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 The Arrangement of the Law ownership.

The part of the law that

deals with property must consider both

permissive and protected rights. The permissive rights of normal property are the right to possess (jus possidendi) and the right to use.

The

latter is capable of subdivision into rights to use in various ways, including rights to take fruits and commit waste. The right to possess is indivisible, but

two persons may have it at the same time, when the right of one is precarious, as in case of most gratuitous bailments.

The protected r'ghts are the right of possession (jus possessrbnis), which is

violated by any physical contact with the thing or by any one else having possession, and the right in the physical condition of the thing, which is violated by any change in that condition. The value of a thing is not a part of the con tent of the property right in it, but of a diﬁerent right, as will be explained hereafter. The protected rights exist only for the purpose of making the per missive ones available; therefore, though

the owner of a. thing has all the pro tected

rights,

a

person

having

an

inferior property right has only so much of the protected right as is necessary for his use.

The holder of an easement,

for instance, having no permissive right to possess, has no protected right of possession, and his right in the physical condition of the land is only in its condition so far as that will aﬁect his use. The same is true of an owner who is a mere reversioner; he may sue only

for a permanent injury which will aﬂect his future use. (4) The right of pecuniary condi

503

loss, or loss of a protected chance, vio lates the right.

This right has not obtained clear recognition in our law, having been generally confounded with the right of property. It is important to distinguish it as a separate right, because the duties

that correspond to it are fewer than those that correspond to property rights; in other words, there are many kinds of conduct which are breaches of duty, which if they cause injury to property will be torts but will not be if they merely cause pecuniary loss. Some confusion has come into the law from overlooking this distinction. A person's right of pecuniary condition is a single right of a general nature; but he has a separate property right in each sepa rate thing that he owns. The right of property in a thing relates to its posses sion and physical condition, not to

its value; this right to its value only. The right comprises no permissive rights. The law protects a person's rights by imposing duties on others. A duty is the legal situation of a person whom the law commands or forbids to do an act. The act is the content of the duty. A permissive right is the absence of a duty. Now since what the law does not command or forbid it permits, it

would seem at ﬁrst sight as if it were not necessary to take any account of

permissive rights separately, that when duties had been all deﬁned the permis sive rights would appear as the result. In strictness of theory that is so; and indeed the greater number of permissive rights would not in a systematic arrange ment of the law call for any separate

tion. The content of this right is the total value of all a person's belongings, including certain chances of making

mention. But in the case of property rights it is practically much more con venient to deﬁne the permissive rights

acquisitions. There is some confusion in our law as to what chances of this kind are protected. Any pecuniary

directly,

to

say

what

an

owner,

a

tenant for years, a bailee or the holder of an easement may do with the thing,