, recognizing this requirement as illegal, adopted the following considerations: the old laws, since the time of the Code, did not determine how much dowry the father should give to his daughters when giving them in marriage, and this dowry always depended on the will of the parents and on the consent of the grooms; and thus, each daughter given in marriage with a dowry from her father, received in greater or lesser quantities, was considered separated from her father’s estate, in the case of other sons or maiden daughters he had; evenly, these children did not have any participation in the dowry given to their sisters who were given in marriage; There was not even a command at all in the laws that such married daughters should again be given anything from their father’s estate or, in the case of an excessively given dowry, should be taken away from them, and these were supplied on the mutual condition of the parents with their sons-in-law and the division of their daughters by their peace-loving provisions. According to Peter's decree on single inheritance, the dowry was to be limited to movable property: it was assumed that henceforth there would be no one with an immovable dowry, and in 1731 the new order of inheritance was canceled, and fathers and mothers of their children were ordered to divide their children according to the Code equally and to give a dowry for daughters as before. These considerations were adopted as the basis for the wording of Article 1004; only the article adds to these considerations something that is not in the decree, namely the words: “renounced inheritance.” The decree of 1789 made no mention of abdication at all; All these considerations relate in general to the dowry, but do not particularly relate to the purpose of the dowry from family estates. In the decree of 1789 there was no mention of the difference between ancestral and acquired property in the purpose of the dowry; At that time, the legal limits of the disposal of the family estate had not yet been clearly defined. Article 1004 only serves as confirmation of the general rule that every contract and every obligation, correctly drawn up, imposes on the contracting parties the obligation to fulfill them. The Senate decision of 1789 looks at the dowry record as a transaction between father and daughter or her groom, and even calls such an agreement peaceful. It was with the aim of restoring such an agreement that the Senate took care in this case to collect all the signs that there was a voluntary agreement, that the dowry was accepted by the son-in-law. This view of recording a dowry as a transaction was expressed even more clearly in Art. 1004. X t. as applied to the case when a daughter, upon division of her dowry, renounces further participation in the inheritance. Here we see really clear signs of a deal: the father assigns his daughter a part of the estate, perhaps more significant than her inherited share, so that she will be completely satisfied with this division and will never demand anything more from her father’s estate and inheritance - to which the daughter obliges herself by deed, retaining the right to keep with herself everything that her father has allocated to her. Article 1004 confirms the validity of such a transaction, and only: it does not at all say that in a dowry transaction such disposition of the family estate, which in other cases is considered prohibited, is considered permissible. On the contrary, if this is a contractual agreement, then the general rule of any contract should be applied to it: that its purpose must not be contrary to the laws, and that the contract is considered invalid and the obligation is void when the motivating reason for its conclusion is the achievement of a goal prohibited by the laws (1528, 1529 Art. Gr. Zak.). The motivating reason for such a series entry, in which an excessive part of the family estate is given to the daughter, along with her brothers and sisters, will be the achievement of a goal contrary to the law, therefore such a transaction should be declared invalid. Assuming the contrary, we will come to a conclusion that is unreasonable and clearly contrary to the purpose of the law on family estates: then we would have to admit that the father, who does not have the right to assign an excessive part of the family estate to his daughter according to a separate entry (Article 996), can achieve the same goal, without violating the law, through a row entry, if only the daughter writes in the row that she considers herself completely satisfied. 8. Restrictions on donating family estate. Encumbrance of the donated estate with duties. The difference between a gift and an allocation. Donation of an estate for lifelong ownership Freedom of disposal of family estate is limited in donation. The owner can give away acquired property of any kind freely at his own discretion; It is prohibited to give the family estate to relatives or strangers, other than the closest heirs (967). It is possible, therefore, to give a family estate, to alienate it during one’s lifetime for free only in favor of persons who have the right of inheritance after the donor, and to the extent that this right belongs to them. With regard to children and descendants, such a donation will be an exception; and regarding relatives in the lateral line it will be especially a gift. Therefore, the owner of a family estate who has children or grandchildren alienates the estate in their favor mainly through allotment, and the owner without descendants alienates the family estate in favor of lateral relatives exclusively through donation, and in some cases through a dowry. By distinguishing here a donation from an allocation, we distinguish not only the form of the act. There may also be an internal difference between the allocation and the gift of the family estate. We have seen that when the owner of a family estate, bequeathing this estate to a relative, burdens him with duties or cash payments, the heir has the right to refuse to fulfill the obligation assigned to him. Here the family estate cannot bear the obligations imposed by the will of the testator. The question is, can such duties be imposed on the family estate by the will of the donor? They can: there is no doubt about it. A donation differs significantly from a will in that it is made by agreement between the donor and the donee, whereas in a will there is not and cannot be an agreement between the will of the giver and the will of the recipient. Our law, although, according to the original distribution of the civil law system, relates donation not to contracts, but to methods of acquiring property, it positively allows gifts between private individuals on the terms of the manner of use and management of the donated property, without distinguishing the ancestral from the acquired (975, 976 Art. Zak. Gr.), and allows special conditions in a gift by agreement of the parties (977), while in a will our law denies everything similar to an obligation and to a transaction between the testator and the person in whose favor the will was drawn up (1030, 1032) and completely rejects the form of donation in case of death (donatio mortis causa), in which the contractual principle is combined with the testamentary one (991 Art. Law Gr.). Indeed, in a gift, the donor certainly gives up something, sacrifices something, deprives himself of something in favor of the donee, alienates from his property something connected with his personal, immediate, feasible interest, and by renouncing his interest, transfers it into the sphere of interests of the donee - with his will he creates for the donee an interest that without this good will of the donor the donee would not have in his property. Thus, by alienating acquired property by gift in favor of a stranger, I provide him with a right that he could not have acquired independently of my will. By providing acquired property as a gift to a relative who is in a hereditary relationship with me, I am exercising for him a right that he could have received without the gift if I had died, keeping the property with me and not disposing of it; but I might not have received it at all if I had sold, donated, or bequeathed the same property to another relative or stranger. By granting the family estate by gift to the one who is my heir, I alienate in his favor the entire interest of the property from the moment of the gift until my death, i.e. for all the time during which I myself would have taken advantage of this interest if I had kept the property to myself. On the contrary, when I bequeath property, I do not deprive myself of anything, I do not take away anything from my interests, and I do not even bind my will to anything. I make a gift order, but not at my own expense, not at the expense of my interests. Whenever I chose a successor in the estate, the estate would remain with me in the same way. I perform an act of beneficence, but the meaning of this beneficence may not be the same. The benefit will be complete when the acquired property is bequeathed to a foreigner, without imposing relative duties; incomplete when duties are imposed. But when I bequeath a family estate to a person who would already be my heir, I do him absolutely no benefit, for I had no right to even deprive him of the inheritance. By bequeathing an estate to one of the members of the clan according to the right granted by Art. 1068. Zach. Gr., I’m still not unconditionally doing him a favor. It is true that I had the opportunity to choose another, I chose this particular person, but perhaps this same person, due to mortal and other accidents, would have turned out to be my closest heir at the moment of my death. In any case, by bequeathing the family estate, I, firstly, do not concede anything of my interests; secondly, I choose my heir not freely, but only from those persons who already have either an unconditional or conditional right to inheritance in this estate (in the case referred to in Article 1068, my choice is limited to the family from which I inherited the estate). Therefore, it is natural that here I do not have the right to enter into a transaction with the chosen heir and demand from him, for example, responsibility for replacing the interest that he will receive in the estate, since, without conceding any of my interests, I cannot demand that the heir cede to me part of his, and since the interest of the estate bequeathed by me, even before my death, and regardless of my will, by virtue of law and blood ties, was already united with the interest of the person to whom I bequeathed estate; only my interest was a cash interest, and his interest was an interest in expectation, with a greater or lesser probability that the expectation will come true. So, in a donation, at least ceding my cash interest in the family estate to my heir, I can demand from him a reciprocal concession of interest: I can offer him a condition, impose duties on him. Here it is up to the donee to calculate whether it will be beneficial for him to accept a gift from me with these duties and conditions, if even without the gift, after my death, he should or can be my heir in the same estate. If, having calculated, he accepts a gift from me, then he enters into a transaction with me (our law does not say, but justice requires recognizing that the validity of this transaction, regarding the family estate, extends only until the death of the donor: otherwise the fundamental law of the family right to the estate would be violated). Gifting allows for such a transaction. But we hardly deserve the accusation of excessive pedantry and inaccuracy when we say that, in our opinion, such a transaction does not agree with the essence of the allocation. There is a legal line between donation and allocation, the nuances of which, no matter how subtle, should not disappear in the legal consciousness. Allocation is almost the same as donating a family estate, but not the same thing; otherwise the department would not stand in a special category of civil institutions. A son separated and a son gifted from the family estate are not the same thing; The legal feature of this difference should, it seems, be sought precisely in the right of the patrimonial owner to impose duties on the family estate alienated in one way or another by gift. The allocation assumes, first of all, the anticipation of the hereditary transition, the implementation during the life of the patrimonial owner of the inheritance right of his descendants to the family estate: the purpose of the allocation, first of all, is to separate part of the inheritance, family fund to a son or descendant, for independent economic and family life, to separate home and family from home and family. The purpose of donation is simply to give up your property, at least to a son, grandson, or relative, with the goal of benefiting him, enriching him with new capital, a new means of living, a new interest in property. It is obvious that both are not the same thing, and that the allocation is not a simple donation, and not a donation with a special property, but a completely special institution with its own legal character, with its own legal purpose. In the allocation we do not see the contractual element, whereas in the donation it is significantly involved. So, we think that it would be incongruous with the essence of allotment to impose duties on the allocated descendant, and that if, for example, a father wanted to entrust to his son or a grandfather to his grandson the fulfillment of duties on the family estate, upon alienation of this estate, he would have to choose for such an act the form of a deed of gift, since such conditions are incompatible with allotment. In the same way, when an estate is granted to the nearest heir in exchange for a debt, an act of this kind may be a deed of gift, but it would be strange to call it an allotment. The division corresponds, in our opinion, to only one condition, which cannot, however, be called an arbitrary condition based on a single agreement, because it is prescribed both by nature and by the law itself (Zak. Gr., 194 art., Statute of punishment. magistrate court., 143 art. Statute of rural improvement, 491 art.): the condition of supporting a parent or grandfather and to rest him in his old age, when he, relinquishing his economic leadership in the family, hands it over to the allocated descendant and goes, so to speak, to his house 249. Can the owner of a family estate provide it during his lifetime through a gift, not as property, but as temporary or lifetime possession to a person who does not have an inheritance right to this estate? Maybe, but only for the duration of his life - no further. During his lifetime, it is up to him to cede all his interest in the family estate to anyone he wants, as long as the estate is not completely alienated into the ownership of a stranger. But as soon as the donor has died, as soon as the donated estate has ceased all the personal interest that he could have in it and which he could dispose of in favor of a stranger, the patrimonial interests of the donor’s heirs come into force, and they have the right to demand from the gifted person the return of the estate by inheritance, even if the period of possession and use assigned by gift has not yet expired, even if the owner of the lifelong right to the family estate assigned by gift is still alive. The donation of family estate not by way of legal inheritance is prohibited (see Cass. decision 1879, No. 178). The law does not cancel this rule regarding donations, which constitute one of the types of donations (979–986 Art. Zak.Gr.); although in 980 art. it is said that donations, depending on the personal discretion of each person, are not subject to any special rules. 9. Refutation of illegal acts on the family estate. Refutation of rights to family estate inherited by division between co-heirs. Is the surplus of the family estate inherited by division subject to redemption? Exchange of family estate The family estate is inherited only in accordance with the procedure established by laws and legally belonging to each of the heirs. It follows that an act of gratuitous alienation drawn up on a family estate in favor of a stranger or with excessive enrichment of one of the members of the family at the expense of other members having inheritance rights is subject to refutation by interested parties. In this case, interested parties should be considered those members of the clan who have the right to inherit after the applicant, whose rights, therefore, were violated by the enrichment of a stranger, or by the excessive enrichment of a relative from the estate in which they also have a certain hereditary share. In this case, these persons enjoy the right of action, the right to refute the act of alienation of the family estate, and this right belongs to them to the extent of each person’s inheritance. Only persons who have such a right to claim, persons legally interested in the alienation of property, and not anyone else, not any outsider and not the state, have the right to present refutations against the act of alienation and demand its destruction. The state, we said, of its own accord, in order to protect the legal order of inheritance, does not interfere in the matter of private civil law. It is necessary to understand the law on family estates in this true sense. The purpose of this law is not the unconditional protection of an abstract principle, the protection of the recognized principle of inheritance, but the protection in each given case of civil law, specially assigned to a certain person who is in a certain legal relationship, therefore, in this protection the state acts according to the principles not of state, but of private civil law, i.e. begins to consider and verify rights only as a result of a claim, as a result of a request from an interested person. Without a doubt, the law on family estates has national significance; when establishing it, the legislator included government considerations. This element, to a greater or lesser extent, is included in the legislator’s considerations when creating any new definition in civil law. But the state assumes direct supervision over the observance of civil rights only as an exception, only in cases where the strict observance of these rights is in direct connection with the state or public interest. In the rest, precisely in the majority of cases, civil law, as part of a certain legal relationship, is the direct interest of a private person and, in the event of a violation, is protected and restored by state power only as a result of a claim or complaint from a private person. Such rights also include the right associated with the ancestral origin of the estate. The law of family estates is that the patrimonial owner disposes of them free of charge only in the manner specified by the general rule established in the interests of the family and relatives. When the order of the patrimonial owner deviates from this general rule, it violates the legitimate interest of the person who, by law, has the right to the family estate. As a result, this person receives the right to sue, the right to challenge the order of the patrimonial owner, as a violation of the right. This right of action is tied directly to the legal interest of the known person, and therefore it is up to that interested person to pursue his interest or abandon it. If the interested party demands restoration, the state authority (court) begins to verify the legal relationship and, making sure that it has been violated, restores it to its normal, legal form. If the interested party is silent, there is no reason for the state authorities to touch upon the legal relationship and begin to verify the law when there is no claim or petition about it. Therefore, an order on a family estate, which is essentially illegal, can be put into effect and remain in it when no dispute is brought against it on any side. Let us assume that after the deceased patrimonial estate a family estate remains and the rights to this estate belong to several heirs, to an equal or unequal extent, in equal or unequal shares. This measure of participation in the inheritance of persons jointly called to it is determined by law, and this measure determines the material volume of the civil right to inheritance belonging to each of the heirs. But in establishing this measure, the law does not at all mean to protect it unconditionally, regardless of the claim, request or dispute; it does not at all oblige the state authorities to ensure that the share of each of the heirs does not exceed the measure established by the law. Upon the opening of the inheritance and upon the presentation by the heirs of their inheritance rights, the state authority certifies the authenticity of the right belonging to each of them and does not go further. Several claimants to the inheritance appeared; As soon as they are all recognized in law, recognized as heirs, the entire inheritance in its entirety belongs to them collectively. It is up to them, by mutual agreement, to distribute the inherited shares of the estate among themselves; As long as there is no disagreement or dispute between them, the judiciary does not interfere in this distribution and has neither the right nor the obligation to ensure that everyone gets exactly the share of the family estate that is required by law. It depends on them, as indicated by mutual interest, to balance these shares among themselves in an amicable division. Therefore, there is no doubt that when dividing the inherited estate, one of the heirs has the full right to give up to the other heir a more or less significant part of his share of the family estate, with replacement and compensation or without compensation at all. Every division is an agreement about which of the heirs gets what from the estate, where, in what quantity and under what conditions. This agreement does not contain anything illegal when the heirs in it cede to each other parts of the family estate or exchange them, even with a visible decrease in the share, for the acquired estates of the deceased patrimonial owner, etc. Such concessions and exchanges, no matter how far they extend, are completely legal when they are made exclusively between those persons who own the right of inheritance, and between all these persons: in this case, all civil interests involved in the inheritance are extinguished by the mutual agreement of all heirs (we are not talking about possible cases of redistribution, according to the force of 1332 Art. Zak. Gr.). There are no participants in the inheritance except those persons between whom the agreement was concluded; the agreement, finally concluded, is binding on everyone who participated in it (1528, 1536, 1543 Art. Zak. Gr.); therefore, no one’s rights are violated, there is no one to argue against divisions and concessions, no one’s claim can initiate a legal test of inheritance law. It is a different matter when at the very moment of the division there existed, at least not yet announced, the right of a third party not included in the division to participate in the division of the same inheritance; in this case, at the request of this person - the newly appeared heir - the previous division will be destroyed and all its conditions will be declared invalid (1547, 1241, 1300 Art. Zak. Gr.). But when, in view of such a division between the co-heirs, we ask ourselves the question: what served as the true basis for the acquisition of property rights that went to each of the co-heirs, then we will have to admit that the basis for the acquisition here was inheritance, and not contractual law (cf. Cass. 1875, No. 1076). None of the persons who participated in the division of the estate after the patrimonial owner and received their share, perhaps with a surplus and increment, could receive this surplus if they did not have an unconditional right to their inherited share. The contractual agreement here only determines how large the inheritance share should be. Its quantity, the terms of the equation, the locality of ownership - all this is determined by the agreement and division, the agreement of the heirs, but it is not this agreement that creates the right acquired by each of the heirs. This right was not created by division; it arose long before the partition, at the moment of the death of the patrimonial owner, by the force of the unconditional inheritance law; at that moment the law of inheritance opened (1222, 1254 art. Zak. Gr.); its acquisition was accomplished with the approval of the heirs in their rights and with their entry into the possession of all together - and the essence of the division is what part of the common, collectively acquired hereditary estate should go into the exclusive possession and disposal of each of the partners (554, 1313 art.). When I say that the estate was given to me by division, it means that the division determined what goes into my exclusive possession; this does not mean that I acquired this property from him or from those with whom I shared the inheritance; I acquired it not from anyone else, but directly from the deceased patrimonial owner; between him and me there was no mediating transition, no mediating person, no new succession; my share was allocated to me without being the exclusive property of any of my co-heirs, and before I received the right to call it my exclusive property, this exclusive right did not belong to any of my co-heirs; Until then, the entire hereditary estate was our common property, therefore, there was no one for me to receive my share from, except from the deceased patrimonial owner by right of inheritance. Let us assume that my co-heirs, giving me some surplus, agreed to accept a monetary reward from me for that: this was a matter of our personal calculation of their benefits, the effect of an agreement, the elements of which are purely personal and are not subject to legal verification, for all parts of the estate, and the very tithes of land in the same estate, have unequal value, and all shades of this value are elusive to the law, are not subject to completely external standards, but are determined only by personal interests considerations: often a part that is small in appearance contains great internal value, or is important for one person for personal reasons, and vice versa. Let us also assume that one of my co-heirs recognized it as good to completely give up his share, which, by mutual agreement of those sharing, increased my share; and here, in any case, the concession or silence of my co-heirs is equivalent to their renunciation of the inheritance in that share of the estate that went to me by division; therefore, in this case, I acquire this share not from my co-heirs, but from the deceased patrimonial owner, by right of inheritance. From the above considerations it follows that the estate inherited by division, in whatever size and under whatever conditions it goes to the heir, is considered his family property (this, of course, does not include the allocation of the specified share to the spouse). It often happens that a sister, for example, having received a part in a division with her brother, at least of her father’s acquired estate, in an amount exceeding her daughter’s inherited share, having paid her brother in money for this surplus during the division, considers this surplus to have already been inherited from her brother and disposes of it as her acquired property. From the previous one it is clear that such an assumption is completely unfair. However, in the above example, even if we look at it from the point of view of the acquirer, her estate should be recognized as family property and by virtue of paragraph 3 of Article 399. Zach. Gr. So, the ancestral estate, which went to one of the co-heirs, even if in excess, by agreement with the others and in the equation of the inheritance shares, should be considered by the acquirer to be ancestral in its entirety. The question of this may arise regarding the ransom. Such a purchaser-heir can sell the part that he inherited to a stranger, and then a claim arises from relatives to buy out such an estate from a stranger, and the purchaser-stranger objects that not all of the property he bought remained family property from the seller, but part of it, namely the surplus, assigned to him by the co-heirs under the division, should be considered acquired and not subject to redemption. Such an objection, for the reasons stated above, cannot be considered valid. But if the said surplus went to the acquirer, although he was among the legal heirs, not by virtue of division, but by a special act, in the form of payment of a debt, for example, then here the basis for the acquisition has already changed and the acquired surplus cannot be considered as inherited. Let us imagine, for example, that the widow of a deceased patrimonial owner remained after his death with his direct heir, his daughter, in undivided possession of the hereditary estate, without asking for the allocation of a specified portion for herself, and having a significant monetary claim against her deceased husband. Then, when it was possible to assign the estate for sale for the debts of the deceased patrimonial owner, it, in addition to the public sale, with the consent of other creditors, remained with the widow together with her daughter, and the widow’s claim against her deceased husband was also taken into account. Subsequently, both owners sold the estate to a stranger, against whom a claim for ransom arose from a relative. In such a case, it would be fair to recognize the estate as a ancestral property, since it can be recognized as inherited by the saleswomen (the specified portion of the widow will also be included, according to Article 1352); but everything that, according to accounting, went to the saleswomen in satisfaction of debt claims, should be recognized as part of the acquired property. The law nowhere positively prohibits making family estates the subject of exchange in those cases in which the exchange of real estate is allowed (1374, 485, 503 art. of the Law. Gr., 624 art. of the Law. Inter., ed. 1893). Entire estates cannot be the subject of barter at all, according to the general meaning of our laws on barter, for barter is allowed only to round off the property's dachas, and therefore extends to plots of dachas and farmland. In this case, when, for example, in a dacha of common inter-strip ownership, some of the participants acquired their patrimonial right to the land by inheritance, others by purchase, there is no doubt that it is possible to make a concession of lands from one’s ancestral estate, and in exchange for them receive lands from an acquired or ancestral estate belonging to another owner. But the question is, should the lands received through such an exchange be considered ancestral or acquired by the new owner? We think that they should be considered ancestral if they become part of the family estate, acquired if they become part of the acquired property. And here it cannot be said that new property is acquired by barter, that the right of ownership is again formed and that barter is the basis of this right. By means of exchange, only the subject of ownership is determined here, established by the initial acquisition on another basis, according to which the estate was acquired before the exchange, by inheritance, purchase, gift, etc. If the land included in the estate was acquired not by exchange, but by purchase, this land, even after joining the family estate, would retain the signs of its origin, would not merge with the family estate in one property and until a new transfer would be considered land newly acquired by deed, therefore, in most cases, acquired. But when it comes to the estate as a result of an exchange, this means that it comes to the place of other land, which instead of it moved away from the estate; in this case, it may happen that more dimensional space was added to the estate than was left from it: but still, in a legal sense, it cannot be said that this land was again acquired from the outside for the estate: and here it is impossible, from a legal point of view, to enter into a calculation of how much the value of this or that estate has increased from such an exchange. This calculation is a matter of personal considerations of those changing, a matter of their personal interest; and in the legal sense, the exchange is associated with the assumption that the property coming to one party is completely equal in interest with the property that leaves it. The conditions of the exchange change somewhat in cases where the subject of the exchange is an entire estate, for example, when, when turning over ancestral real estate belonging to a private person for state use (578 Art. Civil Code), the owner agrees to receive another property of the same kind from the treasury instead of this property. Here we can no longer talk about the increment of a part to the whole or the connection of a part with the whole. Here, a whole estate, inherited from his family, leaves the owner, and in its place comes to him a whole estate, completely alien to his family. We admit that in such a case, without having in mind a positive law on how such an estate should be considered, inherited instead of a family one, we do not find in our legislation any general principles on the basis of which the confusion could be reliably resolved. This question, it seems, can only be resolved by the legislative power, and the establishment of one or another rule on this subject will depend not so much on the legal considerations of civil law, but on the state considerations of the legislator, depending on what is more consistent with the types of legislative power: whether to protect the generic properties of estates and the interests of the family, or to provide all possible freedom for the circulation of real property between private individuals. It remains for us to mention one restriction on the disposal of ancestral property, namely: when concluding agreements on the lease of empty land. As a general rule, it is prohibited to lease or maintain private real estate for a period exceeding 12 years. As an exception to this rule, the law allows the transfer of acquired empty lands for rent or maintenance for a period of up to 30 years, when factories or factories are supposed to be built on them, as well as lands for the construction of dachas at a distance of 25 versts near the capitals. For lands of patrimonial property, this seizure is not allowed (1692, 1693, Art. Civil Code). 10. Verification of the legality of acts on the family estate when they are committed We said that the state power, in accordance with the nature of private civil rights, begins to verify them only when, as a result of a request or claim on the part of the person interested, it seems necessary to protect or restore the violated right, and that as a result of this, the illegal order of a private person on the family estate becomes a subject of consideration for the state power only from the moment it became the subject of a dispute about the right. But the activity of state power is not limited only to the protection or restoration of a violated right: it also takes upon itself the certification of the right newly created by the will of private individuals, unilateral (constitutive act) or mutual (agreement). Connected with this certification is, to some extent, verification of rights created by the will of private individuals. But this verification in the present case is not at all the same as what happens during a judicial hearing of a dispute about law between private individuals; in the latter case, the judicial power acts positively, subjecting the controversial relationship to strict legal analysis, carefully checking what is illegal and what is legal, and asserting with its authority only that which, after strict legal testing, seems positively legal. Here, on the contrary, when certifying acts of private will, the activity of the authorities is negative in nature: it does not approve what seems illegal, i.e. obviously against the law. She does not care about the study of what kind of legal relationship arises between the parties as a result of this or that legal action, whether the legitimate interest of this or that person is violated, etc.: such a study would be incompatible with the beginning of freedom of civil transactions. When committing acts, the authorities ensure the protection of the legal form, and what they perceive as inconsistency with this form does not dare to certify with its authority. Are public places obliged, when certifying acts of gratuitous alienation of property, to enter into a study of what type of property is being alienated: ancestral or acquired? This question regarding wills is resolved positively by Article 7, Appendix to Art. 1013 (approx.) Gr. Zak., which states that the appearance of the will in court and its note in the book only certifies the authenticity of the will, but does not thereby confirm the legality of the orders contained in it. Therefore, when appearing at the certificate of wills, one should not go into consideration of the testator’s orders, but should only observe whether the forms established by law have been preserved in the will. Further in 1102 art. It is said that if, upon the appearance of the will, no one raises a dispute, then the courts themselves cannot enter into consideration: whether the family estate is abandoned by the testator or acquired. Regarding acts of another kind, except wills, such a rule is not expressed as positively, but we think that the same principle should be guided when making deeds of gift, and individual and serial entries on the alienation of property during the life of the patrimonial owner. Article 54 adj. I to Art. 708 Zak. Gr. It is prohibited to perform acts that contain orders contrary to the laws, and on this basis or in this regard, some establishments of serfdom, and notaries consider themselves to have the right to demand from the persons on whose behalf the act is performed, certification that, for example, the subject of the gift is not the family estate, or that no more than that part of the family estate to which he may have an inheritance right is transferred to the relative. Such an investigation into the legality and correctness of the order regarding the commission of an act seems to us an excess of power, which the place witnessing or performing the act should not allow itself. If, according to the content of the act, the order contained in it does not seem directly illegal, then there is no reason to require from private individuals certification that it is completely legal. To admit the opposite would mean to confuse the functions of the executive power with the functions of the judicial power, the certification of the will with the approval of its legality, the matter of judicial administration with the judicial decision, whereas these subjects are strictly different under our legislation. If it were left to the court, during the very execution of the act, to begin an investigation into the legality of the orders contained in it, this would mean that the court could itself, without a lawsuit or dispute from interested parties, raise a dispute or doubt, a dispute to protect the private interest of silent third parties and, having raised this dispute, could, without contradictory explanations between the parties, resolve the raised objections to the private law being newly established. In this case, regarding the expression of the will and the appearance of the act, something similar to a preliminary and incomplete trial would be carried out without a trial, for when the court, after examining the nature of the estate, agrees to accept the act for certification, it would recognize it as legal. This does not prevent the filing of a dispute about the property of the estate and refutations against the act on the part of someone who believes that his legal interest in the estate is violated by the commission of the act. On the contrary, when from the very content of the act it clearly turns out that the subject of the disposal is the family estate and that the form of the act does not correspond to the form in which it is allowed to dispose of the family estate, the public office will have the right to refuse to certify the act. This would be, for example, a will in which the testator specifically writes that the family estate, inherited, is provided to a stranger. Here, the form chosen by the manager is clearly inconsistent with the essence of the disposal, since family estates are not subject to will; This would be a home will on a family estate drawn up by a childless owner in favor of a relative (for a special form of will has been established for such a disposition). In such cases, the authenticity of the act is so inextricably linked with its form that if the form is violated, the public office does not have the right to certify the authenticity of the act. 1873, N 1179. Peter Gardner organized a company using shares from himself and his 8 sons and gave it his real estate - a porcelain factory. By virtue of the note to § 15 of the highest approved charter of this company, no serf duties were collected from the deed of gift of Peter Gardner due to the fact that the company will be the direct and legal heirs of its founder. According to § 9, 55 and 56 of the charter, shares could also be transferred to outsiders. Then Peter Gardner's son Pavel bought from the company, upon liquidation of its affairs, the real estate given to it by his father. After Paul’s death, the question arose: was his family estate a plant or an acquired one? The Senate recognized that the benefit was acquired, since the non-collection of the kr. duties were established as a benefit granted by the Highest, and not as a right granted by law. § 13. Division of property according to the properties of the owners. State property - appanage - palace - belonging to various institutions - public - zemstvo - private. Historical and current significance of the noble estate. Noble estate in the Baltic provinces. Circulation of estates within the circle of one class In the system of our civil laws, categories of property are also distinguished according to the properties of the persons to whom they belong. in this sense they differ (406–415 art. Gr. Zak.): 1) State property, real and movable. Our law speaks about state property in general, including among other things taxes, duties and various fees - which is hardly correct from the point of view of citizens. rights, because in this regard, state property refers to special property that, by its nature, is capable of private ownership and belongs to the state as a legal entity; therefore, it falls within the realm of civil law, so that the state, in terms of the possession of these properties, appears to be a fief, like private individuals. On the contrary, taxes, fees and obligations of all kinds relate exclusively to the area of ​​state law. State property includes: firstly, those under the control of a separate Ministry of Agriculture and the State. Property; secondly, property belonging, in order to meet state needs, to various ministries and state authorities. institutions in whose management they are. There are special rules in the Charter of the Treasury Department regarding the acquisition, alienation, transfer or transfer of these assets from one department to another. The most important of the latest legalizations on this subject are the rules of 1873 on the procedure for transferring government buildings and quitrent articles from the M. State. Them. to other departments (Poln. Collected Law. 1873, N 52239). The alienation of state property into private ownership is an act of state power and is carried out in the form of a grant, allotment, assignment or assignment on the terms of free sale or preferential sale. It is believed that the general rule on alienations of this kind is indicated in paragraph 8 of Article 23. I vol. ed. 1892, Uchr. State Sov., which says that in the State Court. The council considers all cases in which any part of the state is alienated. property into private ownership. But this assumption is hardly correct, since the original decree contains the word condemned, i.e. All court decisions of this kind go to the Highest. approval through the State. owls Therefore, alienations not carried out in court do not fit here, and in the ed. Code of Laws, in all likelihood, there was a typo. For some properties, a special legal regulation has been deemed necessary, stating that they cannot be alienated into private ownership. This is, for example, the rule about salt springs and factories belonging to the treasury (Ust. Gorn., ed. 1893, art. 619). 2) Appanage property, especially those allocated to appanage, i.e. for special maintenance to members of the Imperial family. These estates are generally under the jurisdiction of the Main Directorate of Estates and serve as a source for the maintenance of members of the Imperial family (I volume, ed. 1892, Zak. Osn., Art. 120 et seq. Institution Min., Art. 925). 3) Palace workers assigned to the maintenance of various palaces of the Imperial House. Some of them are called sovereign, belong to the always reigning Emperor, and according to Art. 412. Z. Gr. cannot be bequeathed, divided into division or subject to other types of alienation. Such are the estates of Tsarskoye Selo, Peterhof and those under the management of the Moscow Palace Office (sovereign volosts). Other estates, such as Oranienbaumskoye, Pavlovskoye, Strelninskoye, Gatchina, also called palace estates, constitute the personal property of persons of the Imperial House and can be divided into parts. Moreover, the laws mention the personal property of the Sovereign Emperor, for example, that which is under the jurisdiction of the Imperial Cabinet (I volume, ed. 1892, Constitutional Min. Art. 891). The law does not determine what category of property the Imperial palaces designated for the residence of the Sovereign Emperor (for example, Winter Palace, Elagin Palace, etc.) belong to; in the literal sense of Art. 412. Zach. Gr. they cannot be classified in the same category as palace estates and sovereign volosts, and there is no direct legal basis for considering them state property. Estates "sovereign or palace" are distinguished from immovable property belonging to the Empire. palaces. rights to own both the Sovereign estates, which constitute the personal property of the reigning Emperor, and those palace estates, which by autocratic power are assigned primarily to provide means for maintaining the palaces of members of the Imperial family, are generally recognized as corresponding to the general ownership right regarding the use and disposal of full property. But as for the Imperial palaces and the buildings, gardens, parks, etc. belonging to them, all those properties, constituting the exclusive crown Imperial property, form a separate category of property, the peculiarity of which is that the costs of their maintenance are charged annually, according to staff calculations, to the States. treasury For these reasons, property of the first type was involved, but property of the last type was not involved in the payment of zemstvo fees by the decree of 1870. But in 1875–1879, it was ordered to exclude palace property of the 2nd category from these fees. Full Collection Zach. 1875, N 54301; 1879, N 59629. 4) Property owned by various institutions (legal entities): churches, monasteries and arch. houses (see § 62); charitable, educational and scientific institutions; state credit institutions. The scope of rights of ownership of all these institutions owned and assigned property is not the same and depends on the more or less close connection of these institutions with the state and its central institutions. 5) Public property, belonging to noble societies, city societies, zemstvos and societies of rural inhabitants (Zak. Gr., art. 414). In this article, essentially heterogeneous concepts are mixed, because the property belonging to the noble assembly is not the same - property belonging to the city society, and property (for example, pasture) assigned from the government to the city. In general, in the concept of public property (Gemeindegut), it is necessary to distinguish between that which serves a public purpose, for society as a legal entity (patrimonium universitatis), and that property that consists in the direct use of members of the community. In our law, these concepts are not strictly distinguished, and, moreover, the very definition of public property is not the same in all statutes. The above, for example, categories of public property and belonging to various institutions, taken from X t. Zak. Gr., do not comply with what is contained in the Forest Ordinance, ed. 1893 (Article 9) defining public forests. Here, among other things, public figures include: forests of the spiritual department, churches, monasteries, belonging to estates, corporations, cities, etc., on a par with the forests of the Cossack troops and with forests belonging to the villages of former state peasants by acquisition. We must distinguish from public property property that is owned collectively by many owners, who, by virtue of this ownership alone, constitute a community of owners. Such properties include, for example, the Mariinsky Market in St. Petersburg, the Irbit Gostiny Dvor (Poln. Sobr. Zak. 1869, N 46801). 6) Property is private. Our law includes in this category property belonging to classes of persons, such as companies, partnerships and competitions (the mass of property of an insolvent person). 7) Until recently, a special category of property in our legislation was the so-called noble estate, i.e. real estate inhabited by peasants; the estate, according to its historical significance, is local. The right to own such estates, inextricably linked with the right to own peasants, belonged exclusively to persons of noble origin. At that time, the legislation supported the idea that the noble class was especially called upon to serve the state, that for this service it must have the means to support itself - in its estates, and therefore every effort should be made to ensure that noble estates circulated among the noble class. This idea little by little fell into oblivion, which was greatly facilitated by the fact that the nobles who served as officials received salaries on a state-by-state basis from the treasury, so that in the accessories of the official rank the importance of the local service nobility disappeared completely or became imperceptible. Finally, with the liberation of the peasants, the exclusive significance of the noble estates was almost completely destroyed or became only imaginary, and with the final land separation of the peasants from the landowners, the names of “populated” and “landowner” estates, and the previous rule about the privilege of the nobility to own populated estates lost its meaning. According to the power of the city charter of 1785 and 322 art., it belongs to the noble estate. IX volume, the right to establish so-called small towns, with auctions and special facilities for use. Wed. § 31. The name inhabited estate is assigned in our law exclusively to estates inhabited by peasants and owned by right of nobility. In this sense, he means inhabited land and 1350 Art. Zach. Gr. about ransom. The question arose: should not, according to the general meaning of Articles 385–387, all lands that are not empty, but have a residential population, be recognized as inhabited lands; but this question was resolved negatively (cf. Cass. decision 1869, No. 138). In the Baltic region there is a special division of private land ownership into the following types: noble estates; estates belonging to classes and institutions; parsonages and church lands; separate plots of land that do not constitute a fiefdom. The noble estate must have a certain composition, no less than the measure defined in the laws, and must be listed as noble in the local zemstvo and mortgage books. The owner does not have the right to violate the composition of the noble estate, which, even after the alienation of individual plots, must remain undivided in its legal composition. A separate plot can acquire the significance of a new noble estate if it is acquired by a local native nobleman, with the consent of the Landtag and with the approval of the main provincial authorities. In Courland, in addition, there are also: 1) the so-called petty bourgeois fiefs, i.e. such private estates that, having originally been granted to persons of non-noble rank, can be acquired as property by people of all ranks; 2) types of officials (St. Citizen Z. Approx., 597 et seq.). Before the transformation of the judiciary in the Baltic provinces, in Courland there were also types of judges (Hauptmanns and Oberghauptmanns); Now these species have become the full property of the treasury (St. Gr. Zak. Prib., Art. 613, note, according to Prod. 1980). The exclusive property of noble patrimonial rights are considered to be: the right to distill, brew and sell wine, beer and food supplies, the right to establish towns, factories (in Courland) and start trading, and in Courland the owner of a noble patrimonial estate also has the right to hunt, fish and game on the lands, forests and waters of the estate (St. Gr. Zak. Approx., Art. 883 and 892, both Cond. 1980). Ownership of noble estates by right of ownership in Livonia, Estland and on the island. Ezele could only belong to a hereditary nobleman, and could be completely secure only from the indigenous local nobles, for the estate that came to a nobleman who was not registered in the local matrix could be bought from him by a local nobleman within 1 year, 6 weeks and 3 days. This exclusive right was abolished for Livonia and Courland in 1866 and for Ezel in 1869, and all persons of the Christian confession were granted the opportunity to acquire full ownership of all kinds of real estate in Livonia. Restrictions in this regard, in the provinces of Livonia and Courland, have recently been established only for foreign nationals (See Civil. Z. Prib., 881–896 and Cont. 1890. Complete. Collected Laws. 1866, N 43031; 1869, N 46833; 1870, N 48424). 8) Peasant lands acquired by virtue of regulations issued on the occasion of the liberation of peasants have a special legal property (see § 64). It is noteworthy that some of these lands are recognized as the personal property of the acquirers, while others are recognized as belonging to a peasant household or family. See Cass. decide 1881, N 161. Some estates, by law, can be alienated and transferred only within the same class of owners. In the estate ownership of certain lands, in the circle of a certain territory assigned to the estate, a remarkable property is that in some estates each possession must constitute a certain plot of no less than a certain measure (subject to or not subject to fragmentation). Sometimes added to this is the property that each individual member of a local class or community can own only one integral plot within the territory assigned to the class, and cannot combine several similar plots in his possession. Such a rule was established to ensure that the entire community or class received the land allowance assigned to each and every one, so that lands intended for equal distribution among everyone could not become the property of a few, and so that the general land fund did not deviate from its original purpose. Thus, among the colonists, according to the accepted interpretation of articles 159, 171 and 173 of the mouth. about the count, an economic land plot could be in the possession of only one independent family; If the owner of a plot would like to acquire several more similar plots, then this is allowed to him only so that he, without owning them personally, establishes an independent family or household on each of them, finally dividing himself with his sons and household members into as many families as he has acquired household plots. Of course, this restriction did not prevent each colonist from acquiring as much land as he wanted as full ownership, only on the side, and not within the colony. In 1877, rules were published (Poln. Sobr. Zak. 1877, N 57872) on the lands allocated by the government to Old Believers and fellow believers established in the provinces of the Kingdom of Poland. These lands can be transferred from the original owners to persons of the Orthodox faith who are not peasants in the amount of no more than one estate. Appendix to § 13. On the value of property. Market prices, established and reference prices. Dachshunds The content of any civil law is essentially economic; its purpose is economic. An object of possession, or a thing, becomes a subject of law, since its possession is associated with benefit or material interest for the owner. The extent of this interest depends on the use for which the thing, by its nature, serves. The use of a thing determines its value. But the concept of usage is relative. The attitude towards the person of the owner determines, first of all, the value of the direct use of the thing (Gebrauchswerth), depending on what it serves, what needs the thing satisfies for its owner. But when the concept of a thing is abstracted from its actual owner, its value is determined by the sum of the needs to satisfy which it can serve for all other owners, in accordance with its economic quality. To determine its value, it is necessary to take into account the extent to which it is capable, by its nature and special properties, of serving anyone for a certain use, passing comfortably from hand to hand without changing; it is also necessary to figure out how many similar things are in circulation in that place, convenient for acquisition, etc.; consideration of such data determines the market or exchange value of a thing. So, this value depends on many different local, temporary and accidental circumstances. Other things that previously had significant value lose it later because previous needs have changed or disappeared altogether, and vice versa. When there are more things of a certain kind in circulation than there is demand for them, i.e. above the need, things fall in price, and vice versa. A thing may completely lose its value when there is no demand for it in that place, and it is difficult or impossible to transfer it to another place where there is demand. So, the exchange value of things depends on the state of the market, and therefore with the development of market circulation, when it is easy and convenient to acquire a needed thing at any time for a certain price, value is completely identified with the thing and the things themselves become values, so that the right to a certain thing receives a determinative value. The more definitive this value is, the more complete, in terms of the property of the object and the right itself, is the possession and use of the thing; if it is incomplete, limited or not entirely clear, then its value is not so definitive. The most definitive thing is full ownership; possession in itself has no value, apart from the right to own; The right to a pledge, to a mortgage, is all the more determinative in its value, the more it represents reliable security, i.e. the more accurate the calculation for its speedy and complete implementation; finally, the right to act, the right under an obligation, the right to sue are in any case less valuable than a property right. The yardstick for determining the value of things is money; and the indicators for evaluation are the usability of a thing and its ability to be used locally. But the dignity of a thing is not determined by the same measure of its use. considerations about what a thing can serve and what it is worth on the market, i.e. for all consumers in general, lead to the determination of only a general, market price; but not all consumers have the same need for the same thing and ask for it for the same need. The same thing for some consumers satisfies more complex, more subtle and urgent needs than for others. The determination of the special value that a thing has in a certain person or in a certain class of consumers depends on this difference. In addition, there are things that exclusively for their owner have dignity and value, completely independent of the market price, satisfying his special needs, accidental, mental, moral or imaginary, inextricably linked with his personality. Such dignity of a thing, depending solely on personal consciousness, cannot be determined by an external (objective) standard, and therefore has no legal significance at all, in the sense of civil law, although other legislation includes it in the category of values ​​(prix d'affection, Affections preis). Market prices are usually reduced to the categories of high, low and average prices. Although the value of a thing is determined by its price, in many cases with perfect accuracy, so that it is convenient to acquire a similar thing for a certain price, it is impossible to accept as a general rule that the price of a thing serves as its substitute (pretium succedit in locum rei). When it is necessary to restore the right to a thing by a patrimonial claim about it, the will of the defendant, who is obliged to provide the thing to the plaintiff, does not depend on the replacement of the thing itself with its monetary value. The price of a thing can serve in such cases only as a reward if the thing itself does not appear in kind or its representation in kind becomes impossible. The value of property in civil cases is determined by an assessment made according to the procedure specified in the law (Ust. Gr. Sud., Art. 1000–1008, 1117–1128). To satisfy the economic needs of the treasury, when drawing up estimates and concluding agreements on government procurement, contracts and supplies, etc., approximate prices are established administratively, and reference market prices are taken into account. The so-called established prices are set in each locality (county and province) for bread of all kinds and fodder, born in that place, for coolies, sacks, for day labor of man and horse, for ships and barges and for the cost of loading, rafting and transportation. The period for determining these prices is from September to May, monthly. Their determination is entrusted to the locals - the leader, the police officer and the head with vowels; and in the second instance - to the governor, with the participation of such named officials and merchants. Prices approved in this way are recognized as established: they differentiate between the complex price and the average price, and the latter is considered the legal price for government purchases (Ust. Nar. Prod., ed. 1892, art. 93, 102 et seq., 141, 142). Regardless of the established prices, the police are required to have and check weekly statements of trade prices for food items when sold at auctions and markets (Ust. Nar. Prod., ed. 1892, art. 100, 140). It is the responsibility of city administrations to collect and report to whomever appropriate (also for estimates, procurement and for control verification) reference prices for food items, as well as for other procurement items, such as: building materials, commissariat items, transportation of heavy items, etc. (Temporary Law. Zemsk. Institution, Art. 25. Opinion of the State Council. 1879. Full. Collection. Law. 1879, N 60343). To avert the arbitrary increase in market prices in cities for the most necessary food items, namely baked bread and meat, certain prices, called taxes, are set for both, as needed (Ust. Narodn. Prod., ed. 1892, art. 127 et seq.). Finally, in various places in the Code of Laws it is mentioned that normal prices for property, products and consumer goods are determined in the law itself or by administrative procedure, partly to ensure and account for government fees, partly to eliminate abuses and harassment during sales. These are, for example, the rules for the assessment of immovable estates when collecting serf duties and duties on the gratuitous transfer of property (V vol., ed. 1893, Establishment of Poshl. Art. 177 et seq., 209 et seq.); taxes on forest products sold from state-owned dachas (Ust. Lesn., ed. 1893, art. 223, 226 et seq., 321), pharmaceutical fee (Vrach., ed. 1892, art. 541, 550, 551), etc. More details about prices and taxes in part 3 of this course (Agreements and Obligations) - adj. to § 23. For a critique of these categories of English law, see Austin's Lectures on Jurisprudence. T. 1. Natural waters - rivers and lakes - are not considered an independent subject of property rights, and the right to these waters is only a consequence of the right to coastal land and exists only in connection with it; The right to waters is made the subject of a special right by special regulations and acts or by agreement with the coastal owners. Cass. decide 1879, No. 281. Dec. cash register 1869, No. 325: the banks adjacent to the mill dam, there is no reason to consider the strength of Art. 388 and 389. mill accessory. The regulations on the St. Petersburg city public administration dated March 6, 1864 say that the name of a house should mean properties that constitute one yard and are listed under the same number, even if these houses consisted of different residential buildings or outbuildings and part of them was rented out. On the question: should property acquired from parents, inherited by children from their parents by allotment, be considered as inherited by them by right of legal inheritance and therefore ancestral, Citizen. Cass. Department, taking into account that by force of Art. 996 and 997 Zak. Citizens, parents have the power to allocate to each of their children only a part determined by law, that within the meaning of this rule, the allocation has the meaning of a preliminary inheritance, came to the conclusion that the same meaning has the allocation in acquired property; therefore, he explained that such property should be recognized as ancestral in children, subject, in lateral lines, to conversion to the clan from which it was received (decision 1888, No. 74). This example is taken from the previous relations of serfdom, which still existed at the time when these lines were written. In connection with this issue, it would be appropriate to point here to the Highest approved opinion of the State Council of 1844 (Jan. 17) on the case of Tomilina and Princess Kugusheva. Princess Kugusheva, by appointment, gave the acquired estate to her daughter Tomilina, and then asked to take this estate away from her daughter for disrespect and for starting a lawsuit against her mother. Tomilina, defending her rights, argued, among other things, that the deed under which she acquired the estate from her mother should be considered a separate record, and not a deed of gift. The State Council, deciding the case in favor of the mother, touched upon the issue of whether the act of acquisition should be recognized as a gift or allocation. He recognized the deed as a deed of gift for the following reasons: 1) The record states that the estate is given as a reward. 2) According to the record, the daughter was given more than she should have received by law. 3) The estate was acquired, therefore, it was up to the mother not to give anything and to completely deprive her daughter of the estate. 4) The price of the estate in the deed is indicated according to conscience, which constitutes the property of deeds of gift, and not of individual records (811 art. X t. ed. 1842).