Hence, if
some other person were to come forward and prove by documentary
evidence a prior right of property in the thing, nothing would
remain for the putative new owner but the advantage which he has drawn
as a bona fide possessor of it up to that moment. Now it is frequently
impossible to discover the absolutely first original owner of a
thing in the series of putative owners, who derive their right from
one another. Hence no mere exchange of external things, however well
it may agree with the formal conditions of commutative justice, can
ever guarantee an absolutely certain acquisition.
Here, however, the juridically law-giving reason comes in again with
the principle of distributive justice; and it adopts as a criterion of
the rightfulness of possession, not what is in itself in reference
to the private will of each individual in the state of nature, but
only the consideration of how it would be adjudged by a court of
justice in a civil state, constituted by the united will of all. In
this connection, fulfillment of the formal conditions of
acquisition, that in themselves only establish a personal right, is
postulated as sufficient; and they stand as an equivalent for the
material conditions which properly establish the derivation of
property from a prior putative owner, to the extent of making what
is in itself only a personal right, valid before a court, as a real
right.
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