The judgement from the standpoint of
natural right will be determined by regard to the inner rational
quality of the thing, and will run thus: "Loss arising from damage
accruing to a thing lent falls upon the borrower" (casum sentit
commodatarius); whereas the sentence of a court of justice in the
civil state will run thus: "The loss falls upon the lender" (casum
sentit dominus). The latter judgement turns out differently from the
former as the sentence of the mere sound reason, because a public
judge cannot found upon presumptions as to what either party may
have thought; and thus the one who has not obtained release from all
loss in the thing, by a special accessory contract, must bear the
loss. Hence the difference between the judgement as the court must
deliver it and the form in which each individual is entitled to hold
it for himself, by his private reason, is a matter of importance,
and is not to be overlooked in the consideration of juridical
judgements.
39. III. The Revindication of what has been Lost.
(Vindicatio).
It is clear from what has been already said that a thing of mine
which continues to exist remains mine, although I may not be in
continuous occupation of it; and that it does not cease to be mine
without a juridical act of dereliction or alienation.
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