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The confusion of personal right with real right may be likewise
shown by reference to a difference of view in connection with
another contract； falling under the head of contracts of hiring （B II。
I）； namely； the contract of lease （jus incolatus）。 The question is
raised as to whether a proprietor when he has sold a house or a
piece of ground held on lease； before the expiry of the period of
lease； was bound to add the condition of the continuance of the
lease to the contract of purchase； or whether it should be held that
〃purchase breaks hire；〃 of course under reservation of a period of
warning determined by the nature of the subject in use。 In the
former view； a house or farm would be regarded as having a burden
lying upon it； constituting a real right acquired in it by the lessee；
and this might well enough be carried out by a clause merely indorsing
or ingrossing the contract of lease in the deed of sale。 But as it
would no longer then be a simple lease； another contract would
properly be required to be conjoined； a matter which few lessors would
be disposed to grant。 The proposition； then； that 〃Purchase breaks
hire〃 holds in principle； for the full right in a thing as a
property overbears all personal right； which is inconsistent with
it。 But there remains a right of action to the lessee； on the ground
of a personal right for indemnification on account of any loss arising
from breaking of the contract。
EPISODICAL SECTION。 The Ideal Acquisition of External
Objects of the Will。
32。 The Nature and Modes of Ideal Acquisition。
I call that mode of acquisition ideal which involves no causality in
time； and which is founded upon a mere idea of pure reason。 It is
nevertheless actual； and not merely imaginary acquisition： and it is
not called real only because the act of acquisition is not
empirical。 This character of the act arises from the peculiarity
that the person acquiring acquires from another who either is not yet；
and who can only be regarded as a possible being； or who is just
ceasing to be； or who no longer is。 Hence such a mode of attaining
to possession is to be regarded as a mere practical idea of reason。
There are three modes of ideal acquisition：
I。 Acquisition by usucapion；
II。 Acquisition by inheritance or succession；
III。 Acquisition by undying merit （meritum immortale）； or the
claim by right to a good name at death。
These three modes of acquisition can； as a matter of fact； only have
effect in a public juridical state of existence； but they are not
founded merely upon the civil constitution or upon arbitrary statutes；
they are already contained a priori in the conception of the state
of nature； and are thus necessarily conceivable prior to their
empirical manifestation。 The laws regarding them in the civil
constitution ought to be regulated by that rational conception。
33。 I。 Acquisition by Usucapion。
（Acquisitio per Usucapionem）。
I may acquire the property of another merely by long possession
and use of it （usucapio）。 Such property is not acquired； because I may
legitimately presume that his consent is given to this effect （per
consensum praesumptum）； nor because I can assume that； as he does
not oppose my acquisition of it； he has relinquished or abandoned it
as his （rem derelictam）。 But I acquire it thus because； even if
there were any one actually raising a claim to this property as its
true owner； I may exclude him on the ground of my long possession of
it； ignore his previous existence； and proceed as if he existed during
the time of my possession as a mere abstraction； although I may have
been subsequently apprized of his reality as well as of his claim。
This mode of acquisition is not quite correctly designated acquisition
by prescription （per praescriptionem）； for the exclusion of all
other claimants is to be regarded as only the consequence of the
usucapion； and the process of acquisition must have gone before the
right of exclusion。 The rational possibility of such a mode of
acquisition has now to be proved。
Any one who does not exercise a continuous possessory activity
（actus possessorius） in relation to a thing as his is regarded with
good right as one who does not at all exist as its possessor。 For he
cannot complain of lesion so long as he does not qualify himself
with a title as its possessor。 And even if he should afterwards lay
claim to the thing when another has already taken possession of it； he
only says he was once on a time owner of it； but not that he is so
still； or that his possession has continued without interruption as
a juridical fact。 It can； therefore； only be a juridical process of
possession； that has been maintained without interruption and is
proveable by documentary fact； that any one can secure for himself
what is his own after ceasing for a long time to make use of it。
For； suppose that the neglect to exercise this possessory activity
had not the effect of enabling another to found upon his hitherto
lawful； undisputed and bona fide possession； and irrefragable right to
continue in its possession so that he may regard the thing that is
thus in his possession as acquired by him。 Then no acquisition would
ever become peremptory and secured； but all acquisition would only
be provisory and temporary。 This is evident on the ground that there
are no historical records available to carry the investigation of a
title back to the first possessor and his act of acquisition。 The
presumption upon which acquisition by usucapion is founded is；
therefore； not merely its conformity to right as allowed and just； but
also the presumption of its being right （praesumtio juris et de jure）；
and its being assumed to be in accordance with compulsory laws
（suppositio legalis）。 Anyone who has neglected to embody his
possessory act in a documentary title has lost his claim to the
right of being possessor for the time； and the length of the period of
his neglecting to do so… which need not necessarily be particularly
defined… can be referred to only as establishing the certainty of this
neglect。 And it would contradict the postulate of the juridically
practical reason to maintain that one hitherto unknown as a possessor；
and whose possessory activity has at least been interrupted； whether
by or without fault of his own； could always at any time re…acquire
a property； for this would be to make all ownership uncertain （dominia
rerum incerta facere）。
But if he is a member of the commonwealth or civil union； the
state may maintain his possession for him vicariously； although it may
be interrupted as private possession； and in that case the actual
possessor will not be able to prove a title of acquisition even from a
first occupation； nor to found upon a title of usucapion。 But； in
the state of nature； usucapion is universally a rightful ground of
holding； not properly as a juridical mode of requiring a thing； but as
a ground for maintaining oneself in possession of it where there are
no juridical acts。 A release from juridical claims is commonly also
called acquisition。 The prescriptive title of the older possessor；
therefore； belongs to the sphere of natural right （est juris naturae）。
34。 II。 Acquisition by Inheritance。
（Acquisitio haereditatis）。
Inheritance is constituted by the transfer （translatio） of the
property or goods of one who is dying to a survivor； through the
consent of the will of both。 The acquisition of the heir who takes the
estate （haeredis instituti） and the relinquishment of the testator who
leaves it； being the acts that constitute the exchange of the mine and
thine； take place in the same moment of time… in articulo mortis…
and just when the testator ceases to be。 There is therefore no special
act of transfer （translatio） in the empirical sense； for that would
involve two successive acts； by which the one would first divest
himself of his possession； and the other would thereupon enter into
it。 Inheritance as constituted by a simultaneous double act is；
therefore； an ideal mode of acquisition。 Inheritance is
inconceivable in the state of nature without a testamentary
disposition （dispositio ultimae voluntatis）； and the question arises
as to whether this mode of acquisition is to be regarded as a contract
of succession； or a unilateral act instituting an heir by a will
（testamentum）。 The determination of this question depends on the
further question； whether and how； in the very same moment in which
one individual ceases to be； there can be a transition of his property
to another person。 Hence the problem； as to how a mode of
acquisition by inheritance is possible； must be investigated
independently of the various possible forms in which it is practically
carried out； and which can have place only in a commonwealth。
〃It is possible to acqu