Principles of the Civil Code

Jeremy Bentham

Part 1

Objects of the Civil Law.

Chapter 16

Of Forced Exchanges.

``According to Xenophon, Astyages once asked of Cyrus an account of his last lesson: There was, said he, in our school a great boy, who, having a little coat, gave it to one of his companions who was of small stature, and took from him his coat, which was larger: our master having made me the judge in this quarrel, I decided that things should be left as they were, and that the one and the other would thus be better accommodated in this respect: upon which he showed me that I had decided wrongly, for I had only considered what was fitting, whilst I ought, in the first place, to have provided for what was just, which would not allow any one to be forced with regard to what belonged to him.'' Montaigne's Essays, Book 1. ch. 24.

Let us see what ought to be thought of this decision. At the first glance it seems that a forced exchange is not contrary to security, provided that an equal value is received. How can I have lost in consequence of the law, if, after it has had its full effect, the mass of my fortune remain the same as before? If one has gained, without another having lost, the operation appears good.

No: it is not. He whom you consider to have lost nothing by the forced exchange, has really experienced a loss. As all things, moveable and immoveable, may have different values to different persons, according to circumstances, every one expects to enjoy the favourable chances which may augment the value of any part of his property. If the house which Peter occupies is of greater value to Paul than to Peter, this would not be a good reason for gratifying Paul, by obliging Peter to give it up to him, for what might be of the same value to him. This would be to deprive Peter of the natural benefit which he might have expected to derive from this circumstance.

But if Paul should say, that for the benefit of peace, he has offered a price above the ordinary value of the house, and that his adversary only refuses from obstinacy; it may be replied to him, This surplus, that you pretend to have offered, is only a supposition on your part: the contrary supposition is just as probable: for if you have offered more than the house is worth, he would have hastened to seize so fortunate a circumstance, which might never recur, and the bargain would have soon been concluded to his satisfaction: if he does not accept it, it is a proof that you have been deceived in the estimation you have made, and that if you take his house from him, upon the conditions you have proposed, his fortune will be injured, if not with reference to what he possesses, at least with reference to what he has a right to require.

No, replies Paul; he knows that my valuation is higher than any he can expect in the ordinary course of things: but he knows my necessity, and he refuses a reasonable offer, in order to derive an abusive advantage from my situation.

The following principle may serve to remove the difficulty between Peter and Paul. Things maybe distinguished into two classes: those which have commonly only an intrinsic value, and those which are susceptible of a value in affection. Ordinary houses, a field cultivated in an ordinary manner, a stack of corn or hay, the common productions of manufactures, appear to belong to this first class. To the second may be referred a pleasure garden, a library, statues, pictures, collections of natural history. As to objects of this kind, the exchange ought never to be forced: it is not possible to appreciate the value that the feeling of affection may give them. But objects of the first class may be subjected to forced exchanges, if this be the only method of preventing great losses. I possess in my estate considerable value, to which I can only go by a road which borders on a river. The river overflows and destroys the road: my neighbour obstinately refuses me a passage over a strip of land which is not worth one hundredth part of my estate: ought I to lose all my benefit, from the caprice or the enmity of an unreasonable man?

But to prevent the abuse of so delicate a principle, it would be proper to lay down strict rules. I say, then, that exchanges may be forced, in order to prevent great loss; as in the case of land rendered inaccessible, unless a passage is taken across that of a neighbour.

It is in England that all the scruples of the legislator in this respect should be observed, in order to understand all the respect which ought to be borne to property. Is a new road to be opened? In the first place, an act of parliament is necessary, and all the parties interested are heard: afterwards the assignment of an equitable indemnity only to the proprietors is not considered sufficient; but with regard to objects which may possess a value in affection, such as houses and gardens, they are protected against the law itself by being recognised as exceptions.

These operations may also be justified, when the obstinacy of an individual, or a small number of persons, is manifestly injurious to the advantage of a great number. It is thus that the inclosure of commons in England is not stopped by certain oppositions, and that, for the convenience and salubrity of towns, the sale of houses is often forced by law.

The question discussed here relates only to forced exchanges, and not to forcible removals; for a removal which should not be an exchange---a removal without an equivalent, were it even for the profit of the state, would be a pure injustice, an act of power devoid of the softening necessary to reconcile it with the principle of utility.

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