Второй отдел. О правах вотчинных

Chapter one. The concept of property rights and the historical origin of land ownership rights § 14. Distinctive properties of patrimonial rights. The difference between patrimonial right and claim. Integrity of patrimonial right with the thing. Exclusivity of patrimonial rights. Direct dominion over a thing. Obligation as a subject of patrimonial law. The credit property of the claim as opposed to the cash value of the patrimonial right. Simplicity of patrimonial rights and variety of requirements. Certain types of patrimonial rights and general comments on their placement in the civil law system. The system of Russian patrimonial rights according to the code of laws The right to a thing gives rise to a general unconditional negative obligation regarding the owner of the thing - not to do anything that could violate his right. This responsibility equally falls on everyone who is not the owner himself. A personal right (claim) does not give rise to a general and unconditional, but an individual and relative obligation, imposed not on everyone, but only on certain persons who have a personal relationship with the holder of the right. In the first case, the right is relative to an unknown person, in the latter, it is relative to a known person. The first right can be opposed to everyone, the last - to a person known only. This difference is important not only in a theoretical, but also in a practical sense. 1) In both senses, the subject of law is a thing, the relationship concerns property. But in the first case, the right is inextricably linked with the thing and does not lag behind it, passes along with it, in whose hands, in whatever position the thing is, it is attached to it until either the thing is destroyed, or the owner himself wants to break his alliance with it, abandon it, or turn it into value, or exchange it. No matter in whose hands, in whose power it is, it is still my thing. Examples: I am a home owner; without my knowledge, someone appropriated it and sold it to a third party, who resold it to a fourth, etc. No matter how many transfers and transitions there are, the house is still mine. The last owner, in response to my demand, does not have the right to refer to the fact that he bought the house according to a legal act, having paid money for it, and does not have the right to give me this money instead of the house. The house is mine, and I claim it as mine, and whoever owns it, regardless of any obligations to other persons, is obliged to give it to me. But when I own one personal right under an obligation or contract, my right is bound by the person of my debtor or counterparty. The person is obligated in relation to me. True, believing, for example, the face of my debtor, his personal wealth, I believe at the same time the wealth of his property, I count on his estate. But I have the right only to the action of the debtor, and not to his property, so if he decides to sell all his property, I have no right to prevent him from doing so, unless I can prove malicious intent on his part. This right is associated with a person, with a person, and is transferred in those cases in which personal right generally allows for succession. 2) The right to a thing is associated with the property of exclusivity, advantage, preference. This means that when I have a right to a thing, no one at the same time can have a similar right to the same thing, and if for some reason such a right were granted to another person, it in itself is void and invalid. For example, a neighbor sold me a house, and upon receiving the deed of sale, I acquired patrimonial rights to this house. Subsequently, the same neighbor sold the same house to another person and issued a deed for it. Even if the house did not come into my actual possession, I have the right to consider it mine, and the second bill of sale is void. The land is mortgaged to me. I receive a property right to it. My right is inextricably linked with the land. Then, no matter how many more debts the owner of this land has incurred, when they are satisfied, I go forward to all creditors, even if my debtor has absolutely no property except the land mortgaged to me. None of them has the right to enter into competition with me, and until I am completely satisfied, no one can have the slightest share in the value of the land. On the contrary, when only the person of my debtor is obligated in relation to me, he can issue as many more obligations as he pleases and, even if they were all issued much later than mine, in time I do not have any advantage over them and, if satisfied, must enter into competition with them. These are the main distinguishing features of property and personal law. They are rooted in the essence of the concept of a thing and of a personal action, therefore this difference exists in every system of law. But not in every system of law these features are equally distributed, and their principles are not always laid at the foundation of the system. In our country, for example, no special category has been created from these principles, but nevertheless, these principles here, as elsewhere, declare their great significance. What exactly should be classified as obligations and what as real rights, this question is resolved differently in different legislations, for many of the most important obligations are aimed at establishing the right to a thing. Therefore, in other legislations, a right arising from an obligation is classified as a property right when ownership of a thing is combined with it, even if it was the property of someone else. The following considerations may help explain the above. The distinctive property of real rights is that it contains dominion over property that has the value of a thing (that is, having an external, existing existence outside the person, objective meaning), and, moreover, direct domination, so that the owner extends the entire effect of his right directly with his person to the thing itself, without relation to any other person, and not through another person, but by himself. When a person extends his right to a thing through another person who has committed himself to him and for his benefit to act or refrain from acting on this thing (facere aut non facere, pati), this will no longer be a direct relation to the thing, therefore, not a real right. By entering into such an attitude towards a thing, a person says that it belongs to him, that it is his own. The thing became his property, united with him. He has the right to demand from any third party recognition of this affiliation, this relationship, and when he defends his relationship, he asserts his claim on nothing other than this very direct relationship to the thing. When I seek, for example, recovery, my right to sue is based on my relationship to a certain person as a result of a certain action, as a result of a contract, as a result of an insult, as a result of harm caused to me. When I look for patrimonial rights, I look for my thing, I get my thing, I rescue my thing (rem meam vindico, in rem ago, hane rem meam esse ajo). In this sense, claims must be distinguished. When I seek fulfillment of an obligation given by Ivan, from him or from his successors, my claim will be personal and the relationship is personal, since only with a well-known person do I have a legal relationship, only against a well-known person can my claim be made. But an obligation can also have an objective meaning, when the question is precisely this: who owns the right under the obligation, who is its owner, who has the right to the material value contained in it, who has the right to use it or take advantage of it? This question arises, for example, in disputes about inheritance, division, or transfer of obligations. Then, looking for the right to be the owner of a certain obligation, I seek it according to patrimonial right, I obtain it, I rescue the obligation for myself as my own thing, and my claim will be patrimonial. Patrimonial right extends to property that has an objective, external existence. By its nature, any stranger can approach such property, touch it, because it exists, exists in nature, in appearance. This is where the following phenomena occur. In one and the same thing, one person may have ownership, another may have ownership, and a third may have the right to participate in the use of one or another economic quality of the thing. Possession of a thing can become property by prescription. All this is a property of patrimonial law and, on the contrary, personal law, the right of obligation does not allow these properties as an obligation. But as soon as the obligation becomes objectified, it acquires the meaning of property, and it also becomes capable (you can pledge an obligation, transfer the use of interest; with respect to the patrimonial right to an obligation, it is possible to own it and turn possession into property). Thus, any subjective, personal right to property that has value can, by being materialized (objectified), in turn become the subject of law and receive the meaning of a thing. Nevertheless, the difference between property rights and personal rights is significant, and each of the property rights certainly belongs to one or another category, so that this affiliation immediately determines its distinctive character. Every personal relationship, a relationship of obligation, presupposes its goal and its fulfillment in the future, and, moreover, at a certain moment in the future. In every obligation there is presupposed something that will happen; and the strength of the obligation, its nerve, lies in the desire for this accomplishment, which constitutes the economic interest of the obligation. On the contrary, the right to a thing (as well as family law), as soon as it arose, is completely improved, immediately enters the existing state, which contains its content and purpose. on the other hand, the obligation, as soon as it has arisen, has in the past a certain moment of its legal formation (formation) and appears to be a completed act, from which the same known state begins, although this state is still a state of legal expectation, calculation and aspiration. from this point of view, an obligation also takes the form of a property right and appears to be a known state, which in turn serves as the subject of law. The act of obligation, its material sign, its proof is nothing more than recognition and certification of such a state; and regardless of the claim for fulfillment of an obligation, in civil law a claim for recognition of such a condition on the part of the obligated person is possible and common - a claim that in the strict sense has the property of not a personal, but a property claim - which in Roman law were considered claims that aimed at recognizing a certain condition (actiones praejudiciales, act. ad esse, ad rem). A state connected with the right under an obligation, like any legal state, like a state of ownership, has the right to recognition not only from the party directly involved in the obligation, but also from all third parties who for some reason touch this state (thus, I have the right to expect, in the event of a competition, that my right under the obligation of an insolvent person will be recognized by the rest of his creditors; I have the right to expect that the heirs or successors of my transferor will recognize that the right under the obligation transferred me by their predecessors, really belongs to me: this will not be the fulfillment of an obligation in which they do not participate, but the recognition of a legal state). This side of the obligation again concerns the area of ​​real rights. Non-recognition of the right to an obligation on the part of third parties, when expressed in an action, does not constitute a violation of an obligation in which these persons are not directly involved, but a violation of a calm legal state and the interest in property associated with it. Every obligation has its own individuality, arising from the special property of the legal goal that gave rise to it and to which it is directed (causa, causa debendi). As a result, the types of obligations are infinitely diverse and each has its own legal nature, and in order to determine in all clarity and completeness the volume and content of each obligation, the property of the state associated with it, it is always necessary to research its special source. On the contrary, patrimonial right of a certain kind (for example, property, lifelong possession, usufruct) always has the same legal content, strictly defined and closed within its boundaries, no matter how it is formed, no matter from what act it arises. It is impossible to list individual types of obligations - there are so many of them, and new types of them, one might say, are constantly being created; On the contrary, there are very few individual types of patrimonial rights, and over the centuries these types, existing since ancient times, remain almost unchanged. This division into two categories exhausts the entire content of property law. Any right to property necessarily belongs to one category or another - there is either a patrimonial right, the right to a thing, or a personal right, the right to the action of another person. It may happen, however, that in the same legal relationship a patrimonial right is combined with a personal claim (for example, the patrimonial right of lifelong use under a will may be combined with the duty established by the testator for periodic cash payments to a third party), but even in this case the relationship is given one or the other character, i.e. the nature of patrimonial or personal law, depending on which side is the main, predominant one; but no separate right can be at the same time both patrimonial and personal: this would violate unity - an essential condition of each right (in the example given, the right of lifelong ownership is undoubtedly patrimonial, although it is combined with personal service; the right of the party that is authorized to demand cash payments from the owner is personal, although it is organically linked with lifelong ownership). The right of pledge stands, as it were, on the border between the area of ​​patrimonial and personal rights, adjoining the former primarily due to the patrimonial nature of the security that constitutes its content. There is a well-known debate in science about the category to which a wide range of rights should be classified, which had important historical significance and still retain practical significance in some German legislation - these are the so-called patrimonial duties (Reallasten). The nature of these duties was patrimonial-state and was in connection with the concept of the so-called supreme, sovereign property, which had at hand subordinate, dependent, involuntary property, or possession subject to duties in favor of the supreme owner, for the security of possession, which the subordinate owner enjoyed under the protection of supreme law. These duties lay on the person, although at the same time they undoubtedly bore a patrimonial character, which is why there was confusion about what category to classify them in. However, with the change in social relations, the nature of these duties also changed, which, having lost their medieval state significance, acquired the property of relations of purely civil law. In general, the system of patrimonial rights has not yet been established either in science or in the latest codes of civil law, and one can hardly ever expect a system so definitive and precise that each of its departments encloses within itself objects that are exclusively and unconditionally characteristic of it. A system of legal relations cannot have mathematical precision, but a system is necessary for placing concepts in their totality and interconnection: and the construction of the system can, of course, change in detail, depending on what appears in one or another subject - an essential, distinctive feature that forces it to be classified as patrimonial rights or obligations; Moreover, in educational manuals much depends on the practical convenience of explaining this or that subject in connection with this or that part of the system. The system of our tenth volume remains to this day in its original form - the first attempt to bring into a logical order a mass of individual decrees that were formed at different times. In our country, patrimonial rights are placed in books 2 and 3 of part 1 of the Holy Order. Citizen; but among them are inseparably included - inheritance, will, and right of redemption. The second book “on the procedure for acquiring and strengthening rights to property in general” contains regulations (Articles 383–933): 1) on various types of property; 2) on the essence and scope of various rights to property (this includes: the right of ownership with its limitations, the right of separate possession, use and disposal; the right of common ownership, the right of zemstvo prescription, the right of remuneration for illegal possession, for departing possession (expropriation), the right of judicial protection, in 6 articles containing general provisions). This section also contains rules on remuneration for harm from illegal actions that give rise to personal obligations and claims, and there is a special chapter “on the right to obligations,” containing general provisions in 6 articles. 3) On the procedure for acquiring and strengthening rights (in general), i.e. on personal and material conditions of acquisition, on the procedure for committing, appearing and drawing up acts and on taking possession. The third book (Articles 934–1527) contains regulations “on the procedure for acquiring and strengthening rights to property in particular”; This includes individual grounds (causae) of patrimonial rights, namely: firstly, methods of gift or gratuitous, such as; grant, donation, allotment, dowry and will; secondly, inheritance and ransom; thirdly, methods of mutual acquisition of rights to property by exchange and purchase. The right of pledge is classified in the fourth book (on obligations under contracts), as well as resale. Given the vagueness of the system, our code also suffers from the vagueness of terms, which cannot be surprising given the relative youth of our legislation and language, which has not yet had time to develop its own terminology for the science of law, which was just emerging in our country when the Code of Laws was published. All this presents significant difficulties for the systematic presentation of our civil laws, in which we inevitably have to deviate from the system of the code and find the most convenient location for individual items. It is especially difficult to determine the meaning of legal terms when the positive law does not provide clear instructions for this. For example, the word possession is used in our country in the broadest sense, not only in ordinary speech, but also in the language of official acts and even in some articles of the Code of Laws. in this broad sense, one can, perhaps, apply this name to the right of a tenant using property under a contract; but from the use of this word, the use of a renter or tenant still does not become a patrimonial right. Gr. Speransky, discussing property (see the note entitled: Thoughts of Count Speransky, in 1 book of the “Kalachov Archives” of 1859) says among other things that the renter also has the right of ownership of the rented property, although not within the same boundaries as the original owner; that rental and conditional use are one of the ways in which property ownership is acquired. This view can hardly be considered accurate, and use under a tenancy agreement is, in any case, excluded from the system of patrimonial rights in the Code of Laws. In the Code of Laws itself, in 1706 art. 1 hour X. i.e., the tenant’s right to use the land is called “his temporary property”; but this right is still related to the system of contracts. It is obvious that the editors of the code distinguish “property” from “ownership rights,” but this terminological distinction was not included in the system of the code, did not constitute a legal category, and rightly so, because this difference, while understandable to abstract thought, in practical application would lead to confusion of concepts. To distinguish patrimonial right from rights based on an agreement, it seems that one should adhere to the fact that patrimonial right, once rooted in connection with the person of the owner or possessor, will already acquire unconditional force for all third parties; appears, so to speak, in objectivity, while contract law does not go beyond the limits of a personal subjective relationship, being established exclusively between the persons participating in the contract. It is obvious that the character given to this or that right depends entirely on the relation in which it is understood, and every right, on the one hand, is presented in one category, and on the other hand, in another relation, can be attributed to another category; nevertheless, the systematization of rights is necessary and justified by their very essence. Land in a lease agreement or in a sale serves as the subject of a contractual relationship, and in lifelong ownership, for example, or in a transfer by deed, it serves as the subject of patrimonial right. A loan letter as an act of loan serves as the basis and sign of a personal contractual relationship; but as part of the property belonging to the creditor or debtor, it constitutes the subject of patrimonial inheritance law. In this latter sense, both the right of collection and the right of use by hire are property or, to put it less precisely, constitute the property of the claimant or the lessee. So, when it comes to presenting civil rights in a system (and outside the system, none of these rights can be presented in full, separate and clear), it is necessary, guided by a solid principle, to determine in advance which rights should be placed in one or another group and which should be excluded from it. The category of patrimonial rights should include, in addition to the right of ownership, any possession that has a patrimonial character, i.e. unconditional force with respect to third parties. Therefore, this category includes such, at least temporary and urgent possession, which, arising not from a personal relationship or from a contract, exists in itself and, within its legal limits, is not inferior to any other patrimonial right; although it originates initially from the action of the will and, having once been determined, exists and acts by its own power, demanding recognition from anyone, no matter who it is. Both lifelong ownership and continuous estate ownership of state-owned land are suitable for these conditions, although both of them recognize the supreme right of ownership of the property, but in this recognition they retain the firmness and confidence of the patrimonial owner, regardless of the transfer of ownership of the property and the changes occurring with it. On the contrary, the use of land under a lease agreement does not fit the criteria of patrimonial right, no matter how many years such an agreement is concluded, and no matter how the quiet state of use is ensured during the contractual period. In any case, the stipulation establishes not the direct power of a person over the property, but a personal relationship between the parties, one of whom - the owner and owner - undertakes to provide the other - the tenant - with the quiet use of the property. Such a relationship, being in the same conditions as all contractual relationships, is subject to all the changes inherent in a contract: it does not give rise to patrimonial power over property, it does not involve the acquisition of property, but only some more or less complete, more or less limited right to enjoy the economic benefits of property is acquired. That is why all such relations are placed in the system of contracts, and not of patrimonial rights; I also adhered to this rule in the placement of objects of patrimonial right. The special conditions of social economy in Russia have given rise to many cases in which, on behalf of the government, state-owned lands are leased to private individuals for possession and use, and in the diversity of all these cases, bewilderment often arises: what should be classified as a system of patrimonial rights and what should be classified as a system of contracts. It seemed to me that contracts should include everything that has the nature of a transaction in which the treasury is represented by one party, and the other party is a private individual; On the contrary, those cases in which the government, by virtue of its state power, without an agreement or transaction, transfers ownership of property to a private person, at least under conditions pre-established by law and defining the manner of ownership and use, I classify as patrimonial rights. In the first case, the principle of free agreement operates, usually expressed in the form of bidding and competition; in the latter case, the relationship arises on the part of the person through the action of occupation, and on the part of the state - through the action of state investiture and challenge or grant. I also related the rules on remuneration for illegal possession not to obligations arising from an agreement or action, but to the system of patrimonial rights; for duty, on the one hand, and right, on the other, arise here from patrimonial right and from the properties of ownership, from a state connected with a certain consciousness of right, and not from action; therefore, it is most correct and most convenient to talk about this duty and all its consequences in connection with ownership. In a systematic presentation of the provisions of civil law, the right of pledge is referred by others to the department of property rights, and by others to the system of obligations. You can talk about a pledge in both respects, depending on what in connection with which it seems more convenient to explain the right of pledge - whether in connection with real rights or with obligations. It seemed to me that the first was both more convenient and more consistent with the essence of the pledge, which establishes a right on someone else’s property that is unconditionally binding on all third parties. I readily admit that one can object to such placement of civil items. rights, and considering the pledge primarily as security for an obligation, attach it to another department of civil law and completely exclude it from the category of patrimonial rights. But this time it seemed more decent to me to put him in this category. Finally, I also included copyright and the right of privileges and patents in this book, because I can’t find another, more decent place for these rights. In science, the concept of what place should be given to these rights in the system has not yet been established, and recently quite a few objections have been raised against classifying copyright as property rights (see, for example, Gerber: System des Privatrechts; Hellferich: Kategorien des Rechts). There is even an attempt to create a special, new category of the proprietary right of trades (Das dingliche Gewerberecht), and to classify into this category all the rights that constitute an industrial monopoly, including the industrial right to mental works (gewerbliche Rechte an geistigen Producten), namely copyright law and patent law (see the Archiv für die civil. Praxis 1861 article by Schmid: ueber dingliche Gewerberechte). Note. Questions about classifying ownership into one category or another are in many cases of significant practical importance, and it is not always possible to resolve them thoroughly and fairly according to the principles expressed in our legislation. Let me give you an example. According to the Charter on Zemstvo Duties, Art. 53 and 55, the collection for land is made from the owners, even for lands that do not generate income. A large amount of land, up to 7,000 dessiatines, lying idle with the Samara landowner, was given by him, out of uselessness and out of indulgence, for rental ownership to peasants, according to the record of 1776, for 90 years, for a one-time payment of 1,200 rubles, which was then received. In 1870, the heir of this landowner, not using the land, is obliged to pay the zemstvo tax, and those who use it and receive income from it are free from the tax. The law imposes a tax on lands owned by anyone on the right of full ownership or only use; but the right of use is taken into account in practice only where it is a separate patrimonial possession and use, for example, in life tenure; in case of ownership under an agreement with the owner, the burden of collection is addressed exclusively to this latter (see D. Kuroyedov in 1 D-th of the Senate and in the General Meeting of 1871). § 15. Property and ownership rights. Determination of full ownership under our law. Definition analysis. Completeness of law; perpetuity and exclusivity In our system, the concept of property rights merges with the concept of property rights, with all its divisions. The word property does not have exactly the same meaning as the word property right. The former is more extensive than the latter. In a more extensive sense, the word property means any right to property belonging to a person. In a closer sense, the right of ownership is the right of exclusive, complete dominion of a person over a thing (cf. Cass. decision 1869, N 583, with reference to note 1 to 420 art. Zak. Gr.). According to the definition of our legislation (Gr., 420), the right of ownership is the power, in the manner established by civil laws, exclusively on behalf of an outsider, to own, use and dispose of property forever and hereditarily, until the owner transfers this power to another. And by this definition, the right of property is the most perfect and complete of all rights: the right of exclusive and complete domination. Completeness expresses the positive side of this right, exclusivity – the negative side. Right. This word primarily characterizes property and shows its difference from simple possession, retention in one’s power. A right established by law, based on title or legal basis of acquisition, and therefore irrefutable, containing the power to overcome any dispute. Exclusive right: not one exclusive power; a right that contains power, but does not stem from power, is based in itself, and does not depend on someone else’s law. Complete: containing power - to hold a thing with oneself, to extract from it everything that is contained in its nature, to extract for one’s benefit, to act on a thing, i.e. change and cultivate it, dispose of it, alienate it, destroy it (as far as this is possible due to its physical or civil nature, and does not violate private and public law), transfer it with a condition or unconditionally. The right of ownership in itself is assumed and perpetual. urgent property right, i.e. one that, by its very essence, is subject to termination or transfer within a certain period of time, cannot be imagined, by virtue of Art. 420. Zach. Gr. Therefore, the law does not allow property to be bequeathed into full ownership, with the definition of further transfer (see note to Article 1011 and 64 § 2 of volume of this course). For the same reason, the Senate decided that a building erected by a tenant on someone else’s land, with the condition that it remains, at the end of the lease, in favor of the owner of the land, cannot be recognized as the fixed-term property of the tenant (Cass. decision 1869, No. 583). The same decision expresses that such a building is considered from the very beginning to be the property of the owner of the land. But to resolve this issue, considerations taken from patrimonial law are not enough: it is also necessary to take into account contract law. Based on the essence of the contractual relationship, it may turn out that the patrimonial right of the owner of the land to the building arises at the end of the lease only, and in this case only in the case when at that time the erected structure is available on it, and until that time the tenant is not deprived of the right to rent or sell the building erected for temporary needs as his own property. It may turn out, on the merits of the contract, that the erection of a certain structure on the land constituted the essential purpose of the contract (rent from the building): in this case, the tenant does not have the right to consider the erected structure his full property. The negative part is “exclusively and independently of an outsider”: the person who has the right can prohibit any outsider from any actions regarding the thing. Hence - protection, protection, the right to return, correction and reward. But both one and the other side of property rights are subject to restrictions arising from the conditions of social and civil life. All these restrictions must have a special basis, so that, with the exception of them, man's power over a thing extends to the limits of physical possibility. in this sense, unlimited ownership is always assumed; restrictions must be proven. Such completeness of domination presupposes not only the actual relationship of a person to a thing, not only the belonging of a thing to a person, not only the use of a thing as an instrument for an everyday purpose, even if this instrument were exclusively subject to man. It presupposes more - it presupposes a living, inextricable and unconditional connection between a person and a thing. It is natural, therefore, that not all objects of possession are equally capable of such a connection with a person. And it is not surprising that the concept of property rights reaches its full manifestation only in relation to immovable things, and especially in relation to land. Of all the objects of the material world, earth is the most durable - we can say that it is the basic element of almost all things, and in it lies the material basis of all law. Man is not so firmly established on anything, nor is man so closely connected with anything as he is with the earth. Following the historical development of the individual, we notice that along with this development, the human right to complete and exclusive possession of the land is consistently developing. The more independent this possession is, the freer and more independent the civil personality appears, and vice versa 250. In all legislations the idea of ​​property rights has first of all developed and reached a clear consciousness - in relation to land ownership and in application to it. The very name of movable property (fahrende Habe) indicates property moving from person to person, in free circulation. Our ancient name belly, commodity, borochen, concoction, etc., directly indicates the economic, actual, and not the legal significance of the property. The belly is what a person lives with, what he directly needs for life, or a commodity for fishing. Boroshen - I probably take it from. Also - an invention, a craft. And nowadays the concept of property rights is applied especially to real estate, and regulations on property and its restrictions mostly apply to real estate. Therefore, I consider it most convenient in my presentation to first turn to the concept of ownership in real estate. § 16. General remarks on the historical development of the idea of ​​the right of full ownership in real estate and movables In all European countries, the history of the development of the concept of property as applied to real estate and land goes in parallel with the history of public law. Any change in the owner's relationship with the land caused a change in social relations, and vice versa. Land ownership in Western Europe was formed under the influence of the concept of feudal dependence. Full ownership of the property was called alod, could only belong to the free and was defended in the people's court. In contrast to alod, land plots provided to vassals were in their dependent, subordinate, although firm legal possession, under the name of feud, fief. The peasant land fell under the complete dependence of the owner of the estate, and was imposed heavy duties for his benefit. Therefore, the vassals did not literally have full ownership, but by establishing feudal dependence, they only had the right of inheritance in their land. The newest era of European history has brought with it the destruction of feudal ties. At the same time, the direct connection that had existed since ancient times between the right to land ownership and public law was weakened, and property, freed from its political shackles, became a more or less private subject of civil law. And in our history, the pure civil concept of land ownership was not formed suddenly, and not on its own, but came to consciousness gradually and in connection with the consciousness of the civil personality. The initial education and distribution of property did not depend in our country, as in the West, on conquest; however, in our history of property one can find similarities with its history in the West. The first period of legal life in Russia seems to be a period of unconscious ownership of land. The idea of ​​the right of ownership lurks still in embryo among this ownership and is not expressed until it comes into contact with the clarified legal principle. There was a lot of land, the Slavs lived in clans: the concept that whoever cultivates what owns it, that the land is common, is consistent with this state. Whether and what kind of embryo of patrimonial right was in this state, we cannot conclude with certainty. In all likelihood, the possession belonged to the clan, each clan settled according to convenience: and possession “in the old days” or according to the first occupation served as the only beginning for resolving clashes. With the arrival of the princes and squads, a change was supposed to occur. The squad is a military class, not an agricultural one, and the goals of land ownership, of course, were not directly agricultural. There is no reason to assume that with the arrival of the princes the rule was proclaimed and established that all the land in Rus' belongs to the prince. Such a rule was never proclaimed in Rus'. There is no reason to think that princely power was established among us through conquest. There is no trace of the division of the land of the vanquished among the victors. In the West, the German conquerors, having taken possession of the land already inhabited by its tribe, found almost everywhere the established system of Roman concepts of land ownership, found owners who relied on the legal concept of law and, placing their tribe in the position of the tribe and the ruling class, introduced a new system instead of the previous one. We had nothing like this. The princes, first of all, were not conquerors of the Russian land in the sense in which the conquest took place in the West. In Rus' they did not find a legal system of land tenure and, as can be seen, did not bring their own with them. But they were still the princes of the Russian land (and in the popular concept, the people merge with the land), they ruled the Russian land. What kind of idea was then connected with this word to rule, we cannot now fully understand; but we know that at that time there could not have been the sharp difference between state law and civil law, which has been determined in our time. The boundaries of private property have also not yet been defined: therefore, if a private person had no difficulty in choosing land for himself, called the one on which he sat and worked as his own, and could freely move from one land to another free one, seizing as much as his economic strength would allow, then all the more so the prince, ruling the land, could freely take, in accordance with his demands, the lands he wanted and to which private ownership did not yet extend. Naturally, the demand of a private owner for land was both vague and not extensive, because it corresponded to an indefinite and insignificant economic strength and economic need, and the prince’s demand could be very extensive, in accordance with his extensive strength and extensive need. The main need could be found in allocating lands to the squad. The squad was an alien element that did not belong to the composition of the land; therefore, the members of the squad, the aliens, could not, on the same basis as the zemstvo people, sit on the land, wherever and however they wanted, directly: they did not have a direct connection with the land. For land, they had to turn to the prince who ruled the land, and the prince indicates and distributes land to them. With the installation of the prince and the retinue element, conquests began, the conquest of neighboring tribes, and the imposition of tribute on them. The tribute is paid not on the face of the earth, but on the face of the prince. Tribute indicates a subordinate, dependent relationship of the conquered tribe - not only personal, but also with the entire land of this tribe, which is why the ownership of the land receives, albeit indirectly, the appearance of dependent ownership. In the land of a conquered tribe, the prince has even more freedom to distribute land to his warriors. He sends the squad around the cities, gives the squads to the administration of the city and volost. Moreover, tribute is imposed not only on the conquered tribes: taxes and duties are also established for the dominant tribe, and for this reason its land ownership takes on the appearance of some kind of dependence. The prince, in fact, even without violating private property, is in control of the land, according to the nature of any power. This command expands more and more, developing from an unconscious force into a conscious or semi-conscious right. Let us also note that the squad merges more and more with the land, becomes settled and at the same time increases, replenished from the same land. The natives join it, because the position of a warrior is associated with special honor and benefit. The land possession of the warrior itself, in comparison with the property of the zemstvo people, should have acquired a more defined character, and for this reason alone it could seem more attractive. The former difference between the tribes that were under the rule of the prince, as well as the difference between the land and the squad, is gradually smoothed out, but instead it arises, and the difference in occupation, service, and honor becomes more and more clear: this difference should have been reflected, and indeed was reflected in land ownership. Thus, under the influence of the squad principle, personal possession is formed, intensifying more and more, coming into greater and greater consciousness. To the extent that in those layers of society where the druzhina principle has penetrated, the previous form of land ownership by the entire clan weakens and loses its significance. However, during the period of the Russian Truth, personal ownership, apparently, had not yet reached the consciousness of personal ownership of land, because the Russian Truth did not yet touch upon the issue of inheritance in land. Near the direct, free, unconscious possession of land in one’s own name, ownership is organized with a certain nature of right, more or less dependent, derived from the power and investiture of the prince. Law is the organic product of a defined social union, and therefore it is natural that the concept of the right of land ownership and property developed among us in connection with the consciousness of princely power. With precisely this character, more or less defined, is the possession of the vigilantes, subsequently the service class. It is to this political, state origin of the right to land that the phenomenon that in our country patrimonial power acquires the properties of state power, and vice versa, state power is imbued with the patrimonial principle, should be attributed. From the merger of both, the ancient type of our land ownership was formed: this is a type of undeniably state, and not civil origin (of course, in the sense in which these expressions are now understood, for in the medieval era the difference between the principles of state and civil was not yet recognized). It is not surprising that when this definite form appeared with the character of a right, although dependent, but firm, then, at the first collision with it, another, primitive form of free but indefinite land ownership could not resist and began to disintegrate. It disintegrated without being reborn, because it was not able to create from itself another free civil form of property, which the Roman world once produced. There was no longer any place left for free land ownership when a type of derivative law, combined with exclusive power, emerged and became clear around it. The lower classes of the population, remaining outside the movement towards the right to land, outside the circle of official rights and responsibilities, were unable to maintain free land ownership: they remained with only the actual use of the land on which they lived, but could not put forward any right to the land, because there was nowhere for them to get it. The land on which they lived became alien, became the land of a prince or service people; and these latter either received it from the prince, or although they acquired the right by seizure, transfer, purchase, they owned it by right related to their state official position. These service people were free people and moved to serve freely from one prince to another, but when moving, they did not leave behind their estates in the lands of the abandoned prince: a clear sign that their right to land was closely connected with service. This right of transition prevented them from strengthening their connection with the land, prevented them from completely securing it for themselves; and when the right of transition ended, the service class remained on the lands subject to service duties. The right to land became more and more closely associated with the prince, therefore his more or less dependent character was more or less revealed 251. § 17. History of the origin of property in Russia. The period of direct ownership of land. The origin of the first form of private land ownership. State significance of land ownership in Western Europe and Russia. Liberation of property in connection with the liberation of estates During the period of establishment of the central power of the Moscow sovereigns, several types of private land ownership appeared, but none of them expressed a pure type of property rights. The peasants on the estates of service people sat on arable lots, on land that did not belong to them, but to the landowner on whose land they sat. They, in all likelihood, did not have any consciousness of any right to a certain piece of land as property, for they constantly left some lands and moved to others. The government obliged them to be obedient to the owner of the land; in favor of him they were obliged to send in-kind duties or pay rent under the contract. They did not lose connection with the earth due to their way of life, they did not lose it in a general, vague sense, because they were used to sitting on some kind of land. But they could not have a strong, permanent connection with a certain area, with a certain area, and the right of ownership is possible only in relation to a specific, isolated object. In this use of the land there is nothing solid, self-existing, and therefore one cannot even call it the right to ownership: it lasted for as long as the peasant sat on the land according to the condition. Given the abundance of land, this use could be quite extensive, but there was nothing resembling an independent right in it. And when the right of transition of the peasants ceased, this did not at all determine their right to ownership, but rather the unconditional dependence of this ownership was determined very sharply. In a similar relationship to the land were the peasants who lived on church and monastery lands, and the equally black-growing peasants who lived on the lands of the Grand Duke. Regarding the latter, the very word black indicates the dependence of ownership on service; only here the duty is not a service-state duty, but a patrimonial duty to the patrimonial owner of the land, the Grand Duke. Attachment to the land also affected this category of people, and in the same way affected their land ownership. The ownership of taxable plots by city dwellers was also not free, but under the condition of taxes and quitrents, and their taxable plots were not subject to the free disposal of the owner. In none of the above-mentioned categories do we see independent ownership of land. The patrimonial right to it was granted to them in rare cases by the special favor of the sovereign, and in this case their former black or taxable land turned into white. An exception to this order is found only in the north of Russia in the ancient Novgorod regions; there, patrimonial ownership of land, as an independent right, has long existed for the lower classes of the free population; They retained such possession until recently. This was perhaps the freest type of private land ownership in Russia 252. The right of the service classes to land, formed under the direct influence of princely service and princely power, became more clearly visible during the period of grants of letters (XIV, XV centuries), which directly affirm and define the patrimonial rights of the owner on behalf of the prince. The investiture associated with these charters has an incomparably more state than civil character; but such investiture, of course, was sought after by every patrimonial owner, for it gave him numerous benefits and advantages, therefore, it was beneficial for him to make his patrimonial possession even more dependent on the Grand Duke. On the one hand, the patrimonial owner, in the midst of his possessions, is an autocratic master for us, as if a political ruler - and from this side his right is firm; but this right has no independence: it belongs to the patrimonial owner as much as he is a servant and a prince’s assistant. This view of the land ownership of service people became more and more a legitimate, legal view as the central power of the Moscow sovereigns strengthened. Finally, the appanage princes and their descendants came down to the same rank as service people. the right of departure has ended. Everywhere it became “one of his great sovereign’s states.” Service obligations were extended to all service people; patrimonial rights to land were placed in close connection with the fulfillment of this obligation, with service. A local system developed: it was not an invention of Ivan III or any of his ancestors. Its origins have existed since ancient times; The only news was the correct, systematic organization of distributions. local law differs from patrimonial law regarding the right of disposal, inheritance, etc., but patrimonial law also had the same beginning - the beginning of official dependence. And with the possession of estates is connected the obligation to serve the sovereign; for failure to fulfill it, the votchina is taken away on the same basis as an estate, or votchinnik, descending into the category of taxable people; if he keeps the estate with himself, then not as an votchina, but as another, not official, but even more dependent, taxable and quitrent property 253. This is how we formed a unique patrimonial right to land, a right that cannot be subsumed under any of the Roman categories; but which can be compared with a similar right of supreme and subordinate property, formed in Western Europe under the influence of the feudal system (Obereigenthum, Nutzeigenthum). There is nothing like property in beneficial ownership. When a vassal received only the right to use the land, which ended with his death or the death of his master, when a peasant received a plot of land for use that completely depended on the will of the owner, here we see only dependent possession and use, and nothing more. Another matter of ownership: here we see not only the right in someone else’s thing; here is something higher than dependent ownership; signs of ownership are visible, albeit dependent and not independent. But at the same time, in the same land, there exists for another person sovereign property, with the quality of independence. Associated with this property are: the consciousness of one’s independence, the right to demand from the subordinate owner the consciousness of his subordination, signs of respect and dependence, the right to return ownership to oneself when it becomes escheat, the right to transfer supreme property to another person and to return property to oneself when it leaves the power of the subordinate owner. The supreme owner owns the ideal side of the property; and the real, actual side belongs to the subordinate owner: realizing the dependence of his right before the supreme owner, he owns and uses the property in full, passes it on by inheritance, although he is more or less limited in the right of alienation; and in the event of escheat of the supreme property, it can turn its dependent right into independent 254. Thus, property in the same land was bifurcated; there was no complete unity in it, and since all law strives for unity, this right also tended in every possible way towards the same direction. According to natural law, the real side of law sooner or later had to prevail over the ideal: expanding and strengthening little by little, it finally freed itself from dependence, and full property was formed from subordinate property. The law became unified, and the resumption of the previous division became impossible 255. And in our country, as shown above, a patrimonial estate of the service classes with a nature of dependence was formed; and with us it was not simply the use or right in someone else’s thing, but extended to the whole property and contained the real properties of property. Only in our country the supreme property was not a private right, as in Germany, but state property; was not fragmented and was not subject to concession or transfer, but was concentrated from beginning to end in the unity of state power. One of the significant differences between our land tenure and land ownership in Western Europe is the following. And there, as with us, land ownership was in connection with the druzhina element: in the feudal era it became the privilege of the class that carried weapons, went to war, and the service class. Military affairs, service - according to a person’s birth, according to his class - was represented by his personal right, and a position, a duty, was represented only insofar as it was connected with land ownership. A man went into service along with his property, and placed him and himself in subordination, in dependence, in loyalty to his lord, accepting fief investiture from him; and at the same time, its possession, acquiring legal firmness in combination with the right of supreme ownership, retained its unity and integrity. A man called an entire dacha by his name and was himself called by its name; this name, together with the estate, passed from generation to generation to his children, and in one dacha, no one other than its owner could be the master without his right, and without a blood union with him, no one could take upon himself the name of that dacha and dominance over it. People of a different class could sit on his land, by agreement with him or by virtue of personal subordination to him, under personal obligation to him, but none of them shared that land with him. This is how estates were passed on from generation to generation, maintaining their integrity and preventing the mixing of owners of different locations in one estate. In our country, on the contrary, the strengthening of state power has historically led to the consolidation of the service class in the service of the state. Service obligations fell on the entire service class. This duty lay unconditionally, and not according to land ownership, on the person: a person was obliged to serve not because he was the owner of this or that estate, not because he accepted an investiture from the supreme owner, but only because he was the son of his father, who was a serving man. Land ownership was in connection with this duty, but was not its legal basis, its reason - and this is very important. Land ownership, so to speak, followed the service, but did not precede it as a reason; was explained by the service, but did not explain it directly. The service man was at the same time a landowner - because he had to sit on something, serve from something; but service without land ownership, although it may be in an economic sense, in the economy of official business was unthinkable, would not be an unthinkable phenomenon in a legal sense. In the specific period of our history, we see, however, a mass of patrimonial estates, formed as if independently, existing on the right of personal power, we see such phenomena that boyars and free servants move from one prince to another, leaving their estates inviolable; but with the strengthening of autocracy, this will ceased, and by the end of the 16th century, the iron will of Ivan IV, obviously acting systematically, smashed, one might say, the last remnants of the pure patrimonial principle of ownership, and reduced all land ownership in the Moscow state into one continuous mass of service ownership. In its content, patrimonial right meant only the freedom to dispose of transfers; in its form it became a royal salary for service, not excluding the inheritance of his father and grandfather. The nature of patrimonial ownership, i.e. full right to own and dispose, served as the type to which local ownership sought to approach, but in their foundations both ownership did not differ in a sharp line. The service obligation, which lay on the person, regardless of the land, united both together in one principle. But from the ancient patrimonial estate we have, for the most part, come up with large dachas of the entire estate, large noble estates, many of which to this day, despite the transitions, have retained their integrity. On the contrary, from the local dachas we have a multi-local ownership, which is a feature of our way of life and gives such diversity to our patrimonial rights. Under the local system, a service person received land from the state for his farm in accordance with his salary, i.e. he did not receive an entire estate, known under the special name of a dacha, not such and such a village or such and such a village, but he received his local allotment in a certain dacha, in the middle of it, in one or another tract, so that around him in the same dacha there were usually other landowners, each at his own salary; the lower ranks of service people were also placed - either each person on his own, or many together; but during the general reform of estate ownership under Peter, some of these categories remained outside the nobility and did not receive their estates as their patrimony, but retained the right to own land on their own behalf, and began to sell their plots to outsiders. So, the liberation of property took place in our country solely under the influence of the state principle, by the action of state power. On the one hand, patrimonial law sought complete freedom of disposal; on the other hand, local law is moving closer to patrimonial law: it is known that the merger of both had almost already taken place by the end of the seventeenth century. With the change in the service system, the formal distinction between the two rights was no longer necessary, and by decree of 1714, estates were compared to estates in the general meaning of real estate. Courtyards and shops were included in the same category. The distinction between taxable and white property was destroyed: the poll tax fell on the person, and not on the property. The right to own land in the district was still considered a privilege of the service class; but the nobleman’s possession still could not be considered his full property in the sense of civil law: it consisted of a necessary connection with the state duty of the nobleman to serve the sovereign. Consequently, the right of ownership was not complete and had not yet acquired civil properties, for it depended on the owner’s fulfillment of state duties of the noble class. That is why, despite the merger of estates with votchinas, patrimonial law was imbued with the consciousness of state origin, state dependence, and the terrible word: assign estates to the sovereign has not yet lost at all the real meaning that it had in the 17th century. It is known that during the first three quarters of the 18th century, the confiscation of private property was the most common thing, and was carried out under all sorts of pretexts. The concept of full ownership of land appeared and was expressed only when service was removed from the nobility by the charter of Peter III and Catherine II, and after that (in 1785) the definition that we find in the current legislation (420 Art. Civil Law) appeared. From this era, one might say, the civil history of Russian property rights has just begun. Note. In the Muslim world, the concept of property has not yet been established in the sense in which it was formed historically in Western Europe. And there the conquest had the consequence of the victors taking possession of the lands of the conquered peoples; but Timorese law (known, for example, among the Turks) differed significantly from the feudal law of Western Europe. The land law contained two essential properties: profitable cultivation of the land and the autonomy of the owner. on the contrary, timor was only a gift from the Sultan to a military man, giving him the right to a certain part of the tax from the population occupying the donated area; moreover, this gift was always subject to selection at the discretion of the Sultan. The share of taxes given to the grantee was determined by the number of heads or killed enemies. Such an owner became the master of the local Greek or Bulgarian population and lived on the taxes collected from them, without participating in their life and everyday life and without showing any economic or administrative activity in the land and among the people, due to which the people's church, the local administration, and even the forms of the people's court could remain intact. Each of these gentlemen remained a warrior, alien to agriculture and economy. This inactive attitude towards the land is still characteristic of the Muslim Turks among the diverse Christian population in the Turkish Empire. § 18. Ownership in connection with possession. The need for a clear consciousness of the material boundaries of ownership corresponding to the right. The unconsciousness of initial economic ownership in Russia. Retraction value. A mixture of cottages. Attempts to bring land ownership into proportion. State land surveying in Russia. General principles of boundary instructions The right of ownership in the strict sense is a right that is finally strengthened and objectively recognized, unconditionally firm, so that the right here brings with it all its content, and with the beginning of the right, ownership arises, based on the right. Here, possession is contained in the right, merges with it, and expresses the will aimed at holding the object by power - a will that arose along with the right and is supported by this right. Example - a person bought an estate and took possession of it under a deed of sale: this is possession confirmed by the right of ownership. The right of property, as the most complete and simplest of all civil rights, must necessarily have firm boundaries - boundaries regarding the very thing over which power extends. We have seen how, in the first respect, a pure civil concept of the right of property was developed in history. It did not form suddenly, but gradually came to consciousness as the civilian personality developed. As the right of personality was determined, the right of property came into consciousness and was determined. However, this is not only one side in the history of the development of the concept of property rights, relating to the beginning of personality. There is another side to this story, which relates to the economic beginning. on the one hand, the relationship of law to a person was determined, on the other hand, the relationship of law to an object; one concerns the internal boundaries of law, the other concerns its external boundaries. Only with the complete, joint development of both principles can complete certainty of property rights be established, complete agreement between the internal content of the law and its external manifestation. In fact, the right of ownership has not yet reached its full certainty, as long as its material boundaries remain unknown, as long as the external line beyond which mine ends and yours begins is not yet clear, it is not yet known exactly to what extent of the earth, to what volume of things my possession extends, and from where my neighbor’s property begins. In such a situation, it can easily happen that I and my neighbor will both extend our right to the same object, to the same space. This is precisely the property of patrimonial ownership in the initial, undeveloped economic life, when the consciousness of property is still unstable, labor is cheap or has only personal (subjective) significance, the economic forces of a private individual and the whole society are not developed, not defined, and their use is simple. Here, for the most part, it happens that even if the basis on which the exclusive right is established is certain, the ownership associated with this right remains in uncertainty; it happens that neither the owner himself, nor other owners adjacent to him, nor society itself have a clear consciousness of what they own. Initially, society gets along with such uncertainty of ownership, but a time comes when, with the increase in the economic importance of land, the need arises for public authorities to establish a common unit of measurement, for private law - the need to determine as accurately as possible the space of ownership corresponding to the right. It was the same with us. The original unit for measuring ownership was very vague, because it was taken not from the qualities of the land, but from the personal property of the owner: it was personal labor; the subject of property is determined by indicating a fixed center of ownership, for example, a village, hamlet, yard, name of a dacha, etc., and in this regard doubt was eliminated. But the very possession around this center spread without any definition: “where the plow and the plow, and the ax, and the scythe go.” Thus, the owner, for the most part, had consciousness only of the starting point of his possession, and from this point his possession extended to an indefinite distance, as long as the action of his labor extended, cultivating the land, without encountering other people's labor and other people's possession, which in turn spread as personal labor did. the need for firmer boundaries appeared where, as a result of clashes between owners, the beginnings of an ideal concept of property appeared; here the first boundaries of the property meet, i.e. living areas that stop the action of labor, and natural or artificial signs, trees, holes, uncultivated strips, marks, etc. When transferring ownership along with the right from one person to another, naturally, there was a need to determine in what space the ownership was transferred, to isolate its subject matter during the very establishment of ownership in the person of the acquirer. This is where we have the simplest form of transfer of land ownership from one person to another. The personification of such a transfer was first a symbolic action (traces of which, although rather weak, are noticeable in our history), then the removal of the boundary, carried out by the previous owner personally or through a proxy, to the new acquirer, in the presence of witnesses. In this case, a special act of allotment was drawn up, or the allotment of the boundary was mentioned in the act itself, which served as the basis for the acquisition. This was our first historical form of transfer of land ownership 256. But this initial form was intended only to determine the circumference of the property, to isolate the dacha: there was still no mention of measuring its internal space. True, even inside the dacha, the same personal labor indicated an equally crude unit for defining possessions: arable land and land, plow, scythe and ax. But over time, the need arose to define more clearly the ownership of both arable land and land. The property inside the dacha began to fragment; even if the boundaries of the dacha were known, then several owners could form inside it, each of whom, without a clear consciousness of his ownership, wanted to own whatever he wanted. With the complication of life, with the fragmentation of ownership, the economic importance of both arable land and land, hayfields, water, pastures and forests should have increased. The owner, having exhausted some strips, could begin clearing and processing others, which another owner might need for the same purpose. But it was not so much the needs of private individuals that pointed to the need to inform and define the boundaries and internal content of their possessions, but rather the needs of the Moscow government, which since the 15th century, having gathered the land under itself, sought to attract the threads of governance from everywhere. At the end of the 15th century, the local system began to be organized. The government, distributing unoccupied and uninhabited lands in those areas where there were already owners, had to indicate to everyone the place of his possession and assign him a dacha. A system was established of collecting taxes from the settled people according to their plows, i.e. by units of not only land ownership, but at the same time economic labor. For one purpose or another, the government began to make economic descriptions of land, and at the same time economic measurements of land. Such measurements also included the amount of land; For this purpose, new units came into use (since the time of Ivan IV), still economic and imprecise: for arable land - a quarter, for meadows - heaps, for forests - versts and quarters. Almost all of the land ownership of the Moscow service class was of service origin, and the right to land by original origin came from the sovereign. Therefore, every patrimonial right to land in central Russia, in its origin and origin, is adjacent to the allotment from the government. In the XVth table. The local system was established. So, the main basis of ownership was approval or appointment from the government. The main basis for ownership was the so-called allotment. Moreover, each possession was assumed to be an organic whole, in which the arable land constituted a salary dacha, determined in quarters, and the land constituted an accessory to this dacha, and according to the proportion of the dacha, the proportion of the land was determined by the same approximate units. This, however, did not yet determine the boundaries of ownership: consciousness could not be complete and clear. Firstly. in the general and yet not clearly defined space of lands adjacent to the name of the dacha, there could be more than one summer resident, and the lands were not of the same quality. A dacha in it was allocated to one landowner: he owned here freely, without joint partners, arable land at salary and in excess of salary, land - as much as his heart desired. But in the same dacha, behind his salary, there could be room for others. Anyone who had the right to receive an estate was given the opportunity to look for land in a certain area, or the government allocated it to him, sometimes in the same dachas that other landowners had already been allocated. At the same time, gradualism was not observed, there was no land allocation in a row. Thus, the ownership of the former landowners should have been constrained by new allotments. Possession was split up and transferred, arable lands were cleared again, etc. Persons appointed by the government for allotments and measurements could not do them accurately, were guided by the allotments of interested parties, allowed abuses, allotted lands that had previously been distributed to others, crossed over boundaries, etc., and as the lands were not distributed in a row, spaces of empty state-owned lands formed between the distributed dachas. The former landowners used these lands from now on until they were required for distribution, and the scribes wrote them down for those owners, which is why they received the name of exemplary lands, i.e. in addition to the real dacha sampled. Thus, little by little, the boundaries of possessions and dachas, and in particular, the ownership of arable dachas, lands, wastelands and approximate lands, became more and more confused, the consequence of which was incessant seizures, seizures of boundaries, quarrels, fights and murders on boundaries, and finally, litigation, in which there was often no possibility of restoring the former or re-defining permanent boundaries between dachas, due to the vagueness of the signs. Therefore, for a long time, state power has sought to begin to strictly define the boundaries of each individual dacha; but all attempts to achieve this remained unsuccessful until the publication, in 1765, of instructions for general land surveying. § 19. Rules for notifying vast dachas and class ownership. Various dachas and purposes of special delimitation The purpose of the general survey was to establish forever the indispensable boundaries of the district possessions, to transform an unknown possession into a known one, so that henceforth there would no longer be an immeasurable possession; establish full coordination of the boundaries of ownership with the boundaries of law, in general, ownership with law and law with ownership. Achieving this goal was fraught with the greatest difficulties. It was necessary to carry out a general verification of the rights to land ownership, both between neighbors - adjacent owners, many of whom could neither justify their ownership nor indicate the correct boundaries for it, and between private owners and the state, which owned everything that a private owner could not justify for himself as legal property. It is obvious that if the state began to demand fortresses for every possession, it would have set itself an insoluble task and would have unnecessarily constrained the owners by taking away lands that it itself did not need for its own use. Moreover, if, as assumed in the first land survey instruction, surveying was associated with a general arousal of doubts about the rights of the owners - even where there were no doubts or disputes between the owners themselves, and if regarding the land survey of any dacha the state itself was a party demanding documentary evidence from the private owner - in this case, a mixture of the patrimonial principle with the land survey would follow in one proceeding, and for all dachas complex litigation would naturally arise, for the resolution of which the state did not have the means and methods other than arbitrariness. And so it is clear why the first boundary instruction of Empress Elizabeth, which made a strict demand for fortresses, was met with such distrust and fear: the owners feared the revision and reduction of their possessions. The second instruction, Catherine's, hastened to eradicate this fear with a solemn assurance that there would be no revision and that fortresses would not be required from all owners unconditionally; that the task of land surveying is not an analysis of the foundations of private law, but the bringing to awareness of a quietly existing property in order to determine the circumferential boundaries of each dacha: thus, patrimonial law and proceedings are positively separated from land surveying, so to speak, protective proceedings. It was ordered to survey not the names of the owners, but the names of villages and hamlets, to survey everything that was in the possession. And therefore the manifesto of 1765 commands: everyone should wait for land surveying in the same condition as the manifesto found. No one should extend the boundaries of their property in the dacha beyond what the manifesto shows. Everyone should stop fighting among themselves for exemplary lands: you cannot compete for someone else’s, and exemplary lands all belong to the state, which gives them free of charge to everyone who, even unjustly, seized them beyond the quarter of their dacha, if only the owners give up their possession without dispute. Where there is no dispute, there is no need to demand fortresses; Wherever the dispute ends up, the fortresses will be considered by the boundary court. However, this boundary trial, although positively distinguished from the trial of patrimonial right, should also consist of the consideration of documents and other evidence of the right. Where ownership was undisputed, where the owners' allotments did not collide in indicating the boundary with the allotments of adjacent owners, all that remained was to certify and legitimize the existing calm state by marking the boundaries in kind and recording them on the plan. Where there was a dispute, in order to determine the area next to the name of the dacha, it was necessary to calculate the lands belonging to each of the owners separately - by the measure that each could justify, and all the remaining land that could be in the dacha should be declared exemplary, dividing it according to the number of serf dachas. When considering documents and other evidence, it was necessary, therefore, in order to achieve the boundary goal, to resolve the question for each dacha: what should be taken into account, and to what extent, for each owner, to determine the area of ​​​​each dacha and its boundaries, and to what extent and for whom should ownership be recognized as legally existing? For this calculation, it was necessary to establish definitive rules: it was necessary, in the midst of the unknown, to indicate such data, on the basis of which it would be possible to turn the unknown into a number and measure 257. And it is remarkable with what practical sense, with what wit, knowledge of the matter and fairness the land surveying instruction resolves the general questions of land surveying that arose from the free and immense Russian possession, in order to bring it to a fair measure. There have turned out to be many such cases in our country in which, due to the complete lack of data from which it would be possible to deduce the number and measure for the dacha, it was necessary to create one and the other, and the boundary instructions are especially remarkable for the deeply reasonable and practically correct instructions for this, so to speak, creative work: - this work in truth was for us the work of the state, creating the number and measure for property, and thereby promoting the very formation of private and state property. The land survey instruction is of the utmost importance for the history of our patrimonial rights precisely because it for the first time defined and consolidated the foundations of land ownership for us at the very time when the civil concept of the right of full ownership was established in our laws: various types of occupation and economic ownership, which, before land surveying, did not have a definitive form and legal recognition, receive from that time recognition and form, so that “everyone” would have “his own”, each “his own inheritance or “I knew my job.” Land surveying is not a fortress, and land survey proceedings should not have concerned patrimonial rights to land arising from legal fortification; but on the occasion of land surveying, regardless of the patrimonial right of ownership of the land, which was subject to consideration by general civil courts, it was necessary by state order, and in the name of state interest, to determine the right to ownership in the dacha, the right to be listed as a participant in the ownership on the plan and in land survey acts. In the event of a dispute, 258 the boundary court had to liquidate the various properties that converged within the adjacent dachas; such liquidation required definitive rules in the event of a collision in the dacha of an unknown and immeasurable possession with a known and determinative one, rules on how to bring unknown values ​​into proportion, what possession to leave in the dacha for the owner, consecrating it with state recognition, and what to exclude from the dacha as unauthorized and illegal. According to the rules of the boundary instructions, when considering controversial cases, it was necessary to first determine the land by fortresses, i.e. according to strict law, own lands, the so-called serf dacha, then calculate and distribute approximate lands (Inter. John, 3, 59). When determining a dacha, it was ordered to take first of all the serf measure as the basis of ownership, then the living (and not passing) tracts designated in the fortresses. From many articles of the boundary instructions it is clear that living tracts also had an advantage over the numerical measure: they always remained inviolable, any search and any dispute stopped before living tracts, whether the tracts would be mixed or written in the fortresses is unclear (Inter. John IV, 15, 22, V, 14, 15. VI, 5, XI, 10. XV, 12. XXIV, 6). Finally, ownership has been indisputable for a long time, no later than 1765. Sometimes it was even preferred to serfs and scribes’ arguments (Inter. John IX, 8). The boundary instructions distinguish between undisputed possession until September 19. 1765 (the day the manifesto was published), a disputed possession, which the manifesto found already disputed, a disputed possession, in which the dispute began after the manifesto. Disputes before the manifesto were considered to be in good faith. It was assumed that the previous disputes began at a time when the general order of the government was not yet known - to leave in force the quiet, actual possession, and to prohibit anyone from further expanding their undisputed possession, which was found in the manifesto. Such ownership, over which there were already disputes before the manifesto, could not, of course, be considered indisputable, but whoever argued after the manifesto, therefore, wants to extend his possession beyond the boundaries that the manifesto found, and is not content with the possession that the manifesto provided him. In addition, to determine good faith in a dispute, it was distinguished what the disputant was looking for - whether the excess against the serf’s dacha or not, and, on the contrary, whether the disputant himself was using the surplus. Penalties were imposed for dishonesty in a dispute. And the exemplary lands, between the disputants before the manifesto, were ordered to be divided without reserve according to the number of serf dachas, and those who argued after were ordered to give only 10 per 100 quarters (Inter. John IV, 1-10, 19, 20, 21, 46. IX, 8, 9. XXVII, 1-10. Another IV, 50-52. XIII, 9. XV, 5, 7, 9, 10. Dec. 1767 July 13). To determine a fortress dacha, the boundary instructions contain rules for doubtful cases: 1) On the relationship of scribe books to each other and to fortresses. If the scribal books of different years do not agree with each other, then give preference to the later ones, “for the latter were written more accurately, with a lengthy description of the tracts, while in the former they were mostly written based on fairy tales, and it was not ordered to measure all the lands according to the previous scribal orders.” If the fortresses are not similar to the scribe's books and more is written in the former or the latter, then measure according to the scribe's books; only in the latter case (i.e. when more is written in the scribe books than in the fortresses), if there is a dispute, it was necessary to present arguments from the original dachas, i.e. to certify by acts the transfer from the owner indicated in the scribe book to the last owner of the fortresses. If there are no scribe books at all or there are incorrect ones, then give according to the fortresses (Inter. John IV, 36–40. IX, 7. Decree 1772 Oct. 29, 1780 Oct. 28). Scribe books, wherever they were, were supposed to serve as the most reliable way to determine the original land plot; for they indicated both the space of land belonging to the dacha, and the number and names of the owners of patrimonial landowners and landowners in each dacha, with an indication of the land and lands listed for each owner. A note in a scribe book, of course, cannot be considered a strengthening, because the strengthening of patrimonial rights and ownership indicated in the scribe book was based on other acts, such as: on letters of grant, on acts of a local order, on bills of sale, exchange and other records, but after the destruction of many such documents there was nothing to stop at when determining the dacha, except on the scribe books, and in In this sense, the Senate rightly expressed it in the famous decree of May 15, 1778 (N 14750 Poln. S.Z.), that scribe books are the first beginning and the very foundation of all dachas and fortresses. 2) The testimony of roundabout people about ownership could be valid as a certificate of prescription and the locality of ownership, but in itself did not serve as independent proof of the right to ownership, and in the existence of scribal books, it was ordered to respect those testimonies that most agree with the books (Inter. John IX, 3, 24). 3) Not all fortresses were specific in terms of size and locality of possession. Other fortresses are written with living tracts and with a measure, or without a measure, but with an outline of the entire possession of living tracts, or with a measure, but without indicating the tracts; in others, the land was not all surrounded by living tracts, or was only confined on one side to living tracts, or was completely without measure and without tracts. Moreover, fortresses could converge in the same dacha or under the same and similar conditions, so that there was a direct opportunity to reduce the boundaries and extent of ownership, or there was no possibility at all to do this for equally unclear fortresses; or in different conditions, so that some fortresses were definitive, while others did not provide clear or any indications. Inter. The instruction, to resolve such difficulties, proposes rules, distinguishing: a) which fortresses should be given preference in the order of land surveying, with which to begin the measure and which should be given an allotment from the rest of the land, upon the satisfaction of the former; b) whether fortresses belong to empty dachas or to inhabited ones - in order to provide land for unclear fortresses in proportion to the number of peasant souls settled, or according to undisputed possession (Inter. John IV, 15-22). 4) In case of confusion of dachas in fortresses, unclear or double meaning of wastelands and hayfields, and disagreement in numbers between fortresses and the available amount of land, between. instr. indicates the rules for bringing the unknown into a known value and for reconciling contradictions (IV, 22–35). For the surveying of church lands, lands of the College of Economy, synodal and ecclesiastical departments, for the lands of patriarchal nobles and boyar children, and especially for single-yard lands, the survey instructions established rules not only about acts that should be considered the legal basis of ownership, but also about civil rights that are associated with ownership. Decisive measures have been taken to make known and define the most diverse and most vague rights to lands and fisheries in someone else's dacha. Regarding numerous unauthorized borrowings, seizures and settlements on state, proprietary, urban and suburban lands, boundary inst. contains many rules that have the same purpose: to leave, where possible and harmlessly, the borrower and settler on the occupied land, giving him, instead of an unknown, known possession, in some cases without payment, in others with the recovery of the mortgaged money; or possession is declared unauthorized and destroyed (see Inter. Inst. VIII, 10, 11, 15, 16. XX, 5. XXII, 7, 14. XXIV, 11. XXV, 3, 8, 15. XXVII Chapter. Criminal Code 1804 Nov. 29. 1805 May 20). A lot of state-owned lands were left to the landowners for surveying, according to quitrent maintenance until 1765, according to the acquisition before 1765 of lands inhabited without affirmative dachas, etc. (see Sen. Decree, March 1808, 2). General surveying is still ongoing. However, the proposed goal - to end the uncertainty of ownership - was achieved by the general land survey only partially, and it itself could only partially have this in mind. The general survey was supposed to determine only the boundaries of the district dacha; if this dacha contained exclusively a single right of ownership, belonged only to one owner, then the goal would have been completely achieved by general land surveying. But such unity of ownership existed only in rare cases. On the contrary, in most cases, within each district dacha there were several owners who owned the entire dacha within undefined boundaries, in uneven parts. Such ownership, especially in the areas that make up the central parts of the Russian state, was formed historically, mainly where the foundations of land rights were rooted in the manorial system. Towards the end of the 18th century. a wide variety of dachas with different locations were compiled, in which the public ownership of single-yard owners collided and intersected with the ownership of large and small patrimonial owners, so that other dachas belonged, in addition to single-yard owners, to dozens, sometimes more than a hundred owners; and it often happened that none of these owners could quite clearly determine the terrain of their property, and could not give themselves an account of where it began and where it ended. To eliminate this inconvenience, which finally became a great social disaster, the rules of special or internal delimitation of dachas served, which, like general land surveying, has not yet been brought to an end in Russia. Here is a brief outline of the path followed in our country to bring awareness of possession connected with property. This path has not yet been completely traversed by our history, and much remains ahead. (See Nevolin’s article “On the successes of state land surveying in Russia” - in the complete collection of his works, and further, § 67, with the appendix: “Single-yard lands.”) Chapter two. Composition and content of the right of full ownership § 20. Its external sign and internal qualities. Possession. Definition of possession. Its historical and economic significance as part of the property. Possession in itself, under the guise of property. Ownership is separate, depending on the property. Ownership in itself. When faced with a question of law, it turns out to be legal or illegal, fair or unfair. Affiliations of each of these properties. Meaning of fair and bad faith possession The right of ownership is complete when, within the limits established by law, possession, use and disposal are combined with the strengthening of property in one person without any outside participation (423). Thus, the external sign of property rights is strengthening; internal attributes or qualities that leave its content are possession, use and disposal. What is possession? Possession is, first of all, the content of an object in one’s power, with the purpose and intention of holding it in one’s name, for oneself. Be-sitz. Pos-sessio. If we look at ownership from the historical side, we will see that it usually precedes property and serves as its replacement where the concept of property rights has not yet been established. This is the will of a person, realized on an object of the external world, the imposition of a person’s personality on this object. As an example, I will turn to the historical review of Russian property rights. Its original form is possession, the power of man over the earth, and the basis of this power lies in the property of human nature; in a law of nature independent of law. The boundaries of this possession are indicated by the economic power of man. A person holds a thing behind him and towards himself. This simple possession precedes the right, which degenerates from it with the assistance of external agents. In law we see a different basis - the basis for acquisition, a legal reason. possession in this era is a direct relationship between man and nature; As soon as relations with people regarding external objects begin, the first concept of property rights, of acquisition, arises. But when the concept of property rights is formed, possession constitutes an indivisible part of it, becomes its spiritual agent, a sign of a person’s spiritual connection with property, while use, disposal and management are represented as signs of a material connection, serving as a material expression of property rights. Here ownership is not a separate right, but merges with the right of ownership. in this sense, ownership is possession based on strengthening. And our law (513) directly says: ownership, when it is combined with the right of ownership in one person, is an essential part of this very right, and is then called patrimonial ownership, eternal and hereditary ownership. The part is essential. Spiritual figure. If I have the right of ownership of property, even if I did not keep the property with me, even if I was at a far distance from it, I can keep it with me only by the power of my will. Someone else uses it for me, manages it, but I own it, even if I have never seen the property, even if I have never been on my own land. The one who manages, uses, etc., can do all this for his own benefit, but until he begins to own in his own name, as an owner, the ownership still belongs to me 259. Some are significant, but not unconditional. It can be separated from the right of ownership, so that the right belongs to one person and the possession to another. in this case, ownership, being separated from the owner, becomes with another person either an autocratic state, or a dependent state allocated by right. 1) Let's look at the example given now. I have ownership of the property: someone else uses, manages, disposes of it. This other does not own himself. But if this other person, or a third party in general, begins to own my property for himself, autocratically, and disposes of it as a patrimonial owner, in his own name, then my ownership is actually interrupted. I still have the right of ownership, I can still bring it into action at any moment, interrupt the autocratic possession of an outsider, calling myself: I am the owner. But as long as I do not do this, and another owns my property for himself, the spiritual figure of my property right has separated from him, exists independently of him and, if his existence continues continuously, independent of my property right, can turn into a separate, independent right. 2) Possession can be separated from the right of ownership, although depending on it, and in this case it is called the right of separate ownership. When a private owner, having retained the right of ownership by strengthening, separates possession from it and transfers or cedes it to another by agreement, gift or any other act, then this possession constitutes in itself a special right, the space, life or urgency of which is determined by the very act by which it was established (514). The owner, even after separation of ownership, retains his right of ownership inviolable, and can even transfer it, as long as the rights of the individual owner are not violated. Wed. Cass. decide 1874, N 881; 1875, N 10. Here, ownership belongs to one person and possession belongs to another. This right of ownership is a derivative right, based on another right: it would not exist if there were no property right from which it came, and in this sense it is dependent. It is not autocratic, but exists in itself, has a legal basis in itself; exists separately and firmly within its boundaries and constitutes not a right of ownership, but the property - proprietas - of the owner. It originated from the will of the owner, in conjunction with the determined will of the owner; therefore, such ownership, having separated from the right of ownership and becoming a right next to it, cannot merge with the right of ownership at the will of the person to whom this last right belongs, but follows, as a separate right, its own law, determined by the correctly expressed will. Simple actual use at the will of the owner, completely dependent on it, should not be confused with this right of ownership, such as, for example, the use of land by serfs, the use of a thing given for maintenance. Here, no matter how long the use continues, it is not in essence possession. Under serfdom, it was the landowner, not the peasant, who owned; is owned by the owner, not the temporary user. “The ownership of the owner, when it is not separated by him (by virtue of Article 514) and is not ceded by agreement to another person as his special right, is not considered to have ceased in the person of the owner, in the event of only a temporary transfer by the owner of the right to manage the estate by proxy, because possession for the purpose of disposing of the estate and in the interest of another owner is not, in the sense of the law, possession as defined in Art. 513–533 Zak. Gr., but only retention, and not for oneself, which therefore cannot be covered by the definitions of the law on possession” (Cass. decision 1871, No. 1067). Consideration of this right to separate ownership, and all its types, is assigned to that section of this part where restrictions and divisions of property are discussed, and here in particular we have to talk about possession merged with property, and about possession opposite to property (replacing property, tending to property). A separate dependent possession stands next to the property, having its own special basis. I refer to possession, which is the opposite of ownership, i.e. or temporarily only connected with property, or existing separately from it, in the form of property, but not on the basis of ownership, not by right of ownership. Possession may not exist in absolute dependence on the right of ownership, or even independently of it. The division of rights into irrefutable and subject to dispute is known. In order for the right to become irrefutable and firm, it must be able to withstand a collision with any contrary right. So should the right of ownership. It often happens that the owner owns property, recognizing the right of ownership to it, and owns it by right of ownership. But another person appears who, not owning this property, asserts his own right of ownership over it and claims that his right is stronger and firmer, that his right alone is the true right of ownership of this property, and the right of ownership of the actual owner is only an assumed right, only a form and ghost of the right of ownership, and is not the true right of ownership. Then the grounds and strengthening of one or another right are examined, compared with each other, and the question is resolved: which of the two rights - the right of the existing owner or the right of a new bearer - should be recognized as a true, irrefutable right of ownership. Let us assume that the advantage is on the side of the new bearer. As soon as his unconditional right to property is recognized, ownership merges with this right, and the former owner is deprived of his possession. What was this property of the previous owner? It was declared insolvent and not based on property rights. In what sense does the law understand such possession as long as it continues? This possession could be established on an external basis, which was considered legal before another, more solid and legal basis appeared. The property was acquired in one of the ways prescribed by law (524), fortification, but in a way that later turned out to be incorrect. In this case, possession, although separated from the right of ownership, is recognized as legal until its groundlessness is recognized. For example, I bought an estate, and later it turns out that the seller did not have ownership rights to this estate. I took possession of the inheritance after my uncle, and later it turns out that he has a living grandson who has a priority right to this inheritance, or it turns out that the will was correct, by which my uncle denied the same estate to a stranger. The right of ownership of the inheritance after my uncle, at the same time that I owned it, belonged to another, therefore, my ownership was not established on a true, unconditional right of ownership, although during my ownership I was considered the owner of the common estate and considered myself to be the same. Here the law draws attention to the consciousness of the owner himself about the legality of the right on which his possession was supposed to be based, and, judging by the sincerity or insincerity of such consciousness, recognizes such possession as either bona fide or dishonest. Possession is recognized in good faith if the one who owns the property does not know about the existence of another strong right, which alone can be called the right of ownership. This is, for example, the buyer if he does not know that the seller acquired the purchased estate by force or forgery, the heir if he did not know about the will, etc. (529). Within the meaning of Articles 529, 530, 641, in determining bona fide possession, only the owner’s awareness of the wrongful ownership matters; if the owner knows that his possession has lost its legal basis, and he only expresses readiness to return the property, but continues to own it, his possession, as long as it continues, does not acquire the properties of bona fide possession from this readiness. Cass. decide 1871, N 1266; 1876, N 4; 1873, N 1059. Possession, although strengthened by entry, is considered illegal when it is subsequently recognized by the court that the same estate should rightfully belong to another owner. Possession in good faith does not cease to be in good faith just because a dispute is brought against it in court (Article 530 of the Law of Gr.). Cass. decide 1872, N 470. 1877, No. 6. Possession in good faith must be recognized in cases where the owner is not aware of the illegality of his possession, and even the owner’s doubt about the legality of possession is not enough to recognize possession in bad faith (Articles 529, 530 Vol. X, Part 1). The owner’s subjective consciousness of the legality of his possession may not correspond to the provisions of the law, but even in this case, recognition of possession in good faith does not violate Art. 68 zak. basic (corresponding to Article 62 of the same laws, edition of 1892), which prohibits making excuses by ignorance of the law, but does not eliminate the opportunity for a conscientious owner of someone else's property to realize that its possession is legal. 1883, N 79. To recognize possession as legal, in the true sense of Art. 524. Vol. X, Part 1, it is not enough to acquire property by methods permitted by law, but it is required that the right acquired by these methods to property, in its essence and scope, corresponds to the right defined in Art. 420. Vol. X, Part 1, so that this right does not belong to anyone else by law, and that it is based on the law. If a dispute arises against a right acquired by one of the methods defined by law and this right is discredited by a proper court decision, then possession based on such a discredited right should be recognized as illegal, because according to the law, the right of ownership belongs to another person, although it was acquired by an illegal owner in a manner permitted by law. Property in such illegal possession may be returned to the person to whom the right of ownership is recognized, if the latter demands it. Based on these considerations, the decision of the Odessa Court Chamber was overturned, in which the chamber rejected the claim of the plaintiff Ornstein to turn over the estate mortgaged to Livshits and acquired by him at auction, in which a part belonged to her young son. 1875, N 455. In Art. 626 Vol. X, Part 1, bad faith possession is determined not only by knowledge of the rights of another person to the estate, but also by the dispute of this person against his possession, from which it can be concluded that in cases where unlawful possession does not contradict the will of the owner of the estate, but is completely in accordance with it and even received its basis in it, then based on a proper assessment by the court of these circumstances, such possession can be recognized as bona fide. Such possession, based on one of the methods of acquisition permitted by law, is generally assumed to be in good faith. The opposing party is obliged to prove that there are signs of bad faith, that the owner knew about the existence of the right of the strongest even before presenting a dispute about the right; he was aware of the dishonesty of his ownership, did not doubt only the legality of his right, but was also positively aware, and only hid from everyone its illegality. This good faith of ownership, based on the title, is assumed even upon the presentation of a dispute, until the final decision. But when a dispute is raised, the owner becomes under the threat that his possession may be considered illegal, even if in good faith; from this moment, possession temporarily ceases to be unaccountable, the owner from this minute ceases to own in his own name, in his own name, unaccountably, but is obliged to be responsible for the income and preservation of the estate to the one to whom the estate will be finally awarded (530), because from this minute - from the minute of notification of the dispute - the consciousness of the owner has already changed significantly. Previously, it was the consciousness of unaccountable power, of unaccountable use; Now the consciousness is joined by the thought of an obligation arising as a result of the so-called litiscontestation - the thought that a claimant to this estate has appeared and declared his right in court, and a judicial verdict is still awaited - an event that depends not on the will and consciousness of the owner, but on the consciousness that the court will receive about the right of ownership: this consciousness may be contrary to the consciousness of the owner, and in this case it will turn out that he owned illegally. Whether possession is in good faith or bad faith has no effect on the right of ownership. Whoever appears and proves his strongest right, in any case, the former owner must return the property (609). § 21. Liability of the owner in good faith and in bad faith when returning the estate to the rightful owner. Possession is false, forcible and unauthorized This distinction assumes particular importance when it comes to determining the compensation that the legal owner demands from the former owner for adverse possession 260 . The liability of an unscrupulous owner is incomparably greater than the liability of a bona fide owner, even if it is illegal. When the possession of the estate being destroyed was in bad faith, the former owner is obliged to return the estate to its new, legal owner, in the same condition in which it was at the time of taking possession or at the time when the former owner became reliably aware of the illegality of his possession. The estate could include things that personally belonged to the previous owner: everything that he transferred to the estate or brought into it could be taken back by him, if only these items could be separated from the estate without damaging it, i.e. if, with the separation of these items, the condition of the estate will not be worse than that in which it was at the time of taking possession; in the latter case, these items are left on the estate without any compensation. Economic buildings newly erected by an unscrupulous owner, if the legal owner did not want to keep them, can be demolished and removed by him on time, along with the tools belonging to him. When returning the estate, the dishonest owner is obliged to compensate for any damage to the estate and for all losses on the estate: a) If he alienated part of the land from the estate, he is obliged to pay for it at the price for which he sold it, or according to the valuation, depending on which of these methods the legal owner chooses; to pay for timber not used for the needs of the estate, for household tools and livestock removed from the estate; for everything destroyed and damaged, being responsible not only for intentional damage, but also for unintentional damage, if it occurred from negligence and from failure to take appropriate measures at the time. He is even responsible for the decrease in income from the estate, compared to the average income of the last 5 years before taking possession, if this decrease occurred due to his negligence, and finally, he is obliged to compensate the legal owner for the costs of the entire litigation and taking possession. b) An unscrupulous owner is obliged to return to the legal owner all net income received from the estate from the time of takeover or from the time the wrongful ownership became known to him: namely, income received in monetary amounts, as well as fruits, works and offspring 261. There is no interest on income for past years. Cass. decide 1880, N 30. When returning capital, the unscrupulous owner is obliged to pay legal interest and, in addition, 3 percent of the penalty for the entire time they were retained. When returning other movable things that could generate income, he is obliged to pay for their use. The responsibility of an unscrupulous owner is further enhanced by the fact that when it comes to the valuation of items subject to return and compensation, their prices are determined at the prices that existed either at the end of illegal possession, or at the time of alienation and damage to the things, depending on what is more profitable for the legal owner and what he demands. For livestock that have died from an endemic disease, the unscrupulous owner, if guilty of negligence, must pay at the trading prices existing at the time of the return of the animals. From the amounts of income and remuneration, the costs spent by the unscrupulous owner on managing the estate, on repairs and improvement of establishments (if they are in good condition), on the purchase of materials still available for the establishments on the estate are deducted, unless the legal owner refuses these things and retains them for himself. Material and labor for buildings are taken into account in the calculation of costs only in such cases when both are not taken from the estate. c) If the estate was pledged by an unscrupulous owner, then he is obliged to clear it of the pledge, or transfer the money received on pledge to the legal owner (see 610–615, 618–625, 640–643 Art. Gr. Z.). The liability of a bona fide owner is not so extensive. The basis of bad faith lies in the owner’s awareness of the wrongness of his possession: in the direct consciousness of wrongness, and not in mere doubt about rightness (cf. Cass. decision 1869, No. 315). Possession does not cease to be in good faith just because the owner is informed of a dispute that has arisen against his possession and of a demand for the return of the property; however, from this moment ownership becomes accountable and responsible. The owner must be aware of the right of another person to this estate, a right that can be recognized, and is obliged to be responsible for the preservation of both the estate and the income from it to whomever the estate is awarded by a final decision of the court. However, this reporting and responsibility can begin earlier if the plaintiff proves that the defendant was reliably aware that his possession was illegal even before the commencement and presentation of the dispute (Article 530, Part 1 X Vol.) 262. A bona fide owner is not obliged to return to the rightful owner the income received from the estate or legally following on the day of the announcement of the established procedure of the dispute against his possession or, if it can be proven, until the time when the wrongfulness of his possession became reliably known to him: namely, everything that was collected from the fields and meadows until that time, sold or transferred: offspring, wool, livestock, etc., materials prepared in establishments, mined and processed minerals, rental money for land; on the contrary, if he receives the hired money in advance beyond the above-mentioned period, he must return all excess; if he mortgaged an estate, he is obliged to give money for redemption; he is not responsible for the consumption of everything that belonged to ordinary and current income from the estate; but is responsible for the consumption (such as damage, alienation, etc.), which depended on his will, of everything that related to the economic integrity (substantia) of the estate. He is not responsible for damage, not only accidental, but also caused by negligence, as long as it occurs within the above-mentioned period. Upon return, the estate must be in the economic composition necessary for the continuation of the economy, i.e. such amount of bread, hay, etc., as is needed for economic purposes, should be left in it; in factories - the amount of inventory required to carry out work. A bona fide owner has the right to demand compensation from the legal owner: for useful buildings and improvements in establishments, if they are available and the legal owner wishes to keep them; in general for improvements made to the estate, at their actual value at the time they were made. However, in the event of an excessive amount of value, the legal owner is allowed to ask for a reduction in comparison with average prices. Remuneration is due for work performed by hired workers to extract minerals that remain in favor of the legal owner; for the costs of maintaining or restoring items that would fall into disrepair, if these items are found in good condition; equally on taking the necessary measures and setting up institutions to protect the estate from natural or accidental disasters; for the repair and improvement of buildings, if the expenses tended to benefit the estate, and did not serve only for luxury; finally, for property insurance - for the time following its transfer to the rightful owner (Art. 626, 628–638 1 part. Х t. Zak. Gr.). A bona fide owner (and even more so an unscrupulous one) has no right by law to demand either remuneration for expenses spent on sowing and cultivating the land before transferring it to the legal owner (Cass. decision. 1871, No. 150), nor the return of seedlings or grain, which constitutes a necessary accessory to the land (Cass. decision. 1871, No. 471). 1874, N 143. Certificates issued in accordance with the established procedure for real estate for collateral for contracts and supplies (vol. X, part I, edition 1857, art. 1588–1626, corresponding to art. 44–76 Regulations on government contracts, edition 1887) represent the value of those estates, expressed in monetary value corresponding to known monetary capital. They can bring a certain profit by using them to secure a contract or by granting this right to another for a fee (1618 Art. Zak. Gr., ed. 1857, corresponding to Art. 69 Regulations on Treasury Contracts., ed. 1887). Therefore, if it is established in the case that the possession of the pledge certificate was in bad faith, then the court has the right to apply Art. 641 t. X, part I, which determines the collection of interest and penalties, even if it was proven that the capital that was in dishonest possession lay unused. To the edition of articles 616, 617, 622, 627, 629, 632, 635, 637, 639 1 part X of St. Law. Gr. (ed. 1857) regarding the remuneration required by the legal owner from the illegal owner and vice versa, considerations were included on such objects and values ​​that were part of serfdom or the economy that existed under serfdom. Serfdom was abolished in 1861 forever, as stated in Art. 1. General Regulations on Peasants. Based on this rule, when the continuation to Part 1 of X Vol. was published in 1863, the above-mentioned articles are shown by the editors of the continuations - partly completely abolished, partly everything that belonged to the former serfdom was excluded from them. We do not know whether the question of changing these articles was the subject of special legislative discussion (there is no indication of this in the Complete Collection of Laws), or whether this change was only the conclusion of the editors of the continuation of Art. 1. Pos. about peasants. In the latter case, the conclusion was hardly made entirely correctly, and it was hardly fair, without special legislative discussion, to editorially change significant parts of some articles on private remuneration in the Zak Code. Civilian. So, for example, from 622 art. The rule that the legal owner is charged and deducted from the income subject to return from the unscrupulous owner - taxes and zemstvo duties that he paid for the peasants, costs spent on benefits to the peasants - is excluded. From 635 art. The rule that the illegal owner is obliged to return the quitrent money received in advance from the peasants has been excluded. These exceptions are not at all justified by the general reference given to the Regulations of February 19. 1861, because in the entire Regulation it is impossible to find a single article that would destroy the value of monetary values ​​previously spent or transferred, even if these values ​​originated from the conditions or relations of serfdom. From relations and settlements under the former serfdom, many contracts and obligations arose, written for money, and it is impossible to imagine that all these obligations suddenly lost their force in 1861 only because serfdom was abolished. If, for example, in the past, landowners, when dividing their inheritance, in order to equalize values, had undertaken to pay each other what they had to pay for sold peasants, for quitrents received, etc. - would all these obligations, written with money, really be considered abolished with the abolition of serfdom? This would mean arbitrarily destroying real, existing values ​​and rights that have been formed and acquired. A completely similar case turns out to be in those cases that were given in Articles 622 and 635 of the previous edition. The taxes and zemstvo duties that the illegal owner paid for the peasants constitute the actual value used for the needs of the estate: it is absolutely fair that this value be credited to the account of the legal owner - and, of course, the abolition of serfdom in 1861 in no way destroys, in essence, either the economic significance of this value, or the principle that underlies the rule of Article 622, and meanwhile, with the publication of a new edition - legal the owner, accepting the estate from the illegal, will have reason to evade such offset. Can quitrent money, received freely and destined for another person, be fairly retained in its favor by the unlawful owner? Meanwhile, the new edition of Art. 635. gives him a reason to keep this money. Here the change in wording is even less clear - for with the abolition of serfdom, peasant dues and duties were not completely destroyed, but were retained in a new form, due to temporarily obligatory relations. Further, in many articles it was mentioned that the illegal owner does not have the right to include in the accounting of expenses on the estate those works that were performed by labor forces belonging to the estate and not hired. The new edition excludes this resolution from all articles, again on the basis of the Regulations of February 19, 1861. But work carried out on the estate - for payment or free of charge - is an economic fact that cannot be denied, at least when calculating the values ​​​​used on the estate; and the new edition gives reason to demand that no attention be paid to this fact. These are the general rules about the consequences of illegal possession. But in addition to these general rules, the law mentions in places some special cases. possession by heirs by law of an inherited estate, in ignorance that it has been bequeathed to another, is possession in good faith; but the heirs are legally liable for the proceeds from the minute that upon the appearance of the will a dispute is opened in accordance with the established procedure. The opening of a dispute should be recognized in the literal sense as the day of filing the petition opening the dispute (and not the day the request was presented to the defendant). In addition, it was decided that the sale and pledge of an estate that is in the bona fide possession of the heirs by law is not destroyed, even if their patrimonial right was subsequently declared invalid against the presented will; only money received under a deed or mortgage is recovered without interest in favor of the heir under the will (1300, 1301 art. 1 part X t.). Costs spent on improving the estate before opening a dispute are returned to the former temporary owner, without deduction of income collected from the estate (Article 1302). More Wed. 1706 art. Zach. Gr. on the remuneration of the renter from the building for the deprivation of “temporary property” before the end of the term. Unfair possession is also illegal. In general, illegal possession is one that is not based on any of the legal methods of acquisition, involving the normal expression of will, but comes from deception, violence or self-will, and therefore it can be forged, violent or unauthorized (Articles 525-528). Forged – when it is based on a forged act or other deception, and this happened with the participation of the will and consciousness of the owner (theft, fraud, theft). Violent – ​​based on capture or taking away (theft, robbery). Unauthorized - when it began without the will of the owner, and the owner knew about the existence of this owner. 1303 art. Zach. Gr. classifies as unauthorized taking the possession of an heir by law when he concealed the will, although within the meaning of Art. 526. such possession fits the criteria of being counterfeit. 1877, N 56. 4 clause 399 art. X v. 1, indicating that all kinds of buildings and structures erected by the owner on land that came to him by inheritance should be considered a family estate, and not acquired, determines only the property of these estates, but does not resolve the issue of their ownership to one or another person and does not exclude the possibility of disputes about the ownership of the buildings, or about the right of compensation for them, in the event of alienation to another person of the land on which they are erected. In this latter case, one must act on the basis of the laws on private remuneration set out in Art. 609–638 Vol. X, Part I. By virtue of these articles, the plaintiff, who is awarded a part of the land that is in the possession of the heir by law and on which the owner has erected various buildings, has the right to receive the part awarded to him in the form in which it will be at the time of execution of the decision, and the remuneration of the defendant - the owner for buildings and improvements can be determined by the court in the manner specified in the note to Art. 639. X volume I part (according to Prod. 1868) 263. 1877, No. 6. The heir under the will, owning the bequeathed estate, in 1862 paid the debt that lay on the estate under the mortgage; in 1863 a dispute was brought against the will and as a result of this dispute the estate was taken into custody; in 1872 the will was declared void by the court and the estate became the property of the heirs by law. The heir under the will filed a claim for the return of the capital paid on the mortgage, with interest from the date of payment. The defendants objected, citing statute of limitations. The Trial Chamber recognized the plaintiff as a bona fide owner and awarded him his claim. The Senate found that the plaintiff, as a bona fide owner, has the right to demand compensation for expenses that he made on the estate not from the estate’s funds and that increased the value of the estate, that the payment of the mortgage debt is just such a cost; that the right to claim arose for the plaintiff from the time the will was declared invalid and that only from that time did the limitation period begin; that the basis of the claim lies in the payment of the debt on the mortgage and therefore the plaintiff can demand interest from the date of payment, with the exception only of the time when he himself used the estate, and therefore the capital invested in it. § 22. Possession in itself. Its significance before the law is expressed: firstly, in legal recognition and protection from violations. Possession as a cash state and its comparison with other cash states in the field of civil rights. The basis for the legal protection of possession. The concept of interdict and the practical difference between a claim for protection of possession and a claim for ownership. The nature of Roman types of ownership and the conditions under which they were subject to protection So, possession can exist without ownership. But this is not enough: it not only exists, but is also recognized by law and protected from violence, and even with the lapse of time, under certain conditions, can become property rights. a) Legal recognition and protection of simple possession. In every legal relationship there is a legal basis: it is essential. Whoever puts forward a legal relationship in his favor, deduces it from a legal basis, obliging himself, if necessary, to prove it, to prove his right, and therefore enjoys the legal protection that belongs to the law. Therefore, every legal relationship has the property of an unconditional right, which, under any circumstances, requires recognition and actual implementation. But when the relationship regarding property is such that it is impossible to give it a legal basis (i.e., a known person for a known reason has a known right to certain property), then the relationship cannot be called legal, but if it is a factual relationship, there will be a natural state without a legal basis. Being deprived of a legal basis (ratio juris) and the ability to justify itself by indicating the legal reason for its origin, it, according to the strictness of the law, cannot find legal protection for itself. This is the unconditional conclusion of legal logic, and this conclusion applies undoubtedly to any relationship in the field of family and contract law. Here, what does not bear the stamp of law, what cannot show its legal name, is certainly denied by the law, and therefore does not find itself the protection assigned to a known, well-known legal relationship bearing a known name. But in the sphere of patrimonial rights, due to the nature of their very matter, it is possible to deviate from this strict conclusion of legal logic. To the thing, i.e. to a present object of external nature, can approach, can sit on it, can grab and embrace it, not only a person who has a known right to it, but also someone who does not have any known right to a thing, can become in a real, factual relationship with it, and such a relationship, although it does not have a known name, does not have anything to legally justify itself, still enjoys some protection, not for the sake of the right from which rightful possession flows, but for the sake of considerations of order and public peace. This is the Roman concept of protecting possession. Possession refers to the essential content of the right of ownership and constitutes its essential accessory. The state of possession is usually associated with the concept of ownership, the assumption that the person who owns the object has the right of ownership to it. Possession is a state (status) actual, present, which speaks for itself, which does not require proof as long as it continues. On what it is based - this possession, and whether it is really based on the right of ownership - the question does not arise by itself, unless there is another person who declares the actual owner illegal and exposes his right to ownership in the same property, therefore, this question is raised only as a result of an action for ownership. And in this case, possession is presumed to be based on the right of ownership until the contrary is proven. From here arises the right of every owner, no matter what the basis of his possession, to defend his possession, and without presenting him with any grounds, to demand the protection and restoration of his possession if it is violated. In order to take advantage of this, the owner is not required to prove that he has title to the estate; It's enough that he's the owner. This is the basis of the so-called interdict or action for possession, as opposed to an action for property. The action for taking possession aims either to retain one's possession when it is violated (interdictum retinendae possessions), or to restore one's possession when the owner is completely ousted from it (recuperandae poss.) 264. The practical significance of this protection is as follows. The position of the owner is always more advantageous than the position of the one who, without owning, seeks and proves his right (melior est conditio possidentis). In order to maintain this advantageous position, the means is the hasty use of a claim for possession. The owner's field was seized; the owner was forced out of the house. We must return what we have lost, restore our violated possession. If a claim for property rights is chosen for this, the plaintiff will need to appear with evidence of his right, and he will have the burden of proof. On the contrary, if you start a claim for possession, you do not need proof of ownership; the owner has only to prove that he was the owner and was ousted, and he will be immediately restored to his possession by the nearest authority. Then he will again be in an advantageous position. Then the violator of his quiet possession, even if he really has the right of ownership of the property, will be obliged to put himself in the position of the plaintiff and prove his right. And it is beneficial for the owner to remain in such a position that he has the opportunity to defend himself, wait for evidence, and own until the dispute is resolved. According to the Roman concept, this beneficial state of possession (commodum possessionis) continues as long as possession remains. If the owner has lost his possession by accident, or the possession, violated by self-will, has already passed into third hands, this benefit of ownership ceases, and its restoration becomes possible only through a formal claim. But when possession is violated without permission, the former owner is given protection from the violator and the opportunity to restore the violated possession by praetor (police) order. It is precisely because of this police quality of protection (provided to an existing, calm state) that the praetor's power established a form of interdict to protect possession, in addition to the lawsuit and the court. In the later Justinian law, the interdict in these cases was replaced by a claim, and in the newest law the claim form is also used to protect violated possession; but the nature of the temporary protection does not change, and the claim for the protection of possession (possessorium, action possessoire, Besitzklage) differs significantly from the claim for patrimonial right (petitorium, action petitoire, Eigenthumsklage), for the former aims to satisfy the urgent need of ownership, temporary aversion to violence and violation, has the character of a police prohibition, suppression of disorder, while the latter aims to recognize and restore the right known to the person belonging to, establishing a strong legal relationship to the property. In Roman law, the so-called public ownership (qualified, special property ownership), which enjoyed special protection, was distinguished from simple actual possession and its police protection. The idea of ​​property contains the concept of an invincible right, which in itself exists, based on an unshakable legal basis, and can unconditionally reflect any opposition and contradiction, exposing only an unconditional right. Between this unconditional right and the state of possession, protected regardless of its grounds, a middle ground is allowed: possession protected by its special property. Anyone who, having a fair basis for believing himself to be the legal owner of the property (justo titulo), has taken possession of the property in good faith (bona fide), does not yet acquire a valid patrimonial right, and therefore, in the strict sense, would not have any advantage over the simple, actual owner. However, since the time of the praetor Publician, the above-mentioned possession has been granted the right to defend itself, at least against simple possession based on nothing, by an action (actio publiciana), similar to the patrimonial action inherent in full ownership (ad instar proprietatis non ad instar possessionis). This claim differed significantly from the interdict: the latter was based on considerations of general benefit (utilitatis ratio); the first is on justice (equitatis ratio). In the latter, the defense was raised by the unauthorized action of a trespasser; in the first, the property of ownership prompted the right of action to be granted to the bona fide purchaser of the property. In the interdict, the owner's claim referred to the person of the offender, while the public claim was a real patrimonial claim (actio in rem). But the public claim was also associated not with an unconditional, but with a relative right: it could be valid only against the weakest state, the weakest possession (qui infirmiore jure possidet). The defendant in this claim did not have the right to simply deny the plaintiff’s right: at the same time, he must certainly prove his priority right to the property; for in favor of the plaintiff there was an assumption based on the legal method (justa causa) of acquisition. § 23. The origin of the Russian form of claim for protection of possession in police proceedings. Changes in new legislation. Which property is protected? Rental ownership – disputed – common. Claim for protection of possession of movable property In Russia in the old days there was no strict distinction between ownership and property rights. Therefore, from ancient times, we did not pay attention to the basis of the claim, and there were no strict categories in property claims. first of all, attention was paid to the purpose of the claim, and in this regard, the purpose was simply the return of the thing from the one in whose hands it was, and therefore in our case the claim for ownership merged with the claim for possession. In case of seizure, the plaintiff demanded return, the defendant, for his part, declared his right to the thing. The court investigated, and whose right turned out to be superior, the thing was awarded. Thus, the basis of the verdict was not the conviction of an absolute right to property, but of the best, strongest right to ownership. The first concept of an interdict appeared in the law of Western Rus' in the 16th century, known as the Lithuanian statute, where it was borrowed from Roman or German legislation. Here, possession is clearly distinguished from property, and the protection of possession is presented in the form of a special x, which had to be presented within 6 weeks from the time of possession, no matter with or without a fight; in this case, the taken possession, without trial, according to one investigation, is returned to the ousted from quiet possession. The plaintiff was not required to provide evidence of ownership, and the defendant, even if he presented the fortress, was ordered to be sent to a special court. In our country, the first traces of separating the protection of possession from the protection of property appeared in the Land Survey Instructions, then in 1775 in the Establishment. about the Gubernias, it was made obligatory for the zemstvo police officer to “give every offended person judicial protection and, wherever there is violence in the district, investigate on the spot without much written proceedings, and then only make it clear whether such a case occurred or not, and interrogate witnesses, and if anything is taken from anyone, and it is in evidence, immediately return it; but at the same time let the district court know about this, in which the request is allowed to be made by those who can prove that the police officer acted unfairly.” Thus, although indirectly, the claim for title is separate from the proceeding for the defense of possession. It remained to determine how long one could enjoy the protection of police power without resorting to court. There was no clear concept of this new order in practice, because the law had not yet established a direct distinction between one and the other form of production. The new order was determined for the first time by the opinion of the State Council on a particular case: in the case of the seizure of state-owned peasant lands, a clash arose between the police and judicial authorities, and the courts recognized the action of the police officer, who returned the seized land to the peasants, as an abuse of power. When it was necessary to determine the period during which the case of appropriation could be subject to judicial proceedings, the State Council turned to previous cases in which similar issues arose in the provinces of the Western Region and were resolved on the basis of the Lithuanian statute, and the Lithuanian statute established a 6-week period for the return of the seized property, without trial: in this sense, a decree of the Senate took place already in 1809, published in 1820 and 1823 Only instead of a 6-week period, the State Council adopted a 10-week period in 1824. According to current laws, any actual possession of real estate, even if it is illegal, is considered indisputable and is protected by law from violence and arbitrariness, until a dispute or litigation is brought against it, and the property is awarded to another (Law. Gr., 531). Illegal possession can be terminated not only by the court, but also by police action where new judicial statutes have not been introduced (Zak. Gr., 532). To do this, a complaint is filed with the police within 10 weeks (Vol. XVI, Part 2, Law Court. Civil., Art. 639, 641, 643). The police, without entering into the proceedings on the right of ownership and without examining written documents, only investigate whether violence and seizure took place, and in whose possession the estate was when violence was committed on it, and then, if anything was taken from anyone, it returns what was taken away to the previous owner, leaving the other party to seek their rights through the courts (Vol. XVI, Part 2, Law Court. Civil., Art. 648, 649). If the 10-week period is missed, then it must be sought by the court, and therefore, the person who has lost possession is not restored to it until the court’s decision (Vol. XVI, Part 2, Law of the Civil Court, Art. 643). Therefore, according to the meaning of this law, if the party against whom a complaint about possession was brought filed a dispute with the police, then the police should not accept it, and should not compare the possession (whose is more correct: the previous one - violated, or the new one), but must return the taken possession. A neighbor plowed part of my field. I didn't complain. The next year I plow up this part, considering it my property. The neighbor complains, claiming he owns it. How can we understand whose possession was, whose action should be considered a violation of quiet possession? Research is being done. They show that last year the neighbor plowed the field without hindrance, but before that I was the owner. What should the police do? Should we compare whose ownership is more advantageous? She has no right. Last year I did not complain about violence within 10 weeks, therefore now the police should consider him the owner, and then which of us should rightfully own it is already decided by the court. So, before the court’s decision, I am deprived of my property for not exercising the right to ask for its restoration within the deadline. The law refers specifically to actual possession, and does not specify the length of time during which possession must continue in order to benefit from police protection. Therefore, after a 10-week period from possession, if there was no complaint, the new owner, in turn, is considered the legal owner; an assumption arises in his favor, an assumption goes over to his side. Our law says: real, but not completely quiet possession. therefore, the disputed possession also enjoys the same advantage. I am suing for title to property owned by another. there is litigation going on; Meanwhile, I enter the property, plow the land, dig a ditch, cut down the forest, etc. Even if the court suggested that there was a presumption in my favor, even if my right of ownership was very likely, as long as the land is not awarded to me, my interference is illegal, the owner has the right to resort to the protection of the law, and even has the right to demand compensation from me for violating his possession. Possession. What do you mean by this word? Franz. legislation does not provide protection to such possession, which does not exist in itself, not in its own name, á titre précaire, possession, for example, of a farmer, tenant, etc. In this respect, we do not differ, and the word possession is understood in a broad sense. According to the new statute of civil proceedings and according to the rules on the organization of the judicial department in areas where the provision on zemstvo chiefs has been introduced (Vol. XVI, Part 1), cases of restoration of violated possession are provided to the department of justices of the peace, city judges and zemstvo chiefs, when no more than 6 months have passed since the violation. Justices of the peace, city judges and zemstvo chiefs in cases of this kind are placed in the same position as the police as before, i.e. they should not enter into consideration of the right of possession itself, and should be limited to the return of the property to the person in whose possession it was before the infringement. The department of justices of the peace, and in areas where the provision on zemstvo chiefs has been introduced, the department of the district member of the district court, has been granted claims for the right of participation of a private person, when no more than a year has passed since the violation (Constitution of Civil. Court., Art. 29, paragraph 5; law on the organization of the judicial part where the Pol. on Zemsk. Head., Section I, art. 29; Section II, Art. 21). It would be fair to think that the law in this case also does not mean claims, but cases of violation of a tranquil state (for the concept of ownership also fully applies to easements or private participation), and that in this case the one-year period is the period for starting a case for the protection of possession, and not the period by which a claim for patrimonial right is extinguished. However, the wording of paragraph 5 of Article 29, adopted, perhaps due to a misunderstanding, or perhaps for a specific purpose, forces us to recognize that we are talking about the special jurisdiction of claims and the repayment period specifically established for these claims. However, one cannot help but notice that this edition of 5 paragraph 29 of Art. is in some contradiction with the wording of paragraph 1 of Article 31 (see 29, 31 and 1310 of the Constitution of the Civil Court). Civil Cass. The Senate delegate assigns the right of this claim to a temporary and dependent owner, for example, a tenant, tenant, etc. (Cass. decision 1869, N 745, 754, 849), recognizing that at the same time the same right remains with the owner. Cass. decide 1875, No. 426. In other decisions, for example, 1870, No. 1627, the Senate distinguishes temporary use by assignment from the owner from temporary possession, and does not recognize a claim for the protection of such use. Such a decision is very vague, since our civil law does not indicate, and the above decision does not explain, the exact signs of the difference between temporary possession and temporary use under a contract - signs by which one could correctly judge why use in the cited case was denied protection, which in other cases the same possession was not deprived of. And regarding the protection of rental ownership, a reservation must be made. Rental possession, based on a lease agreement, although it can be protected, according to paragraph 4 of Article 29, by a claim for the restoration of violated possession, but only against third parties whose claim to the property is not based on the patrimonial right of the owner who leased the property. Regarding this owner, and regarding those who enter into possession who assert the right acquired from the owner, defense of possession is impossible, and the dispute must be resolved by general judicial procedure. Therefore, if the owner objects to a tenant’s claim for protection of possession with his patrimonial right, or a third party objects with the right acquired from the owner, the case is not subject to global jurisdiction. Cass. decide 1874, N 474, 698; 1875 N 123, 587; 1877, N 72; 1875, N 922, 943, 997. The essence of a claim for trespass is that the plaintiff is not required to prove his right to possession. It is enough for him to certify that he was in possession before the violation, and on what basis he owned it is of no concern to either the court or the enemy. For this reason, claims for the protection of possession are given to the department of the magistrate court, and in some localities this court has been replaced by city judges and zemstvo chiefs, whom the law does not trust to resolve issues of ownership or the right to own real estate (Article 31, paragraph 1). So, as soon as it turns out that the case cannot be decided without verification and without comparing the grounds or titles of ownership, it becomes beyond the jurisdiction of the magistrate's court. Ownership in oneself, in the form of property, possession of property as one’s own thing, is protected unconditionally, and against any intervenor, by an action for the protection of possession. But it is impossible to admit the same about the possession of a renter, for it is not an independent state, but a derivative, dependent one, since the owner, in his very possession, recognizes it as temporary, conditional, and dependent. Therefore, the relationship of such an owner to the participants is not the same. If this possession is violated by a third party, for example, by the seizure of a neighbor, the owner can counter the mere fact of his possession and thereby repel the violation. If at the same time the intervenor begins to prove his special patrimonial right to the property, directing it against the patrimonial rights of the owner (from whom the tenant received possession), the actual owner-tenant does not care about this, since the owner himself would not care about this if he had to ask for protection of possession. For this reason, the magistrate's court is allowed to take these cases under its jurisdiction. On the contrary, if a tenant asks for protection of possession against his owner, or against a person who has acquired a patrimonial right to the estate from the owner, then it is no longer enough for the plaintiff to certify only his possession, which, by its nature and according to the plaintiff’s consciousness, is not independent, but dependent. The plaintiff must present the title of his possession, and certify that, by virtue of this title, the owner or the owner's successor did not have the right to violate or take away his possession of the whole property or part of it before the deadline. Consequently, the court cannot, due to the nature of ownership and relationship, do without checking the right to ownership, and in this case the case turns out to be beyond the jurisdiction of the magistrates' judicial rulings. Regarding disputed possession, it should be noted that it does not cease or change as a result of the dispute, until the decision; therefore, it can be protected in the person of the owner by a claim for protection and restoration, and not only against third parties, but also against the other party in the dispute over ownership (see 531 Art. 1 Part X Vol.). In claims for the restoration of violated possession, the basis of the claim is, exclusively and independently of the right of ownership, the reliability of the actual, actual possession of the property (cf. Cass. decision 1877, No. 129). An action of this kind can be allowed only where, by the nature of the possession, clear, complete and definitive possession of the known property over which the possession extends can be verified. Such determinacy can only be achieved by the aggregate possession of all the partners in the common undivided property - in relation to an accessor who is not one of the partners, and therefore, in relation to this participant, a joint claim of all or some of the partners can be allowed - for the restoration of violated possession. But, by its nature, the ownership of one or some partners in the common indivisible property cannot have such determinacy in relation to the other partners; for in the common possession of this kind, the participation of each may. definitely only in abstract quantities (i.e. in the ideal share of the right to property that belongs to everyone - half, quarter, etc.), but not in the material space or subject of ownership. So, on the part of one of the accomplices there cannot be a claim against the others for the restoration of violated possession in the common undivided property, separately and independently of the claim for the delimitation of possessions according to the right of each. Wed. Cass. decide 1876, N 251. Cass. decide 1876, No. 474. Taking possession of an immovable estate as a whole does not serve as undoubted evidence of the transfer into possession of the acquirer of each plot located within the boundaries of this estate, so that, despite the entry, the actual possession of an outsider of a known plot lying within the estate can be considered an uninterrupted taking into possession if this plot is not specifically mentioned in the introductory sheet. In relation to all those parts or individual plots of the estate that are named in the introductory sheet, the entry into possession, carried out by the appropriate authority and on the basis of a court order, interrupts the previous actual possession of these plots by unauthorized persons. Accordingly, in the first of the above-mentioned cases, the acquirer of the estate who has been put into possession of the estate, if he finds an alien owner of such a plot that is not named in the introductory sheet, does not have the right to remove him from this plot either by his own orders or by means of a claim for the restoration of violated possession, since this outsider, who was the actual owner before the acquirer took possession, cannot be recognized as violating his possession, and meanwhile the possession of this person that site is protected by law itself, on the basis of Art. 531. X vol., Part I. On the contrary, such an outsider, in the event of any orders of the acquirer put into possession that restrict his possession, may, without missing 6 months from the time of these orders, demand the restoration of possession of his claim in the magistrate's court decisions, and such a demand of his is subject to satisfaction. In the second of the above cases, i.e. when an outsider owner of such a plot, which is named in the introductory sheet, is in the possession of the acquirer of the estate, this outsider, having ceased to be the actual owner from the moment the acquirer takes possession of the said plot, cannot consider the acquirer to be violating his possession and, if this outside possession continues, then the acquirer has the right to demand the termination of this possession with a claim for restoration of the violated possession, until 6 months have passed from the time of entry into possession. To Cass. decide 1872, No. 910, it is explained that the enforcement of a court order to take possession, according to a writ of execution, is indisputable; if the person against whom the writ of execution is issued does not cease his possession unquestioningly, then this resistance constitutes arbitrariness, the termination of which the interested person may ask the magistrate’s court. The magistrate's court has the right to act on this petition on the basis. 29 Art. Est. Gr. The court., and is obliged to terminate possession, not only which began after the issuance of the writ of execution, but also continues contrary to the order of the court set out in the writ of execution, put into effect on the basis. 1428 art. – It is difficult to agree with such reasoning, because it mixes 2 different principles. A claim for protection of possession is based on the unauthorized infringement of actual, actual possession, which began and existed at the time of the infringement. In the present case, the case is about a violation or non-recognition of a right newly established by a court verdict, even if this right has not yet had time to be realized in actual possession. It is impossible to bring such a case under the protection of possession without confusing the concept of the essence of the claim for protection of possession. 1873, N 946. The right to extract benefits from land is granted not only to its owner, but also to the temporary owner (514 Art. I Part X Vol.). If the owner has the right to benefits from the land, then he cannot be deprived of the right to demand compensation for violation of his right to use and benefit from the estate, even if it does not belong to him. In view of this, a violation by someone of the possession of the actual owner of the estate, causing him losses, shall be carried out for him, by virtue of Art. 574 t. X, part I, the right to demand remuneration. In the decision of 1885, N 55 Civil. Kassats. The Department recognized that in the case of a public sale of an immovable estate, the taking into possession of this property, as a result of the acquisition of this estate at a public auction or leaving it for the creditor, under Articles 1165 and 1171 of Art. Est. Citizen The court, interrupts the possession of third parties who did not participate in the case, and can be refuted only by a patrimonial claim in judicial rulings, i.e. in an action for title, not for restoration of possession. This provision does not apply, however, to the case of the sale of estates in the boards of land banks: the entry into possession, completed as a result of the sale of estates in the mentioned boards, cannot be recognized as interrupting the actual possession of third parties, and the act of entry cannot in itself serve as a sufficient basis for a claim for restoration of possession by the person who bought the estate, unless the claim is supported by evidence of the actual possession of the estate on the part of the plaintiff (i.e. himself or the previous owner) and the violation of this possession by the defendant (1887, no. 17). Is a claim for restoration of violated possession in movable property allowed? Although the law (29 paragraph 4 and 73 art. of the Constitution of the Court) does not directly deny the possibility of this claim, but by the very nature of the subject it is hardly possible to allow it. According to the law of movable property (534 Art. Zak. Gr.), it is considered the property of the one who owns it, until the contrary is proven. Therefore, in this case, the assumption of the law positively preserves possession of the actual owner, and in order to refute it, it is necessary to prove that the thing is not his, but the plaintiff’s, which can only be achieved by a claim for ownership, and not for the restoration of violated possession. Regarding movable property, a claim for violated possession is certainly connected with an accusation of the violator of intentional appropriation of someone else's property, or of violence (criminal claim). Application of Art. 73 to claims for possession of movables is impossible. It is also impossible to apply the rule of Art. 34. about jurisdiction, since the location of movable property, due to its variability, cannot be a sign of jurisdiction. These are the main considerations why it seems impossible to allow a claim for the restoration of violated possession of movable property. In this sense, Cass. decide 1874, N 356; 1875, N 776. Foreign legislation is also silent on this subject, and in practice, a claim for protection of possession of movable property is mostly not allowed, for the above reasons. However, opposing opinions are also expressed, and others allow a claim of this type only regarding the totality or collection (universitas) of movable things, suggesting that it is possible to distinguish in cases of this type the right of ownership from possession. The Italian Code positively allows an action for the return of possession (réintegrande) also regarding movables; even allows for movable property a claim for the protection of trespassed possession (complainte), when the subject of the claim is the violation of a neighbor's right by a building (operis novi nunciatio). § 24. Secondly, in the operation of prescription. Conditions for turning possession into ownership through prescription, according to Roman law - French law - according to other legislations I now turn to another important property of ownership - the property of recourse to ownership after the expiration of prescription. Roman law established different statutes of limitations, and not all statutes required the same conditions of possession. Acquisition by prescription (usucapio) could be ordinary or extraordinary. For the ordinary it was required: 1) that the object itself be capable of private possession; 2) so that possession is combined with a good faith belief (bona fides) that ownership has been acquired, and with ignorance of legal obstacles to this. According to Roman law, it was considered sufficient for such a conviction to exist at the very beginning of possession. Canon law began to look at this subject more strictly: it demanded that such a conscientious conviction remain unshakable and not be destroyed by opposing doubt throughout the entire possession. 3) It was also required that this belief be not only subjective, but objective, that it have an external basis (without an external basis it would be difficult for a person to prove that he had a conscientious belief). Such an external basis had to serve as a legal (at least not illegal) title of acquisition (justus titulus), such as: tradition or transfer of property, court verdict, inheritance, will, occupation, etc. This basis in essence could be illegal, but it was necessary that its appearance be legal, so that the owner could consider it legal at the very beginning. Therefore, possession that occurred through violence or secretly concealed its origin (vi aut clam) did not fit the conditions of limitation. 4) Ownership had to be legal, i.e. connected with the consciousness of the complete domination of the owner (animus sibi habendi) and with the actual content of the object in power. Therefore, the simple material content of a thing in one’s own power (detentio) without the consciousness of domination, or with the opposite consciousness that a person is holding the thing by someone else’s will, with the consent of the owner (precario), did not fit these conditions. Under the above conditions, possession was asserted by prescription if it lasted in movable property for at least 3 years, and in real estate for at least 10 years between those present, and at least 20 years between those absent (inter absentes). An extraordinary acquisition required only the owner's good faith belief in the validity of the right, even though there was no legal title. In French law, prescription is directly included among the methods of acquiring property (Code Civ. Livre III. Des différentes manières dont on acquiert la proprieté). Its definition is as follows (Article 2219): “prescription is a way to acquire or be released through the passage of some time and under the conditions defined in the law.” Consequently, French law, and according to it the French doctrine, directly divides prescription, as a general institution of civil law, into acquisitive and extinguishing. The first (prescr. acquisitive) is based, according to the French interpretation, on the assumption that the person who enjoys the right, who owns the right, acquired it, in all likelihood, legally. The latter (prescr. liberative) is based on the assumption that a person who leaves his right unused, remaining inactive, has probably lost it for some legal reason. In the same chapter that treats prescription in general, French law defines the qualities of possession under which it can turn into ownership. By defining possession in a broad sense, French law explains why it combined acquisition with redemption or release in one institution. In the French sense, the subject of ownership can be any right. “Possession,” says the French law (Art. 2228), “is the retention of a thing or right, or the use (jouissance) of a thing or right, which (right) we hold or exercise (exerçons) ourselves or through another person holding or executing it on our behalf.” The definition is rather vague and rather indefinite, but it shows that the concept of ownership extends, according to French law, to the entire area of ​​civil, patrimonial and personal rights. French lawyers explain that the words: “retention of the thing that we hold behind us:” refer to bodily rights (dr. corporels); and the words: “the enjoyment of the right that we put into action:” refer to rights incorporeal or imaginable (dr. incorporels). 2229 art. determines the qualities of ownership necessary to acquire a right by prescription. Possession must be: 1) permanent (continue); 2) continuous; 3) calm; 4) explicit (publique); 5) on the basis of property rights (à titre de proprietaire); 6) doubtful (non équivoque). The first property is interpreted in such a way that possession, once begun, should not be lost or abandoned, even if after loss or abandonment it begins again. Possession must be combined with the constant direction of the owner’s master’s will, with the constant bringing of this master’s will into action, with constant use. It is enough that such a state is justified by such actions of the owner that show his master's will; it is assumed that it was expressed constantly (probatis extremis media praesumuntur): the contrary to this must be proven by the opposing party. Another property is continuity. Possession must not cease to be possession. Its continuity is violated in two ways - legally and actually. Legally (interruption civile) - such an act of the owner, in which the consciousness of patrimonial rights to property is expressed, and a patrimonial claim on the right on the part of the owner. In fact (int. naturelle), when the owner leaves his possession (even if he subsequently reenters it); and when he is forced out of possession by the owner or a third party, and has not asked for protection of his possession within a year. The third property is that ownership should be calm. It is not calm when it began as a result of violence (acquise par violence). In addition, it is not considered calm even when all the time the owner had to defend himself with violence from violent actions and violations on the part of the owner. In a word, not only the one who has established himself in possession by force, but also the one who holds on to it by force, the French doctrine does not recognize as a calm owner. However, according to French law (Articles 2233, 1304), after the end of the last violence, the period of quiet possession begins again by itself. This vice of ownership, violence in maintaining possession, wealth is not unconditional: it discredits ownership only in relation to the one whose violence should have been reflected by the owner, and not in relation to any other person. The fourth property is that ownership must be clear, i.e. there should be no attempt on the part of the owner to hide his possession from someone who could challenge it with a patrimonial claim. This vice, like the previous one, is a relative vice. The fifth property is that one must own oneself, with the consciousness of one’s patrimonial right (animus domini, animus sibi habendi). The one who holds a thing temporarily and conditionally owns it differently, as someone else’s (precario), aware of someone else’s patrimonial right to it. This vice is no longer considered relative against some, but unconditional against all. The sixth property - certainty, means, in essence, that all the other above-mentioned qualities of ownership are not subject to doubt. French law specifically states (Art. 2232) that limitation does not extend to such actions which, constituting the general property of a right or state, depended entirely on the will of the owner (actes de pure faculté). No matter how long the owner refrains from such actions, consciously or unconsciously (for example, from picking fruits in his dacha, from building establishments on his farm, from breaking through windows in his wall, etc.), he does not lose the right to these actions; for they all lie in the general economic content of its legal state; in the same way, a third party, even if on some occasion he performed such actions in the sphere of someone else’s possession, does not acquire separate ownership of these actions and a separate right to them. The owner can sometimes calmly look at some of the actions and uses of an outsider within the boundaries of his property, without attributing economic importance to them and without seeing damage to himself in them (for example, collecting berries, brushwood, using water, swimming in the river, etc.). Such actions, when performed, so to speak, in the sight of the owner or with his knowledge, and are tolerated by him, may depend not on his direct permission, but on indifference or tolerance on his part: the French law calls them acts tolerant (actes de tolérance) and decrees that such tolerance cannot confer any positive rights of action on the one who uses it, no matter how long such use continues. There is no and cannot be a right, there cannot be ownership and, therefore, prescription. On the same basis, in another place of the French Code, Article 691 stipulates that irregular and non-permanent easements cannot in any way turn into the right to enter into someone else's property after the lapse of prescription. Only permanent easements, actions constantly performed on someone else's property, are subject to limitation. No matter how many years I come to a neighboring dacha to draw water from a well, collect ears of corn in someone else’s field, drive my cattle to a pasture or watering hole, I cannot acquire the right to do so by any statute of limitations; all of these will be so-called acts of simple tolérance on the part of the owner of the dacha, all of these are not actions of the kind that would impose someone else’s hand, or would extend a certain right to participate in the benefits of someone else’s dacha. But if, for example, a neighbor cuts a window into someone else’s dacha, attaches it to someone else’s wall, draws a ditch through someone else’s field, these are already actions of a completely different kind, definite actions, constant use and constant participation in the belongings of someone else’s patrimonial right. Here, the tolerance of the dacha owner acquires over time the meaning of a duty, an easement (serv. conti-nue), and can lead to the formation of a right through prescription. The statute of limitations under French law is twofold – major and minor. It is said about a long period (Article 2262): all claims, both real and personal, are extinguished within 30 years: anyone who wants to take advantage of this limitation period is not obliged to show the basis of his right (un titre), and he cannot be objected to based on his bad faith. There is, however, a difference between real and personal claims regarding prescription: the latter are extinguished only by the passage of time, and in the former, in addition, it is necessary that the acquiring party has actual possession, although it is not based on anything and does not have the properties of bona fide possession. Another limitation period for immovable property is short: ten years when the plaintiff owner resides and the immovable estate is within the jurisdiction of one judicial chamber, and twenty years when the plaintiff owner resides outside these limits (Article 2265). To apply this period to possession, special conditions are necessary: ​​that the possession be in good faith, at least at the beginning. In this respect, French law, with the publication of the code, adheres to the Roman rule "mala fides superveniens non nocet." In connection with this quality there is another condition: possession, when it is in good faith, must have a legal basis (juste titre). With regard to movable things, French law does not essentially recognize prescription, for with regard to movable things the rule of law (Article 2279) is this: possession in itself replaces any basis. Therefore, possession does not require proof, does not need to be justified by title (possession vaut titre). It follows from this that an action for movables in illegal possession is, in principle, not permitted by French law, and the acquisition of a real right to movables does not require any prescription; the acquisition is accomplished, one might say, instantly, by the very fact that possession has begun. However, here too, an indispensable condition is that the ownership of movable property begins in good faith and is independent, without any personal obligation and consciousness of someone else’s property. But, firstly, this rule, according to the interpretation of the French doctrine, applies only to movable things that have physical existence and physical individuality (meubles corporels et individuels), and does not apply to the rights classified as movable (meubles incorporels, créances, rentes, etc.), and movables that have an ideal, collective unity (universalités de meubles corporels et incorporels); for here possession can and, by law, must be justified by title; secondly, from this rule, in any case, things that are stolen or lost are excluded: the owner has the right to demand such a thing from anyone, no matter in whose hands it is, for a period of three years. Therefore, the general rule of prescription applies to the possession of movables only in those cases that do not fit the general rule of Art. 2279. about movables. Such, for example, is a case of adverse possession asserted only 30 years ago. The concept of prescription has not yet been fully developed by science: this reason should most likely be attributed to the diversity that is found in the provisions of different legislations regarding prescription, due to the variety of views on this subject among the editors of the law. The requirements of the law regarding title and bona fides 265 are especially varied. The statute of limitations is also very varied: Prussian law provides for periods of 30, 40 years, 44 years, 50 years; in Austrian - 3, 6, 30, 40 years. In the latter, the 3-year prescription extends to the possession approved by the acquisition, which is recorded in the land registers. § 25. Regulations of the Russian law on the limitation of possession. What possession and under what conditions is subject to limitation. The meaning of title or basis of ownership. Under what conditions can state-owned lands owned by state peasants be subject to statute of limitations? Is a right established by prescription, the acquisition of which by general law is prohibited to the owner? In Russian legislation, the concept of prescription did not appear for a long time in the sense in which it was formed in Roman law, i.e. as usucapio, as the strengthening of possession, which has a special legal character. Russian law knew only the statute of limitations extinguishing the right to claim: in this, and not in any other form, we established a general statute of limitations by the decree of 1785. At that time, only the legislation of Western Russia - the Lithuanian statute - knew the concept of prescription in relation to possession, and the provisions of the Lithuanian statute, not always correctly adopted, were reflected here and there randomly and fragmentarily in Russian decrees relating to this subject. Only with the publication of the code of laws did it appear in it direct articles on possession subject to limitation (557–560, 563–567 Art. Civil Code) separately from articles on procedural limitation extinguishing the right to claim. That is why the doctrine of prescription and of possession subject to prescription, not having firm roots in our history and in judicial practice, remains to this day undeveloped and does not have a coherent form: and for development, new concepts about the legal conditions of ownership, such as: about title, bona fides, etc., still have to be introduced into it from foreign soil. But it is still possible to doubt whether such a restructuring of the statute of limitations would be timely today and how consistent it would be with the current economic state of our possessions. Regulations of the Russian law on limitation. Quiet, undisputed and uninterrupted possession in the form of property becomes a right of ownership when it continues during the statutory prescription (533). I analyze this concept of our statute of limitations. Possession in the form of property. This means, firstly, that there must be not a simple, random retention of a thing, but possession of it, directing one’s will towards it. A friend of mine, staying at my house, forgot a gold watch in a hidden drawer in my desk; Since then they have been lying there for 10 years, and I did not know about them. After 10 years I don't own any of them because I didn't own them at all. Secondly, ownership must be independent, independent, based on itself, having an integral type of property. I must own in my own name, and not in someone else’s, I must not recognize over myself any higher right from which my ownership would flow, on which my ownership would depend; in a word, I must own a thing as the owner owns it. This means that I must have a basis for my possession. It has already been said that the basis is assumed until a dispute is declared. Our statute of limitations does not require possession of all those properties that are required by other laws. With us, both bad faith possession and possession acquired outside of any legal means can turn into ownership through prescription if it continued calmly and uninterruptedly in the form of ownership. Foundation – justus titulus – not required; if there is a legal title that serves as the basis of ownership, then no prescription is needed. If there is an incomplete title that later turns out to be illegal, for example, an estate was purchased that was someone else’s from the seller, then here it is not this title that serves as the basis for prescription, but possession in the form of property. The title itself does not give character to the ownership. If a person owns by title, but the title indicates some basis of ownership depending on someone else's right of ownership, then the conversion of possession into property by prescription cannot take place. This will be possession under a condition, not independent, but subordinate or subject to rent, service. This is the possession of a renter, a tenant, a quitrent. No matter how long a person owns on this basis, his possession cannot turn into ownership, because there is not and could not be a consciousness of possession in the form of property. As a result, the law says: just as one use does not constitute the basis for the right of ownership, then all those who are given state lands for use on certain conditions or for a certain use cannot acquire into their ownership by right of prescription the state lands in their use, no matter how long this use lasts (560). Wed. Cass. decide 1872, No. 261. On this basis, for example, military and yurt lands of the Don Cossack Army cannot be acquired by prescription by persons both belonging and not belonging to the army (cash. decision 1894, No. 54). Here, therefore, the basis of ownership, which directly points to the essence of a temporary, dependent right, prevents the acquisition of property rights. But if this basis changes, if it disappears, if in the same thing dependent ownership in someone else’s name is replaced by independent ownership in one’s own name - and acquisition due to prescription becomes possible. I leased the land for 12 years. So, therefore, my right of ownership was established for 12 years, depending on the right of ownership. The contract lasts for 12 years, during all this time I own nothing other than by contract, and even though for all 12 years the owner of the land did not demand quitrent from me, even if my possession was completely free of charge, I cannot turn from a temporary owner or user into an owner. But 12 years have passed, the contract has expired - I continue to own in my own name, having renounced any dependence on the owner; there is no visible action on his part by which he would claim his right. Here, therefore, the basis of my possession changes, and if such a calm state continues for 10 years, I can oppose my possession to the claim for property: my possession will enter into the power of a serf. The use, even indefinitely, of state-owned land, granted to one or another person, and in the event of non-payment of the quitrent (if one has been established), no matter how long it lasts, even if the users imagine themselves to be independent owners, cannot bring them property rights (cf. Cass. decisions of 1874, No. 146; 1872, No. 1059). But let’s assume that such a user sold state-owned land to a third party. For the new owner, the basis of ownership immediately changes, he already owns it in his own name, and, therefore, after 10 years, such quiet possession can turn into his right of ownership. Or let us assume that the user has performed such an act or a whole series of actions regarding the land that show him to be the full owner, declaring his consciousness of a patrimonial right to the land, and this consciousness, declared in an open action, continuing uninterruptedly, undisturbed by the contradictory consciousness of the owner himself about the dependence of his possession, remained undisturbed by the treasury: under such conditions, his possession can receive the appearance and force of a patrimonial one. In this case, this will no longer be one use, which is mentioned in Art. 560. I part X t., and independent possession. Thus, title - the basis of possession - is not necessary in order to give possession the quality of possession subject to prescription (cf. Cass. decision 1869, N 854). But in many cases it is important as proof that possession was in the form of property, and in order to determine the moment from which such possession begins, and from which, therefore, the prescription of possession by right of ownership should be calculated. In the previous examples, it was said about the temporary user whether he can turn his use into ownership. To do this, he must first transform his right of use into ownership in the form of property. How to do this? How and with what to prove that it was precisely this kind of ownership in the form and spirit of the owner that began and continued for him? This must be proven by such actions that can only belong to such an owner, which are associated only with patrimonial right, for example, defending the estate in court in one’s own name, acts of patrimonial disposition, issuing an independent power of attorney for management, etc. 266 The title in this case does not serve as unconditional evidence, but as reinforcement of the evidence; it arouses the assumption of awareness of the patrimonial right by the owner himself and by strangers. So, for example, the sale record, according to which patrimonial ownership began, even if in itself it turned out to be illegal, serves as an indication that the ownership, according to it, began, was considered patrimonial, independent. Wed. Cass. decide 1879, N 130. In the Baltic provinces, in order to convert possession into property by prescription, the following is required: legal basis, good undoubted faith, continuously maintained throughout the entire period (bona fides continua), continuity and tranquility of ownership. The statute of limitations is special for movable things (1 year and 3 years, depending on the difference in local rights) and for immovable things (6 and 10 years). In addition, according to the laws of the Baltic region, immemorial possession is recognized as a sign of legal acquisition, unless the object is such that alienation is not unconditionally prohibited and allows immemorial possession by its nature. But if it is possible to prove the beginning of such possession, and, moreover, an illegal beginning, then its immemoriality loses all force. St. Baltic. Gr. Zak., 700–706, 819–858 on Cont. 1890, 860, 861; according to Cont. 1890, 862–866. 1891 No. 80. – Moravsky filed a claim against the society of peasants of the village of Lavrovka for the right of ownership of the land owned by the society adjacent to his allotment from the land of the Lavrovka estate. This claim was rejected by the judicial chamber on the grounds that the defendants took possession of the disputed land by right of ownership during the statute of limitations, according to Civil. Cass. Dep. explained that until the complete cessation of the peasants’ relationship with their former landowner, which stemmed from serfdom, there can be no talk of the peasants owning the landowner’s land on the right of ownership, and without this condition, possession by prescription cannot take place as a method of acquisition (Article 560, Vol. X, Part 1), as a result of which former serfs become legally capable of acquiring the land of their former landowner only from the time they receive the land allocated to them from the landowner’s estate, when They, having become the full owners of this land, at the same time become outsiders, in relation to the ownership of it, for the landowner. § 26. What do we mean by quiet, undisputed, continuous possession? Quiet possession is interrupted by the loss of possession, voluntary and involuntary - by the actions of the owner, contrary to the consciousness of the right - by a claim and a dispute. Can the break come back? Action break Possession must be calm, undisputed and continuous. The awareness of our legislation on the properties of quiet possession is not nearly as developed as the awareness of the Roman and all Western legislation based on Rome. It requires that possession be neither violent nor secret; A possession that is acquired by force or maintained through force is not considered calm, so if possession is continuously violated by violent actions on the part of the owner, who wants to restore his possession by force, and repelled by force, then it cannot be called calm. With us, peace, of course, is not in the sense of factual, but in the sense of legal peace, i.e. possession must not be in dispute, nor must it be disturbed by the legal action of the person entitled. Our law does not mention the forcible acquisition of property. He does not care how possession of the property is acquired, as long as it begins and continues as possession, having the appearance of ownership. What interrupts calm possession? It is interrupted. 1) Loss of possession itself. This loss can be: or voluntary, when the owner himself leaves his possession. This, of course, must be proven: the owner’s will to leave his possession must be expressed in some action, and in this case, in order for prescription to begin again, this possession must also begin again, but then the time of the previous possession is not taken into account, it disappears. Or involuntary. The owner can be forced out of his possession either by the person who considers himself the owner of the property, or by an outsider. In this case, the displaced owner has the right to defend himself and can ask the police to restore possession within 10 weeks (according to the new charter, 6 months). If he did this on time and was restored beyond dispute, then his previous possession is not considered interrupted, as long as there is no dispute. If he missed the deadline and started the case in court, then here he is considered to have already lost possession, his possession is interrupted, and he is obliged to provide proof of his right to restore possession. In this case, it makes no difference whether the owner is ousted by the owner or by an outsider. 2) Possession in the form of property is interrupted by such actions of the owner himself, by which he directly or indirectly recognizes for another person the right of ownership of the estate he owns. This is, for example, a letter in which he asks for a deferment in the payment of rent, or payment of rent for land, or the awareness that the thing is pledged to him or given to him for safekeeping, etc., therefore it is not his own, but someone else’s (see Cass. decision 1879, No. 358). All such actions can be opposed to the right of owner on the part of the owner to prove that possession did not continue under the right of ownership all the time (Gr.Z., Art. 567). Possession is not considered to have begun if the previous owner can prove by deeds that at that very time he was still managing and disposing of that property as his own (cf. Art. 1242) 267 . 3) Interrupted by a dispute or claim brought against the owner. In this case, ownership becomes controversial (Gr. Z., 558). According to our law, the claims of third parties to property only make ownership moot when not only appearance, but also writ petitions have been received in court (559). Therefore, according to our laws, filing a petition (even if in an indisputable manner - Cass. decision 1876, No. 156) in itself interrupts already quiet possession (and this does not require the beginning of litiscontestation, from the minute when the petition was announced to the enemy). A claim in which a default judgment was made, which became invalid due to the fact that the plaintiff did not ask for its execution for 3 years, is not considered a period of limitation (735 Art. of the Constitution of the Court. Gr.). Question: Can this defect in possession be corrected and the break be declared of no effect and possession become continuous again? It may, for example, if the request turned out to be informal and was returned with an inscription or was subsequently declared invalid; if the plaintiff leaves the claim voluntarily; if he loses the right to claim after the expiration of the procedural period; if, by a court decision, the plaintiff is not recognized as the owner of the property, then in relation to the true owner, ownership should be considered uninterrupted. 1875, N 999. at the moment of taking possession, the person who is put into possession is actually transferred to the property and, therefore, this judicial action interrupts the actual possession of the previous owner; if, despite such transfer, the actual owner of the property, who did not declare a dispute when introducing a dispute, does not cease his possession, then such action constitutes self-government, the elimination of which the person placed in possession has the right to apply to amicable settlements, if 6 months have not passed from the date of entry. But, of course, the entry into possession of an immovable estate as a whole does not serve as undoubted evidence of the transfer into possession of the acquirer of each plot located within the boundaries of this estate, so that, despite the entry, the actual possession of an outsider of a certain plot lying within the boundaries of the estate may continue as before, in the event, obviously, if this plot is not specifically mentioned in the introductory sheet. 1875, No. 970. The sending by the previous court of a decree on the execution of its determination, as an action prescribed by the law itself and not requiring a special petition from the parties, cannot be recognized as an accidental action that did not interrupt the course of limitation and has no influence on the calculation of it. According to the meaning of Art. 224. X vol. 2 parts ed. 1857 (corresponding to Art. 694, approx., appendix: Art. 6 of the Law. Civil., ed. 1887) in the case of sending a decree on the execution of a court decision, the beginning of the zemstvo prescription, which destroys the force of this decision, is calculated not from the time the decision was made and not even from the time the decree was sent, but from the time the decree was received in the public office whose duties were the execution solutions. 1872, No. 1238. The owner, having missed the deadline for filing a claim for the restoration of violated possession, until his rights are restored through judicial procedure, cannot dispose of his land as an owner. If the owner begins a lawsuit to recognize such orders of the owner as illegal, then the owner’s response to this lawsuit does not interrupt the plaintiff’s possession, and for such a break the owner is obliged to initiate an independent lawsuit. Break action. As a result of the interruption, all previous time of quiet possession is excluded from prescription, the previous possession is deprived of any significance in relation to prescription; but upon the cessation of the obstacle, the owner, despite the interruption, can still resume his quiet possession in the form of property, only it begins for him again, there will be a new possession. § 27. Is explicit, unclosed possession necessary for prescription? Does prescription apply in the case of joint, common ownership? In what cases is the limitation period suspended? Transfer of ownership to successor These are the general properties of ownership, which can turn into ownership, according to Russian laws. But apart from these properties which the law expressly mentions, there are those properties in the absence of which no sound practice can apply the law of possession, although the law does not expressly mention these properties. It is these necessary properties that must be brought to consciousness. It is impossible, for example, not to recognize that ownership must be open. This does not mean that ownership must necessarily be known to the owner who has the right to dispute. To assume that in such only a case the owner is deprived, with the expiration of 10 years, of the right to refute someone else’s ownership of property when he knew about this ownership would be unfair, for everyone should know his right of ownership, and it should seem to every owner a direct violation of his rights when he sees that without his will, his possession, use and disposal were separated from his right of ownership of the property. Therefore, it is impossible to apply to prescription the general rule relating to procedural deadlines, that the period is calculated from the time when the event subject to appeal or initiating action became known, announced, or is supposed to be announced. It is not in this sense that ownership should be open. This means that possession should not be done in secret, not with the deliberate concealment of all signs, but clearly in front of everyone. Further: it is impossible not to admit that possession then can only be perfect and lead to the acquisition of property rights when it was known possession; when there could be a clear consciousness of this possession and of the object to which it extends. In order for possession to turn into property rights, it must extend to an individually defined object, limited by a fixed line in space. If there is no such limitation, such certainty, then possession, although possible in itself, is impossible to imagine in this case the complete identity of consciousness of the person who owns and the person who has lost possession regarding the very subject of the right. There is no reason to assign to a person the right of ownership by possession when he himself is not aware of where in the place his possession in the form of property begins, where it extends, and where it ends. That is why it is impossible to talk at all about prescription in interstitial possession, when none of the accomplices in this possession knows definitively what he owns. He owns time in one place, next year, perhaps, he will own it in another, and when they are separated, God knows in which place ownership will be separated for him. So, in general, if one of the co-owners seized this year part of such lands in a common inter-strip dacha that another owned in previous years, then no matter how many years such ownership lasts, it cannot give him ownership rights to the seized strips of land. Here only the right to ownership, the right to be the owner of a certain dacha, can be sanctified by prescription; for example, if it turned out that the owner, who did not present fortresses during a special survey, was named on the general survey plan and owned uninhabited land for more than 10 years, then his right to participate in the common ownership is affirmed (Zak. Mezh., ed. 1893, art. 950, note 1). in claims of patrimonial property or about the right of ownership of property, the plaintiff can be blamed for his silence about his right only from the time when the defendant’s possession of the property arose (even if before that time the plaintiff did not use or dispose of his property); for only the possession of someone else's property serves in this case as a violation of the rights of the owner. Therefore, a patrimonial claim for land that is in the cash possession of the treasury cannot be rejected by statute of limitations only because the plaintiff cannot certify his possession or disposal of the property 10 years before the start of the claim - if the treasury itself (the state, by right to be ownerless) did not have this property in its possession 10 years before the start of the claim. Therefore, when the owner of the movable lost or forgot it in a remote place, and the thing remained there in oblivion for more than 10 years without being taken into possession by anyone, there is no reason to eliminate the claim due to the expiration of the statute of limitations. In this case, prescription begins for the owner only from the norm when the thing came into someone else's possession. Moreover, the effect of prescription is always assumed in relation to another right, exclusively existing, exclusively appropriated by another person to the same property. The question of prescription of possession (in the sense of civil law) does not arise when ownership is not subject to dispute, when no one’s exclusive civil patrimonial right to the same property is against it. The owner owns it in his own name as the exclusive owner: the plaintiff is the person claiming to be the exclusive owner of the same property. The rights in this case are incompatible: either one or the other must be recognized as a single, exclusive patrimonial right. In this case, limitation may apply to the defendant's possession. But when both the plaintiff and the defendant are both owners of the same property, and the right of each of them is essentially the same, indivisible, then there can be no talk of applying separately to one, in relation to the other, prescription of possession and the properties and accessories of it, which are inextricably linked with the essence of the possession itself. therefore, for example, prescription cannot confirm the right or establish the obligation of one of the co-participants in common ownership, in relation to the other co-participants, to remain in common and inseparable possession with them, when the right to demand division or allotment is connected to the essence of common ownership. On the effect of prescription on joint ownership of common undivided property, see Cass. decide 1869, N 906. Separate ownership of a part of the whole can turn into property when this part has a special economic integrity and allows for a certain ownership. So, for example, it is allowed for one person to separately own a cellar under a shop belonging to another person, possession by right, subject to prescription (cf. Cass. decision 1869, No. 10). Here, in the circle of trading interests and relationships, the cellar can have special economic significance, as a special trading property. It is much more difficult to allow separate ownership of the cellar under the house, to which it belongs as an inseparable part of the real estate fund and as an economic accessory to the whole. It is even more difficult to allow separate ownership of one room in a house, in a number of other rooms. 1873, N 1299. The Trial Chamber found that on the basis of Art. 1242. X t. 1 h. the statute of limitations of non-use or non-possession by one of the co-participants of the common estate cannot deprive him of ownership rights to the part of the estate belonging to him; Such an unconditional withdrawal of the claim for the return to possession of a part in the common estate from the validity of the statutory limitation period for filing claims in general, the Senate could not recognize as agreeing with the exact meaning of Article 1242, from the content of which it is clear that the law provides for cases in which the right of ownership and a partner in the common estate can be lost by failure to file a claim about it during the zemstvo limitation, and at the same time establishes in this article the time from which the calculation should begin specified period. 1877, No. 56. The law that followed on October 20, 1859, included in the note to Art. 1242. X vol., 1 part (according to Cont. 1863; corresponding to Art. 694, note, appendix: Art. 1, note 3, Zak. Gr., ed. 1887), it was decided that in the provinces and districts of the Transcaucasian Territory, formed within the boundaries of the former Georgia, Imereti and Guria, on affairs between members of the same family about In the search for shares following them from a common estate or inheritance that is legally undivided between them, zemstvo prescription does not apply. This law extends its effect to all residents of the above-mentioned provinces and districts, both natives and natives of other areas of the Russian Empire who settled in the Transcaucasian region. 1873, N 1724. Within the meaning of Articles 533 and 560. X v. 1, in order to strengthen the ownership right of a long-standing owner of an estate, there is no need for it to be proven that he was aware of the indisputability of this right, but it is only necessary that the basis on which ownership occurs does not exclude the concept of ownership by right of ownership. Regarding the village of Kutafina (Cass. Resolution 1872, No. 232), the question arose: has the society of state peasants lost the right to find their land, acquired by the society as their property, because for more than 10 years that land was not in free use by the society, but from the payment of quitrent, which was imposed by order of the cadastral commission? The Senate decided that the government department, for this reason, i.e. because they received too much rent from that land for 10 years, they could not acquire it as full property, and the peasants, having that land in their possession, use and disposal, did not lose this right; They also did not lose the right to claim about this land, since from the time it was taxed, they did not stop bringing complaints, first through the administrative procedure, in their department, and then in court. A similar decision on the same issue, November 10, 1871 in the village of Chervlenovskaya volost. The action of prescription of possession is committed against all owners or those entitled, without distinguishing those who are absent from those present, those who know from those who do not know. Neither absence nor ignorance suspends, on the one hand, the acquisition of possession, and on the other hand, does not serve as an excuse for missing the deadline for finding the right. In a general sense, the law does not mention that the limitation period should be suspended due to the physical or legal impossibility of acting on the part of the person entitled. Thus, for example, a person who was seriously ill and was in prison cannot demand that the entire period of such condition be excluded from the calculation of limitation. If the owner has died and the heir has not appeared for a long time or has not been confirmed in the rights of inheritance for a long time, then the heir cannot demand the exclusion of this long period of time. These, in our opinion, are general considerations on this important subject. But it is natural that legislation, more or less favorable to limitation, can more or less moderate the severity of this view, establishing in special cases special conditions for calculating the limitation period. Of particular importance here is the case when, during ownership, the property right that belonged to a third party passes to another upon his death. Regarding the successor, the question may arise: should he not be subject to limitation only from the time he learned about the opened inheritance, or whether the opening of the inheritance was announced according to an established procedure. In our country, due to our economic conditions, which make communications and announcements of any kind extremely difficult, this question is of particular importance. More specifically, it is presented in this form: in case of failure to publish the opening of the inheritance, does the heir have the right to dissuade the limitation period from presenting his inheritance rights? The State Council, discussing the limitation in 1845, left this issue unresolved, however, the wording of Art. 1242. 1 part X t., derived from this plural. State council, states: “partners in the inheritance of a common estate lose their rights only when they do not present them within 10 years from the date of the public summons, if such was made, considering the last seal in the statements to begin the period.” This rule, however, does not provide a positive solution to our question. it should be concluded that the beginning of limitation is considered in this case from the seal of the call, but hardly unconditionally. The summons here only serves as proof that the applicant had a legal opportunity to know about the opening of the inheritance. But if it turned out in fact that even without the removal, the applicant actually knew about the opening of the inheritance (for example, that he was at the death of the previous patrimonial owner), and even more so that he knew to whom the hereditary estate had passed into possession, it would hardly be fair, contrary to the obvious, to justify his omission with the fact that a formal call to the heirs was not made (cf. 1242 art. paragraph 3 of the Civil Code). There are, however, conditions during which, as a special exception, the statute of limitations is suspended for the person who had to act. This is the state of minors, the insane, the deaf and dumb (in the special case of marching people during the war). The flow of prescription here is not interrupted, as in the previous case, but is suspended. During a break, the previous possession time disappears and becomes useless; and the one who continues the possession has to make a new beginning for that possession, which is capable of turning into ownership, i.e. quiet, undisputed and uninterrupted possession of property. On the contrary, here there comes only an intermediate time, during which prescription stops, but after this time the operation of the same possession that lasted before the onset of this intermediate period is resumed, so that the time of the previous possession does not disappear, but is added to the new one. Example. I have owned the land since January 1, 1830. The owner remains silent until 1837. In 1837, on January 1, he died, leaving his son in the 1st year. on the day of his death there were exactly three years left before the statute of limitations expired. Here, for the entire duration of the son’s minority, the passage of time stops. The son will be 21 years old in 1857. Let us assume that he died before reaching adulthood in 1856; the inheritance goes to his nephew, 10 years old. Stop again. This new heir will be 21 years old in 1867. During all this time, my possession could not strengthen my right of ownership; but the previous time of my ownership until 1837 remains with me inviolably and in full force and effect. With the onset of majority of the last heir, i.e. from 1867 the period of prescription begins again. I could have owned it for another three years the same way I owned it for the previous 7 years, and the right would be mine in 1870. But suddenly in 1869 the heir filed a dispute - and everything died; the course of prescription has already been interrupted here, and in order to acquire property, there is no need to begin again, if possible, calm, undisputed and uninterrupted possession in the form of property. Here we touch upon the issue of the transfer of prescription together with the transfer of patrimonial rights, through succession. Our law (Gr., 566) says: the heir or successor of the rights of a patrimonial estate, who has not sued for the property belonging to him for less than 10 years, should have as much time left to begin a claim as was left on the day of the death of his predecessor or on the day the property transferred to him. The same must be said about the transfer of ownership, which is associated with acquisition by prescription. In this last respect, the law does not distinguish a single transition from a general one, a transition of rights from a transition of a set of rights or inheritance. But one cannot fail to notice some necessary difference between one and the other successor, regarding the duration of possession. If I die and my estate passes to my heir, then he is my successor. If I transfer property to another through a deed, sale, gift, etc., he is also my successor, the successor of my property. But the succession of possession relative to prescription is not the same in both cases. In the first case, with inheritance, the heir fully represents the person of the deceased, and the right passes to the heir exactly to the same extent as the deceased had. This is not a new right, but exactly the same as it was before. Therefore, the property of the successor does not receive a new form, but passes to the successor without changing, with the same qualities and shortcomings, and if the deceased was not able to turn it into property, then the heir remains the same. He inherits in all the rights of the deceased in respect of the estate, and therefore also in the right arising from prescription of possession. The predecessor had a property that could fall under prescription, and the successor will have it too; This one didn’t have it, and this one won’t have it. He inherits not only the thing, but also the former possession of the thing, with all its qualities and vices. But in the latter case, the personality of the successor does not serve as a continuation of the personality of the predecessor, and he may have a completely new possession, he may, at the moment of transition, begin it with a completely different property, so that the predecessor’s possession may have been incapable of turning into ownership, but the successor’s becomes capable. Let's explain with an example. I am the owner of quitrent land, which belongs by right of ownership to another. My right is dependent, my possession is not independent, not in the form of property. Consequently, no matter how much I own on this basis, in the consciousness of my quitrent right, I cannot acquire ownership of the property owned. I'm dying. I pass on to my heir no more and no less than the same amount as I had. Only quitrent, dependent right passes to him, therefore it is just as incapable of turning into property right for him as it was for me. But let’s imagine that this property is not the right to ownership, but the thing itself, the land that I own by dependent right, I give or sell to a stranger by deed. With this transition, the property of my successor suddenly changes. He already owns on a different basis, and not on the one on which I owned. He already owns it in the form of freehold property. This is already possession, capable of turning into ownership if it continues for 10 years calmly, continuously and indisputably. Cass. decide 1880, No. 41. The Chamber rightly recognized it as impossible to apply succession of rights by prescription to the actual ownership of property of two persons who are not in any legal relationship with each other regarding this property. Wed. Cash.dec. 1881, N 154. § 28. Is such a right established by prescription, the acquisition of which by general law is prohibited to the owner? Can such a right arise and achieve recognition, by virtue of prescription of possession, the acquisition of which by general law was not allowed or was prohibited to the person who had the possession? The concept of legality and invalidity of illegal is not the same. There are purely civil rights, rights that constitute an accessory to one or another legal relationship: they contain the direct interest of a private person and, in the event of a violation, are protected by state power only as a result of a claim or complaint. In relation to these rights, the concepts of prohibition and invalidity are conditional: an action is illegal, i.e. what is prohibited may be declared invalid if an interested person who has the right of action, in due course uses it and files a claim; prove the basis of his right and certify its violation before the court. Illegal actions and conditions of this kind are completely subject to statute of limitations and can be covered by it and protected from prosecution, since, on the other hand, the right of action to recognize this illegality is completely subject to the action of statute of limitations. But there are another kind of rights, another kind of legal prohibitions, which have not only civil, but, especially, state significance - unconditional rights and prohibitions. There are states and actions that the law unconditionally denies, and to which it does not give recognition and protection in any case. Such conditions and actions do not qualify under the statute of limitations. In addition, every right to property is connected with the person who owns or has it, and without a person neither the acquisition nor the maintenance of property is conceivable. In order for a right to be formed, it is necessary that the subject of it, the person possessing it, be legally capable of owning property, and not only abstractly, but in this case be capable of owning certain property. Outside of this quality, there may be possession as a certain actual state, but the right cannot be recognized: every power crumbles as soon as there is no sovereign capable of holding it. These questions about a person’s personal ability to acquire rights, in any litigation over property, belong to the so-called preliminary or initial questions (quest. préjudicielles), the solution of which precedes the remaining issues of the case. These, by the way, are questions about a person’s status (status), and about the rights associated with belonging to one or another status in the state. These rights are of an unconditional, state nature and nowhere like we have them in Russia. Therefore, when belonging to one or another class is connected by law with a restriction in the rights to own one or another property, the acquisition of the right to property in a person who, by law, is not capable of this acquisition, becomes unthinkable from a legal point of view, because the state power cannot recognize such a right; and this kind of illegal possession, no matter how long it lasts, cannot turn into a right of ownership for one who, due to his condition, is not capable of holding property as an owner. For example: until 1801, our law did not allow the majority of villagers to own land in the district in their own name. Consequently, such ownership, no matter how long it lasted, could not assign ownership of land to a person in whose person the law certainly denied the possibility of land ownership. Until 1848, serfs and peasants were not allowed unconditionally, and until 1861 they were not allowed, without the written permission of the landowners, to own real estate by right of ownership. Therefore, until that time, the serf’s possession of real estate, regardless of the landowner, no matter how long it lasted, could not give him property rights, which the law in this case unconditionally denied. Serfs had immovable estates, purchased with their own money, but in the name of the landowner, and the peasant could actually own such an estate for himself, but such ownership had no legal significance. He himself did not personally exercise the right of action and defense on such an estate; and his possession, no matter how long it lasted and no matter how exclusive, could not secure for him the right of the owner either against a third party or against the landowner, to whom the estate was listed according to the deeds. Monks are absolutely prohibited from acquiring real estate by any means. Therefore, the monk’s possession of real estate does not strengthen his property rights by any prescription. In the above examples, the relationship is simple, because belonging to a certain class is directly connected with the legal inability to own a certain type of property. This relationship becomes more complicated in the following case. In the last century, our odnodvortsy, sitting on state or state land, at the same time retained and could acquire lands owned by patrimonial right, i.e. on the right of ownership. Until recently, state peasants of various denominations were also provided with land allotments from the state, which consisted of either personal plot or communal ownership; but, in addition, they could have privately owned lands, acquired by transfer or inheritance. Regarding lands of the first type, the effect of limitation was eliminated by law unconditionally, and Art. 560 is given above. Zach. Gr., by virtue of which state-owned lands given for use cannot be acquired into ownership through prescription. Therefore, in doubtful cases, when the question arises about the patrimonial right of a state peasant to land that he owned exclusively for a long time, it is necessary first of all to determine what kind of land it is - state, local or privately owned, and how the owner began to own this land. If it is his state property and constitutes an allotment from the treasury, then it could not in any way become his property, even if his ownership was his own, even without payment of quitrent, and lasted for several decades, and even if it came to him from his ancestors who used the same allotment; for as a state peasant he could not establish his property in this land. If he had bought such land or received it as a gift from a state peasant, in this case the application of Article 560 is questioned. The seller acted illegally by selling land that he could not consider his own, government land given as an allotment; but a conscientious buyer of such land, if the deed of sale was not at one time challenged by the treasury, is in different conditions. Although he, too, is a state peasant, and bought land allotted to another state peasant, this land was never given to him, the buyer, from the treasury for use, and his possession, based on a special title, hardly fits the condition of Article 560, which excludes the effect of prescription. § 29. General notes on limitation in connection with possession. Division of prescription into acquisitive and extinguishing. Criticism of this division. German prescription Prescription requires special conditions for application to possession: it is necessary that the possession has certain positive properties and does not have known negative properties that exclude the application of prescription. This prescription occurs only where there is possession, and our concept of possession cannot be generalized, extending it to any legal state, for example, to the use of rights under obligations, to qualified possession, which does not have the properties of unconditionality. So, for example, it is completely impossible to talk about the application of prescription to lifelong ownership, to quitrent maintenance of land, to the use of other people's money from interest: to believe that in such cases a certain fortune can turn into a right on the same basis on which patrimonial ownership can turn into a property right with the expiration of prescription would be contrary to the first foundations of legal logic 268 . When we talk about prescription, we should not confuse prescription of possession of property, which transforms possession under certain conditions into the right of ownership, with prescription, which extinguishes all claims for civil rights. Both are not the same concepts. But many are inclined to confuse both, giving the concept of prescription a general, abstract meaning: from this point of view, many divide prescription, as a general institution of civil law, into acquisitive and extinguishing. Apparently, both merge into one concept, for in the first case the right is acquired through continuous use for a certain period; in the latter case, the right is lost through continuous non-use during the period. In both cases, the right, on the one hand, is undoubtedly lost: this leads others to the assumption that in both cases the right is also acquired. On this basis, in both cases, others see the same way of acquiring rights. In fact, both prescriptions have a common basis: every civil right must be known, defined, and associated with a famous person. Not knowing who owns the right is an abnormal state, incompatible with the essence of legal relations. The law cannot allow such uncertainty to continue indefinitely, as a result of which there is a need to establish deadlines after which the right to claim property is lost. That is why prescription is used primarily in the sense of a procedural challenge or objection to a claim, but in itself does not contain a legal basis for either the loss or acquisition of rights: even where continuous possession turns into property, this happens not because a transfer of ownership takes place from one person to another, but because the owner suddenly, with the onset of a certain minute, got the opportunity to prove ownership, whereas until then he had absolutely no evidence, or - more correctly said - got the opportunity to oppose his possession to the plaintiff, representing his right to property. So, if we combine with any statute of limitations the unconditional concept of the acquisition of a right, then we will inevitably fall into error, and we will begin to classify as statute of limitations such cases in which it is impossible to allow possession to turn into a right through time. Thus, one would have to admit that both the right of pledge and the right under an obligation can arise in the same way as the right of ownership arises from possession, and this would be contrary to the common concept of right and possession. Prussian law, for example, falls into this error when it stipulates that a loan obligation can arise as a result of prescription, when the alleged debtor has paid interest to the alleged creditor for 30 years. On the contrary, when, leaving the thought of ownership, we turn to the establishment of a limitation period extinguishing the right of action, we will see that there is no civil right to property that is not subject to the destructive effect of this period. Whoever, having the legal ability and the opportunity to seek the restoration of his violated right, remained silent during the prescribed period, completely loses the right to sue. Civil law here, in essence, does not disappear by itself, but its main nerve disappears, its essential ability to defend itself, to demand unconditional recognition for itself: the opposing party acquires a challenge against a claim based on something in which the statute of limitations has been missed. However, this withdrawal does not always receive unconditional force. Thus, according to Roman law, personal claims were extinguished by the statute of limitations unconditionally, but patrimonial claims were not unconditionally extinguished. Anyone who missed the limitation period lost the right to bring a claim against a person known only to whom he should have sought, and against his legal successors. With respect to a bona fide owner, the owner lost his right unconditionally, because in the person of such an owner and in the properties of his ownership, legal conditions were combined under which it was possible to unconditionally transform ownership into ownership (usucapio). The extinguishment of the right to claim could follow in addition to all these conditions of ownership. The owner could lose the right to sue against an unscrupulous owner (just as a creditor could lose the right to sue against his debtor), but in this case there was still possession in bad faith, which could not in any way gain unconditional force, and therefore the owner was deprived of the right to sue only against this unscrupulous owner and his legal successors; if the property, by any chance, in addition to the legal transfer, came into the possession of a third party, this third party did not have the right to withdraw from his possession the claim of the direct owner by anything other than a new statute of limitations: the owner was not deprived of the right to bring a claim against such a third party. A certain limitation of possession is an institution of Roman law, and in its legal form was transferred to the new legislation from Roman soil, along with other concepts taken from Roman law. Among the newest European peoples, such an institution did not arise independently anywhere. Everywhere the idea of ​​direct ownership was formed by itself, and everywhere prescription was applied to this ownership, but not in a specific legal sense, but in the sense that ownership has long existed, existing from time immemorial, such a state, to which contemporaries cannot remember anything contrary, is sanctified by time, and can serve as its own basis. It is obvious that this concept (from which in Rome the special institution of immemorial possession, in the sphere of public rights, degenerated) is still far removed from the defining institution of prescription - and is hardly even in direct connection with prescription. But regardless of the Roman prescription of possession, everywhere among the new peoples, through custom, their own time limits were formed, which limited the search for property. This, for example, was the well-known German term - a year and a day (Jahr und Tag, Jahr, Sechs Wochen und drei Tagen), which limited claims regarding movable property, and the Saxon term (31 years, 6 weeks and 3 days) for claims regarding real estate. When Roman law was introduced into Germany, the Roman concept of prescription began to be confused indifferently with these terms; and hence arose a confusion of concepts, towards the clarification of which the efforts of learned jurists in Germany have already been directed recently (Unterholzner. Ausführliche Entwickelung der gesammten Verjährungslehre. Savigny. System des heutigen Röm. Rechts. B. IV and V. The latter set out with particular clarity the difference between prescription and extinguishment of a claim; it was followed in the same direction by a whole school of pandectists. In Russia, these ideas are most thoroughly developed in the work of Engelmann: Die Verjährung nach russischem Dorpat. When we have to resolve questions about prescription, insurmountable difficulties arise from an incorrect concept of it. In practice, in such cases they often resort to exaggerations that cannot be justified; for example, they extend to all rights the concept of ownership, which, in the spirit of our law, which does not know the division of property and rights into physical and mental, refers exclusively to cash possession. Applying the concept of ownership to all rights, and from this point of view, applying prescription to ownership is possible only in the general connection of both institutions; for where such possession is accepted, special conditions are imposed for prescription; but if our simple, incomplete and undeveloped institution of prescription is applied to possession not on the right of ownership, then the application will be obviously artificial, inconsistent with the general system of law, and therefore incorrect. A person owns land as an owner, of course, at least he did not have a legal basis for ownership; according to the will, the stranger received the family estate into ownership and has owned it for 15 years calmly and undisputedly as the owner. To such possession it is possible to apply our concept of prescription of possession to acquisition. But here's another case. According to the will, the wife received from her husband a family estate with living children, so that she could neither sell nor mortgage it, and of her own free will she would transfer it after herself to whichever of the children she pleased. After the death of her husband, she owned the estate for 30 years, on the basis of a will, and when she died, she left it to her daughters, not her sons. During her lifetime, her sons remained calm witnesses of her ownership, but after her death they began to argue that she, not being the full owner of the estate, had no right to violate the legal order of inheritance in this estate of sons after her father. In this dispute, the question can be posed in two ways. We often put it this way: the deceased for 30 years had the calm and undisputed right to dispose of the estate according to her will in the event of death; therefore, it has acquired such a right definitively, and in this form, Art. 557 is applied to possession. Zach. Citizen about the prescription. This formulation of the question seems to us completely wrong: the question itself contains a contradiction. Art. 557, together with 560, puts possession in accordance with the right of ownership, with the right that is specifically defined by Article 420. Therefore, the limitation formula according to our citizens. The laws are as follows: 10 years of ownership of property leads to the right of ownership in this property. The above question cannot be contained in this formula; then it would be necessary to admit that the deceased, having owned a special, qualified right to the estate for 10 years, acquired ownership of it: a conclusion that is completely inconsistent with the content of the dispute, in which we are not talking about the unconditional right of ownership of the estate, but about the right to dispose of the estate in the event of death, which was never the full property of the deceased. It is obvious that the contradiction will be insoluble for someone who has prescription in mind as a method of acquiring rights, and, on the contrary, the difficulty will be resolved by itself when the question is posed from a different point. In this case, one must ask: the sons of the deceased, who during her lifetime did not argue against the will, on which she based her right to dispose of the estate arbitrarily, do they retain or have they lost by force of prescription the right to sue for recognition of this will, and therefore the supposed right of the deceased, as illegal? Then a direct path will open to resolving the issue: - it is necessary to determine from what time the right to sue existed open for the sons - and if they have been silent for 10 years since that time, having the legal opportunity to act, then their right to sue will be lost. In wills, we especially often encounter cases of similar misunderstandings when it comes to the rights granted to the testamentary heir and hidden in his fixed-term or lifelong possession to further dispose of the estate or to carry out administrative actions on it; after the death of this heir, a dispute opens regarding the act on which such rights associated with cash ownership were based. Then they begin to ask: did the heir, through long-term possession, acquire the rights that, according to the deed, were associated with this possession, but were hidden in it, did not flow by themselves from the existence of this possession, but were revealed only in the deed? They ask - and, of course, they encounter the greatest difficulties in answering a question that is essentially impossible. But such a question, however, was often decided by court decisions, and moreover, the decisions expressed such a general conclusion that “according to our laws, a right that has not been challenged for more than 10 years is protected by prescription in the same way as actual possession” - the position is correct in the reverse sense, i.e. it is true that there is no right of action for private property that is not extinguished by prescription; there is no alleged or imaginary right that could not enter into force of an unconditional right when a claim against it becomes impossible due to the expiration of limitation (cf. Mn. State Council. 1839 in the case of Borovsky and Chunpalov, 1851 in the case of Count Markov. See also the decision on lifelong possession in 1 book. "Journal of the Min. Justice" 1858, and analysis of it in the “Archive” of Kalachov, book 1. Cf. 1875, N 970). § 30. Possession of rights. Extension of the concept of ownership to all rights under foreign laws Possession is the actual, available dominion of a person over a thing; and therefore ownership is protected in the name of a conservative principle, in the interest of social order, and not in the interest of the law that provides the basis for ownership, i.e. enjoys protection from illegal actual interference and violation, and not from legal, based on the right of property. Although material possession is in connection with a real right, however, the legal defense of possession does not constitute a claim in rem, but is provided in the form of a personal claim based on the personal illegal action of the violator. These concepts of Roman law will forever remain essential, although the Roman form of interdict has long lost its practical significance. But to what objects, to what relationships does the concept of ownership extend, as an actual state enjoying legal protection? In addition to the possession of things, whether there can be ownership of rights - this question has not yet been fully clarified either in theory or in positive legislation. Material ownership is sometimes divided into full and incomplete and limited. The first corresponds to the dominion over a thing by an owner who owns in his own name (in animo domini); incomplete corresponds to limited dominion over a thing. French law applies the concept of ownership to all rights, both real and personal. Austrian law also gives possession a very broad meaning. “All corporeal and conceivable things,” he says, “can serve as the subject of legal circulation (rechtlichen Verkehrs), can also be the subject of ownership,” therefore, all personal claims, all real rights and, finally, the right of ownership itself (Bürg. Gesetzb., Art. 311, 292, 307, 308); Thus, the general formula expressed in the law, in its logical application, is brought to impossible results, for it is hardly possible to understand and admit possession - possession. Prussian law says: whoever holds a thing or right, although as someone else's property, but with the intention of using and enjoying it for himself (für sich selbst zu verfügen), is considered an incomplete owner. A full owner is one who owns a thing or right as his own property; however, an incomplete owner of a thing can be a full owner of the right that he appropriates to the thing (Ldr. I, 7, § 6, 7, 9). This definition, in its vagueness, is unsatisfactory; but the theory of legislation has not yet developed a different definition, although all the latest legislation, to a greater or lesser extent, applies the concept of ownership to rights, and expands, in comparison with Roman law, the range of legal states that enjoy protection from violation by an action for possession. Thus, both the possession of leased hereditary plots and the possession of the pledgee by a manual pledge fit into the ownership formula. (In these cases, there may be two possessions in the same property: one owns the thing as the owner - this is direct, full, independent, subject to prescription. Another owns a thing as a lessee, a user, as a creditor - his possession is derivative, dependent.) The formula also includes the possession of the user (usufructuarius and commodatarius), the possession of a contractual lessee, a hirer, a receiver under a luggage agreement. Do all of these individuals own? Roman law answers this question in the negative; The latest legislation tends to the opposite view, allowing possession, albeit of a different nature, in a state of direct domination over a thing. As a result, such possession, limited within the limits of the dependent and contractual right from which it arises, should in fairness be given, within these limits, the protection that an indefinite and complete possession in one’s own name, patrimonial possession, enjoys. For example, when a third party interferes with the tenant of a house, embarrassment in his calm state, in the quiet use of the rented premises, this violates not the contractual relationship between the owner and the tenant, but the immediate, calm, possessive state of a person in his home. Therefore, the renter enjoys the protection of his wealth for himself, and not as a representative of the rights of the person who owns the rented property. Possession extends, without a doubt, to rights having a patrimonial quality (Realrechte), such as servitudes. To what extent the concept of ownership can be applied to personal rights arising from obligations is a question that has not yet been clarified by science. But there are attempts in science to apply the concept of ownership even to purely personal (status, Zustandsrechte) and family rights: it is possible to imagine the actual state of using such rights, recognized by law in the sense of an existing state. In this sense, one can find - especially in canon law - decrees that give legal significance to such a state in the sphere of family relations (for example, the state of spouses who conscientiously considered themselves in a legal union when it was, in essence, illegal). But it would be completely unfair to apply to such states the general properties of ownership, from the circle of property relations. In the above sense, French law also uses the terms: possession d'état d'un époux; but no one thought to apply the laws of civil ownership to such a state, for example, the right to protect possession - actions possessoires. On this subject see Bluntschli Privatrecht, § 56; this subject is analyzed monographically in the essay: Der Besitz nach österreichischem Rechte, mit Berücksichtigung des gemeinen Rechts, des preussischen, französischen und sächsischen Ges. buchs, v. Dr. Randa. Leipz. 1865. See also about the same article by Arndts in Kritische Vierteljahrschrift für Gesetzg., 1866. § 31. Use. The meaning of this right is part of full ownership. Direct use of a thing and general enjoyment of its benefits. Jus utendi et fruendi. Use is complete and incomplete according to Russian law. Historical restrictions on the right to use in Russia. The relationship between use and ownership. Patrimonial property rights of use. The right to bargain and to income items in the estate. Independent use and its relation to the right to participate in someone else’s property. Does limitation apply to use? Use. Possession is the spiritual agent of property rights; Its material figures are represented by use and disposal. Roman jurists defined the content of property rights by three qualities in which it is materially expressed: jus utendi, jus fruendi and jus abutendi. The first two correspond to our use, the last to our disposal. Jus utendi, and accordingly usus, is the right to use a thing directly for one’s needs, to satisfy needs. Jus fruendi - to collect for one's benefit the fruits and income brought by a thing; jus abutendi - the right to make a decisive and final use of a thing, to dispose of it, to consume it, to recreate and change it, and finally to transfer it to another. I live in my house - jus utendi; I give the house for rent - jus fruendi; I break, I repair, I sell, I give – jus abutendi. The painting hangs in my office - ut.; I show her for money -fr.; I destroy it, I give it away – abut. Connection and separation. The complete connection of use, in all its accessories, with ownership is represented by full ownership. By dividing, use in one and the same thing may belong to different persons. (Garden - I give the right to one to walk in the garden; to another - the right to pick the fruits and use them for their own benefit, sell them; and I keep with me the disposal, which in this case merges with bare property. But at the same time, who is the owner of the garden? I am. Usus in conjunction with jus fruendi - usufructus. Usufruit.) The Russian law does not express the above difference, and there are no corresponding terms. Both merge into the general right of use. This means that Russian law has not created special categories to distinguish between real rights in this regard. But in reality, one right is different from another. When use is combined in one person with possession and disposal, then the difference is imperceptible. This will be direct use, direct use of property rights (Law Civil., 420). But use can be separated from the right of ownership when the owner, while retaining the right of ownership, cedes the use by agreement or other act (521, 535, 560, etc.). In this case, the limits of this use are determined by the act or custom itself. I say by custom, because sometimes the question arises: is usus connected to usufructus, and does the latter not follow from the former? Both can be designated separately or presumptively. I rent a house - usus, but when the tenant takes it in order to rent it from himself, it will be usufructus. The scope of this right is determined by the contract. When use is separate from ownership and from the patrimonial right to property, our law does not set precise limits for it, does not define its essential properties, just as Western legislation defines the properties of usufruct, which represents a special institution organically connected with the system of property rights. However, our law does not prevent us from recognizing that separate use, in its essence, cannot extend to the economic essence of the property, which must remain intact (salva substantia), unless the user is granted rights to this essence, by a special agreement (such, for example, the right to sell timber for felling from an estate given for temporary use). The right to use real estate - from Peter I to Catherine II - was subject to many restrictions in our country. Some were established in the form of regalia, extending to certain lands or lands, others - as a consequence of state supervision of the economy in some of its articles, which, according to the legislator, were of particular national importance. These were: restrictions on the owners' right to search for and develop ore and minerals in their lands, on the right to cut down or use their own forests or trees of certain reserved species at their discretion, on the right to certain reserved crafts from the products of the land. Under Peter, all private fishing grounds were taken into the treasury, and all mills were subject to rent (see Nevol., § 341–347). All restrictions of this kind were destroyed under Empress Catherine II, with the recognition of full ownership of land with all its accessories (Article 424 of the Law. Gr.). Remaining restrictions on ownership rights (see below § 52–54 and 58) do not stem from legal law, but are explained by state or social needs. Traces of legal law were preserved in a few decisions. This is, for example, the right of the crown and treasury to certain minerals (see below § 54). In Crimea, before its annexation to Russia, salt mining was the khan's regalia, and all salt lakes, salt marshes and droughts were the property of the khans. Upon the annexation of Crimea, it was ordered that all the salt lakes there be taken over by the state department: from that time on, all such lakes, even if they were in private dachas, were considered not private, but government property. Subsequently, regarding the claims that arose from private individuals for the right to salt mining in lakes and springs that belonged to their dachas, it was discovered that in the Crimea there are lakes that, according to serfdom, are in the possession of private individuals, and that this right cannot be deprived of them. As a result, V. u. opinion of the State council in 1824 it is necessary to leave in the possession of the treasury those Crimean lakes that came into its possession; to leave in her charge the salt lakes of the Novorossiysk region, which consist of the dachas of state-owned villagers, colonists, Tatars and people in general who do not have landowner rights, as well as those that passed into private ownership through the sale of land from the Tatars who did not have the right to it; on the contrary, all lakes, salt marshes and droughts lying in the lands of serfs, legally acquired, should be given to the full ownership of each of the owners (Ust. Gorn., ed. 1893, art. 617, note 1–3 and many more. State pp. 1867 in the Lyubenkova case). Our law (536) divides use into full and incomplete. Complete, when all works and income belong to the user; incomplete when some of them are not provided to him. For example, I give away a garden and reprimand myself for the fruits of some trees of the same variety. I lease the land and negotiate for myself the right to mine sulfur pyrites or copper ore. The Mining Charter (ed. 1893, Article 1026) mentions the right to use, full and partial, the surface of areas allocated for exploration and processing of rocks. coal in the Donskoy army. The full right of use consists in the right of the miner to use pasture, haymaking and plowing, and the incomplete right - in the use only of pasture and haymaking. On the contrary, use combined with property and possession is always complete. The owner is free to extract from the thing any use that is possible due to the properties of its nature. But since the nature of a thing is not only physical, but also legal, and since its economic significance can be important not only for individuals, but also for the whole society, the law limits in some cases the freedom of use. These limitations were mentioned when describing the general properties of things. Use usually constitutes an attribute of independent possession, depending on the owner, so that in our ordinary language the words I own, I use are used indifferently, and the idea of ​​use is usually connected with the idea of ​​ownership. The law itself often uses the word possession in this sense, meaning use as a necessary attribute of it. But in a strict sense, these concepts are different, and the concept of use is incomparably more limited than the concept of possession. Ownership of immovable inhabited estate, in the past, before the liberation of the peasants, was combined with patrimonial rights over the settled people and, to some extent, with the exclusive right of court and police over these people. With the liberation of the peasants, the landowner, relatively temporarily obligated people remaining in his lands, with a land allotment, was still granted a limited and conditional right to prohibit, consent or intervene in relation to certain land relations (see, for example, local Great Regulations, 100). Upon the liberation of the peasants, and with the transfer of the land allotment to their ownership, the legal peculiarity of the so-called, in the sense of previous laws, inhabited property, inhabited lands should disappear (cf. this book § 13). It is true that the settlement, temporary or permanent, of outsiders on foreign land places the landowner in a special relationship with them, but the legal properties of this relationship are determined exclusively either by the special property of the agreement from which the settlement arose, or by the general legal properties of the neighborhood. Our law (this is how it differs from some foreign rights, for example, German law) does not give the landowner, by virtue of only the quality of the landowner, any police power over the people living on his lands. From a state point of view, others see this as a disadvantage, while others see this as an advantage of our legislation. However, a joint population, in a greater or lesser number of people on foreign land, produces relations that, on the one hand, are constraining for the landowner, on the other hand, advantageous for him in an economic sense. The owner, no doubt, has the right to fence off the estate and fence off his fields, but does not have the right to block the open roads running through his land. Travel and passage are free (cf. § 58), and patrimonial owners cannot charge fees for travel on their land, unless they require structures on it for general convenience (for example, a bridge, a causeway); but even in this case, collection is allowed only at a rate approved by the government. P.S.Z. 1833, N 6587; Est. Put. Commun., 841, 842, by Cont. 1893, and 843 according to the same Cont.; Cass. decide 1874, No. 627. 1877, No. 11. On the other hand, the owner cannot be denied the right to allow or not to allow trades and trades on his land to outsiders. When the owner's land serves as a regular place for trading (trading in shops, at a market or fairground, etc.), trading within certain limits or localities and premises can constitute a special income item of the owner, exclusively assigned to him by patrimonial law or by definition of the law, or by agreement with individual peasants (see special appendix to Volume IX, local Great Regulations, Art. 43 et seq. See also appendix. to approx. 322 art. IX volume). Note. According to the City Regulations of June 11, 1892, it is not allowed to re-establish a fee for travel and access to structures erected at the expense of the city population: only the fees established before the publication of this Regulation are retained (Vol. II, ed. 1892, City Regulations, Art. 135, paragraph 6). But in addition, it can hardly be denied that the owner has the right to prohibit constant trading on his lands in shops or in rack-mounted trading premises, trading that requires organization on the spot. There is hardly any basis for an objection to this right, based on the freedom of commercial and industrial activities from the restrictions imposed by private patrimonial power. In the present case, the freedom of trade and fishing remains inviolable: the restriction applies to the place occupied by the commercial trade. It is impossible to deny that against the will of the owner, no one has the right to take a place and establish himself on his land in his personal interest: in essence, property rights, this will allows and unaccountably authorizes actions that are part of the exclusive possession, use and disposal. Regarding fisheries of all kinds, it is also necessary to recognize that since these fisheries are aimed at extracting objects of economic value from the land or its accessories (no matter how insignificant this value may seem), they can be unconditionally eliminated by the will of the owner, of course, if a special law, in the form of public or state interest, has not declared the fishery free (cf. § 53 et seq.). Regarding peddling and distribution trade, which does not require establishment on site, doubt arose in practice: does the owner have the right to prohibit such peddlers from trading on his land? In this case, the prohibition of the owner, by virtue of his patrimonial power, serves to constrain not only merchants, but also local residents on the land, in acquiring the necessities of life, and therefore is subject to especially careful verification, taking into account not only patrimonial rights, but also the general civil rights of a third party. There are two conflicting decisions on this subject in judicial practice. In one case, the decision of General. Collection Senate of 1846 (Sb. Sen. Resolution I, N 225) recognized, on the basis. 425 Art. Gr. Zak., that Princess Beloselskaya-Belozerskaya, as the owner, has the right to prevent food traders from trading on Krestovsky Island, without special permission from her. In another case, the decision of Cass. D-ta 1867 (N 16) it was recognized that gr. Sheremetev in his village of Ostankino does not have the right to prohibit peddlers from traveling along rural roads to their dachas to satisfy the dacha residents with supplies. The Senate justified the application of Article 523 to this case. Est. Put. Message on the free right to use roads, and recognized Art. 425. Gr. Zach. not violated by the decision of the congress. it is true that, by the nature of cassation consideration, the judgment in this latter case could be based primarily on the article on roads, on which the decision of the congress was approved; but about 425 art. Gr. Zach. The Senate decision mentions, but does not positively explain, why it is recognized as not being violated. So, the misunderstanding remains. It would seem that in such cases it is necessary to distinguish - what kind of bargaining is carried out, under what circumstances and in what place? If the case is about peddlers coming to dachas to satisfy the individual demands of local residents by bringing necessary things and supplies, the doubt is resolved directly by the right of free passage on the roads: the owner does not have the right to restrict a local resident in the freedom of personal contractual communication with any third party, even with a merchant who is personally passing by. But the question changes when bargaining appears in the form of an offer addressed publicly and in a public place, to a public deliberately assembled, for example, for a party. Here it is no longer just a matter of passing and passing; even leaving aside the question of the owner’s right to benefit from trading carried out by third parties on his lands, one cannot help but recognize that he, as a patrimonial owner, has an unaccountable right to refuse his permission to any third party entering his land for any kind of fishing. It is impossible to deny this right from the point of view of patrimonial power, just like the right of the owner, for example, to prohibit hunting on his lands. By force 86 et seq., 560, 593 art. Pete. Est., ed. 1893, establishments for the fragmented sale of strong drinks on the land of rural inhabitants can be opened only with the permission of the village assembly, and the permission of departments or private individuals is also required if the manor settlement of the inhabitants includes lands that are the property of the mentioned departments and persons - and in the lands of the Cossacks - with the permission of the village assembly; on private land, drinking establishments are opened only with the permission of the owner. Wed. Cass. decide 1879, N 39; 1873, N 456. To Cass. decide 1880, No. 148, it was explained that every peasant can, on his estate, without special permission from the landowner or society, maintain all kinds of commercial and industrial establishments. The right to trade in villages does not constitute a special source of income for the entire rural society, with the exception of the rental of secular land, and cannot be the subject of mandatory orders on the part of society tending to limit the legal rights of each individual member. 45 and 46 Art. The local regulations on the land structure of peasants, granting the owners of villages the right to dispose of the trading and market areas existing in them, limit this right to preserving for the peasants, among other things, free passage through them and the production of trade from shops and establishments overlooking the square. In view of this, the owners, as well as all their successors, although they generally have the power, as land owners, to dispose of the area at their own discretion, they do not, however, have the right to block communication with the area to buildings facing it that belong to private owners. Cass. decide 1878, N 103. In the western and Little Russian provinces, as well as in Bessarabia and the Novorossiysk region, there are owner’s places (in the western edge of the city), the ownership of which is associated with special rights. In the areas of the former Polish kingdom, settlements of this kind were formed from ancient times on the right of ownership, by virtue of private noble and possessory charters and privileges. Private owners attracted free people to settle in their homes - nobles, merchants, artisans and especially Jews, establishing trades and bazaars. At the same time, the inhabitants were taxed in favor of the owner with fees from various types of auctions, which constituted the main item of owner's income from the town. These fees in many places reached extreme diversity, and concerning the most necessary consumer goods, they became, in essence, a tax on these very items. These were the fees - not only from the sale of wine and beer, but from cutting livestock, from salt, herring, bread, onions and vegetables, from bakers and millers, etc. Sometimes the basis was acts of previous times, or new contracts of the owner with ordinary people, and rates established by mutual agreement; but in most cases, the collection of fees depended on the arbitrariness of the owners, administrators and tenants of the estate. As a result, with the establishment of a proper Russian administration in the region and with the introduction of Russian legislation, which, however, confirmed for local nobles the right of ownership of cities and towns (IX volume, ed. 1857, art. 219, note 2), complaints from local residents began to arise about the multiplication and increase of fees: these complaints turned to the general provision of Russian legislation on free trade in necessary consumer goods. To satisfy the petitioners, private measures were taken by the local administration: for example, fee tariffs, etc. were introduced, with the approval of local provincial boards. But at the same time, the highest government was preoccupied with resolving the general issue of the legal measure of all such fees. In 1846, the Highest approved position of the Committee of Ministers determined: to declare that all fees that are not consistent with general state legislation or are not based on acts should be declared illegal; but without taking a general measure, submit each case for complaints and disputes in particular to judicial review; At the same time, the Ministry of Finance was instructed to consider whether these fees could be allowed given the existing payments for the right to trade under established certificates. For the Bessarabian region, a Regulation was adopted back in 1844 (appendix to the note to Article 322, Vol. IX, ed. 1876; see § 62), which determined the extent to which the owners of towns and cities, regardless of voluntary agreements with the whole society of ordinary people, have the right to receive income from the following items: from the fragmentary sale of drinks, from houses and shops, from the sale cattle, from river crossings and from weights and measures. In Art. 223 t. V Set. on direct taxes, ed. 1893, it is said that its effect extends to those proprietary cities, towns and villages, the owners of which have the right to pay for the rental of shops, houses and lands from them, to conclude conditions with traders on the basis of civil laws; but such owners do not have the right to impose any fees on traders for the right to trade. But just as in some localities the collection of fees is established on the basis of old privileges and on agreements with local inhabitants, this provision also gives rise to still controversial cases regarding complaints, mainly from Jews, of illegal property taxes (see in the 1st General Collection of D. Tsetsersky, 1871; in the 2nd General Collection of Sen. D. Berestechka, 1872). Within the meaning of Art. 420 vol. V, ed. 1893, Const. Oh pit. Sat. The right of the owners of cities and towns in the western provinces named in this article, and in Bessarabia, to the exclusive sale of wines in these cities and towns belongs to them by virtue of the right of ownership of the lands on which those cities and towns exist, as their former landowners who enjoyed this right until 1863. From this it is obvious that the right belongs to the entire composition of the former landowners of the estates, and therefore cannot pass to the acquirer of any part of the land from the township or city and, therefore, does not acquire a privilege exclusively granted to the owner of the township or city. Cass. decide 1874, N 69. 1877, No. 110. Since all relations of the chinshe owner to the owner of the land are limited only by the obligation to pay for eternity the established annual fee, called chinsh, then by the right of unlimited use of the occupied plot of land, the chinshe owner also owns all the benefits derived from this use. It follows from this that the owners of shtetls in the western provinces should not have any participation in the benefits derived by the residents of the shtetls from the trade they carry out, and that the residents of the shtetls in the buildings they own on Chinsha land have the right to carry out trade on a general basis, without asking the permission of the owners of the shtetl. Possession can be independent, independent of ownership, but existing in the form of property. But it is impossible to imagine independent use, existing independently of the right of ownership or possession, not arising from either one or the other. It may be use established by general law, but in this case it must also recognize its dependence on the supreme right of ownership. This is, for example, the use of dead wood, fruits and berries from the forest, the use of grass growing along large roads and in open meadows, etc. In general, if a user uses a thing without giving anyone an account of the basis for his use, and without having any legal basis, then this means that he has independent possession of the thing, and use in this case constitutes an indivisible ownership. But independent use, just as there is independent ownership - use that exists independently of ownership and is based on the right - we cannot imagine such use. If the user, at the same time, is not the owner or proprietor of the property, then we cannot imagine such use otherwise than with the question: why, on what basis? But independent ownership does not allow such a question, as long as there is no dispute about the right of ownership. If independent use can deny such a question, then, therefore, it is not simple use, but possession. This is the reason why it is impossible to imagine simple actual use, which could in itself, regardless of ownership, turn into a right to use, with the expiration of prescription. Let's say that I collect fruits from the garden every year. If I do this with the consent of the owner or possessor, then I already have the right of separate use under the contract. If there is no owner at all, but I use it in my own name, then at the same time I am the owner, therefore, after the expiration of the statute of limitations, I can acquire the right to use the fruits from the garden, but as an accessory to the ownership right to the garden that I am acquiring. If I use it in full view of the owner, without any prohibition on his part, and the owner continues to own it, then this already shows that his silent consent was given, and that it was repeated annually; but there are no signs of independent law here, therefore, there cannot be prescription. And prescription can only confirm the irrefutability of the title on which a separate right of use is based. (Wed. above what is said about prescription of acquisition.) Cass. decide 1874, N 854. The vagueness of some rights in the system of Russian civil laws prevents in many cases a clear and correct solution to the issue of applying prescription to possession and use. This is noticeable especially in cases related to the right to private participation in someone else’s property, which does not have a precise and complete definition in our law. In the absence of such a definition, it is necessary to confine cases of this kind to the unclear concept of using the benefits of someone else's property, and not to find firm principles for applying prescription to them, while in foreign legislation there is a developed doctrine about easements and the application of prescription to them. So, for example, the question arises about the right of passage and passage through someone else's dacha. The plaintiff complains that the defendant blocked the road along which the plaintiff had long passed to his forest dacha. The defendant objects that this road existed for the internal economic needs of his dacha, and that there is a road accessible to everyone in another place. Outsiders show that the old road has long been a common destination. Is there a basis for granting the plaintiff the right to travel based on the prescription of use of the passage? (See Cass. decision 1870, No. 53). Our law hardly gives a basis for this: it means - for the application of prescription - possession by right of ownership, but in the present case there is no such possession. The plaintiff can be satisfied only on the basis of Art. 448. Zach. Gr., and then only in such cases when there is no other way through the dacha. – The time of use of the road can be taken into account - not in a specific 10-year period, to establish the prescription of a personal exclusive right to use - but only to ensure that the road has existed for a long time and has long been open for public use. The question of the possibility of independent use receives special significance in cases where the matter concerns the assertion by prescription of the right to participate in the benefits of someone else's property. In the system of our legislation there is no place for the concept of servitude: hence the difficulty in practice to define legally such a relationship, which in essence fits the concept of servitude, but in our law can only be confined to the right of participation of a private, which legal definitions do not cover, servitude relationship in all its essential properties. In this case, an attempt arises to relate the relationship to the right of separate use and, in this form, to bring it under the statute of limitations. Such, for example, is the case in the case of Benardaki and Rasteryaeva (1st General Meeting of September 1871), the subject of which was, firstly, Rasteryaeva’s right of passage to her chemical plant through Benardaki’s land on Gutuevsky Island; secondly, Rasteryaeva’s right to use water for the plant through pipes laid through the same land and belonging to the Benardaki plant. The plaintiff argued that this use through the pipes, quiet and continuous for 10 years, became an irrefutable right for her due to prescription. Other legislation would make it possible to apply to this relationship the rule on the effect of limitation on an easement of continuous or intermittent use (s. discontinua). Our courts, deprived of this convenience, are necessarily forced in such cases to look for a way out of difficulties, and therefore sometimes inevitably pose the question incorrectly. Thus, in the present case the question was raised: is the acquisitive force of prescription limited to one right of full ownership or is the right of incomplete ownership not taken away from its effect? It is obvious that the question ignores the essential concepts of the possibility of independent use, and the special property of temporary and intermittent use. In the same General Assembled. Sep. see another similar case in 1871, about the right of Umanets to use a wire through a ditch to his lake from a state-owned lake - brine or saline solution. In Journal. Min. Just. In 1860, the decision of the 2nd General was published. Collection Senate, on the approval by prescription of the right to develop mines in someone else's land (village of Revdinsky mines). This decision recognized the Revdinsky plant, based on its undisputed use for several years, the right to develop mines in the lands that, by right of ownership, belong to the Kasli plant. This decision is sometimes referred to as evidence that the right of permanent use can be acquired by prescription. But they forget that in the above case there were the following circumstances that served as the basis for the decision: 1) The use of the Revdinsky plant was based on the title, since the controversial mines in 1758 were allocated by the Berg College to the Revdinsky plant. 2) The opposite side, i.e. The Kasli plant, regardless of the ownership of the other party, having a strengthened right to the mines, lost it fundamentally. 1478 Art. Horn. Est. (ed. 1857), leaving those mines without any cultivation. Articles 533 and 557, part I, volume X, establish that undisputed possession during zemstvo prescription acquires the right of ownership of property, but the laws do not contain any indication that the undisputed use for the benefit of someone else's property during the same period of limitation could establish, without the consent of the owner of this property, the further use of it in perpetuity. Cass. decide 1872, N 1306; 1873, N 1305. 1875, No. 538. Transactions on the provision of land for the use of outsiders for an indefinite period, constituting in essence a transfer of ownership of this land, cannot be considered equivalent to those methods of acquiring and strengthening the right of ownership of real estate that are determined by law (Article 707 Vol. X, Part 1); and such open-ended transactions, as not complying with the rules on the transfer of the right to use property, cannot be recognized as mandatory. 1873, N 1245. Within the meaning of Art. 533. X Vol. I Part I quiet, undisputed and continuous possession is transformed by prescription into the right of ownership only when it was in the form of property, from which it follows that the right of participation of a private person is not acquired by the law of zemstvo prescription. 1875, No. 46. According to the meaning of the law, for the validity of prescription it is necessary to own by right of ownership, and not on any other basis (Article 560 Vol. X, Part I); Meanwhile, the temporary possession of an outsider does not deprive the patrimonial owner of property rights (Article 521), and the very space and urgency of the separated possession is determined by the very act by which it was established (Article 514); From a consideration of these laws, it is clear that the very concept of temporary possession presupposes the separation of it from property rights for a certain period, and that the exercise of this right within the limits of the period, without constraining the owner, cannot be considered possession in the form of property, and therefore cannot, according to Article 533, turn into property rights, even if it continued during the statute of limitations established by law. 1875, No. 55. State-owned lands allocated for the use of state peasants under certain conditions are not exempted from the statute of limitations and can be acquired by virtue of the right of undisputed possession during the zemstvo prescription, but only by outsiders, and not by those to whom they were given from the treasury. § 32. Right of disposal. Its dual meaning is part of full ownership, as the right to internal disposal of property and to its decisive alienation. Separation of the right of disposal from the right of ownership: a) voluntary, by agreement; b) involuntary, by law. Property of power of attorney. Prohibition - its meaning and form. Origin of the prohibitive system. The effect of the ban under previous and new laws. Effect of the prohibition on the rights of third parties. Temporary restrictions on disposal due to the condition of certain persons. Seizure of movable property. Imposition of guardianship The right of disposal is, firstly, the right to make any changes in the composition of a thing that the owner wishes, according to one or another purpose or use, according to his own will. This right constitutes an indispensable accessory to the right of ownership and independent possession, but does not relate to the indispensable accessory of separate ownership and use, but must be specifically determined by agreement. For example, the renter of a house, without the consent of the owner, does not have the right to rebuild and remodel it for one purpose or another, at his own will. Secondly (and according to the definition of our legislation) - the right of disposal, in combination with the right of ownership, consists of the power to alienate property within the limits prescribed by law, and to give it to another for use through rent, loan and other contracts (541). Therefore, this is the right to separate the component parts of property - possession and use, and in particular, to finally renounce the very right of ownership of a thing - to cede or transfer it to another. It is obvious that this right, which remains the highest expression of the right of ownership, cannot arise and exist in an independent form, regardless of the right of ownership. But it can be separated from the right of ownership in two ways (Article 542): either voluntarily, as a result of an agreement, or involuntarily. In the first case, due to the nature of the right of disposal, only one form of agreement is possible - a power of attorney. The right of the owner-possessor to dispose is so inextricably bound up with the person that it is impossible to allow the owner-possessor to renounce this right either permanently or for a period; by reserving property and possession, one would deprive oneself of the unconditional right to disposal: this is unthinkable. And therefore, this form of unilateral agreement is used here - a power of attorney; for the effect of a power of attorney depends solely on personal trust, which is not bound by anything, and can terminate at any moment at the will of the principal. The expression “to separate the disposition from the right of ownership” should be understood in the narrow sense in which the law uses it in relation to the 2 cases specified in the contract: and this expression in itself is inaccurate. In essence, the right of disposal - in the sense of Article 541, it cannot be separated from the right of ownership, i.e. be presented in itself, as a right of disposal, separate from the right of ownership. In the first case, the owner, without sacrificing at all the right of disposal in its essence, only grants a third party the right to act on his behalf to dispose of the property. In the second case, the right of alienation is suspended or eliminated in the person of the owner, due to the fact that his property is recognized as responsible for him to ensure or satisfy a third-party right: here, therefore, the right of disposal is subject to restrictions inseparably from the right of ownership. See Cass. decide 1868, No. 25 and 1870, No. 917, that the right of disposal constitutes an indivisible property right and cannot separately serve as the subject of a will. Comp. decide 1870, N 1750. The above-mentioned inaccuracy in the law gives rise to confusion of concepts. So, for example, in judicial practice an opinion of this kind is sometimes expressed: when the owner, having given a power of attorney for the sale of an estate, sells it himself, then the deed of sale executed by him is in any case invalid in view of the deed of sale made by the attorney, since, having once separated the right of disposal from his ownership right, he has already deprived himself of the right to sell the property while the power of attorney exists (See about this Journal of Civil Rights, 1871, p. 741). Therefore, the voluntary separation of the right of disposal from the right of ownership has the character of only a temporary separation, completely dependent for its continuation on the will of the principal, and does not provide a lasting right to the person in whose favor it is separated. A power of attorney was given to release the property for use. Today I gave it to Ivan, and in three days I can destroy it and regain the right to dispose of it. Of course, all of Ivan’s actions performed within the power of attorney before its destruction remain in force and are binding on me. A power of attorney for the sale of an estate has the same property. Only a power of attorney to present an estate as collateral under contracts with the treasury, given for a period, cannot be destroyed before the deadline; but in this case, the transaction has only the form of a power of attorney, but in essence it is an agreement of a special nature, binding both parties with mutual conditions, an agreement on a loan or giving for use. See Part 3 of the Course, § 59. The scope of rights granted to the trustee for the disposal of property is determined by the content of the power of attorney. Therefore, when resolving confusion about whether the attorney acted within the limits of his authority, it is necessary to have a clear consciousness not only of the legal, but also of the economic significance of the action indicated in the power of attorney, and of the one performed by the attorney, in order to judge which action, having a separate economic significance, requires special authority, and which, belonging to the whole order of economic actions, is itself presupposed in this general authority. For example: an attorney is given the right to sell an estate, but he has mortgaged it. granted to sell and mortgage the estate, and the attorney sold it for a timber dacha. It was granted to sell the forest for felling, and the attorney sold the forest with the uprooting of stumps and roots. The right of disposal, in the person of the patrimonial owner-owner, may be suspended or limited by the private will of the transferor, in the established act by which ownership is transferred: namely, in a deed of gift or in a will. There are legal limits to this restriction (see articles on donations and wills). Restrictions of this kind, permitted by law (for example, the prohibition to alienate property or pledge it within the prescribed period), restricting the right of ownership, do not destroy it in essence, but give it the property of incomplete ownership (see the discussion about this in Cass. decision 1869, No. 1134). The right of disposal can be separated from the right of ownership and regardless of the will of the owner, by law, as a result of an order of government or judicial authority, when the property is subject to prohibition or sequestration or guardianship (Law. Civil., 542. Vol. XVI, Part 2, Pol. Recovery. Civil. Art. 1 et seq.). The significance of the prohibition imposed on real estate lies in connection with the system of committing serfdom for the alienation of property. Prohibited property cannot be transferred from its owner, during his lifetime, into the ownership of another person by a formal legal procedure, i.e. carrying out the act of serfdom. This is the general rule, from which few exceptions are allowed (see, for example, Art. 1703 of the Civil Code). This rule is strictly mandatory for all places and persons committing fortresses, and its violation entails strict monetary liability to the person whose interests were secured by the prohibition, because the purpose of the prohibition is to protect the rights of third parties to real estate, i.e. or patrimonial rights (for example, in the case of a dispute over the ownership of an estate) or penalties, the security of which is entrusted to the property. The prohibition under the law of 1889 is imposed only on a specific estate (the previously permitted general prohibitions, imposed on all the property of the debtor, without indicating which estate they were imposed on, have been abolished; they are temporarily preserved only for government debtors, for collections and charges - see Vol. XVI, Part 2, complete. Collection. Civil., Art. I, note. Regulations. Notar., ed. 1892, art. 168, note) by order of government authorities, or by court order. Prohibition is confirmed by a prohibition article. This article is drawn up by the place making the order to impose the prohibition, and is sent to the senior notary or to the institutions that deal with serfdom, in two copies; the article must be definitive, with a clear identification of the prohibited property, its owner, the penalty for which the prohibition is imposed, and the amount in which the penalty is calculated. Articles drawn up without observing these rules are returned from the senior notary or from the public place in which serfdom deeds are performed for correction. Prohibitory articles are distributed among cities and counties included in the notarial district or subordinate to the previous serfdom, and form for each year local collections of prohibitory articles, in which each article has its own number, determined by the order of inclusion in the collection. senior notaries and serfdoms of the previous system for each collection of prohibitory articles are obliged to maintain a common alphabet for all years for the surnames of the owners of estates and against the surnames to mark the numbers of prohibitive articles for the subject collections (vol. XVI, part 2, Regulations. Execution. Civil. Art. 1 et seq.; vol. XVI, part 1 of the Constitution of the Civil. Court., art. 604, 616 et seq. to app. 616; Notar., art. 154 app. the lifting of the prohibition upon the destruction of the reason for which it was imposed is certified by a permissive article, which is drawn up in the same manner as the prohibitory article; permissive articles are included in local collections, according to which a common alphabet is maintained on the same grounds set out above as for permissive articles. In connection with these rules, there is a decree by virtue of which acts on real estate can be made only in those serfdoms in the district of which the property is located (Civil Law, Art. 708, App. I, Art. 19 Note 1 according to Prod. 1890). This decree abolished the previous procedure for carrying out the above-mentioned acts, which was in force in areas with old courts, outside the serfdom district to which the estate belongs. The new rules set out on the procedure for drawing up prohibitory and permissive articles completely changed the previous regulations on this subject, especially in the sense that they introduced the beginning of the specialty of prohibition, whereas under the previous law, when it was impossible or undesirable to indicate certain property of the debtor, which could serve as security for recovery, a general prohibition could be imposed; This prohibition could be changed into a special one if the owner pointed to a certain estate whose value sufficiently ensured recovery. Then, with regard to the procedure for imposing and lifting prohibitions, in this respect too the previous rules have been significantly changed by the new law; with the abolition of the right of serfdom of the previous system to carry out acts on real estate not located in their districts, the printing of articles on prohibitions and permits in the “Senate Gazette” became unnecessary, and therefore was cancelled, and the very publication of Senate announcements on prohibitions and permits thereof was stopped (Law. Civil., Art. 708, App. I, Art. 24, approx. 1 to Cont. 1890; Notary. floor, art. 168, note); these announcements were replaced by local collections of prohibitory and permissive articles, in which one cannot help but see an important advantage of the new law over the previous one, because the previous form of the prohibition, which was intended to give it possible publicity, did not fully satisfy this goal due to the fact that the execution of deeds on the estate was possible in all provinces, the order to impose a prohibition could also be made everywhere by local authorities, and the publication of prohibitory articles was concentrated in the capital, and the announcements did not receive publicity at the same time everywhere, because they did not arrive at the same time with mail from the capital. Thus, between the order to impose the ban and its seal in the capital, as well as between the seal and receipt on the spot, there remained a significant period of time, during which the ban imposed, therefore already existing, remained silent. To prevent the alienation of property during this period, in Art. 619. Est. Citizen Sudopr. it was decided that the plaintiff has the right to receive from the court that stopped the ruling on the prohibition, a copy of the ruling and the prohibitory article; but this resolution also did not always achieve its intended goal. The system of prohibitions arose from the custom of reporting to serf affairs about obstacles to the execution of deeds of sale and mortgages for various reasons, i.e. to the alienation of property on behalf of the person on whom penalties and legal prohibitions were imposed. This custom was legalized by instructions to overseers published in 1738 (P.S.Z., N 7594). The overseer was ordered to “have a book in which to write down all those to whom, from where, when, for what it is forbidden to write fortresses, and in the future when, to whom, what prohibition in writing fortresses will be inflicted; when permission is given to someone in a letter from fortresses, then it should be noted in that book with an explanation of why the permission was given and where it came from.” Over time, the number of prohibitory articles increased to the extreme, and accurate information about them became almost impossible. To put them in order and to sort out the articles that are in force and those that have been repealed, a printed code was compiled in 1822, according to Mr. Khavsky’s design, and then the constant printing of incoming announcements about prohibitions and permissions in the “Senate Gazette” continued. After that, the growing number of new articles every year prompted the Minister of Justice, to publish a notarial statute, to compile a general alphabetical index of all the prohibitions that existed before 1865. According to the general rules set out in the Regulations on Civil Penalties, the prohibition takes away only the opportunity to alienate the estate, but it remains in the possession of the owner, who is not deprived of any of his rights to economic disposal thereof; but in 1864 in the Charter. court. citizen rules were established regarding the prohibition imposed under the new procedure. According to the force of these rules, the owner of prohibited property (exclusively in litigation about ownership) is prohibited from cutting down forest there, except for what is needed for farming on the estate (Articles 610 and 611). Even before the imposition of a prohibition, the owner of the estate subject to judicial foreclosure is subject to the same restrictions from the time he receives a summons to enforce the decision. And not only is it prohibited for the owner to cut down forest on such an estate, but it is also forbidden to alienate or destroy such objects that are considered by law to belong to the estate (Articles 1096, 1097). This limitation does not apply, however, to the rights and obligations of the owner under contracts with third parties (see Cass. decision 1870, No. 742). The owner of the mortgaged estate is also subject to special restrictions when, after an inventory of the mortgage, it is left in his hands and in management: he owns his estate already on the report, and is obliged to hand it over in the same structure and with the same movable property as he accepted (Vol. XVI, Part 2, Pol. Execution. Civil., Art. 182. Establishment of the Court. Civil., 1130, 1131). The consequence of seizure of movable property (Vol. XVI, Part 2, Pol. Execution. Civil., Art. 30–34) is an inventory and assessment of it and taking it for safekeeping; therefore, here, both legally and practically, the possibility of both one and the other order is eliminated (Ust. Court. Civil., Art. 624–630; 968–973). A seizure can be imposed on movable property, even if the defendant also has immovable property. The property described by the debtor (not declared insolvent) is withdrawn from his disposal, sometimes at the same time from use, but does not cease to be his property and be in his possession until it is sold or transferred to satisfy the debt. therefore, if the debtor, before the sale, had arbitrarily disposed of the described property in his own favor, there is no reason to recognize such an action as misappropriation or theft: such an action has only signs of arbitrariness, sometimes combined with embezzlement (see D. Vybodovsky in the 2nd Ob. Collection, September 1872). It’s a different matter when the property of a debtor declared insolvent is described: from the declaration of insolvency, all his property is legally considered not to belong to him, but to belong to the creditors, i.e. masses. By strength 1096–1098 Art. Est. Gr. Court. sending a summons to the debtor to foreclose on his estate must be accompanied by the imposition of a prohibition in order to prevent the debtor from disposing of the estate; but he has the right to sell the estate even after receiving a summons, if an amount is deposited to secure collection. So, the imposition of a prohibition turns out to be a necessary condition in order to be able to raise the question of the invalidity of the sale of an estate carried out after a summons to foreclose on it. Cass. decide 1879, N 101. In the Levashovs’ case (Cass. decision 1870, No. 484), the government arrears were left secured on the estate, accepted as collateral for the drinking farm. The owners sold this estate for a timber dacha under a special condition. A question arose about the validity of this condition, in view of the prohibition on the estate to provide for the treasury under the contract. The condition was declared invalid, for which the main reason was considered to be a violation of Article 1529, on the invalidity of contracts tending to harm the treasury. This foundation in itself is shaky, because Article 1529 obviously refers to the treasury in its state function, as the fiscus, and it would hardly be fair and cautious to apply this article to the violation or harm of state interests in those cases in which the treasury appears as a counterparty, as a party and as a legal entity. But in the above solution there is another reasoning that more directly approaches the matter. It is precisely said: from the appendices to Art. 324. Credit. Est. (ed. 1857) form of the certificate for the pledge of estates for loans from a borrowed bank, it is clear that in these certificates the forest of the pledged estate was indicated indicating the quantity and quality of it, and according to the note. to this article and to 1613 art. 1 part X volume, ed. 1857 (corresponding to Article 66, note 2, appendix of the Regulations on Treasury Contracts) both the form and procedure for issuing certificates for property serving as collateral in a bank apply to other cases of issuing similar certificates. From this it is deduced that, according to the law, when pledging land under a government lease or contract, the land is pledged with the forest growing on it: therefore, by selling the forest from the estate, the rights of the pledgee to the pledge are violated. 1874, N 480, 116. by force of 2033 art. X v. 2, part. (corresponding to Article 195, note, Pol. Execution. Civil.) Lease and other agreements concluded by the owners of estates remain in force until the period specified in them only in the case when these agreements were concluded before the imposition of a ban on the estate. 1875, No. 542. lease agreements on real estate, concluded by the owner thereof, may be based on Art. 1529. X t. 1 h. are destroyed at the claim of a third party only in the case where the plaintiff proves that the agreement tends to falsely re-strengthen the estate, i.e. income from it, in order to avoid paying debts, and that this violates his property rights; Thus, only mortgage and personal creditors can demand this, while third parties, including buyers of an estate at a public auction who are not creditors of the owner of the estate, in no case can demand the destruction of lease agreements on the basis of Art. 1529. X t. 1 hour 1877, N 61. From the meaning of 1095, 1100, 1137 and 1138 art. Est. Gr. Court. it follows that from the time when the debtor is duly notified that if he does not pay the debt owed to him by the due date, then in this case his known estate will be sold, he no longer has the right to enter into agreements that would reduce the sale value of the estate, for fear of their invalidity; thus, 1100 st. essentially does not refer to the procedure for the public sale of real estate, but contains a rule of substantive civil law, which should be applied to all real estate sold at public auction, and therefore to those cases when the estate is sold not according to the rules established for the execution of court decisions, but in the manner determined by the charter of the credit institution in which the overdue estate was pledged. 1877, N 193; 1878, No. 92. The beginning and limits of the restriction of the right of disposal resulting from the imposition of a prohibition on an estate are determined by the content and time of printing of the prohibitory article in the Senate Gazette by order of the public authority, and not by the time of the state of the court’s ruling on the imposition of such a prohibition, as is clearly evident from Art. 616 Set. Gr. Court. and 1814 t. X, part 2. (corresponding to Art. 1 note, appendix, Pol. Recovery. Civil.). Then, the plaintiff, whose claim is secured by the imposition of a prohibition, in order to avoid possible losses for him from slowness in printing the prohibition itself, has the right to receive from the court that decided to impose the prohibition, copies of this determination, for presentation to those public places where he intends to prevent the alienation of the prohibited estate (Article 619 of the Constitution of the Civil Court), and only the presentation of the said copy can replace the printed announcement of the prohibition (Art. 620 Const. Gr. Court). The right of disposal is limited to owners who are permanently or temporarily in such a state in which they themselves are assumed to be incapable of alienating the estate, or this alienation may serve to the detriment of third parties entitled to that estate. Thus, the right of disposal is limited to minors and minors, the insane and the insane; bankrupts and insolvent debtors; punished for certain crimes; some government and public institutions and legal entities who are given the right to own estates, but not given the right to alienate them 269, some officials (for example, treasurers) who cannot make deeds on their estates without the consent of their superiors. The imposition of guardianship is the complete removal of the owner of property from the right of disposal, although ownership remains with all its qualities. In general, with guardianship, the right to dispose of the estate, to manage it directly, to enter into agreements about it, to give it for use is eliminated, and the personality of the owner in this regard is completely replaced by guardianship. But the right to finally dispose of the estate, to alienate it forever, is not to the same extent taken away from the owner. It depends on the reason for which the guardianship was imposed and what purpose was in mind when it was imposed. Guardianship for minors presupposes a decisive inability to manage, use and dispose of the estate. Consequently, all these qualities of property rights are concentrated exclusively in the person of guardianship. But when guardianship is replaced by trusteeship, then this latter does not serve as a replacement, but only as a necessary addition to the personality of the owner. However, even here the testamentary right is unconditionally suspended until full adulthood. Guardianship is imposed: to ensure the integrity of the estate; to protect against embezzlement and squandering (in this case, the owner is deprived of the right to alienate the estate or use the right of disposal for evil, but is not removed from management. Cass. decision 1874, N 862); to ensure the rights of absent people; for punishment and incentives (non-division, illegal possession by sale); for collection (for obligations, Zak. Court. Civil, ed. 1892, art. 595, 597); as a result of punishment for a crime (IX, 332). In other cases, alienation of the estate is permitted under the condition of permission of the right for the sake of which the estate was taken into custody. According to Cass. decide 1879, No. 247, collection measures (inventory for sale, guardianship) are taken in the interest of the collectors, but do not affect the general legal capacity of the debtor; traces his orders regarding the estate (for example, renting out) are illegal and invalid only insofar as they serve to the detriment of the claimant, and not to third parties. 1874, N 480. Within the meaning of Art. 2024. 2 parts X t. (corresponding to Art. 190 Pol. Collection. Civil.) The essential duty of guardianship institutions managing the property described for satisfaction of claims is to maintain the estate in the structure in which it came into guardianship. This is confirmed by the considerations of 2017 and 2024 Art. 2 parts X t. (corresponding to Articles 183 and 190 Pol. Recovery of Civil.) with 1097, 1128 and 1130 Art. Est. Gr. Court., on the basis of which the immovable estate described by the debtor is left in the possession of the previous owner with the obligation to preserve and subsequently hand over this estate in the same structure in which it was accepted by him, and not at all to reduce in any way the profitability and value of the estate. Therefore, the court correctly recognized the agreement to rent out the house for a year, concluded by the guardian after the sale of this estate at public auction, as optional for the buyer of the estate at auction. The guardian has no more rights than the owner; the owner, only before the imposition of a ban on the estate, can enter into agreements that remain in force for the sale of the estate. Note. The disposal of some property, although owned by right of ownership, is not free when the law restricts it for special state reasons. Such are the properties that are in the possession of certain classes, when the law prohibits their transfer to outsiders belonging to another class or to another territory; for example, estates in the Cossack troops, single-yard estates, etc. For these estates, see above in Art. about things. These are the restrictions on the disposal of lands owned by peasants from the land allotment (see § 64. Special appendix to IX vol., XX, art. 2, note 2, appendix, art. 46). § 33. Disposal of property during illegal possession thereof. Consequences of these orders upon transfer of the estate to the rightful owner. Dispositions regarding property in which ownership is transferred from the legal owner to another legal owner (dominium revocabile) The right of internal disposal of property, as well as the right to alienate it, is inextricably linked with ownership: with ownership it stands and falls. The more that possession is discredited, the disposition that flows from that possession is also discredited. Ownership, when faced with a question of fundamental right, can be recognized - either legal or illegal (in comparison with the external basis of one's own or title) - and in good faith or in bad faith (according to the internal consciousness of the owner about the legality and independence of ownership). When the possession was unlawful, and must give way to another, its further continuation is stopped; but the actions and orders that were a consequence of this possession, since they have economic significance, do not disappear along with the ceased possession, for they represent the interest and value of the possession not by right of the continued one, and therefore must be brought out and put into the account of the illegal owner. From the previous presentation it is clear that the extent of his responsibility for these actions depends on what property his possession was, according to his internal consciousness (i.e., whether it was conscientious or dishonest). In this calculation, those actions of the illegal owner that had the effect of alienating the entire estate or some parts of it are of particular importance: for with such alienation are connected the interests of third parties, patrimonial rights acquired by third parties to property alienated by the illegal owner. The question is: do these rights acquired by third parties remain in force (regardless of the settlements of the previous owner with the new one for the value of the alienated property), or should the alienation actions committed by the previous owner be declared absolutely null and void, and the rights of third parties based on these actions will be destroyed along with them? The resolution of these questions depends on the positive definition of the law and on the quality of ownership in each individual case. In general, the law protects patrimonial rights acquired in good faith by third parties from an illegal but supposedly legal owner (cf. Cass. decision 1873, No. 719; 1875, No. 879; 1876, No. 46; 1879, No. 31). Thus, it is said about an unscrupulous owner (612 Art. 1 Part X t.) that for the land alienated from the estate he is obliged to pay the proper price to the one to whom the estate is legally returned; when he has mortgaged an estate, he is obliged to redeem it, or return to the rightful owner the money received as collateral (614); about a conscientious person it is said (634) that he is obliged to reward the legal owner for everything that he has separated from the estate for transfer, gift or sale - and what is pledged, to redeem (635); but it has not been decided that in these cases the very alienation of the estate or the pledge is destroyed in relation to third acquirers. The laws of purchase and sale decreed (1384) that only property that the owner can dispose of by right of ownership can be sold - a rule that logically applies to a bona fide owner, as long as his rights are not refuted. Articles of the law directly establishing the invalidity of a sale (1386, 1387, 1389, 1392, 1393, 1394) apply to cases where the property is in limited possession of the seller or is in dispute. Regarding property that is sold or pledged by the legal heir in the absence of a will, after being presented, it is expressly stated that this sale or pledge remains in force (Article 1301 and Cass. Decision 1880, No. 101). The land allocated to the peasants according to the charter is not returned, even if it was subsequently recognized by the court that the patrimonial right to it actually belonged to a third party, and not to the landowner from whom the allotment was approved (Vol. IX, Special App., I, General gender, Art. 37, Note 2, App.: Art. 1). But from 1406 Zak. Citizen and art. 1699 Lay. o Mandate. we can conclude that the sale of property that is obviously someone else’s is invalid. In addition to possession that is supposed to be legal, but subsequently turns out to be essentially illegal and therefore destroyed, there may also be such possession, which, although affirmed by the right of ownership, although continues legally, but in essence of the right connected with this possession, is under penalty, for it may be subject to cancellation and return, as a result of certain events beyond the control of the owner, or of certain actions of the owner himself. This is, for example, the possession of a person who acquired property by an unconditional gift, in view of the reasons by which the gift can be turned back to the donor as a result of his demand; such is the possession of the buyer who has acquired the family estate of the seller, as long as the relatives of the latter still have the right to demand redemption (dominium revocabile, widerrufliches Eigenthum). in such cases, possession may be destroyed as a result of a demand based on a known legal reason; but as long as such a demand is not yet in mind, possession is not only assumed, but is also completely legal, based on the unconditional right of ownership, and therefore the orders arising from this possession must be recognized as completely legal and irrevocable - at least for the entire time until the owner is still aware of the demand presented to him by the person who has the right to turn the estate over to himself. Consequently, in such cases, the plaintiff’s patrimonial demand for the transfer of the estate, without finding the estate itself in the hands of the defendant, must give way to the rights of third parties legally acquired from the legal owner (unless, as, for example, in the case of redemption, the law does not give the patrimonial demand unconditional force). Then, under what conditions and to what extent the plaintiff can demand compensation from the seller for the alienation - this depends on the special circumstances of the case, according to which the seller’s consciousness at the moment of alienation, regarding the strength and conscientiousness of his rights, could be considered discredited as a result of events that depended on his will (for example, in a claim for the return of donated property for obvious disrespect). In 1406 Art. Zach. Gr. it is said: sales and purchases made contrary to legal prohibitions, in addition to its invalidity, subject the perpetrators to penalties. Cass. decide 1872, No. 241, it is recognized that the word prohibition used in this article means not only a prohibition imposed on an estate by publication in the gazettes, but generally refers to a sale made contrary to the rules established by law under penalty of invalidity. In this case, the sale was carried out on behalf of the co-owners, without the participation of some of them, and with the participation of a minor, without proper permission. 1876, No. 46. The sale of real estate, carried out by the executors in accordance with the will, in which the estate is called acquired, remains in force, despite the fact that the estate was subsequently recognized by the family court and the testator’s order in relation to it is illegal (1301 art. X v. 1 part). 1876, N 64. 1301 art. X Part 1 determines the validity of deeds of sale and mortgages on real estate, if they are made by the heirs at law - before the appearance of the will on this estate, and not before the opening of a dispute against the heirs at law by the heirs under the will. In the latter case, i.e. if these acts were completed even before the opening of the dispute, but after the appearance of the will, they are recognized as invalid. 1877, N 341. The owner sold the estate under a deed of sale, the buyer mortgaged this estate; then the deed of sale was declared void by the court and the estate was returned to the owner. The owner sued for the destruction of the mortgage; by a final decision of the court, the mortgage was declared invalid and the prohibition on the estate was lifted; the owner again mortgaged the estate to the credit society. Meanwhile, upon the complaint of the mortgagee, the court decision was canceled and his mortgage was declared valid; he filed a claim to invalidate the mortgage of the credit company; The court rejected his claim. The Senate recognized the court's decision as correct, since none of the laws (1629 and 1630 Art. X t.) were established in the case. 1 h) the provided grounds for recognizing the mortgage of a credit company as invalid; - at the time when the owner mortgaged the estate to the credit company, the plaintiff’s mortgage was declared invalid by a court decision, the prohibition on it was lifted by court order, and the owner had the right to dispose of his property in its entirety. 1873, No. 814. A decision that has entered into legal force ends the dispute, even if a cassation appeal has been filed to cancel it; therefore, the party who received the immovable estate under such a decision has the full right to mortgage and sell it, and such sale or mortgage, as made by bona fide owners, by virtue of Art. 634 and 635. X t. 1 hour, not destroyed. 1878, No. 77. The mere possession of someone else’s property in the form or right of ownership cannot yet serve as a basis for recognizing the mortgage made by such an owner on this property as valid, since by law only that mortgage is considered valid, which is made by the person who has the right of ownership to the mortgaged property, and not by the one who owned someone else’s property, appropriating it into his own property. Therefore, if the mortgagor, by virtue of this act, by which the estate came into his disposal, should be recognized as having only the right of lifelong possession, then even if he owned this property as an owner, he cannot be recognized as having the right of ownership to it, and therefore, the right to pledge it. In this case, the good faith or bad faith of ownership does not matter, since by virtue of Art. 614 and 635 t. X, part I, in both cases, the rights of the mortgagee to the property pledged to him are the same. § 34. Legal ownership. Increment according to Russian law - immovable to movable. The addition of movable to movable is building and sowing. Increment of movable to movable, or specification. Economic significance of the specification. Specification in Roman law (Gr. 424). By the right of full ownership of land, the owner has the right to all works on its surface, to everything that is in its depths, to the waters located within its boundaries, and in a word, to all its accessories. By right of full ownership, the owner enjoys all the natural properties and products of things, and everything that his labor and art produced in the property. All fruits, income, profits, increments and benefits belong to him (425). Thus, using the property in all its economic significance, the owner at the same time acquires ownership of all new products of his property, and everything that, in accordance with the organic and mechanical laws of its nature, adjoins the property as an accessory, or comes from it as a product. This includes: fruits and profits, income and increments. Let us dwell on this last word, because increment constitutes a special type of law. according to Roman laws and French law, the collection of fruits and increment are classified as methods of acquiring property, so that in the first case, property is acquired through the separation of fruits from the main property, in the latter - through the connection of one item with another. in our system, neither one nor the other is classified as a means of acquiring the right to property, but is included in the content of the right of ownership (425, 699). Our place is perhaps more accurately determined by law. Increment is such a connection of two things, as a result of which one becomes the main thing, and the other an accessory to it, and follows the fate of the main one, so that whoever owns the main thing, the accessory one follows, when the connection is such that there is a close organic or mechanical connection between one and the other thing. Therefore, not every connection is an increment. The bird is put in a cage, the carriage is put in the barn, the horse is in the stable, the weapon is in the case, the book is on the shelf, the furniture is in the house. This is not an increment yet. The question is which thing should be considered the main thing and which is the subordinate one. With the solution of this issue, it will be determined who should own the additional thing: - obviously, the owner of the thing that turns out to be the main one. Types of increment: immovable to immovable, movable to immovable, movable to movable. Immovable to immovable. The provisions of Russian legislation are most complete about this type of increment. The main agent of increment in this case is water. Here are the cases of such an increase that are affected by our legislation. 1) It may happen that the river, which forms a living border between 2 dachas, deviates its flow in one direction, so that a dry strip of land is formed on the other side. In this case, the owner of the coast is given the use of this dried land and the forest and willow growing on it opposite his dacha, in the space of latitude that appears in the plan and boundary book issued to him (426). If a river constitutes a boundary, then each owner, by coastal right, enjoys it from the bank to the middle. If sand inconspicuously deposited by water is added to one shore, it becomes the property of the shore owner (428). Cass. decide 1872 (N 223) it was recognized that in force 426 art. 1 part X t. the right of the coastal owner to the dried land from the evasion of water applies only to such owners, the border of whose possession is made up of flowing waters, i.e. rivers rather than other reservoirs. Therefore, the reasoning of the chamber was canceled that the increase in ownership in the land could have resulted from a decrease in the level in the pond, and should, according to the force of Article 426, be explained in favor of the coastal owner. 2) When the river suddenly completely turns its flow in the other direction, the former river bed remains the boundary, so that each of the adjacent owners continues to use it to the middle, and along the new course of the river, both its banks already belong to the one through whose dacha it flows. However, this complete appropriation of the flow of the river to the owner of another dacha occurs only in relation to those benefits that belonged to the owners under coastal law: in this case, nature has carried away the bank - and the coastal right disappears, passes geographically to where the banks passed. If the owner, whose dacha was abandoned by the river, enjoyed the benefits of the river not only according to general coastal law, but according to a special special right approved by special acts, scribe books, letters of grant, etc., enjoyed special benefits, such as fishing, transportation, etc., then this right is reserved to him in that river, despite the fact that it, having changed the course, completely abandoned his dacha (428, 464). All this applies to a complete change in the flow of large rivers. But when in large rivers that are at least 150 fathoms wide, this change is done gradually, i.e. Every year one bank is washed away, and the other dries up due to water evasion until both banks pass into another dacha, then this is not considered a change in the flow; It is also the same case when a large river, dividing into two branches, passes as a fairway on one side, and as a bay with a current on the other side (430). in the latter case, if an island is formed, torn off from one side, it belongs to the side from which it is torn off. 3) If the river, which forms the living border of two dachas, has formed an island after state surveying, which does not appear on the plans of both dachas, then the island is divided in half between the owners of dachas along the river (427). This rule was initially established in 1798, in the land survey law and on the occasion of the general land survey; and then, in 1829, it was applied to cases arising after general land surveying. This rule gives rise to some misunderstandings. The law says: if a river forms an island. But the reasons for the formation of the island may be different. An island can be formed from the drift of silt and sand to the middle of the river, from the drainage or elevation of part of the channel, and finally, from the direction of the flow, from the erosion or washing away of the bank. in the latter case, according to paragraph 2 of Article 429. the island formed even after land surveying belongs to the shore from which it was washed or torn off. But in other conditions, in the literal sense of Art. 427. the island is divided between the coastal owners, even if it is formed beyond the boundary line passing through the middle of the river, within the water space belonging to one of the coastal owners; it seems that it would be fairer to give the island in this case to the dacha in which it was formed; but 427 art. leaves no room for such an interpretation: it is not talking about an island formed in the middle of the river, i.e. across the border line, but generally about a new island that does not appear on the plans. If such an island has formed in the middle, then the question may arise: how to divide it in half? Should these halves be determined by the equal amount between both sides, or by the proportion of lands belonging to one and the other dacha, or by the boundary line, how much will be on both sides? Movable to immovable. Its main type is building and sowing. Roman law dealt with this subject in the following cases. The owner has made a building or planting on his land from someone else’s materials or plants. Built up someone else's land or sowed it with his own materials or plants. Our legislation does not address these issues separately in relation to increment; For us, these questions merge with the question of remuneration for the improper use or possession of someone else’s property. However, here too, the law prescribes that everything established or built on someone else’s land should be provided to the legal owner of this land upon restoration of his possession, and, moreover, to the previous owner - either does not provide any compensation for the costs of construction and establishment and for the cost thereof, or provides: due to attention to the owner’s dishonesty; by paying attention to whether what was built or built up served to improve the estate or only to luxury, whether it was built by the previous owner from his own material or whether the material and workers were taken from the owned estate. Moreover, the legal owner is allowed to declare whether he retains everything established and built up: if not, then an unscrupulous owner can demolish without compensation everything that can be separated from him without damage to the estate (611, 622, 628, 633). The increment of movable to immovable can be organic, i.e. of such a property that movable, included in the immovable, cannot be separated from it without violating the integrity of the immovable. In this case, without a doubt, the movable is united with the immovable inseparably. Such, for example, is the following case (see Cass. decision 1868, No. 548): a wife, having her own one-story house, bought his house from her husband for removal, and used the materials to build a second floor on her house. As a result, the husband's creditors foreclose on the wife's house. Increment of movable to movable or specification. The owner, having at his fingertips and at his economic disposal a larger or smaller range of things that make up his property, uses his labor and industry on them and makes changes in them, creating new types of things. Some of them perish or lose completely all value, all significance of property; others, with the assistance of labor, by internal productive force, bring out from themselves, without losing their meaning, new things that are separated from their mainland and acquire special meaning (fruits); finally, others either change their appearance by nature, acquiring both the meaning and name of new things, or serve as material from which, through labor, craft and art, things new in meaning and name are created, so that the old thing (or material) disappears or loses its meaning, and in its place in a person’s household a new thing (nova species) appears. Moreover, the transformation of an old thing into a new one may be such that it is still possible to return the new one to its original form and to its previous meaning, or such a return is physically and economically impossible. This is where the concept of specification comes from, a concept developed especially by Roman jurists. By virtue of the specification, wine is made from grapes, oil is made from olives, lard, meat, leather, etc. are made from killed cattle, cloth is made from wool, clothes are made from cloth, a ship is made from wood, iron, etc., and from individual parts and accessories; from mixing different juices and liquids - a drink, from canvas and paints - a painting; made of marble - statue, etc. All these newly created things are part of the same economy from which they arose, and their appropriation to the owner seems to be a natural consequence of ownership. But it sometimes happens that a third party, in good faith or in bad faith, produces new things from previous things or materials belonging to another owner, not at his expense and not in his name, but on his own behalf and in his own name. In such cases, the labor and art of one meets the property of the other, and the question arises: which of both should be considered the legal owner of the newly created thing (nova species), and how to make an equalization of rights between both. This question attracted the special attention of Roman jurists and turned out to be especially difficult for them, for they tried to resolve it solely on the basis of pure reason or a strict legal principle, paying little attention to the relative value of things and the importance of labor and art in comparison with rough material. Opinions on this subject were divided between the followers of two well-known schools - the Sabinian and the Proculean: the latter unconditionally assigned the right of ownership to the manufacturer of the new thing, while the former asserted it to the owner of the old thing or the material from which the new thing was made, and in the logical sequence of their teaching they went so far as to recognize the owner of the picture not as the artist who painted it, but as the one who owned the canvas on which the picture was painted. To reconcile this contradiction in Justinian legislation, a middle opinion was adopted, according to which it was necessary in each case to distinguish whether a new thing could return to its previous form and previous meaning: if so, then it should be returned to its first owner; if it cannot, then it is up to the manufacturer to approve it. Without dwelling long on this doctrine, which is not reflected at all in Russian legislation and has almost no significance in practice, I will only note that according to the theory developed by Roman jurists, a new thing created through a specification does not serve as a continuation of the previous one, and legal succession in relation to the previous thing is not allowed. On the contrary, all legal relations connected with the previous thing disappear along with it, and new, special ones arise for the new thing, regardless of the previous ones. For example, the right of use (usufructus), connected to the old thing, disappears, ownership disappears - and a new one begins, so that the new owner owns it for himself, on a special basis; the right under a will, granted to the previous thing by its owner at the time when it existed in its previous form, disappears; the right of pledge is destroyed, even the right of ownership of the old thing is destroyed, because a new right of ownership has arisen in the new thing, and even if it were to be given to the previous owner in a new form, then he will have it new, on a new basis, and his new right will not be a continuation of the previous one. Chapter three. About methods of acquiring property in general § 35. The concept of acquisition and general forms of acquisition. What is acquisition? What is required to purchase? Types of acquisition. Initial and derivative methods. Succession in acquisition. Deal. Will. Inheritance. Mastery Every acquisition is, first of all, an act of the will of the acquirer. It is necessary to take, accept, in order to acquire, assimilate. What I do not want to take as a civil right cannot be given by force or imposed on me. Next, something is acquired, a thing that becomes the property of the acquirer. What is acquired must exist in reality. Otherwise, the acquisition of a property right is unthinkable. Therefore, in order for a property right to arise, there must be a thing capable of acquisition - a thing capable of being transferred into private possession with its entire nature or one of the material qualities of this nature. If such a thing is not available, but someone undertakes to deliver it to me, to add it to my property, then I acquire only the right to this action of another person, but do not yet acquire either the thing itself or the property right in it. This thing may have existed before I acquired it (which tends to happen often). But it may happen that the existence of a thing arises at the very moment of acquisition. I myself could give it existence by processing the raw material with my labor or art, and from that moment the thing lent to me by its existence became my thing. From the depths of a thing that was my property, in a necessary connection with it, a new thing could arise, through the action of nature, my labor, or the force of the economic laws of society: having arisen, it becomes mine. These are the fruits, income, interest on capital, increments. The thing could have been property, property, a subject of civil law, before the minute I acquired it. In this case, only the subject of law, the person, changes, but the subject of law remains the same, and the thing, passing to the acquirer, retains the same quality of property that it had during the transfer. But it may happen that the thing being acquired, although it existed in reality, in the material world of external nature, was not yet or ceased to be the subject of civil law. For the first time I make it such an object, imposing my will on it, covering it with my personality, bringing it into the sphere of civil possession. The last feature refers to the so-called initial method of acquisition, the first – to derivatives. In cases of the first kind (very rare in the present state of society) there is and cannot be any succession; in cases of the second kind, there is certainly a change of persons holding the right, and therefore there is succession. The original methods, in a historical sense, precede the derivatives, but little by little they give way more and more to the latter and are superseded by them. As the direct connection of man with nature, the source of sensations and needs, weakens, as the social union strengthens, as the idea of ​​law arises from this union and comes into consciousness, the original methods of acquisition find less and less application. Nature, submitting more and more to the labor of man, at the same time more completely submits to the influence of man, so that there are few things left in the material world that would not be included in the sphere of property already embraced by human will. What cannot be called the property of a private person is declared to belong to the state, so that for a private person there is little left for the means and the opportunity to create property for himself in objects of external nature by one independent action of his own will. As for derivative methods, the succession in them is not the same. All succession results from the union of two wills, one of which intentionally comes into possession of the same thing. The combination of these wills is not always the same; The degree of their participation in the transfer of the right to a thing is also different. Succession can occur from the uniform union of two wills that are in balance with each other and expressed at the same time. This is a transaction, as a result of which one party, by prior agreement with the other party, transfers property to it. Here both wills relate to each other actively; Both wills act; neither is limited to the passive attitude of the perceiving will. This includes: purchase, sale, barter, and all contracts and obligations in general in which condition (conditio) prevails. Succession also occurs from the uneven connection of the spirit of wills, one of which freely, independently, without prior agreement, transfers to the other party the right to property, either unconditionally, or by establishing the image and measure of possession (modus); and the other will relates to the first passively, perceiving the first, expressing consent to accept a right or thing: here, in the strict sense of the word, there is no transaction; here there is only consent, or at least there is no refusal; positive activity, on the one hand, is not required, but negative activity is possible. This includes the so-called gift methods of acquisition between the living. Both in the first and in the second method, both wills stand in existence one against the other; can connect, meet and separate at the same time, have the opportunity to mutually decide. But there are cases when the will is active, the will of the giver does not have the opportunity to simultaneously connect with the will of the other side. Having once expressed itself on its own, it does not have the opportunity to enter into a transaction or agreement with another will, and it itself receives strength only when it is separated from the personality from which it received its being. at the moment when the passive participation of the perceiving will becomes necessary for acquisition, the giving will stands before it as something irrevocable, no longer having the opportunity to change or redefine itself. This includes testamentary succession. The separate existence of a person ends with death, the destruction of the civil personality; the subject of law is deprived of its subject. But just as every object of law in circulation, in the sphere of civil life, and still existing in existence, certainly requires a subject, and the deceased did not express his will because he did not want or could not express it, then succession is necessary. It is determined by the general consciousness, the public will, to which the will of the recipient is passive. There is no transferor here, the will of the transferor has not been expressed positively, unless it is assumed, so that past its positive expression, the subject of law is not transferred, but is transferred by itself, due to social and legal necessity. This succession is hereditary, inheritance by law. This is a complete succession, in which either the uniform action of each will is expressed, or the action of the transmitting will with the assistance of the receiving will. But sometimes the right to property is formed without any participation of the transferring will, without any transfer, with the participation of only the personal will - not the one receiving, because there is no one to accept, but the will of the taker, through accidental or intentional or even violent, unilateral seizure. Right arises here either due to the fact that, due to the need to associate each thing with a person, the law confirms the thing to the one who is its undisputed owner; or as a result of such a temporary or accidental state of society in which brute force, under certain conditions, is sanctified by law, and normal concepts of mine and thine are suspended in action; or, finally, due to the legal assumption that the previous owner of the thing left it, and, therefore, it is necessary to put a limit to the uncertain state of law. (Discovery, mining, prescription; only the latter applies to real estate.) Here, what at first was only a fact, a unilateral action of force and personal will, is artificially transformed into law. Prescription only according to legend should be attributed here; in fact, this is not a method of acquisition at all, but a method of proving ownership. Therefore, we spoke about prescription during possession, and then we spoke about it in the doctrine of obligations. Obligations constitute a special part of civil law. Inheritance - testamentary and legal, with allocation, constitute a special part. Dowry laws are classified under family law. § 36. From what moment and how is the right acquired in general and patrimonial right in particular? Roman tradition. German form of solemn announcement. The origin of the forms of patrimonial note, or the implementation of law. Establishment of the newest forms of patrimonial note. The main principles and forms of the new German system. Verification of rights when making a note and the legal consequences of the note. The form of so-called civil property and its difference from natural property. The effect of limitation on rights recorded in a book. History of French transcription before the law of 1855. The value of the cadastre. Registration of real estate in England. Historical overview of land rights in England The question of when and under what conditions can real rights be recognized as finally established, decisively acquired, is one of the most important practical issues of legal life. At first glance, it would seem that a complete, final agreement of the parties is sufficient for the right to be considered acquired. But in the material nature of things there are requirements that no theory can bypass. No matter how decisively the personal will is expressed, the mere expression of this will is not enough to acquire a property right, if this will has not yet been realized in the thing itself, and the personality of the acquirer has not united with the thing to the extent necessary for the acquisition. Therefore, in all those methods of acquiring the right to a thing in which there is succession, the replacement of one person by another in the existing subject of right, it is necessary to distinguish between two separate points, two essential conditions for acquisition. This, firstly, is the moment when the agreement of two wills produces, on the one hand, a right, on the other hand, an obligation: this is how the basis of a right is formed, but this right does not yet go beyond the limits of a personal relationship; The mutual connection of a requirement with an obligation also applies to known persons who have entered into an agreement with each other. Secondly, this is the minute at which the resulting personal right becomes a property right, the actual transfer of a thing from the power of one person to the power of another takes place, so that the acquirer can call the thing his own. This distinction is very important: special attention must be paid to it. There is not a single piece of legislation in which it is not expressed, because this difference is rooted in the very essence of the process of formation of patrimonial, or property rights. An agreement is made and a basis for law arises. From this moment on, the right to demand a thing arises, but this does not mean that the transfer of the thing has taken place, that a new right of ownership has been formed. The party giving or promising becomes only in the position of the obligor; the recipient receives the right to demand, but does not yet become the owner of the thing; The connection between a person and a thing is still mediocre. I can't call the thing mine yet. Therefore, if the one who provided it to me, before the thing actually became my property, managed to provide it to another, with a complete transfer of ownership, then I cannot necessarily demand the thing itself, because I cannot yet call it mine, but I only have the right to demand compensation for myself for the fact that the thing, previously provided to me, was then given to another. In order for a direct connection between a person and a thing to be established, it is also necessary that the receiving person become the actual owner, so that he takes possession of the thing, holds it behind him, and places his personality on it. Only from this moment, from the transition of the thing itself from one to another sphere of private ownership, does a real patrimonial or property right arise. It is very important to determine the moment of this transition, especially in relation to real estate, and mainly in relation to land property, because here it is difficult to recognize by natural signs that the material possession of one person has ended and the material possession of another person has begun: that is why among all educated peoples it was recognized as necessary to establish artificial signs to certify the transfer of real estate. For this purpose, its acquisition was made publicly. So it was with the Romans. A simple expression of will was not considered sufficient for them to transfer property, to acquire a property right. It was also necessary to confirm it by performing an action corresponding to physical possession of the thing. For this purpose, in the ancient period of Roman law, the forms of judicial transfer, in jure cessio, and transfer before witnesses, mancipatio, were used. But the significance of these forms weakened little by little with the spread of the area of ​​the Roman state; the strict form of Quirite law gave way to the action of popular law; This form was not applied to land ownership in the provinces, and yet this land ownership, with the expansion of the provinces, became more and more important. Thus, over time, a new, freer form of acquisition was established in later Roman law: it was accepted as a rule that the transfer of land ownership, just like the transfer of ownership in movable things, is accomplished through a simple transfer of possession or tradition. in this transfer the personal will was exercised through the transfer of ownership. the acquirer, in order to become the owner, must become the owner, so that along with the possession based on the free expression of capable will, the right of ownership also passes to him. This form became dominant in the Justinian era, and the concept of tradition passed along with Roman law into the consciousness of the new European peoples. But even independently of Roman concepts, in ancient German law a unique system for the acquisition of property rights was formed: the concept of acquisition acquired particular importance in relation to land ownership, since land was considered the most important object of private ownership, and the system of public administration and public rights and obligations was based on land ownership. From the monuments of medieval German legislation it is clear that a mere agreement between private individuals, and even the transfer of ownership as a result of an agreement, was not yet sufficient for the transfer of property. To do this, it was considered necessary to solemnly announce the transfer publicly, with symbolic actions performed before the people's court, or, in extreme cases, before witnesses who served as a substitute for the court. This action was given the name Sala, Salung, subsequently gerichtliche Auflas-sung, but it should not be confused with taking actual possession of property (investitura, Gewere); in some areas, in order to fully establish ownership, this last rite was also required; it was required that the new owner, by continuous actual possession for three days, clearly express the beginning of his material power over the property; but the first action, i.e. the public announcement of the transfer, in any case, was considered the most important and absolutely necessary, and subsequently the taking into possession itself lost the significance of a special rite, merging with the rite of judicial announcement. Feudal law gave this ritual its own special properties and forms, so that in order to transfer property that was part of the sphere of supreme private law, the assistance of the supreme owner was required: feudal property was transferred with the consent of the supreme owner or a manager authorized by him, in a feudal court; peasant property - to the landowner or patrimonial chief; allodial property - before the zemstvo court or zemstvo ruler, in the presence of third-party owners. The transfer of property in cities took place before the city court or council, with a note in the book about city property. A similar order existed, as proven by the latest research, in the northern provinces of France 270 and in the Belgian provinces. These forms had important practical significance for both public and private law: their observance was associated with the provision of feudal, communal and state rights and obligations. Not earlier than with the performance of the established ritual, the property right was transferred to the new acquirer, i.e. to the allodial owner - property, to the fief - his dependent possession and use, to the city owner - the right to the land under the building. From that moment on, the right became material, and therefore the completion of the transition received the technical name of implementation. It corresponded to the Roman transfer, with the difference that the formal implementation did not require the unconditional transfer of actual possession. The acquirer received the right to take possession of the acquired property himself if he did not meet resistance; otherwise could require the judiciary to take possession; but the new owner received the full, complete right to protect his possession from everyone and everyone, and not from his counterparty (Gewere) only in such a case when his possession, together with the possession of the one into whose right he entered by transfer, lasted at least a year from the day. Only on this basis was the indisputable protection of possession affirmed for him against any claim that contradicted the basis of his property, his right or the right of the person from whom the possession was transferred to him under the contract. This German prescription, which finally confirmed the owner's right of ownership of the acquired property, differed from Roman prescription in that for its validity it was necessary to perform a preliminary rite of sale: possession alone, although indisputable, and in good faith, and based on a legal act of private will, could not in itself lead to the recognition of an indisputable right for the acquirer. The correct execution of the sale was necessary for this, but, on the other hand, both the correctly completed sale and the resulting quiet possession did not affirm the owner of an unconditional right if the contract on which the sale was based subsequently turned out to be invalid. If the right to the same property was claimed by two persons through legal acts of acquisition, then the patrimonial right was asserted for the one who had legal implementation on his side or managed to fulfill the ritual of it according to his act before the other. Thus, the rite of implementation acquired significant significance and became, so to speak, the key code of the German system of acquiring and strengthening patrimonial rights; and with the introduction of written proceedings, it became customary to announce the transition in writing before the court; Later, in many places, especially in cities, even special land registers were established, in which transfers of real estate were entered for each district. But it was not the inclusion in the book that in itself served as a sign of the completed transition, but the public announcement of the transfer before the court, which was in accordance with Roman tradition. This should not be lost sight of when speaking of the old German system. This is what her essential ritual consisted of. The parties appeared in person before the court (or in cities before the city council, town hall) and announced: the alienator, his desire to provide the estate, the acquirer, his desire to accept it; in this case, the seller announced that the sale price had been received, or the buyer agreed to ensure payment of capital or annual payments on the estate. An act about this was drawn up and recorded in the minutes by the city scribe or secretary; a collection of such protocols was called a land book, but in addition, from the 16th century, it became customary to compile indexes to these books in a systematic manner, in the form of registers of estates with notes on transfers, duties and mortgage rights. Before entering into the protocol, the court usually began to verify the rights of not only the transferor, but also the acquirer; the right of the former was certified by the very protocol that was drawn up when the property was transferred to him, and if such a protocol was insufficient, either by the testimony of old-time witnesses, or by other undoubted evidence of the right to dispose of the property. Regarding the acquirer, it was necessary to ascertain whether he has the right to own the estate within the community in which the acquired estate is located. in such proceedings, the personal participation of the parties was necessary to complete the act of acquisition 271. This was the national German concept of acquiring property rights; but before it reached its full development and was established in the latest legislation of Western Europe, it had to endure a struggle with the principles and traditions of Roman law. Under the exclusive influence of these principles and legends, learned German jurists of the 16th and 17th centuries began to disseminate in the courts and in the laws another, Roman theory of acquisition, and refused to recognize even the requirements of real life if these requirements were not consistent with the law, which they recognized in general and in particular as unconditionally binding. Contrary to ancient custom, contrary to the need for public and private law recognized in practice, scientists and judges began to recognize, on the basis of Justinian's law, that even without a patrimonial note, the transfer of patrimonial rights is accomplished through a single transfer based on the legal expression of will. From here came the confusion of the Roman principle with the Germanic, and as a result of this, the uncertainty of patrimonial rights and patrimonial ownership began, which was harmful for both public and private credit. Despite the fact that in many localities, customary German law remained in practice, and writing in books was considered a necessary action, although symbolic actions had long given way to the written form of performing acts 272. Practical sense finally prevailed over learned tradition and one-sided theory, and the 19th century was destined to again raise the half-forgotten beginning of the patrimonial note, and to base on it a whole system of acquiring and strengthening the rights of patrimonial property. Even in the second half of the 18th century, the desire of legislation to give prominence and firmness to land ownership was revealed; in this endeavor, of course, not only the goals of civil law were visible, but first of all financial goals and the goals of social economy. Since 1760 (i.e. from the first cadastre in Milan), determined attempts by governments began to bring into awareness the land ownership of public and private ownership, for an even and correct distribution of taxes, for this it was necessary, first of all, to determine the boundaries of possessions, and to verify the grounds of each. The resulting uncertainty of rights aroused the idea of ​​establishing a more correct system for acquiring rights to land property. This idea was further developed in institutions for public and land credit, which began at the end of the 18th century. In the sphere of public law, the sound German concept of the acquisition of property was revived from state and public needs: moving into the sphere of civil law, this beginning here finally developed into a whole system of the so-called transcription of patrimonial rights in land and mortgage books. Among the new legislations, the first example of this system appeared in the Prussian mortgage law of 1783; Other German legislation soon followed Prussia's example. It is true that the main purpose of the Prussian law was to ensure and expand the mortgage right, but due to the natural connection of this right with the patrimonial right, the provisions of the new law also became important for the right of ownership, so that, by its force, the transfer of property was made dependent on entry into the land mortgage books. But over time, Prussia was warned of improvements in mortgage law by other German states: Mecklenburg, Saxony, Bavaria and others. Prussian legislation did not catch up with them until May 1872. At present, not only in German legislation, where the system of patrimonial records has reached its fullest development, but also in the legislation of almost all European nations, a decisive desire is expressed to establish on solid foundations the rights of private land ownership and to bring them into full awareness, through the constant control of public power. The entry into the land registers of any transfer of real estate and real rights has become the newest form in which the acquisition of these rights is accomplished. These are the main features of the new German system. Its basic rule is the following: land ownership, upon transfer during life, is acquired only by a note in the land register. These books are kept either at the courts or in central places of public administration, or by special persons of notarial character. In the Swiss cantons, land registers are kept for the most part in each community or parish. When arranging recording organs, the main difficulty is that it is not always possible to find a sufficient number of experienced and accurate people for this task; Therefore, of necessity, one has to be content with large centers of note and leave them at judicial places, especially when the notarial part has not yet received sufficient development in the state. Establishing a new regiment of officials for this matter, or entrusting it to elected representatives of urban and rural society are two equally inconvenient extremes. The job of the custodian of mortgage and patrimonial books is not just mechanical: for him, the qualities required of a simple registrar or scribe are still not enough. In addition to the most conscientious accuracy, he is required to have legal and economic information along with practical experience: he has to review many different documents and discuss rather complex legal issues. This matter is one of those cases in which the slightest error or inaccuracy produces a lot of confusion, and such errors and sources will be encountered incessantly if the matter is entrusted to ignorant, inexperienced or careless people. It can be said that the entire success of this institution depends on the greatest correctness, accuracy and speed in its application: from this, as has been observed in practice, much more than from the particular shortcomings of this or that legal system, this institution has nowhere yet fully achieved its goal: everywhere there is a shortage of specialists capable of the case, and judicial places cannot carry it out properly, because they are burdened with many other activities. Everywhere one hears complaints about the disorder in the keeping of books, about errors in the inventories of property, in indicating the grounds for acquisition, about the slowness and indifference of officials who sometimes hold documents for a long time without starting to record them, while during this time changes may occur in the property itself, or in the claims and obligations lying on it, that are unfavorable for the interested parties - and sometimes they rush to record it somehow acts without thoroughly understanding their meaning. Legislators are trying to alleviate this imperfection in people by simplifying and improving the mechanism of the note itself. Everywhere two books are considered necessary: ​​one main (Hauptbuch), and a register in which notes and notes are made as special items, and another general or journal (Tagebuch), in which all requirements for notes are noted in succession as they are entered. These registers and extracts from them are considered publicly committed acts and have full evidentiary force; access to books is free for everyone, and anyone who cares about property has the right to demand that they show him the book in which it appears recorded. It is necessary, however, to note that the technical difficulties in recording rights are significantly reduced with the adoption in new legislation of the principle that when registering, verification of the grounds for acquisition is not required: in this case, the basis for the note is only to certify the mutual agreement of the parties; then the technique of writing the note itself becomes simpler, and it becomes possible to separate it from the vessels and associate it with small centers. Any land property must be recorded in the land register of the district in which it is located. But for the accuracy of the loan and for the convenience of references, it is very important in what order the note is made and marks are made in the book. The chronological order of the arrangement of articles in the main register does not at all satisfy the purpose, because it is not based on any systematic basis, therefore it does not make it easier, but makes it more difficult to find articles and notes; In general, it is customary to produce notes according to individual articles, but the unit to which each article must correspond is not the same everywhere. Where articles are arranged according to the names of the owners, there the patrimonial note does not quite achieve the goal, because the identity of the owner changes with the transfer of the estate, and the purpose of the note is to determine the right of a person to the extent that it relates to the property, therefore this property itself, which invariably remains in the same place, should serve as the subject of research and note, and not the transient personality of the owner 273. But it is also necessary to determine the units of property for which separate items should be allocated. Where a piece of land that has only material or geographical integrity is taken as such a unit (for example, a field, meadow, forest dacha, etc.), and for each of such sites a special article is assigned in the book, the articles become excessively detailed, correspondence multiplies and references become difficult. Therefore, a unit is usually taken to be the possession of one person, which has economic integrity, i.e. a set of plots belonging to one estate; for each of these estates, a special sheet is assigned in the book, on which all transactions related to this estate are indicated in chronological order. If one owner has several similar estates, then a separate article is allocated for each of them. In the event of an economic division in such an estate, its previous integral history is concluded, and a separate history is opened in separate articles for each newly formed part. Thus, when reviewing the book relating to the district, one can immediately form a clear understanding of the legal relations and duties that lie on the land property of the entire district and on each estate in particular. The deed on the estate can be made far from the place where it is located, but in any case it must be recorded in the book at the place of the property. Entry into the book is for the most part left to the will of the interested parties, alienating or acquiring; but some legislation recognizes inclusion in the book as absolutely necessary; Every official who has a deed completed or has received information about a completed deed is obliged to report it to the appropriate official of the district where the property lies for a note in the book. Of course, the difference in the law depends on from what point of view it looks primarily at the patrimonial note system, and how connected it is with the general state system of taxes and duties. Where the main purpose of a note is considered to be the firmness of civil law, there the law leaves it to the will of private individuals to demand or not demand a note. The newest laws mostly provide a note to the good will of the parties in their own interest, without necessarily requiring it. The legal force of the note - approving the acquisition in relation to third parties - extends unconditionally to all transactions between living persons, by which a real right in real estate is transferred, established or assigned, such as: ownership rights, duties on the estate, continuous annuity, mortgage rights, emphyteutic, superficial, etc., transfers of real claims, divisions of inherited property included in the legal force of court verdicts on property rights and even contracts for the lease of real estate for long periods, or with the receipt of rent several years in advance. Of particular importance is the transfer of rights that occurs as a result of events that do not depend on the agreement of the parties, namely, the transfer by inheritance and will, by entering into marital relations of property, by expropriation and forced sale at public auction, by the redemption of easements and duties on the estate. And in these cases, although theoretically the moment of acquisition occurs regardless of the note, the action of acquisition - in relation to third parties - is not removed from this dependence. In order to give the note all possible fidelity, it was initially required almost everywhere (under French law) to accept for the note only acts certified as authentic or attested by a public office or a notary, but not household acts: this rule was considered necessary to prevent misunderstandings and disputes, because household acts are written without any control, may contain conditions and orders that are unclear and illegal, and the very authenticity of the signature under household acts may later be contested. The latest legislation, while giving the note decisive significance, at the same time strives to separate it from the execution of an act on the estate, and to simplify it as much as possible. This simplification reaches the point where it is recognized as possible (as, for example, in the Prussian law of 1872) to make a note upon a verbal announcement from the alienating owner that he wishes to transfer the estate to the name of the acquirer, and the acquirer that he wishes to write the estate down to himself. Previous laws paid special attention to the basis of acquisition, and therefore, naturally, the note in the book was connected with verification of rights and with complex formalities. Perhaps there was an urgent need at a time when the note in the book was still a new institution: care had to be taken that the right of the actual owner, which should, according to the note in the book, be considered the basic book right and the support for all subsequent rights derived from it, was entered into the book with all possible caution. Therefore, the law stipulated that any right, when recorded in the land register, is subject to special verification by the institution or person in charge of the note. This check should make it known: firstly, whether the person who alienates the property or establishes a property right in it can really be considered the owner of the property; secondly, whether this person is capable of alienating property or performing a legal action on property. Of course, if the person on whose behalf the transfer of property is made or the property right is established is already recorded in the book as the owner of the property, then there is no need for any further verification: here the property represented by the article in the book speaks for itself. But at the same time, it becomes impossible to establish a property right on behalf of an imaginary or dubious owner if it is not recorded in the book by the owner of the estate. In the case of alienation of property, the alienator, if alive, must participate personally or through an authorized person in the note that is made on his behalf: no matter how positively the will to alienate the property is expressed in the act, no matter how decisively the obligation he has assumed is expressed, this act alone, without personal assistance, is not enough to transfer the estate to another person as a result of the agreement. This is the general rule; but its strict application, in some cases, would lead to injustice, because it would give the counterparty the opportunity to refuse to fulfill a contract that has been fully completed. Thus, the seller could, out of regret that he took it cheaply, and out of a desire to sell the property at a higher price to another, refuse to transfer the property to the buyer: in such a case, it is necessary to determine positively when the acquirer has the right to force the alienating person to transfer the property under an agreement and in what cases the judicial authority can, despite the lack of personal assistance of the alienating person, recognize and record the transfer of property. It may also happen that in order to approve the transfer, confirmation of the act is necessary from persons who have the right to dispute, for example, from the heirs of a deceased patrimonial owner, when he did not manage to register the estate with the acquirer during his lifetime. In such cases, the court, at the request of the acquirer, usually invites interested parties to submit a response within a designated period, or summons them publicly, and if an objection is not made within the deadline, orders the estate to be registered with the acquirer. New legislation significantly simplifies the verification procedure. Renouncing Roman principles, the law gives the acquisition one basis - a book note, and asserts patrimonial rights on it exclusively, making it as easy as possible. A strict title check is not required to record a patrimonial right; The agreement of the parties with the note itself is considered sufficient, so that the execution of a legal act on the estate seems to be a special action that does not depend on the note and does not have a decisive influence on the patrimonial right associated with it. The new owner entered in the book is recognized as the legal owner of the property. This does not mean, however, that its right receives the meaning of an unconditional, absolutely indisputable right. This means that all persons entering into transactions with him regarding property of which he is listed as the owner can safely recognize him as the owner. But its ownership, even after being entered into the book, may be subject to dispute; the act that constitutes the basis for his acquisition may be refuted; another, better, stronger right may be asserted against his right or against the rights of the person from whom the property was transferred to him; however, and despite the dispute, he continues to be listed as the owner. If, in a dispute, it was recognized that he acquired the estate incorrectly, that the acquisition title was illegal, that the transferor, in essence, did not have patrimonial rights, the consequences of such a verdict can only be personal, i.e. obligation to remunerate, but patrimonial rights remain with those for whom it is legally recorded in the book. Every civil law is finally and unconditionally established by prescription, i.e. when it becomes impossible for a third party to bring a dispute, with the exception of limitation. But after recording the acquired right in the book, the conditions of possession subject to prescription change somewhat: possession, of necessity, must be both in good faith and based on right; but in addition, this legal basis of ownership is given special firmness by the very note, made under the supervision of the government and with publicity, which makes it easier for anyone who has the right to argue to present a dispute. Therefore, many legislations, with the establishment of a system of patrimonial transcription, also establish new shortened statutes of limitations, giving the right an unconditional character: of course, this reduction is all the more necessary the more vibrantly the movement of social life takes place in the state, the more developed the publicity of public actions is in it, the communications are simplified and facilitated, and finally, the more limited the very territory of the state. Such a reduction in terms is necessary in order not to weaken the power of reliable evidence, which, according to the purpose of the law, is assigned to the note of the estate for the acquirer. The latest legislation goes even further: they decisively eliminate the effect of limitation on rights recorded in the book. The law tries to determine: under what conditions is it permissible to bring a dispute against the rights of the owner recorded in the book? In the best legislation, it is accepted as a rule that every plaintiff who wishes to bring a dispute in court against a real right recorded in a book is obliged to first note his claim in the land register against the article in which this right is written: so that without certification of such a mark, no court has the right to accept a complaint from him. Such a mark serves as a guarantee for the person bringing the dispute that the owner of the disputed estate will not have the opportunity to alienate this estate, because the protective mark in the book serves as an obstacle to a new patrimonial note on behalf of the owner. In this sense, a protective mark is equivalent to judicial support for a patrimonial claim and the imposition of a prohibition on the estate. In the same way, the decision made by the court on such a complaint must be noted in the book immediately, and certainly before the verdict is put into the final form of the act. Thus, a person dealing with the owner of the property, by one mark on the side of the article, can verify: to what extent the patrimonial right is firm and reliable; if the complaint is rejected by the court, then the right acquires even more firmness. So, in any case, the basic rule of transcription remains in force: the owner of real estate, the true subject of real rights, is considered only the person who is included in this capacity in the land register - and specifically in the main register, and not in the general register of claims. It happens that a requirement entered into the general ledger in advance remains unfulfilled for some time, because all the conditions necessary for the final note have not yet been fulfilled; in this case, the act can be noted in the general ledger by the member who noted the claim in the general journal. But until the proper note is made in the ledger, the transfer of rights is not considered completed; the seller, for example, continues to be considered the owner of the property, even though the act of sale has been finalized, even though the money has been received in full from the buyer, even though the buyer has taken possession of the purchased property. In what legal position does the acquirer-owner remain who is not recorded in the book? The new owner of the property, while not recorded in the book, is not considered the owner, and does not have the right to transfer the property to anyone. His right has not yet been fully realized, but has acquired a special character and in this form even enjoys some protection of the law. He acquires possession, and, moreover, such possession that in itself can become property by force of general prescription. As an owner, he has the right to protect his possession before the law from the interference of third parties, but he exercises this right only against the person from whom he received the estate on the basis of a legal transaction, and against only such third parties who do not have a full real right to the same property recorded in the book: otherwise, the right of another person recorded in the book takes precedence over his right, even if the act on which it is based took place much later than his act. Thus, if, for example, a seller, having sold an estate to one person, then sold it to another, and the secondary act of sale was recorded in the book before the act of the first buyer could be recorded, then one right of the second buyer is recognized as a real right, and the first buyer cannot object to it, even if he had previously taken possession of the purchased estate, so that the second buyer does not have the right to oust him from possession. The first buyer, having not managed to acquire a property right, cannot retain possession of the property: he can only demand compensation from the seller. Many legislations (for example, Saxon, French, Belgian), for fear of violating justice, give preference to a recorded deed over an unrecorded one only in such a case when the first one was recorded in good faith, when, for example, the secondary buyer, when recording his right, did not know that the estate had already been sold to another. But other legislation, for example Austrian, strongly rejects such a restriction; practice seems to justify the latter opinion: it is more consistent with the practical goals of the patrimonial note. The rule of French law initiates many processes, and, moreover, such processes in which it is difficult to make the right decision, due to the lack of external signs of good faith. Moreover, it is hardly possible to unconditionally recognize the second buyer as dishonest for the fact that, knowing about the previous sale, he took care to register the estate for himself as soon as possible, warning the first buyer, who was less active: one can hardly accuse him of deception when the law itself declares that the transfer of property is carried out by means of recording, and that before the recording of the property right under the contract, this right cannot yet be recognized as fully established. The new charters of the land record leave very little room for the action of intent or bad faith on the rights recorded in the book. Previous legislation, bearing in mind the contradiction between the two bases of patrimonial right: according to the title of acquisition and according to the note in the book, tried to reconcile this contradiction in the concept of o mala fides, bad faith of the parties. Thus, the old Prussian law (Allg. Ldr.) discredits the acquisition by note and overthrows it when the acquirer knew that its transferor, although recorded in the book by the owner, did not, however, actually have the legal right of ownership; defames even when the acquirer knew that there was a third party who had a priority or senior title to the acquisition. Thus, a personal right based on a contract could be given priority over a right recorded in a book. The new Prussian law limits the importance of the good faith of the parties when making an entry in a book: the written right can only be subverted in the case of positive deception or forgery in the entry. Thus, the new principles introduced by German legislation are not consistent with the old classical concepts of Roman law about acquisition by transfer, about the meaning of title and the grounds of acquisition (causa, titulus, modus acquirendi), and about the general effect of prescription. The new, artificial, formal or book law takes precedence over the old principle of substantive law. German lawyers also openly admit this. (See Einleitung zu den neuen Preuss. Grundbuch-gesetzen. Berl. 1872.) Previously (for example, in Saxon law) two special categories of rights were recognized, of which one, written down, was assigned a special property and the name of civil property, and the other, unwritten, although exercised in possession, was given a special property and name of natural property (bürgerliches und natürliches Eigenthum). Such a division, rejected by almost all other legislation, contradicts the fundamental principle of the patrimonial note and its practical goals. It was mentioned above that since ancient times in France there has been a two-fold system for acquiring property rights: in some provinces the German custom of public transfer consciousness has taken root; in others, under the influence of the principles of Roman law, a simple transfer was required for acquisition, and the transfer was made by contractual consent of the parties. At the end of the 18th century, as is known, with particular force, the desire to bring the diversity of local law throughout France to the unity of principles and rituals was revealed. The consequence of the revolution of 1789 was the transformation of the entire social order on the basis of new principles, opposite to the principles of feudal law: this revolution could not but affect the right of property. On August 4, 1789, along with the entire system of feudal rights, the patrimonial courts, before which the most important rites of transfer of property (oeuvers de loi) were performed, and the establishment of mortgage law were destroyed: these courts were soon replaced by district courts; At the same time, the previous ritual of strengthening rights in the provinces that adhered to this ritual (pays de nantissement) also changed; its place was taken by a note (transcription and inscription) of contracts in the registers of protocolists at district courts. Then, when a new law on mortgages was published in the third year of the republic, it was decided to include all transfers of land ownership in the mortgage books; A few years later, precisely in the VII year of the Republic, the law on mortgages underwent new important changes, and at the same time the following rule, first expressed in France, was established: acts of transfer of property and rights subject to mortgage must be recorded in the mortgage registers of the district in which the property is located. Acts not recorded in this manner should not be valid against third parties who, having entered into an agreement with the seller, will fulfill this provision of the law. As a result of the transcription, the same title to the property that the seller had, and with all debts and mortgages that lay on that property, passes to the purchaser. On the basis of this rule, the acquirer of property, for example, the buyer, by the force of the contract itself, became the owner both in relation to the seller, from whom he could demand the transfer of property into possession, and in relation to the state - for he could demand from the day the contract was made to be recognized as the owner - and in relation to all third parties who could not base their rights on the transfer from the same seller. But he was not considered an owner in relation to someone who could have acquired the same property from the seller before he entered his right into the book. Until the buyer’s agreement has been made public to all third parties through transcription, in relation to them the seller continues to be considered the owner, so that new alienations made by him of the same property or part of it, in the name of third parties, are valid against the first acquirer. Of two buyers of the same property, the one who managed to first register his right is considered the true owner. This theory of acquisition remained in force until the publication of the Napoleonic Code. The new code, as you know, was published not in its entirety, but in parts, and in parts it was discussed in the State Council and in the legislative body. When discussing the third book, on methods of acquiring property, it was decided to leave in force the rule of transcription in relation to the gift of real estate: the question of the inconsistency of this rule had not yet been raised. But then, during the discussion of the fourth book on obligations and contracts, heated debates began on precisely this issue. Defenders of transcription pointed out the disadvantages and difficulties of silence in property transfers, argued that society needs to know every alienation, to know who should be considered the owner at what moment. Opponents of transcription found it embarrassing for private individuals, argued that it was unfair to blame the acquirer for not having time to register the estate due to ignorance or mistake, and disputed the very necessity of the transcription ritual. But all these debates did not lead to a positive result, and in order to get out of the disagreement, it was stipulated in Article 1140 of the code that the consequences of the obligation on real estate will be determined in the chapter on sales and mortgages. But when they reached the chapter on the sale, the previous debate resumed with renewed vigor and did not lead to a clear decision: the direct question was again left aside. But since everyone agreed that the mere force of the contract was sufficient to recognize the transfer of property as completed between the persons participating in the contract, it was decreed in Article 1583 of the Code that the sale itself gives the buyer the right of ownership over the seller. But the question of what the consequences of the sale should be in relation to third parties still remained unresolved: there was no mention of it even when discussing the recording of mortgage rights. Meanwhile, the above rule of transcription, established by the law of the 11th Brumaire of the VII year, was not formally repealed, so that after the publication of the new code, doubts arose in the courts about whether the rite of patrimonial transcription for the transfer of real estate was left in force or destroyed. The Court of Cassation decided, and everyone agreed, that this formality no longer exists: subsequently, strong voices were heard against such an interpretation from many lawyers who studied the historical side of the issue, but nevertheless, the transcription of patrimonial rights was officially recognized as destroyed. Thus, from the publication of the Napoleonic Code until recently, there was a strange rule in French legislation, which constituted its sharp feature, a rule that was not consistent with the principles of either the Roman or the German acquisition system. For the transfer of property, neither Roman tradition nor German transcription was required, absolutely no external obvious sign was required: the transfer not only between counterparties, but also in relation to all third parties, was accomplished by the force of a simple agreement. This rule of French law was rightly condemned by both science and practice. when in action, his property right could not have the proper firmness, because it did not have fame and certainty: his transfer was carried out silently, so that no one entering into a transaction with the owner of the property could be sure whether his right was really firm and was the true right of ownership. The shortcomings of the mortgage system in France became a proverb, but it was impossible to begin to correct it with such uncertainty in the transition of patrimonial rights. No matter how perfect the mortgage system is, it cannot operate successfully if the law has not established certain signs, but by which anyone could reliably recognize the transfer of ownership and judge the position of the property offered to him as security. Because of this uncertainty, private individuals in civil transactions are so often subject to deception and ruin that private property in France could not be considered secure at all, and the famous Dupin had every reason to say in one of his speeches before the court of cassation: “Whoever buys from us cannot be sure that what he bought will not be taken away from him; whoever pays is not sure that he will not have to pay another time; whoever lends money is not sure that he will get it back.” Since 1825, complaints about the sad state of land credit began to be heard louder and louder in France, but at that time the main cause of the disaster was considered to be the imperfection of the French mortgage system and demanded, first of all, reforms in it, not paying attention to the fact that the most perfect mortgage system cannot operate successfully if the situation of the property is such that the loan cannot rely on it, if the lender is not able to calculate with certainty the actual value of the property that is offered to him as security, not may even know for sure whether this property belongs to the one who claims it as his property. These demands and complaints did not remain without consequences, and in 1841 the government began to collect the opinions of learned economists, lawyers and practitioners on the important issue of improving private land credit. A special commission established for the same purpose carefully discussed this subject from all sides, and collected a wealth of information and materials; but her work was interrupted by the February Revolution. A new commission on the transformation of mortgage credit was already established by the national assembly; the draft she processed was considered in the national assembly in 1850; but the debate remained without result. Meanwhile, Mr. Volovsky aroused in the national assembly the idea that Casimir Perrier had expressed back in 1826, the idea of ​​​​the need to establish land loan societies, and the question of mortgages received a new direction and became a secondary issue in France. It turned out that the improvement of the law on mortgages would not be successful unless, at the same time, institutions were created that would serve as intermediaries in credit between the capitalist and the landowner. The National Assembly did not have time to discuss the draft regulations on land credit drawn up in it; but this subject seemed so important for the national condition, and was so closely connected with the political questions then on the agenda, that the new ruler of France, soon after his accession to the throne, in February 1852, issued the famous decree on land loan societies. The consequences of this decree did not correspond, as is known, either to the magnificent promises of the government or to general expectations: the new law on credit societies in itself could not transform and increase credit when other parts of the legislation lacked the provisions necessary for credit: it was also necessary to bring private property in the whole state into precise awareness through cadastral descriptions and land books, to alleviate the exorbitant burdens and duties that lay on land property, to establish the correct system of deed transcription, simplify and improve mortgage laws and, in particular, the complex forms and slow production of public sales of properties to satisfy foreclosures. The most urgent need was to improve the law on the transfer of patrimonies and the establishment of mortgage rights, and the legislator's attention was primarily drawn to this subject. As a result, the State Council drafted rules on restoring the transcription of real estate and real rights, which received the force of law on March 23, 1855. This law corrects one of the significant shortcomings of the civil code, which we indicated above. All patrimonial and real rights, with the exception of inheritance, all acts and agreements on these rights between private individuals, are recognized as subject to entry into the registers of the custodians of the mortgage (registres des conservateurs d'hypothèque). The right of the acquirer in relation to the person from whom it was acquired still does not depend on this note, but for the acquisition of rights in relation to all third parties, transcription is declared absolutely necessary, therefore, the new law positively recognizes that full ownership is acquired only through a note. It is impossible not to see a significant improvement in this rule, and in this regard the law of 1855 constitutes an era in French legislation. But at the same time, the new law only partially satisfies the needs of credit. The new law leaves intact the previous rule, according to which property is acquired by force of a simple contract, in relation to the person from whom it was acquired and his representatives. But property, and in general any real right, by its essence, does not allow everyone; Therefore, the recognition of law at the same time as perfect in relation to one person and imperfect in relation to other persons contains a contradiction that is incompatible with the concept of firmness and unity of law. The law would be consistent if it decided to recognize that as a result of the contract only the right to demand transfer from the previous owner arises, a right that does not yet have a proprietary character. One of the significant disadvantages of the French transcription is that not all rights that have a patrimonial property are subject to it, and that the note, although made at the location of the property, does not refer to this property, but to the person of the owner, so that it becomes very difficult for those who need to enter into a transaction with him to collect accurate information about the state of the property and about the debts and obligations lying on it. When discussing the law, it was proposed to arrange the transcription not by the persons of the owners, but by property, and even for greater accuracy, to bring the land registers into agreement with the system of cadastral descriptions; but this proposal was rejected. One of the most important tasks of the present time, a task whose solution, without a doubt, constitutes the most important era in the history of social development, is the complete application of the cadastre to land ownership. Until now, almost everywhere more wishes and assumptions have been expressed on this subject than have actually been done, although the question of the cadastre is far from new, and the cadastral system was known in many Italian states back in the 15th century, especially in Lombardy and Tuscany. Quite successful attempts to apply it have been made recently in Geneva, in the Kingdom of Italy, in Bavaria and some other German states, but until now this application has been one-sided, with the aim of establishing a system of taxes and duties on a solid basis. the question of the application of the cadastre is now becoming incomparably broader, at least in political literature, from where sooner or later it will have to, having been developed, move into the sphere of legislative activity. With the help of the cadastre, it is intended to arrange a complete description of the land property of the entire region, with a precise designation for each plot of space, type, boundaries, all physical and economic accessories, properties and characteristics, all duties and claims lying on the estate, all rights that belong to it or are secured by it. Thus, the cadastre, the patrimonial note and the establishment of mortgage rights must merge into one institution, so perfect that for each estate it is possible to immediately and reliably determine its material image, the economic value and the measure of the loan associated with it. Each noticeable event that changes the material or legal appearance of the estate, for example, division, construction, alienation, long-term lease, pledge, etc., would be noted in one of the sections of the descriptive sheet, and a copy of this sheet would be attached to each act or transaction on the estate: thus, the very execution of the acts would be significantly simplified, facilitated and verified. It is not difficult to imagine how much land credit between private individuals, and not just land credit, would benefit from this. The entire everyday aspect of property would receive from such an institution the character of reliability, the entire system of evidence would change its appearance, and that factual uncertainty, which now constitutes the main reason for the proliferation and complexity of processes, would be significantly reduced. Most of them relate to issues of property and possession, requiring lengthy and valuable research on the spot, inspections, testimony, verification of documents, etc., but due to the nature of the signs of the event, the restoration of the truth very often, even after research or verification, turns out to be impossible, so the court has to sacrifice material truth to formal truth. Cadastral records, if they acquire the character of reliability, will serve to eliminate many such inconveniences and prevent many litigations between neighbors and disputes about property rights. Regarding the acquisition of movable property, French law has a general rule: en fait de meubles possesion vaut titre. Movable property, therefore, there is no reason to demand from the hands of the actual owner: only the one from whom the thing is stolen or lost is allowed to demand it in due time from the hands of anyone who has it (Article 2279 C. Civ.). And this rule follows that the real right to movable property is acquired, according to French law, by cash transfer, quite contrary to what is accepted regarding real estate transferred by virtue of an agreement, and disagrees with the general resolution of Article 1138 of the Civil Code, which states that one agreement on the transfer of a thing makes the person who has to receive it the owner of the thing. This is the logical conclusion from rule 2279 of Art. regarding movables; its owner becomes not the one to whom the thing was previously transferred, but the one to whom it was transferred first. This is where the internal contradiction in the law comes from - a contradiction that is still the subject of difficulties in practice and disputes between lawyers. Certain articles of the civil code relating to special methods of acquisition further strengthen this contradiction. So, for example, Art. 1141, relating to the general part of obligations, stipulates that movable property is considered the property of the one to whom it was previously transferred, and not the one to whom it was previously assigned, as long as the actual owner is in good faith, and Art. 1583. on the sale decides that the buyer becomes the owner of the thing from the minute the agreement is made. 2102 st.p. 4 gives the seller, who has not received payment for the thing, the right to satisfaction from this thing only as long as it is in the possession of the buyer, therefore the article again corresponds to a different principle, expressed in Art. 1141. – 1702 and 1703 art. about me, on the contrary, they agree with the general rule of Art. 1138. on the transfer of property by virtue of a simple agreement. Art. 1867 on the partnership's ownership of movable things, corresponds to the rule of Art. 1141, and the decisive power of transfer. Wed. more articles on the acquisition of movable things by increment and specification (566, 567, 568, 572, 573), occupation and discovery (713, 716). In England, the transfer of real estate is associated with many difficult formalities unique to this country, due to the peculiarities of its history and way of life. In England, as elsewhere, in the old days land ownership was associated with the right and with the obligation of military service. During the era of the Norman Conquest, the entire kingdom was divided into 720 baronies, the owner of each barony was obliged to report for royal service with the required number of armed men. These barons, in turn, transferred individual parts or sections of their estates into dependent hereditary ownership to other persons (Lease, Leasehold) on the same conditions as they themselves retained ownership from the king. Thus, the king was, in essence, revered (as he is now revered) as the supreme owner of all privately owned lands; there were no allodial estates in England at all, any land that was privately owned was considered a royal fief, and the transfer of subordinate possessions or fiefs from one person to another was permitted only upon certification that the successor would be equally capable of serving as the transferor. As a result, the transfer of estates by inheritance was subject to taxes, and when the inheritance reached a woman, the woman had to find herself a husband capable of service, at the royal discretion. Thus, the owners, not having property in the estates, could not freely dispose of them, however, they entered into obligations and made debts that required satisfaction: the owner’s estate was considered inalienable. Therefore, in necessary cases, claimants, with the permission of the judiciary, received the right to use the works and income of the estate. Regardless of personal obligations that fell on income, many owners established in favor of their widows, younger children and relatives the right to an annual income from the estate: this was done by guaranteeing the transfer of the estate to a third party (Trustee), so that it would make the required periodic distributions to appointed persons. Over time, the fundamental concept of the unconditional inalienability of private estates changed, and in the 17th century the feudal form of ownership associated with military service (military tenure) was finally destroyed. From this era, a new patrimonial law in England began, but in this new state many of the old concepts, customs, relations and formalities were retained: the fundamental idea that every patrimonial (freehold) possession of land depends on the supreme property of the king, and that except him no one has allodial, full property - still forms the basis of patrimonial law in England (Law of tenure). Regardless of this free ownership, there are still lands of involuntary ownership, called copyhold, as opposed to freehold, freehold. These lands are of the following origin. Barons (Lord of the Manor) - landowners distributed part of their lands, except for free people, and to their vassals, people settled on the land, at their own discretion. These people originally belonged to the land, but the land did not belong to them, and the owner of the land could take it away from them whenever he wanted. But over time, their ownership acquired some firmness, and was strengthened by a document - namely, an extract (Copy) from the book of the patrimonial court, in which their ownership was recorded, as a result of which the ownership was given the name Copyhold. Under James I, the Vilans received personal freedom, but their ownership, passing by inheritance to posterity, remained dependent on the feudal custom under which it arose, and on official duties. These duties have mostly ceased, but some of them remain in effect to this day. So, for example, the right of the supreme owner - the lord, extends in these possessions to minerals, constrains the owner in giving the land for long-term lease; when the possession is transferred to the lord, duty is paid at the usual rate, etc. However, the establishment of such rights again for the future is not allowed, and existing dependent possessions of this kind can be whitewashed through the redemption of duties. Feudal property initially contained the right of personal use and did not allow free transfer. Like any dependent property, this right also strived for independence, for transformation into hereditary property. Under the influence of these impulses, a legal form of the so-called feudum talliatum was formed, with which was combined the concept of the property belonging to an entire clan. The owner of the estate was obliged to preserve it for his heirs, in accordance with the will of the previous owner, which bound the will of all subsequent owners. Under Edward I, the law on deeds of gift de donis conditionali-bus, famous in English history, was issued - a law that corresponded to the interests of the landowning aristocracy - to secure their possessions for the family and make them dependent on royal power. By virtue of this law, the fate of the estate was determined solely by the owner’s act of transfer of the estate as a gift. The estate, in the hands of the subsequent owner, was considered inalienable and, upon death, turned to his heirs, and in the absence of direct heirs, to the heirs of the donor, regardless of any orders of the owner. With the operation of this law, the possibility of confiscation of estates was eliminated, and the English aristocracy rightly considers it one of the main foundations of its strength and its inextricable connection with the land as an unconditional affiliation of the clan and surname. But this law was also associated with many economic inconveniences: concluding long-term lease agreements became impossible, because all land agreements terminated with the death of the owner, without passing to the heir; establishing a mortgage on the estate was also not allowed. There was a practical need for a legal means of resolving the bonds that bound ownership and disposal in the interests of bare ownership, and under Edward IV a law was introduced that made it possible to transform an estate from a registered one into a free one, through a fictitious transaction between representatives of the first donor and the actual owner. By this action, which is technically called bar the entail, the estate is freed from the duty on it. The procedure for this action was subsequently significantly simplified. An owner who wants to establish an estate in his family name, or a father, when his son marries, usually leaves him the estate not as full ownership, but for lifelong use, through an act called an act of settlement. The estate is left to the son for use, and to the grandson of the donor - the son's son - as property, but also limited, entailed. The donor's grandson, having come of age, has the legal opportunity, with the consent of his father (or another person who, by the will of the original donor, is appointed protector of the estate) to break the obligatory chain of subsequent possessions - to bar the entail - and take possession of the estate with full ownership. This temporary release of the estate is necessary in order to clear it of the burdens that have accumulated on it (for example, to pay obligatory payments to younger family members, debts, etc.), which cannot be done from a registered estate; but when the need is satisfied, the property usually returns to its previous form, i.e. the owner of the released estate makes a new settlement and, putting himself in the position of a donor, again leaves the estate to his son for life and to his grandson as limited property. So, the law does not allow the possibility of ordering an estate unconditionally, for an indefinite time: an order of this kind can extend only for the life of one living person, and after that for a period of no further than 21 years. Appointments in favor of the future children of a person who has not yet been born are not allowed: the estate can be granted only to a living person, and to future children of a living person. The will of the donor and testator extends only to one future, non-living generation. Thus, all patrimonial estates in England over time became more or less entangled in a network of rights established on each estate by the wills of previous and subsequent patrimonial owners. Despite significant changes in feudal patrimonial law, the custom has taken root among patrimonial owners to determine the future fate of the estate during their lifetime and ensure the fate of their descendants by transferring the estate into the hands of trusted owners. These acts, completed at different times and relating to the rights of third parties established on the estate, often obscure and confuse the very question of ownership and pure ownership, so that with each transfer of patrimonial right through sale, as well as when establishing a pledge, it becomes necessary to clear the right and verify it through acts of the old time (clearing of estates). The seller is obliged to the buyer to clear his patrimonial right. It is necessary to present patrimonial deeds for the estate being sold - at least 60 years ago, to restore the history of this estate with all its accessories (which in Russian practice is called arguments from the original owners). This extract of acts, sometimes taking on the size of an entire study and combined with verification of rights in an indisputable manner, is lengthy and very expensive - sometimes more expensive than the sale price itself - but is nevertheless considered inevitable. Difficulties increase because many of the acts needed for verification are difficult to find, and, moreover, the presentation of patrimonial acts in England is characterized by extreme confusion, darkness, excessive length and barbaric medieval terminology and construction, which is still in use today. As a result, the drafting of acts of transfer of real estate (conveyancing) has long acquired in England the significance of a special art and a special profession, located exclusively in the hands of special solicitors, known as Conveyancers. No matter how burdensome this whole procedure may be, it would still be possible to come to terms with it if, through it, once and for all, such a reliable and strong title was acquired for the estate, so that during subsequent transfers of the estate there would be no need to repeat the search. But the opposite turns out: the title, acquired through a lengthy and expensive search, remains in any case doubtful, only probable, and not reliable, and when the estate is transferred again or when it is pledged, the same thing that happened before is repeated. Naturally, such a procedure places a heavy burden on landed property in England, making the circulation of real estate incredibly difficult and reducing its selling price. That is why, recently, protests began to rise from everywhere against these formalities of transition, and cries about the need for transformation. The best way to facilitate the transition was to establish a universal registration of immovable estates so that for each estate, once checked, an indefeasible title would be forever approved, which could serve as the basis for all further transitions through the same register. Draft laws on this subject were repeatedly submitted to parliament; but the champions of reform, led by the famous Lord Broome, also encountered strong opposition from the defenders of antiquity, who found many inconveniences and restrictions on private freedom in universal registration. In addition, the class of solicitors who were involved in drawing up acts was strongly interested in maintaining the old order. Not earlier than 1862, the law on registration (Registration of real estates and the title thereto) finally took place; but registration is not general and not obligatory for everyone, but arbitrary, for those who would like to confirm an unchangeable title to their estate or at least make known the existing title, at least with all its shortcomings. Therefore, registration has two forms - one, more complex, for an immutable title (Reg. with an indefeasible title), and the other, simplest, for a simple title (without an ind. t.); The first can not be demanded by everyone, but only by the owners of an estate consisting of full hereditary ownership (fee-simple) and some others named in the law. Full registration is combined with a complete description of the estate, all obligations and duties on it, with the designation of all rights and persons interested in it, with the drawing up of a plan and with the unconditional verification of all titles of ownership, for which all persons who have a legal reason to object to the infallibility of the title are summoned for a three-month period. Registration is carried out by special institutions (Office of Land Registry) under the supervision of the Chancery Court. Upon completion of registration, all transfers of the estate, transfers and rights and obligations established on it become valid in the same form of note or by means of an inscription on the land certificate (Land certificate) issued to the patrimonial owner from the registry office. This is the new English form of patrimonial registration. And in this form, as an institution that is not obligatory for everyone, it still has many opponents. Their main objection to this form is that its benefits are very doubtful. For a person who is confident in the firmness of his right, registration of title, in their opinion, is not necessary; and for an owner who is not entirely sure, it is much more profitable to own the estate calmly and not, at his own discretion, cause verification proceedings, in which one or another of his rights may be questioned or disputed (see Lord St. Leonards. A Handy book of property law. Chapter IX). The English system of registration raises many complaints about the complexity, slowness and high cost of production: under its operation, the transfer of property remains a very difficult matter. On the contrary, more praise is given to the system of registration, which was introduced by English local law in the Australian colonies, has been in operation there for 20 years with great success (see Times 1872 September 16), and is distinguished by its simplicity and cheapness of production. In this system, the transfer of immovable estate can be completed in half an hour. The owner of the estate is given a certificate, or an extract from the book, with a blank sheet on which all sorts of acts and transactions about the estate can be written, so that then all that remains is to present the sheet to register the transfer. § 37. History of patrimonial note in Russia. Appearance of acts in orders for notes. Reference. Its meaning is financial and legal. The analogy of our form with Western ones. Change of our ancient form under Peter I. New serfdom. Meaning of certificate and refusal in this order. What did refusal mean in the old days? New Waiver and Possession Form. Conveniences and inconveniences of the new order It was mentioned above that public power in Rus', already in the medieval era, invented a means to satisfy that essential need, which in our time manifests itself with particular force everywhere, the need to determine for the entire state with all possible accuracy the external space and internal economic significance of each private property. The mechanism of scribal and boundary checks was primitive and crude, its purpose was exclusively financial and official; but it is impossible not to recognize in this system the same principles that lie in the newest structure of general surveying and cadastre. The system of this check extended to the entire Moscow state for one purpose or another. In connection with this new financial and service system, with this desire of the government to determine the space of each property, as well as the identity and duties of the owner, a new form of acquisition of real estate was gradually established. In ancient Russian law, the basis for acquisition was not confused with the acquisition or transfer of property itself. The first corresponded to a fortress or an act that served as the basis for the transition; the latter corresponded to a dacha, or a patrimonial record of property to the acquirer. Fortresses were written in the square, with the square clerks, who were in charge of writing and were replaced in 1699 by the establishment of serf affairs (institutions corresponding to the notary), and the registration of the estate was made in the order. Since the 16th century, it has been noticeable that acts of acquisition between private individuals are recorded by clerks and by orders in books. This note is accompanied by the collection of duties and verification of the grounds of the right of the person from whom the property is ceded or transferred. This note is becoming more and more important, and finally in the 17th century, during the Code, it already occupies the main place in the system of acquiring and strengthening property rights. It acquires the character of necessity, obligation, unconditional to the point that with this note, although not quite consciously, the concept of the transfer of property rights is connected. The central place of this patrimonial record was the local order, the department of which was mainly responsible for all matters concerning the registration of immovable estates, mainly lands 274. Acts on households were recorded in the books of the zemstvo order, and for cities - by the governor. The first necessary action, after completing the deed of transfer of real estate, was to submit it to the order for a note in the book. The acquirer asked that the estate be cleared for him and recorded in the book. In this way, deeds of sale, data, overdue mortgages, etc. were presented. acts: in general, all lands, both local and patrimonial, passed by inheritance, by spiritual, exchange, surrender and transactional acts, the acquirer had to clear for himself. Without such a certificate, the acquisition was considered incomplete and incorrect. In the order, a certificate was made about the estate according to the scribe's dachas, according to census and note books of various names: from this certificate it was possible to see whether the estate was in existence where the deed indicated how large it was, how many dachas, quarters, courtyards, etc. it contained, in whose possession it was previously and whether it was truly listed as the owner on whose behalf the presented deed was made 275 . In the most important cases, for example, regarding the sale and exchange, an interrogation was also carried out to the person who alienated the estate, the buyer and exchanger, the pawnbroker, the donor: therefore, their personal assistance was required; in other cases, they were allowed to submit petitions in lieu of interrogation. Then the deed was recorded in the patrimonial note book, and the duties taken were recorded in the receipt book: this meant that the estate was registered with the acquirer. Thus, the central place in charge of affairs of this kind became a repository of documents and information about the ownership of real estate. It would be unfair to see only a financial goal in establishing this order. Without a doubt, the ritual of certificates and notes was important for the sovereign’s treasury; but in this ritual, and in addition to the financial goal, a reasonable beginning of the order and reliability of land ownership is expressed, the desire of the Moscow government is expressed to always have in its hands accurate information about the transfers of real estate and to prevent the unknown about the rights of private owners. Through a certificate and interrogation, it could immediately be known whether the transfer of the estate was carried out correctly, the private right of the owner was affirmed, his relationship to the government as an owner, the owner of a famous dacha was finally established, and finally, and very importantly, the possibility of double sales of the same estate into different hands was prevented. The rules on certificates and notes are scattered throughout the monuments of our ancient legislation, without a systematic order. It is mentioned in different places, regarding individual questions about the consequences of this or that transaction or act; but comparing these fragmentary data with the concept of the acquisition of property rights, which follows from the essence of this right, we have every reason to conclude that in the era of the Code, it was precisely the concept of the transfer of patrimonial rights that was connected with the certificate and note of the estate. The Code directly stipulates (XVII, 34) that in the event of the sale of the same estate in two hands, the valid deed is not the one that was previously completed or issued, but the one according to which the estate was previously recorded for the buyer in the books of the local order: 276 the other buyer in this case was deprived of the estate, even if his deed was completed or issued earlier. He received only the right to seek compensation from the seller. On the contrary, when both bills of sale turned out to be unrecorded, then priority was given to the previously issued bill of sale. It is impossible not to notice some historical analogy between this ritual and the procedure for writing that we saw in the history of Western European peoples. Only there did this order develop in connection with the consciousness of the Roman idea of ​​​​the transfer of property rights. For us, the time for such consciousness had not yet arrived, and there was no historical data; however, it seems to us that our ritual unconsciously tended towards the same goal and concealed the same idea. In the historical study of institutions, one should not forget that society, just like an individual person, in its development proceeds from the unconscious to the conscious, and that in the initial manifestation and use of one or another form one should not look for the rational consciousness of those principles that are destined to become clear in it later: it is enough if the form in its very first manifestation turns out to be reasonable relative to the reality in the midst of which it arose, it does not seem alien, introduced from the outside, arbitrarily established form, but is in connection with the needs of its time and satisfies them in practical application. Another form, at the beginning, apparently, crude - a form that in itself, apart from the historical and local situation, would seem to be an empty ritual, developing successively as social relations develop, only after a long time reaches the form in which one can indicate its place in the system of law, discover its completely reasonable meaning and, having historically traced all its modifications, reveal the vital principle that has long been hidden in it, the historical seed from which it was destined to grow to fullness conscious perfection. There is no doubt that our patrimonial note was incomplete and imperfect in form, that it was made in disorder and incorrectly, and perhaps, when applied to the case, too often turned into empty financial ritual. With all this, hardly anyone will argue that the essence of this ritual was a practical thought, that it contained a fruitful beginning, from which a harmonious and correct system of its kind could have developed over time, if this beginning had been correctly understood and applied to the new conditions of the transformed Russian society. Unfortunately, this beginning, it seems, was not understood in the midst of the breakdown of ancient forms and institutions that began in our country under Peter. At that time we borrowed a lot from the West, but with this borrowing, which seemed necessary in the then political situation of Russia, we were content for the most part only with the external form, being carried away by it, as all living, but still immature minds are carried away, and with the rapidity of borrowing, of course, we were not able to assimilate, along with the form, to transfer to our soil that living historical principle from which it developed and grew on Western soil. or another form that has deceived us. So, sometimes, because of the adopted alien form, neglecting our own, admittedly rough in appearance, but not yet conscious of us, we, along with the abandoned form, lost sight of that historical grain of consciousness that, unnoticeably for ourselves, could be hidden in that old-fashioned form. Peter I drew attention to the existing disorder in the presentation and execution of acts and transactions. Wanting to eliminate uncertainty and arbitrariness in this matter, he established new strict forms for carrying out acts under serfdom, and these forms became absolutely necessary for completing any transaction between private individuals. The purpose of the new ritual was to ensure, through strict supervision, the legality of acts and the proper collection of duties in favor of the treasury; but at the same time, the internal meaning of the patrimonial note of acquisition in the land register was completely lost sight of: the beginning of verification of the rights of the transferor associated with this note, a definite beginning, was replaced by an indefinite beginning - verification of the act in its legality, and this verification coincided with the minute the act was committed. The execution of the act, however, should have been followed by his appearance in the order, but this was no longer the previous appearance for the consciousness of law, for verification of it and approval by a note, but a new appearance in the subject order - for possession and for the collection of duties, within the established period: it is clear that this last rite was supposed to lose the meaning of an essential rite connected with the verification of rights, and the concept of strengthening the property for the acquirer was transferred to the moment execution of the transaction itself, whereas in the previous order both were different. Thus, the previous acquisition procedure was not only complicated by double and burdensome formalities, but, and this is the main thing, it was almost more complicated than before. The law did not express a new concept of the beginning of acquisition, and at the same time, having renounced the old beginning, it lost the opportunity to connect new forms with it or improve previous forms in connection with it. That is why, since the time of Peter, there has been discord in the social concept and in legislation on this subject. Instead of one order, there are two, and two systems for acquiring property rights become side by side: through the execution of an act and through appearance, certificates and notes. Both systems fought among themselves for a long time, but finally the first, as a system of new legislation, gained the upper hand. During the first three quarters of the 18th century, the certificate was still considered a necessary formality. Since 1720, cases of certificates and refusal of real estate were transferred to the department of the patrimonial office, then to the patrimonial collegium, which existed until 1786. The government tried to maintain the power of this ritual, threatening non-performers with punishments and fines; but this desire expressed almost exclusively a financial goal, and not a practical goal; this was already an arbitrary prescription, and not a practically reasonable rule. But as it was actually possible to own property without complying with complex formalities and without paying fees, in practice the certificate of property has almost fallen into disuse. They began to confuse a fortress with a dacha at the beginning of the 18th century, and this confusion of concepts was initially expressed in the fact that in the minds of the government, the main point in the acquisition procedure was the cleansing of the fortress by a duty. The local order imposed a quarter duty on the production of a dacha. In addition to this duty, in 1714 a new 10% duty was established on the price of the transferred estate - a burdensome duty. Avoiding payment, many purchasers began to be content with deeds of sale alone, and were not only in no hurry to register their dachas, but even left this ritual unfulfilled. To protect the main principle of the note, it would be necessary to insist on the performance of this ritual, explaining what it serves. But the government, concerned at that time primarily with the fiscal interests of civil law, only had in mind to ensure the regular receipt of duties: therefore, to simplify the operation and supervise it, in 1720 (P.S. Z., N 3612) it was ordered to collect a hryvnia duty from the serfs at the very letter of the fortresses, which were then ordered to be given to whomever should be attached to the original note. The consciousness of the main beginning of the acquisition was so eclipsed that in 1729 the Senate already abolished the previous rule - to write on bills of sale that they must certainly be presented in the order and that without this a fortress is not a fortress - abolishes it, explaining this rule in the sense that it was necessary only to ensure the correct payment of duties. In the ancient system of patrimonial strengthening, a certificate was the main and essential matter, a patrimonial note. But this note was followed by patrimonial investiture, followed by the so-called refusal. The refusal system, quite complex, was aimed at publicizing the acquisition of property on the spot, and partly at ensuring that the sovereign’s duties would be as high as possible. The acquirer of the estate, after receiving the certificate, applied to the order with a new petition: the estate was written down in the books, but no deed of abandonment was given for it. According to this petition, a certificate of previous production was again made in the order and a letter of refusal was sent to the local governor with the order: “send someone suitable to the place and, ordering him to take with him local and outside people, elders and kissers and peasants, order the courtyards in that estate and in the people’s courtyards to be rewritten by name and courtyard places, and arable land, and forest, and all sorts of land, and write all this in books, send it to the order, and leave the list in the order hut until knowledge and dispute.” The sending of rejected books from the voivode was sometimes followed by a new petition from the acquirer to send an obedient letter to the peasants in place of the introductory letter so that they would listen to him, and the local order, having again made a reference to the books, sent the obedient letter. However, the order to the peasants to obey, as can be judged from the acts that have come down to us, was very often combined with refusal. A necessary part of all these actions was the collection of duties in the local order according to the number of quarters of land and especially from the fortress. This order, although it was not abolished by the laws of Peter and his successors, however, fell out of use along with the patrimonial note during the 18th century. The establishment of the provinces of 1775 marked the beginning of a new order. The place of the previous certificate and the previous refusal was taken by the entry into possession and refusal of a special property - forms that also later turned out to be impractical. Instead of the previous state center for all cases of land ownership, local centers were established throughout Russia, where purchasers of real estate had to present their acts for taking possession, which was supposed to serve as a replacement for a certificate, introductory, obedient and renunciation letters. To enter, you must present the act of acquisition to the appropriate public office in whose department the estate is located. This action must be combined with: 1) Verification of the presented act and certification of its validity in court. 2) An order from the police to bring the acquirer into possession. 3) Publication of this order in order to give the opportunity to challenge the act to those persons whose rights may have been violated by its commission. It consists of nailing announcements about the transfer of property to the doors of all public places that participated in the entry process. Moreover, at first it was supposed to make a special publication about entering through statements, but then only one publication about the completion of the act was left. 4) Bringing subordinate people into obedience to the new owner, through the temporary separation of the zemstvo court, in the presence of outsiders. 5) Drawing up an act of entry or introductory sheet and issuing a copy of it to the new owner. Then the refusal in its new form, according to the establishment of the provinces, seemed to be a formality that was not in the old rite: its purpose was the final and unconditional strengthening of the property of the person who indisputably owned it for two years after the formal announcement of the commissioning 277. This was a public confirmation of the actual and undisputed possession of the estate for such a period after which no dispute could be allowed. The law recognized compliance with both formalities as necessary for the completeness of patrimonial rights; the rite of taking possession has survived to this day, but refusal no longer exists. Along with the refusal were new forms and the collection of a quarter duty; and yet it was possible to own an estate without refusal; therefore, many owners did without it. The government invited everyone to observe this ritual, but the invitations were not successful. The manifesto of 1770 gave each owner the right to register and relinquish the estate for five years without paying a fee, but this did not help, and in 1793 the appointed period was extended until 1800. In 1801, the quarter duty was also abolished; the government announced that with its destruction, “probably each of the landowners will try to legally settle and relinquish their estate for themselves.” Despite this, the refusal was increasingly falling out of use and became a dead formality, the observance of which very few thought about, especially since the refusal, which, according to the decree of 1821, had to be written on serf paper at the price of the estate, was also associated with important expenses. Little by little, it lost its legal significance in fact: the two-year prescription, coupled with the refusal, did not receive independent meaning in practice and for the most part gave way to the general zemstvo prescription for extinguishing claims and disputes, so that in courts, even after refusal, disputes against the property to which it belonged were often accepted. Finally, in 1857, the refusal was finally canceled 278. The new order introduced by the Institution on Governorates provided the convenience for individuals that anyone could, without going to the capital, complete the required formality in the nearest local center. The disadvantage of the new order was, firstly, that there was no practical beginning in the rite of entry into possession; important practical consequences were not associated with it: the acquisition and approval of rights was not at all made directly dependent on it. It was possible to enter into possession without formal entry, and this possession was considered as valid as possession begun by entry. The introductory sheet serves only as proof that possession has begun and that no dispute has been declared, but not as an exclusive, the only legal proof, but as one of many proofs of possession. The input was accompanied by verification of the submitted act; but this verification did not at all concern the rights of the transmitter, therefore it was not intended to signify a transition, to approve the acquisition of property: it was a purely external verification; the act should have been recognized as valid as soon as “there was no dispute about the act itself and no prohibition on the transfer of property to another owner,” a prohibition in the presence of which the very execution of the act, according to the law, was impossible 279. As a result, taking possession soon took on the appearance of a formality that is not always observed, and moreover, for the most part only on paper, and not in reality. Secondly, since the verification of the rights of the transferor was not connected with the entry, and the entry in no case could serve as a certificate of the rights of the acquirer, there was no need for local centers, on the occasion of the entry, to collect and store accurate information about land ownership and the legal transfers of each property, whereas during the previous centralization of the patrimonial note, the local order was a common central place, which was obliged to have all the information about the land ownership, and without this information it was impossible to even begin recording the newly acquired rights for each estate. The government was aware of this deficiency and tried to fill it. According to the intention of the government, the civil chambers were to become the central repositories of all patrimonial documents and information for the entire province: here, according to the decree of 1780, surveying offices were supposed to send copies of scribe books, plans and other acts, collected for guidance during surveying and in resolving boundary disputes, upon completion of surveying; here, too, the district courts, upon fulfillment of the patrimonial rite, were supposed to deliver complete information about the transfers of real estate. The civil chambers were entrusted with the responsibility established in 1765 for the patrimonial board to maintain alphabetical lists of owners, villages and lands. But this government order remained without consequences; it is not surprising that it was not successful, because it was a rule without practical connection with the essential responsibility that lay with the authorities regarding the taking of possession. It was nothing more than an order to collect official statistical information, and suffered the fate of all similar orders when they are carried out by people who are not interested in the matter. Naturally, the civil chambers and district courts, with many other significant activities, remained indifferent to the collection of such information in which they did not see a connection with practical use and which they themselves could not recognize as indisputable information: therefore, the matter was done at first for show and for cleaning, and then it stopped being done altogether. It was necessary to have special books on parchment in the civil chambers for recording patrimonial documents and information, and for the preparation of books a special fee was established from the owners for certificates and refusals of estates, at the rate of money per quarter. This collection existed until 1821, and the money collected was sent to the civil chambers for the purchase of parchment and the maintenance of books. Parchment was prepared in some chambers, but the actual painting was not carried out or in some places had only just begun, so the government was forced to cancel the collection in 1821, and in 1829 even the keeping of books was canceled. The available capital, about 40,000 rubles, formed from the collected money, was transferred to the charity committee of honored civil officials, and the parchment sheets, recently, were put on sale. A similar order was recently made again by the government regarding the destruction of refusals. Temporary departments of the zemstvo courts, upon completion of the entry, transfer the introductory sheets to those places from which the order for the entry was issued, and these places are charged with the obligation to stitch these introductory sheets, bind them annually, and, moreover, keep alphabetical registers of all entries by name of the estate, with reference to the introductory sheets. It is difficult to imagine that such collections, even if they are compiled more accurately and conscientiously than, for example, registers, statements and alphabets of affairs in public places, are compiled, could satisfy the purpose envisaged by the law. The matter entrusted to the courts will be a purely mechanical matter, similar to the collection of statistical information and the compilation of statements for presentation to the authorities; work in which the worker does not see a direct, vital connection with his essential occupation. § 38. Changing old concepts about the transfer of patrimonial rights, with the publication of a code of laws. Criticism of the forms of acquisition under the current law. Disadvantages of not knowing your rights. Views for improvement in the future. an attempt to register land ownership in Russia. New regulations on notarial execution of acts Thus, the struggle that began in the 17th century between the old order of certificates and patrimonial notes and the new order of serf execution of acts and patrimonial investiture ended by the 19th century in favor of the latter order, which received exclusive dominance. The serfdom deed acquired the meaning of a perfect, decisive title, on which both the basis and the acquisition of property rights are established. No further proof of purchase was required. This is the reason why Count Speransky, with his characteristic insight, placed our bill of sale not in the system of contracts, to which it is classified in all Western legislation, but in the system of strengthening property rights. The bill of sale, according to Count Speransky, is not an obligation, but a traditio symbolica, and the process on it belongs not to claims, but to patrimonies or serfs. This opinion is completely in agreement with the general view of our legislation on the acquisition of patrimonial rights. Equally consistently, our law considers the sale record to be an agreement that has a personal and not patrimonial property, limits its validity to a short period, and does not allow the entry into possession of the sold property on the basis of it. Considering the provisions of our legislation on this subject, in whole and in parts, we come to the conclusion that strengthening is considered by us to be the beginning and basis of property rights. According to the official concept, the minute of this strengthening coincides with the minute of the final execution of the act, so when in 1836 a legislative question arose, which, as we have seen, was already resolved in the Code - the question of which of the buyers of property should be considered the legal owner if the property was sold under two bills of sale to two hands, this question was resolved completely contrary to the Code. It was ordered that the deed of sale that was completed before be considered valid (1416, 1509 Art. Gr. Zak.). It was impossible to resolve this issue otherwise, because the concept of the necessary connection of acquisition with a certificate and note, which existed during the era of the Code, has now disappeared without a trace. The following general provision remains in our law, extracted by the editors of the Code not from a special decree, but from general considerations, and contained in Article 707. I part X volume of the Holy Law, under which there are no quotations. “The strengthening of rights to property is carried out: 1) by serfdom, notary, personal or household deeds; 2) transfer of the property itself or taking possession of it.” From the very presentation of this article it is clear that it is impossible to find in it a positive and firm guiding rule about what kind of action the concept of the transfer of property rights is connected to. Among the signs of strengthening are placed along with the commission of a personal act and the commission of a domestic act, and the transfer and taking into possession: therefore, no significant distinction is made at all between the completed agreement of the parties, on which the transfer is based (causa traditionis), and the implementation (implementation) of this agreement, expressed in the action of the transfer. In any case, it does not in any way follow from the above article that we (Article 707) “express the meaning of taking possession as the transfer of the right to real estate and the strengthening of this right.” Meanwhile, such a conclusion can be found in Russian legal literature and even in official acts (for example, in the interpretation of new rules on the procedure for protective proceedings: Judicial Statutes published by the State Chancellery 1867, Part I, Book IV). It is explained above why taking possession in itself cannot serve as the only formal sign of the completed transfer of patrimonial right: because the law does not associate practical consequences with the observance or omission of this formality; this is not like the rule of transcription: “what is written in the book is firmly unconditional for both the parties and third parties; what is not written down is secure only between the parties.” We don’t have such a rule, input is rarely done in kind, transmission is in kind, and possession begins in kind and independent of input. Therefore, when there was input, transmission is assumed, but there could also be transmission where there was no input at all. However, regarding the taking into possession, new rules were published in 1866 (Poln. Sobr. Zak., N 43187), in relation to the new procedure of legal proceedings. Certification of the legality and validity of the act, as well as in the absence of prohibitions and disputes, and the order to enter into possession is entrusted to the district court, and the commissioning, as well as in general any execution by court decision, must be carried out by a bailiff - in the presence of the acquirer of the estate and witnesses: all adjacent owners, the village headman, etc. are invited to this action (but are not necessarily expected). The entry is carried out by announcing the new owner, reading act and drawing up an introductory sheet signed by all those present. The completion of the insertion is noted at the very act of strengthening; the commissioning is noted in the register of serf affairs and published in Senate announcements. The transfer can also be carried out through the mediation of a justice of the peace or a zemstvo chief, at the request of the acquirer, but in any case, by determination of the court. The most important resolution of the new law from a practical point of view is the following: “the day of taking possession of an immovable estate, noted in the register of serfdoms, is considered the beginning of the actual transfer and strengthening of the right to property.” This rule is essentially new, although it makes reference to the old Article 707. 1 part X t. From it it should be concluded that the entry mark made in the register serves as a legal sign of the acquisition of patrimonial rights to property. Therefore, in any case, whether the entry is actually made or the introductory sheet is only drawn up in a formal manner, marking the entry in the serf register is a significant action. This is the current position in our legislation of the important issue of acquiring patrimonial rights. At the moment we have two orders before us: one old, the other new, established by decree on April 29, 1866. It is shown above that in our civil laws it was not positively defined when exactly an acquisition is made and what action it is associated with. The issuance of an act from serf affairs, the transfer of an act from hand to hand - all these are unspoken actions, uncertain in time, and what is important is that the minute of the transition be determined precisely and clearly; so that the form with which the transition is associated is a true and exclusive sign of it. The new law says - it is true that the beginning of the transfer is considered to be the day of entry noted in the register; but nowhere is it expressed that this form of transfer is the only, exclusively legal one: and the question of whether it is possible to recognize the transfer as completed when there was no entry or marking at all remains unresolved according to the new rules of protective proceedings, and in the general system of civil laws we do not find any regulations on what legal significance the so-called transfer has, what special rights and in what respect it grants to the acquirer in the existence of the act on the basis of which the property was acquired to him. According to the new rules, just as under the old ones, the court is left to make sure that the act was completed correctly and that there are no prohibitions or disputes on the estate. But neither the execution of the act nor this certification is connected with the verification of the grounds of patrimonial right; the public office itself does not have at its disposal the data for this verification, and to demand from the transmitter that he present evidence of his patrimonial right would be restrictive for the freedom of civil transactions. The law does not allow this, because such a verification would not be a certificate, but a revision of patrimonial documents. The deed is recorded in the book, but this is only a trace of a single agreement between the parties, and not a trace left by the previous history of the property. The deed of sale could have been executed in any place, even not in the department where the property is located; there is no central place for the appearance of committed acts, and there are no traces of transition left on the property itself. Hence the silence of the transitions, which is harmful both legally and politically. It cannot be said that the law completely ignored the disadvantages arising from silence; To avert these disadvantages, we have established a special ritual. But this ritual, when applied to reality, does not and cannot have practical significance, and has turned into a formality that protects few people. This ritual is the publication in Senate announcements of the completion of each act under which real estate is transferred, and the notification of a copy of this announcement to the province and district where the property is located. Nobody reads these advertisements, and they are printed late and untimely. These copies are attached to the case file. As a result of these reasons, in our country, to an even greater extent than before in France, the right of property is in uncertainty and subject to chance and deception, so that we can repeat about ourselves with even greater confidence the words spoken by Dupin about France: “Whoever buys an estate from us, even if he bought it at auction, cannot be sure that what he bought will not be taken away from him; whoever pays for an estate is not sure that he will not have to pay another time; whoever lends money, even on the security of an estate, cannot consider himself completely secure in the fact that he will receive it back.” An end to this uncertainty would be a true benefit to public and private credit; It even seems to us that as long as it exists, we cannot even hope for the establishment and development of land credit in our country, which, apparently, the government has recently begun to strive for; one cannot hope for the successful application of the proposed new forms of mortgage law to this loan. One should not think, however, that correcting this significant shortcoming in our legal life is a simple and easy matter, that one only needs to transfer a ready-made, even the most perfect form into our legislation, organize an institution, establish a rule in order to create order and certainty out of uncertainty and disorder. It would be unreasonable to take a direct example of Western institutions and, following their example, introduce forms that are detached from their historical soil and alien to ours. This cannot be done, just as it is impossible to imagine the present moment without the past, from which it emerged and into which it is ready to turn: the countless mistakes of previous reformers should convince us of how fragile and dangerous such transformations are. It is impossible for us to dwell exclusively on our past, and in it, with blind faith, look for a ready-made ideal, a ready-made role model. The era of the Code has gone far from us: what was suitable for the people of that century is no longer suitable for us: our era presents different requirements; our reality offers different, more complex conditions; Our economic life differs sharply from that of that time in everything that the history of two centuries has brought into our lives, in everything that flows into it every minute through communication, imitation, habit, taste and knowledge. Those conditions of ownership and possession under which the then owner could consider his position convenient have long since ceased to correspond to our concept of the legal and economic significance of property. Finally, our time belongs to the development of the idea of ​​credit, completely unfamiliar to that century, as a great social force, a great engine of public and private prosperity. Personal rights are incomparably more capable of being defined, as long as these definitions flow from the essence of the legal relationship they concern. But real rights, and especially land ownership, are far from being so malleable, because their subject is a thing of a material nature, which does not depend on definitions and accepts them only when it itself calls them out and points to them. A thing has a material appearance, material boundaries, and the definiteness of these boundaries determines the definiteness of the thing itself, and therefore the definiteness of the right associated with its possession. This property especially belongs to the earth, because the earth itself has no peculiarity and receives it only as a result of artificial isolation, limitation by a line that defines the space over which the right of the owner extends and operates; Consequently, until this feature is determined with undoubted accuracy, until then the earth has not yet fully acquired the properties of particularity and integrity, allowing one to determine the right of a certain person to a certain space and clearly distinguish it from the right of other known persons to other known spaces. Above we had occasion to mention two main figures in the development of the concept of property, i.e. about the personal beginning and the economic beginning. The first determines the internal content of the law - the space of power belonging to the owner over the thing, the peculiarity and independence of the individual and the right belonging to him; the second determines the peculiarity of the thing that constitutes the subject of law. Only with the combined action of both principles does the right of private property achieve its full certainty: otherwise, no matter how decisive the definitions of the law on the power of the owner are, no matter how firm the foundation of his right is, this right will not yet be completely precise and definite if its possession does not have definite boundaries in the very thing to which it extends. In order for any system of patrimonial note to be successfully applied to land ownership and to serve as a valid means for certifying and asserting patrimonial rights, it is necessary that each individual estate to which the note relates represents in itself a whole known unit, contains a certain space, can be determined with accuracy both in its entire material composition and in the individual parts and accessories that make up the whole. To achieve perfection in the application of this system, it is necessary, in addition, that each estate should have a completely known, as accurately as possible and on the same basis, certain economic value: but land ownership has not yet reached such a state, since nowhere has a complete and comprehensive cadastral assessment been made, and therefore this last requirement, while it still seems to be an ideal, the achievement of which will be the work of later generations. For us, for now we are not talking about the perfection of the system, but only about the possibility of practical application to our landed property of the principles on which this system is based. Such an application, if it must be a real application of a beginning, practically fruitful, and not just a bare and sterile form, is hardly possible where it is not possible to satisfy the first essential requirement that we indicated above. If there is uncertainty regarding the material space and material composition of each individual estate, then no matter how definitively the transfers of this property and the real duties and obligations lying on it are signified, the right associated with the possession of such property will still be only half defined: there will still still be a significant amount of material uncertainty left in it: the determinacy of the right will be only formal, therefore one-sided and not complete. Meanwhile, it is known that it is precisely in the material, factual unknown that lies the main cause of perplexity and controversy, that it mostly disintegrates processes and makes it difficult to quickly resolve them, tangling such knots that often cannot be resolved with the help of the best system of evidence. To explain the above, let us remember that not all of our dachas are generally demarcated, that in many dachas there is still an interstitial ownership of different owners, that the types of patrimonial rights and patrimonial ownership, historically formed, are still extremely diverse, and to this day courts are still forced to resolve many disputes between the treasury and private individuals about whether the land should be recognized as personal property by deed, or by prescription, or by state land, public A whole mass of cases that are of the greatest importance for private land ownership in the vast central and steppe zone of Russia are still pending in the courts without resolution - the case of separating single-yard lands from landowners, cases that have been ongoing sometimes since 1799. In dachas that have been generally demarcated, the mistakes of the previous survey are revealed. In dachas that are specially demarcated, plots of a single property are continuously divided by inheritance and sales; meanwhile, during divisions and sales, it very rarely happens that newly formed plots are immediately separated by a special boundary and transferred to a special plan. As long as the ownership of an entire dacha or plots consisting of different dachas of the general survey is concentrated in the same hands, subject to one economic order and the will of one patrimonial owner, as long as the ownership remains calm, and within it the use of this or that plot, this or that accessory to the dacha, this or that land is carried out according to old times or according to the will of one landowner; but as soon as this entire estate is fragmented into different parts, and the place of one patrimonial owner is taken by many, confusion and disputes arise about the ownership of this or that dacha, long-term searches arise about which dacha such and such a wasteland was drawn to from time immemorial, which peasants used such and such a meadow, etc. These perplexities are further complicated by the very common inaccuracy among us in the designation of accessories and components of the alienated estate according to deeds of sale and serfdom, confusion of names, and disorder of economic management in estates. There are many similar disputes, as anyone familiar with the practice of our courts knows. It is also known how often there are cases of lack of land according to documents, which turns out to be after acquisition and entry into possession. One of our most common methods of acquisition is the purchase of an estate at public auction. Here, the main basis for bargaining and the main indication for the buyer is the inventory of the estate and the certificate according to which it was pledged in the credit agreement. Both show the amount of possession based on a police investigation; both of them, unfortunately, often contradict both patrimonial deeds and actual ownership, so that the buyer, who imagined himself to be the owner of a known and correct amount, turns out to be the owner of an unknown and incorrect amount, plots in someone else’s possession, wastelands that are found in someone else’s dacha, or are not found at all; or, having taken possession, reveals a significant shortage of land in the purchased estate. Cases similar to the above constitute ordinary phenomena in our legal life: they indicate to us a significant shortcoming of this life, material and factual uncertainty. To deny this deficiency, to remove from oneself the work of correcting it or to leave improvement to the influence of time and circumstances, and in spite of everything, to unconditionally believe in the reality of a new legal definition, a new legal form, a new known measure with which to measure an unknown quantity - this is one, perhaps the easiest, but also the least reliable way to correction. The other way is incomparably more difficult, much slower, but also more reliable. In order to destroy evil, it is necessary to penetrate to its source, to bring to knowledge the main and essential, and not just formal, causes, and to fight the unknown exactly where it arises. We are concerned about making known and establishing the rights of land ownership, and at the first steps towards this goal we encounter legal, formal uncertainty - with the absence or incompleteness of legal consciousness and definition: let us not forget that the root of this legal uncertainty should be sought in material, factual uncertainty, and that only the cessation of the latter will point us to the true means of correcting the former. There is still a lot left for us to do in this regard: we will have to revise and verify not only one part of civil law, but all definitions and forms related to the establishment, enforcement and acquisition of property rights, and most importantly, it will be necessary to bring into awareness the main grounds of property rights in Russia and the main types of land ownership in all parts of it. One of the main goals of the general land survey was to liquidate private land ownership throughout Russia: this great undertaking was to be crowned with a special land survey and the forced delimitation of dachas of different sizes. This liquidation, as we know, is far from over, and it is hardly destined to take place in the near future. It is hardly possible to wait for its end until it is possible to begin to establish new forms of transfer of patrimonial and property rights: we have to satisfy the urgent need, to stop, as far as possible in the present situation, the existing uncertainty and infidelity of patrimonial law. In our opinion, it is possible to begin this immediately; but before introducing new forms, it is necessary to build for them as solid a material foundation as possible, i.e. collect correct information about each privately owned dacha, at least in those areas in which it is proposed to introduce a new order, separating dachas that have been finally liquidated from those dachas in which the final liquidation of patrimonial rights is not yet possible. General land surveying, judicial proceedings on dachas in common ownership and on patrimonial disputes have collected a huge number of acts that can serve as correct data for resolving for almost every dacha the question of the correctness or unfaithfulness of patrimonial rights at a given moment 280 . In most dachas, the question of the amount of pure, non-disputable possession, connected with the known right of a known owner, can be resolved, although with approximate accuracy. The entire mass of these documents and information was still at the disposal of official clerks, who, unfortunately, were not always (not to say in rare cases) able to extract from it a clear image of the patrimonial right for each estate: they, of necessity, had to treat these documents and information only from a formal point of view and to the extent of the special issue for the resolution of which they had to be considered. But if experienced and legally educated people took up the task of revising this mass with the general goal of extracting from it essential information for determining the material composition and patrimonial rights in privately owned dachas, then the task would be solvable. At first glance it seems that this would require enormous labor and that insurmountable obstacles would be encountered; but let us remember that with such a study there is no need at all for any revision of the patrimonial documents, but it is enough just to keep in mind the newest, last act that determines the owner’s right, such as: a final decision, an indisputable bill of sale, a separate deed, etc. - in fact, in order to be able to say: which right, which possession at a given moment seems definite or indisputable, and which should be classified as controversial or unknown. It will only be necessary to point out the fact, and not to verify and determine the right: exactly the same should be said about determining the boundaries or quantity of ownership and components of the dacha according to plans and acts that are indisputable. There should not yet be any talk of economic descriptions or assessments: this is a task for later times. For the first time, the collected information will indicate the legal title of each estate and the degree of its indisputability, as well as the material space of patrimonial ownership and the degree of its indisputability. In this form, the extracted information should be made known to the owners and all third parties through presentation and publication, so that everyone concerned can communicate their comments and objections, point out new documents, disputes, demands, etc., not for judging the law, but so that the collected information can have proper completeness. Then, after a certain period of time, this information should serve as the basis for descriptive articles or sheets for each individual estate. For the first time, it will be important that the indisputable and clear be separated from the controversial or unclear. Then, after some time, it will be necessary to simultaneously check all the sheets, and finally begin to put the transcription system into operation. Until now, there has not yet been a serious, practically thought-out and directed approach to this important matter, and it is difficult to expect it until we understand the many new issues raised and new institutions erected in the last decade, while the everywhere touched and transformed organization of state and public institutions has not yet returned to its normal order. Individual and private attempts to bring awareness of land ownership (for example, the attempt of the Ministry of Internal Affairs to collect information about this through officials deliberately sent from St. Petersburg) will not bring us one step closer to solving the problem. Recently, however, two important ways have opened up, at least for preparing materials for future leaders: first, putting into effect the provisions on peasants; secondly, the activities of zemstvo institutions. Both of these things are such that for economic purposes it is necessary to bring private land ownership into precise awareness, and the liberation of the peasants, placing landowners in new economic conditions, forces them to accurately inform and delimit individual holdings. In 1866, on April 14 (Poln. Sobr. Zak., N 43186), a regulation on the notarial part was adopted. This provision outlines partly new principles for the transformation of property, which will be further developed later. It is the acts of transfer of real estate that are allowed to be carried out, in addition to serfdom affairs, by newly established notaries, but the power of serfdom deeds is communicated to them only upon approval by the senior notary of the district where the property itself is located. This rule introduces a new principle into the law - verification of the act at the location of the property. The senior notary is charged with the duty, when issuing an extract presented to him personally or through an attorney, and not by mail, to verify, firstly, the legality of the act, and secondly, that the property really belongs to the alienating party, for which he can, not limiting himself to a certificate from books and registers, even demand evidence of ownership of the property. The approved act is entered into the land register and noted in the register of serf affairs: the parties are given copies of the extract, and the original is left in the archives of the notary. In the same manner, acts are approved and notes are made on restrictions on the right of ownership of real estate, namely on the right of pledge, on the assignment of rights of lifelong possession, use, redemption of land or private participation, and on the prohibition of alienation of property. - Regardless of this ritual, announcements about the contents of the act and about taking possession are published in the Senate Gazette, according to the previous procedure. In 1882 (Pol. Notar., 1781) it was stipulated that the senior notary, immediately after entering the act of transfer of ownership of property into the register of serfs, reports such transfer, for information subject to the zemstvo or city government, at the location of the property, with the exact designation of both the property itself and the names and titles of the former and new owners. In areas where the provision on the notarial part has not been put into effect, the serfdom of the previous structure (Law Civil, Art. 708, Appendix I: Art. 47) delivers the above information to the named institutions, according to their affiliation, immediately after the completion of each act on the transfer of real estate from one person to another. With the transformation of the judicial part in the provinces of the Kingdom of Poland (in 1875) and in the Baltic region (in 1889), the previous procedure for performing acts was changed there, namely, the provision on the notarial part was put into effect, with deviations and changes that were caused mainly by the mortgage procedure for strengthening rights to real estate that has long been in force in the named areas and some features of local civil laws (cf. Regulations. Notar., ed. 1892, Sections V and VI). 1878, No. 8. In cases where the owner of an estate is limited in the right of disposal for a certain period, these restrictions, without interfering with the announcement of the property rights transferred to him, must also be announced upon taking possession and mentioned in the introductory sheet in accordance with the act of strengthening, according to which the estate came to him with the indicated restrictions (Articles 1428, 1429 of the Establishment of the Gr. Court.). 1878, No. 8. When, upon taking possession, it is not possible to transfer real estate into the actual possession of its new owner, this circumstance should not deprive the owner of the right to ask for it to be taken into possession, as an announcement of the transfer of ownership of the property to him. Therefore, the owner, limited in his rights by the lifelong possession of another person, may demand announcement of the transfer of ownership rights to him on the basis of Art. 707 t. X, part I and 1424 Const. Gr. Court. by putting him into possession, even though the actual transfer of the estate into his possession could not be accomplished; but at the same time, in the types of protection of the rights of the lifelong owner, the introductory sheet must mention that the estate has not been transferred to the owner because it is in the lifelong ownership of another person. 1878, No. 190. The court’s verification of the act of strengthening submitted for entry should concern only the order or ritual of its implementation and the validity of the act itself. The laws do not contain any hint that the court, in a protective manner, without a dispute from anyone, has the right to enter into consideration of the correctness of the very method of acquiring the immovable estate on which the deed was made, the legal capacity of the person alienating or acquiring it, the rights and limits of power in each given case of the places and persons competent in the ordinary course, at whose request the deed was made, and similar issues relating to private interests and legal relations and having nothing to do with purely formal side of the document. From this it follows that the court should not extend its verification beyond the scope of the ritual of committing the act, but must limit itself to considering whether the act was carried out by those regulations to which this is provided by law, to what extent, in its content and form, the act can be recognized as an act of strengthening the rights to the estate declared by the petitioner, whether the act was drawn up in accordance with the rules prescribed by law to certify the method of acquisition that took place in this case, and whether it appears from a formal point of view to be valid, whether statutory duties have been collected, etc. Nevertheless, the issues of law mentioned above can be raised not by the court, but by the only parties interested in it, and, moreover, in the legal procedure established for this, but by no means a protective procedure. Note 1. About the notary In the first edition of this book, it was noted about the new notarial provision: “To what extent the new law will be applicable to the conditions of our life and can be coordinated with other parts of the legislation, it is still very difficult to judge, although for the first time one cannot help but doubt whether it is prudent to leave to the sole action and sole responsibility of the notary the discussion of important issues about the right of private individuals to alienate and about the ownership of property - questions that often presented difficulties for our courts, barely surmountable, and gave rise, on the one hand, to unreasonable cavils and unreasonable restrictions on private freedom, on the other hand, to covering up actions that are illegal and harmful to the interests of third parties.” Now, after almost thirty years of experience, one can, it seems, notice that the expressed doubt has been completely confirmed. The new notary - at least regarding the execution of deeds on real estate - turned out to be an unsuccessful institution, arousing bitter complaints and forcing many to regret the previous establishment of serf affairs. The dispatches of this institution are divided according to the new order between notaries and senior notaries; but both those and others are placed by their instructions in the wrong attitude to the matter. Notaries are authorized to draw up acts; but they are not charged with the duty of coping with prohibitory books and advertisements, which they do not have, and therefore must draw up acts, so to speak, for luck. Due to the difficulty that arose in this regard, the Senate in 1867 charged notaries with the obligation to invite those performing the act to inquire, before committing it, about the prohibitions in alphabets. But obtaining such a certificate presents difficulties, sometimes insurmountable. Regarding the responsibility of the senior notary to carry out deeds, I allow myself to refer to the opinion of a judge experienced in this matter (Senator M.K. Zeimern), set out in his comments on the draft law on mortgage procedures. “The senior notary is a mortgage institution, obliged to announce the title perfected by the junior notary and thereby give it the force of a property right,” i.e. to fulfill what is called dacha in the sources of our law. The patrimonial collegium and district courts limited themselves to one announcement and, without taking upon themselves to consider and approve the transaction, were content with simply transferring the property to the acquirer, while the approval was left to the action of time. As a result, most of the cases remained uncontroversial and ended without aggravation or delay. In contrast, the provision of 1866 requires the senior notary to verify the ownership of the property by the alienating person and the legality of the transaction in general; for this purpose, he is given certificates in the books of prohibitions, permits and serfs, and if he does not find the information necessary for this in them (and such cannot be found in them), then demand other evidence; publication is made by the senior notary not before approval, but after it. It is obvious that the more accurately and conscientiously the senior notary performs his duties, the more demanding he can become and that, thus, all patrimonial affairs, once easy and non-disputable, become controversial and difficult. When will the private party reach the end of this tedious process, i.e. approval of the act, then a new series of delays begins, unknown in the past, namely: if there was no dispute, then the patrimonial collegium immediately refused the estate to the new acquirer, and the district courts (based on the reporting points of the Smolensk Chamber of 1778), without waiting for the expiration of the two-year period from the date of publication, ordered immediately after the appearance of the act to put the acquirer into possession. According to the notarial statute, the acquirer, after the approval of the senior notary, must present the deed to the district court (Court. Stat. Art. 1424); this court again makes sure that the act was completed according to the rules prescribed by law, and that there is no prohibition or dispute, and only after such verification it draws up a resolution to place the acquirer in possession (Article 1425). After this, the acquirer must start a third business, i.e. specifically petition the district court for the issuance of a writ of execution and apply with this writ to the bailiff (Article 1426) or the magistrate (Article 1435), from whom he receives the introductory writ. The bailiff or judge informs the senior notary about the taking into possession; this one makes a note in the register of serf affairs and reports it to the Senate printing house “for printing in the established manner” in Senate announcements (Article 1431). The day of taking possession, noted on this basis in the register of serfdoms, is considered the beginning of the actual transfer and strengthening of the right to property (1432). The question arises, what is the purpose of the two publications carried out in the continuation of these three processes, one of which is made after the approval of the act by the senior notary (Regulations on Notaries, Art. 179), and the other after marking the day of entry (Court. Statute Art., 1431)? These publications were ordered to be done in an “established manner.” Following these words, I find that the publications were originally established in 1775, and were in close connection with the procedure for the transfer of immovable estates, according to which the patrimonial authority, without accepting any approval of the fortress revealed to it, below a detailed consideration of it, left the challenge to the interested parties themselves within a two-year period, as a result of which the court was limited only to all possible announcements of appearance, and this is the purpose of establishing the publication; current publications do not correspond to this establishment, because they are made when the deed has already been approved by the senior notary and when the entry into possession has already taken place, the day of which is considered, according to the latest laws, to be the beginning of the actual transfer of property and the strengthening of rights to it (Constitution of Civil Court, Art. 1432). What is the current purpose of these expensive double publications? Even more important are the bewilderments that arise as a result of the significance of this entry into possession. According to the layout XVII, 34, the moment of the beginning of the property right is the note of the deed in the mortgage authority, i.e. local order, the action of which is called the production of a dacha; this ritual is composed of a certificate with the deeds of the order and from a local announcement through a refusal, i.e. announcing the transfer to all surrounding owners and residents and asking them whether the estate is under any dispute; if such publication did not reveal any obstacles, then the refuser relinquished the estate to the acquirer and provided him with a relinquishment book, another copy of which was added to the affairs of the order and the patrimonial board. With the establishment of the patrimonial authority in the district courts, the certificate and refusal were replaced by announcement through publication in the gazettes so that after two years, if no one appears to dispute, the court, without accepting any dispute against the deed of sale, ordered the zemstvo police to refuse the village to the acquirer without dispute. This new method of refusal gave the Smolensk Chamber a reason to enter in 1778 with the question, “Is it possible for the buyer to give possession of the purchased estate before the two-year period until there is a valid refusal?” To resolve this issue, the chamber presented the following opinion, which received the Highest approval: “Whoever buys a village and the deed of sale will be recorded in the district court, then although by virtue of the establishment of Art. 205 and there will be publications about whether anyone will appear for a dispute, and before two years that village should not refuse a buyer; but in the meantime, the purchased village, if there is no dispute about it, must be given ownership to the buyer in such a way that the zemstvo court must announce in that village that it was sold from the previous landowner to another and so that the peasants of that village are obedient to the new landowner. For the former landowner, having sold the village, can no longer own it himself, and if a dispute arises, then, leaving the village with the former owner, resolve the matter according to the laws.” From these words it is obvious: 1) that the commissioning was not legalized in return for refusal and not so that the commissioning contained the entire result of the mortgage of the estate to the new acquirer; 2) that the input is only a measure that should make it easier for the acquirer to manage the property until it is finally assigned to him, and 3) that the meaning now given to the input destroys the previous orderly order of acquiring property rights, replacing it with some kind of confusing labyrinth. Note 2. About taking possession. Is input required correctly when performing notarial acts? In Russia, as is known, very many persons undoubtedly own real estate, through contractual, testamentary or hereditary transfer, without any acts of consolidation, and without taking possession. The possession of such persons, which began long before the publication of the notarial regulations and rules of protective proceedings, in many cases continues undisputedly for 10 years ago, and seems, in itself, to be an indisputable fact of ownership of the property by the owner. This fact of ownership had and has for us (even regardless of its strengthening by prescription) legal significance, even if it was not confirmed by formal input. The history of our taking possession irrefutably testifies that it in itself cannot serve as the only formal sign of ownership of the estate and patrimonial right to it. When there was an input, the transfer of the right is assumed by our law, but even where there was no input, our law does not deny either the event of transfer or the legal ownership of the estate to the owner. According to a court verdict in a controversial case, patrimonial rights can be confirmed to the owner not only without entry, but also without a serfdom. Nowhere has our law expressed that entry serves as the only and necessary legal sign that the property belongs to the owner. Consequently, it is inconsistent neither with history, nor with the spirit, nor with the literal meaning of our law - for lack of input - to deny in the person of the owner the right of ownership of property with all its accessories, i.e. with the right of possession, use and disposal (cf. § 37 et seq., 82). This denial is possible only on the part of a private interest, in a dispute that has arisen against the rights of the owner, from a person who has the right to sue for the same property; but when there is no dispute, there is no legal reason for the government, in the person of its agents who serve private individuals as intermediaries for the execution of acts, to deny to the undisputed owner the legal means of alienating patrimonial rights only on the ground that the property has not been formally placed in the possession of the person who indisputably owns it. In this case, the undisputed owners of real estate - in huge numbers throughout Russia - would be illegally limited in a significant part of their property rights, i.e. property, and a huge number of estates would actually be withdrawn from exchange and credit circulation. As incredible as such a restriction on the most essential of civil rights may seem, it has nevertheless been allowed in our country since the publication of the notarial statute and imposes a hitherto unheard-of burden on real estate throughout Russia and binds the circulation of property with unusual ties. Wherever a notarial provision has been enacted, senior notaries have emphatically refused to approve deeds of transfer of real property on behalf of the undisputed owners unless the owners can provide formal evidence of taking possession of the property. It is remarkable that this requirement applies not only to property acquired into possession after the publication of the notarial statute, but also to those in which possession began long before, under the operation of previous laws. Private individuals, when they can, comply with this requirement, and try, with great trouble and expense, to acquire ownership according to acts that have long been completed, if they have them; but if there was no deed at all, or it was lost, or the transfer was made hereditary, by itself, by the direct action of the law on inheritance (not requiring approval in inheritance rights), then the owner is absolutely deprived of a way to transfer his property legally, through a notarial deed. Due to a strange and incomprehensible twist in the legal sense, the owner in this case tends to want someone outside to challenge his patrimonial right and disturb his quiet possession: then at least it would be possible to confirm his patrimonial right with a judicial verdict. But quite often there is no one to argue; there is no other person who has the right to a patrimonial claim: to this extent the right of the cash owner seems indisputable. So, the more indisputable it is, the more hopeless it turns out to be for the implementation of an essential part of the property right guaranteed by law to each owner, i.e. disposal rights. Let us imagine that in such a hopeless situation, for example, he would find himself known everywhere, the undisputed and sole heir to the huge estates that were passed to him from his father back in 1860, and since then, undeniably recognized by everyone as the owner, but who did not think or did not have time, like most owners, to take possession in a timely manner. He has nowhere to get his input, because the courts, in the so-called protective order, can evade asserting his rights due to the expiration of the statute of limitations. Equally, if not more hopeless, is the position of a person who has owned an estate for thirty or forty years, indisputably, by transfer without a deed or by an informal deed: he will be refused entry into possession, because for entry it is necessary to present an act of strengthening. It is noteworthy that the authority of the judiciary has not yet decided to dispel this confusion of concepts and free our real estate from the bonds of formalism and literalism that lie on it. Unfortunately, the cassation department of the Senate does not take into its jurisdiction questions about the application of the notarial provision, and our courts cannot renounce the view that protects not so much private rights as the responsibility of officials when committing acts, and hesitate to explain to senior notaries the true meaning of taking possession, and to put them in the measure of the true, not in the same letter and form of the approved understanding. What is the basis for the above misunderstanding about taking possession? It is based, firstly, on the general, in our opinion, misconception of notaries regarding their duties when verifying the rights of persons performing acts, and on the natural, therefore, incentive for them to protect themselves, if possible, from liability for omissions; secondly, on the incorrect understanding and application of some articles of the notarial regulations and the rules of protective proceedings. In Art. 167 and 168 of the notarial regulations say: “when approving the extract, the senior notary is obliged to make sure that the property indicated in it really belongs to the party alienating it. To certify this ownership, the notary is obliged to consult in the serf and other books, as well as in the registers of serf affairs and in the indexes to these books and registers, or require the presentation of other evidence of the ownership of the property, in accordance with the rules established in civil laws.” If you focus on the letter of this rule and are solely guided by it, then there will be no limits to the claims of the notary, and his fear about whether the property undoubtedly belongs to the person in whose name the deed is written can only be calmed down by the act of strengthening, and then there is still room for bewilderment and questions. It is necessary to understand the expressions used in the articles in accordance with the essence of the action that is performed by the notary, and with the general rules of civil laws. Verifying ownership means not at all the same as verifying ownership by strengthening; and the certificate of ownership regarding the commission of the act cannot be transferred to the verification of patrimonial right. This verification, only in the sense in which it is carried out by the court, has a positive property. When two persons present a patrimonial right to the same property, the court has to make sure whose right is true and exclusive, in a positive sense, unconditionally. A decision is made that has unconditional force between the parties. On the contrary, when it comes to the commission of an act in an indisputable manner, verification of the rights of the transferor to the property has only a negative meaning, and cannot have anything else. The notary only has to make sure that the transferor is transferring his own property, and not someone else’s: whether the property reached him correctly or not, whether the act of consolidation was completed correctly, the notary does not care about that. In this sense only, one should understand the certification of ownership of property, and in relation to this subject of certification, one should also understand the requirement of evidence of ownership, in accordance with the rules of civil laws. What is to be certified is not the right at all, but the fact of ownership of the property; For this certification, acts of strengthening are used, but they serve, among other things, among other written evidence, by which one can make sure that the transmitter’s property is his own and not someone else’s. The requirement presented by notaries tends precisely to verify the very right to ownership of property - if not directly, then indirectly, because the notary requires the presentation of an introductory sheet. It is clear that such a requirement is intended to acquire an external certificate of ownership, and thereby finally protect one’s liability (since taking possession is carried out by an act of strengthening): but this requirement is not at all specified in the law, and is not at all necessary to achieve the goal specified in Art. 167. notarial position. The requirement for an introductory sheet would be justified only if the law specifically stated that the act must be performed only upon presentation of this document; but there is no such rule in the law, and the law does not at all assign to the taking of possession the meaning of a necessary sign of ownership that notaries give to it. They usually point to Article 707. 1 part X t., where it is said that the strengthening of rights to property is carried out: 1) by all kinds of acts; 2) transfer of the property itself or taking possession of it. Not to mention the fact that this article, compiled by the editors of the code from general considerations and without citations, belongs to the number of descriptive articles in our code, and therefore does not contain a firm guiding rule. But no matter how strong this article may be understood, it in no way follows from it that it is the entry into possession that is given the special and, moreover, general, relative to all methods of transition, significance of the necessary strengthening. It is enough to note that in this article, taking possession is placed on a par with the simple, silent transfer of property - in the category of methods by which strengthening is carried out; therefore, the very term, strengthening, is used here not in a special, formal, but in a general descriptive sense. They also refer to the rule of protective proceedings on taking possession - and they refer to it unfoundedly, i.e. give the article a meaning incomparably broader than what it has. These rules do not at all express that taking possession is absolutely obligatory for each acquirer, and that he exclusively performs consolidation. In Article 1432 of the Constitution. Gr. Court. it is said: “the day of taking possession of an immovable estate, noted in the register of serfdoms, is considered the beginning of the actual transfer and strengthening of the right to property.” The rule is indeed new - but in what sense? Only in the one in which the article was written, nothing more. The article intends to establish definitively the beginning of the strengthening in time, connecting it with the day of the entry mark in the register: on the basis of this rule, the first acquirer of property secures patrimonial rights (against subsequent acquirers from the same transferor) not according to the time of the deed of sale (as was decided in 1416 Art. Zak. Gr.), but according to the time of the entry mark. But it does not in any way follow from this rule that the statute of protective proceedings denies any existing ownership of the estate by the owner, indisputable, but not certified by the act of strengthening, and that taking possession is certainly required to justify even indisputable possession. From 1432 Art. Est. Gr. Court. it is clear that the entry mark in the register (and not the entry itself) is considered a sign of strengthening, therefore, together with the act of strengthening itself (by which the entry was made), it confirms the patrimonial right of the acquirer unconditionally, i.e. regarding all third parties. The notary’s misconception lies precisely in the fact that, in order to complete the deed, he requires the transferor to present a sign of precisely such unconditionality of the patrimonial right transferred by him. For a notary, this is not at all necessary - until we introduce a system of patrimonial transcription of rights, with their correspondence on behalf of the person already recorded by the owner in the land register. Until this system is organized and introduced among us, it will be a matter of arbitrariness to introduce into law a rule that is inextricably linked with it, and to apply it to an order established on other principles, i.e. allow transfer only from the owner recorded in the book. We have not kept any books in this sense, and there is not the slightest reason to attach the power of such a book, inextricably linked with an integral system that does not exist in our country, to the register of serf affairs with the senior notary. Let us assume, however, that notaries are not mistaken in attributing to the entry into possession, according to the rules of protective proceedings, the power in which they require a certificate of entry in order to complete a deed on the estate. And in this case, the requirement would seem completely illegal in relation to the transferors, whose patrimonial right was acquired and ownership began before the rules of protective proceedings came into force and effect. The new rule in the law cannot have retroactive effect 281. From the above, it is clear how important it is that the question that has already arisen more than once, but has never been positively resolved, is about the possibility of taking possession of property without an act of strengthening, solely based on undisputed and quiet possession for 10 years ago. This question is of the greatest importance for many owners who, without having acts of strengthening, but having owned for a long time without any dispute, are deprived of the opportunity to carry out acts of alienation of the owned property and, in order to obtain this opportunity through a notarial procedure, apply through protective proceedings with requests for entry into possession. District courts and chambers deny their request, citing the literal meaning of Art. 1424. Est. Gr. Court., according to the power of which, in order to take possession, an act of strengthening must be presented. Twice the question of this came up in the Kerst case (1868, 449, 1870, 339) for consideration by Cass. D-Senate, but has not yet received direct permission. But a direct and complete resolution of this issue is made difficult in the Senate precisely because the Senate does not accept issues of notarial proceedings within its department, while the root of the confusion that arises regarding the taking of possession lies precisely in notarial proceedings. Confusion and practical difficulties will remain as before in the commission of acts - whatever the resolution of the issue of input. It is impossible to deny the need to eliminate blatant injustice and to satisfy the legitimate needs of owners when committing acts: in order to achieve both, it is not enough to limit ourselves to the current issue of taking possession 10 years ago. It will be necessary to consider it in general connection with the legal concept of taking possession, and with the question of the necessity of taking possession for the commission of acts. Only then can the meaning of taking possession be fully understood, and the knot of difficulties itself can be unraveled, in the true sense of our civil laws. Then, one can hope, even if it turns out to be impossible in the sense of Art. 1424. Est. Gr. Court. to allow entry into possession without an act of consolidation, then it will be explained that the notary has no legal need, either in this or in other cases, to require from the transferors who carry out deeds on the estate a certificate of entry into possession. In dec. Cass. Sen., 1872, No. 793 in the village of Moloshnikova, it is explained that the owner, by prescription, for taking possession, is not relieved of the obligation to submit an act of strengthening. It is also indicated here what kind of act this may be. With reference to 1 note. to 396 art. Est. about vulgarity, ed. 1857, and at 4 approx. to this article on Cont. 1863, the Senate concludes that the owners of real estate. estates in which ownership rights have been acquired on a basis. 533 art. 1 part X t., may apply to the relevant district courts in protective proceedings with requests to obtain a certificate of ownership of the property. Env. The court accepts documents and other evidence as evidence of the prescription of possession, acc. 409 and 412 art. Est. Gr. Court.; making sure that the petitioner has acquired the right of prescription, Okr. The court makes a determination on the basis of which the owner receives a certificate from a notary in relation to the procedure for issuing data on a purchase from a public domain. bargaining. But the issuance of this certificate and entry according to it do not interfere with the claim of interested parties for ownership of the same property. Is it necessary to submit introductory sheets when senior notaries approve acts of alienation or restriction of ownership of real estate? According to the interpretation of Civil. Kassats. Dept. The law obliges the senior notary to make sure only that the party alienating or agreeing to restrict the property right actually owns this property right. such a circumstance can be fully and undoubtedly certified in addition to the entry into possession, either by a serfdom deed, which confirms the right of ownership of the alienated estate to the person performing the act, or by a spiritual will approved for execution, a court ruling on confirmation of inheritance rights, etc.; therefore, the Senate found that when a senior notary approves a notarial deed for an immovable estate, the unconditional requirement for a certificate of entry into possession of the alienating person is deprived of legal basis (1893 No. 107). Note 3. New draft statutes on patrimonial note and land books The issue of introducing a patrimonial note in our country is apparently close to being resolved. Back in 1869, the Mortgage Commission (see § 71) drafted a charter on a new procedure for strengthening rights to real estate. In 1881 (Poln. Sobr. Zak. N 176) followed by the Highest approval of those considered in the State Court. advice on the main grounds for the proposed procedure for strengthening rights to real estate. The final development of draft legislation on this subject is entrusted to a special commission, which is authorized to allow those particular deviations from the main principles currently published, which, with the detailed development of these latter, might turn out to be necessary. It is assumed: the legislation on the new procedure for strengthening the rights to real estate will be put into effect gradually, to the extent possible, and taking into account the available means, and in those areas to which the force of the mentioned legislation will apply, to cancel: 1) the entry into possession established by civil laws and 2) the regulations defining the duties and scope of activities of senior notaries. Let the Minister of Justice, during the upcoming revision of boundary laws, discuss whether and under what exact conditions it would be possible to establish a rule by virtue of which the owners of property recorded in the land registers would be obliged to submit boundary plans for this property to the serf regulations, for attachment to the books and marking on the plans all changes occurring in the composition of the property, and, if possible, enter with a special representation about that in the legislative order. To provide the Ministers of Justice, Internal Affairs and Finance, by mutual agreement between them, to submit for legislative consideration proposals: 1) on those deviations from the general procedure for strengthening rights to real estate that might be necessary when applying it to peasant allotment lands, and 2) on the establishment, regardless of serfdom regulations at district courts, of institutions in charge of land registers also in cities in which there are no district courts. The main reasons for the proposed procedure for strengthening rights to real estate I. On the essence and procedure for strengthening rights to real estate 1. Strengthening the rights to real estate, restrictions on the right of ownership thereof, as well as the security established on the property, is accomplished by recording the said rights, restrictions and security in the land register. 2. The strengthening of a right, restriction or security retains its force in relation to real estate until a proper note is made in the land register about the destruction of this strengthening. Rights, restrictions and security, strengthened by the established procedure (Article 1), cannot be lost due to the expiration of the zemstvo prescription. When property is initially entered into the land register, the indicated rights, restrictions and security are released from limitation only upon approval of this book (Article 54). 3. Alienation and restriction of the right of ownership of real estate, as well as the provision of contracts and obligations to the latter, is granted only to those who have secured the right of ownership of this property. 4. Security for claims brought against the owner of property recorded in the land register, as well as monetary penalties and assessments imposed on this person, is established through protective marks entered in the book (Articles 13, 33 and 34). 5. Fortifications (Article 1) and protective marks recorded in the land register (Articles 4, 13, 33 and 34) do not restrict the owner’s right to alienate property, establish restrictions on the right of ownership and secure contracts, obligations, claims, penalties and charges with property, except in cases where the said fortifications or protective marks, by their nature, deprive the owner of the right to such actions or limit it. 6. The seniority of restrictions on the right of ownership and security attached to real estate (Article 1) is determined by the time they were recorded in the land register, regardless of whether they are entered in the same part or in different parts of it (Article 29). Rights, restrictions and provisions are entered into the land register in compliance with the gradualness in which they are presented to the serfdom. The influence of seniority on the strength and reciprocity of the said rights, restrictions and provisions is determined below in Articles 7 to 13. 7. For the acquirer of property, only those restrictions on the right of ownership, security for contracts and obligations and protective marks (Articles 4, 13, 33 and 34) that took place under the previous owners, which were recorded in the land register before the strengthening of the ownership right of the acquirer, are obligatory. The cases specified in Articles 8, 9, 38 and 41 are excluded from this rule. 8. Security for contracts and obligations concluded by the deceased owner, as well as claims, penalties and charges against him, can be recorded in the land register even after the property has been strengthened for the heir. Once entered into the book, these guarantees enjoy seniority on the basis specified in Article 6. 9. Responsibility for paying taxes and duties on the property, both state, zemstvo and public, as well as arrears in them, passes to the new owner of the property, even if these taxes, duties and arrears were not recorded in the land register. In the case of the sale of property at public auction, a special rule is observed in relation to arrears (Article 19, paragraph 1). 10. The rights and restrictions on the ownership of real estate recorded in the land register remain in force in relation to all persons whose rights to the same property are recorded in the register later. 11. Agreements on the rental or maintenance of real estate are not subject to mandatory strengthening; but if they are entered into the land register, they become valid in relation to persons whose rights were recorded in it after such strengthening. 12. The security for contracts, obligations, claims, penalties and charges entered into the land register gives them the right to priority satisfaction over the same claims recorded in it later, and the rights and restrictions of property rights strengthened after them on real estate do not have any influence on the satisfaction of the mentioned security (Article 29). The said rights and restrictions are considered invalid if they prove to be an obstacle to the full satisfaction of the claimant who has seniority over them. 13. The entry of a protective mark into the land register (Articles 4, 33 and 34) ensures for the right for which it serves as a protection the use of seniority corresponding to the time of its entry. In the event of the final establishment of this right or its recognition by a court decision, it is strengthened with the seniority belonging to the place in the land register where this mark appears. A protective mark on a monetary claim ensures the deduction for the satisfaction of it, from the money received from the public sale of property, of the amount that is due to it according to the seniority of the mark, on the basis of Article 12. 14. Transactions on the alienation or restriction of the right of ownership of real estate concluded with a person whose right to it was indisputably listed in the land register, as well as security established on the property of such a person and protective marks entered in the land register, remain in force, even if the right of this person was subsequently destroyed by a court decision. 15. The rule set out in Article 14 does not apply to the case where a court decision recognizes that the acquirer of the right to property or the person in whose favor the restriction or security was established knew about the illegality of strengthening the property right of the person to whom it was alienated or limited, or the security was established on it. 16. The security for contracts, obligations, claims, penalties and charges recorded in the land register applies to all property as a whole, together with its accessories. 17. Security for contracts, obligations, monetary claims, penalties and charges are entered into the land register only with the exact value of the secured amount. 18. In the event of a sale of property at a public auction, monetary claims secured on it under contracts, obligations, claims, penalties and charges are satisfied according to the seniority specified in Article 6. 19. From the amount received from the sale of property at a public auction, first of all, the following are paid: 1) arrears in taxes and state, zemstvo and public duties on the property - for the last six six months and 2) payments following to persons who served in the management of the property or carried out any work on it - for one year immediately preceding the day of the auction. 20. For a debt obligation secured on real estate (Article 1), the debtor is liable only with the very property in the land register of which this obligation is recorded, unless there had been an agreement between the debtor and the lender on the liability of the former with his entire fortune until the debt is fully satisfied. Such an agreement cannot, however, violate the rights of third parties, which are properly strengthened on other real estate of the debtor. 21. The security for contracts and obligations established on the property (Article 1) can be transferred either in its entirety or in parts. For the said transfer, the consent of the debtor is necessary only when a special condition is stipulated in the contract or obligation. 22. Transactions on the transfer of security referred to in Article 21 are certified by a notary or a serfdom, and the recording of such transactions in the land register depends on the wishes of the persons involved. Notaries immediately notify the subject of serfdom of every transaction of this kind witnessed by them. 23. The owner of real estate, who has paid in full the debt under the obligation recorded in the land register, has the right, without destroying the strengthening made to secure the obligation, to transfer this security to another person. 24. An outsider who has paid the debt in full under an obligation recorded in the land register acquires the rights that belonged to the lender under this obligation. 25. The owner of the property is allowed to record security for obligations in his own name in the land register. On the establishment of such security, the owner is issued a certificate from the serfdom, which can be transferred from one person to another on the grounds specified in Articles 21 and 22. 26. The security recorded in the land register in the name of the owner of the property (Article 25), in the event of the sale of the latter at a public auction, has no force in relation to the rights following, in order of seniority, after this security, if its transfer follows after the entry into the land register of a protective mark on the foreclosure of the said property (Article 38). 27. Certificates for the presentation of real estate as collateral under contracts with the treasury are issued by serfdom, in compliance with the rules established in articles 1609, 1610, 1612, 1613 and 1616 of the civil laws (Code of Laws. Vol. X, part 1, ed. 1857). 28. Serfdoms are established at the district courts. 29. The land register consists of a title page and four parts. The title page indicates the name of the property and its location. The first part of the book contains information about the size and composition of the property, as well as an indication of the general’s dachas or special survey areas in which it has a position or of which it consists. The second part records: the owner of the property, the basis of ownership and the value of the property (if known) according to acts of transfer of ownership, as well as a security mark that ensures the ownership that is the subject of the dispute. The third part contains restrictions on property rights, which also include agreements on the rental of property or the transfer of it for maintenance, as well as protective marks that ensure these restrictions. The fourth part records: security for contracts, obligations, monetary claims, penalties and charges established on the property, security marks related to these requirements, as well as certificates of collateral, if any were issued to the owner (Article 27). 30. Rights to real estate, restrictions on ownership and security established on the property are strengthened only upon certification from the serfdom that: 1) that the strengthening does not violate the rules established above in Articles 3 and 5; 2) that according to the land register there are no obstacles to strengthening, and 3) in the identity and legal capacity of the parties involved in the transaction. 31. Strengthening the right of ownership of property, as well as the restrictions of this right and the security established on the property, at the request of the persons acquiring the mentioned rights, restrictions and security, is permitted: 1) when the acquisition is based on a court decision that has entered into legal force, or 2) when the acquirer has presented a certificate of closure of the land register (Articles 35 and 36). 32. In cases where, by law or on the basis of an agreement concluded by the owner, in order to strengthen a right, restriction or security on property, the consent of third parties is necessary, the entry of the said right, restriction or security into the land register can only follow upon the presentation of a certificate of such consent. 33. Protective marks are entered into the land register on the basis of judicial rulings and orders to secure claims (Constitution of Civil Courts, ed. 1876, Articles 595, 598 and 619), as well as in the case provided for in Article 38. 34. For claims, collections and treasury charges, as well as for other claims to which the law assigns the property of indisputable (Art. Civil. Court. Ed. 1876, Art. 1, note 1), protective marks are entered in the land register both on the basis of judicial rulings and orders, and as a result of announcements and demands from the subject institutions. 35. The owner of the property is given the opportunity to close the land register, renouncing the right to alienate the property, encumber it with debts and establish restrictions on ownership rights. A certificate is issued to the owner regarding the subsequent closure of the book. 36. The certificate of closure of the book can be transferred by the owner, for presentation to the serfdom, to the person in whose favor the right of ownership of the property, the restriction of this right or security on the property is established. Upon presentation of this certificate to the serfdom, the indicated right, restriction or security is confirmed to the acquirer, without any special statement on the part of the owner (Article 31, paragraph 2). II. On levying executions on real estate recorded in the land register 37. The owner of the property recorded in the land register, which is subject to foreclosure, retains the right to alienate this property and establish restrictions and security on it, and these actions do not stop the collection measures until the claimant receives full satisfaction. 38. Simultaneously with the sending of a summons to the debtor to foreclose on the real estate belonging to him (Article of the Civil Court, ed. 1876, Art. 1095), a protective note is entered into the debtor’s land register, the place of which determines the seniority of the future acquirer of the property at public auction. The restrictions on the right of ownership, as well as the security of contracts and obligations established by the owner after this mark, are not valid in relation to the person who acquired the property at a public auction. 39. The bargaining begins with the amount of debts recorded in the land register before the security mark mentioned in Article 38 was entered into it, if this amount exceeds the valuation of the property, and otherwise - with the said valuation. 40. If at the time of the auction the buyers do not appear and none of the claimants express a desire to keep the property for themselves at the price at which the failed auction should have started (Article 39), then each claimant is allowed to ask for a new auction. 41. The acquirer of property at a public auction is transferred to the debts recorded in the land register before the entry of a protective mark on the foreclosure of this property (Article 38), if the payment deadlines for them have not yet arrived or if no demands for payment have been made for them. But this liability, together with the amount of debts to be paid from the proceeds of the sale, in no case can exceed the price of the property held at a public auction. 42. The auction is not subject to destruction if the reason for declaring it invalid (Constitution of the Civil Court, ed. 1876, Art. 1180) is discovered after the property has been strengthened by the acquirer (Art. 1). III. On the initial entry of real estate into the land register 43. The entry of property into the land register is mandatory: 1) upon its alienation, pledge and receipt of a certificate to convert it into a reserve or to submit it as a pledge; 2) when making such contracts and obligations regarding property, the validity of which requires, by law, the execution of a serfdom; 3) in the case of demarcation of property, in the manner established by boundary laws. 44. Except for the cases provided for in Article 43, property is recorded in the land register only at the request of its owner. 45. The entry of property into the land register is carried out upon certification by its actual owner of his ownership right to it and upon submission of information about the debts secured by the property and about the restrictions on the right of ownership on it. 46. If there is insufficient evidence provided by the actual owner of the property regarding his ownership of it, such owner may ask the local district court where the property is located to recognize, in protective proceedings, the right to record the property in the land register. 47. When registering property in the land register, serfdom enters into the appropriate departments thereof all arrears in taxes and state, zemstvo and public duties on the property, up to the date of entry, as well as prohibitions listed in the prohibition and permit books and restrictions on property rights listed in the books, registers and affairs of the senior notary. 48. Information about the size and composition of the property is recorded in the land register on the basis of reliable documents submitted by the owner, indicating exactly where this information was obtained from. The value of property is shown in the land register only at the request of the owner. 49. Arrears in state, zemstvo and public taxes and duties on property are made known to the serf departments themselves, through communications with the relevant institutions. The absence or incompleteness of this information does not relieve the property from liability for the said arrears. 50. About the entry of property into the land register, a threefold announcement is printed in a special appendix to the Senate Gazette, and it is observed that the second announcement is printed three months after the first, and the third – three months after the second. Regardless of this, the serfdom also takes other measures to make publicly known the entry of property into the land register and to notify the owners adjacent to the recorded property. 51. The announcements and notifications referred to in Article 50 are issued to persons who have any rights to the recorded property or who wish to make legal claims against it. The period for filing an application by the said persons is three years, calculated from the date of printing of the last announcement. 52. All rights to property and claims to it, presented as a result of announcements or notifications, with the exception of government penalties, the serfdom informs, as applications are received, to the owner of the property, for submission of a response within a six-month period, calculated from the date of notification. 53. The establishment of serfdom records in the land register the rights and claims presented to the property if they are confirmed by such acts that are recognized by law as evidence of rights to real estate, and if, moreover, their owner does not raise an objection to the note within the period assigned to him (Article 52). In the event of failure to submit such acts, as well as if an objection is made by the owner, persons who have declared their rights and demands are allowed to initiate claims in the generally established manner. Indisputable government penalties, with the exception of arrears in taxes and duties (Article 49), are entered into the land register according to the requirements of the subject government regulations, even if these requirements are not accompanied by evidence of the rights of the treasury and despite the filing by the owner of a complaint about the incorrectness of the penalty imposed on him (Article 1876, Article 1, note 1; Law. Civil., ed. 1876, art. 54. After the expiration of the periods specified in Articles 51 and 52 and upon completion of the proceedings in the serf establishment on all received applications, it approves the land register and notes this in each of its parts. 55. Until the land register is approved (Article 54), the owner does not hesitate to exercise his right to alienate property, establish restrictions on it and secure contracts and obligations for it. 56. Rights entered into the land register before its approval (Article 54) are not subject to the rules set out in Articles 6–15 above. The mutual relationship, strength and seniority of such rights are determined on the basis of laws that will be in force when introducing provisions on a new procedure for strengthening rights to real estate. 57. The rights entered into the land register before its approval (Article 54) enjoy precedence over all rights established on the property after the approval of this book. 58. The strength and seniority of rights to property claimed after the expiration of the period established by Article 51 are determined in accordance with Articles 6 to 15. Note 4. Opinion on the issue of the effect of limitation on rights recorded in the book The new establishment of a note in the land registers is intended to be extended to all real estate without exception, which must be subject to this note without fail regarding any transfer of ownership rights. Therefore, the abolition of the right of limitation should, according to the drafters, extend to all patrimonial rights subject to recording. This is equivalent to the complete abolition of the right of limitation for all real estate, for all these properties, little by little and in a short time, will have to be included in the category of rights recorded in the land register. It is impossible to accept this opinion for the following reasons. Prescription, to which, with few exceptions, all property rights are subject, belongs to the most fundamental and fundamental institutions of our civil law. Since ancient times, given the uncertainty of the formal rights on which land ownership was established in our country, and in the absence of reliable titles, prescription served in many cases as the only way to resolve land disputes; and its final extension to all matters, with the establishment of a fixed ten-year period, followed in 1776, in the form of a state favor, regarding the conclusion of a glorious peace with the Turks. Therefore, prescription was introduced by law in the sense of a beneficent institution, and its practical benefit remains undoubted to this day, specifically for patrimonial rights and for land ownership. it expresses the legislator’s fair respect for real and calm ancient ownership, even if its main titles were unclear, informal, subject to dispute, or completely lost and lost, which, under the existing conditions of our life, often happens. In this sense, our legislation, while responding to the civil need common to all peoples and legislations, also satisfied the special needs inherent in our way of life and the conditions of our land. It would be unfair to believe that prescription usually serves in our country to consolidate possessions acquired illegally, through violence, seizure, and appropriation of someone else's property. On the vast expanse of the Russian land, from ancient times, along with formal patrimonial rights indicated in deeds, where they should be written down and paid for, possessions arose and partly still continue to arise, possessions based on incomplete and informal titles, possessions without deeds, by simple transfer or transition without formal strengthening, and finally – possessions formed economically, through settlement, or by borrowing and developing empty lands. Such possessions, when they continued undisputedly, recognized by everyone in the full force of legal ownership, for a long time, the state authorities recognized it as fair and useful to affirm in the full force of ownership, which stopped further disputes, the resolution of which is always associated with delay and difficulties, due to the ambiguity of the patrimonial rights of both sides. So, in general, in the current state of patrimonial rights and the possessions associated with them, not only is there no reason to consider prescription a useless or harmful institution, but its beneficial practical significance should be recognized: with the abolition of prescription, everything vague and unclear in our patrimonial rights will not only not be clarified, but will come into even greater confusion, calm possessions will be shaken and intricate and lengthy litigation about the land will multiply. The abolition of the institution of limitation would be possible only in such a case when the existing patrimonial rights in our country acquired undoubted and universal firmness, clarity and certainty - but we are still very far from such a state. It is intended to give irrevocable force to the newly established note in the land registers, combining with it a strict verification of the grounds and titles of property rights. But this expected in the future, and in any case distant and incorrect improvement, cannot now be assumed in reality, in view of this expectation, to recognize in advance as completely reliable all the rights that have to be recorded in the book, and now to cancel them, i.e. for these new and unknown rights, the action is statute of limitations. This would mean sacrificing a known, ancient and experienced institution for the sake of an institution that is unknown and does not yet exist. The proposed new procedure for the initial recording of rights in the land register does not provide guarantees of the authenticity and irrevocability of the rights recorded. The note is accompanied by a verification of rights according to documents, but the verification is one-sided, subject to errors and accidents, based on certificates, which may be incomplete and erroneous, and errors in this matter are all the more possible because the matter itself will be new and, of necessity, will not always be in the hands of people who are accurate, experienced and capable of intelligently resolving legal issues. Not all acts can be submitted for verification on the same estate; while others, perhaps advantageous, may remain silent. The question of the actual ownership of certain persons of the recorded dacha or individual parts of it or land cannot receive a decisive explanation from the note, so that even after the note, to which the draft attaches decisive importance, entire parts of the dacha recorded for one person may end up in the actual and undisputed possession of other persons, even due to legal transfer and acquisition from the first dacha owners. The decision of the serfdom in a case that is not carried out according to a controversial procedure - and the adoption of a different order in the present case is hardly possible - cannot be compared with a court decision made after hearing the parties to the dispute; only when the parties compete can the issue of right be fully clarified together with the issue of ownership, whereas, with a serf note, the issue of right is resolved exclusively, and, moreover, on the unilateral consideration of the serfdom, and such evidence and rights can be rejected that the court would recognize in view of the explanations of the opposing party; and conversely, such rights can be recognized and irrevocably affirmed that the court would reject; Such documents, according to which there is not and has not been actual ownership, can be approved as the basis of property rights, to the detriment of another, voiceless person who, with actual possession, considers himself the owner of the estate. Under such conditions of the serf record, is it possible to recognize the decree of the serfdom as a final and unconditional act, forever determining the basis of patrimonial rights on the estate - even to such an extent that the formal force of this decree limits the effect of the subsequent court verdict on the recorded right, and completely eliminates the effect of prescription of undisputed possession? It is intended to transfer into our law the concept of formal, so-called book law (bücherliches Recht), taken from foreign statutes, and give it decisive force. But where such rights are in full effect, the state of landed property and its titles is completely different from what it is with us; The economic state of every possession is not the same: there, over the course of centuries, the foundations or titles of patrimonial rights were formed, in successive transitions and in full legal certainty; both the boundaries and the material composition of each individual possession were clearly defined; under such circumstances, the question of who should have the ownership of the estate recorded in the deeds is resolved without difficulty and quite reliably. On the contrary, in our country, with the vagueness and ambiguity of acts, with the relative scarcity of accurate data for determining patrimonial rights, often with their complete lack, and finally, with the frequent uncertainty of the boundaries of ownership or the diversity of possessions - the solution to this issue is associated with many difficulties, and therefore it would hardly be prudent, with the very introduction of a new institution, to recognize the solution of this issue by force of law in each given case, in non-disputed, enforcement proceedings - final and give it unconditional formal force. It is impossible not to pay attention to the very significant difference in the state of land ownership in our country and in those states where it has been recognized that it is possible to eliminate the effect of limitation on rights recorded in the book. There these rights seemed quite definitive, whereas here they cannot yet have this property. The right of land ownership, with all the firmness of its legal foundations and titles, seems to be completely definitive only when the legal certainty of the right is combined with its economic certainty, i.e. when the determinacy of the right corresponds to the material determinacy of ownership. In Western countries, according to the conditions of the local economy, in connection with the history of land relations, with the development of industry, trade and land surveying technology, with the physical conditions of the territory, soil and population, private land holdings have long acquired economic certainty. Possessions were made precisely known and received precise boundaries. There, for a long time, that initial task of separating private land ownership, which our state is just solving with the greatest efforts and which, under our conditions, is soon impossible to solve, has been resolved there. The general survey marked only the beginning of its resolution, but it continues to this day, having barely even touched many vast areas of the Empire. The very plans of general land surveying often turn out to be incorrect, because when they are technically verified, they reveal a difference from nature not only by tens, but also by hundreds of dessiatines. The delimitation of individual properties within the dacha through special delimitation seems almost entirely a matter of the future. In many areas, even not very remote ones, the value of the lands is still insignificant and indefinite, and their economic development is so meager and uneven that private estates cannot always bear the costs of their precise technical measurement and delimitation. But technical delimitation (which in itself encounters the greatest difficulties, among other things, due to the lack of technicians) must in many cases be preceded by the legal and material distribution of possessions within the dachas. Everyone knows that we still have many dachas of mixed and different ownership, in which sometimes none of the owners has a clear understanding of how much land and where exactly he owns in different parts and corners of the dacha. In the courts, many long-standing cases are being carried out about the separation of single-yard lands from landowners, cases in which it is still necessary to determine ownership, not only according to documents, but also without documents, on the basis of those principles that are given in the boundary instructions for extracting our land rights from the primitive, so to speak, chaos, through the transformation of unknown quantities into vague features of the original knowledge. It is impossible to give such a state with one word of law a definition that it does not have in its very economic essence; It is impossible, by applying to it a new, even very perfect form, to create in it something that cannot yet exist in it, due to its economic conditions, i.e. fame of possessions. On the contrary, one can fear that, given such a contradiction between formal law and reality, it will serve not so much to establish new rights as to violate existing and acquired rights, not so much to avert disputes about law as to multiply them. It is absolutely impossible to combine with the entry of estates into the land register the exact designation of the boundaries and number of properties in dachas and plots. Until this possibility opens up and is realized, it is premature to eliminate the effect of prescription of possession in recorded dachas, for the essential element in the law of prescription is possession. Even if the written right has been assigned full certainty, when the space of possession associated with that right will not have the same precise legal certainty, in each dacha it will remain unknown what part of its space is excluded from the action of prescription and what part is subject to it; and for anyone who bases his claims on prescription of possession, it is possible to assert that the land he owns is not subject to the operation of the law, which is recorded in the book without the exact number and measure of possession. Thus, the very word of the law: “rights written in a book are not subject to prescription” cannot receive from us the accuracy and practical meaning necessary for any law, for only rights and relations commensurate with each other can cover and exclude each other: and the right to land, not limited by the determinative space of ownership, will not be commensurate with actual and definite ownership. When registering estates in the land register, it is not expected, and it would be impossible, to carry out a study for each dacha about the composition and presence of actual ownership in it; The acts and documents presented should serve as the sole guide when making a note. Meanwhile, daily experience shows us how vague these documents are and how often they do not correspond at all to the actual state of the property. And in those cases in which the duty of responsible officials is entrusted with us to inquire about the ownership and certification of it, errors and inaccuracies are a common occurrence: almost every day cases arise in which, according to mortgage certificates and according to inventories compiled for public sale, there turns out to be either a shortage (sometimes very significant) of the available amount of land against documents and inquiry, or entire plots and wastelands as part of the estate, missed and not included in its description. The new, completely unknown institution of serf registration does not represent any guarantee that, under its operation, similar errors, omissions and inaccuracies will not be repeated; but the present difficulties from these mistakes will then become even more noticeable. They threaten a new great danger precisely because, under the action of the designed institution, these errors and inaccuracies can be given legal, irrevocable force. So, after the introduction of serf registers, given the present situation of our land tenure and the decisive impossibility of filling modest but very important positions throughout Russia under the new institution with officials who are knowledgeable, experienced, accurate, conscientious and familiar with the terrain of their district, one should expect, if not a multiplication, then at least an equally frequent repetition of such cases. Individual land plots included in the estates may remain unnamed; The boundaries of these areas may not be indicated. In such and such an indefinite form, that new book law will be presented, to which it is proposed to give such decisive force and to sacrifice even rights acquired long ago, sanctified by long-standing possession, indisputable - if these rights happen, and without the fault of the owner, to remain silent during the registration of the dachas to which they belong by ownership. Throughout Russia there are, one might say, countless such landowners whose calm and legal state will be shocked by the supposed abolition of prescription. Many examples can be given to explain this, but it is enough to refer to the testimony of Senator Zeimern, who knew the matter from experience, that in the Poltava province alone, in addition to 800 small estates appearing on the zemstvo list, they discovered, according to Senate publications, up to 17,000 small pieces of land known only to the owners. Are mortgage institutions able to bring all these possessions into such documentary knowledge as to completely eliminate the application of limitation to them? Meanwhile, in these possessions, small as they are, there is a right of ownership that is just as sacred and subject to the same protection as the right associated with large possessions and based on indisputable formal documents of transfer and acquisition. For a great many of these properties, the right of prescription serves as the strongest guarantee of ownership, for many owners, despite all the legality of the acquisition, are deprived of the opportunity to justify their possession by a formal document. It is impossible not to take into account the fact that until recently, inheritance transfers were made for the most part without approval and entry, that transfers of possessions without deeds often happened, especially between illiterate people, and, moreover, not out of direct intent, but out of need; that the destruction of old acts by fire, not only in the hands of private individuals, but also in archives, was a common occurrence among us. Is it possible, without violating state justice, to allow all this multitude of owners, mostly poor and small, to be shaken in the confidence of their ownership; and this shock must inevitably occur if they find themselves withdrawn from the beneficial effect of prescription and, having no opponent or disputant, are forced to prove their calm, undeniable right, and, moreover, in an incomplete proceeding, without the forms assigned to an adversarial legal process. For all these reasons, it is in no way necessary in the charter on the proposed new serf institutions and the serf record to shake the law of prescription - a fundamental institution inextricably linked in our legislation with the whole system of civil rights. Note 5. Patrimonial note in the Baltic provinces In the civil laws of the Baltic region, a decree of Roman law was adopted on the acquisition of property rights through transfer (Art. 799–808). But the German beginning of strengthening is expressed in the ritual of the mortgage note. The transfer of real estate establishes the right only between the parties involved in the transaction: full ownership of real estate is acquired only as a result of the decision of the relevant office to enter the legal basis for the acquisition and the acts prepared according to it into the public land registers established for this purpose. Any alienation of real estate and any change in the person of its owner must be entered into these books, as well as easements lying on the estate (Articles 809, 810, 1262). Before being included in the book, the acquirer does not have any rights in relation to third parties; he cannot enjoy any of the benefits associated with the property, and must recognize in force all actions related to that real estate of the one who is listed as its owner in the land registers. Then, taking possession is not a condition essential for acquiring ownership of the estate (Articles 813, 814). With the introduction in the Baltic provinces of a new procedure for legal proceedings, formed according to the rules of the judicial statutes of 1864, the law of 1889 significantly changed the regulations on mortgages in force until that time. Among the most important and significant changes should be the abolition of general mortgages and mortgages on movables, as well as private and silent (legal): see St. Civil. Zach. Baltic lips., st. 1391, approx. according to Cont. 1890. Then, the management of the fortress part from the judicial places of the region was transferred to special fortress departments consisting of world congresses, in which the serf registers should be kept on the basis of the rules established by the above-mentioned law of 1889. These books consist of original acts and documents on the basis of which the rights to real estate were strengthened, and copies of determinations on the strengthening or destruction of the fortification, and a special register, divided into sections in which the rights and security relating to this real estate are recorded, as well as all changes in these rights and security and the destruction of both. Alphabetical indexes are maintained for each land register register - one by the surnames of the owners, the other by the names of real estate. These indexes are necessary to facilitate reference to registers, which are open to everyone by law, for viewing and retrieving information. Strengthening of rights is carried out upon verbal or written statements of interested persons upon verification of their identity and legal capacity and upon consideration of acts and documents, as well as requests for strengthening, by the head of the fortress department. The head of the fortress department makes a special determination about the fortification, which is entered into the fortress register, and then entries in the registers are made by the secretary and signed by the head of the department (Policy on Notary Parts, Art. 286 et seq.). In 1882, on November 3, the Highest commanded: 1) The initial outline of the projects: a) provisions on strengthening the rights to real estate and b) rules on the organization of institutions in charge of land registers in cities where there are no district courts, be entrusted to the drafting commission formed as part of the Highest Committee established to draw up a draft civil code. 2) The assumptions developed by the drafting commission on these subjects should be subject to consideration in the joint presence of the commission consisting of the State Council for the development of draft laws on strengthening the rights to real estate and the mentioned committee, so that the conclusion of the said presence is submitted to the respect of the joint departments of laws, economy and civil law, without waiting for the completion of work on the preparation of the draft civil code. In pursuance of this Highest command, the commission has already drawn up drafts of the patrimonial charter and rules on patrimonial regulations. The main rule in the draft patrimonial charter is that patrimonial rights to real estate, which include the right of ownership, rights in someone else's estate and the right of pledge, are entered in the patrimonial books. The books are kept in patrimonial institutions, which are supposed to be established at the district courts, but in each district, from a member of the court, with the title of the head of the patrimonial institution, and the keeper of the patrimonial books; the latter, where necessary, can be assigned an assistant. The latter, i.e. the keeper of the patrimonial books and the assistant must be appointed to the position on probation in the special presence of the envoy. court in knowledge of the laws and forms of patrimonial and notarial paperwork and in the ability to set out acts and articles that are subject to inclusion in the patrimonial book. It is proposed to create patrimonial books for each immovable estate; These books should consist of a title, which would contain the name of the estate and its characteristics to distinguish it from other estates, and of four sections. Of these departments, the first must contain a description of the estate, and the other three must include the items to be recorded. The patrimonial register must be public, i.e. open for viewing to anyone who may need it, and its contents are reliable for those acquiring rights under it. Hence the beginning of the irrevocability of patrimonial rights, due to which the right of ownership or other rights acquired from a person who is listed in the book as the owner of the estate remains inviolable, even if the court later recognized that the estate belongs not to him, but to another. The actual acquisition of ownership of real estate is accomplished, according to the project, through the entry of the acquirer into the subject patrimonial register (in the second department); the entry of the acquirer is absolutely mandatory, except in cases of acquisition by inheritance, by grant, at public auction, by prescription, as well as in the case of expropriation; in the same cases, the right of ownership may be lost by prescription, while the owner recorded in the book cannot lose the right of ownership either to the whole estate or to any part of it by prescription: an estate recorded in the patrimonial book can be acquired by prescription only from the time of death of the last owner recorded in the book. In the third section of the book it is proposed to introduce restrictions on property rights by extraneous rights, with the exception, however, of those established in the public interest and in the interests of neighbors (Zak. Grazh., Art. 434–442, 445–451). According to the draft, the restrictions on property rights included in the patrimonial book include the following: 1) the right of separate eternal, lifelong and fixed-term ownership, 2) the right to develop the subsoil of the earth, 3) patrimonial duties, i.e. the right of private participation, the right of land, and in general the rights that are established on an estate in favor of another estate, or in favor of any person or institution, for example, the right of passage and travel, the right to adjoin a dam to someone else’s bank, etc., and 4) distributions lying on the estate in money or in kind for someone else’s benefit, which are called patrimonial distributions in the draft. The acquisition of all named rights under the contract is accomplished by entering the acquirer into the book; regardless of the entry, these rights are acquired only in those cases in which the right of ownership itself is acquired independently of the purchaser’s entry in the book. Rights in someone else's estate entered into the book, while they appear in it, are not subject to limitation. In the third section of the book, the draft proposes to include the rights of the tenant of the estate and the buyer of the timber for the felling; with entry into the book, the rights of these persons acquire the property of patrimonial property and become binding on the new owners, while a lease contract that is not recorded in the book can be terminated by the new owner of the estate after three years from the time when the new owner is recorded, and the contract for the sale of forest for felling, if not recorded in the book, is not at all binding for him. Responsibility in such cases lies with the previous owner. The fourth section of the book is for recording collateral claims. Based on the project, a pledge can be established only in a certain amount and on the entire estate in the composition in which it appears in the book, or on the entire share of the common estate. There is a distinction between a voluntary pledge, established by an agreement to secure any monetary claim, no matter what basis it arises from (loan, contract, hire, etc.), or by a will, to secure the sums of money designated therein, and compulsory. The latter can be established by a court decision or by the requirements of institutions to ensure the collection of duties and arrears accumulated on the estate. In a voluntary pledge, the following types are also distinguished: a credit pledge, established to secure a future claim or for those cases when the amount of the claim is not determined, and a cumulative pledge, which establishes the total liability of several estates, for which special patrimonial books have been established. The seniority of pledge rights in a project is determined by the day they are entered into the patrimonial register; Equal seniority is given to capital and interest for the last two years, as well as collection costs. It is allowed to cede seniority, without transferring the collateral claim itself, but only in favor of the newly established collateral. The owner, by agreement with the mortgagee, is allowed to retain seniority, up to a certain amount, for a future obligation. The pledged claim may be transferred and pledged, but not otherwise than in full, without splitting. The transfer and mortgage must be noted in the patrimonial book, at the request of the mortgagee; if the transfer and mortgage are not made in a patrimonial establishment, then an inscription about this must be made on the deed and certified by a notary, who is obliged to inform the subject patrimonial establishment about the transfer or mortgage. Transfer of collateral claims using blank inscriptions is not permitted. When the time comes, the patrimonial creditor, if he does not receive satisfaction, may demand that the estate be put up for sale at public auction, and if the proceeds are insufficient, he has the right to foreclose on other property of the debtor; the recovery from the mortgaged estate alone must be agreed upon when establishing the pledge. This rule applies, however, only to the owner by whom the pledge was established; subsequent owners are always liable with one deposit, unless they also take personal responsibility. Further, the rule on liability with other property of the debtor, according to the draft, does not apply to loans from credit institutions; For these loans, foreclosure is applied only to the mortgaged property. Upon termination of the lien, the corresponding article, at the request of the owner, is canceled in the book; but if the security right is terminated due to the abandonment of security by a creditor who has not received payment, then such creditor has the right to recover from the debtor on a general basis. Articles in the patrimonial books are entered only in accordance with the decisions of the head of the patrimonial establishment, and if articles are to be entered on the basis of acts, then the acts themselves must be carried out in the patrimonial establishment at the location of the estate; agreements on patrimonial rights that were not made in accordance with the establishment of patrimonial rights are recognized as invalid. Thus, the draft patrimonial charter significantly narrows the scope of work of current notaries. As for the procedure for performing acts in patrimonial regulations, in general it is similar to the procedure established by notarial regulations. The execution of acts, according to the draft, is entrusted to the custodian of patrimonial books, who is obliged to verify the identity of the parties by interviewing two witnesses, if the parties are unknown in the establishment, or in other ways, as directed by the head of the patrimonial establishment, and of their legal capacity. The content of acts performed in patrimonial establishments is supposed to be limited to the circle of patrimonial rights; This is indicated by their very name - patrimonial acts; It follows from this that patrimonial acts cannot contain orders that are not relevant to the establishment of patrimonial rights. Orders of this kind are allowed in the draft only to the extent that they are related to the content of the act. Acts that are not among the patrimonial acts should not be committed in a patrimonial establishment; Only two exceptions are allowed from this rule, which, however, do not contradict the indicated general principle, namely: 1) when the act requires the inclusion of an article in one of the patrimonial books of the patrimonial institution in which the act is committed, and 2) when the commission of an act or certification is necessary for the commission or for the execution of a patrimonial act committed in the same institution. In connection with the assumptions about the recording of rights in the patrimonial books, the draft, in a special chapter, contains rules on summoning proceedings, which are opened, by order of the head of the patrimonial establishment, only in the following cases: 1) for recognizing a lost pledge deed as destroyed and for issuing a new one in its place, 2) for recognizing a record of a terminated pledge claim as subject to repayment, and 3) for entering into the patrimonial register of persons who have acquired ownership of the property. estate by prescription. In these cases, having ascertained the correctness of the petitions, the head of the patrimonial establishment makes an order to summon the interested persons within a certain (six-month) period, with a note to this effect in the patrimonial register, by printing three times in the Senate and provincial gazettes and in one metropolitan or local newspaper, and by means of an announcement that is posted in the reception room of the patrimonial establishment. After the expiration of the period, the head of the patrimonial establishment, at the request of the petitioner, schedules a meeting and makes a determination on the merits of the request. Special sections (IV and V) of the draft patrimonial charter contain rules on the initial entry of estates into the patrimonial register and on patrimonial books for plots belonging to the treasury or the city, which are in the eternal separate possession of outsiders. Based on the first of these rules, owners are not obliged to create patrimonial books for their estates; entry in the book is required only in the following cases: when transferring an estate from one owner to another voluntarily, by inheritance and in case of forced, in case of voluntary pledge, during division, when turning the estate into a reserved one, during demarcation, and in the case of a claim by one or more accomplices in common ownership, as well as persons for whom, before the entry into force of the patrimonial charter, the estate will be in pledge or in lifelong possession. With the entry into force of the patrimonial charter, the current procedure for collection from immovable estates will have to change significantly; these changes are provided for by the commission and are set out in a special extensive project, which contains detailed rules on the inventory and valuation of estates and on sale at public auction; the latter is supposed to be transferred to a patrimonial establishment at the location of the estate. In conclusion, it should be mentioned that in addition to the draft patrimonial charter, the commission drew up a special draft on securing agreements with the treasury and with credit institutions with real estate estates. This draft outlines the rules for issuing certificates of collateral for submission to the treasury or to a credit institution; These certificates for the project can be submitted to the treasury only within a year, and to credit institutions - six months from the time the certificate is noted in the book. Chapter Four. Certain methods of acquiring property rights § 39. The meaning of purchase and sale in foreign legislation and in ours. Our concept of fortification and deed of sale. Contractual beginning in the bill of sale. Legal conditions for making a sale. Availability of property and freedom from prohibitions. About the sale of rights and snail recording. Sale of a disputed and prohibited estate In all legislation, purchase and sale are classified as contracts. In our system, the bill of sale is removed from contracts and is classified as a means of acquiring ownership. This is completely consistent and consistent with what we said above about the transfer and acquisition of property rights under Russian law. When compiling a code of laws, Speransky had in mind the idea that a sales agreement was significantly different from a bill of sale. “The bill of sale,” he says, “has never been considered an obligation: it is a traditio symbolica. It does not produce a lawsuit (actio), and the process on it does not belong to the lawsuit processes, but to patrimonial or serf processes (vindicatio).” The sale is a contract that does not provide a property right, and upon sale it is prohibited to take possession of the property. In Roman law, a sale is a contract by which one party undertakes to transfer property (a thing) to another for a price that the other party undertakes to pay. All other legislation agrees with this definition. Therefore, there the sale first of all produces an obligation, and then transfers the property through transfer. But according to the idea of ​​our law, sale is an action by which one party transfers something to another for a certain price. The expression of this action is the deed of sale. Here the sale transfers property and at the same time produces an obligation, the effect of which extends to the future. Thus, in the system of our law, the deed of sale differs from the contract of sale, the various types of which we will talk about when discussing obligations, but here we will limit ourselves to the deed of sale. The bill of sale is the final act, there is the transfer itself, and the agreement to sell precedes it, and the bill of sale expresses its result - the transfer of property from one person to another; a sign of this transition is the deed of sale, so that by issuing it and transferring the right, a verbal or written agreement preceding it and separate from it is fulfilled. It goes without saying, however, that even with the transfer of ownership, any relationship between the seller and the buyer does not end. A contractual relationship arises between them, subsequent to the sale and arising from the sale transfer, but this relationship follows the transfer of property, and does not have the purpose of the transfer itself. Under what conditions can a sale be made? To do this, according to our laws, there must be available property capable of sale, alienation, and a person capable of disposing of this property. Cash and personal property may be the subject of a deed. Cash, i.e. a thing that exists in reality, and not an expected right, not a requirement. To sell according to Roman law meant to generally undertake to deliver, to transfer property. Because of this, it was possible to sell someone else’s thing, which the seller does not have in his power, but still expects and hopes to get into his power. In our country, such a concept does not correspond to the idea of ​​a sale and a bill of sale. We are allowed to sell only that property that is in actual possession or to which the seller has the right of ownership. Therefore, for example, the sale of property that may henceforth belong to the seller by inheritance is invalid (1384, 1389, 1256). This does not mean that it is impossible to concede, to transfer to another your right, although it has arisen, but has not been realized; but in this case it will not be a sale, but a concession or an agreement to sell, and the sale will still be ahead, and if the assignment relates to an immovable estate, then a deed of sale must be completed later. According to Russian law, only available property can be the subject of sale (See Cass. decision 1870, N 1381). Although in ordinary speech one hears the expressions: I sold him my right, sold the claim, sold the recovery under the loan letter, but in legal language these expressions do not have a definite meaning. The sale of a right that has not yet been realized, the sale of a claim or a right under a contract, is nothing more than a condition, and produces a personal relationship: unless in such circumstances that receive the actual value of a thing or cash value (for example, nameless credit papers), the assignment of a deed is equated with a sale. In general, our law - from a formal point of view - does not recognize sales, i.e. transfer of patrimonial right, where there is no transfer of cash property already acquired to patrimonial authority. It is impossible to make a deed of sale for an estate in which the patrimonial right has not yet passed completely to the buyer. It is necessary to understand exactly the terms: available property. This means a thing that exists in reality; but it may not be in the cash possession of the sellers at the moment of sale, as long as only the seller himself can have it at that moment by right of ownership (Article 1389). This is the case to which Cass belongs. decide 1871, N 618. Titov acquired a steamship in 1868 from a mechanic in order to take it, once assembled, for the next navigation, and then at the beginning of 1869 he sold the steamship to Solovyov. Collectors from Titov began to foreclose on this ship, proving that the sale from Titov to Solovyov had not yet been realized, since the ship was sold that had not yet been accepted by Titov himself from the mechanic, and that the act of assignment was essentially an act of repurchase, not a sale. The Senate decided in the sense of Article 1384 that the availability of property from the seller does not belong to the necessary signs of a sale. In Little Russia, according to the Lithuanian Statute, it is allowed to write cession notes about property that the cessor, although he has not yet received possession of and cannot transfer to a person, has the right of action to find or receive it: the subject of such notes is usually the opened inheritance or the right to allocate a part of the inheritance or the right to remuneration. Such a record is called snail (from the Little Russian word - ulit), and is not considered the final act of transfer of property, therefore, if the right to record is awarded to the successor, the transfer of property must still be made in the form of a deed of sale (see Article 710 of the Law. Civil Journal. Min. Justice. 1859. October. Art. Kostenetsky on the snail record. Cass. decision. 1872 g., N 794; 1875, N 926; 1879, N 301, 355; 1880, N 197, 263, 297). If the estate is in actual possession, then even if it is in dispute, the sale is permitted, but the right passes to the acquirer conditionally, for when the sold property is subsequently repossessed from the seller, the buyer is obliged to return it to the rightful owner (1392). In this case, a clause regarding the dispute is placed in the bill of sale. In any case, ownership of the transferred property must be complete, independent and independent, must be in one’s own name or by right of ownership - serfdom, or in the form of property. The owner cannot sell property in his use, in temporary or lifelong possession, to which the title belongs to another (1386, 1387). In this case, the owner does not have ownership rights to this property, and can only in some cases not sell, but transfer, cede the right to another, and then not always, for example, he cannot cede a right associated with belonging to an estate. There may be ownership, albeit in the form of property, eternal and hereditary, but conditional and dependent, for example, ownership of possession factories, land that is allocated from the treasury under the condition of settlement or development. The sale of such property can only be carried out with the permission of the authority from which the restriction comes: the investiture must be repeated (1393). The right to dispose of the property being sold must be free. We have seen that it is constrained, regardless of the will of the owner, by prohibition and guardianship (relative to immovables). Property cannot be sold under inventory and guardianship without the permission of the highest guardianship authority (1304, 1391). A prohibition placed on an estate indicates the existence of a right secured by that estate. Therefore, in order for the sale of such an estate to become possible, the permission of the right secured by this prohibition is necessary, i.e. payment of an amount or replacement of one estate with another, one security with another: this happens with prohibitions in private claims. But public sale is possible without clearing prohibitions. Cass. decide 1875, N 967. The law (1456 Art. 1 Part X Vol. 167 and 168 Art. Notar. Pol.) orders, before making a deed of sale, to inquire whether there are any prohibitions on the estate or on the person giving the deed, or whether demands for prohibition have been received directly from the place making the deed. In this case, recovery under the prohibition must be ensured by the deduction of a proportionate amount from the money paid by the buyer to the seller: for the omission of this, the persons who committed the act under the prohibition are liable to the claimant (Art. 1457, 1458). Under our existing procedure, it is not allowed to carry out a deed on an estate between private people with the transfer of the prohibitions on the estate to the buyer. The transfer of the estate to the acquirer, together with the prohibition and with the obligation that is secured by it, with the consent of the one whose right is secured by the prohibition, is allowed under a pledge in a bank (1388). In this case, at the request of the party, the credit institution, considering the position of the pledge and debt, considers whether the loan is sufficiently secured when all or part of the property is transferred to another person; demands, when necessary, to put the loan in order and then gives his consent, which is valid for 6 months. But in this case, a new certificate of sufficiency of the estate is required, and in general the acquirer of the estate must again assume an obligation to the bank (1461, 1463). The law does not mention a similar transfer of obligations and prohibitions lying on the estate due to the claims of private individuals. There is no doubt that such transfers are possible, but they are not made directly, but through a new agreement between the acquirer of the estate and the creditor or mortgagee of the seller. In this case, a new obligation arises between the buyer and the applicant, and does not simply transfer the previous one. 1872, N 1067. The property being sold must be at the free disposal of the seller at the time of sale; The agreement on the sale of 2 dessiatines of forest, which was in the common possession of the seller and the treasury, was declared invalid, although the felling, according to the agreement, should have followed after the end of the demarcation. 1874, No. 375, 426. If, by the nature of the condition between private individuals, it is not the land itself that is sold, but only the right to use it and the right to separate the products of the land growing on the surface of it, then such a condition cannot be recognized as an agreement on the sale of real estate, and the fact that at the time the conditions of the production were not yet separated from the soil does not turn the agreement on the sale of unseparated appurtenances of the land into an agreement on the sale of real estate. Rule 1389 art. does not in any way hinder the owner from selling an estate in which or in part of which another person has lifelong ownership, since such a sale also has the right for life. the owner is protected by the law itself (Article 521). Therefore, there is no reason to invalidate a sale of this kind. Cass. decide 1875, N 10. In the event of a prohibition, the institution committing the act is required to deduct money from the payment amount to repay the prohibition. In other cases, i.e. in case of penalties falling on the estate, even if it is indisputable and obligatory, by virtue of the law (for example, according to the claims of arrears accumulated on the estate), there is no reason to demand such a deduction, especially since the law does not oblige payment of money for the property being sold through regulations that carry out or approve serfdom. See about this § 44 and 74. The legal property of the estate, if it is real (relates to the essence of the estate itself, and does not depend on personal will), cannot change as a result of the sale. Therefore, property that is declared by law to be indivisible, unfragmented, can only be transferred upon sale in its entirety (1396). What property is considered indivisible was stated above. The seller’s personality must be capable of alienation, and in general of performing legal actions (1382, 1383). The buyer's personality must be capable of acquisition. State Law (1402). A thing in general must be capable of serving as an object of private possession (1403, 1404). The sale of all real estate is carried out through a deed of serfdom - a deed of sale (1417, 1419, 1420). On the sale of river and seagoing vessels, see 1419 Law. Civil, 165–170 Const. Trade., ed. 1893, Const. Lesn., ed. 1893, art. 302. Special restrictive formalities are established by our laws when performing acts for the sale of certain properties, according to their type or rank of persons participating in the transaction, to protect the rights of the treasury and various departments, to certify the rights of the seller to the property being sold, etc. Such features of compliance when selling real estate on behalf of clergy and clergy - Zak. Citizen Art. 708, adj. I, art. 60; when selling lands by former single-palace owners (Zak. Stat., Art. 776, note, according to Prod. 1890); Little Russian Cossacks (Law. Comp., Art. 765, according to Prod. 1890) and in general former state peasants (cf. Law. Civil., Art. 708, note 2); when selling lands by the Bashkirs (cf. Special Appendix to the Legislative Statute, XIV, Pol. Bashk., Art. 16 note); on behalf of the treasurers (Law. Civil. Art. 718 and vol. II, ed. 1892, General. Uchr. Gub., Art. 1018); when purchasing estates by monasteries and churches (1429, 1430); specific department (1431); during the sale of possessions and mining plants (717 Article of the Law of Civil Code; 225 Article of the Constitution of the Mining Code, edition of 1893); houses in mountain towns and factories (Law Civil Code, Art. 717); fief estates (Poln. Collected Laws of 1871, N 50238), lands given to peasants, etc. Among the prohibitive rules relating to acquirers, attention should be paid to the prohibition of persons of Polish origin from acquiring estates in the western region, and plots distributed to Russian officials in the Kingdom of Poland, as well as restrictions on the acquisition of estates by Jews and in some provinces by foreigners. See § 8 and many others. State owls May 22, 1894 (Collected Uzak. N 1066) on the prohibition of Jews acquiring lands with signs of oil in the Kuban and Terek troops, foreigners and foreign companies without special permission. The deed of sale is written in a certain form (1420 Civil Code). It must indicate the announcement of the sale and the persons participating in it; it must be explained by what fortification the estate reached the seller, a detailed description of the estate must be placed and the sale price indicated. The price of immovable inhabited estates and lands must not be lower than the established tax (1465). 1875, No. 626. With regard to the transfer of ownership of an estate, the execution of the rite by the junior notary regarding the execution of the deed of sale should be considered a preliminary action, through which no property rights are acquired, and only with the approval of the act completed by the junior notary by the senior notary, this act turns into a serf and from that time the deed of sale is considered finally completed (Article 157 Not. Pol.). Until the deed is approved by the senior notary, each party has every right to refuse to perform it. These are all necessary conditions of sale. But there may be arbitrary conditions about who should pay duties and costs, about the transfer of debts and payments from the seller to the buyer, etc. The most important of these conditions is the condition of cleaning (Civil Law, Art. 708, Appendix I, Art. 64). § 40. General form of sale and special forms. Conditions for cleaning. concept of cleaning (garantie). Practical meaning of a cleanup claim. The special significance of patrimonial cleansing (gar. réelle) Through clearing, the seller generally guarantees the buyer for the quiet and complete possession of the property being sold, and undertakes to otherwise compensate him if someone else's right appears on the property, as a result of which the property may subsequently be recognized as belonging not to the seller, but to another person, and if there are significant defects in the property being sold. According to the law (1427), clearing is an announcement made in the bill of sale by the seller that the property has not previously been sold or mortgaged from him, has not been secured in any way, has not been assigned for anything, and the obligation accepted by the seller is to clear the buyer of all those who have entered into that property and not lead to losses, with the certification to pay them to the buyer if they occur. In French law, a buyer from whom a third party demands the surrender of an estate is given one of two options: or to involve the seller in the case so that he takes upon himself the defense against the claim, and if he does not have time, he would reward him, the buyer (182 C. proc.); or defend your right yourself and, if you don’t have time, bring a special claim against the seller for compensation. This is the practical significance of the right to clean up: it is all the more important the more procedural the statute makes it possible to exercise this right. In our country, the right of the acquirer has not yet found sufficient protection in legal proceedings. According to the previous laws of civil proceedings, the buyer, ousted from possession by a third party, had only one remedy - to present a return claim to the seller. This is still quite insufficient; and why it is not enough can be explained by the following considerations about the essence of purification (garantie). It often happens that a person who brings a claim, who is brought to justice or from whom satisfaction is demanded, is forced to file a claim or is brought to justice not through his own fault, but through someone else’s, i.e. has a special legal relationship with a third party, by virtue of which the third party was obliged not to bring him to litigation, not to allow him to be held liable. As a result, the defendant, who has lost the lawsuit, has a legal reason to turn to a third party and demand compensation from him for what he lost or what he did not manage to receive in his lawsuit. This attitude, known in foreign legislation under the name garantie, Gewärschaft, can best be expressed in our country by the word: cleansing, which has long been known in our patrimonial terminology. This relationship is found both in patrimonial rights and in rights arising from personal claims; it may be based on contract or on law 282 . I buy a house and pay money for it; after a while it turns out that the ownership of the house did not belong to my seller, but to another person who, having appeared, demanded the house from me, since the house is in my possession. It is obvious that if the house is taken from me, I have the right to demand from my seller full compensation for the price of the house, which I paid him for free, and for all my losses: he must clear me of that. I buy a house, receive a deed of sale, but when I need to take possession, it turns out that this house is already owned by a third party who will not let me in: - it is obvious that I have a difficult task ahead of me - to obtain from a third party a house that I purchased from the seller with my own money, while the seller certified me that the house is free: my seller must either save me from the litigation in which I got into by his grace, or reward me for the consequences of such a lawsuit. This right is legal, but it can also be based on a special agreement on cleaning included in the deed of sale. I vouched for the debtor; the creditor demands satisfaction from me. I have the right to demand from the debtor for whom I vouched that he clear me, i.e. would hasten to satisfy the creditor or reward me with all that I paid and spent for him. A loan letter was handed over to me, but when I contact the debtor, it turns out that the loan letter has already been paid before the transfer; in this case, the transmitter is obliged to clear me. According to a separate deed, out of several co-heirs, one assumed the payment of a certain debt when equalizing the shares; but when it came to payment, he evaded it, and the debt was collected from all co-heirs: in this case, they can all demand cleansing from the evader under the terms of the separate act. The practical significance of this relationship is the more correct, the more conveniently it is implemented. How is it carried out? One person, entering into a mandatory relationship with another person, directly or indirectly certifies that everything that this other person has the right to expect according to the acquired right will occur in accordance with this expectation, otherwise he undertakes: firstly, to reward him for all the disadvantages that may result from events or actions that do not agree with the expectation; secondly, do not even bring him to these disadvantages. A transaction between two persons is based on the assumption of known circumstances, according to which it represents a benefit or disadvantage; if these circumstances were unknown and unclear, then the counterparty would not dare to enter into a transaction; therefore, the other party certifies him of the reliability of the right he is acquiring. I would not have decided to buy an estate if I knew that the seller’s right to that estate was unclear and controversial; would not vouch for the debtor if he foresaw that he would be insolvent or would evade payment; I would not buy a loan letter if I had reason to suspect that it was invalid, etc. I was certified and I made up my mind. But when exercising my right, I encounter strong objections to it from unexpected persons; objections relating not to my circumstances, but to the circumstances of my counterparty or transmitter; to the very circumstances that, according to his assurance, I assumed were clear, known, and reliable. My position is unfavorable. I must, firstly, defend myself against these objections, defend my right, use costs and efforts in order to clarify such circumstances that concern not only me, but also my opponent. It follows, in all fairness, that I can invite my counterparty or transmitter to participate in this matter, to clarify the unknown and controversial. But, in addition, secondly, all my efforts to protect my rights may turn out to be fruitless; the proposals that I had in mind when I acquired the right from my counterparty or transferor may turn out to be incorrect, and I may be deprived by a court of law of a right that I considered secured, or suffer a disadvantage from which I considered myself insured. In this case, I can demand remuneration from my counterparty or transmitter. So, this is where the purification takes place: first, in a special action for compensation; secondly, the right to involve a counterparty or transmitter in the case. This right of attraction is important for the following reasons: a) It makes it possible to combine two cases in one proceeding, reducing time and costs; resolve together the question of the main subject of the dispute and the question of cleanup that arose in connection with this dispute. b) It contributes to the clarification of the disputed subject and facilitates the evidentiary part of the process for the person having the right of clearance. I am called to account on a subject about which my counterparty knows as much, if not more, than I do. His interest lies in this dispute, because in the event of a decision unfavorable for me, he must answer to me, and so it is fair to call on him to participate in clarifying the matter. c) Involving a third party in some cases is important because it gives the person with the right of clearance the opportunity to retain this right in its entirety. I am called to account about a matter that concerns my counterparty or transmitter. I defend myself without inviting him to answer, and I lose the case; for example, the court recognizes that a loan letter transferred to me from a third party is invalid. Having lost the case, I demand compensation from the transmitter. The transmitter may object to me: why didn’t you notify me about the matter? I would present evidence of the validity of the loan letter that you could not imagine or that would prove irresistible. It is your own fault that you lost a just cause, and I am not obliged to answer you. Involving a third party protects against such objections. d) Finally, the involvement of a third party is of particular practical importance when it comes to patrimonial clearance. Here it is already important for me to involve my transmitter in the case, not just so that he helps me defend myself. He can answer instead of me and relieve me of all the troubles and costs of the case, clear me completely: this may also be beneficial for him, because in the event of alienation of the estate, he will have to satisfy me for the costs of the process: it is better for him to conduct the process himself to save money. Until recently, in our legal proceedings there were no rules on the procedure for involving a third party in a case. This deficiency had to be replenished in order to ensure the essential interests of civil law, the interests of credit, which were not at all ensured on this side. The need to ensure this is felt most of all in patrimonial affairs, specifically with us, because land records do not exist with us, the acquisition is made by the act of sale itself, and every purchase, without exception, can be said to be made at risk. Everyone knows how often it happens to the buyer to be exposed to the accidents of the process of ownership of the purchased estate: his position in this case is very unfavorable, because he must conduct the process at his own risk and at his own expense and endure, in the event of alienation of the estate, irrevocable losses. The law only grants him the right to then seek compensation from the seller through a special claim: hence the need for another process, new costs, and the faintest hope of capturing, at least someday, something in compensation. These inconveniences are eliminated by the supposed possibility of involving the seller in business with the intervenor, immediately combining both processes together and, in case of evasion by the seller, achieving at least immediate security in his cash estate. Therefore, the procedural side of the cleanup proceedings, the cleanup claim, is very important for the firmness of patrimonial rights, and patrimonial cleanup differs significantly in this respect from the claim. The most important difference is this. For a third party to appear and take part in the case is optional. The connection of cases achieved through attraction is not at all a necessity, but only a possibility in the process: - a third party is in no way assumed to be a defendant in a process between two other persons; His responsibility is a conditional responsibility, a liability for an accident. The law arranges things in such a way that it is beneficial for a third party to appear and respond, but it is unprofitable to remain silent and evade. The responsibility of the third party to the caller is assumed; but when to carry out responsibility, it depends not only on the will of the caller, but also on the will of the callee. A third party may or may not appear, respond or not respond. If it is not responded to on time, it is not expected and the case between the plaintiff and the defendant continues. The disadvantage of evasion is that: a) that the evader is deprived of the opportunity to monitor the progress of the process, control costs, contribute to the clarification of the matter and protect his own interest, combined with the interest of the caller; b) that he still remains under the fear of future penalties, under increased fear, for the extent of his future responsibility depends on the actions in court of the party for whom he must be responsible; c) whatever these actions may be, whatever omissions this party may have made to protect the right, whatever costs it may cost him to conduct the process - all this becomes obligatory for the third party. Having appeared, the third person is under no circumstances obliged to stand at the trial in place of the one who called him. It is not obligated, but it can, and even then not unconditionally: it can in cases of patrimonial clearance without the consent of the other party, although with the right of the other party to object to this. The reason for this difference lies in the difference between patrimonial and any other clearing (garantie formelle ou réélle et garantie simple) or, better said, in the fundamental difference between property and personal demands. In a patrimonial claim, the claim is unconditional; a cash thing is required under patrimonial law, it is required not by virtue of an agreement or personal relationship, and not from a known person, but from anyone in whose possession it is. Every right must be conceded to the unconditional patrimonial right, and the plaintiff does not care from whomever he demands, for his demand does not relate to a person, but to a thing. On the contrary, in a claim arising from an obligation, in the clearing of a non-patrimonial claim, it may be important for the plaintiff to deal with a known person, to demand from a known person. Here, the defendant cannot unconditionally exclude himself from the case and substitute another person for himself, with whom the plaintiff had no business and from whom he does not expect satisfaction. For example, in the above case: the creditor is seeking from his debtor, to whom he gave money as a wealthy person. Meanwhile, it turns out that the debtor entered into a deal with a third party, by virtue of which the third party undertook to pay the creditor for him, but did not pay. The creditor collects his debt from the debtor. The debtor, referring to a third party, involves him, according to his agreement with him, in cleaning. What does the creditor care about this agreement, in which he did not participate? He has the right to hold on to his defendant. If a third party intervenes in response to the patrimonial clearance, the direct defendant may withdraw from the case; but he may remain in business to protect his rights. For him there is also an interest in the matter: if it ends well, the estate, the patrimonial right will remain with him, and therefore it is important for him to observe how and how the third party defends himself, because by defending himself, he also protects him. And the original plaintiff can demand that the defendant not be released from the case; This is why this is important: the plaintiff’s claim may relate to more than one patrimonial right. The defendant, during his possession of the estate, could damage it, make changes to it that require payment and remuneration. In this case, the plaintiff has no one to claim from, except the initial defendant, and it may be important for the plaintiff that this person remains in the case. In connection with the rule on calling a third party for patrimonial cleansing, the rule is: “if he evades appearance and participation in the case, then the defendant has the right to ask that his contrary demand be secured.” The rule is very important, especially in our country, where patrimonial rights are subject to such risk and uncertainty, where affairs last for a very long time and, according to the conditions of our life, cannot be ended quickly in such cases. The disadvantage of a buyer caught in a dispute over an estate is further enhanced by the fact that at the end of the process, by filing a reverse claim against the seller, he risks not receiving anything, losing the seller’s cash property. It is important that he has the right to secure his return claim in advance with the cash property of a third party in the event of his failure to appear. This right also serves as the most effective compulsion of a third party to appear. Our new charter of civil proceedings establishes rules, although incomplete, but still providing an opportunity, which did not exist before, to involve a third party in litigation to clear the plaintiff or defendant. Unfortunately, these rules do not express, to further protect patrimonial rights, the distinction between simple and patrimonial cleansing (Ust. Court. Civil Art. 653–661). a) By force of Art. 1427. the seller must clear the buyer of entrants. The question of the limits of this obligation arose in the village of Djuricha. Djuric bought the land from Sarandinaki: it turned out that part of the land was occupied by fishing producers, who did not allow the buyer to use it, citing a condition with the previous owner. As a result, Djuric sought from the seller the losses that he suffered from the participants. The Chamber rejected the claim, judging, among other things, that the buyer's right to compensation opens only when the property is actually alienated by a court decision in favor of the parties. The Senate (Cass. decision 1870, N 1548) refuted these arguments, recognizing that within the meaning of Art. 1427. The seller is obliged to clear the buyer of all entrants, and therefore of those who, even without soliciting the alienation of property from the buyer, in whole or in part, claim other rights to the sold property, based on obligations to the seller, such as, for example, the right to use or participate in the ownership of the sold property, and in general rights, in the existence of which the buyer is limited in ownership rights despite the certificate in the deed of ownership of the property. With this reasoning, the right to clean up is expanded beyond its legal limits. From this reasoning it can be concluded that the buyer, due only to the fact that his free use is hampered by rights asserted by a third party, already receives the right to demand compensation from the seller for that part of the property to which rights have been asserted. But such a conclusion is hardly valid. The presentation of rights to the purchased property does not deprive the buyer of the legal opportunity to defend his patrimonial right, and does not relieve him of the corresponding obligation, because with the transfer of patrimonial rights to him, he, and he alone, is directly responsible for his property. Therefore, the buyer cannot, upon presentation of rights to the property by third parties, tell the seller: I don’t care about my protection - reward me for what is required of me, or what is hindering my use. In this case, the buyer can only involve the seller in his litigation with the intervenor as a third party. The buyer's right to patrimonial compensation, i.e. to compensate for the quantity missing against the bill of sale, arises, as the chamber rightly judged, only when it turns out that the seller actually had this quantity not as his own, but as someone else’s, and as a result was taken from the buyer: i.e. For this, a truly judicial verdict is required in a lawsuit between the buyer and the intervenor; if the buyer himself failed to defend himself before the buyer or lost through his own fault the right and possession, then the seller is not guilty of paying for the missing value or quantity of what was sold. It is true that, in addition, by force of Art. 1427. the seller is obliged to pay the buyer the losses caused to him by the action of the buyer, for example, litigation costs, whatever the outcome of the litigation, etc. But in the present case, i.e. in the Djuric case, the claim was not for damages of this kind, but for compensation for the value of the land itself, which was occupied by fishing owners, the ownership of which had not yet been determined by a court verdict. b) After the sale of the estate, carried out under serfdom, the freed peasants began to live on the basis. Pos. Main Committee May 28, 1869, to find part of the land from this estate, proving that they bought it with their own money, in the name of the landowner. This land was alienated to the peasants, as a result of which the owner of the estate began to demand from his seller, under the terms of clearing, compensation for the alienated land. This claim was denied for these reasons. By virtue of Art. 1427. The seller's liability in relation to the parties involved occurs if their rights are based on circumstances relating to the seller, and if it turns out that the seller did not have a legal right to what was sold. But if the buyer is deprived of part of the estate not because the seller did not have the right to alienate it, but as a result of changes in the legislation that gave third parties a right that they previously did not have at the time of sale (just as the peasants did not have before the new law), then the seller is not liable, because the buyer’s right to part of the estate is lost not by the will of the seller, but as a result of the actions of the legislative authority (Cass. decision 1871, No. 296). This reasoning may still be contested. The obligation to clean does not depend on the seller’s fault or on his personal consciousness. When it turns out that he sold not his own, but someone else’s, although he considered someone else’s his own, then he received money for nothing for what he sold and brought the buyer to a loss, and is obliged to reward him. In the above case, it turned out that the seller sold someone else's, peasant land. It is true that at that time the peasants were deprived of the right to claim this land, which was granted to them later; but even at the time of the sale, the law was aware of the possibility of a separate purchase of land by peasants, although in the name of the landowner, only without the right to sue. A later law recognized this right, recognizing the legal personality of the peasant, but did not create property for them, but only clothed their individual property in legal form. Therefore, in the present case there are conditions of clearance and compensation, precisely in the circumstances relating to the seller. It would be a different matter if the buyer suffered from the law, for example, on expropriation, which did not exist at the time of the sale: there would truly be no circumstances relating to the seller. 1873, N 1714. Within the meaning of Art. 1427. X Part 1, the seller, by virtue of the obligation he has assumed to clear the buyer of bidders, is obliged to answer to the buyer only for those bidders who claim rights to the purchased property based on circumstances related to the seller. 1878, N 21. Neither in 1427 Art. X v. 1, nor in any other article is it expressed that, due to the so-called clearing, the previous owner retained part of the rights belonging to the owner of the property, by virtue of which he could, in addition to the present owner, appear in court as an independent plaintiff before third parties for claims relating to that property. It follows that clearing does not prevent the buyer from entering into an action and does not oblige him to be held liable during the action of the seller; the same applies in cases where, for a new acquisition, as a result of the actions of a third party in relation to the acquired property, it is necessary, in accordance with the rules set out in the section on the right of judicial protection for property (Article 693 X Vol. I Part I et seq.), to protect the right belonging to him. Under such circumstances, representation at trial of a person outside the property cannot take place. The obligation to clear the buyer loses its force if the buyer was aware of his dispute when making the deed, and the buyer himself, in order to remove the obstacle, undertook to accept responsibility to that party during the purchase. Cass. decide 1869, N 735. 1874, N 848. According to the exact meaning of Art. 1427. X Part I, by the condition on clearances, the seller assumes the obligation to clear the buyer from all those who have entered into the sold property, who claim their rights to it, based on circumstances related to the seller, such as: the right to use or participate in the ownership of the sold property, in whole or in part, and not from just those who entered into ownership of the property, because the essential purpose of the condition on clearances is only to protect the buyer from losses that may be caused to him by the actions of the seller regarding the property prior to the sale, and such losses, obviously, can be caused not only by those who entered into the ownership of the buyer, but also in general by persons who, through the fault of the seller, may limit the buyer in extracting benefits from the acquired property. In such cases, the seller, by virtue of the general law (Article 684 Vol. X Part 1), cannot be recognized as free from liability to the buyer for losses incurred by him. 1876, N 110. From a comparison of 1420, 1425, 1451 and 1452 art. X t. 1 part with the form of the deed of sale specified in the appendix. to Article 1420, it should be concluded that the indication of the measure of land does not at all constitute a necessary condition, without which the deed of sale could not be completed. Therefore, the discrepancy between the actual measure of land and that indicated in the deed of sale does not in itself give the buyer of the estate the right to demand compensation for the missing amount of land, and such compensation may be denied to the buyer if the court recognizes that a certain estate was sold to him, and not a certain amount of land, and that the seller transferred to him everything that is indicated as sold by the meaning (and not the letter) of the deed of sale. 1878, No. 13. The law (appendix to 1420 Art. X Vol. 1 Part), requiring that the measure of land be shown in the deed of sale, does not attach special significance to this and does not establish that in the deed of sale the measure of the land sold must be indicated. Therefore, the designation in the deed of sale of the measure of the land sold does not constitute unconditional proof that in kind the seller owned the land in that space, as shown in the deed of sale. 1877, N 337. According to the charter of the zemstvo bank, the appraisal commission is not obliged to measure the mortgaged land and determine the space of it with infallible accuracy, and therefore, if the estate sold at public auction, by order of the bank, turns out to be in kind a smaller number of acres of land compared to what was listed in the cited documents (i.e. in the information provided by the owner of the estate, and in the pledge certificate Civil Chamber), the bank cannot be blamed for any omission, especially since information about the quantity of land must be shown in the mortgage certificates of the Civil Chambers on the basis of the most true and accurate information. 1878, No. 21. If the seller of an immovable estate has accepted a guarantee to the buyer only that the sold estate has not been sold to anyone, has not been mortgaged, is not encumbered with debts and is not under prohibition, then the tenant (of the house) of the estate, who claims his rights to it, cannot be counted among the participants who are generally mentioned in Article 1427, neither within the meaning of this article, nor on the basis bill of sale fortress. 1890, No. 9. Semigalovsky, having sold the Dobrovolskaya house in Kharkov and leaving part of the price for the mortgage, began to collect on this mortgage. the defendant stated that the wall of the house had cracked, that upon inspection it turned out that the walls were built of wood and lined with bricks, whereas a stone house had been sold to her, and therefore asked that the deed and mortgage be declared invalid, that the house be returned to Semigalovsky’s possession, and that she receive the money paid for it with interest until the day of satisfaction. The District Court and the Chamber rejected the voluntary counterclaim, and the Senate, in resolving the question that arose in this case: whether the deception committed during the sale of real estate in the quality of the property sold could serve as the basis for a demand on the part of the buyer to declare the sale invalid - found that in cases of concealment from the buyer of real estate such significant defects, if discovered, it would turn out that the buyer did not receive at all the property for the purchase of which he declared consent, this deception as the subject of the contract must be recognized as undermining the free will of the deceived party and gives it the right to demand the destruction of the contract itself. Without a doubt, the question of how significant the hidden defects of the purchased property are and how much their concealment violated the free will of the buyer must be resolved in each individual case by a court deciding the case on its merits; but when discussing this issue, the court is obliged to consider and weigh all the evidence indicated to it on this subject by the parties. This was not done by the chamber in the cited case, and therefore its decision in this part was cancelled. 1873, N 969. If the buyer suffered a loss due to the seller selling him a ticket that had no value, then the buyer’s right to receive a reward naturally follows from Articles 684, 1516 and 1518. X t. 1 h., even if there was no provision for such remuneration in the purchase and sale agreement. 1873, N 720. Art. 1394, vol. X, part 1, which prohibits the sale of property under guardianship, inventory or sequestration, does not exhaust all cases of alienation of property prohibited by law and does not have such a connection with Art. 1529, vol. X, part 1, so that, on the basis of this last article, the court has the right to invalidate the reinstatement only of such property that has been subject to guardianship, inventory or seizure; on the contrary, the content of Art. 1529 convinces that a property transaction in which the court sees an illegal purpose, false re-strengthening of property, extortionate twists, harm to the state treasury, etc. can also be declared invalid. § 41. Issuance of deeds of serfdom. Failed bill of sale. Acquisition of patrimonial rights by purchase, according to Roman law. Transfer of rights under the deed of sale to us. Cancellation and destruction of the bill of sale. Conditional sale under French law. The meaning of a conditional sale under our law. Historical foreclosure law in German law. Cases of foreclosure in our country and in the local law of the Baltic provinces. Two-year period for a dispute over a bill of sale. Origin of this term. Difficulties in its use The bill of sale is issued from the senior notary or from serf affairs, upon approval or completion, to the one who presented it for approval, or to the person who is granted the right to receive it in the deed, and where the notarial position is not introduced - to the one who completed it (Pol. Notar., Art. 154, 157 et seq., 171; Law. Civil., Art. 708, App. I, Art. 34, 81). With this, the entire production ends and the act is considered finally completed. But this does not mean that this act is completely irrevocable. The seller must transfer the deed to the buyer, and with this transfer is connected the idea of ​​​​transferring the very right of ownership of the property. This issuance of the bill of sale from serfs and then transfer from hand to hand are essential actions, and therefore, if the bill of sale, finally completed by the serfs, had not yet been issued to the executor, or had been issued to him, had not yet been transferred from him to the buyer, the sale could still be recognized as invalid, due to the evasion of one or the other party from issuing or accepting the bill of sale (cf. Sat. Sen. decision vol. 2, N 517). It is impossible to force the owner of the estate to either execute a deed of sale or issue it unless he does so of his own free will and by agreement with the other party; for the agreement of the parties is an essential condition of the contract; Therefore, it is impossible to imagine the sale of an estate from one person to another. In other cases, the government authority, taking the estate of a private person into its disposal, subjects it to sale - at public auction or economic - in order to extract value from it in favor of third parties or in the interest of the state; but this will be a sale on behalf of the government. Failure to fulfill the obligation to sell may give rise to a personal demand for compensation; but does not serve as a reason for the forced issuance of a bill of sale or deed; so even if the condition between the parties was to provide the buyer with the deed of sale given by the government, such a condition would be declared invalid as inconsistent with the essence of the purchase and sale (cf. Collection of decisions, vol. 2, N 787, 840, 1076). When transferring the deed, the property is exchanged for money. The bill of sale usually states that the money has been received. This explanation does not yet serve as unconditional proof of the payment of all the money for the purchased property (cf. Sat. Sen. decision vol. 2, N 517, 990): however, if with such an explanation, without any reservation, the bill of sale is already transferred by the seller to the buyer, this explanation already serves as proof that the estate has been fully paid for. In this case, the seller is not deprived of the opportunity to refute the actual meaning of the explanation of payment under the bill of sale, but he also has the obligation to prove that the money was not paid or was not paid in full. And the presence of a bill of sale in the hands of the seller raises the assumption that payment has not yet been fully completed. But after the issuance of the deed of serfdom, the sale may still be considered invalid within 7 days. If, for example, the seller does not receive money within this period, he can ask the serfs to destroy the validity of the act, and if this period is missed, the destruction can only be carried out by court (Civil Law, art. 708, appendix I, art. 82, 84). To Cass. decide 1869, No. 208, it is expressed that the case given in Art. 1424 (corresponding to Article 84 of Appendix I to Article 708, Law of Civil Code, edition of 1887), is exceptional, and that the law does not foresee any other reason (other than non-payment of money) for invalidating the deed of sale at the seller’s claim. One can hardly agree with this conclusion, in view of Art. 825. (corresponding to Article 82 of Appendix I to Article 708 of the Civil Code, edition of 1887), which states: if the sale or other consolidation of something does not take place. In the decision of the Senate (Cass. decision 1867, N 124 and 1869, N 208), it is explained that based on 1424 Art. (corresponding to Article 84 of Appendix I to Article 708 of the Civil Law, ed. 1887) an act may be declared invalid when the parties involved in the case (by mutual consent) or one party refuse actions that determine the validity of the act before it has assumed its force; the perception of this force occurs precisely when, after the commission of the act, the very transfer of it has taken place. Thus, the right to the property sold passes along with the deed and is finally confirmed to the buyer after the expiration of a seven-day period (1416, 1509). The buyer acquires full ownership rights, but in the event of a double sale of the estate into different hands, the previously completed deed of sale takes precedence. The acquisition of ownership of property by purchase was significantly different under Roman law from acquisition by all other means. When property was transferred through means other than sale (for example, by gift, as a dowry, etc.), the law did not care on what basis or by virtue of what transaction the property was transferred (causa traditionis); the acquisition was completed as soon as the actual transfer of it was completed in kind, with a genuine will to give on the one hand, and to accept on the other (animus tradendi et accipiendi); on the contrary, when transferring property for sale and purchase, such transfer alone was not enough; in this case the law paid attention to the very basis of the transition; acquisition required that the purchase and sale transaction be truly executed on both sides, i.e., that the seller receive from the buyer the price of the item sold or other appropriate satisfaction. This rule is one of the oldest in Roman law (Si quidem ex causa donationis aut dotis aut qualibet alia ex causa traduntur sine dubio transferuntur. Venditae vero res et traditae non aliter emptori acquiruntur quam si is venditori pretium solverit vel alio modo ei satisfecerit veluti expromissore aut pignore dato, quod cavetur quidem et lege XII tabularum). It was assumed that the seller, in any case, should not irrevocably lose his patrimonial right to the thing until he received compensation for it according to the terms. This rule, whose validity is obvious, has not lost its practical significance to this day where the positive law does not establish the exact formal signs of the acquisition that has taken place: on this basis, I think that here in Russia it can also be applied in some cases, as will be shown below. The right passes with the transfer of the deed. In ordinary contracts, the transfer of rights depends on the fulfillment of a condition. If, for example, payment is made in installments, then the property is acquired only after the last payment has been made. But here, even if the payment was made in installments, the right of ownership is acquired immediately upon the issuance of the deed, and if it later turns out that the money was underpaid, then everything underpaid is only recovered from the buyer; The property itself should not be turned over to the seller for this reason alone. By virtue of the purchase and sale agreement, the ownership of the property goes to the buyer at the very conclusion of the deed, regardless of whether the actual transfer of the property and the payment of all money for it followed at the same time: leaving the sold property for some time at the disposal of the seller and installment payment cannot, in themselves, serve as evidence that the deed was not a sale, but a re-sale (Cass. decision 1871, No. 517). 1874, No. 175. The Senate found that the seller, having concluded a deal with the buyer for the sale of a house and having completed a notarial deed in accordance with the established procedure, with the provision of one buyer to comply with the formality specified in the Notarial Regulations for approval of the extract by the senior notary, without any participation on his part, thereby ending all the actions that lay on him: although he then declared during the first 7 days to the senior notary about his disagreement with the sale of the house, but took the application back, and the senior notary had no legal basis not to approve the deed of sale, which, thus, turns out to be legally valid. And since the deed can be recognized as invalid when one of the parties involved in the transaction refuses to take actions that determine the validity of the deed before the deed has assumed its force, then in this case the Trial Chamber correctly refused the seller’s request to invalidate the deed. 1873, N 1094; 1876, N 203, 583. By the decision of Pr. Sep. 1872, No. 306, it is recognized that the performance of the rite by a junior notary regarding the execution of a deed of sale according to the rules of the Notarial Regulations should be considered a preliminary action, which does not acquire any property rights, and only with the approval of the act completed by a junior notary by a senior notary does this act become a serf and from that time the deed of sale is considered finally completed (Article 157 of the Notary Pol.). 1877, No. 278. When the notarial provision is in effect, in the case when the deed of sale and purchase did not take place, the parties participating in it on the basis of Art. 825 and 1424 Vol. X, Part I (corresponding to Articles 82 and 84 of Appendix I to Article 708 of the Civil Code, ed. 1887) are not deprived of the right to declare this to the senior notary within seven days from the date of approval of the act, or, if this period is missed, to bring a claim for the destruction of the serfdom deed; one or another right can be equally exercised by both the seller who has not received the agreed price of the estate from the buyer (Article 1424, corresponding to Article 84 Appendix I to Article 708 of the Civil Code, ed. 1887), and the buyer who has paid the purchase price, but does not receive an extract of the serfdom due to the fault of the seller, and it is entirely up to the seller of real estate to ensure that he receives purchase amount, or at least the timely destruction of the failed deed of sale, establishing at the conclusion of the transaction that the extracts of both the notarial and serfdom deeds should be issued to him and not to the buyer. 1873, N 401. The Chamber, recognizing the lack of money in the deed of sale, correctly applied Article 1424 to the case. X Vol. I Part (corresponding to Article 84 of Appendix I to Article 708 of the Civil Code, edition of 1887), which allows the seller to ask the court to destroy the deed of sale if he does not receive the price of the real estate from the buyer. The magistrate's court decided that the disputed tobacco had not yet been sold, but had been sold, since it had not yet been handed over to the buyer, and the money had not yet been paid for it, therefore, it was the property of the seller. The Senate abolished this reasoning, because failure to pay all the money for an item and not transfer it to the buyer does not deprive the transaction of the meaning of purchase and sale. This is confirmed, in the opinion of the Senate, by the content of articles 1513, 1514 and 1522 of the Law. Gr. Cass. decide 1872, N 460. 1878, No. 173. The conclusion of the court that the buyer, who undertook to issue a mortgage on it in payment for the estate he purchased and did not issue it, should be recognized as not having paid the agreed price for this estate, does not violate Art. 1420. X Vol. I, because neither this nor other articles of the code of laws contain a prohibition to sell an estate not only for cash, but also on credit, with the obligation of the buyer to issue a mortgage on it in payment for the estate he purchased. 1875, N 626. In the deed of sale, it is necessary to include (appendix to Article 1420, Vol. X, Part I) that the money has been received, and therefore the placement of the spoken words in the draft act, which should be recognized as a deed of sale drawn up by a junior notary, but not yet approved by a senior one, cannot serve as evidence of the validity of receipt of the purchase price, especially since the law itself (1424 art. X t., part 1, corresponding to art. 84 appendix I to article 708 of the Civil Code, ed. 1887) allows for a dispute of this kind even after the final execution of the deed of sale. 1873, N 587. From the moment when the deed of sale is finally completed in accordance with the procedure established by law and issued to the buyer, the latter becomes the owner of the purchased estate. As for Art. 1432. Est. Gr. Court., then it, as belonging to the rules of protective proceedings, cannot be interpreted in the sense of the law establishing substantive law; it determines only the beginning of the actual transfer and actual strengthening of the right to property in relation to outsiders (see 2nd edition of the court's statute. State Chancellery explanation under Art. 1424). According to Cass. decide the right of ownership during a free sale under a deed of sale is transferred in a different way than during a public sale: in the first case, it passes from the moment of approval of the serfdom deed, in the latter - from the day of the public sale. In the first case, the deed is the bill of sale, in the latter, the deed. See Cass. decide 1876, N 141; 1881, N 94. 1877, N 278; 1878, N 127. The purchase and sale of real estate should be considered finally completed and the ownership of the estate transferred from the seller to the buyer, from the moment the act is approved by the senior notary, and not from the moment the extract of the approved act is transferred to the buyer. Senate (2nd department, 3rd department) September 24 1870 in the village of Bakurinskaya recognized it as possible and legal to include in the deed of sale such a condition that the sold estate would remain with the seller until his death in full and unaccountable possession (see Cass. decision 1874, No. 20). 1876, N 584. In a purchase and sale agreement, ownership passes to the buyer regardless of whether the actual transfer of property is completed at the same time or not, therefore, the claim of private individuals for property acquired from an insolvent person under a purchase and sale agreement and remaining with him for some reason, but not under a mortgage or in storage, cannot be subject to the provisions established in Art. 1888. Est. Bargain. (corresponding to Article 509 of the Constitution of the Court of Trade, edition of 1893) the procedure for presenting it to the court. 1874, N 316. With the completion of the ceremony of committing a serfdom and with the issuance of an extract to the purchaser of the estate, the ownership of the estate passes to the buyer, and by virtue of this right, on the basis of Art. 420 and 425, vol. X, part 1, from that time on he also owned the income from the acquired estate; by entering into possession, the new acquirer is notified of the entry into possession of the estate and the actual possession and use of the acquired property begins. Cass. decide 1872, No. 928, it is recognized that the owner of an estate subjected to public sale has, by virtue of Articles 1128 and 1097. Est. Gr. Court., the right to income from it, until the day of the public sale, if it took place legally, and not until the day of delivery of the property to the buyer. It follows from the same rule that with the transfer of property, fear for it also passes, i.e. It is the buyer, not the seller, who is responsible for any accidental damage that may occur to the property. For example, having bought a house, I accepted the deed of sale from the seller this morning, and in the evening the house burned down. Even if I have not yet been put into possession, the loss is mine, and I bear it on myself, and the seller is not obliged to compensate me for it. Even if I had not paid all the extra money for the house, then, according to the strictness of the law, I must pay it extra, regardless of the fact that what I bought was destroyed, as long as it was not the seller’s fault in this destruction. The bill of sale is a strengthening, but at the same time it is a contract. It ends the credit relationship between the parties bargaining for a purchase, but it also begins the credit relationship due to the completed exchange of values. Firstly, the buyer, accepting the estate, takes a lot on faith. Much in the available composition and accessories of the estate may not correspond to the objective beginning of the exchange. The objective beginning of exchange is this: what is shown in the estate according to the condition, what was included in the legal calculation of values ​​​​and exchange, must be present to the buyer, the seller is responsible for the integrity of the value agreed on in the estate (the beginning of patrimonial cleansing, a claim for clearing, a claim for addition of the price, laesio enormis, a claim for the destruction of the sale). In addition, faith, credit on the part of the buyer can be based on a special condition between the parties, in everything that concerns accessories and additions to the estate, not only cash, but possible and expected: this will be a negotiated clearing, according to a special condition. Secondly, the seller, accepting the price of the estate from the buyer, may also accept something else on faith. The bill of sale usually states: the money has been received in full, but another condition may be stated: the satisfaction (satisfactio) required for the transfer can be made with a loan. The sale price or part thereof may be subject to payment at due dates, more or less distant; payment of this amount may be addressed to a third party; in favor of a third party, a periodic payment may be established, spread out in installments like an annuity; in payment, the buyer may be charged with fulfilling the seller’s obligations to third parties; conditional payments can be placed in the deed of sale, calculated for a future accident (for example, an estate costs 50,000 rubles, but the seller is presented with an inheritance claim, which is not yet known whether or not it will be applied to the estate being sold due to hereditary transfer. The seller takes 30,000 rubles in cash from the buyer, so that if recovery on the obligation is awarded, then the buyer is responsible for it with the purchased property estate, and if not, then more than 30,000 rubles. paid, the seller no longer has the right to demand anything from the buyer). From all such conditions, credit relations between the parties arise, by virtue of the deed of sale, already belonging to the circle of contracts; but nevertheless, with the execution of the deed of sale on these terms and with the transfer of the estate, its transfer to the buyer must be recognized as completed, because instead of the estate, satisfaction with a loan (satisfactio) was received 283. In one decision of the Senate it is expressed (Cass. decision 1868, N 850) that the contents of the bill of sale finally determine the relations and mutual obligations of the parties, so that after the bill of sale the terms of the previous sales agreement are not taken into consideration. Cass. decide 1871, No. 171, it is recognized that in our law sale is classified as a means of acquiring rights to property, regardless of the credit relations arising from it due to the special consent of the parties. So, a simple purchase and sale transaction in itself does not presuppose such a credit relationship between the parties in which one would agree to wait for the transfer of property until a certain date, ensuring the fidelity of this transfer by a penalty imposed on the other party for refusal to transfer or for delay. As a result, a power of attorney given solely for the execution and issuance of a deed of sale does not authorize the attorney to enter into a condition regarding a deposit with a penalty. 1874, N 271. A deed of sale made between two persons cannot be binding on a third - the owner of the land - if upon taking possession or subsequently, during the land prescription, it turns out that according to it the buyer extends his possession to such lands or buildings that belonged by right of ownership to a third party; for such cases, Art. 1524. X t. I part does not apply. 1878, No. 105. If the seller, when performing an act of sale, acts even illegally, then the incorrectness in this case of his own action cannot serve as a basis for him to demand in court the destruction of the act in which he took part of his good and spontaneous will and with the consciousness of what he did. To Cass. decide 1872, N 999 it is explained that on the basis. 825 and 1424 art. I part X t. (corresponding to Articles 82 and 84 of Appendix I to Article 708 of the Civil Code, edition of 1887) only failure to receive money from the buyer gives the seller the right to challenge the validity of the serfdom deed issued by him in court. By force 706 (in the edition of the Civil Law of 1887, this article was replaced by Articles 1690–1698 of the Code of Punishment), 1389 and 1406 Art. sale m.b. destroyed for forgery, for the property not belonging to the seller, for violation of prohibitions. In all these cases, a person whose interests are violated by an illegal sale through no fault of his own cannot deprived of the opportunity to ask for restoration of rights. But if the seller himself acted illegally when performing the act of sale, then the wrongness of his own act cannot serve as a legal basis for him to demand in court the destruction of the act in which he took part of his own free will and with consciousness. In this case, the brother, who sold his brother the estate bequeathed by his mother, began to challenge the deed of sale on the grounds that at the time of its execution the mother was still alive and her will had not yet entered into force. Initially, it was customary to place in the bill of sale a condition that the buyer must, if he wants to sell the estate, first offer it to the person from whom he bought it, or a condition on the right of redemption. One might even think that in the old days, when the current concept of full ownership had not yet emerged, in the event of a sale the seller’s right to take back the sold property for payment to the buyer of the money received from him was automatically assumed. Hence in the old bills of sale there is a clause that the estate is sold without ransom (cf. Nevolin Ist. civil law vol. I, pp. 345, 346, vol. III, p. 44). Currently, there is nothing illegal in the above-mentioned right of first refusal clause, although the law does not mention such a clause. French legislation has created a special form of sale for this - vente à réméré. This is a conditional sale, and the condition is that the seller grants himself the right, within the maximum period of time (5 l.) determined by law, to receive the property back from the buyer by paying him the sale price with due consideration (C. civ. 1659 et seq.). Due to this condition, the buyer’s patrimonial right during the conditional period is still under threat, depending on the will of the seller, and by virtue of this will it can be destroyed, and the estate can return back; but this turn, taking place according to the condition, does not have the meaning of a new sale, a new transition. On the contrary, in our case, although a condition of this kind would not contain anything illegal, the law still did not touch it, did not create a special form for it, a special definition. We have one legal form of deed of sale, and with it is connected, as stated above, the concept of the transfer of full ownership rights. Consequently, when fulfilling such a condition, the question may still arise as to whether the transfer of the estate to the buyer should not be considered a secondary sale and subject to all the formal conditions of a new sale? The sale can be destroyed for violation of the right of third parties to the property sold, precisely such a right that has a patrimonial, proprietary nature. These rights include - in former times very widespread, and constrained everywhere by the latest legislation - the right of third parties, due to special relations with the seller, to take over the property from him when he wants to sell it (Näherrecht, Vorzugsrecht; Losungsrecht, jus protimiseos, Vorkaufsrecht, Retrachtsrecht). Such a right could be based either on a contract or on direct law. Such restrictions were especially numerous in German law. They existed in favor of members of the clan, in favor of the community, co-owners, in favor of neighbors, in favor of the supreme fief property, in favor of the landowner regarding peasant property, in favor of members of the noble class regarding noble and knightly estates, and were listed under various technical names, such as: Erblosung (Retractus gentilitius), Marklosung (Retractus ex jure incolatus), Theillosung, Gespilderecht (retr. ex jure congrui), Gauer-benrecht (retr. ex jure vicinitatis), etc. Roman law knew partly similar restrictions (for example, when giving land as inheritance. rent, during the public sale of bankruptcy property), but German rights are particularly distinguished by their patrimonial nature, and with them is connected the legal possibility of third parties to demand, within the prescribed period, the destruction of the completed sale, while Roman rights of this kind have the character of personal rights and are resolved practically in a claim for remuneration. We have the right of redemption for relatives in family estates (about this redemption, see Part II of the course). We also have the right of first refusal - for co-participants of a common estate, in case one of the co-participants wants to sell or mortgage his lot to an outsider (555 Art. Civil Code); for partners in common property owned by a company, when one of the participants intends to sell or assign his share to an outsider (548). In these cases, the purchase is made based on appraisal. Special rules have been established for participants in possessional mining plants (Article 549). Wed. also rule 214 art. Floor. Collection Citizen on the public sale of common non-fragmentable property. Wed. also Appendix II to approx. to Art. 322, art. 13, Zak. Comp., on the right of the owner of the town to purchase plots belonging to the residents of the town in the Bessarabia region. If one of the accomplices sold his share without prior notice to the others, do the other bypassed accomplices have the right to ask for the sale to be cancelled? In the Senate decisions on this issue, it was interpreted, regarding co-heirs, that in this case there is no absolute reason for the destruction of the bill of sale. “If we accept that the sale of a part of an undivided estate must be preceded by the consent of the co-heir, then in any case, after the completion of the deed of sale, its destruction, within the meaning of the legislation, could take place only when the person complaining about the alienation of such part positively certifies that it took place under circumstances that deprived him of the opportunity to know about the orders of his co-heir, and at the same time expressed his readiness to immediately pay the following assessment for the alienated part estates money” (cf. Sat. Sen. decision vol. 2, N 866 and 1078). In the local law of the Baltic provinces, the right of redemption (Näherrecht, Retractsrecht, Beispruchsrecht) is presented as an integral institution that embraces almost all the main types of alienation (donation, amicable assignment and exchange are excluded). The right of redemption is established either by law, or by agreement, or by will. In addition to the redemption of hereditary property, the law specifies the following types of redemption, the basis of which is knightly, local city and common law: 1) the right of nobles to redeem noble estates alienated to non-nobles; 2) the right of city residents (in some cities) to buy out real estate located in the city from an outsider; 3) the general right of land owners in cities to buy out a building erected on their land; 4) the right of redemption of partners in common property; 5) neighbor's right of redemption in some cities (St. local. Law. Civil. Art. 1613–1653, 1654, according to Prod. 1890, 1655–1673, 1676–1685, 1687–1702). In 1775, the institution on the provinces decided: upon presentation of the deed of sale for taking possession, the transfer of the estate should be announced by nailing a sheet to the judge’s doors and publication in the “Senate Gazette”, so that if within 2 years from this announcement no one comes to dispute the deed of sale, the estate is abandoned to the acquirer indisputably “and in two years no one will appear for dispute, then from now on let every dispute be destroyed, and what was bought for the buyer may be established.” This rule, even after the destruction of the renunciation ritual, was left in the Code of Civil Laws (1523–1525 Art.); but in practice it always gave rise to misunderstandings and never had absolute meaning. Although the expression of 1524 Art. is presented in an unconditional form (if within 2 years: no one comes to dispute, then from now on any dispute about the bill of sale should not take place), however, on the other hand, it is impossible in this case not to recognize the contradiction between this rule and the general unconditional rule of zemstvo prescription, by virtue of which a claim for property is extinguished only after the expiration of a 10-year period. In fact, there are many cases in which the unconditional application of this two-year rule would clearly contradict justice. So, for example, a legal heir, having the general right to seek an inheritance within 10 years from the time of publication of its discovery, would have lost this right even in the absence of publications, just because another, having illegally received the inherited estate, managed to immediately sell it to a third party, and 2 years have passed since the announcement of the deed of sale. Here, in essence, the transfer of illegally acquired property to other or third hands does not in any way violate the integrity of the indigenous, primordial right of ownership. That is why our practice has never been able to come to terms with the idea that an unconditional right of action for property can in any case be extinguished by the expiration of a short period associated with the formal ceremony of announcing the deed of sale, especially since this ritual, as everyone knows, was observed for the most part only on paper, and the announcement of the transfer in essence did not achieve the goals of publicity. It is clear that practice in every possible way sought a way out of these difficulties, and strenuously searched in our legislation for a common principle in which the indicated contradiction could be explained and reconciled; but unfortunately, it must be admitted that it is impossible to find such a beginning, and that the law of Article 1524, if it ever had any practical significance, has completely lost it since the renunciation ritual with which this rule was associated was abolished. I would like to think that this rule is valid only in disputes about the bill of sale between persons who participated in the execution of the bill of sale, without extending to the rights of third parties; - but there is nothing to support such an interpretation, except on an abstract concept, which does not find a basis in positive law, and does not fit in with the expressions of the text of the institution on provinces and 1523-1525 articles 1 part X t. That is why practice has so far shown a desire to circumvent this law in the unconditional sense, and it is necessary, without the help of legislation, to abandon the fruitless desire to interpret Article 1524 in connection with the general concept of the unconditional right of property and the claim arising from it. (On the meaning of this rule, see the discussion of Mr. Pestrzhetsky, in his articles on possession and on the 2-year term, in the J. Min. Justice. 1860. Wed. Cass. decision. 1871, N 894.) To Cass. decide 1869, N 510 it is explained that for a two-year period, within the meaning of Articles 1524 and 1525. Zach. Gr., all disputes against the deed of sale as an act of strengthening are eliminated, but disputes about the ownership of the sold estate are not eliminated (in this case, the seller’s children argued that the house was not hers, but their father’s, and therefore the sale of it, made in their own name, is invalid): disputes of this kind were stopped only 10 years ago. The article is interpreted only, apparently, in such a sense that the 2-year period extends to disputes between the buyer and seller about the validity of their agreement to sell, and the sale transition that took place thereunder. In this decision, reference is made to Mn. State Sov. 24 Apr. 1861 in the village of Tishina with Zherebtsov and on the decisions of Sen. along the villages of Khoroshcho and Tsilosoni in Zh.M.Yu. 1860 and 1863. Wed. Cass. decide 1872, N 884; 1873, N 1231; 1874, N 877; 1880, N 47; the latter says that this term also applies to data. 2-year period for challenging the bill of sale, within the meaning of Art. 756. Zach. Citizen (corresponding to Article 35 of Appendix I to Article 708 of the Law of Civil Code, edition of 1887) applies not to just bills of sale, but to all acts of strengthening. Cass. decide 1881, N 49. 1872, N 1136. Established by 1524 and 1525 art. 1 part X t. a two-year period is determined for filing a dispute against the act of strengthening, but for claims about the right of ownership that are not connected with a dispute against the bill of sale, the general ten-year limitation remains in force. In the case of the Kondatovichevs (Cass. decision 1872, No. 241), the estate was sold on behalf of all co-heirs, without the participation of two, who, after 2 years from the execution of the deed of sale, asked to have it declared invalid. The buyer objected, among other things, by referring to the 2-year period established by Article 1524. Gr. Zach. The Senate confirmed the reasoning of the Chamber that this period was established only for filing a dispute against merchant fortresses as acts of strengthening, i.e. regarding the correctness of the notarial execution thereof, and that missing this deadline does not serve as an obstacle to filing a dispute about the ownership of the sold estate within 10 years ago. § 42. The rule of Roman and modern legislation on the destruction of a purchase transaction due to disproportionality in the exchange of values A completed sale is generally considered by us to be unconditionally and irrevocably valid in relation to those persons who participated in it. The buyer, for example, can no longer complain that he paid too much for an estate when it turned out to be worth less, and the right to compensation for defects arises for him only as a result of a clearing agreement or as a result of obvious forgery. On the other hand, the seller cannot complain that he took it too cheap and demand additional additions. Other legislations, under different economic conditions, look at this subject differently. The newest Roman law allows the seller to demand back the sold plot of land when it turns out that the agreed sale price is at least half less than the actual value of the estate. This right, initially established for land plots, was gradually extended in a similar way to other property: to things subject to correct valuation; then to all exchange contracts, and finally, it was transferred to the buyer himself, when it turned out that he paid for the property half the actual price (laesio enormis, laesio ultra dimidium). This right is recognized in such an extensive form by the latest Austrian legislation (allg. bürg. Gesetzb. 934, 935). On the contrary, French law wisely restricts the right to demand the destruction of a sale for a loss, not allowing it in the sale of movable things, and allowing it only in favor of the seller of immovable property. One seller (but not the buyer) is granted a claim for the destruction of the sale (action en rescision) when his loss extends beyond 7/12 parts of the actual value of the property sold, but even in this case the buyer is allowed to be released from the claim and approve the sale, adding to the sales amount up to the size of the real value, with a tenth part discarded (Cod. civ. 1674–1685). Prussian law keeps to the middle, but turning the rule around, it grants, quite strangely, a privilege not to the seller, but to the buyer when he gave too much for the estate (Pr. Ldr. I. 11, § 58–69). On the economic and legal significance of loss (laesio) when selling an estate, see Danquart in his work: Nationalökonomie und Jurisprudenz. Heft. IV. Danquart here is an ardent and strictly consistent defender of the strict principles of the equation of values ​​and compensation for losses. But no matter how just the right may be in essence to demand the destruction of a sale for a loss in price, we think that not every legislation can with complete safety accept this right and give effect to the claims arising from it, because it is not equally convenient everywhere, it is not even possible everywhere to make a correct account of the actual value of property, or at least many types of property. And in this case, the legal rule would only lead to the initiation of many lawsuits, which, in their material content, would be hopeless and would only serve to burden the courts, and not to clarify, but to obscure private interest. It is here in Russia, where it is so often impossible, under existing economic conditions, to deduce with even approximate accuracy the objective value of many properties, and above all land ownership, - the establishment of such a rule would be, to say the least, premature. A special type of sale is the sale of property on behalf of the government. It is always carried out through public auctions to the highest bidder. Property sold on behalf of the government either belongs directly to the treasury and is sold from it at its discretion as unnecessary or in the state and state economy, with the permission of established persons and places (Law. Gr. 1489, 1501–1504; 167 art. of the Constitution of the Holy Military. Post. part IV book 2. 1342, 1353 according to V Cont.), - or belong to private individuals, and for debts and collections they are put on sale on behalf of the government, or they are put on sale at the expense and in favor of the treasury in the form of penalties for offenses against the statutes of the treasury administration (for example, the sale of confiscated things, Statute of Customs, ed. 1892, art. 1683, 1752). Credit institutions sell on their own behalf estates mortgaged to them and overdue. Property sold at public auction is strengthened to the buyer irrevocably and is not subject to redemption (Zak. Gr. 1506). This rule was established to ensure buyers, to establish confidence in the government on whose behalf the sale is made. Only the text of the law should be added for clarification: if the sale is not declared illegal. Unfortunately, in fact, this strengthening of the estate by the buyer not only does not turn out to be irrevocable, but is always more or less associated with risk. With us, on the one hand, there is such uncertainty, uncertainty regarding the composition of the estate, its accessories, its value and the rights that may belong to third parties; on the other hand, on the part of the officials carrying out the inventory and sale, there is so often a lack of understanding of the law and negligence in observing formalities that cases of the destruction of a public sale due to complaints from the former owner or third parties are very common. The transfer of ownership is accomplished through the issuance of a bill of sale or deed 284 . The acquirer cannot assign his right before receiving this act (cf. Collection. Sen. decision vol. 2, N 500). 1874, No. 480. The buyer of a real estate estate at a public auction acquires the right of ownership to this estate, and therefore to the income it generates, from the day the court issues a ruling on approving the auction and strengthening the estate for the buyer (Article 1164 of the Constitution of the Civil Court). 1876, N 141. By force 1164 art. Est. Gr. Court. the buyer of an estate at a public auction, upon the subsequent determination of the judiciary to strengthen the estate behind him, becomes the owner of this estate from the day of the public sale, and, therefore, 1509 Art. X Part 1 determines only the moment from which the buyer of an estate at a public auction acquires the right to alienate it, i.e. from the time of receipt of this, and not the moment from which he is considered the owner of the said estate. 1876, No. 296. The right of the buyer of an immovable estate at a public auction to the income from that estate arises from the date of the public sale, approved by the appropriate authority, by virtue of Art. 1164. Est. Gr. Court.; Art. 1509 X, Part 1, intends to indicate only the period from which the buyer of an estate sold at auction has the right to alienate it. 1876, N 165. Based on Art. 1509. X t. 1 h. the acquirer of an estate at a public auction enters into full ownership and can freely alienate it upon receipt of a deed or deed of sale for such an estate; but that from this time only his right to use the income of the acquired estate begins, neither in the above nor in other articles of civil laws; on the contrary, from the day of public sale it ceases, by virtue of Art. 1128. Est. Gr. Court., the right of the previous owner to the income of the real estate alienated from him, which from that time should already belong to the buyer, who, for his part, has fulfilled all the requirements of the law, even if the actual act of serfdom was completed a little later. 1875, No. 304. By virtue of the determination of the judiciary, decided on the basis of Art. 1164. Est. Gr. The court, from the day of the public sale, the buyer must be considered the owner of the purchased estate and have the right to the income from it, and therefore to dispute against the transactions of the previous owner, tending to reduce the income from the purchased estate, although the buyer enters into full ownership, namely the right of disposal, only upon receipt of this (1509 Art. X Vol. 1 Part 1). 1875, N 641. By virtue of Art. 1457. X t. 1 h. Collections for which there are prohibitions on the estates must, before the sale of the estate, be secured by the deduction of a proportionate amount from the money paid by the buyer for the estate. Although this rule was established in the department of purchase and sale between private individuals, it should also be applied when selling an estate at auction, so that if the proceeds are not sufficient to satisfy all the penalties brought against the debtor and there are prohibitions on the estate, the recovery secured by the prohibitions must be taken into account when distributing the proceeds from the sale (Article 1167 of the Establishment of the Civil Code of the Court). To Cass. decide 1881, No. 40 The Senate recognized that the buyer of the estate owns, from the time of acquisition, all the fruits and income of the estate; that income essentially means value that has already been produced, i.e. separated from the estate, that the rent, in the sense of income, falls evenly over the entire rental period; that rent received in advance at the time of receipt does not break the connection with the property (?), and at the time of receipt cannot be considered income (?): it becomes income not when it is received, but as it is covered over time (?). Therefore, it is recognized that the buyer, at a public auction of an estate (mortgaged in a bank), which the owner gave for a long-term lease 2 months before the sale with receipt of the entire payment in advance, has the right to demand from the owner the corresponding part of the rent as income of the estate from the time of its acquisition. At the same time, the Senate did not touch upon the issue of the claim and the binding nature of the lease agreement itself. In the case of Grigorenko Citizen. Cass. Dep. resolved the question: can the public sale of the hereditary Cossack lands of the Little Russian Cossacks for debts be allowed - in the affirmative sense, so long as the condition established for voluntary sale in Art. 763 Vol. IX, namely, that the estate should be acquired only by persons belonging to the same Cossack class (1893 No. 7). § 43. Sale of property at public auction. Sale of movable property. Completion and cancellation of this sale. The question of the transfer of real rights to movable property. This issue is of particular importance when selling goods between absentees. Meaning of Bill of Lading and Invoice Movable property is sold without deeds in accordance with the rule of Art. 534. Zach. Civil that a movable thing is considered the property of the one who owns it until the contrary is proven (Articles 534, 711, 712, 993, 1297, 1379, 1510. Cass. decision 1873, N 767). However, some properties, although they belong to the list of movable things, are sold and transferred only through acts, by virtue of a special legal decree. These are, for example, seagoing vessels (Articles 119, 165 et seq. of the Establishment of Trade, published in 1893) and river vessels, within the limits specified in Articles 301, 302, 716. Forest Est., ed. 1893 (Cass. decision 1870, N 1189); These are some of the rights classified by law as movable and certified by formal acts, registered credit papers, etc. Also here Cass. decide 1880, N 278 refers to writs of execution. In some cases, to protect government interests from abuse and to eliminate misunderstandings, a special written certification of the right to movable property acquired from the treasury is required: for example, by virtue of Art. 314–316. Est. Lesn., ed. 1893, timber merchants and timber raftsmen are required to have a rafting ticket that determines the ownership of that forest, when resale it, transfer the ticket to the new owner, and any sale along the way must be written on the ticket. Wed. Cass. decide 1867, N 204. By the nature of movable property to be handled without any title, the buyer, when purchasing, trusts primarily in the identity of the seller that the movable property really belongs to him, and not to a third party, and was acquired from the seller legally. The only means of securing the buyer is a guarantee (1380, 1511). Although in general movable property is considered the property of the owner, this assumption can also be destroyed. It may turn out that the seller's property was stolen. In this case, the buyer loses the property, if he bought without a guarantee, in favor of the real owner, and he himself can seek the money paid from the seller (1512; but this rule does not apply to wasted property. Cass. decision. 1878, No. 25. This rule applies only in the case when, upon filing a claim, the property turns out to be in the buyer’s possession. Cass. decision. 1878, N 181). And when did he buy it with a guarantee? Our law says nothing in this case about the limits of the legal liability of the guarantor. Failure to pay the price for an accepted item is considered by us to be a reason for canceling the sale; but it is not said that with the destruction of the sale the property is returned to the seller, but it is ordered to sell it at auction and satisfy the seller (1522). The strangeness of this rule is explained by the incorrectness of the wording in the above article, for the decree from which the article was compiled (Decree of 1727 P.S. Zak. T. IV, 5146) does not speak about movables in general, but especially about goods: “who bought the goods from whom, but will not accept or pay money.” Regarding the sale of movable things, a very important question: when does the patrimonial right to the property pass to the purchaser with the sale? That is, from what time, from what event or action can the buyer consider the thing to be his? This question would not be important if every sale of movable property was accompanied by a mutual transfer of values, the exchange of which constitutes the purpose of the transaction, i.e. whenever, simultaneously with the transfer of the thing, the next payment for it is transferred. The essential rule of Roman law is indicated above that an exchange of valuables is necessary for acquisition by deed. But the sale is not the same, according to the intention of the parties: it is made either in cash or on credit. In the first case, withholding money when transferring a thing is contrary to the purpose and intention of the parties; the seller gave it in order to immediately receive it, but did not receive it. In the latter case, the withholding of money upon transfer of the thing is in accordance with the intention of the parties, since the buyer is given a credit for payment from the seller. Consequently, in the first case, the mere transfer of a thing - without a corresponding exchange - does not yet transfer the patrimonial right to the thing; in the latter case, the acquisition of patrimonial rights can be completed irrevocably, despite the withholding of payment. The very transfer of a thing is not always done in kind; transfer in kind can be replaced in some cases by the transfer of power over a thing, documents for a thing, material signs of possession, etc. Thus, in French law, the word “delivrance de la chose vendue” means not only the actual transfer of a thing (tradition réelle), but also the transfer of the keys to the premises in which the things are stored, and mutual agreement to consider the thing transferred (Code C. Art. 1606). Commercial law is especially rich in such assumptions, which are based either on law or on custom. Our law (Civil Law 1510) states that the transfer from the seller to the buyer of sold movable property is accomplished by the actual delivery of the property itself or its receipt at the disposal of the buyer. This rule does not apply to rights under obligations, which are also classified as movable: a special procedure has been established for the transfer of obligations from one person to another (cf. Cass. decision 1870, No. 839). On the transfer of unbranded goods. Est. Customs., ed. 1892, Art. 1152 et seq. Special rules in the Charters of Kaz. Control on the sale of movable items from government property. Full Collection Zach. 1875, N 54319. On the sale of unusable items to the military department. According to Ved. Put. S. Full. Collection Zach. 1882, N 865. Zach. Civil, 1489 approx. 6, according to Cont. 1891 - on the sale of state-owned unusable prisoners' belongings and other prison property. Zach. Civil, 1489 approx. 7, according to Cont. 1891 - about the sale of metals from the mint. On the sale of state-owned property by mining departments Zak. citizen Art. 1489 approx. 8 to Cont. 1893 a) In 1868, according to the village of Klavdienko (Cass. decision, N 229), the Senate decided that the buyer of movables, having received it from the seller, even with a deferred payment, acquires, in accordance with Article 1510, the right to dispose of the thing, therefore, in the event of resale or assignment to third parties, the first seller does not have the right, citing 1522 Art., to collect the sale price on the thing itself, but must be content with the recovery from his buyer, in his available property. 1873, No. 897. Under a purchase and sale agreement, the buyer acquires the right of ownership of the purchased property from the time a condition or act is made on it, and from that time the seller deprives himself of the same right to this item and cannot dispose of what was sold at his own discretion, even if the item was left with the seller until a certain date and the payment of money is deferred. 1877, N 206. According to the exact meaning of Art. 1510, vol. X, part I, the transfer of a sold item from the seller to the buyer is not a necessary sign of a sale and purchase and it can be considered completed without such transfer of the sold item from the buyer to the seller, as is clearly seen from Art. 1513 and 1514, vol. X, part I. 1873, N 1526. According to Art. 711, vol. X, part I, movable property can be acquired without written acts and, therefore, the fact of receipt of such property from the seller to the buyer serves for the latter in itself as an expression of the payment of money for it, until the contrary is proven by the seller. In what sense is it possible to resell movables, and how does it differ from delivery, see Cass. decide 1880, N 94. 1873, N 1450. In force 1516, 1517 and 1518 art. X Vol. I, the seller is obliged to transfer to the buyer the sold movable property of the very goodness that it should be on the basis of the condition, and otherwise, this property, according to a court ruling, is given back to the seller, who is obliged to return the payment received. Our laws do not indicate that the very possibility of a dispute about the merits of the thing sold is allowed only before the buyer accepts it and pays the money, but on the contrary, such disputes are not limited by any time limit in the law. 1883, No. 78. In the case of Klyukin and Mineev about losses due to the fact that the latter sold to the former, knowing that, winter wheat instead of spring wheat, Citizen. Kassats. D-t. expressed the general position that “the seller’s dishonest silence about the unfitness of the thing being sold for the use for which it was intended by the buyer and which was known to the seller, gives the right to bring a claim for damages against the seller, even if the thing, itself of good quality, was voluntarily accepted by the buyer, who did not provide himself, in case of its unfitness, with a special condition under the contract.” In the decision of Cass. Dep. 1867, No. 72, it is not entirely precisely expressed that “the right of ownership of movable property, and moreover, with all the rights from which the property is composed, passes to the acquirer from the time of the act of purchase.” This can only be recognized in the relationship between the seller and the buyer, and then only conditionally; but in relation to a third party it is impossible to agree with the derived position in its general sense. No matter how reliable the agreement on the sale of the thing between Ivan and Peter the buyer, Peter, having not received the thing himself from Ivan, hardly has the right to demand it from the hands of Fyodor, who has it in his possession (534 Art. Gr. Zak.). Another decision of 1867, N 281, recognized that on the basis. 1513, 1516, 1521 and 1522 art. Zach. Gr. failure to pay money for purchased movable property does not entail the destruction of the contract itself, but only results in the collection of a conditional amount (even if the property itself has not yet been transferred to the buyer). See also Cass. decide 1874, N 561. By force 534 and 531 art. Zach. Gr. ownership of movable property is assumed to belong to the person who owns it until the contrary is proven; Moreover, ownership of movable property that does not belong by law (Article 394) to undivided property is recognized as separate until it is proven that it is common until division (Articles 543, 544, 1313); only the ownership of the spouses of all movable property located in a common apartment is assumed, in the case of recovery from one of them, in common, until the separate ownership of each of special things is proven (976 Art. Ust. Sud. Gr.). Therefore, when collecting from one of the persons living together, things that are in the cash possession of a person free from recovery cannot be subject to an inventory for the debtor until the recoverer proves that they belong to the debtor himself. See Cass. decide 1872, No. 248, in a case in which, for a mother’s debt, things were described that were found in the possession of her young children, who were under her care. 1878, No. 81. Registered shares or shares of joint-stock companies, unlike movable property in general, transferred from one owner to another without any written documents, can be transferred from the original owner to the new acquirer only with the execution of a written act and in compliance with certain formalities. Consequently, registered shares and units represent a special type of movable property, in relation to which the general rules on movable property are not applicable. A registered share or share is not represented as independent property, but only as a written formal certification of a certain share of participation in an enterprise, the transfer of which, like any written act issued in the name of a known person, can be made only in writing. This kind of transfer, according to the custom accepted and legalized by the charters of companies, is carried out through announcements, as well as endorsements and blank inscriptions of the person in whose name the share is issued, and the confirmation of the ownership rights of the acquirer is put into final form by presenting an announcement or inscription to the board of the company for notation in the books and certification of the subsequent transfer, through an inscription on the share itself. 1874, N 327. Movable property, under Art. 534, vol. X, part I, is considered the property of the one who owns it until the contrary is proven; but this general rule cannot be applied to contracts, promissory notes or other similar acts, since the right to demand satisfaction or recovery under them depends on the content of the document and, therefore, belongs not to the person in whose hands the document is, but to the one to whom this right is granted by the document itself. Therefore, if there is no endorsement or other act certifying the transfer, then any written acts issued in the name of a known person and establishing contractual or debt relations between those who entered into them are considered the property of the person in whose name they were issued. 1876, N 566. Within the meaning of Art. 1512. X Vol. I Part. The right of the buyer of an item not knowingly stolen to seek the money paid for it from the seller arises only when the buyer is deprived of this item due to proof of its theft, which can only follow through a court. Cass. decide 1880, N 291 and 302. 609 article of the Law. Clause, according to which the owner of someone else's property is illegally obliged, by a court decision, to return it to the real owner, does not apply to the case when movable property that came into someone else's possession, not as a result of theft or crime, will be, against the will of the owner, sold to a person who bought this property in good faith. This reasoning applies to a winning ticket purchased from a person who had it for temporary use. Cass. decide 1880, No. 215. When there is no reason to recognize movable property as purchased in bad faith, then it is impossible for a bona fide buyer, who has already received the property, to judge it in favor of a person who only has an act from the seller for the sale of this property, even if this act was completed in the previous purchase. 1416 art. Zach. Gr. refers to real estate. 1877, N 167. According to the literal and completely clear meaning of Art. 1061, not indicating any exceptions. Est. Gr. Court. movable property sold at public auction, regardless of who it previously belonged to and in what conditions it was in, in any case remains with the buyer. This rule applies even if the movable property sold was prohibited along with the plant in which it was located, and therefore could not be sold under liability for another debt. 1876, No. 151. In relation to movable property sold at public auction, a third party who considers this property to be his property, but has not prevented the public sale in the manner specified in Art. 1092 and 1093 art. Est. Citizen The court cannot subsequently, after the sale has been completed, demand that the auction be declared invalid and that the property be returned from the buyer at the public auction. 1876, No. 6. Based on Art. 1061. Est. Citizen Court. movable property sold at public auction in any case remains with the buyer, even if it did not belong to the person for whose property it was sold; therefore, the owner of the thing cannot, on the basis of Art. 1092. Est. Citizen Court, to demand from the buyer the return of an item incorrectly sold; but therefore, obviously, the right remains to demand the value of the property and losses from the imaginary owner or the person in whose favor the price of the property was received: this right is suppressed by zemstvo prescription. 1884, No. 28. Public auctions can be destroyed if the item sold subsequently turns out to be of a different value (for example, metal) than was shown in the inventory and declared at the auction. 1874, N 826. Based on Articles 424 and 425. X v. 1, according to the right of full ownership of the land, its owner owns all the works on its surface, the fruits and all profits. Therefore, the World Congress, having seen that the buyer at the public auction, upon receipt of this land, entered into full ownership of that land (Article 1509 Vol. X Part 1), could no longer refuse to recognize his right to the crops existing on that land only because these crops were made by the previous owner of the land before the new owner actually took possession of it. 1878, N 105. The owner of the plot, which, according to the Most Gracious Grant, was assigned to him as part of the primogeniture, but was not yet assigned to him in the established order, entered into an agreement on the sale of forest for felling, in which, considering himself the right to receive ownership of the forest plot from the treasury, he allowed the buyers to begin cutting down the trees only when they received a formal notice of final approval by the seller of the forest plot. Such an agreement, as relating to the sale of movable property and stipulating its receipt at the disposal of buyers by the period from which the forest was to come into the possession of the seller and its felling was to begin, does not in any way go beyond the limits of the right belonging to the seller at the time of the agreement, i.e. the right to receive from the treasury full ownership of the forest plot whose trees were the subject of a conditional sale. The execution of such an agreement does not in any way violate Art. 940. X t. 1 h., since it did not express the seller’s entry into possession of the granted property, nor 1394, 1385 and 1395 art., because the actual receipt of the sold trees to the buyers was stipulated in the contract by the time from which the forest was to be at the disposal of the seller with the right of full ownership. b) The question of the time of acquisition and transfer of ownership rights acquires particular importance in commercial matters, during the sale and purchase of goods made between absentees. Trade deals are connected with credit, and it often happens that goods sent by the seller to the buyer on credit for the expected payment, without yet reaching their destination, are resold or sold to a third party on the road, at the order of the buyer. In such and similar cases, it is very important to decide whether the buyer could at that moment consider the goods to be his acquisition, and whether he could transfer it to a third party. In insolvency cases, it is also very important to know from what time goods addressed to the insolvent should be considered his legal acquisition and can be converted into a mass belonging to his creditors. According to the general rule, taken from Roman law, the acquisition of a purchased thing is completed at the moment when the transfer of the thing from the seller is followed by payment of the agreed price on the part of the buyer, or satisfaction for the sold and transferred thing is made in another way (for example, by guarantee or pledge). But in the present state of trade relations, the sale and purchase of goods between traders is carried out for the most part not with cash, but on credit, and between absentees, on orders and instructions; so that a certain credit obligation of the recipient and the customer serves as a substitute for cash payment for goods. This obligation arises during the very transfer of things or at the moment the goods are accepted by the recipient; but the rapidity of circulation of values ​​in the trading world does not allow us to expect cash transfer in all cases, and for the stability of trade relations it is necessary that the acquisition could be completed before the transfer in kind. Therefore, trade custom, regardless of legislation, has established the rule that the acquisition of ownership of shipped goods is accomplished by the transfer of an invoice or bill of lading, on the one hand (by the sender-seller), and its undisputed acceptance by the buyer. With the receipt of the invoice, according to trade custom, the obligation to pay begins, and from this day the delay interest on the amount due for payment is calculated. Almost all positive legislation leaves this subject undefined, leaving it to common law (see Mittermaier. Deutsch. Privatrecht. § 565. Thöl. Handelsrecht. § 79. Kritische Ueberschau - 1855 Art. Nave: Ueber den Eigenthumsübergang etc. - Compare also XI vol. 2, ed. 1893, Cont. Court. 563–569). § 44. What obligations are transferred to the buyer along with the real estate? State duties and arrears. Private patrimonial duties. Claims and demands arising from patrimonial rights. Does the sale terminate the lease agreements concluded by the previous owner? Resolution of this issue according to Roman law, German and French legislation and Russian law What obligations are transferred to the buyer along with the real estate? Obviously, only real obligations or duties are transferred by themselves (without a special agreement), i.e. closely related to the patrimonial right to the estate, and personal obligations that do not have a real property are not transferred, even if their material content relates to the internal management of the transferred estate. There is neither a legal nor a logical basis for the transfer of these latter, for the new owner of a certain estate cannot in any way bear responsibility for everything that depended solely on the personal will of the previous owner, since the new owner takes the place of the former not in his entire personality and not in the entire sphere of his rights in property (as happens in inheritance), but only in the patrimonial right on the known estate, and therefore everything that in this estate is inseparably connected with the patrimonial right is included in the content patrimonial right - all that, but no more, passes to the new owner by virtue of patrimonial succession. First of all, state and public duties that lie on the estate and are approved and secured on it by force of law are transferred. Arrears, for example, in taxes and quitrents on the estate, certainly remain the responsibility of the new owner, no matter how many of them accumulate on the estate at the moment of transfer. The new owner does not have the right to evade paying them, even if he did not know about them at the time of acquisition, or they were hidden from him: in this case, he will have the right to demand compensation from the seller for reducing the value of the property at the cost of the newly discovered duty; but regardless of this, he is obliged to fulfill the duty, no matter how much it may be, unquestioningly. In disputes that may arise on this subject, the decisive factor is the consideration of what type of duty is required: whether it lies on the person of the owner or on the estate, on the patrimonial fund, and in the latter case it will certainly turn out that the same estate is responsible for it. Our law regarding the public sale of real estate is expressed in this sense. In Article 276 of the Regulations on Collection. citizen, ed. 1893, contains a rule that information on the number of government arrears on the estate, as well as arrears in zemstvo, city and other public taxes, must be placed on the sales lists (which in any case are presented to those trading); These arrears, as well as the costs of making an inventory, appraisal and sale, and the costs of necessary corrections of property, if the corrections were made at the expense of the owner, are paid primarily from the amount presented by the buyer (Vol. XVI, Part 2, Pol. Collection. Civil., Art. 295; Establishment of the Court. Civil. Art. 1163). Within the meaning of the above laws, the buyer is liable only for those arrears that were disclosed during the inventory or accumulated after it. This limitation occurs because the public sale is carried out on behalf of the government, which, in the person of the administration, itself takes care of making known the arrears lying on the estate during the inventory of the estate. As for the inventory of estates for public sale, according to the statute of civil proceedings, it no longer has the official, government significance that it had under the previous procedure, because it is not carried out by officials of the general administration, directly on behalf of the government, but by a bailiff, at the request of interested persons. The bailiff is instructed to demand information about arrears for the inventory from public places, but failure to deliver this information does not stop the inventory (Article 1113). According to the general rule of our legislation, the replenishment of arrears and penalties recorded on it during the sale of real estate is not one of the necessary conditions for the execution of a deed of sale, but, on the contrary, is classified as an arbitrary condition, depending on the mutual consent of the seller and the buyer (St. Law vol. X, part I, art. 1425–1428). Only a few exceptions have been made from this general rule, for example: regarding estates subject to prohibition by claim or recovery (Article 1388, paragraph 1, 1457 and 1458), as well as estates sold at public auction (Pol. Recovery. Civil. Art. 276 and Establishment of the Civil Court. Art. 1163). When selling these estates, the penalties (state and private) listed on them must be replenished; arrears (for the payment of state taxes and all kinds of zemstvo and city duties) are withheld from the price given for the property. To clarify and confirm these rules, in 1882 (Poln. Sobr. Zak., N 1259) it was decided that the payment of all arrears for state, zemstvo, city and other public duties accumulated on real estate during the time preceding its transfer from one owner to another lies with the responsibility of the new owner of the property. This rule does not apply, however, to property sold at public auction, in relation to which special regulations apply (Constitution of Zemsk. Povin., Art. 92, supplemented by Prod. 1890; Temporary Rules for Zemsk. Institution, Art. 30 by Prod. 1890). The same law, on the question of whether noble estates upon transfer are liable by sale to persons of non-noble estate, for arrears in noble duties, stipulates that in the event of the transfer of real estate belonging to a nobleman into the possession of a person of non-noble status, the new owner of the property is responsible for paying, in addition to the possible arrears for the previous time, also a collection for private noble duties, until the end of that three-year period, for which this fee is calculated according to the current layout. Secondly, all patrimonial obligations lying on the estate in favor of private individuals and established by general law or acts of previous times are transferred to the new owner (for example, patrimonial easements of all kinds, etc.). See below for restrictions on ownership. Thirdly, along with the right to claims of all kinds and demands arising from patrimonial right, liability for all claims based on patrimonial right, and not on the personal action or obligation of the previous owner passes (cf. Cass. decision 1869, No. 453, 538, 1880, No. 134). If the claim is truly patrimonial, connected with a known estate, then the right to claim passes by itself, with the transfer of patrimonial right; there is no need to require that this transfer of the right to claim be stipulated in the bill of sale: only a negative clause can have meaning, i.e. that the right to claim remains with the seller. Here's an example. Two brothers, Ivan and Peter, divided among themselves a common estate of 1064 dessiatines. into two even parts, each 532 dessiatins, so that if according to the new measurement the areas turn out to be uneven in quantity, then the boundary equation can be changed. Ivan sold his plot to Fedor, indicating 532 dessiatines in the deed of sale, according to a separate deed; but in reality Fyodor had only 476 dessiatines. Does Fyodor have the right to demand additional measures from Peter, due to his division with Ivan? The court denied Fedor this claim, judging that his rights were based on the deed of sale, and the deed of sale did not indicate that he had been given both the right to claim and the right to partition (cf. Cass. decision 1870, No. 757). But, it seems, it would be more thorough to recognize that after Ivan sold his entire plot to Fyodor, without a remainder, the right to a patrimonial claim to supplement the land also passed to Fyodor; the claim is not against Ivan, for the lack of land according to the deed, but specifically against Peter, for the addition of a plot in the total dacha. There is no reason to believe that the right to this claim disappears completely with a change of owner; if it does not disappear, then it belongs to none other than the successor of the property, Fedor, for this is a claim for the division or allocation of common property; on the contrary, Ivan, having ceased to be the owner altogether, cannot bring such a claim. This includes an important practical question: does the sale terminate agreements on the rental of real estate (rental) made by the previous owner, or should these agreements remain in force until the agreed date? A lease agreement initiates a personal obligatory relationship, and therefore, by all the rigor of legal logic, it should be recognized that such a relationship between two persons must unconditionally yield to the patrimonial right of a third party to the same property. Hence the well-known legal saying: Kauf bricht Miethe (hire is destroyed by purchase). Roman law remained faithful to this strict, unconditional law of property. There could only be one person in the estate - the owner, and along with his unconditional right, no one else could be granted an independent property right in the same estate. The right of the tailor, the hirer, was not recognized as ownership: the owner owned for himself - animo domini, and the hirer could not have such a consciousness of dominance. The hirer had not real, not genuine possession, but what the Romans called ghostly possession (poss. vacua), and therefore such ghostly possession had to yield to genuine possession unconditionally; personal law, in a collision with property, was reflected from the thing and addressed exclusively to the person. However, the old German law allowed restrictions on the absolute right of ownership in favor of the tenant: and the newest legislation adheres for the most part to the same view. Prussian law leaves the lease agreement in force also in relation to the new acquirer of property, when the acquisition was made under a deed between private individuals; but when it is necessary to sell the estate by court verdict at public auction, the lease agreement may be terminated before the deadline (Allg. Ldr. part 1, tit. 21, § 350, 358). Ancient French law resolved the issue, applying it to the Roman principle, in favor of the new patrimonial owner; a new law (Code Civ. 1743), in the interests of rural industry, protects the tenant from the claims of the new owner, if at the moment of transfer of ownership the tenant has already assumed his rights under the contract; otherwise, the implementation of the contract, even if concluded by the previous owner before the sale, may be stopped by the new acquirer. Austrian law makes the lease agreement binding on the new owner only in the case where the lease right has acquired the force of a property right by a note in the land register. Our law does not provide direct instructions for resolving this issue in a general sense; there is a private resolution (Pol. Execution. Civil., Art. 195, note), relating exclusively to public sale. By the force of this resolution, quitrent and lease agreements concluded by the owner of the estate before the inventory thereof remain in force until the period written in them, but if before the expiration of this period a public sale takes place, then the validity of the agreements continues until the period specified in them, in this case only when the agreements were concluded before the imposition of a ban on the estate. From this we can extract the following rule: the owner has the right to freely dispose of his property and entrust the use of the property to an outsider for a short time, if his property is free, i.e. if recovery is not secured by property security: as long as there is no prohibition on the estate, the owner does not violate anyone’s rights by renting out the estate. (See Cass. decision 1879, N 359; 1880, N 200.) Having the right to lease out his property, the owner has the right to turn the rent into his favor as income from the property, but not unconditionally. In paragraph 2 of the above note to Art. 195 Pol. Collection Citizen it is said that payments, when received by the previous owner within the agreed period, are not reversed; but if they were received in advance before the due date, then they are collected back from him and are attached to the composition of the described property. At the same time, it is obviously taken into account that the property described for the debt, at least from the time of the inventory, with all its accessories, and therefore with income, constitutes a security fund for the claimant. In 1861, regarding the liberation of the peasants, it was decided (Law. Civil., Art. 1703, note) another rule that applies exclusively to the so-called noble estates: payments made by the tenant to the owner of the estate more than 2 years in advance, if the estate subsequently goes on public sale or is awarded to another owner, may be declared invalid by the lender or the new owners; those. may be again demanded from the tenant (without destroying the rental right), so that the tenant has the right to recover them back from the owner to whom he previously paid. This rule is strict, and hardly fair in relation to the tenant, who, not seeing a prohibition on the estate and not providing for public sale or foreclosure, could pay the money in advance in good conscience, innocently. The new statute of civil proceedings (Articles 1099, 1100) stipulates that agreements on real estate concluded by the debtor before receiving a summons and before filing for recovery thereof remain in force until the period specified in them; otherwise, they can be destroyed by the court at the request of the claimant or the buyer, if they tend to harm one or the other. All these decrees relate only to cases of forced sale or alienation, but these decrees do not apply to a contractual sale by deed of sale 285 . When the question becomes only between the parties involved in the sale and the lessee, it is fairer and more consistent with the spirit of our laws to conclude that the transfer of the estate under the deed does not destroy the validity of the lease agreement. The buyer, if he was misled into thinking that the purchased property was free from obligations, should seek satisfaction from the seller, without affecting the rights of the tenant to use the property: our law does not authorize him to directly demand the destruction of the sale and, due to error and ignorance, would he prove malice on the part of the seller. On the contrary, from some articles of our code of civil laws it should be concluded that our law protects in such cases the rights of a bona fide hirer. In 521 art. 1 part X t. it is said: the patrimonial owner, despite the fact that his property is, according to legally completed acts, in the temporary separate possession of an outsider, can, however, cede or transfer to someone, at his own discretion, his right of ownership of such property, however, without thereby restricting the rights of separate ownership. And our law also includes the use of someone else’s property under a lease agreement under the concept of separate ownership (cf. Articles 514, 517, 528). Rule 1692 art. civil laws, which limit the lease of real estate to a 12-year period, tends, among other things (as some rightly note), to protect the property rights of the successors of the patrimonial owner, from his arbitrariness in transferring the use of this property to an outsider for a long or indefinite period. Moreover, of course, in the interests of the tenant, it was decided (Art. 1703) that if rental contracts are concluded with the receipt of money in advance for more than a year, then a prohibition should be imposed on the estate, according to the amount taken in advance, which in itself indicates to the buyer or mortgagee the existence of a rental contract paid on the estate, “which they must observe exactly.” Cass. decide 1877, N 309. Obviously, this question is presented in a different form where strict forms of acquisition and transfer of patrimonial rights are recognized by law and where, by the very form of patrimonial rights, patrimonial rights are sharply and obviously distinguished from personal rights. Where, for example, it is necessary that some rights to use an estate (such as usufruct) be considered patrimonial rights and recorded in the land registers on the estate to which the rights relate, there it would be fair to strictly apply the well-known rule that rent is inferior to purchase unconditionally (Kauf bricht Miethe). But in the present state of our civil law, when the very term ownership does not have a strict definition for us and sometimes refers to indifference to use, it would hardly be fair to derive from patrimonial rights such consequences that cannot be directly justified by the system of law and the form of rights. – In the system of our civil laws there is not that strict formal distinction between property rights and rights under obligations that existed in the system of Roman law and was then reflected in the systems of the latest legislation and, guided solely by the principles that form the basis of our laws, it is not always possible to conclude with certainty which right should be classified as property rights and which as personal rights. The term ownership is indifferently applied to legal conditions based on both patrimonial consolidation and contract. And most importantly: if among Western peoples the law did not dare to support the unconditional principle of property against the contractual principle, but, on the contrary, sacrificed the rigor of the abstract principle to the interests of industry and movable capital, then this assumption is even more applicable to our economic state. The French legislator reasoned as follows: the reliability of contracts for the lease of land, which are so important in the social economy, would be significantly shaken, and many would not dare to spend their capital on cultivating land and on fisheries in a long-term lease, when it would be necessary to fear every time that a new patrimonial owner, having taken over the place of the previous one, could oust the tenant from the property at will. This reasoning is even more justified in our country by the poverty of agriculture and industry, with the scarcity of capital and the lack of labor. Therefore, without a doubt, it would be strange to apply to such a state the strict principle of Roman patrimonial law, which is not expressed in our legislation. Wed. in Collection Sep. decide Part 2, No. 297 decision on the question of who - the seller or buyer of the estate - has the right to receive liquidation money that was assigned to be issued to the seller - the former owner of the estate, for supplies taken from that estate by troops in the past, before the sale. It is recognized that this money cannot be considered the property of the populated lands, but constitutes a completely special debt property of the former patrimonial owner. On the issue of the destruction of rental contracts for sold property, see ibid., No. 943. In the case of a condition for cutting wood on an estate concluded by its former owner Tatishcheva with the merchant Leonov, and denied by Nikiforov, who bought that estate from Tatishcheva, the State Council (1854, March 8) expressed: “sales similar to the one made by Tatishcheva to Leonov can be the subject of a fair claim against the seller if they are intentionally or unintentionally hidden from the buyer; but to violate the rights of merchants, completely third parties in transactions on the transfer of estates, would mean committing obvious injustice and shaking the confidence in transactions concluded for the temporary use of individual lands.” Wed. Cass. decide 1880, N 265. The owner of the estate leased the land, mentioning in the contract that in the event of the sale of the estate, the obligation under the contract passes to the new owner, and then, having sold the entire estate, did not stipulate the lease in the deed of sale. The buyer demanded the destruction of the lease, but he was refused, and the Senate decided that contracts for property remain in force until the term, and cannot be terminated at the will of the owner through the sale of the estate: the law does not require that they be mentioned in the bill of sale, which is confirmed by Art. 1703. Citizen Zach. (Cass. decision 1868, N 771; 1874, N 272; 1875, N 92). Another decision (Cass. decision 1869, No. 882) expresses that a change of owner does not relieve the new acquirer of the estate from the responsibilities assumed by the former patrimonial owner in relation to the tenant, because the seller cannot cede to the buyer more rights to the estate than he himself has. See also solve. 1870, N 1794. 1876, No. 190. The Trial Chamber recognized that sublease agreements concluded with different persons by the tenant should, even after the latter concludes an agreement with the owner of the estate on the destruction of the lease contract, be considered binding on the owner by force of law. Right The Senate found this conclusion of the chamber to be completely inconsistent with 570, 1547 art. X volume 1 part and 366 items. Ust Gr. Court., since if the owner of the estate did not participate in the conclusion of sublease agreements, then they, not being obligatory for him by force of law (Article 570), can become so for him only by virtue of his special agreement. 1877, N 83; 1879, N 129; 1881, N 98. 521 art. X Part 1, which determines the binding nature of the property lease agreement for the new acquirer of the estate, cannot be applied to those cases where an agreement concluded by the previous owner and not put in such a form that there would be an assumption that the agreement is known to the acquirer and accepted by him for execution (1703 Art. X Part 1), remained unfulfilled, due to the non-fulfillment of the period appointed in it, before the transfer of the estate to the new to the acquirer. If the tenant has the right to demand from the person with whom he entered into an agreement the fulfillment of this agreement by transferring in kind the property leased out, then it does not follow that this right belongs to the tenant and against the new acquirer with whom he is not in a contractual relationship and who by law is only obliged not to interfere with the separate ownership that has already begun. 1877, N 186. 1100 art. Est. Gr. Court. grants the right to request the destruction of contracts on the estate, concluded by the debtor after receiving a summons for execution, only to the claimant and the buyer of the estate at public auction, if such contracts tend to harm them, and not to all subsequent buyers of the estate, to whom it does not apply. 1875, N 467. To acquire an estate leased by a previous owner, only those actions of the renter that were performed by the latter within the limits of the contract can be mandatory. Therefore, a voluntary agreement between the previous owner and the tenant on the early payment of rent, extending beyond the time when the property has not yet been transferred to a third party, does not apply to the new acquirer, whose rights are limited only by the conditions obligatory for him of the contract that has not been destroyed. 1878, N 201; 1881, No. 114. An estate sold at public auction, by order of the proper court, is assigned to the buyer and the buyer is given an inventory given on the exact basis of which the sale was made (Articles 1164 and 1165). Consequently, if the agreement on the estate was not included in the inventory, and then, as a result of a timely filed complaint, was not included in it before the sale, it can no longer encumber the sold estate. With the public sale, all previous obligations lying on the estate were liquidated; its equivalent is already the amount received at a public auction, and any new claim to the estate can only relate to this equivalent. Thus, the contracts provided for in Art. 1099 Est. Gr. Court., retain their force only if they are included in the inventory according to which the estate was sold. 1878, N 11. 2 clause 1529 art. X Vol. I, as protecting the actual interests of creditors, can serve as a basis for the destruction of a transaction at the claim of creditors deprived by this transaction of the means to satisfy their claims, but cannot be applied, according to its literal content, in the claims of the buyer of an estate for the destruction of a lease agreement, as concluded by the previous owner in order to deprive him of a certain share of the income from this estate; on the other hand, it is impossible not to recognize the right of a buyer who acquired an estate at a public auction to demand the destruction of the lease agreement, which he was not aware of at the auction (neither from the inventory nor from the prohibitions) and which deprives him of income from the estate for a long time; This right of the buyer can also be seen in Art. 1528, vol. X, part I, according to the content of which the purpose of the agreement should not be contrary to the deanery, i.e. “concepts of morality” (explained by Ave. Sen. in decision 1867, No. 411), and in Art. 1104 and 1111 Est. Gr. Court., on the basis of which information should be included in the inventory of an estate for its sale at public auction, explaining the position of the estate, such as “agreements concluded under it,” and the submission to the inventory of all acts determining the right to it of its owner is made an obligation to the debtor, and finally in Art. 684 and 693 Vol. X Part I, allowing everyone to seek compensation for damage and loss caused by the act of another. Regarding the sale of real estate at public auction, questions often arise about what penalties lying on the estate should be considered included in the assessed amount, and therefore subject to deduction from it and not transferable to the buyer? A similar question arose in the village of Rzhavsky: the estate was sold for frequent debts, with the consent of Sokhr. The treasury, in which it was pledged, but the proceeds were used exclusively for frequent collections, and the debt was preserved. The treasury was supposed to be paid to the buyer, while the buyer considered it to be repaid from the purchase amount. It was decided, based on Art. 1251 Set. Credit. (ed. 1857), 2043, 2044, 2089, 2119 and 3120 2 parts X volume (ed. 1857), that the debt is Preserved. The treasury paid from the amount received from the sale of the estate can only be considered not included in the estimated amount of the estate when it was shown on the sales list as payable regardless of the contribution of the purchase price of the estate, and only in that case can it be considered transferred to the buyer when the latter has formally expressed his consent to this. Meanwhile, the sales sheet did not indicate that the debt to the Preservation Treasury was not included in the estimated amount of the estate, but it was directly stated that out of the proceeds from the sale, 173 rubles. 6 rubles should be sent to the Safe Treasury to put the debt of this Treasury in order, and the rest then 789 rubles. 39 k. of debt to the Treasury should be transferred to the buyer; on this basis. the purchased estate was recognized as free from debt (1 General Assembly of Sen. decision March 24, 1872). § 45. The meaning of barter and the difference from purchase. The place occupied by me in the system of foreign legislation. Historical significance of barter in Russia. Current restrictions on barter and cases in which it is freely permitted In Roman law, barter had the meaning of a real (real) contract. The agreement to exchange did not in itself give rise to the obligation to give or the right to demand a certain thing in kind; but if one party to the agreement also produced the tradition of the thing, then it acquired the right to demand the transfer of the thing according to the condition from the other party. This system is followed by common German law, Austrian law, and Prussian law. In the French system, the contract of exchange itself, regardless of the transfer, produces an obligation, and with the conclusion of the contract, each party, regardless of the transfer, receives a real right to the agreed property (Code C. 1702–1707). By the nature of the exchange, the right to demand destruction for loss in the value of property (laesio) is usually not allowed in it, and in general, liability for the property given away, or clearing in exchange, cannot have the same force and significance as in purchase and sale. With us, just as the meaning of barter was extensive under ancient legislation, it is just as limited in relation to real estate under the new one. Until the XVIII century. We freely exchanged estates for estates and estates for estates, but in 1714, according to the decree on single inheritance, due to the new beginning of the indivisibility of hereditary estates, the exchange had to stop. Then, although in 1731 the decree on single inheritance was repealed, the law no longer returned to the previous principle of free exchange and deeds of immovables, and in 1786 (P.S.Z., N 16460, paragraph 2) the Senate decree positively prohibited the acceptance of exchange and deeds for execution and appearance. As a result, a rule was drawn up in the Holy Laws (Article 1374): it is prohibited to exchange real estate. The law nowhere directly expresses the reasons for such a prohibition, but one might think that this reason is financial, so that duties do not disappear and it is possible to record the value of property. This rule in such an unconditional sense exists, as far as we know, only in Russian legislation. Only the following exceptions, in the form of a benefit or privilege, are allowed from this rule. 1. It is allowed to exchange state-owned lands for private ones to provide convenient pasture to cities and towns (Law Civil Art. 1374). 2. For the acquisition of pasture in the event of settlements turning into cities by order of the government (Law. Gr. 1374. Law. Stat. 573). 3. In the event of an amicable demarcation, acts of exchange are allowed (Civil Law 1374, Mezhev., ed. 1893, 624). Here, exchanges are allowed to be made without paying serf duties, and the formalities are simplified, but for the size of state-owned lands, special formalities are established (1376). 4. To avoid striping and to round out the dacha, the owner of a reserved estate is allowed to exchange land with neighboring owners with the permission of the Senate, and in the western majorates - with the permission of the Min. State Property (Gr. 485, 503). 5. In the form of remuneration for property alienated for state or public benefit, the owner may be given, in exchange, another property that is homogeneous and equal in benefits (Zak. Gr. art. 578). 6. For the allocation of plots to peasants (Zak. Gr. 1374; compare the provision on redemption, article 6 note 3. Great Russian provision, art. 92; Little Russian, art. 86; Kiev, art. 70; Vilna, art. 65; Regulation on appanage peasants, art. 71, etc.). 7. It is provided to change the hereditary lands of the Little Russian Cossacks (Zak. Stat., Art. 765). 8. It is allowed to exchange lands belonging to the Roman Catholic and Lutheran churches for urban (with the permission of the Minister of Internal Affairs) and private (vol. XI, Constitution of Foreign Confessions, art. 119, note; 606). 9 . The exchange of land between state and primordial and fideicommissary estates in the Courland province is allowed (vol. VIII, part 1, ed. 1893, Establishment of the Treasury, art. 7, appendix, art. 34 et seq.). For the exchange of movable property, the law does not establish any restrictions: the exchange of this property is left to the will and mutual consent of their owners (Civil Law, Art. 1379) and can be carried out without written confirmation, by one mutual transfer, with a guarantee in case of doubt about the actual ownership of the thing being exchanged by the owner (1380). § 46. The concept of donation and its distinctive properties. The special, moral and economic significance of donation and the resulting restrictions in legislation - regarding the form of donation and its size. Prohibition of gifts between certain persons. The right to demand the return of the gift. A special property of donation in French law. Conditions and obligations arising from the gift In a broad sense, donation can be called any beneficial action for another. But in the true sense, donation is an action of free will, through which one person during his lifetime alienates his property for the benefit and enrichment of another person. Therefore, donation includes the following concepts: a) positive (donatio non praesumitur), a directly expressed action of the will, the actual alienation of property from one party during life (and not just a promise of a beneficent action); b) enrichment of the other party. In a donation, the actor (donor) voluntarily deprives himself of property that was in his power and could be used by him for his own purposes, since the donation is made during his lifetime. Here the issue is not only about who will receive the property after the death of the donor. In donation, property is alienated without compensation; the goal here is exclusive or main - to freely benefit the one in whose favor the alienation is made, and not to exchange one value for another, not to satisfy a material need or requirement. The donor is guided, presumably, by moral motives, but still performs an irrevocable action during his lifetime - as a gift. Therefore, all legislation, while allowing the complete freedom of the owner to dispose of property for interesting purposes, limits this freedom in relation to gratuitous, gift-based methods of alienation, and tries to stop the extent of the donor’s generosity in relation to strangers, or at least surrounds the act of donation with such formalities that would encourage the donor to be especially attentive to what he is doing. The moment of decision and the choice of the person when donating seems especially important, and the law tries to limit the will of the donor regarding the freedom to alienate property and prevent possible abuses. In this regard, Roman law is especially rich in precautions, and many of these precautions and restrictions have passed into the latest legislation. For this purpose the following has been established: 1) Shy forms in which the will must be expressed. Among the Romans, only donations that did not exceed 500 ducats were made freely; above this amount, insinuation was required, i.e. a copy of the act was entered into the public register. This was an essential formality, intended to prevent the effect of unreasonable generosity: the severity of this form was carried over into new legislation. Thus, Prussian law distinguishes between an obligation to donate, requiring for its validity a strict judicial form, and a positive donation, which can be made by a simple written act, but comes into force only after 6 months (Pr. Ldr. I, 11, 1063 art.). French law certainly requires a notarial deed for donation (C. civ. 931–939). Regardless, there are different restrictions regarding donated property. The donation of future property is limited (Austrian) or completely prohibited (French), and Prussian law, even in existing property, when the donation exceeds half of it, gives the donor the right to destroy the donation within 3 years. French law (not to mention others that have similar rules) does not allow a donor who has descendants or ascendants to dispose of his property with complete freedom of gift, and establishes special rules on the extent of donation in such cases (droit de reserve, quotité disponible, droit de réduction). When one of his heirs is gifted during the life of the donor, then when the inheritance is opened, the gift is included in the general calculation of the inherited property for division (droit de rapport). 2) Donations were completely prohibited between certain persons (between spouses, for example, according to Roman law). Such donations were decisively destroyed. French law follows the same principles, only it does not directly declare such a gift void, but provides the spouse with the opportunity to challenge his gift during his lifetime. Those who cannot give, those who are embarrassed to accept a gift, there are also many restrictions in the legislation on these subjects, which are unnecessary to indicate in detail. Let us point out, for example, the French prohibition for a doctor to accept a gift from a terminally ill patient, the restrictions of churches and religious institutions in accepting a gift, and the like. 3) The donor was in some cases given the right to return the gift. The reasons for this are as follows: a) Ingratitude. This rule remains in the latest legislation. At the same time, almost everywhere the law indicates some signs of ingratitude; the difference depends on the view, more or less strict, on the essence of the gift and on the moral attitude of the parties. French law specifies the following signs of ingratitude: attempt on the life of the donor, insults, ill-treatment, and finally, and especially strictly, denial of maintenance (aliments). In other legislations, the definition of ingratitude is narrower, for example, in Austria, only gross ingratitude is considered a reason for returning a gift and is defined as follows: “an insult to the body, honor, freedom or property, of such a kind that the offender could be prosecuted on behalf of the government, or on complaint, by criminal law.” b) Failure to fulfill the condition. The meaning of the condition in a gift is not the same under all legislation. Others, such as the Austrian one, directly relate donation to contracts, and in this case provide the party in this contract, as in any other, with the right of personal action for the fulfillment of an obligation. This is not the view of French legislation. In general, the question of the nature of donation and the place it occupies in the system of civil rights is still a controversial issue (see Savigny’s System des heutigen römischen Rechts. B. IV. Hellferich Die Ka-tegorien des Rechts. Berl. 1863). Savigny assigns it a very special place in the system, and although he does not deny its contractual properties, he determines the essential nature of the gift as independent of the contract. French law positively denies the contractual property of donation, and assigns a place to it outside of contracts, among the various methods of acquiring property, with inheritance and will. From the French point of view, the essence of a gift is determined by its main purpose and the intention of the donor to provide benefit and enrich. It follows that the gifted person only intends to accept the gift, and not to bind himself to a condition; the condition in the donation is only a secondary, insignificant item; a gift, therefore, is not a contract, but an act, does not give rise to mutual obligations, and the donor, in case of non-fulfillment of the conditions, has no right to an action for performance. But French law, in order to support the moral character of the gift, gives the donor one right, and an unconditional one: for failure to fulfill the conditions, to demand a decisive return of the gift. In addition to the decisive destruction of the gift, the law also provides the donor with the opportunity in some cases to demand the return of some part of the gift. This is allowed when the donor has fallen into poverty. He is then granted, according to Prussian law, 6 percent, according to Austrian law, generally legal interest on the value of the donated property, according to French law, the right to demand maintenance (les aliments), and refusal of maintenance is considered a sign of ingratitude, destroying the gift. The donor, who was childless at the time of the donation, is allowed to challenge his gift in the event that he has children after the gift (survenance d'enfants). In Rome this right belonged only to the patron relative to the freedman; Prussian law applies this right only to donations that have not been fully completed. Austrian law gives the newly born the right to interest on the donated property. French law is strictest in this case: it destroys the gift directly and unconditionally (de plein droit). § 47. Donation according to Russian law. Form of donation. Restrictions on gift rights. Donation of ancestral property. Making a gift. Transfer and taking possession. Acceptance of the gift. Cases of returning a gift to the donor. Transfer of ownership of donated property. The gift is conditional. The gift is illegal. Lack of purification in giving. The difference between a gift and a will. Gift in case of death Due to many limitations, the doctrine of donation is highly developed in Western legislation, following the example of the Roman one, and the concept of donation is therefore expanded, so that it is also connected with obligations, with the promise of payment, forgiveness of debt, etc. According to our legislation, donation is understood in the narrow sense, as the gratuitous alienation of property during life between the living; with a gift, we connect the immediate transfer of property. In all legislations, the gift is included in contracts. As a result of the gift, an obligation may therefore arise on one side towards the other. A gift becomes a solemn promise to give or do something in favor of the donee, so that fulfillment here is dependent on the gift agreement. True, we also require the consent of the donee to accept the gift, but this circumstance alone does not give the gift a contractual property. A gift may be accompanied by conditions regarding the manner of use and management of the donated property, regarding the performance on the part of the gifted of various actions, duties, in relation to the donor, and in this case, the fulfillment of these conditions is essential for the preservation of the gift, but still, the acquisition of property provided as a gift does not depend on the fulfillment of these conditions: violation of them on the part of the gifted may serve as a reason for the return of the property, but the acquisition is made regardless of these conditions, by the power of the gift itself. Nevertheless, the gift, although not classified as a contract in the system of our legislation, contains consent, to which the general laws on contracts can also be applied (Cf. Cass. decision 1870, N 1552). In our legislation, donation is not subject to special burdensome formalities and is not limited either by the amount or by the rights of relatives. The donation of movable property and capital is made quite freely through a simple transfer or a simple written certificate, a record certifying the will and intention to transfer (for example, signatures on credit cards). Here it is not required to indicate the grounds for the transfer, and if such a transfer is combined with conditions on mutual actions, then it will be an agreement, not a gift (993 Art. Civil Code). Nowhere in our laws does it say that a gift, regarding movable property, is made only through transfer, and that without transfer there cannot be a gift, no matter how decisively the will of the donor, for example, is expressed in the act. Interpret Art. 993 Zach. Citizen in such a broad sense, it would mean rejecting acts altogether where the gifted person does not have actual possession of the donated movable property. Therefore, it is permissible to doubt the extensive interpretation that is included in the decision. Cass. D-ta 1868, N 843 with the above article. This article only states - in analogy with taking possession of real estate - that the transfer of donated movable property is accomplished by delivery. This only means that the transfer of movable property does not require any special formality, but does not mean at all that it cannot be given without delivery. A gift - in the contractual sense - in its essence does not at all belong to the category of so-called real contracts, which are made (like, for example, a loan) only through an action (for example, the transfer of data on loan of money). However, in the decision of 1870 (Cass. decision N 397; cf. 1873, N 1263) the Senate reasoned that the donation of movable property is possible without transfer in kind, by drawing up and executing a written obligation in a legal manner, by the nature of the act, in accordance with Art. 571. The claimant based his right on the gift transfer to him from his uncle of the right to receive money from a third party, and he proved this transfer by private letters. The defendant, referring to Article 993, argued that only a thing can be the subject of a gift, and that in order to make it, delivery of the thing is necessary. But the Senate decided that our law does not establish special rules for the gift transfer of such obligations, and recognized proof through letters as sufficient (Cass. decision 1871, No. 217). 1873, No. 13. Capital contributed by someone in the name of a third party with the condition that it can be taken back by the contributor is the property of the depositor, and not of the person in whose name it was contributed. 1873, No. 13. A gift made by purchasing registered tickets in the name of the donee is considered accepted not at the time of purchase of the tickets, but at the time of actual acceptance of the gift. The donation of real estate is associated with the formalities that are generally required for the transfer of real estate from person to person, i.e. an act of this kind must be carried out in serfdom with the collection in certain cases (cf. many. State Council. April 10, 1895, Collected Uzak., N 421) of the duty established for the gratuitous transfer of property and is called a deed of gift. If this entry is signed by another person instead of the donor, then the donor is interrogated; at least this follows from Article 900, and if the donor had died before the interrogation, then the act would be considered invalid (987, 988, 990–992 Art. Civil Code). The patrimonial right to donate is limited only by general laws that restrict the right to dispose of property. These restrictions apply either to a person or to property. In general, it should be noted that whoever does not have the right to alienate does not have the right to give; To do this, you must have freedom of disposal and ownership of the property (969). When property cannot be alienated at all, then it cannot be given as a gift. But there are properties that the owner cannot give or alienate free of charge, but can sell at his own discretion. This is, for example, a family estate. It is forbidden to give it to foreigners past the closest heirs (except for the provinces of Chernigov and Poltava, where the owner of the family estate is allowed to give the family estate past children and immediate heirs to distant or foreigners), and if the gift is made in favor of a relative, then he can be assigned no more than the part that would follow him by the right of legal inheritance after the donor (967, 970). 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. Our law does not allow any other restrictions regarding the rights of children and relatives, and the disposal of acquired property is completely free. The prohibition of a gift between persons who have a special relationship with each other is completely unknown in our legislation. We have expressly declared that gifts between spouses are made on the same basis as between strangers (978) 286. For the validity of a gift, it is required that it be accepted by the one to whom it was assigned (973, 974). Consent to acceptance is given in this case either by the receiving person himself, or, in the case of his personal inability, by the guardianship authority (by analogy with the rule of Art. 1257 and 1336). Entry into Vlad. real estate the estate under the deed of gift must immediately follow the completion of the deed, and in no case can there be a delay until the death of the donor (Article 931). According to the law of 1882 (Vol. V, ed. 1893, Statute of Duties, Art. 152 et seq.), transfers of real and movable property by deeds of gift, refusals, records, allotments, etc. are subject to payment of a fee, the amount of which is determined by the proximity of the relationship to the donors; For foreigners, an 8% duty is established. Property with a value of no more than 1 thousand rubles, peasant farming in land allotment and in household life, household movable property except capital and goods, and everything that is donated to the treasury, charitable, scientific and educational institutions and for church causes are withdrawn from the duty. The duty is taken irrevocably, except in the case provided for in Article 973. Zach. Citizen By law April 10 1895 (Collected Uzak., No. 421) lands in counties were exempted from paying duties when transferring free of charge to relatives specified in paragraph 1 of Article 154. Est. o Poshl. An essential feature of a gift is that the purpose and content of the act is the transfer of property following the act, during the life of the donor: if it is delayed until his death, i.e. if the donor leaves the property with him for his life, the act will have the property not of a donation, but of a will (Article 991). This rule, however, should not be understood, as others understand it, in the sense that a gift is only made in such a case and has the property of a gift when the immediate transfer of property is actually carried out: the law does not mean the fact of transfer, but the content of the will of gift, and the intention expressed in the act. The event of transfer can be delayed or accelerated by chance and circumstances: this does not change the property of the gift if the will was truly donative. The transfer of the estate can even be delayed at the will of the donor, by the terms of the deed; - the law does not allow only one delay - until the death of the donor: in this case, the act becomes testamentary. Wed. Cass. decide 1871, N 333. 1875, No. 473. The donation of movable property is accomplished either by transferring the donated thing to the person to whom it is assigned and placing it at his disposal, or, if for some reason at the time of donation the actual transfer of the donated property did not follow, then by drawing up a written agreement and obligation, and in this latter case, any written act that the court, by law, can be recognized as evidence of a relationship, can serve as evidence of the completed donation of movable property. In view of this, a gift, in the case where it is accepted by the donee, but the donated movable property was not transferred to him, establishes a debt relationship between the donor and the donee, which can be clothed in the form of a loan obligation - and such a loan obligation cannot be recognized as non-monetary. 1874, N 370. Art. 993, vol. X, part 1 does not contain an unconditional requirement for the actual transfer of a thing, nor does it exclude the legal transfer of movable property from the donor to the donee. If for some reason the actual transfer is not possible at the time of donation, then it can be replaced by a written agreement in the manner prescribed by law (Article 571, Vol. X, Part 1), and any written act that can be recognized by a court according to the law (Articles 457 and 458 of the Constitution of the Civil Code) as evidence of right can also serve as evidence of the donation of movable property. 1874, N 179. Based on Art. 976. X t. 1 part “a gift made under a condition is returned to the donor if the condition on the part of the recipient of the gift is not fulfilled.” The word “condition” means the establishment by the donor of any obligation that the donee is obliged to fulfill in the future, or of any event that is to occur subsequently; therefore 976 art. cannot be applied to such an event, which in the condition is established not as having to occur in the future, but as having occurred in the past and serving as a motivating reason for concluding the condition, i.e. 976 art. does not contain a resolution on the return of the gift in the event of a mistake by the donor in the motive that guided him in assigning the gift. 1873, N 865. Art. 991, vol. X, part 1, among other regulations on gift records, does not have the meaning of the general law regarding gift records, but constitutes only an exception from the general legalizations about them for those acts that, although not drawn up in the form established for gift records, are, in essence, recognized by law as gift records. Therefore, the taking into possession referred to in this article applies only to spiritual wills - deeds of gift recognized by law, and does not apply to deeds of gift in general. In the village of Baryshnikova Kass. Sep. (1882, No. 12) recognized that in the absence of a formal act of donation of movables, the decision on whether the donation took place or there was only a promise to donate depends on the court. A gift in the case where the gift is accepted but not transferred leaves a debt relationship between the parties and the right to sue for the transfer of the gift. Such a claim or demand does not at all serve as a sign of disrespect on the part of the gifted person. A gift is made at the moment of agreement between the will of the giver and the will of the recipient, and this minute coincides with the completion of the deed of gift. If a gift, according to our laws, was simply a contract, if a gift could be recognized as a promise to give or make, with fulfillment in the future, then the minute of acceptance could be separated from the minute of the gift, but we have a tradition, the transfer of property is connected with the making of a gift, and therefore, during the very commission of the act, the positive consent of the donee to accept the gift is usually required. Until this moment, the gift cannot be considered perfect, no matter how positively the will of the giver is certified - to donate the property. Such a donor, before accepting the gift, can always take back his will, cancel it, and if in the interval between the expression of the will of the donor and the expression of the consent of the gifted, the donor died or became unable to give, for example, went crazy, then the gift can be recognized as void and the heirs of the donor have the right not to recognize it: for under such conditions it is impossible to determine the moment at which the will of the donor would unite with the will of the gifted. But if this connection is completed, if the gift is accepted, then it no longer returns to the donor (974). This is the general rule. However, exceptions are allowed from this: 1. If the person who has accepted the gift makes an attempt on the life of the donor, inflicts beatings or threats on him, slanders him in any crime, or generally shows him obvious disrespect, then the donor has the right to demand the return of the gift. It is difficult to determine what the law means by the word “manifest disrespect” (974). In 1879 (Cass. decision No. 193), the Senate recognized as incorrect the reasoning of the chamber that in the event of a claim for the return of a gift for slander of the donor, the slander must first be recognized by a criminal court. 2. If a gift is made under a condition and the condition on the part of the recipient of the gift is not fulfilled, then the gift returns to the donor (976). This provision was extracted by the editors of the Code from the Code. XVI ch. 9, 8, XVII, 43, and in general applied to every gift. But the quotes speak of cases of surrendering an estate with the obligation to feed, and of surrendering the estate to relatives upon tonsure, with the same obligation. This does not lead to a general situation, especially in comparison with Art. 975. The same amount was arbitrarily compiled and 975 Art. The editors probably got carried away here by the French legal system. 3. By force of law, during a competition or when satisfying the debts of an insolvent. the debtor will donate the estate according to the deed of gift to his wife, children or relatives, then the gift is still returned to the mass of the debtor’s property by a court verdict (Const. Court. Trade, Art. 554 et seq., Pol. Recovery. Civil., Art. 415 et seq.). But if the donee managed to sell or pledge the property to a third party, then the sale and the pledge are not destroyed, and the sale price or the amount for which the pledge was given is recovered from the donee in the mass, but not from the heirs of the donee (Const. Court. Trade., Art. 555; Pol. Recovery Civil., Art. 417). 4. When parents or an adoptive parent during their lifetime donated property to a son or daughter, or an adopted child, then in the event of the childless death of the gifted parent or adoptive parent who gave during the lifetime, the donated property returns to the surviving donor not in the form of an inheritance, but as a gift (Civil. 1563, according to Prod. 1891, 1142). These are all cases of the return of a gift according to our laws. A gift is considered illegal when it is given for an action in the service: the one who accepted, and sometimes the giver, is subject to a penalty of two and four times the price of the gift, but it is not said that the gift is destroyed (Corner. Code of Art. 372–382). Only in certain cases, for special reasons of local customs, are such gifts allowed, and in this case they take the form of an official action. The one who accepts the gift acquires ownership of it (974–977); therefore, he can dispose of it at his own discretion in general, and transfers it to his heirs, unless a condition has been established to the contrary (977). Therefore, in general, when a donation is unconditional, the right of ownership is unconditionally acquired. But how and when is ownership of an estate donated conditionally acquired? Does the donee have the right to alienate the estate before the condition is fulfilled? Can the donor, in order to ensure the fulfillment of the condition, demand a prohibition on the estate? And what may be the consequences of alienation if the alienated property is claimed back by the donor by force of law or by force of condition? Our law does not mention all these issues. Meanwhile, they are very important, can occur frequently, and are defined in foreign legislation. But our own laws and general principles expressed in the law are so meager that with the help of them alone we cannot resolve all these questions with complete certainty. For example, in an unconditional gift: ownership is acquired immediately and unconditionally. The gifted person alienates the donated property either by sale or by gift. Following this, one of the legal reasons arises due to which the donor can demand the return of the gift. a) Ingratitude. The gifted one no longer has possessions; the question is whether in this case the donor has the right to demand the price of the estate: does he have the right when the estate has left the power of the gifted person without compensation? Is it entitled when it was sold, or is it limited by the pledge? Is it right when the property of a gifted person is destroyed, destroyed, and loses all its value? b) Insolvency. Here only one case is resolved by law, as we saw above, for sale and pledge, but the law is silent about the gift. In general, regarding an unconditional gift, it seems that we can say that if the transfer of property from the donor to the donee was legal, and the gift was completed legally, then the alienation of the gift is valid and irrevocable, both in relation to the donor and the donee, and in relation to third parties to whom the donated property was transferred. The resolution of the issues mentioned is not so clear when the gift is conditional. For example, if a condition is made regarding the manner of use and management, although during the transfer of full ownership, for example, when it is necessary to collect such and such a quitrent from the peasants. But there is no prohibition on the estate, and the gifted person transfers it or sells it to a third party unconditionally. Should the sale be destroyed in this case? Obviously, it should, if we recognize that the gifted person, having accepted the gift, has not yet acquired full ownership rights. But when the condition is to perform some action, for example, to raise a child, pay a lump sum, pay an annual income, feed until death, give an apartment in a house, etc. How can I resolve this? This is where the uncertainty of the law and the inconsistency of the system are revealed. What if the gifted person, without fulfilling this condition, sold the estate? Should it be turned away from the buyer, or should only the gifted one be obliged to fulfill the condition? If a conditional gift were classified among contracts among us, then the matter would be clearer. And now, according to the law, it turns out that a conditional gift is returned to the donor for failure to fulfill the condition, and meanwhile the law does not provide the donor with a way to ensure that the condition is not fulfilled, and a third party entering into a transaction with the gifted person cannot always make sure that the condition is fulfilled. Only 977 art. Zach. Citizen gives some hint to the resolution of the mentioned issues. From this article it should be concluded that a conditionally donated property, upon passing to the heir of the gifted person, should not be returned to the donor for failure to fulfill the condition, unless the contrary was stated in the deed of gift, i.e. a special condition was established between the donor and the recipient of the gift. 1876, No. 299. If, within the meaning of the deed of gift, the gifted person was not deprived of the right to alienate the property assigned to him, then even if the conditions for returning the gift to the donor occur, such a return becomes impossible after the alienation of the gift into unauthorized hands. The condition in the gift may be illegal: in this case, according to the general rule 1528–1530 Art. it may be declared invalid. So, for example, when a family estate is donated to a person who has the right to inherit after the donor, the donor has the right to oblige the gifted person only for the duration of his life. Another property of a gift - as a gratuitous method of acquisition - is that the donor, by the essence of the act, does not have the obligation of cleaning (garan-tie). As the proverb goes, don’t look a gift horse in the mouth. The obligation to clear may only be based on a special condition, or arises in some cases with a conditional gift. But if such an obligation exists by condition, then the act will almost come closer to contracts than to donation: - the property of donation is completely lost here. Does the gifted person, to the extent of the gift, pass responsibility for the debts of the donor after his death? This question has no place if the gift is made to a stranger, not an heir, and is made in good faith, not to the detriment of third parties. This question may arise in a case where a donation, during the life of the patrimonial owner, is made to a person who at the moment of his death is one of his heirs. The question is: when determining hereditary responsibility for the deceased by virtue of Art. 1259. Gr. Zak., should the property donated to him be counted? Our law does not provide direct instructions for resolving this issue; but in any case, when making a decision, it is necessary to consider: in what state were the affairs of the deceased at the moment of donation, was there a claim at that time that needed to be satisfied, and finally, what was the donated property of the donor - ancestral or acquired? It seems that in fairness the donated estate should also be held accountable if at the time of donation the exaction that needs to be satisfied was already revealed. But neither by law nor by justice, it seems, it is impossible to admit that the donated estate is in no case included in the calculation of hereditary liability (although there have been decisions in this latter sense - see, for example, in the Collection of Sen. decisions vol. 2, No. 144, 875). On mutual donations between churches, see Ordinance. In. Confession 612. Difference between will and gift A will, like a gift, refers to the gift method of acquiring rights to property. But there is a significant difference between one and the other method. 1. It must be admitted that two wills are necessarily involved in giving: the will of the giver and the will of the recipient of the gift. In order for the donation to take place, the action of both wills must be joint. In a gift there is an agreement, without which the gift does not take place. The donation can be made under conditions that are mutually accepted by both parties - by free agreement. A gift arouses, on the one hand, a right, and on the other, an obligation: as soon as the donation has been completed, the donor can force the gifted person to accept and keep the thing by force of the act: the gifted person has the right to demand from the donor what was given. On the contrary, in a will the will alone operates. It is true that after the death of the testator, the will of the heir, who has the right not to accept what was bequeathed, may come into force; but this last will is expressed in a separate moment, regardless of the will of the testator: no transaction, no joint action of both wills is already possible here. The testator does not enter into any agreement with the chosen heir, and if he bequeaths property unconditionally, then he does not enter into a condition with the heir, but establishes a rule for the possession or use of the bequeathed property, or imposes duties on him. Between the testator and the heir under a will, a relationship can never arise in which the right on the one hand is opposed to the obligation on the other, for such a relationship is possible only where a dual will is involved. 2. The donation is immediate and direct (hic et nunc); As soon as the agreement is completed, real rights begin for the acquiring party. Here, during the very commission of the act, the donor takes away the right to the donated property and vests it in the gifted person. Whatever this right may be, true or false, unconditional or conditional, accidental, expected, it in any case belongs to the gifted person, who can dispose of it, transfer it to his heirs, can declare and protect it. On the contrary, a will is made only with the death of the testator; When making a will, the testator does not lose anything, does not lose any right, and the appointed heir does not acquire any right. He acquires only the hope of receiving what was bequeathed to him upon the death of the testator; but this hope lies outside the circle of legal concepts and does not give the heir absolutely any, not even conditional, right: he can neither cede it nor transfer it to his heirs (cf. 1222, 710 Art. Civil Code). The owner, who left a written will, regardless of it, before his death, instructed his executor to remove 80 series from the bank and dispose of them according to his instructions. Upon his death, the heirs argued that this order, as an oral memory, was invalid, and demanded that the executor return the series. It is reasoned that this order in such a case should only be considered testamentary when it is proven that the executor was instructed to distribute the series not during the life of the owner, immediately, but only after his death (Cass. decision 1868, No. 765). 3. Giving, in essence, is an irrevocable action (Articles 974–977); a gift accepted by the person to whom it is assigned does not return to the donor. In some cases, the donor may demand back what was given, but these cases do not in any way violate the essence of the gift; in none of them is the return of the gift accomplished solely by the action of the free will of one donor: the donor can demand back his gift, but not otherwise than upon the occurrence of conditions provided for by law: in one case, the reason for the return is the act of the gifted person, indicating obvious ingratitude, therefore a circumstance that depends on the will of the recipient of the gift; in the other, the reason is the gifted person’s failure to fulfill the conditions under which he received the gift; if we imagine that the return of the gift is made by the donor dependent on an external, random event (for example, if the donor has children, if a missing son is found, etc.), then in this case the reason for the return will be a circumstance that does not depend on the will of the donor. Finally, if the donor had given himself the full and unlimited will to demand the property back at any time, then an act of this kind, as devoid of the essential attribute of a gift, could not in the proper sense be considered a deed of gift. On the contrary, the essence of a will is precisely that it can be destroyed by the testator at any time he wishes. If in drawing up a will, in a positive act, the will of the testator must still be limited by the requirements of the law, then in destroying it, in a negative act, this will is no longer significantly constrained by anything, and is completely free. A special type of donation under Roman law is a donation in case of death. Its essence was that, although the donation was completed, although the property passed during the life of the donor, the donation received full force only when the donor died before the gifted, and lost its force in the case when the donor outlived the gifted or the danger to the life of the donor, as a result of which the gift was made, had passed; in this case, the donor retained the right to return the gift at his discretion. This was not a will, but a special kind of agreement between the living, and such a gift had to be accepted by the gifted during the life of the donor. This form, which, on the one hand, had the appearance of a donation, on the other, the appearance of a will, but was neither one nor the other, was inconvenient in many respects, as a result of which it completely disappeared from French law, but is still retained in Austrian and Prussian law. In our country, private individuals in their acts attempted to give their orders the form of a donation in the event of death, for example, according to a will, they gave an estate during their lifetime, in order to be able to subsequently return this gift to themselves at will, as if in a will. But the law in 1827 rejected this form, and such an intention was declared illegal. We have never had a form of donation in case of death. The law (991) states positively that spiritual wills, by which the estate is strengthened irrevocably during the life of the testator, must be recognized as deeds of gift, and vice versa. See part 2 about this, hereditary rights: § 59. In the provinces of Chernigov and Poltava, according to the Lithuanian statute, something similar to this form remained (522). Here, a deed of gift in case of death has the property that the donor does not have the right during the life of the gifted person to dispose of the same property in favor of another person; the donor is free to dispose of the gift only in such a case when he outlives the gifted person. Donation for an occasion death was common in marriage contracts between spouses; it was often expressed in the form of a mutual will between the spouses. Practical the importance of this act was that the right of the gifted person in the event of death arose during the life of the donor and, if the latter died before the gifted person, then this right was not part of the inheritance after the donor, and was not subject to all the consequences of the inheritance of the transfer. For example, in the event of confiscation of the entire inheritance, the donee under such an act would have grounds to demand that the property be separated from the mass subject to confiscation. D. Vyrzhikovskaya. 1 General Collection Sep. sl. 28 Nov 1869. A gift, at least from such a person, after which, at the moment of his death, the gifted person would be an heir, is not associated with hereditary liability for debts established by Art. 1259. Zach. Gr. Cass. decide 1872, N 765. 1876, N 578. The donor, according to the deed of gift, in the event of death, retains the right of ownership of the donated property and can present it as collateral for a monetary loan (the opinion of the State Council in the Pashchenkova case, the highest approved on January 18, 1840), therefore, the donee acquires the right of ownership of the donated property not from the moment the record is made, but only upon the death of the donor, and since the property of the donor, at the time of his death, can If only that which constitutes the remainder of the deduction of his debts from the value of his estate is venerated, then only this remainder is transferred as a gift to the gifted person. § 48. The essence of donation. The donor has free will in the purpose of his gift. Legal rules regarding accepting donations. Donations to church institutions. Donation form. Rule on the use of donations. Irreversible donation. Conditional donations. Annuates in the western region. Donations in the Kingdom of Poland The law calls a donation the voluntary donation of property for the common benefit (979). An offering or donation with a specific purpose made in the name of a legal entity of a public nature fits this definition (980). Donations can be made either during the life of the donor, or in case of death, through a spiritual will. We are talking here exclusively about the first form. Donors are given freedom both in choosing property and in the purpose of using the donated capital (980), however, donations should not be contrary to the rules established for those institutions or institutions in whose favor they are made; Consequently, the way of using the donated property depends on general regulations and on the general order of rights and relations between state and civil. The will of the donor, in any case, must be respected. But when property is donated to an institution under the jurisdiction of government power, there is no doubt that government power, when changing, according to state types, the organization of one or another institution, can change the original plan drawn by the donor for the institution through which the donor decided to use the property for the intended purpose. One thing is certain, that state power does not have the right to give donated property another purpose, to divert it from the object for which the donation was made, and to turn it into another object 287. In our country, charitable and generally beneficial institutions are almost all under the jurisdiction or under the direct supervision of the state power, which disposes more or less at its own discretion of the special funds of each institution, and it sometimes happened that institutions were destroyed and others arose in their place, or the funds of one were used to support another, and the original purpose of the amounts donated by private benefactors was not always respected. To prevent arbitrary orders, in 1872 it was decided (Zak. Civil., 986): if the use of donated for a certain need to the treasury, zemstvo, city, society, institution, etc. property or capital becomes impossible due to changed circumstances, then these property and capital may be given another purpose, but not otherwise than by obtaining the consent of the donor; if he is not alive or the fulfillment of the instructions given by him during his lifetime is recognized as impossible, then the highest permission is sought from the relevant ministry through the Committee of Ministers. In the event of a change occurring without observing this procedure, the donor, and after his death, his heirs, may demand the return of the donated. Before a decisive decision on a change of appointment, the heirs and relatives of the donor, as well as outsiders, are allowed to make their statements on this subject, for which the relevant ministry must publish its assumptions 4 months before presentation to the Committee of Ministers. Anyone can donate, but in the Charter of Public Charity (Vol. XIII, ed. 1892, Art. 33, 34, 80, note) we find the following rule: when donating, one must pay attention to the behavior and previous lifestyle of the person donating, whether he was and is not under trial and investigation. Just as vicious people can make donations in order to receive a reward from the government, in order to cover up their previous actions, to compare with people who are different in society, it is prohibited to accept donations from such people (cf. Constitution of the Land Code 451, note, according to Prod. 1890). The laws on donations (Art. 979–986) do not specifically mention the prohibition of donating ancestral property, but from the general rule on ancestral property and from Art. 967. it should be concluded that the donation also limits the gratuitous alienation of such property. If the donor has heirs, then the alienation of the family estate harms their interests, but if there are no heirs, then it harms the interests of the state treasury. However, a donation is an action that is of particular importance for public or state interest, and there are cases of donation of family property that took place outside the legal rule, with the approval of the supreme authority. See, for example, Full. Collection Zach. 1874, N 53134. Acquired through donation by so-called legal entities; “charitable, educational and other institutions and societies” (Article 980). In order for an acquisition to be completed, it is necessary, as in a gift, to accept the donation from the side in whose favor it is made. And like all the above-mentioned institutions, societies, etc. are under our jurisdiction, or under the direct supervision of state power, are - as they say - in some department, then permission from the main authorities of this department is required to accept the donated property. The Minister of the Interior authorizes the acceptance of movable property and buildings for the benefit of public charity and various religious and secular institutions (Article 981). Where zemstvo institutions have been introduced and charitable institutions of public charity have been placed under their jurisdiction, the acceptance of donations in favor of these institutions depends on the zemstvo; The acceptance of donations for the benefit of the city is granted to the City Duma (Law Civil Code, Art. 982). In eastern Siberia and the Amur General Government, the acceptance of donations depends on the governors general (981, approx. Gr. Z.). Acceptance of donations in favor of the church in things and money is allowed freely (984). Real estate in favor of bishops' houses, churches and monasteries is accepted through the Holy Synod with the Highest permission, and in favor of theological schools with the permission of the Synod (985 Z. Gr.; Zak. Comp., 398, note, according to Prod. 1890). The acquisition of real estate donated to the benefit of churches of the Catholic, Lutheran and Armenian-Gregorian confession is permitted, to the extent of the value of the property, by the ecclesiastical authorities or the Minister of the Interior, according to the rules of the charter of foreign confessions (Const. In. Confess., Art. 114, 605, 1011, according to Cont. 1890). The act of strengthening the donated property is a deed of gift or a spiritual will, and serf duties are not taken, as an exception, from property donated to charitable, religious and educational institutions (V vol., ed. 1893, Statute of taxes, art. 195–200). But special deeds of gift transfer of these properties during the lifetime of the owner are not always completed. In 1871 (Poln. Sobr. Zak., N 49687) rules were issued on accepting donations for charitable and public institutions in the Kingdom of Poland. It is required: extracts from acts must be reported through notaries, depending on the subject and purpose of the donation, to the named institutions on which acceptance depends, within the limits of the authority granted to each; For donations to charitable institutions of the commune administration, see Complete. Collection Zach. 1874, N 54161. In the case of Galkovsky Citizen. Cass. The Department resolved the question: can a charitable designation made in a will in favor of the relatives of the testator be recognized as a donation? This question, based on Art. 979 and 980 Zak. Civil., The Senate resolved negatively (resolution 1887, No. 11). A donation, just like a donation, is made decisively, irrevocably (unless there is a condition that implies the possibility of a reversal), and it also expresses the decisive will to give, donate, obligatory for the donor, and vesting the other party, the recipient, with the right to demand the transfer of the donated. Therefore, there is no doubt that what is donated (such as certain property or a monetary contribution, one-time or annual) can be forcibly recovered from the donor. In this case, the donor’s objection that the purpose of the donation is special, moral would hardly be grounded: as soon as the donation is made, it receives the property significance and civil force of an act that binds the will; in the system of civil laws, donation is classified as a method of acquiring rights to property (see about this. Cass. decision 1871, N 928). For the same reason, the donor hardly has the right to excuse himself from fulfillment by the impoverishment of his funds and his own shortcomings. There is no support for such an objection in civil law, although in essence it is not without foundation: it cannot be denied, at least with regard to donations that have annual distributions as their subject, that it presupposes the free movement of generosity from one’s own satisfaction, but does not imply the intention to ruin oneself, having exhausted all the means for one’s maintenance, all one’s wealth, for the benefit of the public. But this consideration, which has no force before the court and before the civil law, can be accepted, in the form of justice, by the highest administrative authority, which is usually addressed in such cases: there have been examples that, for this reason, the obligation of the donor was removed by the Supreme Authority. In 1878, it was clarified (Poln. Sobr. Zak., N 58943) that the decisions of public and class institutions on the issuance of benefits for the maintenance of educational institutions run by the Government, if no conditions are established, are recognized, upon their acceptance, as permanently binding, unless the Government, due to subsequently changed circumstances, recognized it as possible to exempt donors from the contribution. In any case, the donor has the right to demand that his gift obligation be accepted in its entirety and in the strictest sense. Therefore, if he donates certain property (for example, a house), it is hardly possible to force him to replace this property with another when the transfer of the donated property has become physically impossible (for example, the house burned down). If monetary contributions are donated to a particular institution, it is hardly possible to claim continued contributions when that institution is destroyed. In the western provinces, it is very common to find deeds of gift made in the past about the so-called annuate, or annual payment in favor of a church or monastery, for the performance of services, dinners, commemorations, etc., with the provision of payments on the estate specified in the deed; Moreover, conditions were often placed that in the event of the destruction of a church, monastery, etc. or in the event of termination of the agreed requirements, the payment is canceled or the estate is returned free to the owner and his heirs. Recently, with the destruction of many monasteries and the secularization of church estates in the Western Region, the existence of institutions that included such records and the fulfillment of agreed requirements ceased. This gives rise to numerous claims by private owners for the return of estates and the termination of duties. But these claims are constantly challenged by the Ministry of Internal Affairs, arguing that with the transfer of all church and monastic estates and capital to the treasury administration, the treasury remains the representative of the destroyed institutions and acquires from them the right to duties and payments. In refutation of the conditions, a reference is usually made to Vysoch. pov May 6, 1840, that the conventionality of such foundations should not matter, since the original purpose of the foundation remains unchanged, and only the best and most decent way of managing spiritual estates and maintaining the clergy is determined by law. However, in all fairness, it must be recognized that in such cases, if the issue is decided on the basis of civil law (Art. 975, 976) and regardless of political considerations, the gift is destroyed. When the purpose of the payment was made according to the personal choice and pious trust of the donor, in favor of the spiritual institution designated by him, for the needs performed in this institution, it is impossible, without violence or exaggeration, to generalize his will, attributing it, instead of a spiritual institution that no longer exists, to the central civil economic management of all existing institutions of this kind. A generalization would still be possible if it applied in general to the church and to the central church institution, in which, in accordance with the R. Catholic church consciousness, all individual church institutions are united. But there is no reason to attribute this generalization to the state or civil government, especially since it does not and cannot observe them. Court decisions in these cases tend for the most part to destroy the gift. See, for example, dec. 2 General Sob. in the village of Shadurskikh in 1868; pl. State owls in the village of Labunskikh 1872 In 1876 (Poln. Sobr. Zak., N 56006) rules were published on the procedure for establishing scholarships and charitable institutions. and generally useful ones with assignment of names. These scholarships and institutions d.b. are provided in full by the deposit of money or guaranteed loans. papers § 49. The essence of the award. Its historical significance in Russia. The origin of patrimonial land holdings through grants. Grant of inhabited estates. Limitations in this century A grant is the granting of real estate to someone by a personal decree into full or limited ownership from the Sovereign. Grants were one of the main ways of acquiring patrimonial property in Russia, especially in the 16th and 17th centuries (see above about the auxiliary nature of land ownership in Russia). If we turn to the main titles on which land ownership is established in all the central regions of Russia, constituting the core of the Moscow state, we will see that almost everywhere the main title is patrimonial dachas and estates, which were subsequently converted into patrimonies by general order of the government. The reason for the award was personal merit or royal favor. Estates from palace and black lands were favored, or a local dacha turned into a patrimonial estate. A letter of grant was issued for the complained estate. The number of the agricultural population, which was in the serfdom of private individuals, increased significantly during the 18th century by orders of the government, which, in the form of favor, reward for service or assistance for service, provided military and civil officials with ownership of entire villages and hamlets from state and palace lands. The distribution of estates ceased in 1714: it is true that after that the patrimonial board, which replaced the local order, applying the previous order, also distributed dachas to the nobles, but only from the existing state lands, and these distributions were subsequently recognized as illegal 288 . However, even after the formal cessation of the general distribution of estates, local salary distributions were established for certain ranks of immovable inhabited estates: in these distributions traces of the old local system are still recalled. So, for example, by a personal decree on April 25, 1737, it was necessary for officers who were employed at state-owned and mining factories to give peasant households and souls in excess of a certain salary from palace and yasak villages. Even under Peter I, Georgian nobles, who were called back and voluntarily entered Russian service, were given ownership of villages (see Decree Dec. 24, 1751, § 1). In 1738, nobles and princes who left Georgia with the Georgian Tsar were accepted into the Russian service; of them, a special hussar company was organized, and it was ordered: instead of a salary in peacetime, land should be allocated for them to settle in Ukraine from state-owned palace and military villages into eternal and hereditary possession with the distribution of 30 to the princes, and 5 households for each of the young male children, and 10 households for the common nobles (Full. Collected Laws, No. 7595, 7614, 8129). From among the Russian villages, which, according to the decree of 1713, were selected for the treasury from the Murzas and Tatars for non-acceptance of the Orthodox faith, by virtue of subsequent decrees of 1715, 1726 and 1730, new dachas were assigned to the Tatar Murzas and their descendants, who subsequently accepted St. baptism. All these villages constituted a special fund, designated exclusively for such distributions, until they were all distributed and the entire fund was depleted; then, by order of Empress Catherine II, distributions were stopped (Uk. Oct 14 1743, N 8807; 16 Dec 1745, N 9236; 5 Jan 1766). In 1741, the grenadier company of the Preobrazhensky Regiment, which provided special assistance to Empress Elizabeth upon her accession to the throne, was renamed into a life company as a reward; all its ranks, non-commissioned officers, corporals and privates, were granted nobles, and in the following 1742, all the higher and lower ranks of the life company were granted the eternal and hereditary possession of the village, with salaries assigned to ranks from the discharged and government volosts in different districts; including 29 souls assigned to each private, with a total of 13,930 souls distributed to 299 people; Subsequently, through transfers and transitions, all these villages were approved for buyers and heirs, except for those heirs who were born before their fathers were granted the nobility and did not later acquire rights to own the villages. In 1762, upon the accession of Catherine II to the throne, as one might guess from some instructions, similar distributions to the cavalry guards took place (Uk. Dec. 31, 1741, Nov. 25, 1742, May 2, 1772). The same category should include villages that were assigned in Little Russia to certain Russian officials for possession and use for the duration of their positions, for example, to commandants and chief commandants (Uk. 21 Feb. 1769, N 13260). This custom was not limited, apparently, to Little Russia alone: ​​from the decree of February 22. 1776, it is clear that in the Mogilev province the eldership of Mstislavskoye was assigned to the table maintenance of the Smolensk governors, which was assigned to the governor during the entire period of his office. Another decree of 1767 (N 12848) mentions the Korels of Kexholm district, granted upon death to the Vyborg vice-governor. The last traces of this institution were expressed in the establishment of command estates under Emperor Paul I in 1797; but this institution was soon abolished. The grant of inhabited estates was one of the most common types of reward for service or for special services rendered to the monarch and the government. After comparing estates with estates, such a grant took the place of the previous distribution of lands into estates or turning estates into estates. Such a reward, without a doubt, should have seemed the most tempting, because the greatest material benefits were associated with it. On the part of the government, there has not yet arisen, and indeed could not arise, any doubt as to the extent to which the transfer into private ownership of tens of thousands of people, previously considered to belong to the state, into private ownership is consistent with the beginning of the state: the fact is that with the very concept of belonging to the state was still connected the concept not of civil freedom, but of personal dependence, with which submission to state power was connected: between belonging to the state and belonging to the landowner there was not yet the sharp difference that exists in our time. The essence of these relations passed into the new history of Russia directly and without changes from the 17th century; but their form in transformed Russia acquired sharper outlines due to various reasons that indirectly affected the views of the government and public morals. Thus, during the 17th century, land occupied the first place in the composition of the estates complained of: patrimonies are complained, and peasants are a necessary accessory to the patrimonial lands, and are not even included in the official count when the patrimonies are granted. In the first half of the reign of Peter I, this form of granting begins to change: land is no longer in the foreground, but along with it, the peasant household little by little acquires the significance of an official unit in the assignment of granted plots, so that the amount of land is determined by the number of distributed households. But under Peter’s successors, after the establishment of audits and the poll tax, in the official language and in public use, the concept of the peasant soul as a unit was established, which primarily determines the value and composition of the immovable inhabited estate: in some places in the decrees there is even found, instead of counting by souls, an even more offensive to the ear counting by peasant heads. During the reign of Peter I, large grants to populated estates were partly a consequence of the conquests of Russian arms, and were made from lands belonging to the conquered region. It is known how great was the booty that Menshikov acquired for himself in the Baltic region, and what huge estates he managed to secure for himself in Little Russia. His greed in this regard knew no bounds 289. Peter granted him the sovereign Duke of Ingria and, in Menshikov’s own words, gave him all of Ingria for eternal possession. Subsequently, the size of this huge estate was, it seems, reduced, and instead of the previous amount of land that Menshikov intended for 20,000 households, he was left with only one thousand for the transfer of Russian peasants. However, as can be judged from the testimony of Menshikov himself, the remaining manors and villages in Ingermanland, with residents and lands, were then distributed into the possession of others, and instead he was left to choose his estates in other places, from the palace and monastery estates of the Great Russian provinces. In Little Russia, he was also granted large estates, which had been expropriated from Mazepa for treason (see minutes of the Privy Council in the Readings of General History and Ancient History, 1858, book 3, p. 41). All of Peter's military associates were granted small and large villages from him. The size of the possessions thus formed can be judged by the fact that in 1730 Countess Golovkina inherited more than 20,000 souls from her father, Prince Ivan Fedorovich Romodanovsky; and in 1742, after Prince Alexei Mikhailovich Cherkassky, 70,000 souls. The size of the awards increased further in subsequent reigns: after a glorious victory and a profitable peace, following the annexation of new regions to the Russian state, villages were distributed from the conquered region, often from Great Russian provinces, to generals and dignitaries who participated in military or diplomatic feats. Every joyful event at court evoked favors from the sovereigns towards their favorites, which were expressed, among other things, in the grant of populated estates 290. The reign of Empress Catherine II, marked by the glorious victories of Russian arms and the annexation of new regions to Russia, is also distinguished by the number of grants on the largest scale: inhabited estates were granted at the discretion of the empress, mainly from the provinces newly returned from Poland; but in some cases the person who received the reward himself was given the choice in which place he wished to receive the granted number of souls. The new favorite, emerging from the case, each time received a huge estate from the empress in the form of a reward. There were cases of “grants” to the cross, to the table, and even “for amusement” (for example, Rumyantsev was granted 5,000 souls in 1775). The formation of many large estates belonging to the most noble noble families in Russia dates back to this period. The accession to the throne of Emperor Paul served as the occasion for abundant distributions of populated estates to people upon whom the favor of the new sovereign fell (P.S.Z., N 17940); but in addition to special favors that depended on the personal favor of the emperor, each superior then had the right, when presenting subordinates for awards, to ask for them, according to the special merits of each, grants of populated estates, meaning at their own discretion in the lists the number of souls that were supposed to be awarded. Only under Emperor Alexander I, in 1801, were grants to populated estates stopped, and since that time they have not been renewed 291 . § 50. Current rules on the grant, assignment and allocation of land. Transfer of patrimonial rights to the granted property. The space of rights to the granted property. Grant of partial or limited ownership. Allocation of land from the treasury for economic and industrial establishments From 1801 until now, only uninhabited lands have been complained about; but at the same time, all oil sources that appear in the complained areas are left to the treasury with such space of land as is necessary for the establishment of fishing establishments (Ust. Gorn., 1893, art. 546). The grant is made through the Highest Decrees, following which the Minister of State Property makes an order to hand over the granted estates to whomever is appropriate (Law. Civil., 934, 941). Taking possession is replaced here by surrender, and before the surrender no one can take possession (940 Civil Law). A grant is a unilateral action of state power. Here we do not see the slightest participation of the contractual principle. We do not see a comparison of two wills at all, but by one action of state power, property that was previously state property turns into an object of private ownership. The award concerns only one side of civil law. There is no civil continuity here, there can be no talk of accepting what is complained about, because there can be no talk of the participation of the accepting will in the act itself. She participates in the act of donation, but does not participate in the act of granting. This does not mean that it is impossible to renounce the right, for any civil right can be renounced. But this right can be renounced only when it has been fulfilled, when it has become a civil right. This refusal is unthinkable at the very moment of the award. The essence of the award is precisely the fact that state property becomes the subject of private ownership. Therefore, if the Sovereign gives from his own property, then in the legal sense it will not be a grant, but a donation. But in a strict legal sense, in our country such a case is conceivable only in relation to movable property and capital. According to our state law, there are no such real estate that would be declared the personal civil property of the Sovereign. Not constrained by laws, he, of course, disposes of all the property in his possession with such right; but if we turn to the law (Civil. 412), we will see that those real estate, which are especially called sovereign property, are declared the property not of an individual, but of an ideal person, belonging to the always reigning emperor and not subject to alienation. So, when making an award, tradition is unthinkable. Since when is the right to property acquired here? From the time the decree on the grant is signed, so from that time a person can transfer to his heirs the right to receive property. This does not mean, however, that the property itself is always transferred. The right to dispose of certain property is acquired only from the time the property itself has been determined and has come into possession, through allotment and surrender. Namely: if the Highest Decree clearly and definitively defines the very property being complained of, then there is no doubt that with the signing of the decree, a completely patrimonial right to the property is acquired: from that time on, the right to the income collected from the property is also acquired, even if its delivery is delayed due to circumstances not dependent on the acquisition. But if the decree only complains about the number of acres, and not about a specific plot of land, then the definition of the plot also depends on the allotment. Before the allotment, the acquirer receives only a personal right, which he transfers to the heirs. Patrimonial right is acquired only from the time the subject of ownership is determined, i.e. from the allotment, therefore from that time the acquirer receives the right to income. The granted and allocated property becomes the property of the acquirer, unless the contrary is stipulated in the act of grant itself. Consequently, the acquirer can dispose of it with the right of full ownership (936, 937). In addition to an unconditional grant, property may also be granted partial ownership. Such are, for example, estates granted under reserve or primordial law, especially in the western provinces (467, 494), lands allocated in Siberia for the establishment of factory and industrial establishments (961). Such conditionally granted lands are acquired only upon fulfillment of the condition, and in case of non-fulfillment they are taken away (938, 939). In the 18th century, it was the custom to distribute earthen dachas to those wishing to be settled by serfs, especially in newly conquered provinces. The entire St. Petersburg province is populated in this way. But here we are touching on another method of acquiring property, which, being analogous to an award, differs significantly from it. Namely, this is the distribution of land to private individuals in the state economy for settlement, development and cultivation. An award is a personal act of the highest power, and this is a state measure, permanent or periodic. Such distribution began in the 18th century, and partly continues to this day. The main types of it at present are the distribution of plots in the Novorossiysk Territory for gardening and growing vineyards. And regarding this subject, there is in full force the rule that the right of full ownership is acquired only upon the fulfillment of the conditions. See, for example, XII volume of St. Est. Sat down. Household ed. 1893, art. 23, app.; 78–90, 93, 112, 113. The property complained of is subject to the collection of duties on the basis. Provisions of 1882 on duties on property transferred free of charge. See also Full collection. Zach. 1871, N 50040; 1873, N 51828; rules on the allocation of urban plots for development in the Caucasus. region and the distribution of state-owned lands in Stavropol. provinces. – 1868, N 45909: on the allocation of plots of property in the village of Goryachiy Klyuch, in the Kuban. 1868, N 46120: on the distribution of plots of state-owned land to private individuals in the Kuban region. Our laws mention in various places various types of temporary, dependent and limited ownership of lands by private individuals, which are allocated to them from the treasury and various departments; This ownership is sometimes limited to the prescribed period, sometimes it is granted for life, sometimes it is supplied depending on the economic needs of the state department until it needs the land, sometimes it is connected with the performance of service or work while the owner is in office; or with a trade for which the land is allocated, so that it can be taken away if it lies in emptiness, or used for another purpose. These types of ownership should, in our opinion, be classified as patrimonial rights when they do not stem directly from the quitrent agreement. In particular, they have the character of patrimonial state law, when their origin is connected with belonging to an estate, or with state service and service (cf. further in the article on borrowing). In some cases, direct law grants certain persons, due to their position or for special economic reasons, the right to receive plots of land for eternal and hereditary possession. It is said about mining and military officials working at mining factories in the region of the Ural ridge that if they build their own houses, then the places for them on state lands (and private individuals) will be given to them as eternal and hereditary property (Ust. Gorn., ed. 1893, art. 137). Maafs (policemen) in the Transcaucasian region, in reward for distinctions and other merits, are granted hereditary plots of land. Volume II. Special uchr. citizen ex. Kaz. Art. 928. The rules on allocating lands to low-income nobles were abolished in 1865 (P.S. Zak., N 41795). In return, rules were established on the allocation of free government lands to retired officials and officers, in plots from 30 to 150 acres (Poln. Sobr. Zak. 1868, N 45975). Special rules on the allocation of plots to such persons in Western Siberia - Complete. Collection Zach. 1869, N 47877. – On the distribution of urgent plots to officials of the Don Army – Complete. Collection Zach. 1876, N 49777. This also includes rules on the preferential sale of land from the treasury in the form of state interest and the encouragement of officials. On the sale of state-owned plots to Russian officials in the Kingdom of Poland - Complete. Collection Zak., N 49763; on the allotment of vacant plots to Kaz. lands in the Caucasus and Transcaucasus. region to landless nobles on preferential rent, with the right to buy - Full. Collection Zach. 1871, N 49882. § 51. In general, about the former and current meaning of this method of acquisition. Seizures and borrowings of land before the general survey. Borrowing of lands in the suburban regiments and old-borrowing lands. The origin of private property on the Don through borrowing and allotment. Residential lands in some areas. The current significance of the allocation of state-owned lands for establishments and industries. Clearing Borrowing, as the original method of acquiring land property, had very important historical significance. The time has long passed when, given the uncertainty of property rights, independent ownership was in the foreground: then borrowing was the main way to establish ownership. But when the concept of ownership of land, affirmed through title, was established, even then the loan did not lose its meaning; through it, the opportunity opened up to establish ownership of property, or, regarding the right to certain land, to extend the boundaries of one’s possession to the lands and spaces adjacent to this land. We talked above about this subject regarding lands and approximate lands. Early on, the official concept arose that all lands, not belonging to anyone in particular, belonged to the sovereign; but there was so much land and so little population that the government was not able to lay its hand and direct power on all the plots to which a private individual could not present and assert his right. For a long time the government did not have any need for this. State land surveying had to be combined with the precise identification of all property, both private and state, and the precise separation of one from the other. From this time on, the government began to take care of bringing ownerless property to light, in order to declare it the property of the state. But the land survey was intended to sanctify and establish every calm and conscientious possession, even if it was formed and spread without a title, through a single borrowing. The main goal was to make the ownership known, and if the government encountered the seizure of state-owned lands and found a settlement on them, it meant not to disturb this settlement. These included: approximate lands, the seizure of land without affirmative dachas, the seizure and settlement of state-owned lands undoubtedly before 1765, the clearing of arable land from under forests, etc. The boundary instructions contain rules on how to deal with lands that were unauthorizedly occupied by outsiders before 1765. In many cases, such lands were ordered to be left in the possession of the borrowers, without money, or with payment of a set fee for them, when those lands were state-owned, or when private owners, on whose lands there was someone else’s settlement, found themselves, in addition to dachas, with exemplary land. This was the order: to survey without money the church clergy that was occupied by them as courtyards from profitable city lands. Occupied by city residents from pastures, churches, palaces, etc. land for buildings, it was ordered to survey for those who have something to settle, but to take from them a lump sum of 3 and 2 kopecks per square fathom; but henceforth no building or settlement will be allowed on pasture lands (VIII, 10, 11, 15). Unauthorizedly settled by palace and other government department peasants and foreigners, without dachas and fortresses, empty state lands should be surveyed for them according to the number of souls in a 15-tenth proportion without money, if the occupation was not violent (XII, 6, 7, XXII, 7, 14 and XXIV, 14 - about non-religious lands). Owners who settled without dachas and abandonment books on wild state or quitrent lands must sell those lands at triple prices announced by the state (XXIV, 11, 13, XXV, 8, 15). If someone, not having his own dacha, has settled in the tracts of other owners, who still have approximate land behind their full legal dachas, then from this approximate land the settler will be given an 8-decimal per capita proportion, collecting from him a triple amount against the government sale price (XXVII, 4, 6, 8). On the allotment of land to henchmen who settled on Bashkir lands without acts, see Special. Adj. to Zak. Comp., XVI, Art. 15, note, adj. Example. Charters of Tsar Ivan Vasilyevich in 7066/1558 and 7076/1568 granted the eminent people Grigory and Yakov Stroganov the right to occupy empty spaces in Perm the Great on both sides of the Chusovaya River from the mouth to the top, to build towns and varnitsa and own lands and lands around them. A period was given for occupying such places: according to the first charter, 20 years, and for the second, 10 years, with the understanding that after these scribes would be sent, both to describe their possession and assign a salary from it, and to certify whether the empty places were actually occupied for it, without which the charters would not be charters. After the period specified by the first charter had passed, the scribe Yakhontov, sent in 7087, described the settlement and possession of the Stroganovs and arranged a diversion along the Chusovaya River from its mouth up to the Utka River. More than 40 years later, i.e. in 7131/1623 and 7132/1624, another scribe Kaisarov was sent, who in his scribe books marked the same Utka River as the border of the Stroganovs’ settlement and possession along Chusovaya, and explained that the Stroganovs owned the town of Chusovaya, the village of Kamasinskoye; to the Chusovsky town of the district, the Chusovaya River from the mouth up on the right side to the Utka River and with small rivers and from the lake, which in that boundary flowed into the Kama River and into Chusovaya: with all sorts of lands. Then, by the charter of Emperor Peter I of 7200/1692, all the charters and scribal books of Yakhontov and Kaisarov previously given by Stroganov were repeated, and Grigory Stroganov was ordered to continue to possess his future family inalienably, as his grandfather and father owned from time immemorial, and as in the charters granted and in fortresses it is written “to be sure to retain their former strength and strength.” now and henceforth indestructible for all eternity.” Then, during the 18th century, in the same area along the river. Chusovoy, state-owned factories were built and allocated for them, as well as for private establishments, lands and forests by order and allocation of the mining authorities. Finally, when it was necessary to determine the boundaries of dachas and possessions through general land surveying, the Stroganovs’ right was recognized only to those spaces that were actually occupied by them and legally allocated for their mining factories, and all the space not occupied beyond that was recognized by the State Court. property (D. Goroblagod. factories and Prince Golitsyn in the Ob. Assembly of Sen. and in the State Council in 1875). Land borrowing is still in use where there is still an abundance of land, even if it lies, for example, in Siberia, in the Tomsk and Irkutsk provinces. This leads to the formation in the usual way of a special right, the basis of which is in seizure, labor and prescription, and its manifestation in possession, use and disposal. But it is noteworthy that in this case the community is assumed to be the supreme manager of privately seized lands. Little by little it turns out that with the multiplication of seizures, the former space is replaced by oppression; then the struggle begins against the spread of borrowed ownership and it gives way to other, more specific forms. (For details, see the book: Peasant land use and farming in Tobolsk and Tomsk provinces. Publ. Min. State Property. St. Petersburg, 1894.) After the general survey, all private and state property had to be finally determined, and borrowing became legally impossible. But in fact, it is still possible today, because not all of the vast expanses of Russia have been made known and ownership hidden from government control has not yet become impossible. From time to time we hear now that somewhere in the depths of the forests of the northern provinces, settlements and villages are opening up in our country that were not at all included in the lists of estates and were hiding from government control and from paying taxes. In particular, the historical method of acquiring land property in the so-called suburban regiments that made up the current Kharkov province is known under the name of borrowing. These regiments were formed, as is known, from newcomers of Little Russian origin, who, due to the Polish persecution for faith, left the Dnieper in 1646 and settled in the midday region of Russia, first along the line established by Mikhail Fedorovich from Vorskla to the Don, then little by little spread throughout Sula, Pselu, Kharkov, Donets, etc. settlements, which later became regimental cities; The first settlers came from the Cherkassy povet, and that is why all the suburban residents received the common name Cherkassy. The Russian government tried to attract them to itself and take advantage of their military structure to protect the borders. In 1654, the Kharkov regiment, the center of local government, was accepted under the scepter of Russia and soon came under the jurisdiction of the Polish order, and along with it another main regiment, the Izyum regiment, was formed. In the last quarter of the 17th century, a series of letters of grant began, with which Russian sovereigns approved various benefits and privileges for suburban residents. Among other things, the charter of 1682 instructed the Sloboda regiments to “plow arable lands and own all kinds of land among themselves according to their Cherkassy custom.” Among these customs, probably carried over from the original homeland, was the custom of occupying empty lands for development and ownership. Thus, borrowing in the suburban region became the main method of acquiring property, and later, in the 18th century, with a decrease in land, derivative methods of acquisition appeared through purchase from the original borrowers or their successors. But even at that time, along with acquisition through deeds of transfer and inheritance, borrowing for a long time did not lose its former meaning. At first, due to the abundance of empty lands, no formalities were required for borrowing; with the increase in population, with the increase in the value of land and the decrease in the number of empty dachas, it became necessary to establish a certain procedure for borrowing; To prevent quarrels and disputes over land, it was necessary to determine the beginning and basis of each borrowing right. For this purpose, a special ritual was established for borrowings, similar to the ritual that in the system of local rights of the Great Russian region has existed for a long time for finding and assigning empty lands to the dacha: here the official concept was formed that the lands of the suburban regiments constitute a fund provided to them for service and for service; therefore, by its origin, occupied or allotted land could not be considered by anyone as full, unconditional property. The borrower had to, in order to register the land for himself, apply with a request to the regimental order, to the Izyum regimental office, from where documents were issued on this subject, which, however, did not have a strictly defined form: written permission to borrow, letters from the regimental order, decrees and instructions, and sometimes import letters with permission to “call up and settle free people of Cherkassy” on the borrowed land. Naturally, with this method of origin of land ownership there could be no precise certainty either in the boundaries of ownership or in the material features of law. This led, on the one hand, to abuses by local rulers, on whom the assertion of rights depended, and, on the other hand, to private violence, appropriations and quarrels between private owners. The government, from the middle of the 18th century, especially from the accession to the throne of Catherine II, set itself one of the main state goals to determine the boundaries of land ownership and make patrimonial rights known. Particular attention was paid to the lands of serving people, including the borrowed lands of suburban regiments; in them there was a mixture of state property with private ownership, which little by little turned into personal property. In 1765 (decree of March 15), the Sloboda provincial chancellery was ordered to select and examine the documents of all landowners who settled on the Sloboda land in order to determine the legal rights of each owner and allocate them from the mass of lands assigned “for the maintenance of the Sloboda regiments,” which was supposed to constitute public property. Meanwhile, a general state demarcation was being prepared. In July 1765, a special instruction was issued for the delimitation of the Sloboda lands, and it was decided: “due to the lack of any limit in the Sloboda province in the lands, limit it by law, so that everyone knows their inheritance or borrowing and returns what they have taken in excess, and in the correct fortresses would have possession by decrees, like the Great Russian owners. To investigate land affairs, establish a special patrimonial department in the Sloboda chancellery.” Moreover, it was ordered that “the land remaining in the area of each town for the pleasure of the townsfolk, lying empty in the regimental dacha, should be described and, without a decree from the provincial chancellery, should not be given except to the townsfolk who have newly arrived and there with their families, who have multiplied in lands that are insufficient, and to the provincial chancellery, having received information about the remaining lands, if any of the former elders and their children, who have not previously had borrowed lands, asks for a dacha. to produce according to proportion” (decrees of July 6, 1765, October 25, 1767, December 1, 1768). Subsequently, upon the establishment of the Sloboda Land Survey Office, it was ordered to survey the borrowed lands according to the principles of the survey instructions (decree of May 7, 1769). Thus, the possibility of indiscriminate borrowings ceased for the future, and the ownership of old-borrowed lands was to receive proper certainty. The population of the newly formed Sloboda-Ukrainian province little by little lost the character of the service class; the former military inhabitants and Cossacks partly entered the class of state peasants, partly, having curried favor, moved to the upper class, acquiring the quality of noble ownership in their land property. In the total mass of lands owned by former servicemen, it was now necessary to separate personal property from state property, from lands intended for per capita allotment. Among public dachas, there were often special plots of personal ownership, from old-borrowed lands inherited from ancestors or purchased from previous owners. Such owners, if they managed to advance from the ranks of peasants to officer ranks, received at the same time the right to dispose of their land freely, as the property of the nobility; but when they, with personal ownership of land, remained in the class of free rural inhabitants, the question arose about the scope of their rights to alienate their plots to outsiders who did not belong to the same class as them. This right was limited by law in relation to the personal property of members of the same palace and Little Russian Cossacks. The law meant that in a dacha inhabited by state peasants, the formation of new owners of different localities should not be allowed, and adhered to the principle that lands allocated from the fund originally designated for public service should not leave the class whose land ownership was based on its previous official significance; on the contrary, lands acquired through private transactions between former servicemen or their descendants, if these transactions are approved by law or prescription, can be provided at the free disposal of the owners. The same principle is expressed in the law regarding old-borrowed lands. In 1859, the military inhabitants of the Kharkov province were granted the right of ownership to those old-borrowed lands that were in their personal possession and disposal, and were inherited from their ancestors, or acquired by purchase. Thus, both those and other lands, not being classified as public, are free from dues. But the freedom to alienate both lands is not the same. The first ones, i.e. inherited from their ancestors, military ordinary people are allowed to sell, following the example of the Little Russian Cossacks, only to “equal ordinary people,” and the latter, i.e. purchased, it is left to them to alienate to whomever they wish. Those old-borrowed lands that have already passed to persons of other states and are retained by persons who have served among the military inhabitants remain in the inviolable property of the real owners and their heirs. In 1864, it was decided that all generally old-loan lands of military inhabitants of the Kharkov province, when they belong to the owners by right of ownership, can be alienated to people of any rank, and in 1865 this decree was extended to all generally old-loan lands, wherever they are located (Vol. IX, Zak. Stat., Art. 763, note 3, according to Prod. 1890 g.). To clarify these laws, in 1880 a decision was made by the Citizens. Cass. Dept. (N 207), in which D., guided by the considerations of the former II Department of His Majesty’s Own Chancellery, published in connection with the law of 1865, not adopted by the State Council, explained that in disputes about old-borrowed lands, in order to strengthen ownership rights to these lands, the law does not require the submission of acts of grant thereof to the grantors of the plaintiffs, but only orders to prove that the land appropriated by a private individual or society is really old-loan and consisted in the use of the plaintiffs with full right of ownership, and therefore it is up to the defendant - the treasury - to refute this circumstance by presenting evidence that the disputed land was given from the treasury only for use. This clarification, in connection with the reasoning of the Department that from the acts of granting old-loan lands one cannot conclude that they belonged to former military inhabitants on the right of use, leads to the fact that all old-loan lands should be recognized as the property of their real owners. And indeed, after the publication of this decision, many claims were brought against the treasury to recognize the ownership of the old-borrowed lands for the owners and to return the quitrent tax paid for them. As a result, a new clarification of the laws on old-loan lands was required, which, by the regulation of the Committee of Ministers on October 3, 1882, was entrusted to the Ministry of Justice, with the participation of the Ministries of Internal Affairs, State Property and Finance and the Codification Department under the State Council, and the proceedings on the mentioned claims on old-loan lands and on the return of quitrent taxes were suspended by the Highest Order on September 25 1883 (P.S. Zak., N 1729). This order has not yet been fulfilled by the Ministry of Justice. Although this name “old-loan lands” refers specifically to the suburban regiments, in essence the same was the method of origin of property in other localities, where a certain territory was allocated to a whole class from the Sovereign. Naturally, private property in these conditions was developed from personal ownership, established by borrowing. So, for example, land ownership was formed on the Don. The territory of the Don Cossacks was inhabited by newcomers, who first occupied places for themselves wherever they pleased, occupied them in towns, i.e. fenced areas. As settlements multiplied, it became necessary to distinguish between land allowances and the so-called yurts of individual towns. Then such an order was established that those who wished to come to the army and asked the military circle for permission to take over an empty place, and the delimitation of places between neighboring villages was carried out amicably, on the basis of which letters of divorce were issued from the army. Similarly, in later times, military officials received reinforcements from the military chancellery for captured or arbitrarily occupied lands. A special type of occupation of empty land existed in many places in Russia, especially in Little Russia, under the name of settlements. In Little Russia there are to this day large settlements formed in this way from newcomers (nahozhikh) from different places (slobozhane). It was usually done like this: some gentleman from the Little Russian foreman or a wealthy person would choose a convenient place somewhere in the forest near a river for a water mill, and ask the hetman or colonel to give him a station wagon for the place, and allow him to build a mill and besiege the settlement. According to the general rule, such a borrower became the full owner of the place, only the settlement had to be besieged not by local residents, but by outsiders (for in Little Russia itself the local government tried to counteract the movements and resettlement of people from place to place). Huts were built and a cross was placed on top of the huts, on which the “settler” indicated how many years of benefits from land duties were given to new settlers. Soon people gathered and the settlement was besieged. At the time of the general consolidation of the peasants in Little Russia, many of these settlements were fortified, with all the inhabitants, behind the original settlers, according to their borrowings. The statutes of the treasury administration mention many cases in which private individuals are granted by the state the right to occupy land plots for certain economic or factory activities, which are allocated to them for this purpose from the treasury on conditions. In this case, the person who received the plot holds it under the right of conditional use, which in some cases takes the form of fixed-term, lifelong, hereditary ownership, or can even turn into ownership. Such rights, according to their origin and basis, seem to be most correctly attributed in our system to occupation or borrowing, when they are formed not as a result of a free agreement between the state administration and private individuals (giving for maintenance), but as a result of a requirement or petition of a private person for recusal based on the general law, satisfied, on the basis of the general law, by the subject authorities. Here are those scattered in St. Zak. cases of such withdrawal: Allocation of land plots for construction from cities - cf. Zach. Comp., Art. 532, adj. IV, art. 6; V, art. 3. Allocation of land for the establishment of caravanserais in the Transcaucasian region, into eternal and hereditary possession. Est. Sat down. Household, ed. 1893, art. 23, adj. III. Allocation of land for orchards, vineyards, etc. in the Novorossiysk region, Bessarabia and the Caucasus region into eternal and hereditary possession. Est. Sat down. Household, ed. 1893, art. 78–90, for beekeeping in Siberia - 112. Allocation of land in Eastern Siberia for arable farming, haymaking and building houses (Constitution of Obrochn., ed. 1893, Art. 19, note, appendix). Allocation to former state peasants in some forest provinces of forest plots for forestry, with or without payment of stumpage money and duties (414 Ordinance of Forests, ed. 1893). In some areas, forest areas cleared for arable farming are provided to those who cleared them for temporary possession (up to 40 l.), Const. Lesn., ed. 1893, art. 407; for the Arkhangelsk province in the same place, art. 183, note, adj. See also Special. Adj. to IX position. about the mining plant. population, Art. 21, approx. 1–3; about forest plots allocated for clearing to specific peasants, see Ord. Lesn., st. 534, approx. 2. See also Set. Cossack. Sat down. adj. to 2 tbsp. according to Cont. 63 § 12; positive about abolition Irkutsk and Yenisei Cossack regiments, Complete. Collection Zach. 1871, N 49614, art. 14. Members of stanitsa societies in the Cossack Don Army were given the right to own established forest groves (levadas) or preserved groves of small growth (Vol. VIII, Part I, ed. 1893, Establishment of Forestry, Art. 576). In Roman law, occupation, or appropriation of ownerless things, was free for a private person; In German, and in general in modern legislation, the idea is expressed that occupation must be subject to state (or otherwise legal) rights, so that in a certain state area, and in relation to things that have a certain economic interest and have acquired a certain value, private individuals can exercise the right of occupation only with permission or in the form of a concession on the part of the government, or in the form of a right of general use. It is mentioned above how our government allowed and approved the occupation of the land. Now it should be said, in connection with the same subject, in particular about the right of hunting, trapping, fishing and mining of metals. § 52. Hunting. The Roman concept of the right to hunt in conjunction with patrimonial rights. Changes in this concept in the German world and under the influence of feudal relations. The right to hunt in connection with class law. Hunting regalia. Liberation of hunting in the 18th century. Restrictions on hunting rights in the latest legislation. The first definitions on hunting in the decrees of Peter I. Current rules on hunting and animal trades. assumptions about the new hunting law. Hunting in Courland According to Roman concepts, the right of ownership of land did not necessarily give the right of ownership of wild animals living within the boundaries of that land, and the concept of occupation was fully applied to the acquisition of ownership of these animals. Thus, on someone else's land it was possible to acquire animals as their own property; but this did not mean that everyone had the right to hunt on someone else’s land. The right to hunt, like the right of passage, was considered an accessory to the ownership of land, because without the consent of the owner of the land it is impossible, according to the Roman concept, to enter into his possession, and the owner has the full right to restrain every outsider. Thus, the owner of the land, allowing the hunter the right to hunt, does not give him the right of ownership of animals, which he himself does not exclusively have, but only gives him the right to freely walk and act in his land. This concept of the right to hunt existed originally on German soil, perhaps even more extensively. It was assumed that any free person could hunt on someone else's land, as long as he did not violate the property rights to this land. In the initial economy of society, when many of the productive forces of nature had not yet received a definitive value that was the same for everyone, it was natural to think that a free bird and a free animal in a free forest, not raised or fed by a human hand, was a gift from God to every person, and was not the property of anyone. Moreover, the very concept of land ownership in the medieval era did not yet have the economic form that it later acquired: a house, yard, garden, arable land were considered the exclusive property of one owner; and the land, i.e. forest and pasture were considered to be the common property and common use of the joint owners of the whole dacha. In individual knightly and church dachas, no doubt, first of all, the concept of the owner’s exclusive right to hunt in his dacha was formed, for for the nobles, hunting little by little acquired the meaning of a noble activity. Some forests, especially royal ones, were declared closed, reserved, and a hunting ban was imposed on them, so that the hunting of the king and his retinue was more profitable. With the development of feudal concepts, the right to hunt took the form of a real law. Some forests were declared reserved royal forests, and it was forbidden for anyone other than the king and his retinue to hunt in them, under fear of a fine (Bannforsten, bannus regius). Forests not only in royal dachas, but also free forests, and even forests that belonged to rural communities, began to be subject to this prohibition. Thus, the right to hunt became a profitable royal article and turned into regalia. In the Middle Ages, this right, like other royal rights and estates, was the subject of distribution, grant and sale; the right to hunt on behalf of the king was distributed to noble people of secular and spiritual rank; There are acts of that time that grant private owners the right to hunt in their own dachas. Thus, being fragmented into private hands, the right to hunt little by little became the property of the aristocracy and the knightly class, and the feudal concept of supreme and dependent property was applied to it. In the 16th century, the right to hunt took on the character of class differences. When the concept of the universal obligation to go to war weakened and military occupation became the property of one knightly class, the rule was established that the agricultural population should not carry weapons, and the concept of the right to hunt was combined with the concept of the right to bear arms. Only to a limited extent was it sometimes provided to the middle class, and was completely taken away from the lower class. Thus, the right to hunt was abandoned from the private right to land property to the point that many landowners were deprived of hunting on their own land, and violation of this prohibition was considered a crime. Numerous statutes on the right to hunt appeared with strict penalties for violating prohibitory rules, but these prohibitions were established solely in order to protect regal and feudal law, and not in the interests of public law. Lawyers of the 15th and 16th centuries positively recognized the right to hunt as one of the legal rights, but this concept of hunting was in constant conflict with popular consciousness, and protests against it never ceased. Any private right to hunt was considered a derivative of regalia, and it legally distinguished degrees: higher and lower, large and small hunting. Large hunting was provided exclusively to gentlemen, the highest nobility, and small hunting - to the lower nobility and townspeople; among the owners it was a real right, among private privileged owners it was a real, patrimonial right. Restrictions on the right to hunt had an important social significance and contributed greatly to the mutual irritation of the classes. The hunt for a free animal and a free bird seems to the common man such a natural manifestation of natural forces and such a natural use of the free forces of nature that it is difficult, almost impossible in many cases for him to understand the reason and reason for the legal restrictions on free action. Moreover, the love of hunting is rooted in the basic impulse of human nature to overcome external nature and fight living creatures, and it is clear that this love of hunting for many reaches the point of passion, which is lured and irritated by all kinds of obstacles, both natural and formal. So, when hunting from a natural right turned into an artificial, jealous and strictly limited right, the mass of the people could never accept such a right to consciousness and come to terms with it, and penalties for violating the right of hunting, which reached excessive severity and were associated with the protection of class privileges, did not cease to seem to the common man as lawless violence of the higher over the lower and the rich over the poor. Moreover, the transformation of hunting into a legal right and a class privilege led to unbearable constraints for peasants and small owners in the use of their property and in agriculture. It became a custom to declare entire vast districts under orders, and with the order were combined measures that were violent for all private owners within the district: not only in the forests, but also in the fields and even in their courtyards, estates and gardens, they had to submit unconditionally to many grave restrictions, continuous weeding, for which no compensation was due, the prohibition of many needs necessary for the economy and household life, the strict supervision of crown servants and the strictest penalties for any violation. – Violence of this kind, for which no other explanation could be found except class privilege, could not be reconciled by the mass of the rural population, and it is not surprising that these violence, which continued from century to century, were among the main reasons for popular irritation against the upper classes and against the entire social order. In the general collapse of regalia and class privileges, the regalia of hunting disappeared in France. In 1789 and 1790 it was announced that every landowner enjoyed the unconditional right to hunt on his land. But even this unconditional freedom of hunters led to constraints on the owners and to the detriment of private farming, so that abuses of freedom soon indicated the need to limit it for public benefit by establishing rules on the procedure for hunting. On the other hand, a return to the previous restrictions on hunting, contrary to the mass of the population, in the interests of property and civil freedom, was always the goal of the desires of a significant party of people for whom hunting became a passion and the interests of hunting seemed to be the main ones. Under the influence of this party, a law on hunting was issued in France in 1844, which is still in force, by virtue of which the right to hunt ceased to belong to each patrimonial property, but was made dependent on a special permit and subject to strict regulation. In Germany, the new beginning proclaimed by the French law of 1789 only led to a weakening of the previous severity of penalties for crimes and misdemeanors related to hunting, but the previous concept of hunting as a regal and feudal right remained until recently, i.e. until the new era of popular movements in 1848. From this time on, decisive reforms began on the subject of hunting in German legislation. Bavaria set the first example, and after it in other states the right to hunt was declared an inseparable part of the patrimonial right to land, and all exclusive rights to hunt in other people's dachas, independent of patrimonial ownership, were abolished. However, in Germany, as well as in France, it soon became necessary to establish restrictions on the unconditional freedom to hunt. The consequence of this was the laws on the right to hunt: the right to hunt even in one’s own dacha was made dependent on certain conditions regarding property and regarding the person. German legislation (like French) for the most part allows hunting only in cottages of at least the required size and in fenced spaces adjacent to the estate. Those who wish to enjoy the right to hunt, even in their dachas, must take a ticket for the right to hunt (Jagdkarte, permis de chasse) from the established government; For others, the law completely prohibits the issuance of such tickets (for example, to the insane, under police supervision, etc.); for others, issuance may be denied at the discretion of the authorities (minors convicted of certain police offenses, servants, artisans, etc.). The ticket is issued for a period of time, and a fee is charged for issuing it. Communities that own the right to hunt in their dachas are allowed to rent it out only to a limited number of tenants. All these restrictions, regardless of the legal law, are aimed solely at protecting public safety. In addition, in the newest regulations on hunting, another goal is visible: protecting economic interests, protecting neighboring owners from harm caused to their dachas by hunting; prevention of indiscriminate extermination of game in the interests of public economy. For this latter purpose, the law either directly specifies the dates and times for hunting, or leaves this to the discretion of the administration. Thus, according to French law, the prefect is obliged in each department to determine in advance the opening and closing dates of hunting, taking into account the state of the harvest and other circumstances; in addition, by special resolutions, prefects determine the timing and methods for hunting game of different types, according to the properties of the breed, they can take measures against the unreasonable extermination of birds, etc. In connection with the ban on hunting at one time or another, there is also a ban on selling game in markets. Hunting for predatory animals and species harmful to the economy is determined by special rules. Finally, hunting laws also have in mind the protection of a person enjoying the right to hunt from illegal actions of outsiders. In the previous order, when the meaning of real law was combined with hunting, violation of this law often rose to the level of a state crime and was subject to severe punishment. In the latest legislation, violation of the right to hunt is presented primarily as a violation of property rights, however, the private right to hunt is usually protected by law more strictly than other private rights. In general, hunting legislation cannot yet be considered established on solid principles: those principles on which it is built are subject to strong criticism, and the interests it concerns, i.e. the interests of hunting and the interests of private property are still far from reconciliation. Advocates of hunting argue that the right to game cannot be combined with the right to land, and that animals, which by their nature are not sedentary, but move from place to place and from one dacha to another, should, in fairness, be classified as objects of public law, recognized as res nullius, which legislation can dispose of quite freely and independently of private property rights to land (this is the view that currently prevails in law and in judicial practice). On the other hand, they object - and, it seems, with good reason - that game, in all fairness, should be considered a property of the dacha in which it is currently located, for it lives at the expense of this dacha, feeds from it, constituting inseparably both an economic benefit and an economic burden. Our social life has never known such restrictions; There is not the slightest hint of this anywhere, and, without a doubt, everyone could catch animals and hunt everywhere, as long as the patrimonial rights of the landowner were not violated, harm was not caused to him, his prohibition was not violated (for, without a doubt, there were custom-made places). Under Peter I, for the first time, awareness of the connection between the right of hunting and the right of exclusive land ownership appeared in our legislation (see poster of 1724). According to the current law (vol. XII, part 2, ed. 1893, art. 153 et seq.), the right of all hunting (gun, dog, etc.) is reserved for the owners within the boundaries of their estates: outsiders are allowed to hunt on someone else’s land only with the written permission of the owners. But both the owners themselves and outsiders must have special registered hunting certificates to conduct hunting, without which hunting is not permitted. Certificates are issued by the police: police officers and district commanders to everyone who wishes to use hunting, with the exception of minors, when their parents, guardians or trustees do not ask for a certificate, who are under police supervision and convicted of violating hunting rules and for damaging or stealing someone else's forest, until the execution of sentences. certificates are issued for a year and are valid wherever rules on hunting are introduced, so that having received a hunting certificate, for example, in the Novgorod province, you can hunt in the Pskov province, in Tver, etc., on your own estates and on the estates of third-party owners, subject to written permission from them. When issuing a certificate, three rubles are charged; This fee is used to generate capital to strengthen the means of supervision over the implementation of hunting rules. Free certificates are allowed to be issued only to officials, hunting guards of private owners and hunting societies, and hunting servants at the request of the owners; In addition, free permits from the Ministry of Agriculture and State Property, replacing hunting certificates, can be issued for scientific purposes for shooting and catching animals and birds and for collecting nests and eggs, by persons sent by scientific institutions, as well as for catching game for acclimatization or for menageries. Hunting is permitted only at times specified by law, and not in relation to hunting in general, but in relation to hunting for one or another species of game; at all times, hunting is allowed only in fenced parks and menageries that do not have free communication with neighboring lands. In addition, the right was granted at any time and by any means (except for poison) to exterminate predatory animals and birds specified in detail in the law, such as: bears, wolves, foxes, eagles, golden eagles, etc. The law of June 6, 1894 (Collected Law No. 811) in some areas (for example, in the Ekaterinodar and Maikop districts) allowed hunting for wild boars and hares by all means and at any time. ten days after the period during which hunting is permitted, it is prohibited to transport and distribute, as well as sell and buy game. Hunting is permitted only using the accepted methods; catch game with nooses, snares, snares, tents, traps, etc. It is not allowed, and it is equally forbidden to destroy nests or remove eggs and chicks from them of all breeds of birds, except for birds of prey. An exception has been made from the stated rules for some areas abounding in forests and game, in which hunting is the livelihood of the local population, where there is no fear of extermination of game: there hunting is permitted without hunting certificates. These areas include the following provinces: Arkhangelsk, Vologda, Olonets, Perm, Vyatka and Kostroma, and some districts of Kazan, Nizhny Novgorod, Novgorod and Pskov. In addition, the peasants of the Arkhangelsk province and the north-eastern part of the Vologda province, the Voguls of Perm and the former state-owned villagers of the Verkhoturye district of the same province and the counties of the Glazov, Oryol and Slobodsky Vyatka province, within the named areas, are allowed to hunt all game throughout the year with the prohibition, however, of its sale from March 10 to July 1. Violation of hunting rules is subject to significant monetary penalties; In addition, it was decided to confiscate fishing gear and game from the guilty. The proceeds from the sale of fishing gear and game and the money collected as a fine are directed to be used as capital to strengthen the means of supervision over the implementation of hunting rules. As for the latter, i.e. supervision, it is entrusted to the police, forest officials and forest, field and hunting watchmen. To the latter, with regard to the procedure for approval, dismissal and rights, the rules established in the forest charter (Article 669–676) for forest guards are applied. In addition, the heads of provinces and regions are authorized to authorize persons known to them, with the consent of the latter, to detect violations of hunting rules and indicate to them the area for action. Special rules have been established for the permission of hunting in the dachas of the Ministry of Agriculture and State Property. Hunting in them is permitted in the manner established for the provision of rental items at public auctions or on permissible tickets, for a fee, according to a fee approved by the Minister of Agriculture and State Property. An exception to this is made only for officials of the state forestry department and the state forest guard in the areas under their jurisdiction, and for the peasants of the northern and northeastern provinces, where they engage in hunting as a trade. In these provinces, the Minister is given permission to hunt on state-owned lands without leasing them, free of charge and without certificates. The stated rules on hunting apply to all provinces governed by a common institution, and to the provinces of Livonia and Estland, to the region of the Don Army and to the Caucasus region, therefore to the entire Empire, except for Siberia and Asian possessions, as well as the provinces of Courland and the Kingdom of Poland, which have special provisions on hunting. However, in these latest provisions, the Minister of Agriculture and State Property is given the right to draw up and introduce the necessary changes to the State Council. Animal trade in Siberia is free: they are not subject to any restrictions in relation to the time of year (Ust. Selsk. Khoz., ed. 1893, art. 263 et seq., Legislative Stat. art. 850). Due to the spread of predatory fishing for fur seals, in 1893 it was decided that fur seal fishing is completely prohibited. Slaughter, fishing and general hunting of fur seals on land is permitted only with the permission of the Government on special grounds. There are criminal penalties for violating this prohibition. In 1871, hunting rules were published for the provinces of the Kingdom of Poland (Ust. Selsk. Khoz., ed. 1893, art. 191–251). The right to hunt is granted to owners who have at least 150 morgues within the district boundary; but under certain conditions, the aggregate right of several owners, no more than 3, each having, individually, small ownership within the district boundary, is allowed. This right is called the special property right to hunt. The right to hunt and fish on peasant land is the indivisible right of the whole society. Each hunter needs a hunting certificate issued by the county. boss, for a period of one year. In 1877 (Ust. Selsk. Khoz., ed. 1893, art. 252–262) rules on hunting were published for the Courland province, which replaced the previously existing legislation. – The right to hunt is connected with land ownership of at least 150 tens. in the circumferential boundary; but the owners of several neighboring plots, making up such a number, can only use this right for one person. On peasant lands, hunting is the right of the whole society. On someone else's land, hunting is allowed only with written permission. Regardless of this, everyone who wants to hunt must take an annual, personalized certificate. Shot game is not pursued on someone else's property. Until 1877, there was a special hunting right in the Courland province. Hunting in state-owned dachas was a regalia, and hunting in one’s own and even in other people’s dachas was the exclusive right of the Courland nobility; moreover, the nobleman’s hunters were allowed to kill only small game in other people’s possessions, while he himself was also given large ones; All other residents of the province were unconditionally prohibited from hunting on other people's property. And regular hunting was divided according to the types of animals into large, medium and small, and the first belonged to the management of state property itself, and was carried out through forest servants in favor of forest revenues. Medium and small hunting in state forests was allowed personally to the Courland nobles; In addition, the state property department distributed tickets in limited quantities for an agreed fee. Voguls of the Perm province were granted the right to hunt and fish not only in their volosts, but also on other free state lands of the said province (Ust. Selsk. Khoz., ed. 1893, art. 270). In 1872 (Poln. Sobr. Zak. N 50923) a society for the reproduction of game and commercial animals and proper hunting was established in St. Petersburg. This society takes care of the establishment of protected areas both on state lands and on private ones, by agreement with the owners, and the protection of these places. The right to hunt in these places belongs only to the persons of the Imp. surnames. § 53. Fishing and free land. The connection between the right to fishery and the patrimonial right to land. Free fishing. Fishing as a separate patrimonial right. Fishing restrictions. The right to fish for temporary peasants. Free land The right to fish is also in connection with the patrimonial right to the land within which the waters are located, with the exception of those waters that are for common use and are not given away from the treasury as rent. Fishing on rivers and in locked waters is the property of coastal owners: outsiders can use them only with the written permission of the owner (271–273 Articles of the Establishment of Rural Economics, ed. 1893). In border waters, the right to fish belongs to the owners in half (428 Art. Gr. Zak., 350 Est. Col.). According to the general law, sea waters, even in populated areas, are not subject to private ownership, but remain in common and free use for all. The same goes for all lakes that are not privately owned. Exemptions from this rule are allowed only for special privileges given for the exclusive use of fisheries (Articles 267, 268). Can owners near the sea, under coastal law, exclusively use fishing in the sea waters adjacent to their lands? By force 267 art. Est. Rural Household This question should be answered in the negative, since sea waters, even in inhabited areas, are for common use. If, under the operation of this law, coastal owners retained the right to prohibit outsiders from fishing in the waters adjacent to the shore, this right, by the nature of the relationship, would not have a definite limit, and in this form would contradict the provision expressed in Article 267. So, since the law does not define an exception to the general rule, it should be considered unconditional. In 1846 (P.S. Zak., N 20564) the boundary of waters in depth was indicated on the Caspian Sea for the exclusive fishing of coastal owners, but with the publication in 1865 of a new charter on the Caspian fisheries, this rule lost force. Only in St. Osts. Gr. The laws expressly state that in Livonia and Estland the owner of an estate adjacent to the sea enjoys the exclusive right to fish for three miles from the shore (Articles 1029–1032). Fishing and sealing in the Caspian Sea, which in the past was subject to farming and quitrent, has been declared free since 1865, with only a ticket fee being collected from each boat. Local management of fisheries in the main department of the Ministry of State Property is concentrated in Astrakhan: in the board, committee and police of the seal and fisheries (Ust. Rural Economics, ibid., Art. 332). The quitrent articles include places for sinking and stabling, except for three pilots, along the fairway of the Neva (ed. 1893, art. 492–659). Not to mention the seas, all other waters, which do not belong to anyone in particular, are considered, as a general rule (Article 406 of the Law of the Republic of Kazakhstan), to be state property, therefore, for fishing in these waters, permission is also required from the authorities in charge of state property. The charter on the colonists gives them the right to use fishing in uninhabited places, which should be understood, of course, about places owned by the treasury (Const. Colon. Art. 351). In some areas, fishing constitutes a special right of use granted exclusively to one local population, for example, foreigners (Ust. Selsk. Khoz., ed. 1893, art. 280); or a special class, within the limits of its public ownership of lands. Such are the fishing conditions in the lands of the Cossack troops: Don, Kuban, Astrakhan, Ural, Terek (ibid., Art. 357 et seq., 431 et seq., 660 et seq.). Freedom of fishing, regardless of the protection of private patrimonial rights, is also limited for reasons of state and public benefit, namely in types of farming, in order to prevent the indiscriminate destruction of fish by improper fishing methods; to eliminate difficulties for navigation; to eliminate the danger to water structures (for example, on the Kronstadt fairway - Complete Collection of Laws of 1868, N 45470). In addition to general articles on fishing, which are very few in number, the current statute on agriculture contains a significant number of regulations on animal and fisheries in individual seas, rivers and lakes. These are the regulations on this subject in the Northern Ocean and the White Sea (Ust. Selsk Khoz., ed. 1893, art. 281–292), on the Ustya seal fishery in the Mezen Bay (ibid., art. 293–300), on fishing in the rivers of Arkhangelsk Gubernia. (ibid., art. 301–315), about fishing on the Svir River (ibid., art. 316–327), in the Pskov and Peipus lakes (ibid., art. 336–348), in Lake Kubenskoye (ibid., art. 349–351), about state-owned fisheries in the waters of the eastern part of the Transcaucasian region (ibid., art. 676 et seq.). Convention with Sweden on fisheries. fishing in the river Torneo: Full. Collection Zach. 1872, N 51056. About the deadline for starting seal fishing along the Greenland coast: Complete. Collection Zach. 1878, N 59165. Special rules on pearl fishing are contained in Art. 770–779 Set. Rural Household, ed. 1893. On catching leeches, see 780–783 of the same Charter. On the occasion of the liberation of serf peasants from the landowner's estate, it was decided that the right to fish belongs to the landowner within the entire estate, but where the use of them was one of the main means of subsistence of the peasants and the fulfillment of duties assigned to them, this use is left to the peasants on the conditions that will be determined by the provincial peasant presence (see Art. 103 Local Regulations for the Great Russian Provinces). This rule, as well as the rule regarding hunting, applies to the condition of temporarily obliged peasants; when buying out peasant lands, the inclusion of fishing rights in the redemption transaction depends on the contract. See Cass. decide 1879, N 393. In the decision in the case of management of state property of the Ekaterinoslav province with the Tomakovsky and Chumakovsky rural societies on fishing, the Civil Cassation Department reasoned that those fishing in the waters within the boundaries of the lands of the allotment of former state peasants, which in the possession of records are not shown among the worldly quitrent articles and until the time of issuance of these records were given in quitrent maintenance, as state quitrents articles continue to remain state quitrent articles and therefore cannot be considered, by virtue of Art. 424, vol. X Zak. Citizens, belonging to former state peasants by right of ownership of the lands and lands given to them according to the records they owned (1883, No. 10). See Art. 88 clause 6 Pos. about ransom, and another article. 75, 97. Wed. also decrees on compulsory redemption. Regarding peasants moving away from appanage and palace estates, see a similar rule in Art. 39, 126 pos. 1863 about appanage peasants. Wed. Full Collection Zach. 1880, N 60425. In state-owned forests, the fruits and seeds of trees and shrubs, as well as grass and other natural products growing both in the forests themselves and in their clearings, unless they are given as quitrent or are not removed from general use by any special prohibition, are for the free use of those who wish, only in compliance with the rules on non-damage to the forest according to Lesn. Est. (Gr. 465. Lesn., ed. 1893, 322 et seq.). For special rules on the use of land in someone else's dacha for the Chernigov and Poltava provinces, see Art. 466. Zach. Citizen On the use of land and on fishing in the delimited state-owned forest dachas of the Kurland province - 380 et seq. Art. Est. Lesnogo, ed. 1893 The restriction on the collection of berries and mushrooms in the forests is mentioned (if I am not mistaken, for the first time in our law) by the provision of the Military Council of 1878 (Ust. Lesn., ed. 1893, art. 633) on hunting and collecting berries and mushrooms in the military forests of the Orenburg army. In one of the forest areas, this collection is allowed only with tickets with a payment of 40 kopecks, and it is forbidden to enter on horseback and make a fire. § 54. Extraction of minerals from the depths of the earth. Origin of mountain regalia. The formation of a new mining law and its relationship to patrimonial rights to land. Restrictions and formalities of mining in Germany, France and England. The beginning of the legal right to minerals in Russia. Current regulations on the right to search for minerals are general and specific. Procedure for application and withdrawal. Trades that constitute regalia and monopoly. Oil and coal. About gold and salt mines In ancient Greece, minerals were considered state property. According to Roman law, minerals constituted an indivisible part of full ownership of the land, although in a later era, under Justinian, the state's legal right to minerals was already formed. In German legislation, this legal right reached its full development in the medieval era. Like the right of hunting, the right to develop minerals was distributed by the emperor to vassals as fiefs, and then followed the order of the rulers. It is now generally accepted in principle that minerals constitute the property of the one who owns the land: however, this property is conditional. Regalia still lies on minerals, or on some of the most important types of minerals, but the meaning of this right is not the same as regalia had in the medieval era. By virtue of modern law, minerals are considered everywhere as ownerless property, and everyone is granted the right to occupy and develop this property, which is approved by the state to everyone who wants it in the form of a privilege; the owner of the dacha on which the borrowing took place does not have the power to prevent the borrower by virtue of his patrimonial right to the land, but has the right only to demand from him compensation for the occupied surface of the land and for possible losses: the borrower can, however, search not everywhere on someone else’s land, but only where his work does not violate the integrity of the estate and business establishments of the owner. In the right to search for and develop ore, the patrimonial owner of the land is equal to any outsider: the advantage of one over the other depends only on who took the place first and made a bid. The right to search for and mine ore is subject to compliance with the formalities of mining law. First of all, the person wishing to do so must obtain from the mining authorities a certificate for excavation, given for a known area and period; then he must make an application for what he has found and receive an allotment, which grants the exclusive right to develop ore in a known, limited area. For all these actions and privileges, as well as for factory development, the required duty is charged to the treasury. Regardless of this right, which has the form of regalia (Bergregal), state power, in order to protect the public interest, according to the state principle (Berghoheit), grants itself legal supervision over all mining production. In France, the basic principle of mining law is the same (it was finally defined by the law of 1810), with the difference that French law more respects the interests of patrimonial rights to land. French law recognizes that the right to mine ore on someone else's land depends primarily on the consent of the landowner; and in any case, the appropriate administrative authority issues a certificate for excavation only upon the response of the landowner, who is authorized to demand remuneration from the excavator for the use of the subsoil of the earth. According to English law, in general, minerals with everything that is in the bowels of the earth are the property of the landowner, and any unauthorized development of someone else's land constitutes a violation of the right of property (trespass), however, by virtue of the ancient royal privilege, gold and silver everywhere in the bowels of the earth are the property of the king, who therefore has the right to develop these ores everywhere. All other ores and minerals are considered outside the legal right; but if an admixture of silver or gold was discovered in other ores, then the king has the right to preferential purchase of this production at a legal rate. In Russia, no earlier than Peter the Great (1702), the treasury's legal right to ores in any land, no matter who it belonged to, arose. In 1719, the development of minerals was allowed, however, to private industry (by the grace of the monarchs, and not by right), subject to restrictive conditions and with the state retaining the right to preferential purchase of the mined metals. Under Empress Catherine II, new rules for mining were established, and in 1782, land owners were granted freedom of mining with the extension of patrimonial rights to the subsoil of the owned land (for details, see Nevolin, Historical Civil Law § 342, in part 2). According to Russian law, the right of full ownership of land unconditionally extends to the subsoil of the earth (424 Law of Civil), and the owner is not embarrassed in any way in the search for and development of minerals on his land (213 Art. Gorn. Ust., ed. 1893); he notifies only the mining board about the proposed construction of the plant and then submits in mining production to the rules of the Mining Charter (ibid., 214–217). However, the law (ibid., Art. 246.) says that the owners of private factories are obliged to carry out mining correctly and not weaken the mines, which the mining board is obliged to monitor. Without the permission of the owner, no one has the right to search for ore in his lands. Our laws do not positively mention that the tenant or lessee of land does not have the right to develop mineral wealth in its depths; but this follows from the very essence of hiring. The right to the subsoil of the earth constitutes an indivisible property right, and the economic essence of rent consists of the use only of the surface of the earth and the productive forces of the soil. Therefore, in case of bewilderment, it seems necessary to admit that the tenant of the land has no right to minerals that have independent value, since their development is a subject of industry. On this subject, a special condition must be established in the contract to protect the renter. If there is no such condition, then the tenant has the right to use minerals (for example, sand, clay) only for the economic purposes of his plot. This subject is of particular importance in agreements on the transfer of state-owned lands and quitrent articles for use; in the form of contracts concluded by the treasury with private individuals, sometimes a condition is included to limit the tenant in the extraction of minerals when they are of particular value (see Complete Collection of Laws of 1864, N 40974). Any new mine or mine must be declared to the owner of the land, and from him to the Mining Administration; but this last statement is made for information only. Only the right to develop, when granted by the owner to a third party, must be definitive - namely, the allotment of land for the mine must be made under an agreement, with a plan that is declared to the Mining Department; The Mining Department issues a certificate for the mine. All these government actions do not originate from legal law, but only mean verification and certification of the rights of individuals (Ust. Gorn., ed. 1893, art. 206–211). Mining is permitted to private individuals on state-owned lands and those bordering state-owned factories, with the permission of the governing authority, which in this case does not stem from legal law, but from state law. Only in some areas the right to develop all or some minerals is the privilege of the treasury, or the supreme power, or certain classes. As a general rule, everyone has the right to search for ores in state-owned lands, except for those in dispute, provided to state-owned factories or private individuals for mining, and adjacent to state-owned mines, within the boundaries determined by the Minister of Agriculture and State Property, according to a permit, with a payment for the right of exploration to the treasury of a certain amount from each exploration area (Ust. Mining, ed. 1893, Art. 199, 204, 256, 257, 263, 272–275, 285, 313, etc.). An increase in the established plant and a change in its operation is permitted only with the permission of the mining department (ibid., Art. 250, 251). A miner who has not started preparatory work for the extraction of minerals within a year after the approval of the act for the allotted area, or who has not started mining the amount of ore established by the mining authorities within three years, without good reason, the allotment may be taken away (ibid., Articles 311, 320, 321). No tax is due to the treasury from the extracted mining products, except for gold, silver, platinum, copper, cast iron and mercury (ibid., Art. 767). The laid down rules for private mining on free state-owned lands were extended by law in 1892 to the Caucasus, Siberia and Asian possessions, with some minor changes and additions. Then the law granted the right to carry out mining to everyone who is allowed to do it in the Empire, with the exception of the ranks of the commander-in-chief in the Caucasus and the Governor-General - within the region in which they serve, judicial and police ranks and ranks of regional boards in Siberia, in the Turkestan region and in the Steppe General Government, as well as the Kyrgyz sultans and others Kirghiz holding ranks - within the provinces, regions and districts in which they are in service, wives and unseparated children of all mentioned persons, foreign subjects - in the coastal region and on Sakhalin, and in the Turkestan Territory of persons who do not have the right to acquire land property there. Mining on state lands that are in the perpetual use of the Kyrgyz and Siberian wandering and nomadic foreigners, except for winter camps and areas cultivated or occupied for economic needs, is allowed to all foreigners entitled to a special reward for this. Thus, in private lands, the state abandoned its former legal right to minerals; in state-owned lands it gives industrialists the right to develop. Only as an exception from this general rule were the regulations preserved in the Code of Laws, according to which, in lands belonging to certain classes, the state partially retained the right to the exclusive development of all or some minerals. Thus, in some Cossack armies (Astrakhan, Terek, Kuban, Orenburg, Siberian and Transbaikal), the development of precious metals belongs to the treasury, therefore the lands on which such metals are found are turned to the treasury for a reward. The remaining ores are given by the military authorities for development to private individuals according to the conditions (Ust. Mining, Art. 204). All kinds of minerals in the lands of the Altai and Nerchinsk mountain districts belong to the Cabinet: all minerals in their area are the private property of the Sovereign Emperor; private industry in these areas is allowed only in relation to certain metals (gold) and according to special rules about this (ibid., Art. 1085, 1234, 1236 et seq.). Even the lands of the Transbaikal Cossack army (with which the army was endowed by the Cabinet), on which noble metals and precious stones are discovered, go back to the Cabinet to replace other lands (ibid., Art. 1237). In 1892, rules on oil production were issued on the same principles as those generally adopted in our legislation regarding mining. Owners of private lands are only required to report an open source to the local mining authority. On government lands, simple searches without work are free for anyone, without special permission, but for working exploration and production, an application and withdrawal are required in compliance with special formalities and with the payment of a tithe. Plots left without development during the first 2 years, as well as those not paid on time, are selected and declared tunable. At the same time, all oil production is subject to excise duty (ibid., Art. 541–607). The extraction of Vytegor clay in the lands belonging to the Olonets factories constitutes a monopoly of these factories; outsiders are not allowed into this craft, and the clay is sold from the treasury at the factory price with a 12 percent premium (ibid., Art. 927). Until 1864, the development of coal (anthracite) within the region of the Don Army was the exclusive right of the army and Cossacks. In 1864, the right to mine in military lands was granted to everyone, even if they did not belong to the military class, under special rules. Development is preceded by exploration, undertaken with permission from the manager of the mining and salt areas in the region. Based on reconnaissance, the area is allocated with a plan. Production is subject to a duty in favor of the troops. In the depths of stanitsa and proprietary lands, the development of minerals constitutes an indivisible property of patrimonial right (ibid., Art. 1011–1042). In 1892 (Ust. Gorn., ed. 1893, art. 334–415) rules on private mining in the provinces of the Kingdom of Poland were published. These rules establish the procedure for obtaining permission for exploration in state-owned lands, owned by institutions and private ones, for the allotment of areas and for determining the mutual rights and obligations of the owner and holder of the allotment. The industrialist carrying out exploration is obliged to compensate the land owner for possible losses and to secure compensation in advance with a deposit. On privately owned lands, the consent of the owner is not required for exploration of iron, zinc and lead ores and fossil stones: in these cases, the allotment of area without the consent of the owner is also allowed; but any recusal requires the approval of the Government in the prescribed manner. Recusal is subject to remuneration, determined, in the event of a dispute, by the relevant government agencies. In 1874, special rules were issued to permit searches for amber in state-owned lands (Ust. Gorn., ed. 1893, art. 260, approx., app.). Special rules on contracts for the extraction of coal, ore and other minerals on the lands of peasant owners acquired by them by ransom (Ust. Gorn., ed. 1893, art. 200, 201). In 1893 (Collection No. 441), additional rules were issued on the procedure for carrying out underground mining operations. The production of gold mining is permitted to private individuals throughout the Empire on private, state-owned lands and those belonging to the Cabinet, with the exception of: a) state-owned lands located in the Zlatoust and Yekaterinburg districts of the Ural state-owned mining plants, and forest areas of the Turgai and Ural regions; b) some, defined in a special schedule, areas belonging to the Cabinet, and c) the Commander Islands, on which gold mining by private individuals is temporarily prohibited. In the Caucasus and Transcaucasian regions, private gold mining with special applications is also allowed. Previously, gold mining was not allowed to everyone unconditionally, but to certain classes; now it is allowed to everyone enjoying full civil rights, with exceptions for the white clergy, local officials of some departments, their wives and unseparated children, Jews where they cannot have permanent residence, and deprived of all special rights and advantages. All private owners are obliged to notify local mining authorities before starting gold mining operations. On state-owned and cabinet lands, in order to search for placers, everyone must have a permit from the mining department, which cannot be transferred. When setting out to search in a chosen area, a gold miner must inform the local police and occupy a designated area for exploration of no more than the size specified in the law. Upon discovery of a reliable placer, he must make a definitive application to the police, which is recorded in a book, and copies of the application are submitted to the relevant departments. The first application of a mine gives the right to receive an allotment of legal area, by order of the county auditor, through a special official (allottor); There is a period of 2 years for attendance at the reception of the area. According to the allotment, acts and plans for the mine are issued, but this allotment does not give the industrialist the right to the land itself, and after the final production of gold, the industrialist, having declared this to the auditor, has the right to demolish the establishments built at the mine within 6 months. Gold mines are charged a piecemeal tax and, in addition, a fee for the gold mined. In 1892, it was decided that gold mining and exploration work inside villages was prohibited. The extraction of gold only from unexpectedly discovered rich deposits, upon certification by the mining authorities, is permitted by the provincial presence, according to the proposal of the zemstvo chiefs, or by the provincial presence for peasant affairs, according to the representation of the district presences. In such cases, the village must be moved to a new location. For carrying out exploration work, arrest is imposed from three weeks to three months (Ust. Gorn., ed. 1893, art. 424, note 2). Gold, silver and platinum mined by private individuals, even in their own lands and at their factories, must be submitted to the St. Petersburg Mint for redistribution and then returned to the owners upon collection of the redistribution fee and a special tax on the metal (Ust. Gorn., ed., 1893, art. 787 et seq.). Until the temporarily obligated peasants buy out the land allotment from the landowner, the landowner retains the right to develop mineral springs, valuable minerals, including peat, discovered in the land allotment. This right is expressed in the fact that the landowner demands such land back from the peasants, in exchange for another proportionate and convenient plot (local position: Velikoross. 94–97, Maloross. 88, Kievsk. 72, Vilensk. 67); however, in Art. 101 it is said that peasants in the lands of their permanent allotment, in addition to pasture, can mine sand, peat, clay and simple stone. On common pastures, peasants, without the consent of the landowner, are prohibited from using simple stone only in cases where it is associated with such a change in the surface of the earth that is recognized as damage to the pasture (Poln. Sobr. Zak. 1865, N 42642). After purchasing their allotment, the peasants enjoy all patrimonial rights in it, including, without a doubt, the right to the bowels of the earth. A similar rule is contained in the regulation on peasants settled on the lands of the sovereign’s estates, palaces and appanages (Poln. Sobr. Zak. 1863, N 39792). Until 1862, the development and sale of salt was a state monopoly. In 1862, it was ordered: to introduce one general excise system for the entire Empire of state salt revenue, with the government stopping the salt operation, i.e. extraction, distribution (except for Eastern Siberia and the Amur region) and sale of salt, and with the transfer of state-owned salt sources for development into private hands or into full ownership through sale, or by giving it away as quitrent, or by allowing private individuals to extract salt with the payment of incidental money, regardless of the excise tax. The excise tax was set the same - 30 kopecks per pood. Only bitter salts and salt used as livestock feed and for technical production were exempted from it. The excise tax was collected at the sources themselves or at the points of transportation of lake production. Some areas closest to the lakes were subject to a special direct tax for the use of salt, instead of an excise tax. Wholesale and fractional sale of salt has been declared a subject of free trade at free prices. In the Kingdom of Poland, the procurement and sale of salt from the government continued until 1872 (from Austrian salt springs, under an agreement with the Austrian government). But on January 1, 1873, this system was discontinued in the Kingdom of Poland. In 1880, the Supreme Decree of the Senate announced the complete abolition of the excise tax levied on salt from January 1, 1881 (Poln. Sobr. Zak., N 61578). § 55. Finding. Regulations of our law on finds. General grounds for the right of discovery. Treasure The concept of a treasure and its difference from a find. Determination of treasure according to our law. Search for antiquities. Coastal law. Its historical and current significance. Russian regulations on coastal law. Extraction. The previous concept of production and its changes according to the principles of the latest international law. Regulations of the Russian mining law Lost things in no case can be called nobody's, ownerless, and therefore a found thing cannot be appropriated by the finder, just because it was found, but only then does the basis arise to appropriate it to the finder when it becomes possible to assume that the real owner is not there or he has abandoned (Gr. 537–540). The person who finds the item must report it to the police. The police make three publications and notify ordinary people; from the camp, things are sent through the Police Department to the provincial authorities, and the discovery is published in the provincial departments. If the owner appears (it is unknown at what time) and provides proof that the found item belongs to him, the item is returned, and the finder receives 1/3 of the price as a reward (Chernigov. and Poltava., 1/2). If the owner is not found by the 3rd publication, then the things remain to the finder. The finder must inform the police about the find, but nowhere does it say that he must present the found item to the police. So, demanding a found item from the finder, simply by virtue of the announcement he made, is in itself illegal until the owner appears. But the owner himself, having appeared, cannot demand the thing unconditionally if he does not have a reward ready, and the finder refuses to hand him the thing without reward (see the note about the find in § 74). Moreover, it should be recognized that the finder, if he uses the thing before the owner appears, does not violate the law, because the find (Article 537) is classified as a right to use property. Cass. decide 1870, No. 1088, it is recognized that in view of the positive order (Article 538) to announce the find to the police, the right to a reward for the find is constantly dependent on compliance with this formality. One may not agree with such an export, because the law does not indicate such an unconditional significance of the formality, and it is difficult to admit that, in its essence, a right, which, as can be seen from the first words of Article 538, has a proprietary character, depends on compliance with it. The actual accessories of this right may depend on it, for example, certification of the identity of the thing, the good conscience of the finder, etc. Wild animals are not considered to belong to the dacha in which they were kept if, of their own volition, they move to another dacha belonging to a different owner. In the notes to Art. 539 specifies special rules regarding the discovery of antiquities, finds on ships during travel and freezing livestock. The essence of the discovery rules is the same in all legislations. The finder is everywhere given a conditional right to the found thing, the right to retain it if the owner is not found within the prescribed period, which at the same time serves as a statute of limitations for the owner to present his rights. Consequently, the right of the person who has lost the thing is not unconditional, but depends on compliance with the deadline. Whenever this period did not exist, and the finder could not count on acquiring ownership of the found thing, then there would be no economic incentive for the finder to be honest, declare the find, take care of preserving what was found, etc. Only the owner of the thing has the right of action against the finder; he alone, and not anyone else, and not the state treasury. In French law, things found and without an owner are generally given the name “Epaves” (715 Art. Code Civ.), but in particular this name refers to sea grasses and plants, and things found in the sea or thrown ashore by a wave. A find is a thing found by chance. It is generally assumed that the finder is obliged to declare the found thing if he does not know who its owner is, and to return the thing to the owner if he knows who the owner is. In any case, the thing is not his, but someone else’s, and he is obliged to declare it. For concealing a thing, the law threatens the finder with punishment, which is more severe when he knew whose thing it was, and not so severe when he did not know the owner (Articles 178 and 179 of the Establishment of the Nak. Mir. Court and decision. Corner. Cass. D. 1867, N 167). But in the sense of civil law, a find is the acquisition of a thing whose owner is unknown. In this only case, the finder has the right to a share of the value of what was found, according to Article 539. If the owner of the found thing is known (for example, a registered credit paper, a debt document was found), then the finder has no reason to demand a legal share of the value of what was found. Wed. Cass. decide 1869, N 73; 1870, N 11; 1881, No. 56. For the same reason, the right to a reward for a find on the stairs leading to an apartment shared by the finder and the owner of an item was not recognized (Cass. decision 1869, No. 562). The reward for the find was refused by the court in those cases where, from the circumstances of the case, it was possible to infer that the owner of what was found could not be unknown to the finder: for example, when things that were an obvious mill accessory were found near the mill, or forest material was caught along the river, which was obviously demolished from the forest pier located above (Cass. decision 1870, No. 797). 1876, No. 45. The simultaneity of a statement to the police about both the loss and the find does not in itself deprive the finder of the right to a reward if, regardless of this, the court establishes that the thing was really lost by its owner and that at the time of the find the finder did not and could not know who it belonged to. 1876, No. 45. In order for a thing to be considered lost and found (and not stolen or misappropriated), it is necessary that a certain, more or less long time passed between its loss and discovery, during which the rightful owner would consider it lost, and in addition, that the finder was not an eyewitness to the loss, i.e. so that the acquisition takes place when the legal owner considers the thing to be completely lost and does not have the opportunity to immediately restore his right. 1876, N 45. To obtain the right to remuneration for acquiring someone else’s thing, i.e. for a find, the law requires: firstly, that the thing be lost by its owner, outside his home, and not just forgotten by him or left with the intention of leaving it somewhere; secondly, so that the finder of the thing does not and cannot know who its owner is, and, thirdly, so that the finder announces his find to the police. 1873, N 1670. Finding, as finding something lost by someone with the right to receive a reward for it, cannot take place in the case when the thing is lost in the house of its owner or in the premises occupied by him. On this basis, the court, recognizing the money found by the workers in the wall of the house as a find, and not the property of the owner of the house, since this money was not lost, did not thereby violate the laws on finds (538 and 539, Art. X Vol. I). 1882, No. 16. The finder of the watch did not announce the find, despite the publication of the loss; in the event of insolvency, his watch was sold to a third party at public auction. The claim for this watch from the original owner to the buyer was rejected, and it was recognized that the rule of Art. 1512. Zach. Citizen refers to the transfer of a thing freely, and not by public sale. A find is a thing abandoned, forgotten or lost by the owner without the intention of hiding or preserving it; it can be found without intention or with intention (to look for forgotten or abandoned things). A treasure differs from a find not in the person of the finder (who acts in the same way either by accident or with intention), but in the person of the former owner. A treasure is a thing hidden by the former owner with the intention of concealing it or burying it, a thing put away, buried. A distinctive feature of a treasure is not its being buried in the ground (although our law calls a treasure a treasure hidden in the ground), for something buried in a wall, for example, should also be recognized as a treasure in essence, but according to our letter 430 Art. should be included as a find. The nature of the find is an accident on both sides. If on one side or the other there was an intention - to put the thing down, or to take the thing with the knowledge that it was put there, then there is no find. If, on the one hand, there was an accident, but on the other hand, there was no accident, but there was an intention, there is also no finding. See the Manteuffel case in 1 General. Collection Sep. 1869 Manteuffel, having arrived in Peterhof, placed his bag on the street near the fence while he went to call a cab driver, but when he returned, he did not find his belongings: passing workers took it as a find, and then, presenting it to the police, they demanded a reward. Obviously, in the present case there is no significant sign of a find - there is no loss, or unintentional abandonment: the owner put the thing in order to preserve it for a few minutes. Although in 538 Art. Zach. Gr. there is no direct mention of this feature of the find – i.e. about the lack of will and intention of the owner, but this sign relates to the essence of the basic concept of the find. 1877, No. 29. In the cumulative sense of Art. 538 and 539. X volume I, for the concept of a find, it is necessary that the thing found by its owner was lost, i.e. so that the thing is removed from the owner’s possession as a result of his negligence or imprudence. It is obvious that a thing cannot be considered lost by its owner in the case when it is stolen from him, which is confirmed by approx. 2 to art. 539, vol. X, part I (ed. 1857). The found item had an unknown owner. And it is also unknown who placed the treasure. As soon as the owner's face appears, the person who has lost the item or placed the treasure is legally identified, then the treasure ceases to be a treasure and becomes classified as a find. But here we encounter another difference: there is no reason to search for the owner who placed the treasure without his claim; The owner who has lost an item is usually searched for by the police. No one is supposed to be the owner of the found thing at all, and from a legal point of view it doesn’t matter where the find was found; the owner of the place where the find was made, where the thing lay, has no right to the thing simply because he is the owner, the owner of the place; the locality has no legal significance here. On the contrary, in relation to a treasure, a legal assumption may be made in favor of the one who owns the place in which the treasure is found, because the treasure is placed in a known place with intention, and the determination of the will of the depositor is unknown. Who put it there is also unknown, but it is most straightforward to assume that the owner of the place put it there, and therefore every subsequent owner of the place, to whom, for example, the house reached or the land reached through transitions and transfers, is generally assigned the right to the treasure. As a result, our law (Article 430) stipulates that the treasure belongs to the owner of the land, and without permission it cannot be found either by private individuals or local authorities. This is our only resolution on treasures. Foreign legislation analyzes the concept of treasure more deeply. French law, for example, distinguishes between who found the treasure: whether the owner of the place or an outsider, by accident or not by accident. If a stranger was looking for treasure and found it with intent, the finder has no right to the treasure, and all rights belong to the owner of the place. And if the finder discovered the treasure by accident, then the treasure is divided between him and the owner of the place. A similar rule, from the Lithuanian statute, was left in our country for the Chernigov and Poltava provinces (Article 430). A find acquires special significance when it belongs to objects of archaeology, remains and monuments of antiquity that are important for science. In this case, the right to search for and acquire such objects is often limited in state matters for the benefit of science and for the preservation of historical monuments. So, in the rules for Archaeological. The commission is prohibited from searching for antiquities on state-owned lands without proper permission (1859 Feb. 2, P.S.Z., N 34009, § 5, 10, 12; 1862 Feb. 7, P.S.Z., N 37952). In XI volume. Const. Bargain. (ed. 1887, art. 485 et seq.) special rules were established on the finds and salvage of things thrown out after the wreck of ships, and on finds regarding the cleaning of roadsteads or harbors from sunken things. Coastal law (Strandrecht, jus naufragii). This was the name given to the right of coastal residents or owners of the shore to people, goods and things thrown ashore or found after a wreck. This barbaric right was based on the assumption that things swallowed up or stolen by the waves no longer belong to anyone, and that people who are shipwrecked and carried away by the waves become people without rights. In other places, this barbaric custom gave rise to the trade of coastal residents: they deliberately set up false lighthouses to attract ships to dangerous places, in order to rob the unfortunate after the wreck. This right is not recognized now by any legislation among civilized peoples. There remains the right of those who saved things to demand a reward for the rescue and to hold on to the things themselves until they receive the reward. Our trade regulations establish detailed rules on this subject (Articles 485–522). Everything saved from the crash was declared inviolable. Everyone is obliged to help. Everything found and rescued is placed under guard from local residents, with the participation of customs authorities and border guards. Everything is described and assigned for storage to the police or customs. Then all those who contributed to the rescue and saving receive the right to a reward in proportion to the price of the rescued, the greater or lesser proximity of the wreck to the shore and the greater or lesser value of the salvaged parts of the ship. If the owners themselves do not satisfy the requirements, then the items are sold at public auction. Extraction. The meaning and nature of mining have changed in modern times under the influence of international law. In ancient times, the enemy was considered without rights, and his property was recognized as res nullius. And he himself and his property became the subject of military occupation. Not only the soldier, but also the civilian was considered an enemy. According to the latest concepts, personality is also recognized in the enemy. His real estate is in no case considered to be booty. The property of civilians is also not considered booty, but only the property that enemy soldiers have with them. Robbery is not allowed, except in cases of attack, and then with special permission. War is considered a struggle between state and state, and not between subjects and subjects, and only military people serve as representatives and participants in the struggle. Thus, in relation to extraction, the citizen's personality is removed from solidarity with the state. In addition, international law seeks to exclude from mining objects of cosmopolitan significance in the fields of religion, public charity, science and art 292 . The extraction becomes either the property of the state or the property of private individuals. Only the last subject relates to the field of civil law. The main question here is: since when is the taken property considered legitimate booty, i.e. from which time the acquisition is made. Usually this requires that the thing completely and completely come into the actual possession of the acquirer. Roman law recognizes an acquisition as completed once the spoils have been delivered by the acquirer to a safe place (intra praesidia sua). According to Grotius, in his time it was recognized by international law that complete possession of the thing within 24 hours is required for the complete acquisition of booty, and this rule remains in force in new legislations. Some legislation tries to soften the unconditional beginning of the acquisition of production - the right to buy it from third parties to whom the production has been resold. This is the rule of Prussian law (A. Ld. R. I. Tit. 9, § 199): it is even said here that if the miner gave (and did not sell) the extracted thing to a third party, then he is obliged to return it to the previous owner without compensation. In our most ancient custom, there were no specific rules for mining. Its appropriation depended on physical strength, which was fully manifested during the war. Among the booty that came into private ownership were people who were captured while on a campaign with the enemy. They became slaves - Polonyaniks. According to the code of law of Ivan IV (A.I.I. 257), only the Polonyanik himself became a slave, and not his children. The first decrees on the procedure for acquiring booty and its objects, borrowed from German. rights relate to the reign of Peter I and are set out in the military regulations of 1716 and the naval regulations. They were subsequently supplemented in the 18th and 19th centuries. Production is generally classified as state property (Law. Gr. Art. 410). Based on the rules mentioned above, booty consists of movable things belonging to the enemy. Its acquisition can be with the special permission of the authorities. It cannot be acquired in ways that violate popular law, such as: robbing houses and villages, taking away clothes and belongings from captured and wounded people. It is considered the legal property of the owner, excluding things that had a public purpose, were in public and not private property, such as ammunition, provisions, government money, etc. All this constitutes state spoils. Things taken by the enemy and taken from him again are considered booty if they were in his possession for 24 hours. Recently, the stated rules have changed significantly with the provisions on procurement for the military land department of 1875 (P.S.Z. N 54629), in which production is classified as a method of procurement for the military department and its distribution is provided to the commander-in-chief. Sea catch is called a prize. Recently, an extensive regulation has been issued on sea prizes, which replaces all regulations in force on this subject in the maritime department and is subject to application in all cases for which special rules have not been established by treaties with other states. According to this provision, enemy military and merchant ships and cargo and merchant ships of neutral powers are recognized as prizes and are subject to detention and confiscation when they contain military contraband, and reprises are Russian and neutral ships and cargo of allied states recaptured from the enemy. Stopping, inspection and detention of enemy or suspicious ships and cargo belongs, as a general rule, to the navy; merchant fleet ships are granted this right only in cases of attack on them by enemy or suspicious ships and to provide assistance to Russian or allied ships. Upon the detention of a ship or cargo, the commander is obliged to draw up a protocol and take measures to preserve it. When the preservation of the ship turns out to be impossible, for example due to its dilapidation or poor condition or fear that it will be recaptured by the enemy, etc., then it is left to be burned or sunk. Detained ships and cargo are taken to Russian or allied ports and handed over in the first case to the naval authorities, and in the second to the local Russian maritime agency, consulate or other institution, by agreement of the Ministries of the Maritime and Foreign Affairs with foreign authorities. The nearest prize court is notified of the arrival of detained ships or cargo. Prize courts are entrusted with the jurisdiction of prize cases; These courts are port courts, which include, in addition to naval ranks, members from the Ministries of Justice and Foreign Affairs and flagships, composed of ranks of the maritime department; The highest authority is the Admiralty Council, to which, in matters of prizes, in addition to members, two Senators of the Fourth or Civil Cassation Department and an official from the Ministry of Foreign Affairs are appointed. Prize courts, after considering the case, make decisions on the confiscation of detained ships and cargoes that are not military, the confiscation of which is carried out by order of the naval authorities, and on the release of the mentioned ships and cargoes. The owner of the ship or cargo subject to release may receive them in kind; if they are sold, then he is given the proceeds from the sale from the treasury, and in the event of death or destruction due to the fault of officials, the value of the lost or destroyed property is reimbursed according to the assessment, and in addition, in all these cases, a special reward for losses may be awarded. If property is detained on waters in the possession of a neutral power or excluded from hostilities by international agreements, then it is returned, and damages are compensated only at the request of a power participating in the agreement, when it is declared within a year from the date of detention; otherwise, the property is confiscated in favor of the treasury without any compensation to the owner. Items confiscated as prizes are recognized as state property; those of them that are not retained by the maritime department, after evaluation, go on sale at public auction, and for detention, in both cases, a prize is given, the size of which depends on the ranks of the persons receiving it and the degree of their participation in the detention. The shares of this remuneration due to the deceased or killed are distributed among their widows and relatives only in a direct descending line, and if the deceased or murdered person has neither a widow nor descendants left, then they are turned into disabled capital or in favor of the emerition fund of the naval department. When the deceased or murdered person has a widow left, and there are no descendants, then the entire share is given to her. For the detention of enemy ships and cargo by merchant ships, a prize reward is assigned in the amount of the value of the prize. From the proceeds from the sale or from the valuation amount, 10 percent is withheld, minus expenses, in favor of the disabled capital. Chapter five. Termination and loss of ownership rights § 56. Voluntary alienation and transfer. Cases of involuntary alienation. 1. Confiscation. Its historical significance in Russia and current application. Satisfaction of debts from confiscated estates. 2. Expropriation, or forced and compensated alienation. Explanation of this right by reasons of state or public benefit. An unconditional property of alienation. Forms and rules of alienation and remuneration under Russian law and in the Baltic region Loss of property rights in a broad sense is alienation. But in a narrow sense, the word “alienation” means the voluntary transfer of property rights from one person to another; Consequently, the methods of such voluntary alienation are the same by which the right of ownership is acquired. Alienation in this sense is either complete, embracing the right of ownership of property in its entire composition and space, or incomplete, when its constituent parts are separated from the right of ownership as the subject of alienation; for example, when the owner limits his right to recognition of third-party participation or allows third-party property rights on his property (for example, a pledge). Regardless of the transition involving succession, there may be a unilateral abandonment of property (derelictio), serving as one of the effects of prescription. But there are also cases of involuntary alienation, regardless of the will of the owner, by the action of government authorities. This includes confiscation and expropriation. There is no reason to include here the alienation of the property of one person to another by a court verdict (adjudicatio, see Art. 1209 of the Constitution of the Court. Gr.). In general, the court does not have the power to grant civil rights or take them away. The court can neither create nor destroy law. His duty is only to say, to determine in his verdict: whose right is, which party should be recognized as having this or that right. There are cases in which the court is allowed to exchange and balance the law between the litigants, for example, during forced divisions, but even here the court only determines the disputed volume and content of the law, but does not create a new law. It is true that as a result of movements, transitions and turns of the case in court, due to missed deadlines, violation of forms, etc., the legal relations of the parties change and the so-called procedural or formal law is formed for them; but it is not unconditional and differs significantly from the right that belongs to one or another person unconditionally, constitutes the content of the process itself and is subject to determination by the court on the merits. According to existing laws, property can, in some cases, by order of the administrative or judicial authority, be transferred into ownership from one person to another, in lieu of monetary recovery, when it could not be made from the value of this property: the property is asserted in an appraisal claim (for example, in case of a failed auction). In the western provinces, according to the previous procedure, when collecting monetary claims, exdivisory courts were established, which had the right to allocate to creditors in satisfaction of their claims plots from the debtor's estate into full ownership (see 1363, note Zak. Gr. Sat. Sen. Resolution, part 2, N 520). 1. Confiscation. Confiscation or transfer of estates and estates to the Sovereign was in the old days a common consequence of punishment for certain crimes, and was determined not so much by law or general rule as by arbitrariness in the 16th and 17th centuries. It was shown above that in our country the concept of ownership of land was formed in legal form no earlier than the 17th century: land ownership was considered the exclusive right of the service class and was in connection with official service; therefore, any action with which the concept of infidelity in the service was connected, any crime that destroyed official relations, could have a destructive effect on the land rights of the criminal associated with the service. On the other hand, through the clan principle, family members were in state solidarity with the head of the family and they were directly or indirectly subject to the legal consequences of the execution that befell the guilty person, and therefore their right to inheritance after the guilty person was completely eliminated, or they were allocated only specified portions of subsistence from estates and estates, and the rest was assigned to the Sovereign and turned into distribution to other service people. (See Uk. 1669 Jan. 22 (411) art. 112, 1677 Aug. 20 (720) art. 5; 1681 Jan. 28 (860) art. 3.) Therefore, it is not surprising that confiscations of estates not only in the 17th, but also in the 18th century before Catherine, were a frequent occurrence, and that the same state act in which the legal concept of full ownership was expressed for the first time (i.e., the charter of Catherine II granted to the nobility) also abolished the confiscations of immovable estates. This rule remains in force, only as an exception the confiscation of all ancestral and acquired property of those guilty of participation in a rebellion or conspiracy against the Supreme Power or high treason is imposed; but in this case, not otherwise than on the basis of rules specifically decreed by the Supreme Power each time (see Angle of Code, Art. 255). Confiscation of certain movable property is decreed by law in many cases for crimes and misdemeanors against the property and revenues of the treasury, for violation of drinking establishments, customs regulations, etc. (See Angle. Stat. Chapter II. Section VII. Establishment of Customs. Ed. 1892, 1522–1525, 1541, 1542,1572.) Confiscation is a consequence of state law, which defines it as punishment for the owner’s crime by deprivation of property; Perhaps this reason alone, according to the principles of justice, would not be enough for a legal explanation of confiscation. No matter how serious a person’s personal crime may be and no matter how much it exposes him to grave personal liability, this responsibility should not extend to his property if no one’s material interests in property requiring compensation were harmed by this crime. But it is impossible not to admit, from the state point of view, that in some cases, precisely when private individuals conspired to participate in an indignation that assumed the dimensions of a war against the state and caused the action of state military force to tame and conquer an entire region, responsibility for state expenses and losses in the event of an indignation can, by the law of war, be assigned to the entire region, in the person of the guilty leaders and participants in the uprising. But if it is possible to recognize this basis for confiscation as fair in relation to the owners of the confiscated property, then it would be completely unfair, along with the property rights and interests of the guilty owners, to destroy the rights of outsiders, established on the confiscated property, secured by it and subject to satisfaction from this property. Confiscation extends to the entire amount of property belonging to the offender; therefore, the state, by assigning it to itself, enters into the position of successor to all the rights of the former owner and must, in all fairness, at the same time assume responsibility for its legal obligations. To what extent this responsibility extends and in what order it is carried out - this usually depends on a special resolution of the state authority issued regarding confiscation. In our country, whenever the confiscation of property was determined on the occasion of a state rebellion, rules were also issued on the liquidation of debts and claims lying on the confiscated property. Thus, the confiscation due to the Polish rebellion of 1831 gave rise to a whole series of regulations and decrees; The rebellion of 1863 was also followed by confiscations and rules on the procedure for satisfying debts from confiscated property. The representative of the responsible party is the department into whose department the confiscated estates are received, i.e. Ministry of Agriculture and State Property (in 1836 the Ministry of Finance and in some areas the Ministry of War). To examine cases of claims of outsiders against the owners of confiscated estates, local liquidation commissions were established in 1832 in the provinces, under the supervision and audit of the Senate. These commissions were required to act in the analysis and satisfaction of debts in relation to the rules on insolvency and competitions. After notification of the estate and debts, through publications and summonses, it was decided whether to accept the estate into the treasury with liability for debts, or to provide it to the claimants altogether, as an insolvent estate, if the debts exceed the value of the entire property. Of the owner’s personal debts, it was ordered that only those based on documents committed within Russia, and not in foreign lands and in the Kingdom of Poland, be recognized as correct, and only before the outbreak of indignation. All kinds of immovable estates, movable property, capital and all kinds of ownership rights in other people's estates were recognized as subject to confiscation. In the form of special royal mercy, all the father's property was left for the benefit of the families, when the father, through the labor of his hands, acquired food from agriculture. In general, confiscation extended not only to the existing property of the owners themselves, but also to those shares that would be inherited by the guilty person from his closest relatives (parents, grandparents, uncles and aunts); During their lifetime, these shares were ordered to be left at their free disposal, and with the right of alienation only during their lifetime, but not in case of death. On this subject, see decrees: 1830, December 21. (P.S.Z. 4206), 1831, March 22 (4444); April 7 (4485), May 6 (4535); June 4 (4624), June 17 (4711), September 30 (4841); 1832, March 28 (5257), May 10 (5344), July 28 (5468); 1833, 28 Aug. (6407); 1834, May 10 (7205); 1835, May 24 (8158), December 14 (8672); 1836, February 8 (9095), April 4 (9053), May 20 (9191), June 23 (9446), June 28 (9454); 1837, May 4 (10208); 1838, March 7 (11032); 1839, November 21 (13045); 1840, 12 Dec. (14043), March 9 (15369); 1842, May 16 (15653). According to the rules of 1864, the capital belonging to him, the redemption loan for peasant land plots and the money received from the sale of real estate and movable estates are used to pay off the debts that lie with the owner of the confiscated property. If for this reason part of the debts remains unpaid, then the treasury does not accept payment for it in any case. Priority is given to the satisfaction of claims on collateral that are negotiable on the collateral itself, and then to personal debts to the treasury and private individuals. The local chamber of state property, upon accepting the confiscated estate into its department, reports this to the district court or the subject civil chamber. The court makes a publication about summoning all applicants for a set period of time (from 6 months to 1 year), for general analysis and satisfaction of claims: claims not submitted on time will not be accepted for satisfaction. In December 1867, according to the regulations of the Committee of Ministers, rules were approved on the procedure for separating parts designated for confiscation, belonging to state criminals in the rebellion of 1863, from estates in common possession with other persons not involved in the rebellion. See Full. Collection Zach. 1867, N 45250. In February 1868 (Poln. Sobr. Zak., N 45431) rules were issued for the liquidation of debts and consideration of claims to the confiscated estates of criminals in the 1863 rebellion. On May 11, 1873 (Full Collection of Laws, N 52255) the High. order to stop confiscation due to the rebellion of 1863. Wed. Full Collection Zach. 1876, N 55552. 2. Expropriation or forced alienation. (Art. 575–608 Zak. Gr.). The usual form of such alienation is the sale of property on behalf of the government at public auction to satisfy the debts of the owner, especially the sale of mortgaged property to satisfy the mortgage. Further, this may also include cases of taking property into the treasury in the form of foreclosure (with an appeal to a certain department) or when the owner does not have the right to own it due to his condition. But a special type of involuntary alienation is the alienation of private property by order of the government, when it is needed for some state or public benefit, or for necessary use, for a certain reward. This concept itself is quite broad. This generally includes measures taken by the government to liberate peasants from serfdom with or without allocating them land, forced loans, measures taken in the event of famine, etc. Here we are talking about satisfying the constant needs of society, about the essential, without which society cannot exist, about resolving issues that are essential for the integrity and safety of society. Here everything is determined by the situation of society at a given moment, special, exceptional, and therefore here, first of all, property is required, and then the question of remuneration arises. With expropriation in the strict sense, it is a matter of carrying out an enterprise useful to society, when private property is necessary for this. Such cases occur when performing public works and structures, buildings, constructing roads, etc. Here the question of remuneration is inextricably linked with the question of demand. The property of such alienation is its unconditional obligatory nature. As soon as an enterprise is recognized as necessary for the public benefit and must be carried out, then private law must unquestioningly yield to the decision of the governmental authority, and on this subject dispute is impossible. Therefore, expropriation has the property of a public, not a private demand, and is based on public, not private law. It is obvious that in this case the concept of social benefit, of state need, is very conditional and at the same time devoid of legal definition. But in essence, the government acts here decisively and definitively, and when an enterprise serving only luxury or to satisfy personal whim is declared a state enterprise, the will of a private individual does not have the right and opportunity to object to the decision. A railway, for example, in a certain area may not be needed at all; its construction along one or another line may not at all meet the requirements of science and state economy; the erection of this or that building may be only a matter of luxury or whim, but the discussion of all these questions belongs exclusively to the government. Private individuals cannot officially state their objections, and when the matter is decided by the highest state authority, then objections are even less possible, and only one question remains open - the question of remuneration. The reason for expropriation is the announcement of public work, for which all private real estate located on the line of this work is required. This announcement is made in our country by the highest decrees, which ministers submit for signature by the Sovereign through the State Council. Ministers' submissions must set out data on the general usefulness of the enterprise and the need for expropriation. Correction of a peasant's allotment does not serve as a reason for alienation. From the notes to Art. 220 Builds. Est. (according to Prod. 1890) it follows that the reason for the alienation is the constriction of the church graveyard beyond 5 fathoms. neighboring mundane buildings. Remuneration cases are resolved administratively and are not subject to legal action. Verification of ownership rights does not take place if there are no visible disputes. A claim for failure to fulfill obligations assumed regarding the alienation is subject to judicial proceedings. By the force of these decrees, in which the alienation area is indicated in general terms, as far as possible, all lands located in a certain area unconditionally become open for use, and a private person, when alienated for railways under construction, as well as for other enterprises, which are granted in the decrees to use the right of the mentioned roads, has no right to object if, before the appointment and payment of compensation, his plot is turned into work (Zak. Civil., Art. 594). But according to the general rule, remuneration should immediately follow the decree: the authorities in whose department the work is carried out first of all communicate with the owner about the extreme price of the property or about replacing it with other similar property and equal benefits (Civil Law, Art. 577, 578). If the demand is found to be proportionate, then a deed of sale is made (ibid., Art. 579). If the price turns out to be disproportionate, then an inventory and assessment of the property is made, first, i.e. inventory, by a police official in the presence of two witnesses and in the presence of the owner or his attorney (if they appear when called), and assessment through special local commissions composed of local authorities, with the participation of representatives of the estates and deputies of the department (Law. Civil., Art. 580–583). The value of the property at the time of alienation is subject to assessment, regardless of the expected future benefits; but remuneration is also given for the decrease in value due to the implementation of the enterprise and for the corresponding expenses. In this assessment, either the profitability of the property is taken into account, if the owner requests an assessment on this basis and provides reliable information and data, or the conditions of the area and the economic significance of the property. The owner has the right to object to the assessment only once, and the commission finally considers the objections 293 . Then the case goes to the responsible minister and is finally decided by him, if the price does not exceed 3,000 rubles. and the amount is appropriated - or otherwise goes to the Supreme approval through the State Council. When property is taken and the disbursement of money has slowed down, then interest is due on the amount at six per hundred per year. Interest on the remuneration amount is calculated from the date of occupation of the property. They are calculated at 6% both for the entire amount and for the additional 1/5 part (when this part can be assigned by law). – If the property was subject to foreclosure or when the reward could not be released for any other reason, e.g. in a dispute about the right to receive it, the portion due to cover the penalty or the part in dispute is paid in interest-bearing papers through the Provincial Board to the local treasury. When expropriation is determined in relation to a part of the estate, but due to the alienation of this part the rest would become useless to the owner, he is allowed to demand that the estate be alienated in its entirety (Article 584, paragraph 10). Remuneration also includes the imposition of certain obligations and facilities on the institutions in whose favor the alienation is being made, in order to correct the inconveniences it causes to the owner. This also includes granting the owner the right to participate in the use of property after its alienation. Expropriation is determined by the need for the enterprise in this property, therefore, when a plot alienated from the estate becomes unnecessary, the owner, in order to restore the estate to its previous composition, is given the right, before the expiration of ten years from the time of alienation, to redeem it for the price that he received. The same right belongs to him when the enterprise did not take place or ceased. If the owner has not exercised the right of redemption before the expiration of ten years, he has the right to a preferential purchase over all others at a price determined by agreement or new assessment (Articles 590–593). The concept of expropriation includes not only the alienation of property, but also the limitation of rights to it by establishing, in the state or public interest, rights of participation, as well as temporary, urgent occupation. On this subject in the law of 1887, of which in the 1887 edition Zak. Citizen The previous rules on expropriation were replaced, it was decided that the establishment of the right of participation in property and temporary occupation are permitted in the same manner as the alienation itself, i.e. By the Highest Decree, of which the project is submitted to the Highest View by the relevant Ministers and Chief Administrators through the State Council (Civil Law, Art. 576); the assessment of losses of owners from the rights of participation and from the temporary occupation of their property is equally determined by the same rules as the payment for the alienated property, but the owners are given the right to demand the alienation of the property instead of establishing the right of participation in it and instead of temporary occupation - in the latter case, after three years from the time of occupation of the property, if it is not returned. The conditions under which property is temporarily provided for the enterprise, and the scope of rights to participate in use, are determined by an agreement between the owner and the entrepreneur, or a decision of the subject place. Temporarily occupied property is handed over to the owner at a new valuation when he requests it (Articles 604–608). In addition to these general rules on expropriation, special ones have been established for some cases. This includes rules on the occupation of property for railways under construction. Their essence is that property requiring immediate occupation, as soon as the road line is marked and approved by the inspectorate, is subject to an inventory with the permission of the governor through the police in a short two-week period; the plan of such property is approved by the signature of those participating in the inventory and is submitted, together with the inventory, to the governor for orders on assessment, according to the general rules established for this. The lands necessary for laying the path and necessary structures are subject to alienation. The extraction of materials outside the zone is participation in use, for which a decree is specifically requested (606, 576). After the assessment and determination of the remuneration, the property is allocated for the railway, and when the road is constructed by a private company, it is obliged to ensure payment of the remuneration to the owner by depositing a certain estimated amount, in interest-bearing papers, into the local treasury - if a voluntary agreement on remuneration does not take place between it and the owner (Articles 594, 595). A special procedure has also been established for the following cases: for the alienation of plots of peasant owners, for the alienation of plots from Jesuit estates, church lands, Bashkir lands (Articles 596–601), lands in Transcaucasia for canals and structures necessary for irrigation (Collected Uzak. 1891, No. 97, Pol., Art. 31). According to special rules, land is alienated for access roads to railways (vol. XII, part 1, Regulations on access roads, ed. 1887, art. 26 et seq.). In 1893, in addition to Art. 606. Zach. Citizen it was decided that for the construction of snow protections along railway lines, the right of annual short-term use of the adjacent owner's lands may be established. The owner's remuneration is determined by the procedure established by law and after three years may be revalued. Cases of expropriation also include restrictions on owners during the construction of buildings, excavations, seating and when arranging warehouses near railway lines (see Statute of the Russian Railways, ed. 1886, Art. 153, appendix). On the subject of expropriation, see also the decree of December 10. 1865, on the mandatory sale of estates in the Western Region by Polish landowners, and the rules on the procedure for this sale and on the taking of unsold estates at the disposal of the government (Poln. Collected Law. 1867, N 45083). Expropriation includes cases of mandatory killing of livestock when signs of plague infection appear on it and the destruction of objects contaminated by livestock. The owner, if he promptly reports diseased livestock, is given a reward from the amounts of the general or special zemstvo collection, in the manner and according to the assessment established by the provincial zemstvo assemblies (T. XIII, ed. 1892, Ust. Vrach., art. 1278, 1279, 1291, 1299). 1877, No. 188. By virtue of the rules on public remuneration for property transferred from private ownership by order of the government, both the assessment of real estate and the determination of the amount of remuneration that follows to the owners for these properties, as well as the time and procedure for issuing this remuneration, are carried out in an administrative manner, without any involvement of the court. According to this, all kinds of demands, claims and complaints of private individuals on the subject of assessment, determination of the amount of remuneration and the issuance of this remuneration are also subject to consideration by administrative authorities and therefore cannot be subject to the department of judicial rulings, with the exception of those actual cases when the claim is brought solely for losses that occurred from events that do not fall within the scope of the laws on public remuneration (for example, a claim in the form of loss of interest on an estimated amount not paid in a timely manner), or a claim is brought for the recovery of remuneration for harm and losses caused by orders of officials and administrative departments, in the manner specified in Art. 1316–1330. Est. Citizen Court. November 20, 1864 1874, No. 279. After drawing up an inventory of the land needed for the railway, this land, by force of law, comes to the disposal of the railway company that occupied it. If the inventory was drawn up untimely, after the occupation of the land, then the owner can demand special compensation from the company for the losses caused to him, but does not have the right to ask for the restoration of the disturbed possession, since from the time the inventory of the land needed for the railway was compiled, complaints of private owners related to this subject are not subject to discussion of magistrates' rulings. 1874, No. 485. If someone’s land is occupied by a railway company along the line of a road and the direction of the road is approved by the government, then, even if the occupation of the land was carried out in violation of the rules established by law, the company cannot be deprived of the right to further ownership of the occupied land and does not even have the right to return it, just as it does not have the right to change the direction once approved. 1873, No. 979. By virtue of Articles 6–9 of the Supremely approved opinion of the State Council on January 6, 1869 (46628), plantings of trees and bushes located near railway lines are destroyed only after an agreement between the owner and the road management regarding the amount of remuneration due to him, or by a ruling to this effect by the court on the basis of a previously compiled inventory. The government paid special attention to the fate of the settlers who settled in the Ufa province. on lands returned to the Bashkirs from private ownership. These settlers acquired the plots they occupied under agreements with the previous owners of the land, but upon their transfer they had to lose their land property, since the agreements and agreements did not satisfy the formal requirements of the law. Therefore, in order not to subject these people to ruin, in 1892 it was recognized as necessary to resort to the forced alienation of settlement plots from the possession of the Bashkirs, with the payment of the appropriate remuneration. a) In the regulations on peasants of the Livonian province on November 13, 1860 (42–45) and the Estonian province on July 5, 1856 (204–207), there is a rule that establishes the right of forced alienation in favor of the estate. In all areas of the estate that have passed into the temporary or permanent possession of third parties (by lease or purchase), the landowner retains the right to alienate or annex the land for compensation in necessary cases (for draining water, installing communications, etc.). The necessity of the enterprise must be confirmed by a court (parish) verdict. The remuneration is determined by the court. b) Concerning the alienation of land for the Baltic road, confusion arose: whether the All-Russian law on the procedure for alienation and compensation extends to property lying within the Baltic provinces, or whether matters of this kind should be carried out according to local laws. But there was no definitive local law on expropriation, since Art. 868 III part of St. Local. Uzak. refers in this subject to the statute of civil proceedings, which has not yet been published for the Baltic provinces. For advocates of local autonomy, this reference was enough to confirm the opinion that local cases of alienation should be carried out in all parts by judicial procedure (cases in the 1st D-th and General Meeting of the Senate in 1870). This opinion, however, was not adopted in the final decision of the case. Wed. Full Collection Zach. 1879, N 48921. c) In the provinces of the Kingdom of Poland, it is allowed, without the consent and against the will of the private owner, to allocate its area to private industrialists for the development of coal, kalmey and lead ore - with the Highest permission requested by the Minister of Finance in the manner established by Art. 575-593. Zach. Citizen (ed. 1857). The owner is determined by remuneration based on an assessment made in his presence, through the local governor, and in the event of a dispute, it is finally assigned in a general manner, at the Highest discretion (Poln. Sobr. Zak. 1870, N 48499). Another case is also indicated there - forced alienation in favor of the owner of the allotment of buildings erected on the surface of the allotment by the owner of the land (Article 32). Chapter six. Limitation of ownership by right of participation § 57. General concept of limitation. Limitation of property on its positive and negative sides. Positive restrictions that have a state quality. Their historical and current significance. – Restrictions related to the essence of patrimonial right. Their real property. They are either necessary and general, or random and particular. The concept of rights in someone else's property. The purpose of establishing these rights. Roman categories. Emphyteosis. Superfication. Easement. Various types of easements. Land duties under German law. Establishment of easements. Method of terminating easements. Regulations on easements in the local law of the Baltic provinces What is a property restriction anyway? From the definition of property rights it was clear that it is the power to own, use and dispose of property exclusively and independently of an outsider, and that the completeness of the right is its positive side, exclusivity is its negative side. On both sides, this right is subject to restrictions, without ceasing to be a complete right. On the one hand, by force of law or by virtue of private will, property in property may be subject to duties; the position of the owner may be associated with the obligation to perform actions or payments on property for the benefit of the state and public. These are state duties or those arising as a result of contracts and statutory acts of private will. These duties in the strict sense do not relate to the essence of the right of ownership, and therefore cannot be called its restrictions. This includes state taxes and duties, as well as local provincial, district, secular, public, connected with land ownership (see Statutes on taxes, ed. 1892, and on zemstvo duties). The institution known in German legislation under the name Reallasten (i.e., personal duties combined with dependent possession or subordinate property) and usually referred in the system to civil rights of a mixed patrimonial-personal nature, was not legally developed in our legislation, because personal duties, which we had before 1861 on serfs and on some categories of assigned state-owned peasants, consisted of an inextricable and exclusive connection with personal power and personal submission - concepts that did not allow strict legal definitions. But it is impossible not to notice that in the current legislation the remnants of some local duties lying on land ownership have been preserved - duties that have not found a place in the general system of permanent zemstvo and state duties, are mentioned in various charters of government administration, and have a temporary and accidental meaning. For examples of such duties, see note. to Art. 98 Forest Est. ed. 1893; Art. 774 Set. Put. Message See also Full. Collection Zach. 1867, N 44121; 1872, N 50726; 1869, N 47207, 47587; on the abolition of duties in kind that fell on state peasants for the arrangement of state-owned forests; 1870, N 48443, on the redemption of perpetual cessions and other duties lying on land property in the Kingdom of Poland. But on the other hand, on the negative side of property rights, real, true restrictions related to the essence of the right are possible. This property is limited by the power of which the owner has the right to exclude any outside participation in the property. It happens that the owner, either by force of law and state necessity, or as a result of private will, expressed in an agreement or in a statutory act, is forced to allow or tolerate the participation of everyone who needs it, or known third parties, in some of the benefits of his property. These restrictions relate, for the most part, to use. The owner generally uses the thing according to all the properties of its nature; but under these restrictions, due to one or some of these properties, the use of the thing becomes available to all or to some outsiders, so that the owner must endure - non facere, pati. This is the essence of so-called easements, whereas, on the contrary, in obligations one party undertakes to act in relation to the other. Here, the responsibility of the owner of the property is that he tolerates, allows the participation of others, and the participating person takes advantage. The main difference between these patrimonial restrictions is that they are associated with patrimonial rights and are themselves patrimonial rights. This is their real property. The restriction does not lie on the person, the rights are not assigned to a known person, but lie on the owner of the property, assigned to the owner of the property or to persons generally unknown, since the economic needs (and not the whim or pleasure) of these persons are subject to the necessary satisfaction in known property. Property restrictions in this sense are either necessary and general or accidental and particular (conditional). Necessary and general are established by law in relation to all property or property of a certain category, due to state necessity, or for the general benefit, or for the benefit of certain individuals. These restrictions are assumed in the very definition of property rights, where it is said that it is power: within the limits established by law. These limits are indicated by the properties of the legal or economic nature of the property, or by the economic needs of the entire society. There has already been occasion to mention the restrictions to which the right of private property was subjected at various times as a result of legal rights, before its limits expanded to the concept of full ownership. The time when the forests on all estates were custom-made, were considered regalia, and the owner did not dare to cut down an oak without running the risk of penalties, which sometimes reached execution, when the minerals in the bowels of his land, beekeepers and husks, fisheries, mills, were declared not the property of the owner, but regalia, this time has already passed, and now the law bases civil restrictions on private property not on the arbitrariness and discretion of state authorities, but on public needs 294. Among the restrictions established in the public interest, for the purpose of, for example, protecting rivers and lakes from shallowing, etc., are the restrictions introduced in our country by the Regulations of April 4, 1888 on the conservation of forests (Vol. VIII, Part 1, ed. 1893, Establishment of Forests, Art. 793 et ​​seq.) restrictions on owners in some provinces in the right to use forests. These restrictions lie in the fact that forests, the unconditional preservation of which is recognized as necessary, called protective, cannot be converted into another type of land (for example, for arable land, mowing, etc.), and the felling of such forests is allowed only with the approval of a forestry plan drawn up (except for forests in the Cossack troops) at the expense of the officials of the state forestry department, when the protective forest belongs to the appanage, then the specific management (at the expense of the latter), and approved by the forest conservation committee. In protective forests, clear-cutting, uprooting of stumps and roots, livestock grazing, collection of forest litter, and other incidental uses may be prohibited; but the owners cannot be entrusted with any forestry measures requiring expenses: if such measures are considered necessary and the owners do not agree to the costs, the Ministry of Agriculture and State Property is authorized to acquire forests for the treasury according to the rules on expropriation, and preserving the right of the owners for ten years to redeem for the amount paid to them from the treasury, adding to it the amount spent on forestry work, and six percent per annum on both amounts. As for other forests in those provinces where the Regulations on Forest Protection have been enacted, the rights of owners to these forests are also limited; for example, they can be converted into another type of land only in cases specified by law; they prohibit clear-cutting, which could result in the destruction of the forest; grazing of livestock in cleared areas and young stands under fifteen years of age is prohibited, etc. General supervision over the implementation of the rules on forest conservation is entrusted to the Forestry Department of the Ministry of Agriculture and State Property, and direct management of forest protection is assigned to forest conservation committees, which are established in each province and region. These committees consist, under the chairmanship of the governor, of the provincial leader of the nobility, the chairman or member of the district court, and where he is not there - the chairman or member of the provincial judicial seat, the manager of state property or his assistant, forest auditors, the manager of the specific office, the chairman or member of the provincial zemstvo government, and where the zemstvo has not been introduced - three forest owners appointed by the Minister of Internal Affairs, an indispensable member of the provincial or the provincial presence for peasant affairs, or a member of the presence by appointment of the governor, if a zemstvo has not been introduced, and two members from local forest owners, by election of the provincial zemstvo assembly. Our legal relations, formed independently of the principles of Roman law, do not always fit into the system of it and the legislation based on it, and therefore in the system of our civil laws there is no department corresponding to the Roman department of jura in re aliena (rights in someone else's property). This is the name for special (special) rights, deliberately isolated from the whole composition of full ownership in certain property and granted to a third party - not the owner; in the person of the owner himself, these rights constitute an inseparable part of his power and for him are not isolated until they are separated from his power and stand next to and against it, in the person of an outsider (nemini sua res servire potest; suae rei pignus nonconsistit, etc.). Jura in re aliena is not the essence of property rights, but has the same nature as it. The possession of these rights is possession by likeness (quasi pos-sessio) and is protected by similar interdicts; These rights are subject to vindication and are acquired as property. The purpose of establishing these rights is twofold: use or provision. The last category includes the right of pledge. The first category includes: emphyteosis, superficies and easements. 1) Emphytheosis is a real right to someone else’s soil - the right to fully use it and develop it, while maintaining its productive integrity and with the obligation to bear public duties for the land, to pay the owner of the land a periodic price (canon); This right differs from hiring or ordinary lease in that it continues indefinitely or is granted for long periods, up to 100 years: in this form, the emphyteutic right is retained in new legislation; its Roman name: emphyteusis, jus in agro vectigali, comes from the fact that in Rome it was applied almost exclusively to state and public lands given for private use; The subject of this right now are, for the most part, individual economic establishments, such as farms, mills, etc. accessories and plots of large estates. This right, in its formal form, has not found a place in the system of Russian civil law, although its essence corresponds to the indefinite use of state-owned land by peasants or the transfer of quitrent articles for long-term maintenance 295. 2) Superficies are also an indefinite or long-term right to use someone else’s land for construction, and a building erected on someone else’s land, or a part, for example, one floor of such a building. The annual usage fee is technically called solarium. In essence, this right is not much different from the perpetual hereditary use of land. In the system of the latest legislation, this right does not constitute a special category. 3) Easements or duties lying on an estate are of two types: either personal, established in someone else’s estate in favor of a known person, or real, established in one estate in favor of another estate; in the latter case, one is considered dominant, and the other is obliged (praedium dominans, praedium serviens). The main and most significant type of personal servitude is usufruct, which will be discussed in detail elsewhere. Real or real servitudes are all distinguished by either a negative or positive property: some impose on the subordinate or obligated estate the obligation to refrain from positive action (serv. in non faciendo); others - the duty to endure, to allow positive action on the part of the dominant (in patiendo). In other cases, for example, the serving party does not have the right to erect this or that structure, cut through windows, etc. In other cases, the dominant party receives the right to certain actions relating to someone else's property; for example, the right to open windows onto someone else’s dacha, adjoin buildings, drain water, participate in the use of someone else’s pasture, forest, build a road through someone else’s property, etc. In Roman law there was an important, but now almost lost importance, division of easements into urban and rural (serv. praediorum urbanorum et rusticorum). There is another difference, constant and essential, the difference between servit. continuae et apparentes and servit. discontinuae et non apparentes. It is in other cases that an easement is continuous, when the benefit of using it is continuous: for example, the right to water supply, drainage, etc. (S. continua). In other cases, use is not continuous, but depends each time on the action of the will, according to need (S. discontinua) - for example, the right of passage, the right of pasture, watering, etc. Other easements are obvious (s. apparentes), i.e. express their action in some external structure, for example, in breaking through a door, window, etc. Others are implicit or hidden (s. non apparentes), for example, the duty not to erect a building or not to erect it above a certain measure. In many German legislations, the so-called land duties (Reallasten) are adjacent to the easement system; this includes duties in favor of the owners, remaining in many places on peasant plots, personal and monetary; and, in addition, the so-called obligatory consumption (Zwangs und Bannrechten), for example, the obligation to purchase supplies, grind grain, take beer (Mahlzwang, Bierzwang) in establishments known only to the dominant fiefdom. German legislation distinguishes various types of such duties (Zehnten, Erbgüten, Zinsen, Bannpflichten, Frohndpflichten, Erbpflichten). This subject was developed in more detail in Prussian legislation; but since 1848, significant changes have followed in many legislations on this subject, and many of the ancient rights of this kind have either been completely destroyed or have been put up for ransom. Easements of all kinds are established both by acts of unilateral will and by agreement. Austrian law absolutely requires the inclusion of easement rights in the land register; Prussian law requires this only in the case where the easement is not one of the new and constantly visible ones. It happens that the owner of two estates establishes a similar duty in one of them in favor of the other. As long as the ownership of both estates is concentrated in one person, such service depends on the will of the owner and does not yet constitute an servitude, according to the rule: nemini res sua servit; but when estates are divided among the heirs of the original owner, or transferees from him, the question arises: Should the charge remain on the subject estate as an easement? Roman law allowed this only in the case of a positive decree in the will of the first patrimonial owner. French law allows in such a case the silent, unspoken establishment of an servitude - permanent and explicit, on the assumption that when dividing estates, the economic distribution of accessories constitutes the law for each estate (C. civ. 692. La déstination du père de famille vaut titre à l'égard des servitudes continues et apparentes). The right to an easement can also be determined by the prescription of possession, within the same period as required for the property. French law (C. civ. 690, 691) allows for a long 30-year period on this subject and applies prescription only to obvious and permanent easements, for only in this case can one point to a material sign of permanent, uninterrupted possession; but German legislation allows for the operation of prescription in servitudes that are not obvious and impermanent. Easements are terminated: 1) by the union of both estates in one person by right of ownership; 2) refusal; 3) destruction of the subject of duty itself, for example, a building; 4) the passage of time. For the application of limitation, it is necessary that the service for a certain period of time remains uninterrupted without use (non usus); but in some types of servitudes it is required not only the absence of use on the part entitled to the right, but, in addition, on the other side, guilty or obliged, a continuous consciousness of freedom from service during the same period (libertatis usucapio). It is in Roman law that this last condition is required for easements relating to buildings, in French law for all easements associated with permanent and obvious use (C. civ. 706–708), in Austrian law it is required for the application of the shortest 3-year limitation period. In such cases, therefore, the mere inaction of the dominant party is not enough: it is also necessary that, as proof of the consciousness of the obligated party, a positive action or statement should follow from it or from the opposite party, incompatible with the servitude, denying the obligation. None of the latest legislation has developed the system of easements with such diligence and with such completeness as in the Italian code of 1865. And the previous Italian legislation (especially the Sardinian code) was distinguished by its completeness and certainty in this part of the law; In the new code, a special effort is noticeable to combine in the law everything necessary to meet the needs of industry, home and agriculture: most remarkable are the articles related to water law. In the system of Baltic civil law, two entire sections of the second book (Articles 1089–1334) are devoted to the doctrine of easements and land duties (Reallasten). The rules on easements are drawn primarily from Roman law. Easements are divided into real and personal. The Roman division into rural and house property was retained in the real property. Rural easements include: 1) road (the right to a footpath, a cattle drive and a road); 2) easement for pastures and pastures; 3) easement for haymaking; 4) water easement (the right to a water supply system, to draw water and to drink water); 5) right of entry; 6) beekeeping easement. House easements include: 1) the right to erect a building on a neighbor’s buildings; 2) adjacent logs; 3) block a neighbor with your building; 4) remove the drain; 5) pour out slops; 6) let in light and protect the view. Personal easements include the right of use or usufruct, ordinary and extraordinary (quasi ususfr.), and the right of residence (habitatio). The rules for establishing easements are based on the Highest approved opinion of the State Council of 1862. Easements (except for general legal restrictions) are established by a court verdict on division, for equalization of shares, and by private orders, by agreement or by will. The acquisition of an easement through prescription is not permitted. An easement does not enter into force as a property right until it is entered into the land registers. The methods for terminating easements according to Baltic law are as follows: abdication - the combination of rights and obligations in one person - destruction of the thing - the occurrence of a termination condition - redemption of the easement, which is allowed only by mutual agreement - finally, prescription, using the above-mentioned Roman rule about libertatis usucapio. Some easements are not subject to prescription, namely the right of residence, the periodic rather than permanent right of use, the right of access to a cemetery, easements in the state forests of Courland and easements of peasant plots in Livonia and Estland. Land duty, according to Baltic law, is the obligation to constantly serve monetary, natural or personal burdens on real estate and inseparable from it. Such duty passes to any acquirer of the property subject to it; can be established either for the benefit of property or for the benefit of a person, and in the latter case can be transferred by him to another person. The owner of obligated property may, by leaving it, be freed from duty; and the co-owners are responsible for the duty by mutual guarantee. Land duties are established either by law or custom, but are not acquired by prescription. It can also be established by an act of private will, but in this case it becomes valid for third parties only with entry into the land registers. Conscription entered in such books is not subject to limitation; In general, the right to urgent payments or obligations is terminated if there has been no demand for 10 years (in Courland 5 years). Other ways to terminate the obligation: coincidence in one person, a new contract or renunciation on the part of the claimant, and destruction of real estate (Ostz. Law. Civil. 1297–1319). A special type of land tax comes from the transfer of real estate for perpetual hereditary use for an annual quitrent. The perpetual holder uses the estate as (dependent) property, i.e. has the right of possession, a patrimonial claim and a claim for possession. He can sell his right, but the supreme owner is given priority to purchase it. He cannot oblige the land, but he can oblige the building erected on it with easements and mortgages. In the event of a penalty in payment of quitrent for two or three years, the quitrent right goes on sale at public auction. Thus, a relationship arises corresponding to the above-mentioned bifurcation in the same property of the right of ownership into the supreme and the subordinate (Obereigenthum and Nutzeigenthum). Ostz. Citizen law, 1324–1334. § 58. Restrictions on property rights according to Russian laws - economic restrictions, according to the property and position of the estate. The right to share in the benefits of another's property. Roadside and coastal duty. Seashore. Shoreline. Special restrictions on property rights by type and mutual relationship of property. Types of these restrictions. 1. Water law. Legal relations arising from the use of water. The origin of water law and its history. New codes. Relations of coastal owners in Russia and the properties of these relations. Mill law and floods. Resolutions of the current legislation. Local customs. 2. Right of neighbor. Restrictions for adjacent owners. 3. The right of passage and passage through someone else's dacha. General remarks on our legislation on this subject I would like to address the restrictions existing in our legislation that are important for civil law. They establish, firstly, general participation in the benefits of other people's property for the benefit of everyone without withdrawal. The owner of a dacha should not prevent anyone from passing or driving not only on large, but also on small country roads through his dacha. Charter Put. Message Art. 889-892 prohibits the digging, building over, plowing, or otherwise damaging of roads and the transfer of tracks from one place to another. An exception is allowed, with the knowledge of the police, only in the case of animal death or a special economic need of the owner, but so that the new road is not built along someone else's dacha, not at a great distance from the old one, so that it is no worse than the old one, not with a long detour, and so that the beginning and end are on the old road. Rule 448 Art. Zach. Gr. about the right of the owner to pass and pass to his lands and industries, as expressed, has a general meaning: i.e. that such an owner cannot be denied passage and passage through other people's dachas. In this sense, the rule was established by the editors of the Code, but the quotations given under the article establish it in a completely different sense: they all relate exclusively to the purpose and size of roads for travel when surveying dachas. In the case of Boguslavsky Citizen. Cass. The department explained that the land under large roads, forming part of the estates through which the roads pass, belongs to the owners of these estates, but their ownership of the land under the roads is not complete, limited in use, possession and disposal by the right of participation of the general (Zak. Gr., art. 433); therefore, the owners do not have the right to such use that violates the inviolability of the high road as a means of communication (dec. 1882, No. 90; cf. decision 1889, No. 6). In the decision of the Senate of 1868 (Cass. decision N 399) it was recognized that the definition of peace. judges granting peasants the right to travel on roads through someone else's dacha in only one direction so that the road is no wider than 3 arshins violates the force of Articles 449 and 450. Zach. Gr. Until 1867, Art. 436 was in force. Zach. Gr., according to the meaning of which, those passing and driving cattle along large roads had the right to use not only the grass growing along the road, but, at a certain time, also the meadows on both sides of the road. For this purpose, private owners of such meadows should not have locked them before Trinity Day, but they could unlock them no later than the first of September along the main road for a mile and along the country road for half a mile. Also, if the meadows were already mowed and the grain was harvested from the arable land, then everyone could freely use them without paying to feed livestock. But in 1867, Art. 436 Zach. Gr. canceled completely (P.S.Z., N 45017). See Art. 572 Est. Put. Communication, Uk. 1865 P.S.Z., N 41979, on the right of grazing in the fields of general crop rotation in non-demarcation. estates of the South Western Region. Another 290 st. Est. Lesn., ed. 1893, by virtue of which Kalmyks, during wintering in loans belonging to state-owned and landowner villages, are allowed to cut reeds and collect dead wood and dried wood for fuel. A similar rule for the Kyrgyz is in Article 297. About permission to collect moss and lichens free of charge in state forests. Est. Lesn., st. 327. Along the banks of raftable and navigable rivers, as well as along lakes and floods, where there is shipping or a supply of timber and firewood, a ten-fathom strip of land is allocated from the owner's dacha along the river for a towpath, for towing traction of ships and rafts, and for other navigation needs. On navigable and raftable rivers, the towpath is based on the word of the law (Put. Messages, 359) 296. On waterways that are floated only temporarily, with the help of arriving water, and the towpath is temporary in the form of a path, which can be expanded to 2 fathoms where necessary, by order of the Minister of Communications (Statute of Put. Communications, Art. 359, supplemented by Ext. 1893) This strip of land is for the common use of those passing and passing, so that the use of the owner himself must give way to this use (Constitution p. p. 350, 362 and 438); and if the owner’s own establishment has caused the towpath to become damaged, then he undertakes to correct it. There should be no buildings here. The towpath strip is excluded from the total account of the dacha during land surveying. The management and supervision of the towpath depends on the management of communications; but the maintenance of the towpaths is distributed between the treasury and the owners. It is the treasury that has the responsibility to maintain only artificial towpaths, i.e. cut and trimmed along artificial canals and sluice waters; in populated areas, the maintenance of embankments or towpaths is the responsibility of these areas; then the rest of the towpaths are maintained at the expense of zemstvo duties. In cities, towns and trading villages, where there is a need, part of the towpath is turned into sites for the construction of piers, which are given by urban or rural societies, or landowners, at auction, for maintenance to shipping companies (Const. Put. Commun., Art. 365 according to Cont. 1893). The construction of a steamship pier on the coastal towpath is permitted only for a fee in favor of the coastal owners (cf. Cass. decision 1879, No. 284). But the collection of fees from shippers by the coastal owner (city of Samara) for storing goods on the towpath was declared illegal by the Senate, contrary to the rule of Art. 365. Est. P. Message Cass. decide 1880, N 275. Since the law does not deny the ownership rights of coastal owners to the towpath, when alienated, its owners are not deprived of the right to compensation (State Sov.). Cass. decide 1881, No. 96. The right to use the towpath does not belong to everyone who wants it and not for every need, indifferently, but only for the purposes of the legal industry or timber industry, in accordance with Articles 358, 359 and 365. Est. P.S. – Therefore, it has been declared illegal to use a towpath to store firewood for factory needs. 1878, N 259. Coastal owners, from whose lands a certain legal area was allocated for a natural towpath, i.e. under a towpath running along naturally formed waters (rivers and lakes), they are not deprived of their rights to this space of land, but are only limited in their use and this restriction is positively expressed in Art. 438. X vol. I part and 358 art. Est. Put. Message Any widespread interpretation of these articles would be inconsistent with the exact meaning of them; therefore, the construction of a ferry by the owner of the opposite bank or, in general, by another outsider, cannot be allowed, without the consent of the owner of the shore. 1873, N 860. Based on the rules of XII volume of the Constitution. Put. Message the stretches of towpaths are left free from any fees, duties and excises for the benefit of societies, cities, owners or the treasury, for whatever reason. This right is explained and repeated in Art. 358, 386 and 387, and then in Art. 388 it was decided that exceptions from the said rule can only be allowed by the Highest Will, i.e. according to the Highest granted benefits to a city, person or class. If there is a lake in the dacha, in which fishing belongs to someone else or is left for free fishing, the coastal owners must leave 10 fathoms on the shores for shelter for fishermen and drying gear (441), but besides this purpose, which exclusively concerns the duty, industrialists do not have the right to derive from the provided space any other benefits, which can only be used by the owner of the land (Collected Sen. Resolution II, N 509). Does the duty specified in Art. 441 extend? Zach. Gr. and to the sea shores, consisting of private owner's dachas? The literal meaning of the law does not extend, for the law speaks only of lakes, and not of seashores. True, in Ort. landscaping Cossack. Sat down. there is an article (351) declaring, for the Sea of ​​Azov, that “the sea shores, even if in connection with the owner’s dachas, belong to everyone in general engaged in fishing on the high seas, who can build temporary establishments on those shores to preserve their fish, and the owners should not interfere with them,” but this rule applies exclusively to the coastal owners of the region of the Don Army and constitutes a special law of the Cossack situation. In addition, in the 1865 Charter on the Caspian fisheries (see Ust. Selsk. Khoz., ed. 1893) it was stipulated that throughout the entire space provided for free fishing, the seashores, even if they were in private ownership, should remain free for 1 mile for shelter and establishments; but this is also a rule of a special law, and, moreover, in the decree by which the Charter was approved, it is proposed to reward private owners for this strip as for property leaving them for public benefit. Therefore, this rule is exceptional. In general, since the law does not express direct restrictions on the right of ownership of privately owned seashores, this right should be recognized as complete. This interpretation is also supported by judicial practice. (See the cases of Tolstoy, Olive and Popov in 1st Ob. Sobr. Sep. 1870) Coastal owners on navigable rivers should not establish such establishments that could interfere with free navigation, for example, they should not build mills, dams, fences and other partitions, from which the rivers are littered and made inconvenient for navigation (438. Establishment of the Agricultural Ed. 1893, art. 277, 278, 330, 331). On small but navigable rivers, owners should not build bridges on trestles, poles or weak piles; but they can either build permanent bridges, which would not interfere with the rafting of logs and firewood, or maintain drawbridges, living bridges and carriages (Z. Gr. 440). Finally, on some rivers, for example, those flowing into the Volga between Rybinsk and Tver, the owners of mills, in the case of shallow water, are obliged to release water at the request of the authorities of the railways (439 Art. Gr. Zak.; 130, note, according to Prod. 1893, Establishment of Put. Commun.). In 1878, temporary rules for navigation on inland waterways were issued, approved by the Minister of Transport. For the Mariinsky system, it was decided: coastal residents are strictly prohibited from keeping fish cages and lake boats on the canals (Poln. Sobr. Zak., N 58817 § 92). See also uk. 1879 (Poln. Sobr. Zak., N 59410) on the gradual closure of floating mills on navigable rivers in Ts. Polsky. The Law of 1892 stipulated that when treasury funds are used to maintain river beds in good condition and convenient for navigation, the department of railways is allowed to arrange tree plantings and other structures within the towpath necessary to improve the river beds and strengthen the banks, and to use forest material from these plantings for straightening work. Secondly, regardless of these general restrictions on property rights, established for the benefit of the general, restrictions are established in favor of certain, specific persons. These restrictions, like the first ones, stem not from personal relationships and obligations, but from the real properties of the property and from the territorial relations in which one property relates to another. These restrictions relate to three main subjects: 1) water law; 2) to the right of neighborhood; 3) to the right of passage and passage. 1. Water law. Flowing water in the middle of a privately owned dacha is part of private property, but due to the properties of water, power over such property cannot in any way be complete, unlimited power in the same sense as power over land. Water, moving from one dacha to another, is communicated from one owner to another in a continuous flow. From source to mouth, the inextricable cohesion of its parts is constantly renewed and maintained. Every change and delay above is immediately felt and produces a similar effect below, and conversely, every change below is immediately communicated to the upper parts; finally, any change in the flow of water, an increase or decrease in its level, has an effect on the banks. This natural property of water gives it, as a subject of law, a very special legal meaning. Through flowing water, coastal dachas along its entire length enter into the necessary mutual connection, so that common interests and common restrictions, mutual rights and mutual obligations in relation to water arise between the owners of the banks. The right to water is essentially a right limited by the interest that the same water has for other coastal owners. Hence, there is a constraint on coastal owners in using water and in establishing establishments along its banks that operate by the power of water. Wed. Cass. decide 1875, N 332. Water has a diverse and very important significance for the material interests of man in many respects. Such are, for example, the interests of agriculture, industry, trade; Water is needed to protect property. In other cases, it is necessary to take advantage of the beneficial, productive, driving force of water; in others, it is necessary to ward off the harmful effects of water, strengthen the banks from it, drain it in case of accumulation, drain the land from it for economic purposes. But due to the nature of water, one owner cannot always dispose of it for his own interest without affecting the interests of other owners, for whom the same water is important, perhaps in a different respect. Hence there are frequent clashes of mutual interests in relation to water, between partners in its use. This competition and clash can only be brought to unity and agreement when each of the interested parties has a clear consciousness of not only their own interest, but also the rights and responsibilities associated with it. Sooner or later the time comes for this consciousness to be expressed in law. There is no tangible need for it as long as there is no living movement in agriculture, industry and trade. But as this movement intensifies, as natural products and forces emerge from dormancy, come into circulation and acquire a determinative value, the interests associated with them become more complex and varied, and it becomes necessary to define by law the mutual rights and obligations of owners in relation to water. In Italy, earlier than in other European countries, proper agriculture appeared; in Italy, earlier than anywhere else, attempts appeared to establish rules on the use of water. The latest research has discovered traces of water law among the ancient Etruscans; and several passages in the writings of the Roman classics show that the Romans did not leave this important subject unattended. With the decline of agriculture in Italy, under the emperors and with forced cultivation of the land, the development of water law could not be expected. But in the Middle Ages, agriculture in Italy achieved remarkable development. The main drivers of this work were the monasteries that filled all of Italy. In the monastic economy, drainage and irrigation of land became a matter of first importance; for this purpose regular ditches were made and considerable construction was undertaken. Under the influence of the monasteries, water law reached significant development in Italy in the 11th, 12th and 13th centuries. Many local charters of water law appeared, and all of Italy was covered with societies or partnerships of landowners, formed for the irrigation and drainage of lands and for the construction of safety dams (consorzi d'acque). Venetian law is distinguished by the greatest completeness and development in this regard; The Venetian statute on water, published in the 16th century, is still considered exemplary of its kind. Italy is rightly called the birthplace of water law, and Italian statutes have served as the main source of European water legislation, especially since the time when foreign rule was established in Italy - first the French, then the Austrians, and the full charter of water law was issued in 1814 by the Austrian government for the Lombardo-Venetian kingdom. Recently, especially in Germany, legislation has turned to the development of water law; Everywhere they began to supplement and bring to unity the previous fragmentary rules on the use of water or to re-issue entire statutes. The more they began to pay attention to the development of agriculture and care about its success, the more the government’s activity on this subject intensified. Prussia set an example in 1811 with the mill water statute; this statute, after many attempts, was followed from 1843 to 1853 by detailed statutes on the rights of bank owners, on dams, on the drainage and irrigation of lands, and on partnerships of owners for the wire and diversion of water. The water statutes of the Grand Duchy of Hesse, Baden, Saxe-Weimar, the Kingdom of Hanover and Saxony date back to the 40s and 50s, and in more or less detail define the legal relations of the owners among themselves and to the state in the use of water. But the most complete statute on water was published in 1852 in Bavaria. Bavarian law set itself the task of systematically combining in its statutes and completely resolving all the issues that arose in practice and could be foreseen. In all these statutes, the state government grants itself extensive rights to intervene in private relations connected with the use of water, and puts under its control waters in private ownership: this concept of water was expressed most strictly and consistently in the Saxon statute. In France there is no complete, general statute on water law; but there are quite a few separate decrees on this subject, starting from the 17th century. Following the publication of the civil code, which contains several articles on water and water duties, legislation paid special attention to that part of water law, which consists in connection with a subject of particular importance for agriculture in France - the drainage of swamps, which has long been the concern of the French government. The drainage of swamps is directly declared a state matter, which can and should be carried out even against the will of private owners. The latest laws on this subject in France date back to 1847, 1855 and 1856, and the most important of them is the law on drainage: each owner is given the right to draw ditches for this purpose through other people's dachas, who must in any case bear such a duty for the required remuneration. In Russia, legislation has barely touched upon this subject, which is so economically important. It touched him as much as it turned out to be necessary in the state in which our agriculture was and still is. It is not surprising that from the publication of the Code to our time, our law has paid attention almost exclusively to the relations of coastal owners arising from the construction of mills and the flooding of meadows. This is the most common relationship in our everyday life, and at the same time the most important cases of conflict between owners over water. Everyone knows that the uncertainty of these relations and the extreme slowness and vagueness in resolving disputes on these subjects constitute one of the disasters threatening the rural owner in Russia. Our rivers are lined with mills of unequal strength and design; each mill requires a certain level of water necessary for it to operate; agreement on this subject is necessary between neighboring millers; but such an agreement almost never happens. As the water level of the dam rises, the water above rises and floods the shore lands of the upper owners. From here will be born countless, continuous disputes between millers and coastal owners. In our law, there has long been a rule “that the owner of the land and meadows lying at the top of the river has the right to demand that a neighbor does not raise river water with dams, does not flood his meadows and arable land, and does not stop the operation of his mill,” therefore, the owner of the bank or both banks does not have the right to build or rebuild a dam when this causes flooding for the upper owners. This rule, which is completely consistent with justice, would be quite sufficient if the environment in which the authorities through which it should be applied to the case presented the possibility and convenience of its application. But in our present situation, the correct and fair application of a fair law is extremely difficult, not to say impossible. With the exception of mills, either completely insignificant or built extensively, on a huge scale, we do not have almost a single old mill that could not withstand the processes of flooding and rising water; there is not a single level that could be determined and restored with complete certainty. Judicial courts are filled with litigation about the flooding of lands and mills, and these litigation, almost more than all others, represent a vast field for arbitrariness, precisely because of factual uncertainty: that is why litigation of this kind almost never ends completely and is ready to be resumed every time with the onset of the next spring or autumn. This should not be attributed to darkness or the incompleteness of the law, but to completely different reasons. The beginning of the law is firm, but to apply it in the event of a dispute requires thoroughness and speed in decision. Is there a flood? To what extent? What exactly is the reason for this? Does the event that serves as its cause relate to a violation of law, and to what extent? – These are the main questions that are distributed in such cases between the investigator and the judge. There are no direct answers to these questions in this provision, or the answers are formal or unclear. The resolution of all these questions is complicated by the special properties of the subject to which they relate. Under existing climatic and topographic conditions, our waters are highly variable, and this change depends on a variety of natural causes. But artificial causes are added to natural causes and mixed with them - raising water through mechanical buildings and reconstructions, which are done mostly arbitrarily, outside of any control, sometimes secretly or feignedly. In order to recognize all these reasons in each case and determine which of them and to what extent should be recognized as decisive, this requires, in addition to close acquaintance with the area, with the nature of the river and its banks, also technical knowledge, which we generally need; timeliness is absolutely required in the investigation, which must be carried out precisely at that moment and under those natural conditions under which the phenomenon occurred that gave rise to the complaint. This minute has passed, a decisive change in the weather has occurred, a different time of year has arrived, a new, barely noticeable, perhaps to an outsider, change has taken place in the design of the factory mechanism - and the investigator will have to carry out his experiment under different conditions, encounter phenomena completely different from those that occurred during the alleged violation or flood. This investigator often has to travel to a place from afar and wait until other cases, other studies are completed: several months will pass, and he will have to wait for the time of year and weather conditions for a convenient study, and then other obstacles may arise; This is how the investigation of an event sometimes drags on for a year or more, which, having happened, for the most part leaves no visible traces of what once happened. Under such conditions, it is difficult to expect fidelity in the study; even less can one count on its correctness if, as most often happens, the research is carried out by an official who, no matter how experienced in other respects, has no idea about the area under study and is completely unfamiliar with the technology and methods of mill production. The completed investigation goes to court and passes through all judicial authorities from the county to the capital. In court cases, the assumption of the validity of the judgment about the correctness of the decision usually increases as the case ascends to the highest authority; but in cases of this kind, the opposite assumption should rather be made: capital judges, no matter how extensive their legal knowledge is, no matter how solid and tested legal logic they have, for the most part are least able to disassemble and explain to themselves the everyday side of the case about which they must judge: they are completely unfamiliar with the area in which the case arose, and for the most part have no information at all about its technical part, do not have the simplest concepts about it, known not only to the miller, but also to the common man. villager. Finally, one way or another, the matter is decided. But the court decision in these cases rarely receives such firmness in reality that it could serve as a firm support for the parties and as a guarantee against further confusion and disputes on the same subject. A decision about the law has been stated, but this decision will certainly be incorrect and deceptive if the factual conditions that were assumed and formed the basis for the judgment about the case are incorrect, deceptive and shaky. Often, as soon as a few months have passed, a new proceeding about water and flooding arises, investigation begins again, the case again goes to court, despite the final decision and those gagged pillars that are placed to indicate the normal water level: it happens that these indicators of water law change their appearance as imperceptibly as the design of the water mechanism changes. Meanwhile, during the research, persecution and throughout the entire complex production, floods continue, the water level changes in every way, the quarrels of the owners become more complicated, new complaints are filed and new knots are tied in the never-ending litigation, and it is not difficult to imagine how the interests of agriculture suffer from all this. The need for new, more definitive regulations on water law arose in our country only in some areas, due to the special conditions of local agriculture - namely in the Crimea, where a special committee on this subject was formed in 1838, and in Livonia, where at the Landtag of 1850 a draft charter on water was drawn up. The Baltic Sea project, considered in the Ministries of Internal Affairs and State Property, was published in the 3rd book of J.M.G.I., 1861. It is unknown whether it was given legislative movement. Recently, an extensive regulation on the use of water in the Transcaucasian region has been published (Collected Uzak. 1891, No. 97). Based on this provision, the right of owners to water, when it extends beyond the boundaries of one property, is limited by the right of participation of other owners in the use of water for irrigation, drinking, household needs of the population and watering places, as well as for water-operating and industrial establishments. The right to use irrigation water is recognized as belonging to the ownership of land and therefore cannot be assigned separately, apart from this ownership; it is certified by a special certificate issued by the water inspector; The certificate determines the amount of water use, i.e. the share of water provided for use, the very procedure for use is established by the verdicts of meetings of participants in the use. When water in natural reservoirs decreases or increases, the amount of water released to partners also changes. Everyone who uses water from irrigation canals and water pipelines participates with personal labor or money in the costs of maintaining and managing water structures. Acts of strengthening water rights are entries from the book of statements recognized by the water district of water use rights. Land owners are obliged, for a fee, to pass through their land water that is necessary for irrigation and other needs of the population, as well as to pass excess water from irrigated lands. To remove water, everyone who has the right to use the water is allowed to adjoin the dam to other people's banks, with compensation from the owner of the bank and with proper permission. Land allocation for canals and other structures is also carried out for remuneration of the owners, according to the rules on expropriation. Owners are given the right to demand the purchase of the site if the proposed water flow makes it impossible to use it. The right to water is lost if the canal or water pipe, through the fault of those to whom it belongs, remains unused for five years. The management of irrigation waters is entrusted to a water inspector appointed by the Ministry of Agriculture and State Property, and the management of irrigation systems belongs to hydraulic engineers. In addition, to resolve certain irrigation issues in Tiflis, a congress of hydraulic engineers is held once a year, chaired by a water inspector. Waters are divided into districts, which are formed from the waters of a river or other reservoir that serves to feed one irrigation system; The affairs of the district are managed by a council of elected representatives of partners in the use of water in the district (magal), a district elder (mirab), ditch supervisors (juwars) and water chiefs. All of them are determined by choice. For improper or negligent performance of duties, water district officials are subject to fines, which are applied to the irrigation needs of the district. Regardless of the above regulations, the Transcaucasian Regulations on the Use of Waters have a number of temporary rules for determining the currently existing rights to use irrigation water. These rights are determined by special presences - district and main; Of these, unresolved cases regarding water use rights pending there are also transferred from judicial places to the first. Here are the general restrictions that exist under water law in our legislation. During rafting, the waters of the rafting river must be used for the general benefit (Constitution P. Communications 82, Laws Gr. 434, 438). The owner of lands and meadows lying at the top of the river has the right to demand that the neighbor does not raise river water with dams and does not flood his meadows, arable lands, roadways and fords, and does not stop the operation of his mill (442 Law. Gr. Establishment. Rural. Economic ed. 1893, art. 23, appendix II: art. 33; Establishment of construction. T. XII part I, art. 506, 507; Cass. 1875, N 754) 297. If the bank belongs to different owners, then the owner of one bank, when building a mill, does not have the right to adjoin the dam to the bank of the opposite owner without his consent. If consent is given, then the right arises by agreement (442), freely or from payment. But each owner enjoys bank rights and the river to the middle. Therefore, everything adjacent to the shore within the boundaries of natural possession appears to be the property of the one to whose shore it is adjacent. So, if a mill were built on one bank, and its dam was attached to the other, and a dispute arose between the coastal owners about who owned the mill as an indivisible property, then in this case the law gives preference to the right of the party to which the mill building is attached, and the other party is given the right to demand payment for the connection, if it has not lost this right ten years ago (443). Article 442 is the subject of determining the rights of participation in the use of river water and river banks of all riparian owners in general. It allows the owners of non-navigable rivers to make dams so that the lower ones do not flood the upper ones, but the upper ones cannot deprive the lower ones of this right by changing the natural flow of river water. Cass. decide 1875, N 332; 1881, N 84. 1885, No. 34. In the case of Kokoreva, Civil. Cass. Dept. on the question to what height the owner of the dacha below has the right to raise water in the river, I found that, according to the exact meaning of Art. 238 ch. X Code of 1649, on which Article 442 is based. Zach. Citizens, the right of owners to demand a decrease in water can arise only in the case when the resulting rise in water results in damage to arable land or hay fields lying near the banks of the river, and since such damage can only occur when the river overflows its banks from an artificial rise of water, therefore any other demand for a decrease in water, when it has not left the river bed, cannot be satisfied. 1874, N 27; N 823. The exact meaning of Art. 442 and 443. Volume X, Part I shows that in order to recognize the existing right of private participation in the use of the shore of an outside dacha, there must be an agreement or voluntary agreement between the owners of opposite coastal dachas, allowing one to adjoin the dam to the land of the other, free of charge or for a certain benefit. Regarding the use of water by temporarily obliged peasants in the dacha from which the allotment was made to them, in Art. 102 Places Pos. for the Great Russian provinces on February 19, 1861 it was said: in addition to the unhindered use of water for household, economic and industrial needs, peasants can use water within the boundaries of their allotment, for constructing dams and reservoirs, for carrying water to their estates and fields, for installing mills on rivers (except for navigation) driven by the flow of water, without constructing dams, and for constructing small non-trade enterprises necessary for economic needs. piers and transportation. On this basis and