Preliminary Address on the First Draft of the Civil Code
Having reviewed all that pertains to persons, we turned to property.
There are different kinds of property; there are different modes of acquiring and disposing of it.
Property is divided into moveable and immoveable property. This is the most general and most natural division.
The immoveable property of every country is jointly owned by its inhabitants. Thus far, most States have had laws to deter foreigners from acquiring their lands. Exploitation of the latter requires the presence of the master. This type of wealth therefore belongs to each particular State. But moveables, such as coin, banknotes, bills of exchange, shares in banks or companies, vessels, all goods, belong to the entire world, which, in this connection, constitutes a single State to which all societies belong. The nation that owns the most of these moveables is the richest. Each State acquires them through the export of its goods, through the labour of its factories, through the industry and discoveries of its merchants, even through chance.
The distinction between immoveable property and moveable wealth gives us the idea of purely civil things and commercial things. Moveable wealth falls within the scope of commerce; immoveables fall specifically within the scope of civil law.
There are, however, moveables that are considered immoveables, because they can be regarded as dependencies or appurtenances of tenements and other civil things.
In the former regime, the distinction between privileged and non-privileged persons, nobility and commoners, resulted, in terms of property, in a host of distinctions that have disappeared and cannot be revived.
It might be said that things were classified the same as persons. There was feudal and non-feudal property, servant property and free property. None of that exists any longer. We have retained urban servitudes and rural servitudes, made indispensable by the coming together of men, and deriving from the obligations and considerations that alone can make society possible.
In speaking of the different kinds of property, we have distinguished mere use from usufruct, and usufruct from ownership. We have listed the various types of income and entitlements that may enter into an individual's patrimony.
The rules that we have established on these different subjects, the particulars of which need not be presented here, are consistent with what the practice has always been. We changed or modified only those that no longer bore any relation to the current state of affairs, or whose weaknesses had been shown by experience.
Contracts and successions are the main means of acquiring what one does not yet have, and of disposing of what one does have.
With regard to contracts, we first elaborated the principles of natural law that are applicable to everyone.
We then discussed the forms in which contracts must be written drawn up.
The written instrument is, in all civilised nations, the natural proof of contracts. However, in accordance with all previous laws, we allow testimonial evidence in cases where there is a commencement of proof in writing. This commencement of proof in writing is not even necessary in commercial transactions, which are often concluded at the Stock Exchange, in the public square, or in a casual conversation.
As a rule, men must be able to deal freely in whatever is of interest to them. Their needs draw them to each other; their contracts multiply according to their needs. There is no legislation in the world that could determine the number and diversity of the agreements to which human affairs are susceptible. Hence this multitude of contracts known, in Roman laws, as innominate contracts. The freedom to contract can be limited only by justice, by good morals, by the public interest.
But it is precisely when it comes to setting these limits that difficulties arise in every quarter.
There are subjects on which justice shows itself clearly. For example, a partner wants to share in all the profits of a company without sharing in the risks: the claim is appalling. One need not seek outside such a pact an inequity accomplished by this pact's very terms. But there are matters on which the question of justice is complicated by other questions, often unknown to jurisprudence. Thus, it is in our acquired knowledge of agriculture that we must look for the justice or injustice, the utility or danger, of certain clauses or pacts stipulated in farm leases. It is our knowledge of commerce that has ended our interminable debates about the interest-bearing loan, the monopoly, the legitimacy of conditions attached to shipping contracts, and a number of other similar subjects. It has become clear that, in these matters, the question of law or morals is subordinate to the question of computations or administration.
Money is the mark of all worth; it procures all that yields profit or bears fruit. Why, then, would he who is in need of it not pay for its use, just as he pays for the use of everything he needs? Like all other things, money can be given, loaned, rented, sold. The annuity with loss of capital is an alienation; the loan with interest is a rental; the permitted free-of-charge use of a sum of money is a simple loan; the bounty with no stipulation of interest and no expectation of return is a donation. The donation and the loan are generous acts; but rental and selling are not at all unjust acts.
In order for the affairs of society to go well, money must have a price; otherwise, there would be no lenders, or, to be more precise, there would be lenders, but they would know how to make up for the ineptitude of the laws with sham stipulations, and exact a very steep price for risking the offence. Usury has never been more appalling than when interest has been prohibited. In forbidding something honest and necessary, one merely debases those who engage in it, and makes them dishonest.
If money must have a price, then this price also must not be too high. Moderate interest for money encourages all useful enterprises. It gives landowners who want to cultivate new crops the well-founded hope of obtaining assistance at a reasonable price. It puts merchants and manufacturers within reach of successfully competing with foreign industry.
The relationships that determine the price of money are independent of government. Governments can never hope to set the price by means of imperious laws. Nevertheless, legal interest has been adopted for mortgage contracts and for all public acts. It was not thought that, in ordinary civil matters, where relationships can be assessed with some certainty, the rate of interest ought to be left to the disparities of avarice, to the private schemes and lax morals of moneylenders. But independent of the legal interest that regulates civil order, there is in commerce a current interest that cannot be subject to a constant and specific law.
We have not touched on the setting of legal interest. This rests with the government alone; and the measures the government can take in this regard must not be precipitated.
The legal interest can only be respected to the extent that it is in harmony with the money rate in commerce. Right now, thousands of known reasons disrupt this harmony. Peace, in giving a new boost to commerce, in reducing the expenditures of the State, and in putting an end to the forced dealings of the government, will restore equilibrium and return affairs to the bosom of probity.
Civil laws can, however, prepare for this happy revolution by giving money-lenders a measure of security so that they are content with a moderate recompense. Thus, institutions that inspire confidence, sound rules about the joint or several liabilities of sureties, sensible laws that ensure the stability of mortgages and that, by simplifying the proceedings of creditors against debtors, make them swifter and less costly, are very apt to maintain this activity of circulation that so greatly affects the interest rate and the national prosperity.
What is certain is that the interest rate is the pulse of the State; it indicates all the maladies of the political body. Moderation in this rate is the clearest indication of true wealth and public good fortune.
Money governs the price of all other things, both moveable and immoveable. This price is a function of the relative abundance or scarcity of money compared with the relative scarcity or abundance of the things or goods one buys. It cannot be set by rules. The broad principle in these matters is to give free rein to competition and freedom.
Before the use of money, all dealings of a society were transacted by simple loan or by barter. Since money has come into use, one has proceeded by sale, by purchase, and by numerous activities that constitute what we call the commerce of civil life, and to which we have assigned the main rules governing them.
The routine commerce of civil life, reduced solely to the engagements contracted between individuals brought together by mutual needs and certain conventions, must not be confused with commerce in the strict sense, whose function is to bring together nations and peoples, to provide for the needs of the universal society of men. Such commerce, whose workings are nearly always linked to the grand designs of administration and politics, must be regulated by specific laws, which have no place in the plan of a civil code.
The spirit of these laws differs fundamentally from the spirit of civil laws.
Of course, in civil matters, as in matters of commerce, there must be good faith, reciprocity and equality in the contracts. But to ensure this good faith, equality and reciprocity in the agreements, it would be wrong to apply the same reasoning to civil matters as is applied to matters of commerce.
One would do very well, for example, to exclude from matters of commerce actions for recovery, because such matters turn on moveables that circulate rapidly, leave no trace, and whose identity it would be virtually impossible to verify and recognise. One could not, however, except unjustly and absurdly, refuse to allow actions for the recovery of property in civil matters, nearly all of which pertain to immoveables that have a fixed location, that can be traced to the few hands through which they pass, and that, because of their permanence, make possible, even easy, such examination as the interests of justice may require.
In commerce, rescissory actions for injury of more than half the fair price have never been allowed, because the mobility of commercial things, the risks, the uncertainties, the unforeseen circumstances that surround commercial transactions do not permit such actions. In the time of paper money and the fairly rapid deterioration of this paper, rescissory actions were abolished even in civil matters, with good reason, since these matters were as mobile and uncertain as matters of commerce. But today we thought it ought to be restored, because justice can, without unfavourable consequences, reassert itself, and private contracts are no longer threatened, as they once were, by the disorder of public affairs.
In commerce, where the greatest fortunes are often invisible, it is the person rather than the property that is followed. Hence the pledge, the mortgage, are virtually unknown in commerce. But in civil matters, where it is the property rather than the person that is followed, there is a need for mortgage laws, that is, laws than can give property all the desired security. The precautionary measures must not, however, be excessive. Our last laws in this regard are extreme, and the political good, like the moral good, always lies somewhere between two extremes.
Excessive governance is bad governance. A man who has dealings with another man must be watchful and wise. He must watch out for his own interest, obtain the appropriate information, and not disregard what is useful. The function of the law is to protect us from the fraud of others, but not to excuse us from using our own reason. If it were otherwise, a man's life, under the vigilance of laws, would be but a long and shameful infancy, and this vigilance would itself degenerate into inquisition.
It is another principle that laws, made to prevent or repress the wickedness of men, must display a certain frankness, a certain candour. If one starts from the notion that it is necessary to ward off every evil and abuse of which a few people are capable, then all is lost. The conventions will be multiplied to infinity, the protection granted citizens will be ruinous, and the remedy will become worse than the ill. Some men are so wicked that, in order to govern the masses with moderation, one must imagine the wickedest of men to be better than they are.
These principles seem to have been wholly forgotten when drafting our most recent laws governing mortgages.
Certainly, men must not be allowed to deceive each other in their dealings together; but some room must be left for trust and good faith. Disquieting and injudicious conventions lose credit but do not extinguish fraud; they overwhelm but do not protect. We in fact became convinced that our last laws in this regard could only paralyse all the affairs of society, put a strain on all interested parties, through disastrous procedures, and, with the apparent aim of protecting the mortgage, would merely be apt to compromise it. We thought it necessary to return to a less suspicious and more moderate system.
We cannot delude ourselves as to the real origin of the laws governing the protection of mortgages. This origin is entirely fiscal, as is the origin of laws governing the control or registration of various civil acts. We know that finance can form a sound alliance with legislation, and that the interest of taxation can be profitably joined with that of law and order. But let us be careful, let us always be wary that, in these alliances, the interest of legislation or law and order is not sacrificed for that of taxation. For example, registration is one of those tax institutions that offer the good of finance and the good of citizens. It ensures the truthfulness of contracts and acts between individuals; but it ceases to be useful, it even becomes harmful, when it becomes excessive. Excessive fees prompt men, always more stirred by a present benefit than a future danger, to become confident through avarice, and to compromise their security by oral or hidden agreements that cannot guarantee it. It is a great ill also when registrar's fees, whether moderate or excessive, are perceived too contentiously; that is, when the levying of these fees is linked to the thorniest questions of jurisprudence, and the bailiff or farmer can, owing to this mysterious obscurity, exercise the most dangerous of powers. What we say about registration applies to the mortgage code. In all these institutions, let us avoid subtleties. Let us not multiply the onerous precautions. Let us seek to reconcile the interest of taxation with that of legislation. Experience shows that, in the areas concerned, an excess of fees means fewer are apt to be collected, and taxation cannot do harm to the citizen without doing harm to itself.
We have kept those salutary reforms which, since the Revolution, have been implemented with respect to sales of immoveables. These sales are no longer hampered by that multitude of entitlements, of statutory redemptions, that had the dreadful disadvantage of leaving, for one or more years, the sold property with no assured owner, to the great detriment of agriculture. But we thought excessive the proscription, on the pretext of eliminating the slightest traces of feudalism, of the perpetual lease and the ground rent lease, which have never been feudal contracts, which encouraged landclearing, which engaged large landowners to sell holdings they could not cultivate with care, and which gave farm labourers, whose labour was their whole fortune, ready means of becoming landowners. We could not, however, ignore the considerable disadvantages that would attach to the wholly particular and very complex legislation such contracts always required, and we have left to the wisdom of the government the question of whether it is appropriate to bring it back.
Marriage contracts occupy a special place in the proposed civil code.
We allowed the greatest latitude to these contracts, which bind families, which form new ones, and which contribute so much to the propagation of men.
The system of dowry was the system of countries of written law. Community was the custom in countries of customary law.
Spouses will be free to form, in this regard, by their agreements, any particular law they deem appropriate.
When there is no particular agreement, the spouses will have community of property.
We have determined the benefits they can extend to each other. We have adhered to the spirit of the matrimonial partnership, which is the most agreeable and necessary of all partnerships.
As for other contracts, we confined ourselves to outlining the common rules. In this regard, we will never transcend the principles that have been passed down to us since time immemorial, and which came into being with the human race.
That part of the civil code devoted to establishing the order of successions seemed no less important to us.
Is the law of succession based in natural law, or merely in positive laws? The system that ought to be put in place depends on the solution to this major problem.
Man is born with needs; he must be able to feed and clothe himself. He therefore has a right to the things necessary for his subsistence and his maintenance. This is the origin of the right of property.
No one would have planted, sown or built, had estates not been divided, and had each individual not been assured of peaceably owning his own land.
The right of property in itself is therefore a direct institution of nature, and the way in which it is exercised is an accessory, a development, a consequence of the right itself.
But the right of property ends with the life of the owner. Consequently, after the death of the owner, what will become of his goods, which his death has left ownerless?
Common sense, reason, the public interest, do not permit their abandonment. There are powerful grounds of expediency and equity for leaving them to the owner's family; but, strictly speaking, no one member of this family can lay absolute claim to them. How will they be distributed among the children, and, if there are no children, among the next of kin? Will one sex be favoured over the other? Will preference be accorded to primogeniture? Will natural children and legitimate children be treated the same? If there are no children, will all collaterals be summoned without distinction, regardless of their degree of kinship? Will testamentary capacity be recognised? Will it be proscribed, or merely limited?
In all of these matters, the intervention of the State is indispensable, for a person must be given and guaranteed the right of succession, and the means of distribution must be determined. With respect to goods left ownerless upon the death of the owner, one sees, first of all, no other right, strictly speaking, than that of the State. But make no mistake; this right is not, and cannot be, a right of inheritance. It is merely a right to administer and govern. The right to succeed to private fortunes has never been among the prerogatives attached to public authority. And we see, in Tacitus' Life of Agricola, that one has always cursed as tyrants those Roman emperors whom one was forced to appoint heir to a portion of one's estate, in order to ensure they would not become usurpers of some other portion. The State therefore does not inherit; it is brought in only to determine the order of successions.
It is necessary that such an order exist, just as it is necessary that there be laws. The right of succession in general is therefore a social institution. But all that pertains to the method of distributing successions is merely political or civil law.
Political law, which disregards private considerations when it has some broader design in mind, is guided more by the reason of State than by a principle of equity. In contrast, civil law, whose principal function is to regulate rights and conventions among individuals, is more inclined towards equity than towards the reason of State.
The Romans' first rules governing successions were guided by political law: these rules also contained provisions that seem strange to us. Lands were distributed evenly; the desire was to maintain, as far as possible, the equality of this distribution. Hence, daughters destined to enter, through marriage, into foreign families, could inherit nothing from their own families. A female only child inherited nothing. These regulations are unjust and repugnant, when considered in the light of civil reason.
Similarly, it is political law that inspired our old French customs, all relating to the spirit of the monarchy, which wants distinctions, privileges and preferences everywhere.
The last laws of Rome, collected in Justinian's compilation, are drafted wholly with a view to propriety and natural equity. The succession of fathers and mothers devolves in equal shares upon all children, without regard to sex, and, where there are no children, to the next of kin.
Unless a nation finds in its particular situation powerful grounds for following political reason, it would do well to be guided by civil reason, which offends against no one, which prevents rivalries and hatred within families, which propagates the spirit of fraternity and justice, and which more firmly upholds the overall harmony of society.
In these recent times there has been much inveighing against testamentary capacity. And in the system of our new French laws, this capacity had been so restricted that it very nearly no longer existed.
We agree that no man has, through a natural and innate right, the power to command after his death, and to live on, as it were, through a will. We agree that it is up to the laws to establish the order or manner of succession, and that it would be derisory and dangerous to allow each individual the unlimited capacity to arbitrarily undo the work of laws.
But ought laws, which can govern only by general, constant and absolute principles, not leave something to the arbitration of the citizen, owing to the changing circumstances of life? Is the power a testator derives from the law not the power of the law itself?
Is it fitting to deprive a man, in his final moments, of the tender commerce of kindnesses? Will an old and infirm collateral languish without relief or resources, if those he might gather around him are without expectation? What will become of the bond of distant kinship if it is not strengthened by other bonds? Ought the self-interest that so often divides men not be used to advantage, when possible, to bring them closer together and unite them?
Ought not domestic virtues, paternal authority, family government be given sanction? If one fears there may be unjust fathers, why would one not fear there may be corrupt sons? Depending on a family's circumstances, might not the equal distribution of property among the children itself produce the most monstrous inequalities? Among the working classes of society, what child will resign himself to joining his labour with that of his noble progenitors, if he does not anticipate some reward for his troubles, and if he risks being deprived of the fruit of his own industry? And what will become of craftsmen, of farmers, if, in their old age, they are abandoned by all those to whom they have given being? Moreover, are there not fortunes whose distribution needs to be guided by the wise purpose of the father of the family?
No doubt we have done well, for the freedom of circulation and for the good of agriculture, to proscribe those absurd substitutions that subordinate the interests of the living to the whims of the dead, and whereby, through the will of the past generation, the current generation is continually sacrificed for the generation to come. It is prudent to subject testamentary capacity to rules, and to give it bounds. But it must be retained and allowed some latitude. When the law, in matters so intimately related to all human affections as this, permits men no freedom, men work only to evade the law. Disguised liberalities, simulations, will replace wills if testamentary capacity is forbidden or too restricted, and the most horrible frauds will be perpetrated within even the most honest of families.
In intestate succession, the representation of collaterals, pushed too far, goes against good sense. It summons strangers, at the expense of closer kin. It extends the relationships of bounty beyond all presumed relationships of affection. It leads to interminable disputes about the status of persons, and absurd divisions in the distribution of property. It is injurious to all notions of justice, propriety and reason.
The favour of marriage, the maintenance of good morals, the interest of society, want natural children not to be treated the same as legitimate children. Moreover, it goes against the order of things that the right of succession, which is considered, by all civilised nations, not a right of citizenship, but a right of family, could come within the competence of persons who are doubtless members of the citizenry, but whom the law, which establishes marriages, cannot recognise as members of any family. They must only be guaranteed, to an equitable degree, the relief humanity solicits for them. In vain does one claim for them the rights of nature. The right of succession is not a natural right; it is merely a social right wholly regulated by political or civil law, and it must not act against the other social institutions.
Such are the basic principles that have guided our writing of the proposed civil code. Our aim has been to link morals to laws, and to propagate the spirit of family, which is so favourable, whatever one might say of it, to the spirit of citizenship. Sentiments grow weak as they become generalised. Some natural hold is required in order to form conventional bonds. Private virtues alone can guarantee public virtues, and it is through the smaller fatherland of the family that one forms an attachment to the greater fatherland. It is good fathers, good husbands, good sons who make good citizens. Now, it is essentially up to the civil institutions to sanction and protect all the honest affections of nature. Will the outline that we have drawn of these institutions fulfil the purpose that we set ourselves? We request some indulgence of our humble work in consideration of the zeal that sustained and encouraged it. We will doubtless fall short of the honourable expectations held out for the results of our mission. But we are consoled by the fact that our errors are not irreparable. Serious discussion, enlightened debate, will correct them; and the French nation, which has won liberty with arms, will protect and affirm it with laws.
Signed Portalis, Tronchet, Bigot-Préameneu, Maleville.
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