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THE 
 
 SWISS CIVIL CODE 
 
 OF DECEMBER 10, 1907 
 (Effective January 1, 1912) 
 
 TRANSLATED BY 
 
 ROBERT P. SHICK, A.M., LL.B. 
 
 MEMBER OF THE PHILADELPHIA BAR 
 ANNOTATED BY 
 
 CHARLES WETHERILL, A.B., LL.B. 
 
 MEMBER OF THE PHILADELPHIA BAR 
 CORRECTED AND REVISED BY 
 
 EUGEN HUBER, Dr. Jur., Rer. Pub. et Phil. 
 
 LAW PROFESSOR. UNIVERSITY OF BERNE 
 
 ALFRED SIEGWART, Dr. Jur. 
 
 PROFESSOR OF SWISS LAW, UNIVERSITY OF FREIBURG 
 
 GORDON E. SHERMAN, Ph.B., LL.B. 
 
 MEMBER OF THE NEW YORK AND NEW JERSEY BARS 
 
 BOSTON, U.S.A. 
 
 THE BOSTON BOOK COMPANY 
 
 1915 
 
/^^; 
 
 Copyright 1915 
 
 BY THE COMPARATIVE LAW BUREAU OF THE 
 AMERICAN BAR ASSOCIATION 
 
 The Riverdale Press, Brookline, Boston, Mass. 
 
OFFICIAL PUBLICATION 
 
 OF 
 
 THE COMPARATIVE LAW BUREAU OF THE 
 AMERICAN BAR ASSOCIATION 
 
 (FOREIGN CIVIL CODE SERIES) 
 
FOREWORD 
 
 When the Comparative Law Bureau was inaugurated in 
 August, 1907, as a branch of the American Bar Association, 
 the final draft of the Swiss Civil Code had already attracted 
 the attention of legal scholars on both sides of the Atlantic. 
 The publicity given its preparation revealed the high mastery 
 of its author, Professor Eugen Huber, Dr. Jur., rer. publ. et 
 phiI.,of the University of Berne, in dealing with and mould- 
 ing into a practical yet scientific whole a multitude of ancient, 
 local, contradictory and seemingly irreconcilable customs and 
 statutes, cantonal and federal, which had in the course of 
 centuries culminated in conditions no longer tolerable by 
 an enlightened people. The gigantic and truly remarkable 
 product of that great Master Mind in Jurisprudence was 
 unanimously adopted without amendment in December, 
 1907, by the National Council and the Council of the States, 
 to become effective on January 1, 1912, unless rejected by 
 referendum. So well known and popular had the work be- 
 come that no referendum was demanded and for the first 
 time Switzerland was endowed with a common federal civil 
 law. 
 
 Lawyers in this country who had observed the progress of 
 this codification could not overlook the many features of simi- 
 larity between the Swiss conditions and those difficulties our 
 various systems of legislation arid jurisprudence have long 
 presented and which in time will demand some like remedy. 
 The matter being precisely within the field of the Compara- 
 tive Law Bureau, a member of its Editorial Staff, the late 
 Charles Wetherill, Esq., of the Philadelphia Bar, proposed 
 that the Bureau publish an English translation of the Code. 
 In 1908 the work was begun; Robert P. Shick, Esq., of the 
 
VI FOREWORD 
 
 Philadelphia Bar undertook the text. He was peculiarly 
 qualified for the task by a thorough academic training, evi- 
 denced by his Princeton University degrees of A.B. and A.M., 
 his grounding in the common law at the Law School 
 of Harvard University, where he received the degree of 
 LL.B., and his years of active practice, and also by his famil- 
 iarity with Germanic law, which he studied at the University 
 of Berlin, retained by subsequent researches. Mr. Wetherill 
 assumed the burden of the annotations, comprising cross-refer- 
 ences to other systems and sources of legislation. He was 
 especially fitted for this because he had given comparative 
 legislation much study for several years and had accumu- 
 lated a large amount of useful data. 
 
 Dr. Huber was communicated with and generously 
 offered to correct and revise the translation and lend any 
 other aid in his power. He suggested that while the official 
 code was adopted in German, French and Italian versions, 
 the first would be the most satisfactory for the translation 
 by reason of the facilities of comparison with Wang's trans- 
 lation into English of the Imperial German Civil Code and 
 Schuster's doctrinal treatise and commentary on that Code and 
 basic Germanic civil law, whereby a uniformity of terminology 
 could be maintained. This suggestion was adopted and the 
 work proceeded, although but slowly, owing to the laborious 
 detail of the annotations and the time required for communi- 
 cating with Dr. Huber and his examination of the text as it 
 was translated. Later the proof-sheets had to be sent him and 
 opportunity given for revision by him and Professor Alfred 
 Siegwart, Dr. Jur., holding the Chair of Swiss Law at the 
 University of Freiburg, who graciously assisted him in the 
 work of reading the entire text and annotations. The dis- 
 interested labors of these two eminent scholars not only con- 
 stitute a most flattering compliment to this Bureau, the 
 American Bar Association and the Bar of this country in 
 general, but reveal a highly gratifying international fellow- 
 ship in our profession. 
 
 In order that our work might have the benefit of an inde- 
 pendent and final revision by one versed both in the Com- 
 mon Law and the legislation of Switzerland, Gordon E. Sher- 
 
FOREWORD VU 
 
 man, Esq., Professor of Comparative and International Law 
 at Yale University and a member of the New York and New 
 Jersey Bars, at the request of our Board of Managers, reviewed 
 the entire work and assisted materially in deciding doubtful 
 points of terminology to the end that the translation might 
 be at once accurate, in conveying the meaning of the original, 
 and amply suggestive to the American lawyer by the terms 
 employed. 
 
 This English translation therefore is presented after more 
 than six years of labor by Dr. Huber, Professor Siegwart, Mr. 
 Shick, Mr. Wetherill and Mr. Sherman, whose generous joint 
 gift to this Bureau permits publication in our own tongue of 
 the latest codification of a federal nation's laws which has 
 been said to be "the realization of the ideal of democratic 
 legislation." 
 
 W. W. Smithers, 
 
 Secretary Comparative Law Bureau. 
 
COMPARATIVE LAW BUREAU 
 
 OFFICERS 
 
 Director 
 SIMEON E. BALDWIN, New Haven, Ct. 
 
 Treasurer 
 EUGENE C. MASSIE, Richmond, Va. 
 
 Secretary 
 WILLIAM W. SMITHERS, Philadelphia, Pa. 
 
 Assistant Secretary 
 ROBERT P. SHICK, Philadelphia, Pa. 
 
 MANAGERS 
 
 ANDREW A. BRUCE, Grand Forks, N.D. 
 EDGAR H. FARRAR, New Orleans, La. 
 STEPHEN S. GREGORY, Chicago, III. 
 FRANK B. KELLOGG, St. Paul, Minn. 
 FREDERICK W. LEHMAN, St. Louis, Mo. 
 WILLIAM DRAPER LEWIS, Philadelphia, Pa. 
 FREDERIC D. McKENNEY, Washington, D.C. 
 ROSCOE POUND, Cambridge, Mass. 
 JOHN H. WIGMORE, Chicago, III. 
 
HISTORICAL INTRODUCTION 
 
 Henry Chaud6, LL.D., of Paris, has, in his "Le Nouveau 
 Code Civil Suisse dans I'ceuvre de la codification modeme" 
 [Librairie Nouvelle de Droit et de Jurisprudence, Arthur 
 Rousseau, Editeur, 14 rue Soufflot, et rue TouUier 13, Paris 
 (1909)] written a most excellent introduction for a proper 
 understanding of the historical significance of the Swiss Civil 
 Code, and a translation of the major part of his "Introduc- 
 tion Historique" is made use of here for the like purpose. 
 
 It is known that the Swiss Confederation is composed 
 to-day of twenty-five cantons or semi-cantons (nineteen can- 
 tons and six semi-cantons) which, under a reservation of con- 
 siderable exceptions which we will point out, have in principle 
 each its own legislation. But if in the restricted circle of 
 cantonal limits Switzerland long since entered into the general 
 work of codification, so far as the Confederation is concerned it 
 is only since thirty years ago that it has participated therein. 
 Cantonal codification was the first stage of redaction of the 
 Swiss Law, and never without the preparatory elements fur- 
 nished by it could the federal codification have been realized 
 so happily. 
 
 We have already had occasion to point out the influence 
 of our Civil Code in the part of Switzerland called French- 
 speaking Switzerland. Introduced in Geneva, at the time 
 when the Genevan territory made a part of France, it has 
 been maintained there since 1815, the epoch when Geneva 
 became a Swiss canton, down to our time, and it is the most 
 ancient of Swiss codes. It has undergone since 1815 some 
 modifications, due to the special laws upon guardianship, 
 pledges, etc. Our code has likewise remained in force in the 
 Bernese Jura. 
 
X HISTORICAL INTRODUCTION 
 
 Several cantonal codes are plainly imitations either of the 
 French Civil Code, or perhaps of its successors, i.e., the 
 subsequent revisions which governed the various states of 
 Italy before its unification. The Vaudois Code, the second 
 in Switzerland in order of date, is in greater part but a copy 
 of the French Code. Nevertheless, it has kept in certain 
 matters, as guardianship, matrimonial regime as to goods, 
 and successions, the provisions of the ancient local customs. 
 
 The Fribourg Code, promulgated in fragments from 1834 
 to 1849, presents, despite its division into five books in 
 imitation of German Codes, great similarity to the Vau- 
 dois Code and consequently to our Code. There can be 
 found therein, nevertheless, such a local institution as "joint- 
 tenancy between brothei;s and sisters and their descendants," 
 which is ignored in the canton of Vaud. 
 
 The Code of Neuch&tel, drafted by M. Piaget and promul- 
 gated in 1855, reproduces likewise a great number of the 
 articles of the Code Napoleon. The matrimonial law and 
 the law of pledges are in it original matter. The Code of 
 Valais of 1854 prepared by M. Cropt and revised in 1871, 
 has imitated the French Code under the form derived from 
 the Sardinian Code. The Code of Tessin of 1838, revised in 
 1874, has imitated it, after the Code of Parma, and it has 
 likewise kept the principles of Austrian law along with the 
 principles of French law. It is the only Swiss Code published 
 exclusively in Italian. 
 
 Such is the group of French-speaking cantons of western 
 and middle Switzerland, where prevail the Roman ideas 
 and which all have been in good time provided with a codi- 
 fied law. Their respective legislations, in the domain of 
 private law, reveal the same origin and a general community 
 of principles, but also with differences numerous and marked 
 from one canton to the other. 
 
 As to the cantons of the German language and where 
 prevail the German ideas, the diversity and the confusion 
 of legislation are even greater. It is, however, possible to 
 distinguish three principal groups. 
 
 In the first group may be placed the small cantons of 
 central Switzerland, living by the raising of cattle, very de- 
 
HISTORICAL INTRODUCTION xi 
 
 voted to the Catholic religion, who have no codified legislation 
 and are still governed by the old customs and local statutes. 
 These are the cantons of Schwyz, Uri, Unterwalden and 
 Saint-Gall, and the semi-cantons of Obwalden and Appenzell. 
 
 Those of the German cantons which, on the contrary, 
 have a codified legislation, divide themselves into two groups, 
 those of a codification anterior to the first half of the 19th 
 century and those of a later period. 
 
 The first group comprises the cantons of Berne, Lucerne, 
 Argovie and Soleure, agricultural cantons of which the legis- 
 lation is modeled after the Austrian Civil Code. The Code 
 of Berne, drafted by M. Schnell, was promulgated from 1824 
 to 1830 and modified many times since. That of Lucerne, 
 which is manifestly connected with that, was drafted by 
 M. Casimer Pfyffer and promulgated from 1831 to 1839. 
 The Code of Soleure, prepared by M. Reinart, was promul- 
 gated from 1842 to 1848. Finally, the Code of Argovie had 
 for its draftsman M. Keller, and was put into force from 
 1847 to 1855. 
 
 Much more interesting is the group composed of the 
 cantons of western Switzerland, cantons, industrial, in the 
 majority Protestant, and for which the Code of Zurich served 
 as the legislative prototype. This original work, the most 
 remarkable produced in Switzerland, is due to the celebrated 
 jurisconsult Bluntschli, who devoted ten years to its prepara- 
 tion. The five parts of it were promulgated successively 
 from 1854 to the end of 1855. The Code of Zurich has served 
 as a model to all the small neighboring cantons, that appro- 
 priated from it almost textually its provisions, save upon 
 certain points where their local traditional regulations differed 
 from the special law of Zurich. Likewise the Code of SchafT- 
 hausen (1864-1865), save as to certain particular matters, as 
 the law of succession, is but a copy of the code of Bluntschli. 
 The Codes of Thurgovie, Zug, and Niedwalden have equally 
 made large borrowings from that code. Finally the legislation 
 of B&le-Ville and Saint-Gall are manifestly connected with it. 
 
 Reference should be made separately to the two Codes 
 of Glaris and the Grisons, which arise out of these same codes 
 and are interesting in various titles. The Code of Glaris 
 
XU HISTORICAL INTRODUCTION 
 
 (1852), drafted by Blumer, is an attempt at conciliation 
 between the two juridical currents which divide Switzerland. 
 It is distinguished by its brevity, to which clarity is in no 
 wise sacrificed. The Code of the Grisons (1862-63), the work 
 of the jurisconsult Planta, is to him also a work of compro- 
 mise between the Roman and German ideas. "This code is 
 certainly one of the most remarkable in Switzerland, not only 
 for this reason and at base, but also in form : it was promul- 
 gated simultaneously in three languages, German, Italian, and 
 a Romance dialect, and constitutes especially for this last a 
 document all the more curious because the Romance language 
 tends to disappear to the advantage of the other two." 
 
 It is seen that apart from a small part of the cantons 
 which oppose this progress, the great majority of the cantons 
 have bettered their secular law by codifying it. This codifi- 
 cation has resulted generally in realizing the juridical unity 
 internally in each canton, but even within these limits it 
 has not caused to disappear completely the local customs and 
 the conflicts of law to which their coexistence gives rise. If 
 one no longer sees in the one canton twenty-five different 
 legislations upon the same point of law, as in the canton of 
 Vaud up to 1821, or eighteen different rights of succession as 
 in the Grisons up to 1850, there may still be found cantons 
 which have allowed to subsist two contradictory legislations 
 for the same territory; this is the case notably in two of the 
 largest ones, Berne and Saint-Gall. 
 
 But it is especially among the diverse cantonal legisla- 
 tions that the contradictions appear multiplied and striking, 
 and it is only in a very feeble measure that cantonal codifi- 
 cation has contributed to their diminishment. If, in fact, we 
 have grouped in three or four families the Swiss systems of 
 private laws, it must not be thought that these groups are as 
 defined as they may at first appear. In reality, "Switzerland 
 forms a veritable mosaic ; what is first striking, is the variety 
 in the details, rather than the resemblances of the families." 
 We will return later to this extreme diversity of juridical 
 systems, to the conflicts which result therefrom, and to the 
 hindrance which it presents to every attempt at federal codi- 
 fication. Actually, we would like only to remark that the 
 
HISTORICAL INTRODUCTION XIU 
 
 cantonal codification has contributed in a certain measure to 
 remedying this situation, in appearance inextricable, but that 
 it could not sensibly accomplish the unification of the general 
 law of Switzerland. 
 
 If in fact any such canton, in giving itself a civil code, 
 has yielded to the inevitable temptation of imitating similar 
 works of neighboring cantons (as happened in the neighbor- 
 ing cantons to Zurich) , it did not for that purpose overlook 
 its own particular needs, nor did it renounce its customary 
 traditions, such regional institutions of which it had a 
 secular usage. No part of the particularistic spirit lost its 
 rights. "It should be understood," one has written, "that 
 in 1873 the people of Zurich gave up the code, which they 
 were proud to replace by a Swiss Code; it should not be 
 understood that a sacrilegious hand dared to touch the 
 work of Bluntschli to give it a false resemblance to the laws 
 of NeuchStel. We have intended to express the opinion 
 that Switzerland should adopt the Code of Zurich. That 
 code is one of the most remarkable of modem legislative 
 monuments. But aside from its scientific value, it . is dis- 
 tinguished specially for its originality and because it has 
 conserved with care the peculiarities of the law of Zurich. 
 What makes its merit for the canton of Zurich would be a 
 capital defect as soon as it would be a question of imposing it 
 upon all Switzerland." 
 
 Far from causing the divergencies to disappear, cantonal 
 codification has in most cases but brought them to light 
 and revealed them. Its aim was redaction and unification 
 of cantonal law, and it rarely served, and that in a quite 
 fortuitous fashion, to effect a general unification of Swiss 
 law. Such as it is, it is nevertheless very important, for 
 it came to furnish precious documents and sure indications 
 for future editors of the federal codes. 
 
 Aside from cantonal codification, of which we have just 
 given a hasty review, the need made itself felt very soon in 
 Switzerland for a legislation that would offer all cantons 
 the common solution for a certain number, at least, of points 
 of law, of interest particularly in intercantonal relations. 
 Already on January 5, 1798, the Councils of the Helvetian 
 
XIV HISTORICAL INTRODUCTION 
 
 Republic had approved the idea of a uniform civil legislation 
 for all Switzerland, but this idea did not survive the "Repub- 
 lic one and indivisible" which had given it birth. In 1848, 
 it reappeared in the form of a proposition of unification of 
 the commercial law. But the reform was not yet ripe and 
 the proposals were rejected: the constitution of September 
 12, 1848, abandoned the whole matter of private law to the 
 cantons. It is true that this charter of 1848 restrained their 
 particular sovereignty in matter of public law, — coinage of 
 money, weights and measures, posts and customs, federal 
 institutions, organization of a federal army, recognition finally 
 of all common liberties (free choice of residence, freedom 
 of confessional, of the press, of assembly, of petition) ; this 
 charter of 1848 was already a first and considerable success 
 for the partisans of centralization, an incontestable check 
 for the particularistic cantonal spirit. Even after 1848, 
 matters of private law continued to be under the reign 
 of the absolute sovereignty of each canton, i.e., under the 
 coexistence within its boundaries of twenty-five cantonal 
 legislations without any harmony between them, and of 
 a great number of cantonal customs diverging from the 
 general law of their proper canton. The juxtaposition of 
 twenty-five different penal laws aggravated again the con- 
 fusion. This situation was tolerable so long as the local 
 law or custom was applicable only to the individuals coming 
 from the country where they saw birth, but in proportion 
 as the changes of population became more frequent, and 
 the field of civil transactions and commercial relations 
 extended itself, the conflicts of legislations multiplied and the 
 insecurity of the law made itself more felt. Thus among men 
 of affairs and in certain industrial and commercial centers 
 the conviction became strong that the diversity of laws was 
 prejudicial to the vital interests of the country. 
 
 Already in 1853, the Bernese Magistrate, E. Bloesch, 
 denounced the incoherence and the inextricable maze of this 
 multiplicity of juridical systems for a people of two and a 
 half million inhabitants. Upon this initiative the canton of 
 Berne in the following year called a conference with a view 
 of studying the introduction of a law of a unique change 
 
HISTORICAL INTRODUCTION XV 
 
 by means of a concordat : fourteen cantons were represented 
 in it. In 1856 the project was completed and studied in 
 a new conference of nine cantons only. Unfortunately, can- 
 tonal rivalries, the fear of innovations and the pride of certain 
 interests that imagined themselves possessed of a legislation 
 superior to that which was sought to be established, caused 
 the reform to fail. 
 
 In 1862 the Federal Council took up again the question 
 and enlarged it by occupying itself with the preparation 
 of a commercial code. This commercial code was not yet 
 voted upon when the constitutional revision of 1872 inter- 
 vened. The partisans of juridical centralization wished to 
 profit by this revision to unify the civil law. To this 
 end they inserted in the plan of a federal constitution of 
 March 5, 1872, an article which gave competency to the 
 Confederation upon all matters of civil law. But it was a 
 great reform, for which the cantons, profoundly attached 
 to their autonomy, were as yet insufficiently prepared. 
 Suffice it to say that this premature disposition caused the 
 rejection of the revised charter by a slight majority (260,- 
 859 votes against 255,606, and thirteen states against nine). 
 It was for reasons exclusively political that a reform was 
 postponed which at base was desired by all. The proof 
 of it was immediately furnished by the adoption of the 
 constitution of August 19, 1874, which retained the text 
 of 1872 in the following manner: "Art. 53: The civil status 
 and the keeping of registers relating thereto is within the 
 competence of civil authorities. Federal legislation will fix 
 for this subject the final provisions. — Art. 54. The law of 
 marriage is placed under the protection of the Confedera- 
 tion .... — Art. 64: Legislation as to civil capacity, in all 
 jnatters of law relative to commerce and transactions as to 
 personal property (law of obligations, comprised therein the 
 commercial law and law of exchange) , as to literary or artistic 
 property, execution for debts and involvency, is within the 
 jurisdiction of the Confederation." 
 
 The Confederation, using the new powers which were con- 
 ferred upon it, commenced forthwith the preparation of 
 federal laws which were to be, as it were, the landmarks 
 
XVI HISTORICAL INTRODUCTION 
 
 of the future codification. These were at first the law of 
 December 24, 1874, upon the civil status, the law of July 3, 
 1876, upon Swiss naturalization and the renunciation of 
 Swiss nationality, and the law of June 22, 1881, upon civil 
 capacity. In its train was an entire chapter of the Swiss 
 codification — the "Federal Code of Obligations" of June 19, 
 1881. 
 
 The features which mark this code are practically the 
 same as those from which is drawn the originality, as a 
 whole, of the Civil Code in which it was incorporated there- 
 after. We will analyze them later in studying this latter. 
 It should be remarked only, for the present, that Swiss 
 legislation, inversely from almost all the modern legislation, 
 has subjected to the same principles civil and commercial 
 obligations. There was in Switzerland no particular law of 
 usage among merchants. "This tendency is, in connection 
 with the democratic institutions of Switzerland, and the 
 republican spirit of its population, hostile to every distinction 
 of persons. For the rest, it is justified by the education 
 and commercial spirit that are certainly prevalent in Switzer- 
 land in all classes of society to a greater degree and in a 
 manner more general than in any other country of Europe." 
 
 The Federal Code of Obligations was compiled con- 
 currently in three languages, French, German and Italian, 
 and the three texts are considered originals. Its appear- 
 ance rendered necessary the giving point to the diverse 
 legislations of the cantons, and the promulgation in the 
 greater part among them of laws designed to assure their 
 harmony with the new Federal Code. It was necessary, in 
 effect, to regulate with precision the transition from the old 
 to the new regime; it was necessary, in consequence, to 
 determine exactly the frontiers between the domains hitherto 
 assigned to the federal law, and those which were left to the 
 cantonal law : This was the aim of the transitory provisions of 
 the code itself, and of the laws of concordance. 
 
 Despite all this, the confusion is in the great danger of 
 partial unifications, and leading spirits feared that the going 
 into effect of the new code would give birth to numerous 
 controversies, and that its application would encounter great 
 
HISTORICAL INTRODUCTION xvii 
 
 difficulties. Experience has demonstrated that these fears 
 were, however, unjustified or at least greatly exaggerated. 
 Jurisprudence has known most frequently how .to rapidly 
 find a solution, clear and satisfactory, for those rare conflicts 
 which raised themselves up, and the Federal Code of Obliga- 
 tions has rapidly acclimated itself in all regions. Its success 
 was a good omen for the future of the Federal legislation, and 
 permitted the provision for the subsequent enlargement of 
 the competence of the Confederation. 
 
 In accomplishing this enlargement, the Federal civil law 
 was filled out in matters which were already within its 
 domain. Thus, a whole series of laws relative to literary and 
 industrial protection were published during several years 
 (the law of April 25, 1883, upon literary and artistic property; 
 of June 29, 1888, upon Letters Patent for inventions; of 
 December 21, 1888, upon industrial designs and models; of 
 September 26, 1890, upon the protection of trade-marks). 
 During the same time were promulgated the important law 
 of April, 11 1889, upon execution for debts and insolvency, 
 and a law of June 25, 1891, upon the relations of the civil 
 law for citizens in residence or in sojourn. 
 
 A great step was made in 1881 towards the integral 
 unification of the Swiss Law, by the promulgation of the 
 Federal Code of Obligations; but after it went into effect, 
 there made itself vividly felt the need of a reform more 
 radical, which would result in the definitive federalization 
 of all civil law. In the matters still reserved to the cantons, 
 the complexity was extreme. Thus it is necessary to refer 
 only to the law of pledges, and that there existed upon this 
 matter twenty-nine different cantonal laws. It is impossible, 
 if one would wish to have an exact knowledge thereof, to work 
 out a group of cantonal legislation : the individual study thereof 
 is required. There is not one of them which is not distin- 
 guishable from its neighbor in some direction; "the law of 
 the mountain contradicts that of the valley; the law of the 
 City of B^le is not that of the Country of B§,le." The best 
 manner of obtaining a rapid idea of the fettering by these 
 ancient cantonal legislations, is to consider for a few moments 
 the charts representing under different forms the different 
 
XVlll HISTORICAL INTRODUCTION 
 
 systems in force, that the eminent Minister of the Swiss Con- 
 federation at Paris, M. Lardy, has placed at the end of his 
 volume upon the Swiss legislation of the Swiss cantons. 
 Nothing can better show than this curious atlas of juridical 
 geography, the impression of the Veritable mosaic formed by 
 the juxtaposition of the multiplied Swiss laws. 
 
 If the difference of environments explains many of the 
 divergencies, the greatest number appear to be the result 
 of fantasy and pure chance. But even though the law 
 reveals characters quite original, it commences to lose its 
 authority, for it is then no longer imposing itself upon 
 exclusively autochthonous citizens. The number of those 
 domiciled therein become each day more considerable, while 
 that of those changing adherence thereto diminishes, by reason 
 of the incessant emigration of the Swiss from one canton 
 to the other. In certain cantons the non-adhering are in 
 the majority. (See Census of 1900, Neuch&tel, Geneva, and 
 B&le-Ville.) As in principle the law of domicile has been 
 caused to prevail over the law of origin, the law no longer 
 applies to those for whom it was made. Hence have arisen 
 conflicts quite grave, as well as frequent, and a permanent 
 insecurity of law. 
 
 Two spouses of Berne move to Zurich, where one of them 
 dies. The survivor has been deprived of all right of succession 
 to his consort, whereas at Berne he was a compulsory heir. 
 A mother of Zurich is absolutely shut out of the succession 
 to her son deceased in Schwyz; if this son had died in any 
 other canton she would have had a right of succession. A 
 citizen of Berne who is proceeded against in an action to 
 establish paternity, has only to go to French-speaking Switzer- 
 land to relieve himself of all claims of the mother of the child. 
 That in Zurich a woman, upon an attachment against her 
 husband, may claim his deposits, and exercise his prerogative, 
 the husband remaining meanwhile in possession, and enjoy- 
 ment of the goods of the wife, — this gives force to her rights 
 as a creditor under the control of the other creditors. Why 
 this happens whenever the spouses, after the first attachment, 
 pass to the canton of Berne, where the insolvency of the 
 husband brings about the separation of goods, no one knows. 
 
HISTORICAL INTRODUCTION xix 
 
 It would be easy to multiply the examples of similar 
 bizarre conditions, due to the strict application of the law of 
 domicile. Those who have once suffered the rigorous con- 
 sequences of these conditions call with all their voices for the 
 establishment of a law precise and uniform. The example 
 of the Code of Obligations had pointed out, in a convincing 
 fashion, the advantages of this uniformity, and from all parts 
 a demand arose for the completion of the codification which 
 had been cut off in 1881. 
 
 If the advantages of the unification of the civil law were 
 manifest, the difficulties of the reform appeared with no less 
 evidence. In 1881, it was relatively easy to arrive at a 
 general accord upon one section of law where the disagree- 
 ments of opinion were less profound, and which would but 
 rarely bring into consideration the regional susceptibilities. 
 Upon such matters as the matrimonial regime or succession, 
 it was no longer the same. The divergencies were serious, 
 and had very often ethical and moral causes. It was not 
 a mere question of juridical conflicts, but also of conflicts of 
 races, languages, customs or confessions. It appeared im- 
 possible to construct a code that would satisfy at the same 
 time Germans, French-speaking and Italians, Catholics and 
 Protestants, men of the German, French, Italian or Romance 
 language. How to make one law responding at the same 
 time to the needs of the peasants of the Engadine or of the 
 Grisons, and those of the workmen of the Neuch&tel Jura? 
 
 In truth, the difficulty arising from this diversity was not 
 so invincible as it might appear. The divergencies existing 
 among the various cantonal legislations are in fact explicable 
 neither upon grounds of religion, nor of language, nor even of 
 race. This has been clearly brought to view by M. Rossel, 
 the French reporter of the National Council. "What is, 
 for example," he said, "the matrimonial regime, which most 
 closely approaches that of the cantons of Neuch^tel? Search 
 not very close at hand ; go, on the contrary, to the extreme 
 Oriental frontier of Switzerland, in the cantons of the Grisons! 
 You think perhaps that the matrimonial regime of the cantons 
 of Thurgovie, and even all the economy of its civil legislation, 
 would draw it closely to its neighboring canton of Zurich? 
 
XX HISTORICAL INTRODUCTION 
 
 The analogies are much more striking between the Code of 
 Thurgovie and the Code Napoleon, and between the same 
 Code of Thurgovie and that which Bluntschli edited. Therein 
 is the best demonstration of that which is artificial and for- 
 tuitous in the formation of our Swiss Law." 
 
 Moreover, if one happens to find under the Helvetian 
 Cross different civilizations and customs, it is not necessary 
 to find in it a decisive objection to every attempt at juridical 
 unification. Is that not, in fact, the very destiny of Switzer- 
 land? "A German majority respecting a minority speaking 
 the French tongue, a Protestant majority respecting a Catholic 
 minority, a certain number of states relatively populous and 
 strong launched under full sail upon the current of modern 
 life, respecting the mildness of those old pastoral democracies 
 for whom the centuries may have been years; that is the 
 example that Switzerland should give to the world, that is 
 the mission that nature has imposed upon her." 
 
 In reality, the danger should come specially from the 
 secular antagonism of the German and French civilizations, 
 from the old rivalry between the German Switzerland and the 
 French-speaking Switzerland. There, in fact, is a permanent 
 source of conflicts, and it cannot be denied that the dissensions 
 and estrangements that one sees reproducing themselves at 
 each of the turning points in Swiss history have their germ 
 in that. This antagonism is perhaps more marked in the 
 domain of law than in any other; for there have struggled 
 against one another the two juridical currents of characters 
 essentially different, the ancient Roman current which has 
 been purified in its course by France, and the German current 
 of more recent formation. Was it not to be doubted that 
 in the work of centralization a sacrifice would be made 
 involuntarily of one of these juridical formations to the other, 
 or that there would be a building up, upon reciprocal conces- 
 sions, a sort of compromise which would satisfy neither the 
 Germans nor those speaking French? Here again it is not 
 necessary to make any exaggeration. If there was an indis- 
 putable antagonism between two important regions of Switzer- 
 land, this antagonism was not irreconcilable. "It is per- 
 mitted us to state," writes a French-speaking Swiss, "that 
 
HISTORICAL INTRODUCTION xxi 
 
 often in studying our law, and in explaining it by its method, 
 our confederates of German Switzerland have often felt them- 
 selves drawn to it. The works which have been done with a 
 view of establishing the foundations of a single and identical 
 Civil Code for the French and German parties of the canton 
 of Berne are a precious witness thereto." 
 
 It would often be difficult to trace a defined frontier between 
 the regions where the Roman ideas prevail and those where 
 the Germanic conceptions flourish. "One frequently finds 
 inversions in cases where the cantons of the German family 
 become champions of the Roman ideas against the French- 
 speaking cantons which admit a Germanic principle." In the 
 discussion of the Civil Code of Berne, to which we have just 
 made allusion, one of the rare points of divergence between 
 the German party of the canton and the Jura was the obliga- 
 tion upon parents to give a dot to their children in certain 
 cases. The reporter in the French language adjures his 
 fellow-citizens to make certain concessions upon this point, 
 and his request was all the more justified because it was the 
 influence of the Roman law, where the father is obliged to 
 give a dot to his daughter, and which was re-enforced in Ger- 
 many by the custom of furnishing at least a trousseau, and 
 thereby made of it a sort of rule of the common law. One 
 could easily show by other examples that the divergencies 
 of legislation do not always correspond with the differences 
 of origin or customs. 
 
 Besides, is not the work of codification a work of harmoniz- 
 ing, and should not one see therein much more than an oppor- 
 tunity for dissension, a means rather of consolidating the 
 unity of the Swiss Confederation? Is not the greater danger 
 in that status of secret divorce, which exists between this 
 group and that other group of confederated states, and of 
 which any aggravation should be avoided at all price? "We 
 were menaced," could be said by the French reporter before 
 the National Council, "we were menaced, if we had not averted 
 this peril in codifying our law, by a sort of moral rupture 
 between the German Switzerland and French Switzerland. . . . 
 We were marching towards the progressive denationalization 
 of our law, and one never knows where a people may stop 
 
XXU HISTORICAL INTRODUCTION 
 
 upon such a road. It was necessary absolutely to codify at the 
 psychological moment, before our law should become saturated 
 with elements strange and drawn from sources so different, 
 that the work of a future codification would have been sur- 
 rounded by difficulties almost insurmountable." 
 
 For the reasons just indicated, it was not possible to draw 
 from the diversity of races, languages and customs an objec- 
 tion preliminary to the study of every project of codification. 
 It is for the authors of the law that this diversity should 
 be the source of difficulties — difficulties over which, as we shall 
 see, they have generally known how to triumph. The impor- 
 tance of the concessions made by the cantons, and the large 
 spirit of tolerance amongst the Swiss citizens, became also 
 their peculiar facility in the task. 
 
 There remained an obstacle of importance, the absence 
 in the Constitution of any provision granting the Confederation 
 the competency necessary to enact legislation in civil matters 
 (if it was not granted upon the points already noted). Noth- 
 ing could be undertaken without an extension in this sense 
 of the Federal powers. Although it was much desired by the 
 interested parties, there was hesitation in proposing this 
 reform. The recollection was quite fresh of the failure of 
 the project of 1872, which had encountered the particularistic 
 sentiments of the cantons, and fear was entertained that a 
 like fate was reserved for every project of the same tendency. 
 It was in fact (it could not be disguised) the definitive 
 renunciation of their legislative independence that was about 
 to be demanded of these cantons, so proud of their franchises 
 and privileges, and so jealous of their autonomy; and it was 
 doubtful whether the national spirit had acquired an author- 
 ity sufficiently powerful to obtain from the states this impor- 
 tant sacrifice. In 1896, the Federal Council thought never- 
 theless that it could make the attempt, and it demanded of 
 Parliament the extension to all these matters of civil law, of the 
 Federal competence. Parliament adopted the constitutional 
 reform (Art. 64, New), and upon a demand for a referendum, 
 the people ratified it on November 13, 1898, with an imposing 
 majority (264,914 votes for; against, 101,762). 
 
HISTORICAL INTRODUCTION xxiii 
 
 It is one of the objects of our work to study the composition 
 of the Swiss Civil Code, the conceptions which control in its 
 elaboration, and the method followed in its preparation. We 
 have then only to retrace briefly its genesis to return again 
 at leisure to each one of the points which may require some 
 commentary. 
 
 The unity of conception, and at the same time the very 
 great publicity, are the things that one should consider before 
 everything else in the works preparatory to the Code. Thus, 
 at the same time that the task was given to an unique editor, 
 M. Prof. Huber, of preparing a preliminary draft, the collabo- 
 ration of public opinion, in all its forms, to the national work 
 was invited. By reason of his profound knowledge of the his- 
 tory of the Swiss Law, his independence of the shadow of any 
 suspicion, and his spirit, at the same time intelligent and 
 largely open to modern ideas, no one was better prepared than 
 M. Eugene Huber to lay the solid foundations of the monument 
 that it was proposed to rear. The fact alone that his pre- 
 liminary draft underwent in its compilation as a draft, and 
 then as a definitive text, but very few retouches and that 
 only in detail, is proof that he generally knew how to present 
 the best solution and that he was pre-eminently worthy of the 
 mission entrusted to him. 
 
 The preliminary draft, divided into four books, treating 
 first, persons; secondly, the family; thirdly, successions; and 
 fourthly, real rights, was published November 15, 1900. The 
 summary annexed to this preliminary draft gives the complete 
 references to the documents which were utilized. 
 
 The Federal Department of Justice and Police named 
 in the month of May, 1901, a commissiom charged with the 
 examination of this preliminary draft. This commission was 
 composed of thirty-one members, for the most part professors, 
 deputies or magistrates, and of nine special experts. It 
 discussed the preliminary draft in four sessions, which were 
 held at Lucerne, from the 7th to the 30th of October, 1901 
 (Right of Persons and the Family); at Neuchatel, from the 
 3d to the 22d of March, 1902 (Guardianship and Succes- 
 sions) ; at Zurich, from the 3d to the 15th of November, 1902 
 (Real Rights, first part) ; and at Geneva, from the 15th of 
 
XXIV HISTORICAL INTRODUCTION 
 
 April to the 2d of May, 1903 (Real Rights, continued and 
 finished). This election, as it were, of a domicile in four 
 different cities, two French-speaking cities and two German 
 cities, contributed largely to assure the publicity of a work 
 in which it was desired to interest all the regions of Switzer- 
 land. 
 
 At the same time, and to better realize this publicity, the 
 Department of Justice and Police solicited the submission of 
 all the views, observations, propositions, that one could 
 formulate, and gave assurances that all woilld be transmitted 
 to the commission. All opinions could thus be heard, and 
 all the contentions could have their day. Use was made 
 in large measure of this privilege, in such a way that from the 
 reports coming to the Department one can compose a sort 
 of table following the preliminary project, article by article, 
 and giving upon the delicate questions therein valuable sug- 
 gestions. Outside of these reports, the commission likewise 
 received, in 1901 and 1902, a discussion of the motives of this 
 preliminary draft, which controlled M. Huber in its com- 
 position. 
 
 This large commission having completed its task, the 
 Federal Department designated a commission for a more 
 exact redaction, which was presided over by the Federal 
 Councillor Brenner, and composed of M. Huber and six 
 other members. It is the redaction of this Commission that 
 was submitted on May 28, 1904, by the Federal Council to 
 the Federal Assembly, and which is designated commonly 
 by the name of the "Project." A final title relative to the 
 conflicts of legislation, and re-enacting the law of obligations 
 brought into harmony with the new matters, has been made 
 since that time the object of an independent draft, and sub- 
 mitted in that same form to two Councils. 
 
 The discussion, commenced on June 6, 1905, before the 
 National Council, was taken up concurrently before this 
 Council and the Council of the States during the course of 
 the years 1905, 1906, 1907. Two reporters, one in the German 
 language, the other in the French language, presented the 
 matters, and a vote was had without even disjointing several 
 articles forming a whole, and likewise entire chapters. A 
 
HISTORICAL INTRODUCTION XXV 
 
 very small number of questions furnished the occasion for a 
 public debate of some length : the Parliamentary Commissions 
 generally made allowance for the criticisms and the observa- 
 tions made after the publication of the "Project," and each 
 of the Assemblies contented itself with ratifying the corrections 
 proposed by its Commission. 
 
 Finally, on December 10, 1907, the special vote of the 
 various parties being had, the National Council and the 
 Council of the States adopted unanimously the complete 
 "Project" of the Swiss Civil Code. j 
 
 The work was already popular, and the nation immediately 
 gave it a sort of tacit ratification in refraining from any 
 demand for a referendum within the time limit. In addition, 
 with a view of facilitating the knowledge and assimilation 
 of the new law, provision was made that it should not go into 
 definitive force and effect until January 1, 1912. 
 
 Professor Dr. Max Gmiir of Berne, Switzerland, in his 
 "Kommentar zum Schweizerischen Zivilgesetzbuch" (Bern, 
 Verlag von Stampfli & Cie., 1909), has described graphically the 
 peculiar significance of this Swiss Civil Code, and the special 
 equipment of its author, Professor Eugen Huber, for the task 
 entrusted to him to prepare it. These sections of the general 
 introduction to that Commentary are translated from that 
 German text-book. 
 
 On December 10th, 1907, the Swiss Civil Code was adopted 
 by the Councils, and on March 21st, 1908, it received its 
 sanction from the Swiss people by reason of the unused lapse 
 of the time for a referendum, and upon January 1st, 1912, 
 the codification went into effect. These three days marked 
 the milestones in the history of the Swiss Confederated 
 State. Never before has a law been emitted by it whose 
 execution will be followed with so general interest, and whose 
 effectiveness will be weighted with so rich hopes and expecta- 
 tions. Even if most people in their relation to life and com- 
 merce cannot take directly from the paragraphs of this law 
 a plumb-line, yet one is conscious that in its wide boundaries 
 the influence of the Civil Code will be a general and deep- 
 
XXVI HISTORICAL INTRODUCTION 
 
 reaching one. It regulates those institutions which are the 
 foundation pillars of our economical, social and moral order, 
 family and property; it is just in these domains, by distinction 
 from the law of obligation, that the general rules of honorable 
 commerce do not suffice ; there are necessary, fixed standards 
 and proven regulations. It is true that such have been 
 worked out in the cantons in rich number, but they stand upon 
 such different steps of development, and are in such a mixed 
 confusion of law, that the call for uniformity of law and a 
 thoroughgoing modem revision of the civil law became 
 imperative. 
 
 The Swiss Civil Code is purposed to give the material and 
 spiritual life of the Swiss folk a more uniform, more fixed, 
 and higher standing basis. From an economical viewpoint, the 
 introduction of the Land Registry system, and of a bettered 
 system of pledges, will bring great advantages in its wake. 
 The various classes of occupations and professions receive 
 thereby a response to the demand that they shall have the 
 freedom to work out their relations in accordance with their 
 special interests, as, for example, through the introduction of 
 the marriage contract, and through specific institutions in the 
 law of the family and inheritance. (C/., e. g., Arts. 335 ff., 
 620 ff.) Especially acceptable is the law in regard to the 
 necessities of the small farmer and the working classes, 
 but the classes of the industrial workers will gain much also, 
 particularly by reason of the increased protection of the wife, 
 and the increased provision for children. 
 
 It will be not only from the economical, but also from 
 the ideal standpoint, of great valfle, that the Swiss Civil Code 
 brings with it the harmony of legal regulations for the whole 
 land, and bound therewith an increased security of law. In 
 the place of about twenty-five, in part not even codified, can- 
 tonal laws, will prevail a single, to all hands accessible, clear 
 and readily understandable Swiss national law. Already this 
 fact alone means a great gain, but in addition thereto is the 
 fact that the new law, in rich measure, is adapted to work 
 upon the whole nation by way of instruction, and to increase 
 in like measure its independence in economical respects, and 
 its freedom in moral respects. It is necessary to recall only 
 
HISTORICAL INTRODUCTION xxvii 
 
 those revisions which are directed to the purpose of knitting 
 faster the bands of the immediate family, and to place the wife 
 in the position of a companion of like birth. 
 
 And finally, the political significance of the Swiss Civil Code 
 can hardly be overestimated. The Swiss do not enjoy that 
 which in most lands is considered as the greatest fruit of the 
 national spirit, a common speech ; up to this time they have 
 been bound by historical recollections and peculiar political 
 institutions. Now they will receive a new strong bond of 
 common political interests, a symbol of a common spiritual 
 work and of a common national feeling. The dependence 
 of our legal system upon the foreign example, which became 
 so strikingly noticeable in the 19th century, will find a proper 
 place for the conscious pride in our native and nationally 
 peculiar law. We must also consider that by reason of our 
 codification's being well regarded abroad, the respect and the 
 influence of Switzerland will grow stronger as an International 
 Union of life and culture. 
 
 A work of the scope and significance of the codification 
 of the civil law required for its completion very great intel- 
 lectual labor, as well as favorable conditions; a great mass 
 of juristical as well as political difficulties were to be over- 
 come. It may well be said that the history of the origin of 
 the Swiss Civil Code, even if it did not have a very short 
 career, nevertheless had a strikingly favorable course. The 
 whole way and manner of the Civil Code's coming into exist- 
 ence stand in favorable contrast to the completion of the Ger- 
 man Civil Code, where the first ground-laying draft, prepared by 
 a very unfriendly commission, in respect to form and content, 
 aroused the antagonism and spite of half the nation, and had 
 to be painfully worked over. With us, on the contrary, there 
 was found a single personality endowed with remarkable 
 gifts and unusual capacity, that created not only the whole 
 framework at one time, but also stood on middle ground 
 in the extended juristical and parliamentary deliberation. 
 From the beginning on, the endeavors of the officials and 
 friends of the law were carefully planned, from step to step; 
 wider circles were attracted and won over, until finally a 
 
XXVlll HISTORICAL INTRODUCTION 
 
 complete work resulted. We lost nothing of the spirit of 
 uniformity in the long deliberations, but rather gained general 
 competence for it. 
 
 Professor Eugen Huber, in the year 1884, had been com- 
 missioned with the compilation of the cantonal private laws. 
 He fulfilled his task in the work of four volumes, "System and 
 History of the Swiss Private Law" (1886-1893). While the 
 fourth volume gives a comprehensive historical view thereof, 
 the first three volumes present the cantonal law prevailing 
 before the year 1912. The author who here with such zealous 
 care has pointed to the real germs of the indigenous law, and 
 laid bare the common as well as the divergent in the cantonal 
 laws, was acknowledged by the friends and foes of the uni- 
 formity of law as the first authority in the field of Swiss private 
 law, and its natural codifier. 
 
 In the year 1892, Prof. Huber received the commission 
 from the Federal Department of Justice to proceed with the 
 working out of the projected Swiss Civil Code. For him who 
 showed himself in the result as the real creator of the great 
 work, his life and educational career were in many respects fit- 
 ting for the path which he followed. Born in the year 1849, a 
 son of a noble German family. Prof. Huber received his high 
 school and university training in Zurich. With a dissertation 
 upon the development of the Swiss Law of Inheritance (1872), 
 he entered upon the paths of a scientific career which he was to 
 follow to the end. Studies abroad, as well as the insight into 
 the political heart-beat of the Confederation won in his activ- 
 ity for a while upon the editorial staff of a large paper, and 
 as a private teacher in Berne, laid the ground for his qualities 
 as a statesman in a way not customary with students. Several 
 years' practical activity as Examining Judge of the Canton 
 Appenzell-Ausserrhoden were apparently only lost for the 
 academical civil law destiny, but in fact they meant a great 
 gain for the later codifier of the civil law; for this position 
 gave him the opportunity to acquire deeper psychological 
 knowledge, and likewise allowed the ideal of a Swiss folk- 
 legislation to come before his eyes in a new light, through 
 the acquaintance made by him with an original mountain 
 folk and its native law. New stimuli again came to Prof. 
 
HISTORICAL INTRODUCTION Xxix 
 
 Huber in the commercially active and art enjoying Basel, 
 whither in 1880 he was called as Professor of the Swiss Private 
 Law. Given wholly to science, he soon made for himself a 
 great name as a Germanist, particularly by his work upon 
 "The System and History of the Swiss Private Law," appear- 
 ing in 1886. Several years of academical activity in Halle 
 brought him into touch with the advantages of the German 
 intellectual life, and brought him also valuable friendships, as, 
 for example, with the keenly intellectual Riimelin, and the very 
 progressive spirit Stammler. In 1892, finally, Prof. Huber 
 returned to Berne, where he, for his chief work now begun, 
 had the best location. Here was furnished for him not only 
 the direct contact with the officials of the Confederation, 
 so necessary for his legislative labors, but also the opportunity 
 as a highly esteemed Lecturer at the largest Swiss University 
 to educate to his ideas the successive generations. The 
 electoral district of the City of Berne sent him as its represen- 
 tative to the National Assembly, where he very naturally 
 took a leading part in the deliberations upon the Swiss Civil 
 Code, — as a whole, a career of the greatest and untiring 
 activity, likewise of a very fortunate development and rich in 
 fruits for our folk, as well as for science. 
 
BIBLIOGRAPHY 
 
 Prefatory Works: 
 Schweizerisches Zivilgesetzbuch. Vorentwurf des schweiz. 
 
 Justiz- und Polizeidepartementes ; 1900; zitiert: VE. 
 Code civil Suisse. Avant-projet du D^partement f6d6ral de 
 
 Justice et Police; 1900. 
 Erlauterungen zum Vorentwurf des schweiz. Justiz- und 
 
 Polizeidepartementes. I. Heft: Einleitung, Personen- 
 
 und Familienrecht; 1901; zitiert: Erl 1. 
 Expose des motifs de I'avant du D6partement f6d6ral de 
 
 Justice et Police. Tome I". Introduction, droit des 
 
 personnes et de la f amille ; 1901. 
 Erlauterungen zum Vorentwurf des schweiz. Justiz- und 
 
 Polizeidepartementes. II. Heft: Das Erbrecht; 1901; 
 
 zitiert: Erl 2. 
 Expos6 des motifs de I'avant projet du D6partement 
 
 federal de Justice et Police. Tome IP: Des successions ; 
 
 1901. 
 Erlauterungen zum Vorentwurf des schweiz. Justiz- und 
 
 Polizeidepartementes. III. Heft: Das Sachenrecht; 
 
 1920; zit. Erl 3. 
 Expose des motifs de I'avant-projet du Departement 
 
 federal de Justice et Police. Tome IIP: Droits r6els; 
 
 1902. 
 Gesamtband der Erlauterungen zum Vorentwurf des schweiz . 
 
 Justiz- und Polizeidepartementes; 1902; zitiert: Erl. 
 
 Neue Ausgabe mit Anmerkungen des Verfassers (E. 
 
 Huber) 1914; 2 Bande. 
 Expose des motifs de I'avant du D6partement f6d6ral de 
 
 Justice et Police ; 1902 ; complet en un volume. 
 Botschaft und Entwurf zum schweizerischen Zivilgesetz- 
 buch vom 28. Mai 1904; zitiert: Botsch und E. 
 Message et projet de code civil Suisse du 24 mai 1904. 
 
XXXll BIBLIOGRAPHY 
 
 Botschaft und Entwurf zur Erganzung des Zivilgesetz- 
 buches durch das Obligationenrecht vom 3. Marz 1905. 
 
 Message et projet du droit des obligations, compl6tant le 
 code civil Suisse, du 3 mars 1905. 
 
 Amtliches Stenographisches Bulletin (Bulletin st^nogra- 
 phique officiel) der schweiz. Bundesversammlung vom 
 Juni 1905 bis zum April 1907; zitiert: Bull sten, und 
 Jahrgang. 
 
 Memorial des eidgen. Justiz- und Polizeidepartements an 
 die Kantone, vom 21. Juli 1908; zit. Mem. 
 
 Bericht des Bundesrates an die Bundesversammlung 
 betreffend die Revision des Obligationenrechts (Nachtrag 
 zur Botschaft vom 3. Marz 1905), vom 1. Juni 1909, mit 
 dem Entwurf eines BundesgesetzeS betr. die Erganzung 
 des schweiz. Zivilgesetzbuches durch Anfiigung des Obli- 
 gationenrechtes (deutsch und franzosisch). 
 
 2. Official Editions of the Code: 
 
 Schweiz. Bundesblatt vom 21. Dezember 1907 (deutsch 
 und franzosisch). Italienischer Text im Amtsblatt des 
 Kantons Tessin vom 31. Dezember 1907. 
 
 Amtliche Sammlung der Bundesgesetze und Verordnungen, 
 24, 1908 (deutsch und franzosisch). 
 
 Volksausgabe, welche im Friihjahr 1908 in den drei Landes- 
 sprachen an alle Schweizerbiirger verteilt wurde. 
 
 Rhatoromanische Ubersetzung, von Prof. Tuor (mit Unter- 
 stiitzung des Bundes herausgegeben) , 1909. 
 
 3. Private Textausgaben: 
 
 Deutsche Ausgabe, mit Inhaltsverzeichnis und alphab. 
 
 Sach-register, 1908. Bern, Stampfii & Cie. 
 Code civil Suisse. Edition annot^e, . . . par V. Rossel, 
 
 1908; Lausanne, Payot. 
 Schweiz. Zivilgesetzbuch . . . Ausgabe in den drei 
 
 Nationalsprachen, 1908. Bern, Francke. 
 Schweiz. Zivilgesetzbuch. Deutsche, franzosische und 
 
 deutschfranzosische Ausgabe, 1908. Bern, Wyss. 
 A General Survey of Events, etc., in Swiss Jurisprudence — 
 
 E. Huber, in Continental Legal History Series I, Boston, 
 
 191-2. 
 
EXPLANATION OF ABBREVIATIONS 
 
 B.G.B. — Biirgerliches Gesetzbuch, Imperial Civil Code of Germany. 
 
 C. of Com. — Commercial Code of Germany. 
 
 Dan. C. of Chr. V. — Danish Code of Christian V (1683). 
 
 _ ' ' ' ' f- German Code of Civil Procedure. 
 
 Ger. Co. Proc. > 
 
 Ger. C. Genl. Com. of Goods. — German Civil Code — General Com- 
 munity of Goods. 
 
 Imp. Co. Military Law. — Imperial Code of Military Law of Germany. 
 
 Intr. L. — Introductory Law of German Civil Code. 
 
 I.S. — Introductory Statute of Swiss Civil Code (Appendix). 
 
 Jap. C. of 1898. — Japanese Civil Code of 1898. 
 
 ^ , ' [■ — Schuster's "Principles of German Civil Law." 
 
CONTENTS. 
 
 INTRODUCTION. 
 
 (Sections) 
 
 A. Application of the Law 1 
 
 B. Definition of the Legal Relations. 
 
 L Acting with Truth and Faith 2 
 
 IL Good Faith 3 
 
 IIL Judicial Discretion 4 
 
 C. Relation to the Cantons. 
 
 L Cantonal, Civil Law and Local Custom 5 
 
 n. Public Law of the Cantons 6 
 
 D. General Provisions of the Law of Obligations 7 
 
 E. Rules of Evidence. 
 
 L Burden of Proof 8 
 
 IL Evidence of Public Records 9 
 
 IIL Rules of Evidence 10 
 
 FIRST PART. 
 THE LAW OF PERSONS. 
 First Title. — Natural Persons. 
 
 FIRST SECTION. — The Law of Personality. 
 
 A. Personality in General. 
 
 I. Legal Capacity 11 
 
 II. Commercial Capacity. 
 
 1. Definition 12 
 
 2. General Principles. 
 
 a. In General 13 
 
 b. Majority 14 
 
 c. Emancipation 15 
 
 d. Capacity of Judgment 16 
 
 III. Commercial Incapacity. 
 
 1. In General 17 
 
 2. Failure of Capacity of Judgment 18 
 
 3. Capable of Judgment, but Minors or Legally 
 
 Incapacitated 19 
 
XXXVl CONTENTS 
 
 IV. Relationship. 
 
 1. Blood Relationship 20 
 
 2. Relationship-in-law 21 
 
 V. Domicile and Residence. 
 
 1. Domiciliary Status 22 
 
 2. Residence. 
 
 a. Definition 23 
 
 b. Change in Residence or Abode 24 
 
 c. Residence of Dependent Persons 25 
 
 d. Sojourn in Institutions 26 
 
 B. Protection of the Personality. 
 
 I. In General. 
 
 1. Inalienability 27 
 
 2. Complaint for Injury 28 
 
 II. Right to a Name. 
 
 1. Protection of the Name 29 
 
 2. Change of Name 30 
 
 C. Beginning and End of the Personality. 
 
 I. Birth and Death 31 
 
 II. Proof. 
 
 1. Burden of Proof 32 
 
 2. Means of Proof. 
 
 a. In General 33 
 
 b. Indications of Death 34 
 
 III. Declaration of Vanishment. 
 
 1. In General 35 
 
 2. Procedure 36 
 
 3. Lapse of the Petition 37 
 
 4. Effect 38 
 
 SECOND SECTION. — The Authentication of Civil Status. 
 
 A. _ In General. 
 
 I. Registers 39 
 
 II. Regulations 40 
 
 III. Officials 41 
 
 IV. Responsibility 42 
 
 V. Supervision. 
 
 1. Complaints 43 
 
 2. Penalties 44 
 
 VI. Corrections 45 
 
 B. Register of Births. 
 
 I. Report 46 
 
 II. Entry of Changes 47 
 
CONTENTS xxxvii 
 
 C. Register of Deaths. 
 
 I. Report 4g 
 
 II. Non-discovery of Corpse 49 
 
 III. Declaration of Vanishment 50 
 
 IV. Entry of Changes 51 
 
 Second Title. — Juristic Persons. 
 
 FIRST SECTION. — General Provisions. 
 
 A. Personality 52 
 
 B. Legal Capacity 53 
 
 C. Commercial Capacity. 
 
 I. Presumption 54 
 
 II. Expression thereof 55 
 
 D. Residence 66 
 
 E. Dissolution. 
 
 I. Disposition of its Property 57 
 
 II. Liquidation 58 
 
 F. Reservation of Public and Company and Association Law 59 
 
 SECOND SECTION. — Societies. 
 
 A. Formation. 
 
 I. Corporate Association of Persons 60 
 
 II. Entry (Registration) 61 
 
 III. Societies without Personality 62 
 
 IV. Relation of Articles to the Law 63 
 
 B. Organization. 
 
 I. Meetings. 
 
 1. Meaning and Calls 64 
 
 2. Competency 65 
 
 3. Acts of the Society. 
 
 a. Manner of Acting 66 
 
 6. Right to Vote and Majority 67 
 
 c. Deprivation of Right to Vote 68 
 
 II. Directors 69 
 
 C. Membership. 
 
 I. Entrance and Resignation 70 
 
 II. Duty to Contribute 71 
 
 III. Expulsion 72 
 
 IV. Status of Ex-members 73 
 
 V. Protection of Society's Purposes 74 
 
 VI. Protection of Membership 75 
 
XXXVIU CONTENTS 
 
 D. Dissolution. 
 
 I. Methods. 
 
 1. By Act of the Society 76 
 
 2. By Law 77 
 
 3. By Decree 78 
 
 II. Cancellation of Entry in Register 79 
 
 THIRD SECTION. — Foundations. 
 
 A. Erection. 
 
 I. In General 80 
 
 II. Form 81 
 
 III. Contest 82 
 
 B. Organization 83 
 
 C. Supervision 84 
 
 D. Change of the Foundation. 
 
 I. Change of Organization 85 
 
 II. Change of Purpose 86 
 
 E. Family and Religious Foundations 87 
 
 F. Dissolution. 
 
 I. By Law and by Judicial Action 88 
 
 II. Right of Complaint and Cancellation in Register 89 
 
 SECOND PART. 
 
 FAMILY LAW. 
 
 FIRST DIVISION. — THE LAW OF MARRIAGE. 
 
 Third Title. — The Contract of Marriage. 
 
 FIRST section. — The Engagement. 
 
 A. Engagement 90 
 
 B. Effect of the Engagement. 
 
 I. Bar of Action to Consummate the Marriage 91 
 
 II. Consequences of Breach of Engagement. 
 
 1. Compensation in Damages 92 
 
 2. Satisfaction 93 
 
 III. Return of Gifts 94 
 
 IV. Limitations 95 
 
CONTENTS XXxix 
 
 SECOND SECTION. — Marital Capacity and Impediments. 
 
 A. Marital Capacity. 
 
 I. Age 96 
 
 II. Capacity of Judgment 97 
 
 III. Consent of Representatives. 
 
 1. Minors 98 
 
 2. Incapacitated Persons 99 
 
 B. Marital Impediments. 
 
 I. Relationship 100 
 
 II. Former Marriage. 
 
 1. Proof of Dissolution. 
 
 a. In General 101 
 
 b. Vanishment 102 
 
 2. Time of Waiting. 
 
 o. For Women 103 
 
 b. For Divorcees 104 
 
 THIRD SECTION. — Publication and Marriage. 
 
 A. Publication. 
 
 I. Form of Application 106 
 
 II. Place of Application and Publication 106 
 
 III. Rejection of Application 107 
 
 B. Objection. 
 
 I. Right of Objection 108 
 
 II. Objection by Officials 109 
 
 III. Procedure. 
 
 1. Communication of Objection 110 
 
 2. Decision upon the Objection Ill 
 
 3. Limitations 112 
 
 C. Betrothal (Civil Marriage). 
 
 I. General. 
 
 1. Jurisidiction of Public Officials 113 
 
 2. Refusal of the Betrothal 114 
 
 3. Betrothal without Publication 115 
 
 II. Betrothal Ceremony. 
 
 1. Publicity 116 
 
 2. Form of the Betrothal 117 
 
 III. Certificate and Religious Celebration 118 
 
 D. Regulations 119 
 
 FOURTH SECTION. — Invalidity of the Marriage. 
 
 A. Nullity. 
 
 I. Grounds therefor 120 
 
 II. Duty and Right of Suit ' 121 
 
 III. Bar and Limitation of Suit 122 
 
xl CONTENTS 
 
 B. Impeachment. 
 
 I. Complaint of Spouse. 
 
 1. Lack of Capacity of Judgment 123 
 
 2. Mistake 124 
 
 3. Fraud 125 
 
 4. Duress 126 
 
 6. Limitations 127 
 
 n. Suit by Parents or Guardians 128 
 
 C. Bar of Invalidity. 
 
 I. In Cases of Adoption 129 
 
 II. Neglect to Wait Prescribed Time 130 
 
 III. Neglect of Formal Regulations 131 
 
 D. Declaration of Invalidity. 
 
 I. Effect of Judgment .■ 132 
 
 II. Consequences. 
 
 1. As to Children 133 
 
 2. As to the Parties 134 
 
 E. Inheritability 135 
 
 F. Competency and Procedure 136 
 
 Fourth Title. — Divorce. 
 
 A. Grounds of Divorce. 
 
 I. Adultery 137 
 
 II. Plot against Life; Abuse; Defamation 138 
 
 III. Crime and Dishonorable Life 139 
 
 IV. Desertion 140 
 
 V. Mental Infirmity 141 
 
 VI. Ruin of the Marital Relationship 142 
 
 B. The Suit. 
 
 I. Form thereof 143 
 
 II. Jurisdiction 144 
 
 III. Precautionary Measures 145 
 
 C. Decree. 
 
 I. Divorce or Separation 146 
 
 II. Duration of Judicial Separation 147 
 
 III. Judgment after the Period of Separation 148 
 
 IV. Status of the Divorced Wife 149 
 
 V. Time for Waiting 150 
 
 VI. Duties upon Divorce. 
 
 1. Indemnification and Satisfaction 151 
 
 2.. Maintenance 152 
 
 3. Yearly Payments 153 
 
CONTENTS xli 
 
 VII. Separation of Property. 
 
 1. On Divorce 154 
 
 2. On Separation 155 
 
 VIII. Rights of Parents. 
 
 1. Judicial Discretion 156 
 
 2. Change of Conditions 157 
 
 D. Procedure 158 
 
 Fifth Title. — The Consequences of Marriage, in General. 
 
 A. Rights and Duties. 
 
 I. Of Both Parties 159 
 
 II. Of the Husband 160 
 
 III. Of the Wife 161 
 
 B. Representation of the Union. 
 
 I. By the Husband 162 
 
 II. By the Wife. 
 
 1. Ordinary Representation. 
 
 a. Definition 163 
 
 b. Deprivation 164 
 
 c. Revocation of Deprivation 165 
 
 2. Extraordinary Representation 166 
 
 C. Profession or Occupation of Wife 167 
 
 D. Capacity of Wife to Sue or be Sued 168 
 
 E. Protection of Marital Union. 
 
 I. In General 169 
 
 II. Sundering of Marital Household 170 
 
 III. Admonition of Those in Fault 171 
 
 IV. Term of Judicial Orders 172 
 
 V. Execution. 
 
 1. Prohibited 173 
 
 2. Exceptions. 
 
 a. The Spouse as Debtor 174 
 
 b. The Spouse as Creditor 175 
 
 c. Separation of Property and Obligation to 
 
 Contribute 176 
 
 F. Juridical Acts between Named Persons and in Favor of Husband 177 
 
 Sixth Title. — Matrimonial Regime. 
 FIRST section. — General Provisions. 
 
 A. Ordinary Property Status 178 
 
 B. Property Status under Marriage Contract. 
 
 I. Effect of Contract 179 
 
 II. Parties to Have Legal Contractual Capacity 180 
 
 III. Form of Contract 181 
 
xlii CONTENTS 
 
 C. Extraordinary Property Status. 
 
 I. Legal Separation of Property 182 
 
 II. Judicial Separation of Property. 
 
 1. Upon Petition of Wife 183 
 
 2. Upon Petition of Husband 184 
 
 3. Upon Petition of Creditors 185 
 
 III. Beginning of the Separation of Property 186 
 
 IV. Rescinding of the Separation of Property 187 
 
 D. Change of Status. 
 
 I. Liability 188 
 
 II. As to Method of Separation of Marital Property 189 
 
 E. Separate Property. 
 
 I. Origin. 
 
 1. In General 190 
 
 2. By Statute 191 
 
 II. Effect 192 
 
 III. Burden of Proof 193 
 
 SECOND SECTION. — The Union of Property. 
 
 A. Property Relations. 
 
 I. Marital Property 194 
 
 II. Property of Man and Wife 195 
 
 III. Proof Thereof 196 
 
 IV. Inventory. 
 
 1. Taking Same and its Evidential Value 197 
 
 2. Effect of Appraisement 198 
 
 V. Ownership by Husband of Wife's Property 199 
 
 B. Management, Use and Power of Disposition. 
 
 I. Management 200 
 
 II. Use 201 
 
 III. Power of Disposition. 
 
 1. Of the Husband 202 
 
 2. Of the Wife. 
 
 o. In General 203 
 
 b. Refusal of Inheritances 204 
 
 C. Security of the Wife 205 
 
 D. Liability. 
 
 I. Of the Husband 206 
 
 II. Of the Wife. 
 
 1. With all her Property 207 
 
 2. As to her Separate Property 208 
 
 E. Claims for Compensation. 
 
 I. Maturity 209 
 
 II. Bankruptcy of the Husband and Attachment. 
 
 1. Claim of Wife 210 
 
 2. Preference 211 
 
CONTENTS xliii 
 
 Dissolution of the Marital Property. 
 
 I. Death of Wife 212 
 
 II. Death of Husband 213 
 
 III. Profit and Loss 214 
 
 THIRD SECTION. — The Community of Property. 
 
 General Community of Property. 
 
 I. Marital Property 215 
 
 II. Management on Disposition. 
 
 1. Management 216 
 
 2. Disposition. 
 
 a. Disposition of Joint Property 217 
 
 6. Refusal of Inheritances 218 
 
 III. Liability. 
 
 1. Debts of Husband 219 
 
 2. Debts of Wife. 
 
 a. Of the Wife and the Joint Property 220 
 
 b. Debts of the Separate Property 221 
 
 3. Execution 222 
 
 IV. Claims for Compensation. 
 
 1. In General 223 
 
 2. Married Women's Property Claims 224 
 
 V. Dissolution of Marital Property. 
 
 1. Proportion of Shares. 
 
 a. By Law 225 
 
 b. By Contract 226 
 
 2. Liability of Survivor 227 
 
 3. Charging 228 
 
 Continuance of the Community of Property. 
 
 I. General Principle 229 
 
 II. Extent 230 
 
 III. Management and Representation 231 
 
 IV. Dissolution. 
 
 1. By Declaration 232 
 
 2. By Force of Law 233 
 
 3. By Judicial Action 234 
 
 4. By Marriage or Death of Child 235 
 
 5. Mode of Division 236 
 
 Restricted Community of Property. 
 
 I. With Separation of Property 237 
 
 II. With Union of Property 238 
 
 III. Community Restricted to Acquired Property. 
 
 1. Scope 239 
 
 2. Division of Increase or Loss 240 
 
xliv CONTENTS 
 
 FOURTH SECTION. — Separation of Properly. 
 
 A. Extent 241 
 
 B. Property, Management and Use 242 
 
 C. Liability. 
 
 I. In General 243 
 
 II. Bankruptcy of Husband and Attachment 244 
 
 D. Income and Earnings 245 
 
 E. Burden of the Marital Expenses 246 
 
 F. Marriage Tax 247 
 
 FIFTH SECTION. — The Register of Properly Rights. 
 
 A. Legal Effects 248 
 
 B. Entry. 
 
 I. Subject 249 
 
 II. Place of Entry 250 
 
 C. Control and Right of Inspection 251 
 
 SECOND DIVISION. — RELATIONSHIP. 
 Seventh Title. — Status of Legitimate Children. 
 
 FIRST section. — Legitimate Descent. 
 
 A. Presumption of Legitimacy 252 
 
 B. Contest of the Legitimacy. 
 
 I. By the Husband. 
 
 1. Limitation 253 
 
 2. Procreation during Marriage 254 
 
 3. Procreation before Marriage or during Separation 255 
 II. Contest by Others 256 
 
 C. Forfeit of Right to Contest 257 
 
 second section. — Declaration of Legitimacy. 
 
 A. By Subsequent Marriage. 
 
 I. Prefatory 258 
 
 II. Declaration 259 
 
 B. By Judicial Order. 
 
 I. Prefatory 260 
 
 II. Jurisdiction 261 
 
 C. Contest 262 
 
 D. Effect 263 
 
CONTENTS xlv 
 
 THIRD SECTION. — Adoption of Children. 
 
 A. Prefatory 
 
 I. As to the Adopting Person 264 
 
 II. As to the Person to be adopted 265 
 
 III. In Case of Married Persons 266 
 
 B. Form 267 
 
 C. Effect 268 
 
 D. Dissolution 269 
 
 FOURTH SECTION. — The Community of Parents and Children. 
 
 A. Name and Domicile 270 
 
 B. Aid and Community 271 
 
 C. Expenses of Support and Education 272 
 
 FIFTH SECTION. — The Parental Power. 
 
 A. In General. 
 
 I. Prefatory 273 
 
 II. Right to Exercise 274 
 
 B. Definition. 
 
 I. In General 275 
 
 II. Training for a Calling 276 
 
 III. Religious Training 277 
 
 IV. Power of Correction 278 
 
 V. Representation. 
 
 1. As to Third Persons. 
 
 a. By Parents 279 
 
 b. Commercial Capacity of Child 280 
 
 2. Within the Community. 
 
 a. Acts of the Children 281 
 
 b. Transactions between Parents and Children 282 
 
 C. Official Intervention. 
 
 I. Proper Provisions 283 
 
 II. Care of Children 284 
 
 III. Deprivation of Parental Power. 
 
 1. In Case of Neglectful Exercise 285 
 
 2. In Case of Remarriage 286 
 
 IV. Restoration of the Parental Power 287 
 
 V. Procedure 288 
 
 D. Duty of Parents when Power is Withdrawn 289 
 
xlvi CONTENTS 
 
 SIXTH SECTION. — Parental Property Rights. 
 
 A. Management. 
 
 I. In General 290 
 
 II. After Dissolution of Marriage 291 
 
 B. Use of Child's Property. 
 
 I. Prefatory 292 
 
 II. Meaning 293 
 
 C. Free Property of Child. 
 
 I. Free from Use 294 
 
 II. Free from Use and Management. 
 
 1. Wages 295 
 
 2. Property in Profession or Trade 296 
 
 D. Official Intervention. 
 
 I. Preservative Measures 297 
 
 II. Withdrawal of Property Rights 298 
 
 E. Liability of Parents. 
 
 I. Restitution 299 
 
 II. Measure of the Responsibility 300 
 
 III. Preference of Claim for Compensation 301 
 
 Eighth Title. — Status of Illegitimate Children. 
 
 A. Foundation, in General 302 
 
 B. Recognition. 
 
 I. Admissibility and Form 303 
 
 II. When Prohibited 304 
 
 III. Revocation. 
 
 1. Protest of Mother and Child 305 
 
 2. Contest by Third Persons 306 
 
 C. Suit for Paternity. 
 
 I. Right of Action 307 
 
 II. Limitation 308 
 
 III. Relief Sought 309 
 
 IV. Procedure. 
 
 1. Regulations as to Process 310 
 
 2. Appointment of a Curator 311 
 
 3. Jurisdiction. 
 
 u. In General 312 
 
 b. Domiciliary Jurisdiction 313 
 
 4. Presumption 314 
 
 5. Guilt of Mother 315 
 
 6. Complaint in Event of Mother's Marriage 316 
 
 V. Decree of Contributions towards Maintenance. 
 
 1. For the Mother. 
 
 a. Indemnity 317 
 
 b. Compensation 318 
 
CONTENTS xlvii 
 
 2. For the Child. 
 
 a. Maintenance 319 
 
 6. Change of Circumstances 320 
 
 3. Entering Security 321 
 
 4. Claims against Heirs 322 
 
 VI. Decree of Civil Status 323 
 
 D. Effect. 
 
 I. Relation of Mother and Child 324 
 
 II. Relation of Father and Child 325 
 
 III. Relation of Father and Mother 326 
 
 IV. Rights in Child's Property 327 
 
 Ninth Title. — The Family Community. 
 
 FIRST SECTION. — Duty of Support. 
 
 A. Those Obligated to Support 328 
 
 B. Assertion and Scope of Such Claim 329 
 
 C. Support of Foundlings 330 
 
 SECOND SECTION. — The Power over the Household. 
 
 A. Prefatory 331 
 
 B. Effect. 
 
 I. Regulation and Care of Household 332 
 
 II. Responsibility 333 
 
 III. Claim of Children 334 
 
 THIRD SECTION. — The Family Property. 
 
 A. Family Endowments 335 
 
 B. Communities. 
 
 I. Creation. 
 
 1. Authority 336 
 
 2. Form 337 
 
 II. Duration 338 
 
 III. Effect. 
 
 1. Kind of Common Ownership 339 
 
 2. Management and Representation. 
 
 a. In General 340 
 
 6. Authority of the Head 341 
 
 3. Community Goods and Personal Property 342 
 
 IV. Dissolution. 
 
 1. Causes Therefor 343 
 
 2. Notice Insolvency, Marriage 344 
 
 3. Death of a Member 345 
 
 4. Rule of Division 346 
 
xlviii CONTENTS 
 
 V. Profit-Sharing Community. 
 
 1. Definition 347 
 
 2. Special Grounds for Dissolution 348 
 
 C. Homesteads. 
 
 I. Power of Cantons 349 
 
 II. Establishment. 
 
 1. Prefatory 350 
 
 2. Procedure and Form. 
 
 a. Publication 351 
 
 b. Protection of Rights of Third Persons 352 
 
 c. Entry in Land Register 353 
 
 III. Effect. 
 
 1. Limitations on Disposition 354 
 
 2. Maintenance of Blood Relatives 355 
 
 3. In Event of Insolvency 356 
 
 IV. Dissolution. 
 
 1. By Death 357 
 
 2. During His Lifetime 358 
 
 V. Cantonal Administrative Regulations 359 
 
 THIRD DIVISION. — GUARDIANSHIP. 
 Tenth Title. — General Law of Guardianship. 
 
 FIRST section. — Instrumentalities of Guardianship. 
 
 A. In General 360 
 
 B. Guardians' Courts and Officials. 
 
 I. State Instrumentalities 361 
 
 11. Family Guardianships. 
 
 1. When Permissible and Meaning 362 
 
 2. Appointment 363 
 
 3. Family Council 364 
 
 4. Security 365 
 
 5. Dissolution 366 
 
 C. Guardian and Curator 367 
 
 SECOND SECTION. — Cases jor Guardianship. 
 
 A. Minority 368 
 
 B. Incapacity of Adults. 
 
 I. Mentally Infirm or Weak 369 
 
 II. Prodigality, Drunkenness, Dissipated Life or Misman- 
 agement 370 
 
 III. Restraint of Liberty 371 
 
 IV. Own Petition 372 
 
CONTENTS xlix 
 
 C. Procedure. 
 
 I. In General 373 
 
 II. Hearing and Expert Testimony 374 
 
 III. Publication 375 
 
 THIRD SECTION. — Jurisdiction. 
 
 A. Guardian Appointed at Residence 376 
 
 B. Change of Residence 377 
 
 C. Rights of Domiciliary Canton 378 
 
 FOURTH SECTION. — Appointment of the Guardian. 
 
 A. Prefatory. 
 
 I. In General 379 
 
 II. Priority of Relatives and Spouse 380 
 
 III. Wishes of Ward and the Parents 381 
 
 IV. General Duty of Assumption 382 
 
 V. Grounds for Declination 383 
 
 VI. Grounds for Exclusion 384 
 
 B. Order of Choice. 
 
 I. Nomination of the Guardian 385 
 
 II. Preliminary Provisions 386 
 
 III. Notice and Publication 387 
 
 IV. Declination and Contest. 
 
 1. Procedure 388 
 
 2. Preliminary Duty of Appointee 389 
 
 3. Decision 390 
 
 V. Transfer of the Office , 391 
 
 FIFTH SECTION — Curator ship. 
 
 A. Cases for Curatorship. 
 
 I. Representation 392 
 
 II. Property Management. 
 
 1. By Virtue of Law 393 
 
 2. Upon His Own Petition 394 
 
 III. Limitation of the Commercial Capacity 395 
 
 B. Jurisdiction 396 
 
 C. Appointment of the Curator 397 
 
 Eleventh Title. — Duties of Guardian. 
 
 FIRST section. — The Office of Guardian. 
 
 A. Acceptance of the Office. 
 
 I. Inventory 398 
 
 II. Care of Valuables 399 
 
1 CONTENTS 
 
 III. Alienation of Movables 400 
 
 IV. Investment of Money. 
 
 1. Duty to Invest 401 
 
 2. Change of Capital Investments 402 
 
 V. Business and Trade 403 
 
 VI. Realty 404 
 
 B. Care and Representation. 
 
 I. Care for the Person. 
 
 1. Of Minors 405 
 
 2. Of Legally Incapacitated 406 
 
 II. Representation. 
 
 1. In General 407 
 
 2. Forbidden Transactions 408 
 
 3. Co-operation of Ward 409 
 
 4. Independent Action. 
 
 a. Consent of Guardian 410 
 
 b. Consent not Given 411 
 
 5. Profession or Trade 412 
 
 C. Property Management. 
 
 I. Duty to Manage and Give Account 413 
 
 II. Free Property 414 
 
 D. Length of Term 415 
 
 E. Compensation of Guardian 416 
 
 SECOND SECTION. — The Of ice of Curator, 
 
 A. Position of Curator 417 
 
 B. Meaning- of Curatorship. 
 
 I. For a Special Purpose 418 
 
 II. For Management of Property 419 
 
 THIRD SECTION. — Co-operation of Guardians' Officials. 
 
 A. Complaints 420 
 
 B. Consent. 
 
 I. Of Guardians' Court 421 
 
 II. Of Supervising Orphan Council 422 
 
 C. Audit of Reports and Accounts 423 
 
 D. Meaning of Consent 424 
 
 E. Cantonal Ordinances 425 
 
 FOURTH SECTION. — Responsibility of Guardianship Officials. 
 
 A. In General. 
 
 I. Guardian and Officials 426 
 
 II. Communities, Distinct and Canton 427 
 
CONTENTS H 
 
 B. Prefatory. 
 
 I. Concerning the Members of a Court 428 
 
 II. Relation of Instrumentalities to One Another 429 
 
 C. Assertion Thereof 43O 
 
 Twelfth Title. — The End of the Guardianship. 
 FIRST SECTION. — The End 0} the Wardship. 
 
 A. Minors 43I 
 
 B. Convicts 432 
 
 C. Other Wards. 
 
 I. Prefatory of the Termination 433 
 
 II. Procedure. 
 
 1. In General 434 
 
 2. Publication 435 
 
 3. In Case of Mental Infirmity 436 
 
 4. In Case of Prodigality, Drunkenness, Dissolute 
 
 Life or Mismanagement 437 
 
 5. Upon Own Petition 438 
 
 D. In Case of a Curatorship. 
 
 I. In General 439 
 
 II. Publication 440 
 
 SECOND SECTION. — The End of the Guardian's Office. 
 
 A. Commercial Incapacity, Death 441 
 
 B. Discharge, Non-reappointment. 
 
 I. Running of the Time of Office 442 
 
 II. Entry of Grounds for Exclusion or Refusal 443 
 
 III. Duty to Act Longer 444 
 
 C. Dismissal from Office. 
 
 I. Grounds Therefor 445 
 
 II. Procedure. 
 
 1. Upon Petition and by Official Act 446 
 
 2. Investigation and Punishment 447 
 
 3. Preliminary Measures 448 
 
 4. Further Measures 449 
 
 5. Appeals 450 
 
 THIRD SECTION. — - The Consequences of Its Termination. 
 
 A. Final Account and Transfer of Property 451 
 
 B. Audit of Final Report and Account 452 
 
 C. Discharge of Guardian 453 
 
 D. Claim for Damages. 
 
 I. Ordinary Limitation 454 
 
 II. Extraordinary Limitation 455 
 
 E. Preference of Claim for Compensation 456 
 
Hi CONTENTS 
 
 THIRD PART. 
 THE LAW OF INHERITANCE. 
 FIRST DIVISION. — THE HEIRS. 
 
 Thirteenth Title. — The Legal Heirs. 
 
 A. Heirs of the Blood. 
 
 I. Descendants 457 
 
 II. Parental Stem 458 
 
 III. Grandparental Stem 459 
 
 IV. Great Grandparents 460 
 
 V. Illegitimate Relatives 461 
 
 B. Surviving Spouse. 
 
 I. Claim of Inheritance 462 
 
 II. Substitution and Security 463 
 
 III. Security for the Co-heirs 464 
 
 C. Adopted Children 465 
 
 D. Commonwealth 466 
 
 Fourteenth Title. — Dispositions Mortis Causa. 
 
 FIRST section. — The Disposing Capacity. 
 
 A. Last Will 467 
 
 B. Contract of Inheritance 468 
 
 C. Imperfect Will 469 
 
 SECOND SECTION. — Freedom of Disposition. 
 
 A. Disposable Portion. 
 
 I. Extent ofDisposing Capacity 470 
 
 II. Statutory Share 471 
 
 III. Cantonal Rights Reserved 472 
 
 IV. Exception in Favor of Spouse 473 
 
 V. Computation of Disposable Share. 
 
 1. Deduction of Debts 474 
 
 2. Donations inter vivos 475 
 
 3. Claims for Compensation 476 
 
 B. Disinherison. 
 
 I. Reasons 477 
 
 II. Effect 478 
 
 III. Burden of Proof 479 
 
 IV. Disinherison of an Insolvent One 480 
 
CONTENTS liii 
 
 THIRD SECTION. — Methods of Disposition. 
 
 A. Generally , 481 
 
 B. Burdens and Conditions 482 
 
 C. Appointment of Heirs 483 
 
 D. Bequest. 
 
 I. Meaning 484 
 
 II. Obligation of One Charged 485 
 
 III. Relation to the Inheritance- 486 
 
 E. Disposition by way of Substitution 487 
 
 F. Appointment of a Reversionary Heir. 
 
 I. Naming the Reversionary Heir 488 
 
 II. Time for the Delivery 489 
 
 III. Means of Security 490 
 
 IV. Legal Status. 
 
 1. Of First Taker 491 
 
 2. Of Reversionary Heir 492 
 
 G. Endowments 493 
 
 H. Contracts of Inheritance. 
 
 I. Contracts for Appointment of Heirs or for Bequests . . . 494 
 II. Renunciation of an Inheritance. 
 
 1. Meaning 495 
 
 2. Free Inheritance 496 
 
 3. Rights of Creditors of Heirs 497 
 
 FOURTH SECTION. — Testamentary Forms. 
 
 A. Last Will. 
 
 I. Execution. 
 
 1. Generally 498 
 
 2. Public Disposition. 
 
 a. Form thereof 499 
 
 6. Co-operation of the Official 500 
 
 c. Co-operation of the Witnesses 501 
 
 d. Execution without Reading and Subscription 
 
 by Decedent 502 
 
 e. Co-operating Persons 503 
 
 /. Custody of Document 504 
 
 3. Holographic Writings 505 
 
 4. Nuncupative Disposition. 
 
 a. The Disposition 506 
 
 b. Publication 507 
 
 c. Loss of Validity 508 
 
 II. Revocation and Destruction. 
 
 1. Revocation 509 
 
 2. Destruction 510 
 
 3. Later Disposition 511 
 
liv CONTENTS 
 
 B. Contracts of Inheritance. 
 
 I. Execution 512 
 
 II. Dissolution. 
 
 1. Between the Living. 
 
 a. By Contract and Last Will 513 
 
 h. By Withdrawal from Contract 514 
 
 2. Predecease of Heir 515 
 
 C. Restriction of Disposition 516 
 
 FIFTH SECTION. — Executors. 
 
 A. Conferring the Commission 517 
 
 B. Meaning of the Commission 518 
 
 SIXTH SECTION. — The Invalidity and Reduction of Dispositions. 
 
 A. Complaint of Invalidity. 
 
 I. For Lack of Testamentary Capacity, Imperfect Will, 
 
 Illegality and Immorality 519 
 
 II. For Imperfect Form 520 
 
 III. Limitation 521 
 
 B. Complaint for Reduction. 
 
 I. Prefatory. 
 
 1. Generally 522 
 
 2. Favoring those Entitled to Statutory Shares 523 
 
 3. Rights of Creditors 524 
 
 II.S Effect. 
 
 1. Reduction in General 525 
 
 2. Bequest of a Single Article 526 
 
 3. Donations inter vivos. 
 
 u,. Cases 527 
 
 I. Return 528 
 
 4. Insurance Claims 529 
 
 5. Life Estate and Annuities 530 
 
 6. Reversionary Heirship 531 
 
 III. Procedure 532 
 
 IV. Limitation 533 
 
 SEVENTH SECTION. — Claims Arising out of Contracts of Inheritance. 
 
 A. Claims in Case of Transfers in Lifetime of Testator 534 
 
 B. Adjustment in case of Renunciation by Heir. 
 
 I. Abatement 535 
 
 II. Refunding 536 
 
CONTENTS Iv 
 
 SECOND DIVISION.— THE SUCCESSION. 
 
 Fifteenth Title. — The Opening of the Succession. 
 
 A. Prefatory, from Decedent's Side 537 
 
 B. Place of Succession and Jurisdiction 538 
 
 C. Prefatory, from Heir's Side. 
 
 I. Capacity. 
 
 1. Legal Capacity 539 
 
 2. Unworthiness to Inherit. 
 
 a. Grounds 540 
 
 b. Effect upon Issue 541 
 
 II. Surviving the Succession. 
 
 1. As Heir 542 
 
 2. As Legatee 543 
 
 3. The Child before Birth 544 
 
 4. Reversionary Heirs 545 
 
 D. Vanishment. 
 
 I. Inheritance from One Vanished. 
 
 1. Succession upon Security Given 546 
 
 2. End of Vanishment and Restoration 547 
 
 II. Right of Inheritance of Vanished One 548 
 
 III. Relation of the Two Cases to One Another 549 
 
 IV. Official Action 550 
 
 Sixteenth Title. — The Effects of Succession. 
 
 FIRST section. — Regulations for Security. 
 
 A. Generally 551 
 
 B. Sealing of the Inheritance 552 
 
 C. Inventory 553 
 
 D. Administration. 
 
 I. Generally 654 
 
 II. In Case of Heirs, Unknown 555 
 
 E. Opening of Will. 
 
 I. Duty to Present it 556 
 
 II. Opening 557 
 
 III. Notice to the Parties 558 
 
 IV. Transfer of the Inheritance 659 
 
 second section. — The Acquisition of the Inheritance. 
 
 A. Acquisition. 
 
 I. Heirs 660 
 
 II. Those Entitled to Usufruct 561 
 
Ivi CONTENTS 
 
 III. Legatees. 
 
 1. Acquisition 562 
 
 2. Object 563 
 
 3. Relation of Creditors and Legatees 564 
 
 4. Abatement 565 
 
 B. Renunciation. 
 
 L Declaration. 
 
 1. Right 566 
 
 2. Limitation. 
 
 a. Generally 567 
 
 b. In Case of Inventory Taken 568 
 
 3. Transfer of Right to Renounce 569 
 
 4. Form 570 
 
 II. Forfeiture of Right to Renounce 571 
 
 III. Renunciation by a Co-heir 572 
 
 IV. Renunciation by All Next Heirs. 
 
 1. In General 573 
 
 2. Right of Surviving Spouse 574 
 
 3. Renunciation in Favor of Next Heirs 575 
 
 V. Extension of Time 576 
 
 VI. Renunciation of a Legacy 677 
 
 VII. Security for Creditors of an Heir 578 
 
 VIII. Responsibility in Case of Renunciation 579 
 
 THIRD SECTION. — Public Inventory. 
 
 A. Prefatory 580 
 
 B. Procedure. 
 
 I. Inventory 581 
 
 II. Call to Account 582 
 
 III. Taking upon Official Motion 583 
 
 IV. Result 584 
 
 C. Relation of Heirs during the Inventory. 
 
 I. Administration 585 
 
 II. Collection, Process and Limitation 586 
 
 D. Effect. 
 
 I. Time for Declaration 587 
 
 II. Declaration 588 
 
 III. Consequences of Acceptance Under a Public Inventory. 
 
 1. Liability According to Inventory 589 
 
 2. Liability Outside of Inventory 590 
 
 E. Liability for Security Debts 591 
 
 F. Acquisition by the Commonwealth 692 
 
CONTENTS Ivii 
 
 FOURTH SECTION. — The Official Liquidation. 
 
 A. Prefatory. 
 
 I. Petition of an Heir 593 
 
 II. Petition of Creditors of Decedent 594 
 
 B. Procedure. 
 
 I. Administration 595 
 
 II. Ordinary Liquidation 696 
 
 III. Liquidation in Bankruptcy 597 
 
 FIFTH SECTION. — Action for an Inheritance. 
 
 A. Prefatory 598 
 
 B. Effect 699 
 
 C. Limitation 800 
 
 D. Complaint of Legatees 601 
 
 Seventeenth Title. — Division of the Inheritance. 
 
 FIRST section. — The Community before Division. 
 
 A. Effect of the Succession. 
 
 I. Community of Heirs 602 
 
 II. Liability of Heirs 603 
 
 B. Claim for Division 604 
 
 C. Postponement of the Division 605 
 
 D. Claims of Household Companions 606 
 
 SECOND SECTION. — Method of Division. 
 
 A. In General 607 
 
 B. Order of Division. 
 
 I. Disposition by Decedent 608 
 
 II. Co-operation of Courts 609 
 
 C. Procedure in Division. 
 
 I. Heirs' Equal Rights 610 
 
 II. Making up of Lots 611 
 
 III. Donation and Sale of Single Things 612 
 
 D. Special Articles. 
 
 I. Things Belonging Together; Family Documents 613 
 
 II. Claims of Decedent against Heirs 614 
 
 III. Pledged Articles of Inheritance 615 
 
 IV. Realty. 
 
 1. Parceling 616 
 
 2. Acceptance. 
 
 a. Charge Value 617 
 
 6. Method of Appraising Value 618 
 
 3. Share of Co-heirs in Increase 619 
 
Iviii CONTENTS 
 
 V. Agricultural Trade. 
 
 1. Exclusion from Division 620 
 
 2. Designation of the One to Take It 621 
 
 3. Community of Heirs. 
 
 o. Claim 622 
 
 b. Dissolution 623 
 
 4. Settlement with Hereditary Rents 624 
 
 VI. Other Trades 625 
 
 THIRD SECTION. — The Adjustment. 
 
 A. Duty of Heirs to Adjust 626 
 
 B. Adjustment upon Decease of Heirs 627 
 
 C. Method of Computation. 
 
 I. Throwing in or Charging Against 628 
 
 II. Relation to the Heir's Portion 629 
 
 III. Adjustment Value 630 
 
 D. Costs of Education 631 
 
 E. Occasional Gifts 632 
 
 F. Adjustment of Contributions to the House Community 633 
 
 FOURTH SECTION. — Conclusion and Effect of the Division. 
 
 A. Conclusion of the Contract. 
 
 I. Contract for Division 634 
 
 II. Contract as to Hereditary Shares 635 
 
 III. Contract Before the Succession 636 
 
 B. Liability of Co-heirs among Themselves. 
 
 I. Guaranty 637 
 
 II. Contest of the Division 638 
 
 C. Liability to Third Persons. 
 
 I. Joint Liability 639 
 
 II. Contribution from Co-heirs 640 
 
 FOURTH PART. 
 
 THE LAW OF THINGS. 
 FIRST DIVISION. — OWNERSHIP. 
 
 Eighteenth Title. — General Provisions. 
 
 A. Definition of Property Therein 641 
 
 B. Extent of Property. 
 
 I. Component Parts 642 
 
 II. Natural Fruits 643 
 
CONTENTS lix 
 
 III. Appurtenance. 
 
 1. Definition 644 
 
 2. Exceptions 645 
 
 C. Ownership in Common. 
 
 I. Co-ownership. 
 
 1. Relation of Co-owners 646 
 
 2. Administration 647 
 
 3. Control over the Thing 648 
 
 4. Bearing of Costs and Charges 649 
 
 5. Dissolution. 
 
 a. Claim for a Division 660 
 
 6. Method of Division 651 
 
 II. Joint Ownership. 
 
 1. Prefatory 652 
 
 2. Eflect 653 
 
 3. Dissolution 654 
 
 Nineteenth Title. — Ownership of Land. 
 
 FIRST section. — Subject, Acquisition and Loss of Ownership in Land. 
 
 A. Subject 655 
 
 B. Acquisition. 
 
 I. Entry 656 
 
 II. Methods of Acquisition. 
 
 1. Transfer 657 
 
 2. Appropriation 658 
 
 3. Formation of New Land 659 
 
 4. Shifting of Land 660 
 
 5. Prescription. 
 
 a. Ordinary Prescription 661 
 
 b. Extraordinary Prescription 662 
 
 c. Limitation 663 
 
 6. Ownerless and Public Things 664 
 
 III. Right of Entry 665 
 
 C. Loss 666 
 
 SECOND section. — Definition and Limitations of Ownership of Land. 
 
 A. Definition 667 
 
 I. Scope. 
 II. Definition of Boundaries. 
 
 1. Method 668 
 
 2. Duty to Mark Out Boundaries 669 
 
 3. Co-ownership in Boundary Markers 670 
 
Ix CONTENTS 
 
 III. Buildings upon Land. 
 
 1. Soil and Building Material. 
 
 a. Property Relation 671 
 
 6. Compensation 672 
 
 c. Transfer of Ownership in the Land 673 
 
 2. Buildings Extending Over 674 
 
 3. Right to Build 675 
 
 4. Conduits 676 
 
 5. Movable Buildings 677 
 
 IV. Plantings upon the Law 678 
 
 V. Responsibility of Land Owner 679 
 
 B. Restrictions. 
 
 I. In General 680 
 
 II. Restraints upon Alienation. 
 
 1. Pre-emption. 
 
 a. By Reason of a Notation 681 
 
 b. Among Co-owners 682 
 
 2. Right to Buy and Right to Buy Back 683 
 
 III. Right of a Neighbor. 
 
 1. Way of Using the Property 684 
 
 2. Digging and Building. 
 
 a. The Rule 685 
 
 b. Cantonal Regulations 686 
 
 3. Planting. / 
 
 a. The Rule 687 
 
 b. Cantonal Regulations 688 
 
 4. Surface Waters 689 
 
 5. Surface Drainage 690 
 
 6. Through Drainage. 
 
 a. Duty to Allow It 691 
 
 b. Protection of Interest of Burdened One .... 692 
 
 c. Change of Circumstances 693 
 
 7. Rights of Way. 
 
 a. Way of Necessity 694 
 
 b. Other Rights of Way 695 
 
 c. Recording 696 
 
 8. Enclosure 697 
 
 9. Duty to Maintain 698 
 
 IV. Right of Entry and Defense. 
 
 1. Entry 699 
 
 2. Removal of Things Deposited and the Like 700 
 
 3. Protection against Danger or Damage 701 
 
 V. Public Law's Restrictions. 
 
 1. In General 702 
 
 2. Soil Improvements 703 
 
 C. Rights to Springs and Wells. 
 
 I. Ownership and Right in Springs 704 
 
CONTENTS Ixi 
 
 II. Diversion of Springs 7q5 
 
 III. Digging Away of Springs. 
 
 1. Compensation for Damages 706 
 
 2. Restoring 7q7 
 
 IV. Community of Springs 708 
 
 V. Use of Springs 709 
 
 VI. Wells of Necessity 7]^0 
 
 VII. Duty of Cession. 
 
 1. Of Water 71I 
 
 2. Of Land ! ! ' . 712 
 
 Twentieth Title. — Movable Property. 
 
 A. Subject 7]^3 
 
 B. Methods of Acquisition. 
 
 I. Transfer. 
 
 1. Change of Possession 714 
 
 2. Reservation of Ownership. 
 
 a. In General 715 
 
 6. In Case of Settlements 716 
 
 3. Acquisition without Possession 717 
 
 II. Appropriation. 
 
 1. Ownerless Things 718 
 
 2. Animals becoming Ownerless 719 
 
 III. Finds. 
 
 1. Notification, Inquiry 720 
 
 2. Safe Keeping, Public Sale 721 
 
 3. Acquisition of Property, Return 722 
 
 4. Treasure Trove 723 
 
 5. Scientific Articles 724 
 
 IV. Accession 725 
 
 V. Working up 726 
 
 VI. Joining or Mixing Together 727 
 
 VII. Prescription 728 
 
 C. Loss 729 
 
 SECOND DIVISION. — RESTRICTED REAL RIGHTS. 
 
 Twenty-first Title. — Servitudes and Charges on Land. 
 
 FIRST section. — Land Servitudes. 
 
 A. Subject 730 
 
 B. Creation and Extinguishment. 
 
 I. Creation. 
 
 1. Entry 731 
 
 2. Contract 732 
 
 3. Creation to One's Own Detriment 733 
 
Ixii CONTENTS 
 
 II. Extinguishment. 
 
 1. In General 734 
 
 2. Merger 735 
 
 3. Extinguishment Judicially 736 
 
 C. Content. 
 
 I. Scope. 
 
 1. In General 737 
 
 2. According to Entry 738 
 
 3. In Case of Changed Necessity 739 
 
 4. By Cantonal Law and Local Custom 740 
 
 II. Burden of Maintenance 741 
 
 III. Changes of the Burden. 
 
 L Transfer 742 
 
 2. Division. 
 
 o. Of the Dominant Tenement 743 
 
 b. Of the Servient Tenement ....". 744 
 
 SECOND SECTION. — Usufruct and other Servitudes. 
 
 A. Usufruct. 
 
 I. Subject 745 
 
 II. Creation. 
 
 1. In General 746 
 
 2. By Prescript of Law 747 
 
 III. Extinguishment. 
 
 1. Grounds Therefor 748 
 
 2. Term 749 
 
 3. Indemnification upon Extinguishment 750 
 
 4. Restoration. 
 
 a. Duty 751 
 
 b. Responsibility 752 
 
 c. Expenditures 753 
 
 5. Lapse of Claims for Compensation 754 
 
 IV. Definition. 
 
 1. Rights of the Usufruct Owner. 
 
 a. In General 755 
 
 b. Natural Fruits 756 
 
 c. Interest 757 
 
 d. Transferability 758 
 
 2. Right of the Property Owner. 
 
 a. Oversight 759 
 
 b. Security 760 
 
 c. Security in Case of a Donation and Legal 
 
 Usufruct 761 
 
 d. Consequences of not Furnishing Security . . . 762 
 
 3. Duty to take Inventory 763 
 
CONTENTS Ixiii 
 
 4. Burdens. 
 
 a. Case of the Thing 764 
 
 b. Maintenance and Management 765 
 
 c. Duty to Pay Interest in Case of Usufruct in 
 
 Any Property 766 
 
 d. Insurance 767 
 
 V. Special Cases. 
 
 1. Land. 
 
 a. Fruits 768. 
 
 b. Economical Use • 769 
 
 c. Woodland 770 
 
 d. Mines 771 
 
 2. Perishable and Appraised Things 772 
 
 3. Claims. 
 
 a. Definition 773 
 
 b. Repayments and Reinvestments 774 
 
 c. Right to Delivery 775 
 
 B. Right of Residence. 
 
 I. In General 776 
 
 II. Privileges Belonging Thereto 777 
 
 III. Charges 778 
 
 C. Right to Build 779 
 
 D. Right to Springs 780 
 
 E. Other Servitudes 781 
 
 THIRD SECTION. — Charges on Land. 
 
 A. Subject 782 
 
 B. Creation and Termination. 
 
 I. Creation. 
 
 1. Entry and Method of Acquisition 783 
 
 2. Charges on Land by Public Law 784 
 
 3. For Purposes of Security 785 
 
 II. Termination. 
 
 1. In General 786 
 
 2. Discharge. 
 
 a. By the Creditor 787 
 
 b. By the Debtor 788 
 
 c. Consideration Therefor 789 
 
 3. Meaning 790 
 
 I. Right of the Creditor 791 
 
 II. Duty to Pay 792 
 
Ixiv CONTENTS 
 
 Twenty-second Title. — The Land Pledge. 
 
 FIRST SECTION. — General Provisions. 
 
 A. Prefatory. 
 
 I. Kinds 793 
 
 II. Form of the Claim. 
 
 1. Amount 794 
 
 2. Interest 795 
 
 III. Land. 
 
 1. Availability as a Security 796 
 
 2. Definiteness. 
 
 a. One Parcel of Land 797 
 
 h. Several Parcels of Land 798 
 
 B. Creation and Termination. 
 
 I. Creation. 
 
 1. Entry 799 
 
 2. Community Property 800 
 
 II. Termination 801 
 
 III. Land Pledges in Case of United States. 
 
 1. Shifting of Right of Pledge 802 
 
 2. Notice by Debtor 803 
 
 3. Compensation in Money 804 
 
 C. Effect. 
 
 I. Scope of the Obligation 805 
 
 II. House and Farm Rents 806 
 
 III. Limitation 807 
 
 IV. Rights to Security. 
 
 1. Measures in Case of Impairment of Values. 
 
 a. Prohibition and Self-help 808 
 
 b. Security Restoration, Payment 809 
 
 2. Innocent Impairments of Value 810 
 
 3. Severance of Small Parcels 811 
 
 V. Further Charging 812 
 
 VI. Priority of Pledges. 
 
 1. Eflect Thereof 813 
 
 2. Priority of Pledges Amongst Themselves 814 
 
 3. Vacant Positions among Pledges 815 
 
 VII. Satisfaction out of the Pledge. 
 
 1. Method Thereof 816 
 
 2. Division of the Proceeds 817 
 
 3. Scope of the Security 818 
 
 4. Security for Maintenance Expenses 819 
 
 VIII. Right of Lien in Case of Improvements of Soil. 
 
 1. Preference 820 
 
 2. Liquidation of the Debt and Right of Lien 821 
 
 IX. Claim for the Amount of Insurance 822 
 
 X. Representation of the Creditor 823 
 
CONTENTS IXV 
 
 SECOND SECTION. — The Entry for Security against Land. 
 
 A. Purpose and Form 824 
 
 B. Creation. 
 
 I. Creation g25 
 
 II. Termination. 
 
 1. Right to Cancellation 826 
 
 2. Position of the Property Owner 827 
 
 3. Unilateral Discharge. 
 
 a. Conditions and Enforcement 828 
 
 b. Public Auction 829 
 
 c. Official Valuation 830 
 
 4. Notice of the Claim 831 
 
 C. Effect. 
 
 I. Property and Indebtedness. 
 
 1. Alienation 832 
 
 2. Subdivision of the Land 833 
 
 3. Notice of the Assumption of the Debt 834 
 
 II. Transfer of the Claim 835 
 
 D. Lien by Operation of Law. 
 
 I. Without Entry 836 
 
 II. With Entry. 
 
 1. Cases 837 
 
 2. Vendor, Co-heirs, and Co-partners 838 
 
 3. Laborers and Contractors. 
 
 a. Entry 839 
 
 b. Rank 840 
 
 c. Preference 841 
 
 THIRD SECTION. — Mortgage and Ground Rent. 
 
 A. Mortgage. 
 
 I. Purpose and Form 842 
 
 II. Valuation 843 
 
 III. Termination upon Notice 844 
 
 IV. Position of Property Owner 845 
 
 V. Alienation, Subdivision 846 
 
 B. Ground Rent. 
 
 I. Purpose and Form 847 
 
 II. Extent of Charge 848 
 
 III. Responsibility of the State 849 
 
 IV. Redeemability 850 
 
 V. Obligation and Property 851 
 
 VI. Subdivision 852 
 
 VII. Cantonal and Hereditary Ground Rents 853 
 
Ixvi CONTENTS 
 
 C. Common Regulations. 
 
 I. Creation. 
 
 1. Form of the Claim 854 
 
 2. Relation to Original Claim 855 
 
 3. Entry and Pledge Title. 
 
 a. Necessity of the Pledge Title 856 
 
 b. Furnishing the Pledge Title 857 
 
 c. Form of the Pledge Title 858 
 
 4. Designation of the Creditor. 
 
 a. Upon Delivery 859 
 
 b. With Power of Attorney 860 
 
 6. Place of Payment 861 
 
 6. Payment after Transfer of Claim 862 
 
 II. Termination. 
 
 1. Disappearance of Creditor 863 
 
 2. Cancellation 864 
 
 III. Rights of the Creditor. 
 
 1. Shield of Good Faith. 
 
 a. By Reason of the Entry 865 
 
 b. By Reason of the Pledge Title 866 
 
 c. Relation of the Title to the Entry 867 
 
 2. Making Effective 868 
 
 3. Transfer 869 
 
 IV. Declaring Invalid. 
 
 1. In Case of Loss 870 
 
 2. Summons of the Creditor 871 
 
 V. Objections of the Debtor 872 
 
 VI. Delivery of the Pledge Title upon Payment 873 
 
 VII. Changes in Legal Relations 874 
 
 FOURTH SECTION. — Issue of Loan Certificates with Right of Pledge inLands. 
 
 A. Obligations for Loans with Right of Pledge 875 
 
 B. Delivery of Mortgages and Ground Rents in Series. 
 
 I. In General 876 
 
 II. Form 877 
 
 III. Amortization 878 
 
 IV. Entry 879 
 
 V. Effect. 
 
 1. Place of Issue 880 
 
 2. Repayment. 
 
 a. Plan of Liquidation 881 
 
 b. Supervision 882 
 
 c. Disposition of Repayments 883 
 
CONTENTS Ixvii 
 
 Twenty-Third Title. — Pledge of Movables. 
 
 FIRST SECTION. — Pledge of Hand and Right of Retention. 
 I. Creation. 
 
 1. Possession of the Creditor 884 
 
 2. Pledge of Cattle 885 
 
 3. Successive Pledging 886 
 
 4. Pledging by the Pledgee 887 
 
 II. Termination. 
 
 1. Loss of Possession 888 
 
 2. Duty to Return 889 
 
 3. Liability of the Creditor 890 
 
 III. Effect. 
 
 1. Rights of the Creditor 891 
 
 2. Extent of Liability 892 
 
 3. Order of Rights of Pledge 893 
 
 4. Contract for Forfeiture 894 
 
 B. Right of Retention. 
 
 I. Prefatory 895 
 
 II. Exceptions 896 
 
 III. Upon Insolvency 897 
 
 IV. Effect 898 
 
 SECOND SECTION. — Right of Pledge in Claims and Other Rights. 
 
 A. In General 899 
 
 B. Creation. 
 
 I. In Case of Claims with or without an Evidence of 
 
 Indebtedness 900 
 
 II. In Case of Securities 901 
 
 III. In Case of Receipts for Goods 902 
 
 IV. Subsequent Pledge 903 
 
 C. Effect. 
 
 I. Extent of Lien 904 
 
 II. Representation of Pledged Shares 905 
 
 III. Administration and Repayment 906 
 
 THIRD SECTION. — The Pawn Pledge. 
 
 A. Pawn Shop. 
 
 I. Grant of Right to the Business 907 
 
 II. Time 908 
 
 B. Right of Pawn Pledge. 
 
 I. Creation 909 
 
 II. Effect. 
 
 1. Sale of the Pledge 910 
 
 2. Right to Surplus 911 
 
Ixviii CONTENTS 
 
 III. Redemption of the Pledge. 
 
 1. Right to Redeem 912 
 
 2. Rights of the Pawn Shop 913 
 
 C. Purchase with Right of Repurchase given 914 
 
 D. Regulation of the Business 915 
 
 FOURTH SECTION. — Certificates of Pledge. 
 
 A. Meaning 916 
 
 B. Form 917 
 
 C. Authorization for Issue Thereof 918 
 
 THIRD DIVISION. — POSSESSION AND THE LAND REGISTER. 
 
 Twenty-Fourth Title. — Possession. 
 
 A. Definition and Kinds. 
 
 I. Definition 919 
 
 II. Independent and Dependent Possession 920 
 
 III. Temporary Interruption 921 
 
 B. Transfer. 
 
 I. Between Persons Present 922 
 
 II. Between Persons not Present 923 
 
 III. Without Delivery 924 
 
 IV. In Case of Receipts for Goods 925 
 
 C. Significance. 
 
 I. Protection of Possession. 
 
 1. Self-help 926 
 
 2. Action for Deprivation of Possession 927 
 
 3. Action for Disturbance of Possession 928 
 
 4. Jurisdiction Over and Limitation of the Action . . 929 
 II. Protection of the Right. 
 
 1. Presumption of Property 930 
 
 2. Presumption in Case of Dependent Possession . . . 931 
 
 3. Action against the Possessor 932 
 
 4. Right of Disposition and Reclaiming. 
 
 a. In Case of Bailed Things 933 
 
 6. In Case of Lost Things 934 
 
 c. In Case of Money and Securities 935 
 
 d. In Case of Bad Faith to Holder 936 
 
 5. Presumption in Case of Realty 937 
 
 III. Responsibility. 
 
 1. Possessor in Good Faith. 
 
 o. Use 938 
 
 b. Claim for Compensation 939 
 
 2. Possessor in Bad Faith 940 
 
 IV. Prescription 941 
 
CONTENTS Ixix 
 
 Twenty-fifth Title. — The Land Register. 
 
 A. Establishment. 
 
 I. Form. 
 
 1. In General 942 
 
 2. Admission. 
 
 a. Subject 943 
 
 6. Exceptions 944 
 
 3. Books. 
 
 a. Main Book 945 
 
 b. Leaves of the Register 946 
 
 c. Collective Leaves 947 
 
 d. Day Book, Deeds 948 
 
 4. Regulations 949 
 
 5. Land Register Surveys 950 
 
 IL Keeping the Registers. 
 
 1. Districts. 
 
 a. Jurisdiction 951 
 
 b. Land in Several Districts 952 
 
 2. Land Registry 953 
 
 3. Fees 954 
 
 IIL Registrars. 
 
 1. Responsibility 955 
 
 2. Supervision 956 
 
 3. Disciplinary Regulations 957 
 
 B. Entry. 
 
 L Land Register Entries. 
 
 1. Property Ownership and Real Rights 958 
 
 2. Notations. 
 
 a. Personal Rights 959 
 
 6. Limitations on Disposition 960 
 
 c. Preliminary Entry 961 
 
 II. Limitations of the Public Law 962 
 
 III. Preliminary to the Entry. 
 
 1. Publication. 
 
 a. In Case of Entries 963 
 
 b. In Case of Cancellations 964 
 
 2. Evidence. 
 
 a. Legal Evidence 965 
 
 b. Completion of the Evidence 966 
 
 IV. Mode of Entry. 
 
 1. In General 967 
 
 2. In Case of Servitudes 968 
 
 V. Duty to Notify 969 
 
 C. Publicity of the Land Register 970 
 
IXX CONTENTS 
 
 D. Effect. 
 
 I. Significance of Non-Entry 971 
 
 II. Significance of the Entry. 
 
 1. In General 972 
 
 2. As against Third Persons Acting in Good Faith . . 973 
 
 3. As against Third Persons Acting in Bad Faith . . . 974 
 
 E. Cancellation and Change of Entries. 
 
 I. In Case of Unjustified Entries 975 
 
 II. Upon Termination of the Real Right 976 
 
 III. Corrections 977 
 
 CONCLUDING TITLE. 
 
 Introductory and Inaugurating Provisions. 
 
 FIRST SECTION. — The Application of the Old and New Law. 
 
 A. General Provisions. 
 
 I. Rule of Non-retroaction 1 
 
 II. Retroaction. 
 
 1. Public Order and Morality 2 
 
 2. Definition of Legal Relations under the Statute 3 
 
 3. Rights not Acquired 4 
 
 B. Rights of Persons. 
 
 I. Commercial Capacity 5 
 
 II. Vanishment 6 
 
 III. Juristic Persons 7 
 
 C. Family Law. 
 
 I. Marriage, Divorce and Personal Effects of Marriage ... 8 
 II. Marital Property Rights. 
 
 1. Statutory Property Rights 9 
 
 2. Marriage Contract 10 
 
 3. Liability 11 
 
 III. Parental and Filial Rights 12 
 
 IV. Illegitimacy 13 
 
 V. Guardianship 14 
 
 D. Inheritance. 
 
 1. The Heir and Succession 15 
 
 2. Dispositions Mortis Causa 16 
 
CONTENTS Ixxi 
 
 E. Law of Things. 
 
 I. Real Rights in General 17 
 
 II. Right to Entry in Land Register 18 
 
 III. Right of Prescription 19 
 
 IV. Trees upon Another's Soil 20 
 
 V. Servitudes in Land 21 
 
 VI. Pledges of Land and Rights Therein. 
 
 1. Recognition of Present Pledge Titles 22 
 
 2. Creation of Rights of Lien 23 
 
 3. Extinguishment of Titles 24 
 
 4. Extent of the Lien 25 
 
 5. Rights and Obligations arising from the Land 
 
 Pledge. 
 
 a. In General 26 
 
 6. Rights of Security 27 
 
 c. Notice, Transfer 28 
 
 6. Rank 29 
 
 7. Position of Lien 30 
 
 8. Restriction after Appraisement. 
 
 a. In General 31 
 
 6. Continuance of the Present Law 32 
 
 9. Assimilation of Present Kinds of Pledge with Those 
 
 of the New Law 33 
 
 VII. Rights of Pledges of Movables. 
 
 1. Formal Provisions 34 
 
 2. Eflfect 35 
 
 VIII. Right of Retention 36 
 
 IX. Possession 37 
 
 X. Land Register. 
 
 1. Introduction of the Register 38 
 
 2. Surveys. 
 
 a. Costs 39 
 
 6. Relation to the Land Register 40 
 
 c. Time for Completion 41 
 
 d. Manner of Surveying 42 
 
 3. Entry of Real Rights. 
 
 a. Procedure 43 
 
 b. Consequences of Not Entering 44 
 
 4. Treatment of Extinguished Rights 45 
 
 5. Postponementof Introduction of the Land Register 46 
 
 6. Introduction of Law of Things before the Land 
 
 Register 47 
 
 7. Working of Cantonal Forms 48 
 
 F. Limitation 49 
 
 G. Forms of Contract 50 
 
Ixxii CONTENTS 
 
 SECOND SECTION. — Inaugurating and Transferring Provisions. 
 
 A. Repeal of the Cantonal Civil Law 51 
 
 B. Supplementary Cantonal Regulations. 
 
 I. Right and Duty of Cantons 52 
 
 II. Preliminary Regulation by the Confederation 53 
 
 C. Designation of the Proper Officials 54 
 
 D. Public Authentication 55 
 
 E. Grants of Water Rights 56 
 
 F. Security of Savings Banks Deposits 57 
 
 G. Sales of Realty 58 
 
 H. Gifts 5» 
 
 J. Execution and Bankruptcy 60 
 
 K. Application of Swiss and Foreign Law 61 
 
 L. Repeal of Federal Civil Law 62. 
 
 M. Final Provision 63. 
 
SWISS CIVIL CODE 
 
 OF DEC. 10, 1907. 
 
 The Federal Assembly of the Swiss Confederation, by virtue 
 of Article 64 of the Federal Constitution, after consideration 
 of a message from the Federal Council of May 28, 1904, enacts 
 
 THE SWISS CIVIL CODE. 
 
 THE SWISS CIVIL CODE. 
 
 INTRODUCTION. 
 
 Article 1. 
 
 The Code applies to all legal questions for which it con- A. Application 
 tains a provision in its terms or its exposition. If no com- ° ^ ^^' 
 mand can be taken from the statute, then the judge shall 
 pronounce in accordance with the customary law, and failing 
 that, according to the rule which he as a legislator would 
 adopt. He should be guided therein by approved precept 
 and tradition. 
 
 2. 
 
 Everyone must, in the exercise of his rights and in the B. Definition 
 performance of his duties, act with truth and faith. Relationr^ 
 
 The open misuse of a right finds no protection in the law. j_ Acting with 
 
 Truth and 
 3. Faith. 
 
 Its existence is to be presumed wherever the statute attaches li. Good 
 a legal consequence to the good faith of a person. Whoever ^^'t**- 
 cannot be faithful to the care demanded of him by the cir- 
 cumstances is not justified in invoking good faith. 
 
THE SWISS CIVIL CODE 
 
 4. 
 
 III. Judicial Where the statute refers the judge to his discretion or 
 
 Discretion, estimation of the circumstances, or to sufficient reasons, 
 there he must decide according to right and equity. 
 
 C. Relation to So far as the federal law preserves the validity of the 
 
 tons ^" cantonal law, the cantons are empowered to enact or repeal 
 
 I. Cantonal civil law regulations. Where the statute refers to the custom 
 
 Civil Law or local usage, there the cantonal law then in force is its 
 
 and Local ... 
 
 Custom expression, until a contrary custom is proven. 
 
 IL Public Law The cantons shall not be restricted by the federal civil law 
 
 Cantons ''^ their powers over pubUc matters. Within the bounds of 
 
 their supremacy they can regulate the traffic in certain classes 
 
 of things, or prohibit it, or declare void legal transactions as 
 
 to such things. 
 
 D. General The general provisions of the law of obligations touching 
 
 ^/°I'^'^"^ the conclusion, fulfillment and rescission of the contracts, 
 
 of Obliga- apply also to other civil relations. 
 
 tions. 
 
 8. 
 
 E. Rules of Where the statute does not otherwise provide, he must 
 
 Evidence. pj-Q^g ^j^g existence of an alleged fact, who would deduce rights 
 
 L Burden of , , 
 
 Proof therefrom. 
 
 IL Evidence of Public registers and records are full proof of the facts 
 Records evidenced thereby until the incorrectness of their contents is 
 shown. 
 
 Such evidence requires no special form of authentication. 
 
 III. Rules of 
 Evidence. 
 
 10. 
 
 Where the federal law provides no special form for the 
 validity of any legal transaction, the cantonal law also may 
 not prescribe any such for the proof thereof. 
 
TITLE I.] NATURAL PERSONS 
 
 FIRST PART. 
 
 THE LAW OF PERSONS. 
 
 FIRST TITLE— NATURAL PERSONS. 
 
 FIRST SECTION— THE LAW OF PERSONALITY. 
 
 ^ 11. 
 
 ^ Every man is capable of rights. For all men, therefore, A. Personality 
 
 within the bounds of the law's regulation the same capacity , }" General, 
 exists to have rights and duties. "]| Capacity. 
 
 12. 
 
 He who has commercial capacity (handlungsfdhigkeit) has ll. Commercial 
 the capacity by his acts to establish rights and duties. ^ ^^P^9J*y- 
 
 V. Sch. 26, 92 to 94. 
 
 13. 
 
 He possesses commercial capacity who is of age and capa- 2. General 
 ble of judgment. „_ Pri-'Pj- _ 
 
 14. 
 
 He is of age who has completed his twentieth year. Marriage 6. Majority. 
 makes him of age. 
 
 V. Sch. 27, B. G. B. 2. 
 
 15. 
 
 He who has completed his eighteenth year can, with his c. Emancipa- 
 consent and the approval of the parents, be declared of age 
 by the Guardians' Court.^ His Guardian, if he has one, shall 
 be heard upon the petition.^ 
 
 iv. Sch. 27, B. G. B. 3 to 5. 
 
 2v. Sch. 449. 
 
 tion. 
 
THE LAW OF PERSONS 
 
 [part I, 
 
 16. 
 
 d. Capacity of Everyone, in the sense of the statute, is capable of judg- 
 Judgment. meat whose ability to act reasonably is not impaired by reason 
 of infancy or in consequence of mental infirmity, mental 
 weakness or drunkenness. 
 
 V. Sch. 27 to 31. B. G. B. 104, 105, 114 (6) 828, 829. 
 
 17. 
 
 III. Commercial The commercially incapable are those persons who are not 
 1 I '^S^'^'*^ capable of judgment, or are minors, or legally incapacitated. 
 
 18. 
 
 2. Failure of He who lacks the capacity of judgment cannot bring about 
 
 Capacity of ^j^y igg^l consequence by his commercial acts, save in cases 
 Judgment. ^ . f . i ■ 
 
 specially reserved by law. 
 
 V. Sch. 29. B. G. B. 6, 114. 
 
 19. 
 
 3. Persons 
 with Ca- 
 pacity of 
 Judgment, 
 but Minors 
 or Legally 
 Incapaci- 
 tated. 
 
 IV 
 
 Relation- 
 ship. 
 1. Blood Re- 
 lationship. 
 
 Relation- 
 
 ship-in- 
 
 Law. 
 
 Persons with capacity of judgment, but minors or incapaci- 
 tated, can obligate themselves in their transactions only 
 with the consent of their legal representatives. Without 
 this consent they may accept voluntary benefits and exercise 
 rights belonging to them by reason of their personality. 
 
 They are responsible for damage caused by their unlawful 
 acts. 
 
 V. Sch. 26, 27. B. G. B. 3, 5. Sch. 28. Sch. 92, 93 and citations. 
 Sch. 94, 129. B. G. B. 183 to 185, 2229, 2238, 2247. 
 
 20. 
 
 The degree of relationship is fixed by the number of births 
 creating it. 
 
 In direct line two persons are related whenever one is 
 descended from the other, and in the collateral line when they 
 spring from a third person and are not related in the direct 
 line. 
 
 V. Sch. 424, citing the Roman Civil Law. 
 
 21. 
 
 A blood relation is related "in-law" (by affinity) in the 
 same line and degree to the spouse. Relationship "in-law" 
 is not destroyed by the dissolution of the marriage that 
 created it. 
 
TITLE I.] 
 
 NATURAL PERSONS 
 
 22. 
 
 The domicile of a person is fixed by his citizenship; that 
 is fixed by the public law. 
 
 If a person enjoys citizenship in several places, his domi- 
 ciliary status is to be fixed by the place where he has his 
 residence or last had it; and failing such a residence, by the 
 place whose citizenship was last acquired by him or his di- 
 rect ancestors. 
 V. Sch. 40 to 42. B. G. B. 7 to 11. 
 
 Domicile 
 and Resi- 
 dence. 
 Domiciliary 
 
 Status. 
 
 6. Change in 
 Residence 
 or Abode. 
 
 23. 
 
 The residence of a person is the place in which he so- 2. Residence, 
 journs with the intention of a continuing stay. No one can °" Definition, 
 have a residence in several places at one time. The business 
 visit is not contemplated by this provision. 
 
 24. 
 
 The residence of a person once acquired remains such until 
 the acquisition of a new one. (/ If no former residence can be 
 proven, or a residence established abroad is given up, and no 
 new residence in Switzerland acquired, the place of abode 
 becomes the residence. 
 
 The B. G. B. regulates domicile, but not residence. 
 
 25. 
 
 The residence of the husband is the residence of the wife; 
 the residence of the father and mother that of the children 
 under their power; the seat of the Guardians' Court that of 
 the wards. If the husband's residence is not known, or the 
 wife legally separated, then she can have an independent 
 residence. 
 
 26. 
 
 The sojourn in a place for attending an educational institu- d. Sojourn in 
 tion, or the confinement of a person in a reformatory, sani- Institu- 
 tarium, hospital, or penal institution establishes no residence. 
 
 c. Residence 
 of Depend- 
 ent Persons. 
 
 27. 
 
 No one can renounce his legal or commercial capacity in 
 whole or in part, ^^o one can renounce his freedom or restrict 
 himself in its use in a degree offensive to law or morality, j 
 
 B. Protection 
 of the Per- 
 sonality. 
 
 I. In General. 
 
 1. Inaliena- 
 bility. 
 
THE LAW OF PERSONS 
 
 [part I, 
 
 Complaint 
 for Injury. 
 
 c 
 
 28. 
 
 He who is unauthorizedly injured in his personal relations 
 can sue for relief from the trouble. A complaint for damages 
 or the penalty of a sum of money as satisfaction is allowed 
 only in those cases provided by law.""! 
 
 Sch. 284 to 296. B. G. B. 847 and others cited. 
 
 II 
 
 Right to 
 Name. 
 1. Protection 
 of the 
 
 Name. 
 
 2. Change of 
 Name. 
 
 a If the bearing of one's name is called into question he can 
 sue for the determination of his right. If any one is injured by 
 another's usurping his name he can sue for the cessation of this 
 usurpation, as well as for compensation for damages, and where 
 the manner of ^the injury justifies it, demand payment of a 
 sum of money in satisfaction, j 
 
 Change of name is allowed any person by the govern- 
 ment of his domiciliary canton whenever sufficient reasons 
 exist therefor. A change of name is to be registered in the 
 Civil Status Record and advertised, but causes no change 
 of the personal status. Whoever is injured by the change of 
 a name can judicially contest it within the term of one year 
 after he has received knowledge of it. '~~\ 
 
 31. 
 
 C. Beginning The personality begins with life after the completed birth 
 the Per-°^ ^"^^ ^'^^^ '^^^ death. Before birth the child is capable of 
 sonality. rights, with the proviso that it shall be born alive. 
 
 ^' Deatk"'^ Sch. 24, B. G. B. 1, 1912, 1923, 1942. 
 
 II. 
 1. 
 
 Proof. 
 Burden of 
 Proof. 
 
 32. 
 
 He who in the exercise of a right relies upon the fact that 
 a person may be living or dead, or was alive at a certain time, 
 or survived another person, must present the proof thereof. 
 In case it cannot be proven that of several deceased persons 
 that one survived the others, then all are presumed to have 
 died simultaneously. 
 
 Sch. 46. B. G. B. 20. 
 
TITLE I.] 
 
 NATURAL PERSONS 
 
 33. 
 
 The proof of the birth or death of a person is furnished by 2. Means of 
 the Civil Status Records. Failing such, or if those obtainable „ in°General 
 are proven incorrect, then the proof may be made otherwise. 
 
 34. 
 
 The death of a person can be assumed even if no one has b. Indications 
 seen the corpse, so soon as the person has disappeared under ° ^^ ' 
 circumstances which may reliably indicate his death. 
 
 Sch. 43 to 45, B. G. B. 13 to 17. 
 
 35. 
 
 If the death of a person is most probable, because he dis- HI- Declaration 
 appeared in great peril of death, or has been absent for a ment"'^ 
 long time without any word from him, a judge can then 1- In General, 
 declare him absent, upon petition of those who deduce rights 
 from his death. ^ 
 
 Competent for this purpose is the judge of the last Swiss 
 residence, or, if the disappeared one has never resided in 
 Switzerland, the judge of his domicile. 
 
 1 V. Ger. Co. Civ. Proc, 960 to 971. 
 
 36. 
 
 The petition can be presented after the expiration of at 
 least one year from the time of the peril of death, or of five 
 years from the last word from him. The judge shall in a 
 suitable way openly call upon every one who can give inform- 
 ation as to the person disappeared or absent, to tell it within 
 a stipulated time. This time shall be at least one year from 
 the first armouncement. 
 
 2. Procedure. 
 
 37. 
 
 If within the appointed time the disappeared or absent ^- \^^^^°l 
 person announces himself, or word comes in as to him, or tion. 
 the time of his death is proven, the petition falls. 
 
 38. 
 
 If during the stipulated time no word is received, then the *• E^^'=*- 
 disappeared or absent person may be adjudged to be absent. 
 
THE LAW OF PERSONS 
 
 [part I, 
 
 A. In General. 
 I. Registers. 
 
 and all the rights which would result from his death thereupon 
 become available as if his death were proven. 
 
 The effect of the declaration of vanishment relates back to 
 the point of time of the peril of death, or the last word. 
 
 V. Sch. 47. B. G. B. 19. 
 
 SECOND SECTION — THE AUTHENTICATION OF CIVIL 
 
 STATUS. 
 
 39. 
 
 Registers shall be kept by the "civil status" officials for the 
 authentication of the status of persons. The Federal Council 
 shall prescribe the necessary regulations for the keeping of 
 the registers and the duty to make reports therefor. 
 
 "Civil status" registry is not usually regulated in the Civil Codes. There 
 is a regulation of the Federal Council in respect thereto, v. 25 Feb. 1910, 
 §§ 1-100. In Germany it is governed by the Personal Status Law of Feb. 
 6, 1875, and a complete law on the subject will be found in the Mexican 
 Civil Code, §§43 to 154. 
 
 40. 
 
 II. Regulations. The limitation of the sphere of civil status, the appoint- 
 ment and compensation of the officials, and the order of in- 
 spections shall be carried out by the cantons. 
 
 The cantonal regulations require for their validity the 
 approval of the Federal Council. 
 
 41. 
 
 III. Officials. The civil status registers shall be kept by lay officials. 
 
 These officials shall make the entries in the registers and fur- 
 nish extracts therefrom. 
 
 The Federal Council can entrust to the representatives of 
 Switzerland abroad the duties of civil status officials. 
 
 IV. Responsi- 
 bility. 
 
 42. 
 
 The civil status officials and the supervisory authorities 
 immediately over them are liable personally for all damages 
 which they themselves cause or which officials appointed by 
 them may cause. The provisions as to the responsibility of 
 the Guardians' Courts apply as to the liability of the super- 
 visory authorities. 
 
TITLE I.] NATURAL PERSONS 9 
 
 If the damages are not met by the responsible officials, 
 the canton must bear the loss. 
 
 43. 
 
 The official conduct of the civil status officials is subject V. Supervi- 
 to a regular supervision. The cantonal supervisory authority . p°"' 
 passes upon complaints of their official conduct, and, in the plaints, 
 last instance, the Federal Council. 
 
 44. 
 
 Violation of official duty by the civil status officials shall 2. Penalties. 
 be punished by the supervisory authority with disciplinary 
 penalties. Criminal prosecution is excepted. 
 
 45. 
 
 An entry can be corrected only upon order of a judge. If, VI. Correc- 
 however, the mistake is a patent oversight or error, the super- 
 visory authority can order the correction. 
 
 tions. 
 
 46. 
 
 Every birth and every miscarriage after the sixth month B. Register of 
 of pregnancy shall be reported to the civil status officials j Report, 
 within three days after its occurrence. 
 
 He who finds a child of unknown parentage shall announce 
 this to the competent authority, who shall then make report 
 of it to the civil status official. 
 
 Changes. 
 
 47. 
 
 If change in the rights of status occurs, as in consequence 11. Entry of 
 ■of the recognition and determination of illegitimate paternity, 
 of declaration of legitimacy, of adoption of child, or the deter- 
 mination of the parentage of a foundling, this is to be entered 
 as a marginal note either by official report thereof or 
 upon request of those concerned. 
 
 48. 
 Every death and every corpse found shall be reported to C. ^'^|'^^*^'' °^ 
 the civil status officials within two days after the event. I. Report. 
 
10 
 
 THE LAW OF PERSONS 
 
 [part I, 
 
 49. 
 
 II. Non-Dis- If the death of a person who has disappeared can be safely 
 Corpse. assumed from the surrounding circumstances, the entry of a 
 
 death is to be made under direction of the supervisory au- 
 thority, even if no one has seen the corpse. Nevertheless 
 every one who is interested therein can demand the judicial 
 determination of the existence or death of a person. 
 
 50. 
 
 III. Declara- The declaration of the vanishment of any one shall be 
 Vanishment, entered in the register of deaths upon the report of the judge. 
 
 IV. Entry of 
 Changes. 
 
 51. 
 
 If the report proves incorrect after the entry, or the identity 
 of an unknown dead person be determined, or a judicial 
 declaration of absence be overthrown, the change shall be 
 made as a marginal note. 
 
TITLE II.] 
 
 JURISTIC PERSONS 
 
 11 
 
 SECOND TITLE — JURISTIC PERSONS. 
 
 c 
 
 FIRST SECTION — GENERAL PROVISIONS. 
 
 52. 
 
 Associations of persons organized into corporations, and A. Personality, 
 institutions devoted to a special purpose and independent, 
 receive the right of personality, by entry in the Commercial 
 Register. Public corporations and institutions, societies 
 not for profit, religious foundations and family foundations 
 require no such entry. Associations or institutions for immoral 
 or unlawful purposes cannot acquire legal personality. 
 
 Sch. 48 to 51. 
 
 53. 
 
 Juristic persons are capable of all rights and duties except B. Legal 
 those which arise from the natural characteristics of man. Capacity, 
 such as sex, old age, or relationship. 7 
 
 54. 
 
 Juristic persons possess commercial capacity, as soon as C. Commercial 
 the organisms required by law and its articles are provided, j Yxesmim- 
 
 tion. 
 
 55. 
 
 The will of a juristic person is expressed through its ii. Expression 
 organisms ; these bind it as well through their juridical acts as thereof, 
 otherwise. 
 
 The acting persons are personally liable for their unlaw- 
 ful acts. 
 
 56. 
 
 The residence of a juristic person, unless otherwise pro- d. Residence, 
 vided by its articles, is the place where its business is carried 
 on. 
 
12 THE LAW OF PERSONS [PART I, 
 
 57. 
 
 E. Dissolution. On the dissolution of a juristic person its property falls to 
 
 of'its'prop- t^^ community (federation, canton or parish) to which it 
 
 erty. belongs according to its purpose, unless the law, the articles, 
 
 the deed of settlement, or the proper organisms provide 
 
 otherwise. 
 
 Its property is to be devoted as nearly as possible to its 
 original purpose. ^ 
 
 If a juristic person is judicially dissolved because of its 
 immoral or unlawful purposes, its property falls to the com- 
 munity, even if it has been otherwise arranged. 
 
 58. 
 
 II. Liquida- The procedure for the liquidation of the property of juristic 
 
 persons is governed by the regulations provided for associations. 
 
 tion. 
 
 59. 
 
 F. Reservation Public and religious corporations and institutions shall be 
 
 of Public subject to the public law of the federation and the cantons. 
 
 and Com- ■' '^ 
 
 pany and Associations of persons for profit shall be subject to the 
 
 Association lawful provisions for companies and associations. 
 
 Communal property associations (allmends) and similar cor- 
 porations shall be subject to cantonal law. 
 
 SECOND SECTION — SOCIETIES. 
 
 60. 
 
 A. Formation. Societies devoted to a political, religious, scientific, artis- 
 
 I. Corporate ^j^, benevolent, social or other non-pecuniary end receive a 
 Association ,..,,, . . 
 
 of Persons, personality as soon as their will to become a corporation is 
 
 evidenced by their articles. 
 
 The articles shall be in written form, and give information 
 as to the purpose of the society, its means and its organization. 
 
 V. Sch. §§ 53, 54. B. G. B. 21, 56 to 59. 
 
 61. 
 
 II. Entry, Reg- If the articles of the society are adopted, and its board of 
 istration. directors chosen, then the society is entitled to have itself 
 entered in the Commercial Register. 
 
TITLE II.] 
 
 JURISTIC PERSONS 
 
 13 
 
 If the society has for its purpose a business conducted 
 for profit, it must be registered. 
 
 The articles and list of its directors shall also be registered. 
 
 As to societies for commercial, etc., purposes, v. Sch. § 54. Registry 
 in Germany is generally in the courts. (Amtgericht, the loca court of 
 the first instance.) 
 
 V. B. G. B. 55, 60 to 68. 
 
 62. 
 
 Societies which have no personality, or have not yet ac- 
 quired it, are to be regarded as simple companies. 
 
 63. 
 
 The following provisions apply in so far as the articles pre- iv. Relation of 
 scribe no regulation as to the organization or relation of the articles to 
 society to its members. 
 
 Provisions prescribed by law cannot be changed by the 
 articles. 
 
 1 1 1. 'Societies 
 without 
 
 / Personal- 
 ity. 
 
 64. 
 
 The meeting of its members constitutes the supreme organism 
 of the society. 
 
 It is called by the directors. A call is to be made as pre- 
 scribed by the articles and also by law whenever one-fifth of 
 the members demand it. 
 
 As to constitution and conduct of business, Sch. § 55. B. G. B. 27, 
 32 to 40. 
 
 65. 
 
 The society in meeting assembled decides upon the ad- 
 mission or expulsion of members, chooses its directors and 
 passes upon all business matters which are not entrusted to 
 other organisms of the society. 
 
 It has the supervision of the work of its organisms and 
 can at any time depose them, without destruction of the claims 
 arising out of existing contracts. 
 
 The right of deposition arises out of the statutory law 
 whenever a sufficient reason justifies it. 
 
 B. Organiza- 
 tion. 
 
 I. Meetings. 
 
 1. Meaning 
 and Calls. 
 
 2. Compe- 
 tency. 
 
 66. 
 
 Acts of the society are done through the meeting of the ^- ^^^? °^ *^^ 
 society. 
 
14 
 
 THE LAW OF PERSONS 
 
 [part I, 
 
 Manner 
 Acting. 
 
 of The written assent of all its members to a proposed action 
 is equivalent to an act of the said meeting. 
 
 Right to 
 Vote and 
 Majority. 
 
 67. 
 
 All members have an equal right to vote in the society's 
 meetings. Acts by the society are authorized by the majority 
 of the votes of members present. Action can be had upon 
 subjects which have not been properly announced, only 
 when the articles expressly allow it. 
 
 68. 
 
 c. Deprivation Each member is by law deprived of his right to vote upon 
 vot? *^° ^^ action as to a juridical act, or legal action, between him, 
 his spouse, or one directly related to him in the direct line on 
 the one side, and the society on the other. 
 
 69. 
 
 II. Directors. The directors have the right and the duty to conduct the 
 affairs of the society in accordance with the powers which 
 the articles give him, and likewise to represent the society. 
 
 70. 
 
 C. Member- The entrance of members is allowable at all times. Resig- 
 
 I F^T ce nation is allowed by law whenever it is made with regard to a 
 and Resig- semi-annual term, at the end of the calendar year, or, when a 
 nation. fiscal year is contemplated, at the end of it. 
 
 Membership is neither assignable nor inheritable. 
 
 II. 
 
 Duty to 
 contribute. 
 
 71. 
 
 The contributions of members are to be fixed by the articles. 
 
 So long as no such provision is made, the members shall 
 contribute pro rata the necessary sums needed to carry out the 
 society's purpose, and at the same time to pay the society's 
 debts. 
 
 72. 
 III. Expulsion. The articles may fix the reasons for which a member may 
 be expelled, but they can allow expulsion without an assign- 
 ment of the reasons. 
 
TITLE II.] 
 
 JURISTIC PERSONS 
 
 15 
 
 Contest of the expulsion on account of its reason is not 
 allowed in these cases. But if the articles have no regulation 
 for such cases, expulsion may be made only by act of the 
 society cind for sufiRcient reasons. 
 
 73. 
 
 Members resigned or expelled have no claim upon the so- IV. Status of 
 ciety's property. Ex-mem- 
 
 They are liable for contributions according to the period 
 of their membership. 
 
 74. 
 
 A change of purpose of the society cannot be forced upon V. Protection 
 any member. °^ Society's 
 
 75. 
 
 Any member who has not assented to it can by law com- vi. Protection 
 plain before a judge of acts which offend against the law or 
 the articles, within a month after he has received knowledge 
 of such resolutions. 
 
 Purposes. 
 
 of Member- 
 ship. 
 
 76. 
 
 The dissolution of a society can be effected at any time by 
 the act of the society. 
 
 Sch.56. On dissolution generally, B. G. B. 41 to 53, 73 to 76; on this 
 point, B. G. B. 41. 
 
 77. 
 Dissolution follows by law when the society becomes insol- 
 vent, or when the directors cannot longer be elected in 
 accordance with the articles. 
 B. G. B. 42. 
 
 78. 
 Dissolution follows by judicial action upon a complaint by 
 competent authority, or one interested, if the purpose of the 
 society is illegal or immoral. 
 B. G. B. 43, 73. 
 
 79. 
 If the society has been entered in the Commercial Register, n 
 its directors or the judge must report its dissolution to the 
 register recorder for cancellation of the entry. 
 
 Dissolution. 
 Methods. 
 By Act of 
 the Society. 
 
 2. By Law. 
 
 3. By Decree. 
 
 Cancella- 
 tion of En- 
 try in Reg- 
 ister. 
 
16 
 
 THE LAW Of PERSONS 
 
 [part I, 
 
 THIRD SECTION — FOUNDATIONS. 
 
 Incorporated foundations (Stiftung). v. Sch. § 57. B. G. B. 80 to 88. 
 
 A. Erection. 
 I. In General, 
 
 II. Form. 
 
 III. Contest. 
 
 80. 
 
 The erection of a foundation is based on the dedication of 
 property to a special purpose. 
 V. B. G. B. 80, 81. 
 
 81. 
 
 The erection is caused by a public dedication or tescamen- 
 'tary provision. 
 
 The entry in the Commercial Register is based on the 
 public dedication, and, when necessary, under the regula- 
 tions of the supervisory authority, is to be accompanied by 
 a list of the directors. 
 
 82. 
 A foundation can be contested by the heirs or the creditors 
 of the founder in the same manner as a donation. 
 
 B. Organiza- 
 tion. 
 
 83. 
 
 The organisms of the foundation, and the manner of 
 administration, are to be fixed by the deed of settlement. 
 
 If the organization provided is not sufficient, the super- 
 visory authority shall make the necessary arrangements. 
 
 B. G. B. 87. 
 
 If these cannot be made to serve the purpose, then the super- 
 visory authority has the power to devote the property to 
 another foundation, with a purpose as similar as possible 
 (cy prh), provided the founder does not exclude this, or a 
 provision of the deed of settlement expressly forbids it. 
 
 84. 
 
 C. Supervision. Foundations stand under the supervision of the commun- 
 ity (federation, canton or parish) to which they belong 
 according to their purpose. 
 
 The supervisory authority shall see that the property of 
 the foundation is not diverted from its purpose. 
 
TITLE II.] 
 
 JURISTIC PERSONS 
 
 17 
 
 85. 
 The proper cantonal authority, or, where the foundation D. Change of 
 is under the federal supervision, the Federal Council, may, theFounda- 
 upon petition of the supervisory authority, and after a 
 hearing granted to the supreme organism in the foundation, 
 change the organization of the foundation, if the due care of 
 the property, or the preservation of its purpose, urgently 
 demands such a change. 
 
 tion. 
 I. Change of 
 Organiza- 
 tion. 
 
 86. 
 
 The proper cantonal authority, or, where the foundation II. . Change of 
 is under federal supervision, the Federal Council, may, upon Purpose, 
 petition of the supervisory authority, and after a hearing 
 granted to the supreme organism in the foundation, change 
 the purpose of the foundation if its original purpose has 
 received quite a different meaning or effect, so that the 
 foundation has openly become foreign to the will of the 
 founder. 
 
 Under the same circumstances, burdens or conditions which 
 are prejudicial to the purpose of the foundation can be 
 modified or suppressed. 
 
 87. 
 
 Family and religious foundations are not subjected, unless E. Family and 
 by exception of the public law, to the supervisory authority. Founda- 
 The judge shall pass upon questions in the nature of private 
 law. 
 
 88. 
 
 The dissolution of a foundation is accomplished by law F 
 as soon as its purpose becomes unattainable. It is effected 
 by judicial action, whenever its purpose has become illegal 
 or immoral. 
 
 B. G. B. 87. 
 
 89. 
 
 The supervisory authority is competent to lay a complaint II 
 as may every one who has an interest therein. 
 
 A dissolution is to be reported to the register recorder 
 for cancellation of the entry. 
 
 V. Art. 79. 
 
 tions. 
 
 Dissolution. 
 By Law and 
 by Judicial 
 Action. 
 
 Right of 
 Complaint 
 and Can- 
 cellation in 
 Register. 
 
18 
 
 FAMILY LAW 
 
 [part II, 
 
 SECOND PART. 
 
 FAMILY LAW. 
 
 FIRST DIVISION — THE LAW OF MARRIAGE. 
 
 THIRD TITLE — THE CONTRACT OF MARRIAGE. 
 
 FIRST SECTION 
 
 [v. Sch. 407.] 
 
 A. Engage- 
 ment. 
 
 B. Effect of 
 the Engage- 
 ment. 
 
 I. Bar of 
 action to 
 consum- 
 mate the 
 Marriage. 
 Consequen- 
 ces of 
 Breach of 
 Engage- 
 ment. 
 
 1. Compensa- 
 tion in 
 Damages. 
 
 II 
 
 THE ENGAGEMENT. 
 
 90. 
 
 Engagements are founded upon promise of marriage. 
 Minors or incapacitated persons cannot be bound in such 
 engagement except with the consent of their legal representa- 
 tives. 
 
 91. 
 
 The engagement does not give the right to claim judicially 
 the consummation of the marriage. A contractual penalty 
 provided for the breach of the engagement cannot be sued 
 for. 
 
 92. 
 
 If an engaged person breaks his engagement without 
 sufificient reasons, or if it is revoked for a reason for which he 
 is himself responsible, he shall make proper amends to the 
 other party and to the parents, or third persons who stand in 
 the place of parents, for the preparations made in good faith 
 in prospect of the marriage ceremony. 
 
 Sch. 407. B. G. B. 1297, 1298. The damage claim seems limited as in 
 the German law to a compensation for a pecuniary loss and outlay. 
 Exemplary damages to punish a dishonorable breach of the engagement are 
 allowable, v. 93 infra. 
 
TITLE III.] THE CONTRACT OF MARRIAGE 19 
 
 93. 
 
 If an engaged person suffer, by breach of the engagement, 2. Satisfac- 
 a severe loss in his personal condition, the j udge can decree to ^'°"- 
 him a sum of money as compensation, the fault being found 
 to be in the other betrothed alone. 
 
 This right of action is unassignable but devolves upon the heirs, if it is 
 recognized or claimed at the time of succession. 
 
 94. 
 
 Return of presents made to one another can be demanded ill. Return of 
 on the revocation of the engagement. If the presents are no Gifts, 
 more at hand, then the settlement of the claim shall be made 
 in accordance with the provisions as to unjustified benefits.^ 
 • If the engagement is dissolved by death (of one party), 
 then the claim for return of gifts is barred. 
 
 ' B. G. B. 1301. Unjustified benefit (ungerechtferiige Bereicherung) , 
 V. Sch. 298 to 301. 
 
 95. 
 
 Claims arising out of the engagement are barred upon the IV. Limitation, 
 lapse of one year after such dissolution. 
 
 Sch. 407. B. G. B. 1302. v. §§121, 455, 790, 663, 807, 112. 
 
 SECOND SECTION — MARITAL CAPACITY AND IMPEDIMENTS. 
 
 96. 
 
 To enter upon marriage the groom must have passed his a. Marital 
 twentieth year and the bride her eighteenth year. Capacity. 
 
 The government of the residential canton can (with con- 
 sent of the parents or guardian), nevertheless, in extraordinary 
 cases, if weighty consideration justify it, declare of marital 
 age a bride who has passed her seventeenth year, and a groom 
 his eighteenth year. 
 
 Sch. § 411, note 10. B. G. B. 1303, 1322. vide B. G. B. 1305 to 1308. 
 V. §§ 100, 107, 118. 
 
 97. 
 
 To enter upon marriage the engaged ones must be capable n. Capacity of 
 of judgment. Mentally deranged persons are in no case cap- Judgment, 
 able of marriage. 
 
 Sch. § 411, la, note 16. B. G. B. 1325. 
 
20 
 
 FAMILY LAW 
 
 [part II, 
 
 III. Consent of 
 Represen- 
 tatives. 
 1. Minors. 
 
 98. 
 
 Minors can enter into a marriage only with the consent of 
 their father and mother or guardian. If at the time of the 
 publication only one of the parents has the parental power, 
 the consent of that one suffices. 
 ' Sch. § 411, note 11. B. G. B. 1305 to 1308. 
 
 2. Incapaci- 
 tated Per- 
 sons. 
 
 99. 
 
 Incapacitated persons can enter into a marriage only with 
 the consent of the guardian. When the guardian is opposed, 
 the incapacitated person may bring the matter for decision 
 before the Guardians' Court. 
 
 The appeal to the Federal Court remains reserved. 
 
 V. last note above, § 98, and B. G. B. 1304, 1330, 1331. 
 
 Marital 
 Impedi- 
 ments. 
 Relation- 
 ship. 
 
 100. 
 
 Marriage is forbidden, (1) between blood relatives in the 
 direct line, between brothers and sisters of the full or 
 half blood and between uncle and niece, nephew and aunt, 
 whether related to one another legitimately or illegitimately; 
 (2) between relations by affinity in direct line (marriage) even 
 if the marriage which fixed the relationship has been declared 
 
 V. Sch. I 411, note 2. B. G. B. 1310. 
 invalid, or been dissolved by death or divorce; (3) between 
 an adopted child and the adopter, or between one of these 
 and the spouse of the other. 
 
 V. Sch. §411, note 14. B. G. B. 1311. 
 
 101. 
 
 Whoever desires to enter upon a new marriage must prove 
 that his former marriage has been declared invalid or is dis- 
 
 II. Former 
 Marriage. 
 1. Proof of 
 
 Dissolution, solved by death or divorce 
 a. In General. 
 
 b. Vanish- 
 ment. 
 
 102. 
 
 If a spouse has been (judicially) declared vanished the 
 survivor may only remarry when the former marriage has 
 been judicially dissolved. 
 
 He can demand the dissolution thereof at the time the 
 absence is decreed, or in a special proceeding. 
 
TITLE III.] THE CONTRACT OF MARRIAGE 
 
 21 
 
 For this proceeding ihe same provisions obtain as in the 
 case of a divorce. 
 
 103. 
 
 Widows or women whose marriage has been dissolved or de- 
 clared invalid may not enter upon a new marriage before the 
 lapse of three hundred days after the dissolution or declaring 
 invalid of the previous marriage. If a birth intervenes, the 
 time of waiting ends. Also the time may be shortened by 
 judicial order, if pregnancy of the woman by the former 
 marriage is disproved, as well as when divorced persons re- 
 marry. 
 L V. |§ 103, 150. 
 
 2. Time of 
 Waiting. 
 
 o. For 
 Women. 
 
 104. 
 
 A divorced spouse may not enter upon a new marriage 
 during the time of waiting prescribed for him. 
 
 The time may be shortened by judicial order as to divorced 
 persons who intend to remarry. 
 
 b. For 
 
 Divorcees. 
 
 THIRD SECTION — PUBLICATION AND MARRIAGE. 
 
 105. 
 
 To bring about the publication, the betrothed must announce 
 their promise of marriage before a civil status official. This 
 must be done by them personally, or by a written declara- 
 tion in which the signatures are officially authenticated. 
 
 The application should contain the birth certificates of 
 the engaged ones, as well as the written consent of parents 
 or guardians in proper cases, and the death certificate of the 
 spouse of a former marriage, or the judicial decree of its 
 invalidity or of a divorce. 
 
 Sch. § 408. B. G. B. 13 6. v. German Personal Status Act, Feb. 6, 
 1875, §§44 to 50. v. §§ 159, 182, 193, 115. 
 
 Publication. 
 Form of 
 Applica- 
 tion. 
 
 106. 
 
 The application for publication shall be made before the II. Place of 
 
 civil status official at the place of residence of the bride- amf PuW^" 
 
 groom. If, however, the bridegroom is a Swiss who lives cation. 
 
22 
 
 FAMILY LAW 
 
 [part II, 
 
 abroad, the application may be made before the civil status 
 official of his place of domicile. The publication shall be 
 made by the civil status officers at the residence and domi- 
 cile of both the parties. 
 
 107. 
 
 III. Rejection of The publication shall be refused if the announcement 
 cation ^ ' ^^® ^°* been properly made, if one of the parties is not cap- 
 able of marriage, or when a legal impediment to the marriage 
 exists. 
 
 B. Objection. 
 I. Right of 
 Objection. 
 
 108. 
 
 During the period of publication any one with an interest 
 therein can make objection to the marriage, by calling atten- 
 tion to a defect of marital capacity of one of the parties, or 
 to a legal impediment. The objection shall be made in 
 writing before one of the civil status officials proclaiming 
 the marriage. An objectioh which concerns neither a lack 
 of marital capacity nor a legal impediment shall be rejected 
 at once. 
 
 109. 
 
 II. Objection If a ground of nullity against a contemplated marriage 
 ^ "^'^ ^' exists, the objection shall be interposed by the proper author- 
 ity, by virtue of its office. 
 
 III. Procedure. 
 1. Communi- 
 cation of 
 Objection. 
 
 110. 
 
 If an objection has been made, the civil status officials 
 charged with the responsibility of publication must (at once), 
 after the lapse of the time of publication, give notice thereof 
 to the engaged parties. 
 
 If the objection is not admitted by the parties, then the 
 objector shall be given notice thereof at once. 
 
 2. Decision 
 upon the 
 Objection. 
 
 111. 
 
 If the objector wishes to maintain his objection, he shall 
 lay his complaint for the forbidding of the marriage before the 
 judge of the place where the application for publication has 
 been made. 
 
TITLE III.] THE CONTRACT OF MARRIAGE 
 
 23 
 
 112. 
 
 The periods for reporting an objection, for the refusal of 3. Limitation, 
 .its recognition, as well as for laying of the complaint for 
 prohibition of the marriage, are ten days. 
 
 They begin with the day on which the publication is 
 made, the objection is communicated to the engaged, or the 
 refusal of recognition is made known to the objector. 
 V. §§ 15, 119, 136. 
 
 113. 
 
 If no objection exists, or if, an objection being made, it has 
 not been brought before the judge or has been dismissed by him, 
 the civil status ofificial of the place where the application forpub- 
 lication was presented, upon the request of the parties, shall per- 
 form the civil marriage or furnish the certificate of publication. 
 
 The certificate of publication authorizes the parties to 
 have a civil marriage performed before any Swiss civil 
 status official during the following six months. 
 
 V. § 111. 
 
 114. 
 
 The civil status official shall refuse to perform the civil 
 marriage as soon as ground exists for the refusal of the 
 publication. 
 
 After a lapse of six months, the publication loses its 
 validity. 
 
 115. 
 
 If by reason of the illness of one of the engaged parties 
 the danger arises that the marriage cannot be celebrated with 
 due consideration for the publication period, then the super- 
 visory authority may authorize the civil status official to 
 perform the civil marriage by shortening the time for or even 
 without publication. 
 
 116. 
 
 The civil marriage shall be made publicly in the "Marriage II- 
 Hall" in, the presence of two witnesses of full age. It is allow- 
 able outside of the "Marriage Hall" only when it is proved 
 by medical testimony that one of the persons to be married 
 cannot appear at the public office on account of sickness. 
 
 C. Betrothal — 
 Civil Mar- 
 riage. 
 
 I. General. 
 
 1. Jurisdic- 
 tion of Pub- 
 lic Officials. 
 
 Refusal of 
 the Be- 
 trothal. 
 
 3. 
 
 Betrothal 
 
 without 
 
 Publication. 
 
 1. 
 
 Betrothal 
 (Civil Mar- 
 riage) Cere- 
 mony. 
 Publicity. 
 
24 
 
 FAMILY LAW 
 
 [PART II 
 
 Form of the 
 Betrothal. 
 
 117. 
 
 The civil status official addresses to each of the parties 
 the question whether they will enter into marriage with one 
 another. After affirmation of this question the civil status 
 official declares that by this mutual declaration of assent the 
 marriage tie is bound by force of law. 
 
 118. 
 
 The married couple shall be given a marriage certificate 
 by the civil status official immediately after the said cere- 
 mony. The religious celebration of the marriage shall not 
 be performed without the production of the said certificates. 
 Otherwise the religious marriage ceremony as such remains 
 undisturbed by the provisions of this statute. 
 
 Sch. 6, § 408, and German legislation there cited. 
 
 119. 
 
 D. Regulations. The Federal Council, and, within the limits of their compe- 
 tency, the cantonal officials, shall enact the detail regulations 
 as to the publication, the civil marriage, and the keeping 
 of the Marriage Register. 
 
 III. Certificate 
 and Relig- 
 ious Cele- 
 bration. 
 
 A. Nullity. 
 I. Grounds 
 Therefor. 
 
 II. Duty and 
 Right of 
 Suit. 
 
 FOURTH SECTION — INVALIDITY OF THE MARRIAGE. 
 
 120. 
 
 A marriage is void, — (1) when at the time of contracting 
 the marriage, one of the parties thereto is already married ' ; 
 (2) when at the time of contracting the marriage one 
 of the parties thereto is mentally infirm, or not capable 
 of judgment for some continuing reason^; (3) when the con- 
 tracting of the marriage is forbidden on account of relation- 
 ship by blood or affinity between the parties thereto.' 
 
 'Sch. C. § 411, c. B. G. B. 1309, 1323, 1326. 
 
 'Sch. C. § 411, a. B. G. B. 1323, 1325. 
 
 'Sch. C. § 411, c. B. G. B. 1310, 1323, 1327. 
 
 121. 
 
 The suit for annulment of marriage may be brought by the 
 proper authority by virtue of his office. Likewise, any one 
 who has an interest therein may bring the suit. 
 
 Sch. C. § 409, 3. B. G. B. 1338, 1339, 1340, 1341, 1342. 
 
TITLE III.] THE CONTRACT OF MARRIAGE 
 
 25 
 
 B. Impeach- 
 ment. 
 
 I. Complaint 
 of Spouse. 
 
 1. Lack of 
 Capacity of 
 Judgment. 
 
 2. Mistake. 
 
 122. 
 
 After a dissolution of the marriage, its nullity can no ^^^- ^^"^ .^^ 
 longer officially be questioned ; but any one having an interest of Suk!'°" 
 therein may bring suit to nullify the same. 
 
 If the incapacity of judgment or mental infirmity of one 
 of the couple has passed its annulment may be demanded 
 only by one of the couple. 
 
 If , in case of the marriage of a person already married, the 
 other party thereto has acted in good faith, and the former 
 marriage has since been sundered, its annulment is barred. 
 
 Notes to § 121. 
 
 123. 
 
 A spouse can impeach the marriage when he at the be- 
 trothal was not capable of judgment by reason of some 
 transitory cause. 
 
 Sch. C. § 411, a. B. G. B. 1325. 
 
 124. 
 
 A spouse can contest the marriage, — (1) when he by 
 mistake has allowed himself to be betrothed whether because 
 he did not desire the performance of the betrothal itself or 
 because he did not wish the betrothal with the betrothed 
 person ' ; (2) when he was led into the marriage by a mistake 
 as to the characteristics of the other party to the marriage, 
 which are of such significance that without their existence 
 the marital relation could not be imputed to him.'' 
 
 iSch. C. § 411, 2 b and c. B. G. B. 1330, 1333, 1335. 
 
 2 Sch. C. § 411, 2 d. B. G. B. 1334, 1335. 
 
 V. §§ 159, 216, 139, 141, 167, 169, 203, 206, 208, 221. 
 
 125. 
 
 A spouse can contest the marriage, — (1) when he has been 3. Fraud. 
 craftily deceived as to the respectability of the other party 
 to the marriage, either by that party or by a third person 
 with that person's previous knowledge, and thereby been led 
 into the marriage ^ ; (2) disease of the other spouse which may 
 greatly endanger the health of the complainant or of the 
 offspring of the marriage.^ 
 
 ' V. last note above. 
 
 ' Sch. C. § 411, 2 b and note. B. G. B. 1330, 1332. 
 
26 
 
 FAMILY LAW 
 
 [part II. 
 
 4. Duress. 
 
 126. 
 
 A spouse can contest the marriage when he has consented 
 to the naarriage under duress of a near and appreciable dan- 
 ger to the Ufe, the health, or the honor of the complainant 
 himself or a person closely bound unto him. 
 
 Sch. C. § 411, 4. B. G. B. 1335. v. § 120. 
 
 127. 
 
 5. Limitation. The right of impeachment lapses with the running of six 
 months after the ground for impeachment has been discovered 
 by the complainant, or the influence of the duress has ceased, 
 and in every case with the running of five years after the 
 celebration of the marriage. 
 
 Sch. C. I 409, 3. B. G. B. 1338, 1339. 
 
 II. 
 
 Complaint 
 by Parents 
 or Guard- 
 ians. 
 
 128. 
 
 If a person not capable of marriage, or under age, or 
 incapacitated, has been betrothed without the consent of 
 parents or guardians, then the marriage can be contested by 
 father or mother or guardian.^ 
 
 A declaration of invalidity may not, however, be entered if 
 in the meanwhile the incapable spouse has become capable 
 marriage, or of age, or if the wife has become pregnant.^ 
 
 • Sch. § 411, 2. B. G. B. 1336. 
 
 2 Sch. C. § 411, note 1. B. G. B. 1325, 1331. 
 
 129. 
 
 ^- ^^y°^^^' If a marriage has been contracted by persons between 
 I. In Cases of whom the entry upon marriage is forbidden with regard to 
 Adoption, ^hg relation of adoption, it cannot be declared invalid for 
 this reason. 
 
 Adoption is annulled by marriage (Trauung). 
 Sch. C. § 411, note 14. B. G. B. 1311. 
 
 II. 
 
 Neglect to 
 Wait the 
 Prescribed 
 Time. 
 
 130. 
 
 If a marriage is entered into before the lapse of the legal 
 or judicially imposed time of waiting it cannot for this reason 
 be declared invalid. 
 
 This point is not mentioned in Sch. or in B. G. B. 
 
TITLE III.] THE CONTRACT OF MARRIAGE 27 
 
 131. 
 
 Marriage celebrated before the civil status official cannot "'• Neglect of 
 be declared invalid because of a breach of the formal regu- Regda-™^* 
 lations. tions. 
 
 As to the regulations deemed essential in the German law, v. Sch. § 410. 
 B. G. B. 1319 to 1321. 
 
 132. 
 
 Invalid marriage becomes absolutely so upon final decree D. Declaration 
 
 entering judgment thereon. of Inval- 
 
 Until such decree the marriage, even if voidable, has the I- Effect of 
 
 effect of a valid marriage. Judgment. 
 
 V. Sch. § 409. B. G. B. 1329, 1343, as to divorce. Sch. § 422. B. G. B* 
 1564. 
 
 133. 
 
 If a marriage is decreed invalid, the children remain legiti- ^'- Conse- 
 mate without regard to the good or bad faith of the parents. i. As^to^chil- 
 
 The relation between the children and parents shall be regu- '^'■^"• 
 lated by the same provisions as in the case of divorce. 
 V. Sch. § 409, 2. B. G. B. 1699. 
 
 134. 
 
 Upon a marriage being declared invalid, the wife, if she ^- ^^ t° ^^^ 
 has acted in good faith therein, preserves the personal status 
 acquired by the marriage, but reassumes the name which she 
 before bore. 
 
 With regard to the settlement of the rights of property, 
 as well as the claims of the parties to indemnification, mainte- 
 nance, or compensation, the same regulations obtain as in 
 divorce. 
 
 V. Sch. § 409. B. G. B. 1345, 1347. 
 
 135. 
 
 The right to sue for a decree upon the invalidity of a mar- E. Inherita- 
 riage is not inheritable. The heirs of the complainant can ' ' ^' 
 
 nevertheless prosecute a suit already brought. 
 
 V. Sch. § 409, 3. B. G. B. 1342. 
 
28 FAMILY LAW [PART II, 
 
 136. 
 
 ^ tency^and ^^ action, to declare a marriage invalid is subject to the 
 Procedure, same regulations as divorce, as regards the competency of 
 the judge and procedure. 
 
TITLE IV.] 
 
 DIVORCE 
 
 29 
 
 FOURTH TITLE — DIVORCE. 
 
 137. 
 
 If a married person has committed adultery the other 
 spouse may sue for a divorce. ^ 
 
 The right of complaint is barred by the lapse of six months 
 from the time when the injured spouse has received knowl- 
 edge of the cause for divorce, and in every case by the lapse 
 of five years after the adultery .^ 
 
 The right to complain is barred by the consent or forgive- 
 ness of the injured spouse.^ 
 
 > Sch. § 421. B. G. B. 1565 to 1567. 
 
 = B. G. B. 1571, 1572. 
 
 ' B. G. B. 1565, 1570 to 1573. 
 
 A. Grounds. 
 I. Adultery. 
 
 138. 
 
 If a married person has plotted against the life of the ii. Plot against 
 
 spouse, or greatly abused him, (or her) or offered him (or her) W^^' „ , 
 1 1 • • 1 r .. ™, Abuse; Def- 
 
 gross msult, the mjured spouse may sue for divorce. The amation. 
 
 right of complaint is barred by the lapse of six months from 
 
 the time when the injured spouse has received knowledge of the 
 
 cause for divorce, and in every case by the lapse of six months. 
 
 Condonation by the injured spouse bars the right of 
 complaint. 
 
 Sch. § 421. B. G. B. 1568. 
 
 139. 
 
 If a married person has committed some dishonorable III. Crime and 
 
 crime, or if he lives a life so dishonorable that the marriage 'R',®^?"?''" 
 , . /• • 1 , 1 • , ■ able Life. 
 
 relation cannot fairly be expected to continue, the innocent 
 
 spouse may sue for divorce. 
 V. note to § 138. 
 
 140. 
 
 If a married person has maliciously deserted the spouse, or, iv. Desertion, 
 without sufficient reason, has not returned to the marital 
 residence, when this absence has lasted for at least two years, 
 the injured spouse may sue for a divorce, the condition 
 continuing. 
 
30 FAMILY LAW [PART n, 
 
 The judge upon petition of the complainant, shall call upon 
 the absent spouse — in case of necessity by publication — 
 to return within six months. 
 I The suit for divorce may be commenced after the lapse of 
 
 this further time. 
 
 Sch. § 421 of note 1. B. G. B. 1567. Ger. C. Proc. 888. 
 
 141. 
 
 V. Mental In- If a married person has fallen into such a condition of mental 
 
 rmi y. infirmity that the marriage relation cannot fairly be expected 
 to continue, and the infirmity after the lapse of three years 
 is pronounced incurable by experts, the other spouse may at 
 any time sue for a divorce. 
 Sch. § 421. B. G. B. 1569. 
 
 142. 
 
 VI. Ruin of the If so deep a destruction of the marital relationship has 
 latlonship^ occurred that continuance thereof cannot fairly be expected 
 
 from the spouses, either spouse may sue for a divorce. 
 
 V. §§ 139, 141. 
 
 If the deep destruction can overwhelmingly be ascribed to 
 one, the other only of the couple can sue for divorce. 
 
 This provision is not in the German law. Its exact application might 
 be extended to cover incurable and contagious disease, incompatibility of 
 temper, habitual drunkenness, the morphine habit, or, as in the Chinese 
 law, talkativeness; it could be indefinitely extended, or practically 
 repealed by judicial construction. 
 
 143. 
 
 B. The Suit. Yhe suit lies either for a divorce or a judicial separation. 
 I. Form of the 
 
 Suit. Sch. § 423. B. G. B. 1575. 
 
 144. 
 
 II. Jurisdiction. The judge of the residence of the complainant has 
 
 jurisdiction. 
 
 145. 
 
 III. Precaution- When the suit is brought the judge shall make the pre- 
 ures ^^^ cautionary orders necessary during the pendency of the suit 
 
 as, for instance, in reference to the home and maintenance of 
 
TITLE IV.] DIVORCE 31 
 
 the wife, the marital rights of property, and provision for the 
 children of the marriage. 
 
 This is rather regulation of procedure pendente lite than of the civil 
 obligation. 
 
 146. 
 
 When lawful ground for a divorce has been shown, the C. Decree, 
 judge shall decree a divorce or separation. ^' ^'^"r'^f-o^'^ 
 
 If separation is prayed for, divorce cannot be decreed. 
 
 If divorce is sued for, then a separation can be decreed 
 only when there is a prospect of the parties reu niting. 
 
 As to the effects of judicial separation, v. Sch. § 423. B. G. B. 1576, 
 1586, 1587. 
 
 147. 
 
 Separation is decreed, either for from one to three years, ^^- P","!^*'?" °^ 
 . . , ^ . . Judicial 
 
 or tor an mdennite time. Separation. 
 
 After the lapse of the decreed time the separation ends, and 
 either party can, if they have not reunited, demand a divorce. 
 
 If the separation decreed for an indefinite period has lasted 
 for three years, either party, if they have not reunited, may 
 demand a divorce or a revocation of the separation. 
 
 Contra B. G. B. 1576, 1576. 
 
 148. 
 
 If, after the lapse of the decreed time of separation, or, when III. Judgment 
 separation has been decreed for an indefinite time, after the Period of 
 lapse of three years, a divorce is demanded by one of Separation, 
 the parties, it must be decreed, unless the facts on which the 
 claim is based show that the claimant is solely the guilty 
 party. The divorce is nevertheless to be decreed in such case 
 when the innocent party refuses to be reunited. 
 
 These provisions excepted, the decree is based on the 
 facts shown in the former proceeding and those developed 
 since. 
 
 149. 
 
 Upon dissolution of the marriage the wife preserves her IV. Sta^us^of^the 
 personal status, but resumes the name which she bore before wife. 
 the celebration of the marriage. 
 
32 FAMILY LAW [PART II, 
 
 If she was a widow before the marriage, it may be granted 
 her by the decree to resume her maiden name. 
 Sch. § 422, 4. B. G. B. 1577. 
 
 150. 
 
 V. Time for Upon the dissolution of the marriage the decree shall for- 
 
 bid the guilty party from remarriage within one to two 
 years, and in case of divorce for adultery, within one to three 
 years. 
 
 The duration of a former judicial separation will be taken 
 into account. 
 
 151. 
 
 VI. Duties upon If property rights or expectancies of the innocent party are 
 
 1. Indemnifi- impaired by the divorce, the guilty party shall furnish proper 
 cation, and indemnification. 
 
 tion. If the innocent party is severely injured in his or her per- 
 
 sonal condition by the circumstances leading to the divorce, the 
 judge may decree him or her a sum of money as compensation. 
 
 152. 
 
 2. Mainte- jf the innocent party falls into great want by reason of the 
 
 divorce, the other party may be bound, even if he is not 
 responsible for the divorce, to pay a sum for maintenance, 
 according to his means. 
 As to alimony generally, Sch. § 422, 3. B. G. B. 1678 to 1583. 
 
 153. 
 
 4. Yearly Pay- If a yearly sum is fixed by decree or agreement, as indem- 
 nification, compensation or contribution towards maintenance, 
 the obligation to pay the same ceases when the obligee 
 marries again. 
 
 Obligation to pay a yearly sum decreed by reason of poverty 
 will be cancelled or reduced on petition of the obligor, when 
 the want no longer exists, or has been substantially relieved, 
 as well as when the property conditions of the obligor become 
 disproportional to the obligation. 
 
 V. Note to § 152. Sch. § 430, 431. B. G. B. 1602 to 1608. 
 
 V. §§463, 530. 
 
 ments. 
 
TITLE IV.] 
 
 DIVORCE 
 
 33 
 
 154. 
 
 Upon divorce the marital property reverts independently VII. Separation 
 
 of the property status of the marriage, to the exclusive owner- 
 ship of each party. 
 
 A profit will be apportioned to the couple according to 
 their property status, a loss the husband has to bear, in so far 
 as he does not prove that the wife caused it. 
 
 Separated couples have no right of inheritance from one 
 another and can make no claims because of the marriage con- 
 tract or testamentary dispositions, which they may have made 
 before the separation. 
 
 of Prop- 
 erty. 
 1. On Di- 
 vorce. 
 
 155. 
 
 Upon a separation the judge decides as to revoking or 
 continuing the existing property status with regard to the 
 duration of the separation and the relation of the parties. 
 
 If either party demands a separation of the property, it 
 shall be granted. 
 
 2. On Separa- 
 tion. 
 
 156. 
 
 The judge shall hold the necessary hearings of parents, or VIII. Rights of 
 the Guardians' Court, in divorce or separation proceedings, to ^ F^^?"*^- 
 determine the rights and the personal relations of parents. Discre- 
 
 The party from whom his children are taken shall be bound *-'°"- 
 
 to pay a sum corresponding to his circumstances toward their 
 maintenance and education. 
 
 The consort from whom the children are taken, is obligated 
 to the payment of a sum, corresponding to his circumstances, 
 toward their maintenance and education. 
 
 He has the right of reasonable personal intercourse with 
 the children. 
 
 Sch. § 422, 5. B. G. B. 1585,-1635, 1636. 
 
 157. 
 
 If conditions change in consequence of marriage, removal, 
 death of one of the parents or other grounds, the judge shall 
 make the necessary orders upon petition of the Guardians' 
 Court, or father or mother. 
 
 Change of 
 Conditions. 
 
34 FAMILY LAW [PART H, 
 
 158. 
 D. Procedure. Divorce procedure is governed by the cantonal law of 
 process, with the exception of the following provisions, — 
 (1) The judge can assume as proven facts which serve to 
 found the complaint for divorce or separation only when he 
 is convinced of their existence. (2) The oath or afifirmation 
 may neither be exacted or imposed upon the parties, as means 
 of proof for the establishment of such facts. (3) Declara- 
 tions of the parties of whatever kind are not binding upon 
 the judge. (4) The judge shall have a free hand to weigh 
 the proof. (5) Agreements as to the consequences of 
 divorce or separation require for their validity the allowance 
 of the judge. 
 
TITLE v.] 
 
 MARRIAGE IN GENERAL 
 
 35 
 
 FIFTH TITLE— THE CONSEQUENCES OF MARRIAGE 
 IN GENERAL. 
 
 
 159. 
 
 / By the marriage both parties are bound in marital com- 
 munity {Eheliche Lebensgemeinschajt) . 
 
 They bind themselves, on either side, to preserve the weal 
 of the common relationship, in harmonious working together, 
 and to care for their children in common. They owe to each 
 other fidelity and assistance. J 
 
 Sch. § 412. B. G. B. 1353. 
 
 A. Rights and 
 
 Duties. 
 
 I. Of Both 
 
 Parties. 
 
 c 
 
 160. 
 
 Of the 
 Husband. 
 
 The husband is the head of the conjugal union. He deter- H- 
 mines the marital residence and shall provide the support of 
 wife and child in proper manner. ~j 
 
 Sch. § 412, 2. B. G. B. 1354. 
 
 161. 
 
 The wife receives the family name and citizenship of HI- Of the Wife, 
 her husband. She shall stand by his side with counsel and 
 action, and support him with all her strength in his care for 
 the union. 
 
 She shall conduct the household. 
 
 Sch. § 412, 3, 4. B. G. B. 1355, 1356. 
 
 Represen- 
 tation of 
 the Union. 
 By the 
 Husband. 
 
 162. 
 
 The husband is the representative of the union. His acts 
 bind him personally whatever be the property status. 
 B. G. B. 1354 above. 
 
 163. 
 
 The wife has the representation of the union in the care for "■ "^^^^^ 
 the current needs of the household along with her husband, i. Ordinary 
 Her acts bind the husband, in so far as they do not exceed ^tfo^"^"' 
 this care in a way evident to third parties. a. Definition. 
 
 "Schlusselgewalt" Sch. 412. B. G. B. 1357. 
 
36 FAMILY LAW [PART II, 
 
 164. 
 
 d n"^'^^ ^^ ^^^ ^'^^^ misuses the right of representation as to the 
 
 household allowed her by law, of if she shows herself incap- 
 able of exercising it, her husband may deprive her thereof 
 in whole or in part. 
 
 This deprivation is, however, effective as to third parties 
 acting in good faith only when it has been published by 
 the proper authority. 
 V. note to 163. 
 
 165. 
 
 c. Revocation The deprivation, or limitation thereof, shall be judicially 
 tion. ^"^^" revoked upon petition of the wife as soon as it is shown that 
 it is unjustified. The revocation shall be published if the 
 deprivation was. 
 
 166. 
 
 2. Extraor- The wife has a wider right of representation only so 
 
 resentation. ^^^ ^^ '^^ ^^ expressly or tacitly granted to her by her husband. 
 
 /-- > 167. 
 
 C. Profession L With the express or tacit consent of the husband, the wife 
 tion of i^ entitled, in whatever status of marital property, to 
 Wife. pursue a profession or occupation. 
 
 If the husband refuses his consent, the wife may be so 
 authorized by the judge, provided she shows that this is 
 offered in the interest of the marital union or the family. 
 
 The refusal of the husband is effective as to third parties 
 acting in good faith only when it has been made public by 
 the proper authority. ~] 
 
 168. 
 
 D. Capacity of The wife is, in whatever status of property, capable of 
 the Wife to guing and of being sued. In litigation with third parties 
 Sued. as to contributed property the husband shall, nevertheless, 
 
 represent the wife. 
 
 Mf 
 
 E. Protection t-If a married person neglects his marital duty, or by his con- 
 tal* Union!'' ^^^^ brings the spouse into danger, reproach or disgrace, the 
 I. In General, injured spouse may petition the judge for relief. 
 
TITLE v.] 
 
 MARRIAGE IN GENERAL 
 
 37 
 
 The judge shall warn the unfaithful spouse of his duty, 
 and after fruitless warning shall order the requisite legal 
 naeasures for the protection of the union, "l 
 
 f 170. 
 
 If the health, good name, or economical subsistence of one II. 
 of the spouses is seriously endangered by the living together, 
 he is justified, so long as this danger exists, to sunder the 
 common household. ^ 
 
 After bringing suit for divorce or separation, each spouse is 
 entitled to discontinue life in common during the litigation. 
 
 The judge shall, upon petition of a spouse, when reasons 
 for sundering the common household exist, determine the 
 payment of one spouse toward the support of the other.^ _/ 
 
 ' This provision does not appear in the German Code. Some hint of it 
 will be found in the Danish Code of Christian V. 
 
 ^ As to alimony in divorce, Sch. § 422, 3. B. G. B. 1578 to 1580. 
 
 C 171. 
 
 If the husband neglects the care of the wife or child, the HI- 
 judge may direct the husband's debtors without consideration 
 of the property status to make their payments to the wife 
 in whole or in part. ~~^ 
 
 Sch. § 412, 9. B. G. B. 1360. 
 
 172. 
 
 Judicial orders, so soon as the cause therefor ends, shall be ^^• 
 rescinded upon petition of a married person. 
 
 B. G. B. 1612. 
 
 173. 
 
 During marriage execution upon the respective demands 
 between the spouses is allowable only in the cases pro- 
 vided by law. Privation of civic rights by reason of a 
 seizure without results or a bankruptcy, is not incurred as a 
 consequence of loss suffered by one consort through act of the 
 other. 
 
 174. 
 If an execution has been levied upon a married person 
 by a third party, then the other spouse is entitled to avail 
 himself or herself of the attachment, or to share in the 
 bankruptcy proceeding. 
 
 Sundering 
 of the 
 Marital 
 Household . 
 
 V. 
 1. 
 
 Admonition 
 of those in 
 Fault. 
 
 Term of 
 
 Judicial 
 
 Orders. 
 
 Execution. 
 Prohibi- 
 ted. 
 
 Exceptions. 
 The Spouse 
 as Debtor. 
 
38 FAMILY LAW [PART 11, 
 
 175. 
 
 b. The Spouse If the creditors of one spouse suffer a loss in the prosecution 
 
 ■ of an attachment, their claims then become good as against the 
 other spouse, and can be attached for. If bankruptcy pro- 
 ceedings be begun against a spouse, the claims of such spouse 
 against the other party to the marriage are to be included 
 therein. 
 
 176. 
 
 c. The Sepa- For the accomplishment of the legal or judicially ordered 
 
 ration of separation of property, the compulsory performance thereof 
 
 and Obliga- is permissible without any limitation. 
 
 tiontoCon- 'pj^g same obtains as to contributions which are judicially 
 tribute. , . , . r r 1 1 I } 
 
 imposed upon one spouse in favor of the other. 
 
 177. 
 
 F. Juridical Married persons shall have power to enter into juridical 
 
 ^'■^, ^ acts with each other. 
 
 (Rechts- ... 
 
 geschafte) Juridical acts between married persons concerning the 
 
 between contributed property by the wife, or the common property 
 
 Persons, of the union, require for their validity the consent of the 
 
 and in Courts of Guardianship. 
 
 Favor of . . . ^ , , ,. . , 
 
 the Hus- The same consent is requisite for the obligations entered 
 
 band. ji^^o by the wife in favor of the husband, so far as they con- 
 
 cern third persons. 
 
TITLE VI.] 
 
 MATRIMONIAL REGIME 
 
 39 
 
 SIXTH TITLE — MATRIMONIAL REGIME. 
 
 Sch. I 413. 
 
 FIRST SECTION — GENERAL PROVISIONS. 
 
 178. 
 
 Consorts are placed under the regulations as to union of 
 property (Guterverbindung) save where by marriage contract 
 another regime is adopted or they are subjected to the extra- 
 ordinary property status. 
 
 A. Ordinary 
 Property 
 Status. 
 
 179. 
 
 A marriage contract can be entered into before, as well as 
 after, the celebration of the marriage.* 
 
 The couple shall adopt, as their contract, one of the stati 
 hereby provided.^ 
 
 A marriage contract effected after the celebration of the 
 marriage shall not impair any existing liability of the property 
 as to third persons. 
 
 ' Sch. § 413, 4, note 2. Intr. L. § 200. 
 
 ' This seems to abolish the distinction in the German law between the 
 statutory regime {Gesetzliches Giiterrechts) and that of the marriage 
 contract (Vertragsmdssiges Guterrecht). Sch. § 413. All contracts must 
 be within a statutory provision. 
 
 B. 
 
 Property 
 Status 
 under Mar- 
 riage Con- 
 tract. 
 Eflfect of 
 Contract. 
 
 180. 
 
 For entering into, amending or rescinding a marriage con- 
 tract, the contracting parties must have capacity of 
 judgment. 
 
 If they are under age or legally incapacitated, the consent 
 of their legal representative is requisite. 
 
 Sch. §26. 
 
 II. Parties to 
 have Legal 
 Contractual 
 Capacity. 
 
 181. 
 
 The entering into, amending or rescinding of the marriage ^^' 
 contract require for their validity the public record thereof, 
 as well as the signatures of the contracting parties or their 
 legal representatives. 
 
 Form of 
 Contract. 
 
40 FAMILY LAW [PART II, 
 
 Marriage contracts rrade during marriage require in addi- 
 tion the consent of the Court of Guardianship. 
 
 The marriage contract becomes legally effective as to 
 third persons upon compliance with the provisions as to the 
 registry of property rights. 
 
 182. 
 
 *^' ary'^Prop-"" ^^ ^^^ creditors in bankruptcy of a married person suffer 
 erty Status. ^ loss, separation of property (as to the spouse of the 
 
 I. Legal Sepa- bankrupt) takes place by virtue of the statute, 
 ration of -.j. ,. . •' . 
 
 Property. At creditors exist at the time of the marriage, who have cer- 
 tificates of loss, either party can found a separation of property 
 by entering that property status in the register of property 
 rights, before the marriage. 
 
 Sch. § 415, 2 b, 4. B. G. B. 1418 to 1426. 
 
 183. 
 
 ^^ Separation ^^^ Judge, Upon petition of the wife, shall order a separation 
 
 of Prop- of property, {Giitertrennung) — (1) when the husband does 
 
 1 UponPeti- "°* provide properly for the support of wife and child; 
 
 tionofWife. (2) when he does not enter lawful security for the wife's 
 
 property contributed ; (3) when the husband or the common 
 
 property is overburdened with debt. 
 
 Sch. § 415, 2. B. G. B. 1418 to 1420. 
 
 184. 
 
 ^ don'^of'^th "^^^ judge shall, upon petition of the husband, order a sepa- 
 Husband. ration of property, — (1) when the wife is overburdened 
 with debt; (2) when the wife unjustifiably refuses the con- 
 sent required by statute or the property status, to the 
 arrangements of the husband as to the marital property; (3) 
 when the wife has demanded the securing of the property 
 contributed by her. 
 
 As to cause 2, the German law provides that where the wife unreason- 
 ably refuses consent to the arrangements of the husband as to the mari- 
 tal property, lawful consent can be given thereto by the Court of 
 Guardianship upon petition by the husband. 
 
 185. 
 
 3. Upon Peti- -pj^g judge shall order separation of property upon petition 
 Creditors, of a creditor who has suffered loss in the prosecution of an 
 attachment against either spouse. 
 
TITLE VI.] 
 
 MATRIMONIAL RjfeOIME 
 
 41 
 
 186. 
 
 The separation of property in consequence of bankruptcy ^^^- Beginning 
 begins with the furnishing of the certificates of loss, but ration of 
 will relate back to the time of acquisition, in relation to Property, 
 property acquired by the parties after the composition, by 
 inheritance or otherwise. 
 
 Judicial separation of the marital property relates back to 
 the time of presentation of the petition. 
 
 The petition for commencement of the separation of marital 
 property shall be reported officially, in case of bankruptcy 
 or judicial decree, for entry in the register of property rights. 
 
 ration of 
 Property. 
 
 187. 
 
 Separation of property caused by bankruptcy or loss ^V. Rescinding 
 in the prosecution of attachment will not be rescinded 
 upon the satisfaction of the creditors; but the judge may in 
 such case upon petition of the married person decree the 
 restoration of the former property status. The restoration 
 shall be officially reported for entry in the register of property 
 rights. 
 
 188. 
 
 Property cannot be withdrawn by partition of marital 
 property, or by a change of the property status, from the lia- 
 bility theretofore existing in favor of creditors of one of the 
 married couple or of the community. 
 
 If such property be transferred to a married person, he 
 shall pay the debts (charged thereon) , but he can discharge 
 himself from this liability so far as he can prove that the 
 value of the property is less than the amount thereof. What- 
 ever the wife receives back upon bankruptcy of her husband, 
 or in an attachment proceeding, remains withdrawn from the 
 creditors of the husband, unless they are also creditors of the 
 wife. 
 
 D 
 
 Change of 
 Status. 
 I. Liability. 
 
 189. 
 
 Upon separation of property arising during the marriage, "• 
 the marital property reverts to the particular property of the 
 husband and of the wife, subject to the rights of creditors. 
 
 As to Meth- 
 od of Sepa- 
 ration of 
 Property. 
 
42 
 
 FAMILY LAW 
 
 [part II. 
 
 A profit is divided between the parties according to their formet 
 property status: diminution of the marital property shall 
 be borne by the husband, so far as he does not prove that it 
 was caused by the wife. If, in the separation, the husband 
 receives property of the wife, with power to dispose of the 
 same, he shall furnish security therefor upon demand of the 
 wife. 
 
 190. 
 
 Separate property becomes such by marriage contract, by 
 settlement of third persons, and by (force of) statute. 
 
 Whatever a consort receives from relatives as part of his 
 compulsory share Qegitim) cannot be allowed him as separate 
 property. 
 
 Sch. § 412, 3. B. G. B. 1365 to 1370. 
 
 191. 
 2. By Statute. By force of statute the following are separate property: — 
 (l) Objects which serve one of the spouses for personal use 
 exclusively. (2) Property belonging to the wife with which 
 
 Sch. 412, 10. B. G. B. 1362. Comp. Ger. C. Genl. Cora, of Goods, 
 Sch. § 417. B. G. B. 1846, etc. 
 
 the wife pursues an occupation or profession. (3) The wife's 
 earnings from her independent labor. 
 
 E. Separate 
 Property. 
 I. Origin. 
 1. In General. 
 
 II. Effect. 
 
 III. Burden of 
 Proof. 
 
 192. 
 
 Separate property stands in general, and particularly with 
 respect to the duty of the wife to contribute to the expenses 
 of the marriage, under the rules of separation of property. 
 
 The wife shall apply her separate earnings, so far as neces- 
 sary, to the necessities of the household. 
 
 193. 
 
 If a married person claims property to be his, separately, 
 the burden of proof is on such claimant. 
 
 SECOND SECTION — UNION OF PROPERTY. 
 
 194. 
 
 A. Property The union of property unites all property belonging to the 
 
 I. Marital spouses at the time of their marriage, or coming to them during 
 Property, the marriage, into marital property. 
 
TITLE VI.] MATRIMONIAL REGIME 43 
 
 The separate property of the wife is excepted therefrom. 
 Sch. § 414. B. G. B. 1365 to 1370, 1376, 1381. 
 
 195. 
 
 Whatever of the marital property at the time of the mar- ^'- ?J°P^'^*^°* 
 riage belongs to the wife, or which comes to her gratuitously Wife, 
 during marriage, by way of inheritance or otherwise, is her 
 contributed property (dowry, eingebrachte Gut) and remains 
 her own.^ 
 
 The husband has the property in all that he contributes and 
 in all the marital property that is not the wife's.^ 
 
 The wife's income and the natural fruits of her property 
 become the property of the husband at the time of their 
 incidence, or separation, with the exception of the regulations 
 as to separate property.' 
 
 1 § 190, pr. 2. Sch. § 414, 3. B. G. B. 1363, 1373 to 1376, 1377, 1379. 
 1381. 
 
 2 Sch. § 414, 1, note 1. 
 
 ' Sch. § 414, 5. B. G. B. 1363, 1383 to 1389, 1390. 
 
 196. 
 
 If a married person claims that property belongs to the ^^^'^^"^^^ 
 wife, the burden of proof is on such claimant. 
 
 If, during the marriage, provisions are made by way of 
 compensation for property of the wife, it will be presumed 
 that they are part of the wife's property. 
 
 197. 
 
 Either husband or wife can at any time demand that an ^- Taking"^' 
 inventory be made of the property contributed to the marriage Same and 
 with public record thereof. If such inventory is made within Jial vriu^' 
 six months after the contribution of the items thereof, it is 
 presumed to be correct. 
 
 Sch. § 414, 2. B. G. B. 1372. 
 
 198. 
 
 If an appraisement is attached to the inventory, and this is 2. j^^^^^°l 
 fixed by public record thereof, it determines the measure ment. 
 of compensation in accordance with such appraisement as 
 between the spouses for marital property lost. 
 
44 
 
 FAMILY LAW 
 
 [part II, 
 
 If objects are sold in good faith during the marriage for 
 less than the appraised value, the proceeds of sale take the 
 place of such appraised values. 
 
 199. 
 
 V. Ownership Within six months after the contribution, and with proper 
 
 of Wife's observance of the provisions of the marriage contract, the 
 
 Property, stipulation can be added to the appraisement that the wife's 
 
 property shall pass into the ownership of che husband at the 
 
 appraised value and the wife's claim for her property shall 
 
 remain unchanged. 
 
 200. 
 
 m&nt^^Use The husband shall manage the marital property. He shall 
 and Power bear the expenses of its management.' 
 
 tion.'*^ ^' The wife shares in its control in so far as she has a legal 
 I. Manage- right to represent the union.^ 
 "*""*• 'B.G.B.1354. 
 
 ' Sch. § 414, 6. 
 
 201. 
 
 II. Use. 
 
 The husband has the use of the property contributed by 
 the wife, and is responsible therefor as one who enjoys such 
 use. 
 
 Sch. § 414, 5. B. G. B. 1363. 
 
 This responsibility is not increased by the appraisement of 
 the wife's property in the inventory. Ready money, other 
 representative things and title deeds, which are determined 
 only by their species, pass into the property of the husband, 
 and the wife receives a claim for compensation for the value 
 thereof. 
 
 202. 
 
 III. Power of The husband requires, for the administration of the wife's 
 
 Disposition, marriage portion, the consent of the wife, as soon as it is a 
 1. Of the Hus- . r , , , , 
 
 •band. question of more than the usual control. 
 
 Third persons may, nevertheless, assume such consent 
 in so far as they do not, or should know that it is lacking, 
 or so far as the property is not distinctly recognizable as belong- 
 ing to the wife. 
 
TITLE VI.] 
 
 MATRIMONIAL REGIME 
 
 45 
 
 203. 
 
 So far as the representation of the marital union justifies ^ 
 it, the wife has control over the marital property. 
 V. B. G. B. 1449 to 1455. 
 
 Of the Wife. 
 a. In General. 
 
 204. 
 
 The wife requires the consent of the husband for the refusal 
 of an inheritance. If consent is refused the wife can invoke 
 the decision of the Court of Guardians. 
 
 Sch. § 414, 4 B. G. B. 1401, 1402, 1405, 1406. 
 
 b. Refusal of 
 Inherit- 
 ances. 
 
 205. 
 
 The husband must, upon demand at any time, furnish the 
 wife information as to the status of the wife's marriage portion. 
 
 The wife can at any time demand security therefor. 
 
 The right of contest under the laws of attachment and 
 bankruptcy is reserved. 
 
 B. G. B. 1391. 
 
 206. 
 
 The husband is liable, — (1) for his antenuptial debts; 
 
 (2) for debts which he incurred during the marriage ; (3) for 
 debts which arise out of the representation of the marital 
 union by the wife. 
 
 As to liability for debts, Ger. Statutory Regime, Sch. § 414, 7. Ger. 
 Community of Goods, Sch. § 417, 6. Ger. Community of Income, etc., 
 Sch. §418,419. 
 
 207. 
 
 The wife is liable with all her property, without regard to li- 
 the rights appertaining to the husband from the status of the i, 
 properties, — (1) for her antenuptial debts; (2) for debts con- 
 tracted by her with consent of her husband, or in undertakings 
 to his advantage, with consent of the Court of Guardians; 
 
 (3) for the debts which arise out of the regular pursuit of her 
 profession or occupation; (4) for debts of inheritance which 
 pass to her; (5) for debts arising from unpermitted acts. 
 
 For debts incurred by her or her husband for the common 
 household she is liable in so far as the husband is unable to pay. 
 V. note to § 206. 
 
 Security of 
 the Wife. 
 
 D. Liability. 
 
 I. Liability of 
 the Hus- 
 band. 
 
 Liability of 
 the Wife. 
 With all 
 Her Prop- 
 erty. 
 
46 
 
 FAMILY LAW 
 
 [part n, 
 
 208. 
 
 The wife is liable during and after the marriage out of her 
 
 (1) for debts which she has incurred 
 
 2. Liability as 
 
 to her Sepa- , 
 
 rate Prop- separate property only, 
 erty. 
 
 E. Claims for 
 Compensa- 
 tion. 
 I. Maturity. 
 
 on account of her separate property; (2) for debts incurred 
 by her without consent of her husband ; (3) for debts incurred 
 by her, in overstepping of her right (ultra vires) of representing 
 the marital union. 
 
 Claims on the ground of unjustified benefit are excepted. 
 
 209. 
 
 If debts for which the wife's contribution to the marital 
 property is liable are collected out of the husband's property, 
 or debts of the husband out of the wife's contribution of pro- 
 perty, a claim for compensation arises which, nevertheless, 
 under the reservation of the legal exceptions, is not demand- 
 able until the time when the union of the property is dissolved. 
 
 If separate property debts of the wife are collected out of 
 the marital property, or debts for which the marital property 
 is liable, out of the separate property, the balancing thereof 
 may be demanded during the marriage. 
 
 Sch. § 414, 6, § 417, 6 d. v. B. G. B. 1463 to 1467. 
 
 210. 
 
 II. Bankruptcy jn bankruptcy, or in attachment of property of the husband, 
 of Husband. , .^ , , ,. ^ • ri 
 
 Attach- the wife can make her claim for compensation tor her 
 
 ri^"*' f contribution of property now no longer at hand. Counter- 
 Wife, claims of the husband can be set off. The property still at 
 hand the wife can take to herself as owner thereof. 
 
 Sch. § 415. B. G. B. 1419. Sch. § 417, 7a, (5) 7 b. B. G. B. 1469. 
 
 2. Preference 
 (Lien). 
 
 C. Dissolution 
 
 of the 
 Marital 
 Property. 
 I. Death of 
 Wife. 
 
 211. 
 
 If the wife is not protected by the return of her property 
 and the security therefor to the extent of half of her contribu- 
 tion of property, then her claim for compensation for the rest 
 of this half is a preference over (an) attachment or bankruptcy. 
 
 The renunciation of the preference, as well as the waiver 
 thereof in favor of single creditors, are invalid. 
 
 212. 
 
 If the wife dies then the wife's property contribution, sav- 
 ing the claims of inheritance of the husband, passes to the heirs 
 of the wife. 
 
TITLE VI.] 
 
 MATRIMONIAL REGIME 
 
 47 
 
 The husband must make compensation for any loss so far 
 as he is responsible, and with regard to what he has to claim 
 from his wife. 
 
 Sch. C. § 415, 2, 3. B. G. B. 1482, 1484, 1510. 
 
 213. 
 
 If the husband die, then the wife takes back the remaining II. 
 property contributed by her, and can make claim upon 
 the heirs for compensation for any loss. 
 
 Death of 
 Husband. 
 
 V. Art. 229 infra. 
 
 214. 
 
 If, upon separation of the husband's and wife's property, m. Profit and 
 a profit is shown, it belongs one-third part to the wife or her Loss, 
 descendants and the balance to the husband or his heirs. 
 
 If the marital property shows a loss, then it is to be borne 
 by the husband or his heirs, so far as it is not shown that the 
 wife caused it. 
 
 By (a) marital contract a different division of the profit 
 or loss can be stipulated. 
 V. Art. 225 infra. 
 
 THIRD SECTION— THE COMMUNITY OF PROPERTY. 
 
 215. 
 
 The general community of property unites the property 
 and the income of husband and wife into common property 
 that belongs to them both undivided and in common. 
 
 Neither of the couple can dispose of his share in the com- 
 mon property.^ 
 
 If a married person claims that a piece of property does not 
 belong to the common property, the burden is on him of prov- 
 ing the same.^ 
 
 ' B. G. B. 1442. 
 
 ''Sch. §417. Allgemeine GUtergemeinsckaft. 
 
 216. 
 
 The husband shall manage the common property.^ 
 ' B. G. B. 1439, 1458. 
 
 A. General 
 Community 
 of Property. 
 
 I. Marital 
 Property. 
 
 II 
 
 Manage- 
 ment or 
 Disposition. 
 1. Manage- 
 ment. 
 
48 
 
 FAMILY LAWS 
 
 [part n. 
 
 The common property bears all the expenses of its manage- 
 ment.^ 
 
 The wife shares in the management in so far as she is 
 empowered to represent the marital community. 
 
 ' Sch. C. § 417, 4 a. B. G. B. 1449 to 1455, 1357. 
 
 217. 
 
 Disposition Disposition of parcels of the common property requires a 
 of the Com- declaration of both spouses or the consent of one to a dis- 
 mon Prop- position by the other, so soon as it is a question out of the 
 ordinary management. 
 
 Third persons may assume this consent in so far as the 
 pieces of property are not recognizable by every one as belong- 
 ing to the common property. 
 
 Sch. C. § 417, 3. B. G. B. 1439, 1525, 1443 to 1447. 
 
 Refusal of 
 Inheri- 
 tances. 
 
 218. 
 
 The refusal of inheritances by the one requires the consent 
 of the other during marriage.' 
 
 Decision by the Guardians' Court can be invoked in case of 
 denial of this consent.'' 
 
 > B. G. B. 1406, contra. 
 
 ^ This accords with the general rule of the German law where consent 
 cannot be given, or is refused without sufficient reason. 
 
 III. Liability. 
 
 1. Debts of 
 
 Husband. 
 
 219. 
 
 The husband is personally and with the common property 
 responsible, — (1) for the antenuptial debts of both spouses; 
 (2) for debts contracted by the wife in her representation of 
 the marital union; (3) for all other debts contracted during 
 the marriage by him or by the wife, charged upon the common 
 property. 
 
 Sch. C. § 417, 3 a and notes. Id. 4a., Id. 6. 
 
 220. 
 
 2. Debts of In addition to the common property the wife is personally 
 
 a. Of'the Wife liable, — (1) for her antenuptial debts ; (2) for the debts incurred 
 
 and the by her with her husband's consent, or in undertakings to his 
 
 Property, advantage, with consent of the Guardians' Court; (3) for the 
 
 debts which arise out of the regular pursuit of her profession or 
 
TITLE VI.] 
 
 MATRIMONIAL REGIME 
 
 49 
 
 occupation; (4) for debts of inheritances which pass to her; 
 (5) for debts arising from unpermitted acts. 
 
 For debts contracted by her or her husband for the common 
 household, she is responsible so far as the common property 
 does not reach. 
 
 She is not personally responsible for any other debts of the 
 common property. 
 
 V. last note above. 
 
 221. 
 
 The wife is, during and after marriage, liable only to the 
 extent of her separate property, — (1) for debts contracted 
 on account of her separate property ; (2) for debts contracted 
 by her without her husband's consent; (3) for debts con- 
 tracted by her in overstepping her right to represent the 
 marital union. 
 
 Claims for unjustified benefit are excepted. 
 Sch. C. § 417, 6 b, c. B. G. B. 1441, 1469. 
 
 b. Debts of 
 the Sepa- 
 rate Prop- 
 erty. 
 
 222. 
 
 During the existence of the community of property execu- 3. Execution, 
 tion lies against the husband for the debts for which the com- 
 mon property is liable. 
 
 223. 
 
 If debts for which the common property is liable are sat- 
 isfied out of it, no claim for compensation arises therefor 
 as between the spouses. If debts against the common prop- 
 erty have been satisfied out of separate property or separate 
 debts out of common property, (then) there arises a claim for 
 compensation which can be made effective even during the 
 marriage. 
 
 Sch; C. § 417, 6 d. B. G. B. 1463 to 1467. 
 
 IV. Claims for 
 Compensa- 
 tion. 
 1. In General. 
 
 224. 
 
 In the case of the husband's bankruptcy and attachment 
 of articles of the common property, the wife can claim for her 
 property contribution and enjoys for her half a preference 
 over (an) attachment or bankruptcy. 
 
 Married 
 Women's 
 Property 
 Claims. 
 
50 
 
 FAMILY LAW 
 
 [part II, 
 
 The waiver of this preference, as well as renunciation of the 
 same in favor of individual creditors, is void. 
 
 V, 
 
 Dissolution 
 of Marital 
 Property. 
 
 1. Proportion 
 of Shares. 
 
 o. By Law. 
 
 b. By Con- 
 tract. 
 
 Liability of 
 Survivor. 
 
 3. Charging. 
 
 225. 
 
 If a married person dies, half of the common property 
 belongs to the surviving spouse. The other half, saving the 
 claims of inheritance of the survivor, descends to the heirs 
 of the deceased one. 
 
 If the surviving spouse be unworthy to inherit, (then) can 
 he claim from the common property in no case more than would 
 be coming to him in the case of a divorce. 
 
 Sch. C. §417, 7 b, "unworthy to inherit" (Erbenunimirdig) . Sch. C. 
 § 480. B. G. B. 2339 to 2344. 
 
 226. 
 
 In place of a division by halves, any other division can 
 be fixed upon by (a) marriage contract. The descendants of 
 the deceased spouse cannot be deprived of one-fourth of the 
 common property remaining at his death. 
 
 This clause fixes the amount or share and protects the legitim or 
 compulsory portion of which the issue cannot generally be disinherited. 
 Sch. C. §§510,511. 
 
 227. 
 
 The surviving husband continues personally responsible for 
 all claims against the common property. 
 
 The surviving wife can free herself from all liability for the 
 debts of the common property, which are not likewise her 
 personal debts, by refusal of the share coming to her. 
 
 If she accepts her portion she is yet responsible, but can 
 free herself from such liability to the extent that she proves 
 the property received by her to be insufficient to pay such 
 indebtedness. 
 
 This section is in conformity with the general German law of inherit- 
 ance. V. Sch. C. § 468, 2. 
 
 228. 
 
 On division of the property the surviving spouse can demand 
 that there shall be charged against his portion the pieces of 
 property which he has contributed. 
 
 Sch. C. § 417, 7 b. 
 
TITLE VI,] MATRIMONIAL REGIME 
 
 51 
 
 229. 
 
 The surviving spouse can continue the community of ^- Continu- 
 property with the common children. The consent thereto Community 
 of the Guardians' Court is requisite in the case of minor of Property. 
 children. If the community of property is continued, then ' Prhfc^Ie. 
 claims of inheritance cannot be set up until the end thereof. 
 
 This condition, which seems optional in the Swiss law (v. § 213) is the 
 general rule in the German system. Sch. C. § 417, 8 a. B. G. B. 1483. 
 It does not exist in the French law. 
 
 230. 
 
 The continued community of property embraces the II. Extent. 
 hitherto marital property as well as the income and wages 
 of those sharing therein, with the exception of the separate 
 property. 
 
 Whatever falls to the children or the spouse during this 
 community of property, by way of inheritance or in any other 
 gratuitous way, becomes the separate property in so far as 
 it is not otherwise provided. ^ 
 
 Execution as between the sharers of the common property 
 is restricted in like manner as between married persons.* 
 
 W. contr. B. G. B. 1485. 
 »Sch. C. §417,8. 
 
 231. 
 
 If the children are minors, the management and representa- HI. Manage- 
 tion of the continued community of property belongs to the Represen- 
 surviving spouse. tation. 
 
 Sch. C. § 417, 8 d. B. G. B. 1487. 
 
 If they are of age, then any other arrangement can be made 
 by agreement. 
 
 232. 
 
 The surviving spouse can dissolve the continued community IV. Dissolution. 
 of property at any time. Children of age can withdraw from ' radon.^"^ ^ 
 the community at any time, one alone or all together. 
 
 The Guardians' Court can declare withdrawal for minors. 
 
 Sch. C. §417, 8 f. B. G. B. 1492. 
 
52 
 
 FAMILY LAW 
 
 [part n. 
 
 2. By Force 
 of Law. 
 
 3. By Judicial 
 Action. 
 
 4. By Mar- 
 riage or 
 Death of 
 Child. 
 
 Mode of 
 Division. 
 
 C. Restricted 
 Community 
 of Property. 
 . With Sepa- 
 ration of 
 Property. 
 
 233. 
 
 The continued community of property is dissolved by force 
 of law, — (1) upon the death or marriage of the surviving 
 spouse; (2) upon the bankruptcy of the surviving spouse or 
 the children. 
 
 If but one of the children goes into bankruptcy, then the 
 others can demand his withdf-awal. Upon the bankruptcy of 
 the father, as well as upon the attachment of the common 
 property, the children take the place of the deceased mother. 
 
 234. 
 
 If a creditor in the prosecution of an attachment against 
 the husband or against one of the children makes a loss, he 
 can then demand before a judge the dissolution of the com- 
 munity of property. If this dissolution is demanded by a 
 creditor of one of the children, the others in the community 
 can then demand his withdrawal. 
 
 Sch. C. § 417, 8 f . 
 
 235. 
 
 If one child marries, then the others in the community 
 can demand his withdrawal. If one child dies leaving issue, 
 then the others in the community can demand his withdrawal. 
 If one child dies without issue, (then) his share remains in 
 the common property saving the claims of heirs not sharing in 
 the community. 
 
 236. 
 
 Upon the dissolution of the continued community of 
 property, or the withdrawal of a child, the division or the 
 settlement follows, in accordance with the property con- 
 ditions at that time. The spouse retains the claims of 
 inheritance against the portions which fall to the several 
 children. The partition cannot be undertaken at an un- 
 reasonable time. 
 
 Sch. C. § 417, 8 f. B. G. B. 1503. 
 
 237. 
 
 Married persons can by (a) marriage contract arrange a 
 limited community of property, in that they can exclude from 
 the community single pieces or certain kinds of property, as, for 
 example, immovable property. 
 
TITLE VI.] MATRIMONIAL REGIME 53 
 
 The excepted articles of property are subject to the rules of 
 separation of property. 
 
 238. 
 Married women's property reserved out of the community II. With 
 can by (a) marriage contract be brought under the rules of p"'°"j.j.°^ 
 union of property. 
 
 239. 
 
 The community of property can by a marriage contract III. Community 
 be limited to acquired property. _ t^X'Ju&tl 
 
 Whatever during the marriage has been acquired, and not Property, 
 procured as compensation for pieces of property contributed, ' ^"^"P^- 
 makes up the acquired property and comes under the rules 
 of the community of property. 
 
 The rules of union of property obtain as to property con- 
 tributed by husband or wife upon the contract of, or during 
 marriage. 
 
 240. 
 
 If a profit occurs upon the dissolution of the com- 2. Division of 
 munity, then it is divided by halves between the spouses or Increase or 
 their heirs. 
 
 Loss is borne by the husband or his heirs, unless it can be 
 proved to have been caused by the wife. 
 
 Any other division of the profit or loss can be stipulated 
 by (a) marriage contract. 
 
 FOURTH SECTION — SEPARATION OF PROPERTY. 
 
 241. 
 
 The separation of property applies to the whole property A. Extent. 
 of both spouses, if it is based upon the law or a decree of 
 court. 
 
 If it is based upon a marriage contract, then it applies to the 
 whole property in so far as special exceptions are not made in 
 the contract. 
 
 Sch. C. § 415, 4. B. G. B. 1426 to 1430. 
 
54 FAMILY LAW [PART II, 
 
 242. 
 
 M ^^'^*^' Each spouse retains the property in his own estate as well 
 
 ment and as the management and use thereof. If the wife has trans- 
 Use, f erred the management to her husband, then it is assumed that 
 he need give no accounting to her during the marriage but 
 can claim the income from the property so turned over as a 
 contribution towards the marital expenses. 
 
 A waiver by the wife of the right to take back the manage- 
 ment at any time is void. 
 
 243. 
 
 C. Liability. The husband is personally responsible for his antenuptial 
 
 ' debts, as well as for those which are incurred by him during 
 marriage, or by the wife in the exercise of her right of 
 representation. 
 
 The wife is personally responsible for her antenuptial debts, 
 and for her debts incurred during marriage. 
 
 The wife is responsible in case of financial irresponsibility 
 of the husband for the debts incurred by either spouse for 
 the common household. 
 
 244. 
 
 II. Bankruptcy The wife has no right of preference in the case of bankruptcy 
 and Attach- ^"^ ^'^Y attachment of the property of the husband, even if 
 ment. she has given her own property over to him to manage. 
 
 The regulations as to the marriage tax are excepted. 
 "Marriage Tax," v. § 247. 
 
 245. 
 
 D. Income and The income and earnings belong to that spouse from whose 
 arnings. property, or by whose labor, they come. 
 
 246. 
 
 E. Burden of 'pjjg husband can require that the wife shall furnish a proper 
 the Marital ., . , , , , r , • i 
 
 Expenses. Contribution towards the burden ot the marital expenses. 
 
 If the couple cannot agree upon the amount of the con- 
 tribution, then it can be fixed by the proper tribunal upon 
 petition of either part. 
 
 The husband is not liable for the return of the contribution. 
 
TITLE VI,] MATRIMONIAL REGIME 55 
 
 247. 
 
 It may be fixed by the marital contract what portion of the ^- Marriage 
 married woman's property she shall furnish to the husband 
 towards the marital expenses as a marriage tax. Whatever 
 is so furnished comes under the regime of union of prop- 
 erty, unless it is otherwise stipulated. 
 
 FIFTH SECTION — THE REGISTER OF PROPERTY RIGHTS. 
 
 The conditions as to property rights, based upon a marriage ^- h^^\ 
 contract or judicial decree, as well as the juridical acts by 
 the couple concerning the property contributed by the wife, 
 or the common property, require for legal force as against third 
 persons that they shall be entered upon the register of prop- 
 erty rights and be published. 
 
 Heirs of the deceased spouse shall not be considered third 
 persons. J 
 
 This is also the law of Germany by which a similar public record is kept 
 in each commune. 
 
 249. 
 
 Only the provisions which shall be eiifective as against third B. Entry, 
 persons shall be entered. When not otherwise provided by " " ■'^'^ ' 
 law, or expressly agreed in the marriage contract, the entry 
 shall be made on the ex-parte application of either spouse. 
 
 250. 
 
 The entry shall be made in the register of the husband's ^^- ^^^^ °^ 
 domicile. 
 
 If the husband changes his domicile to another registration 
 district, the entry shall be made within three months, at the 
 new domicile also. 
 
 The entry in the register of the former domicile loses its 
 legal eflect after the lapse of three months dating from the 
 change of domicile. 
 
56 FAMILY LAW [PART U, 
 
 251. 
 
 Right°of "'^ The register of property rights is kept by the commercial 
 Inspection, register's office, so far as the cantons do not designate 
 special districts and special registrars. 
 
 Every one is entitled to inspect the register of property 
 rights, or to request extracts. 
 
 The publication of marriage contracts need only state what 
 property status the married ones have chosen. 
 
TITLE VII.] 
 
 LEGITIMATE CHILDREN 
 
 57 
 
 SECOND DIVISION - RELATIONSHIP. 
 
 SEVENTH TITLE — THE STATUS OF LEGITIMATE 
 CHILDREN. 
 
 FIRST SECTION — LEGITIMATE DESCENT. 
 
 252. 
 
 A child born during the marriage, or within a period of 
 three hundred days after dissolution thereof, is presumed to 
 be legitimate. 
 
 In case of a later birth, legitimacy is not presumed. 
 
 Sch. C. § 425. B. G. B. 1592, 1293. 
 
 Presump- 
 tion of 
 Legitimacy. 
 
 253. 
 
 The legitimacy of a child can be contested before a judge 
 by the husband within three months after he has received 
 knowledge of its birth. 
 
 The bill of complaint lies against the child and its mother. 
 
 Sch. C. § 425, 4. B. G. B. 1594 to 1598. 
 
 B. Contest of 
 the Legiti- 
 macy. 
 
 L By the Hus- 
 band. 
 
 1. Limitation. 
 
 254. 
 
 If a child is born at least one hundred and eighty days 
 after termination of marriage relations, then the husband can 
 support his complaint only by the proof that he could not 
 possibly be the father of the child. 
 
 V. last note. 
 
 . Procreation 
 during Mar- 
 riage. 
 
 255. 
 
 If a child is born before the one hundred and eightieth day 
 after termination of marital relations, or the couple at the time 
 of conception were judicially separated, then the husband can 
 support his contest by that alone. 
 
 The presumption of legitimacy of the child arises, never- 
 theless, even in this case, when it becomes credible that the 
 
 Procreation 
 before 
 Marriage, 
 or during 
 Separation. 
 
58 
 
 FAMILY LAW 
 
 [PART II. 
 
 husband has cohabited with the mother around the time of 
 conception. 
 V. last note. 
 
 II. 
 
 Contest 
 Others. 
 
 256. 
 
 by If the husband dies before the lapse of the time for a con- 
 test, or has become incapable of judgment, or is of unknown 
 abode, or it is impossible for any other reason to inform him 
 of the birth, (then) any person entitled to inherit next or after 
 the child can contest the legitimacy within three months 
 after he has received knowledge of the birth. 
 
 In case of procreation before the termination of marital 
 relations, the legitimacy of the child can be contested by the 
 proper court of the domiciliary canton, even if it be recog- 
 nized by the husband, in the event that it is proven that 
 he cannot possibly be the father of the child. 
 
 German legislation does not seem to provide for the conditions here 
 mentioned. The right of the next heir to contest might be his only pro- 
 tection against gross fraud, v. § 257. 
 
 C. Forfeit of 
 Right to 
 Contest. 
 
 257. 
 
 If the husband has expressly or tacitly recognized the 
 legitimacy of the child, or if the period for contest has lapsed 
 unused, then a contest can be raised only when it is demon- 
 strated that the one having a right to contest it has been 
 deceitfully influenced to recognize it, or to waive the contest. 
 
 The limitation of a contest in these cases runs anew for 
 three months computed from the discovery of the deceit. 
 
 In addition, a contest will be allowed after the lapse of the 
 three months, if the delay is condoned for sufficient reason. 
 
 SECOND SECTION — THE DECLARATION OF LEGITIMACY. 
 
 258. 
 A. By Subse- If the parents of an illegitimate child marry, it becomes 
 
 ?j"t"* ^^" legitimate by force of law. 
 I. Prefatory. Sch. C. § 427. B. G. B. 1719 to 1722. 
 
TITLE VII.] 
 
 LEGITIMATE CHILDREN 
 
 59 
 
 259. 
 
 The parents are obligated to declare, upon or immediately II. Declaration, 
 after betrothal, the common illegitimate children before the 
 civil status officials of the residence or place of marriage. 
 
 The omission of this declaration has no effect upon the legiti- 
 macy of the child. 
 
 260. 
 
 If the parents of a child have promised each other in mar- 
 riage, and the betrothal has become impossible through the 
 death or marital incapacity of one of the engaged parties, 
 then the judge has, upon application of the other engaged one 
 or of the child, to declare the legitimacy. 
 
 If the child is of age, then can the petition of the engaged 
 one be presented only with the consent of the child. 
 
 After the death of this child its descendants can demand 
 the declaration of legitimacy. 
 
 Sch. C. § 427, 2. B. G. B. 1723 to 1726; 1732 to 1740. 
 
 261. 
 
 The judge of the residence of the petitioner is competent. II. 
 He must, however, give notice of the petition to the commune 
 of the father's domicile to protect its interests. 
 
 B. By Judicial 
 
 Order. 
 I. Prefatory. 
 
 Jurisdic- 
 tion. 
 
 262. 
 
 The declaration of legitimacy can be contested by the inherit- C. Contest. 
 ing relatives of the parents as well as by the proper court 
 of the domiciliary canton of the father, within three months 
 after it has come to their knowledge, upon proof, that the 
 child does not spring from the parents in question. 
 
 The judge of the residence of the parents is competent, or 
 the judge who has pronounced the declaration of legitimacy. 
 
 263. 
 
 By the declaration of legitimacy the illegitimate child and its D. Effect. 
 legitimate issue are placed on an equal footing with legitimate 
 relatives in respect to the father and mother and their 
 relationship. 
 
 The declaration of legitimacy shall be communicated to the 
 civil status officials of the birthplace of the child and the 
 domiciles of the father and mother. 
 
60 
 
 FAMILY LAW 
 
 [PART II, 
 
 THIRD SECTION — ADOPTION OF CHILDREN. 
 
 A. Prefatory. 
 I. As to the 
 Adopting 
 Person. 
 
 264. 
 
 Adoption of children is allowed such persons only as are 
 at least forty years old and have no legitimate issue. 
 
 The adopter must be at least eighteen years older than 
 the child to be adopted. 
 
 Sch. C. § 428, 2 a. B. G. B. 1741, 1743, 1744. 
 
 265. 
 
 II. As to the If the person to be adopted is capable of judgment, then 
 Person to be i_ • . . , i , 
 
 ' Adopted. "'® consent to the adoption is necessary. 
 
 If he is a minor or incapacitated, then the adoption must 
 have his parents' consent or that of the Supervising Orphan 
 Council, even if he is capable of judgment. 
 
 Sch. C. § 428, 2 b, c. B. G. B. 1747, 1750, 1751. 
 
 266. 
 
 III. In Case of A married person can neither adopt a child, nor be adopted 
 Persons ^^ ^ child, without the consent of the spouse. 
 
 A child can be jointly adopted by a married couple only. 
 Sch. C. § 428, 2 b. B. G. B. 1746. Sch. C. | 428, 2, note 1. 
 
 267. 
 
 B. Form. Adoption follows upon a public instrument with authority 
 
 of the proper court of the residence of the adoptor, and shall 
 be recorded in the register of births. 
 
 Even when the statutory requirements are met, the court 
 can grant its authority only when the adoptor has shown the 
 child care and support or other sound reasons are present and 
 no disadvantage to the child results from the adoption. 
 Sch. C. § 428, 2 c. B. G. B. 1750 to 1754. 
 
 268. 
 
 C. Eflfect. The adopted child receives the family name of the adoptor, 
 
 and becomes entitled to inherit from him without losing any 
 former right of inheritance. 
 
TITLE VII.] LEGITIMATE CHILDREN 61 
 
 The parental rights and obligations are transferred to the 
 adoptor.i 
 
 As to parental rights of property and the right of inheritance, 
 any desirable changes of the provisions as to the legal status 
 of legitimate children can be agreed upon, before the adop- 
 tion by a public instrument.'' 
 
 ' Sch. C. § 428, 3. B. G. B. 1757, 1758, 1762, 1763. 
 
 2 B. G. B. 1767. 
 
 269. 
 
 The adoption can be dissolved at any time by mutual D. Dissolution, 
 consent and compliance with the regulations to be followed 
 at its confirmation. 
 
 It can be dissolved judicially upon petition of the child, 
 when sufficient reasons exist, and upon petition of the adopter, 
 when he has a lawful reason for disinheriting the child. Dis- 
 solution terminates all future effect of the adoption and is 
 irrevocable . 
 
 Sch. C. I 428, 4. B. G. B. 1768 to 1771. 
 
 FOURTH SECTION — THE COMMUNITY OF PARENTS AND 
 
 CHILDREN. 
 
 270. 
 
 The legitimate children receive the family name and the A. Name and 
 citizenship of the father. 
 Sch. C. I 440. B. G. B. 1616. 
 
 271. 
 
 Parents and children owe one another every aid and consid- B. Aid and 
 eration which the welfare of the community demands. ity!"™"" 
 
 272. 
 
 The parents shall bear the expenses of the support and C. Expenses of 
 education of their children according to their marital means.i IX^tion. 
 
 If the parents are in want, or the expenses become unusually 
 high, or other extraordinary circumstances arise, then the Guar- 
 
62 FAMILY LAW [PART II, 
 
 dians' Court can permit the parents to draw, to a definite 
 extent, upon the principal property of their minor children, 
 for their support and education. 
 iSch. C. 1445. B. G. B. 1631. 
 
 FIFTH SECTION — THE PARENTAL POWER. 
 
 273. 
 
 A. In General. The children remain, so long as they are minors, under the 
 re a ory. parental power and cannot unlawfully be taken from their 
 parents. 
 
 Incapacitated children, of age, remain under the parental 
 power unless the proper court appoints a guardian for them. 
 Sch. C. I 445. B. G. B. 1631, 1632. As to the control of the Guar- 
 dians' Court, Sch. C. § 445. B. G. B. 1666, 1673, Intr. L. § 135. As 
 to control of young criminals, Sch. C. § 445; Penal Code, § 56. 
 
 274. 
 
 II. Right to During marriage parental power shall be exercised jointly. 
 
 Exercise. j£ ^j^^ parents are not of one mind, the will of the father shall 
 prevail. 
 
 In case of the death of one of the spouses the parental power 
 continues in the survivor, and in case of divorce, it is vested 
 in the spouse to whom the children have been granted. 
 
 Under the German law the parental power is vested in the father unless 
 forfeited or suspended. As to that control of the person necessarily exer- 
 cised jointly, the father's will prevails in case of any difference of opinion. 
 Sch. C. § 442. B. G. B. 1626 to 1628, 1634, 1638. As to causes of for- 
 feiture, B. G. B. 1680. Suspension, B. G. B. 1676, 1677. If the father 
 dies, the power vests in the mother. Sch. C. § 443. B. G. B. 1684, and 
 also temporarily in certain cases. B. G. B. 1684, 1773. As to the exercise 
 of power by divorced parents, Sch. C. § 422, 5. B. G. B. 1635, 1636. 
 
 275. 
 B. Definition. Children owe obedience and respect to their parents.' 
 I. In General. Parents must educate their children according to their cir- 
 1 In cases of extreme outrage by the child, the German law declares him 
 unworthy to inherit, but otherwise the moral law, "Honor thy Father and 
 Mother," is not included in the German Code, as it is here, and also in the 
 Spanish Code of 1889. 
 
TITLE VII.] 
 
 LEGITIMATE CHILDREN 
 
 63 
 
 cumstances and especially provide appropriate training for 
 the bodily or mentally deficient.^ 
 
 They give the child the Christian name (Personenname). 
 
 ' Compulsory education is the subject of special law in Germany and not 
 referred to in the B. G. B. 
 
 276. 
 
 The training of children for a calling is controlled by the H- 
 directions of the parents. 
 
 Parents should, so far as possible, regard the physical and 
 intellectual capacities and the bent of the children. 
 
 277. 
 
 Parents shall provide for the religious training of the child. HI. Religious 
 
 A contract which restricts this power is void. Trammg. 
 
 Independent decision as to their religious faith shall not be 
 forbidden to children who have reached their sixteenth year. 
 
 The German law leaves the regulation of the religious training of chil- 
 dren to the several states. Intr. L. § 134. 
 
 Training of 
 Children 
 for a 
 Calling. 
 
 278. 
 Parents are empowered to apply the means of correction IV. Power of 
 necessary for the proper education of children. orrection. 
 
 Sch. C. § 445, note 1. B. G. B. 1631. 
 
 279. 
 
 Parents by force of law shall represent the child as against V. Represen- 
 
 third persons within the scope of their parental power. ^ ^g ^^ Third 
 
 Co-operation of the Guardians' Courts does not apply. Persons. 
 
 a. By Parents. 
 Sch. C. §§ 116, 444, 446. ^ 
 
 280. 
 
 The child under the parental power has the same limited 
 commercial capacity as a person under a guardian. 
 
 The provisions as to representation by the guardian corres- 
 pondingly apply, with the exception of the provision relating 
 to the co-operation of the person under guardianship in the 
 management of his property. 
 
 The property of the child is liable for its debts without re- 
 gard to the parental property rights. 
 
 Sch. C. §§ 444, 441. 
 
 Commer- 
 cial 
 
 Capacity 
 of Child. 
 
64 
 
 FAMILY LAW 
 
 [PART 11, 
 
 2. Within the 
 Commun- 
 ity. 
 
 a. Acts of 
 Children. 
 
 281. 
 
 Children under parental power, if they are capable of judg- 
 ment, can, with the consent of father or mother, act for the 
 community, and do not thereby obligate themselves, but their 
 parents, according to their property status. 
 
 V. Sch. C. 1 117. 
 
 282. 
 Transac- If a child becomes obligated in a juridical act with father or 
 
 bet'^een mother, or (in such) with a third person in the interest of 
 Parents and father or mother, then it must have a curator and the 
 Children. Guardians' Court ratify the transaction. 
 
 C. Official 
 Interven- 
 tion. 
 
 I. Proper 
 Provisions. 
 
 283. 
 
 In case of improper action by parents, the guardian- 
 ship officials must make proper provisions for the protection 
 of the child. 
 Sch. C. 5 446, 4, 5. B. G. B. 1666 to 1668, 1670 to 1672, 
 
 II. 
 
 Care of 
 Children. 
 
 III. Depriva- 
 tion of 
 Parental 
 Power. 
 1. In case of 
 Neglectful 
 Exercise. 
 
 284. 
 
 If a child is continually neglected as to its bodily or spiritual 
 welfare, or if it is spoiled, the Guardians' Court must take it 
 away from its parents and place it in a proper way in a family 
 or institution.' 
 
 The same arrangement is made by the Guardians' Court upon 
 application of parents, when a child offers them malicious or 
 obstinate opposition, and nothing else can avail under the 
 circumstances. 
 
 The public law provides, with reservation of the duty of 
 support by relatives, who must bear the expenses of support, if 
 neither the parents nor the child can meet them.* 
 , iSch. C. §445. B. G. B. 1666, 1673. 
 
 2 Sch. C. § I 429, 430, and citations. 
 
 285. 
 
 If parents are not in a position to exercise the parental 
 power, or if they themselves are under guardianship, or if they 
 have shown themselves guilty of a great misuse of their 
 authority, or gross neglect of their duties, the proper court 
 must deprive them of the parental power. 
 
TITLE VII.J 
 
 LEGITIMATE CHILDREN 
 
 65 
 
 If the power is taken away from both parents, a guardian 
 shall be appointed for the children.^ 
 
 This deprivation is effective also as to later born children. 
 » Sch. C. 5 445. B. G. B. 1666, 1673. 
 
 286. 
 
 In case of the remarriage of father or mother, a guardian 2. In Case of 
 shall be appointed for the children under their parental author- riage*'^' 
 ity, if the circumstances require it.^ 
 
 One of the spouses can be appointed guardian. 
 
 iSch. C. I 446, 3. B. G. B. 1640, 1669, 1686, 1697. 
 
 287. 
 
 If the reason fails upon which the parental power has been IV. Restora- 
 withdrawn, the proper court can then of its own motion, or Parental 
 on application of the father or mother, restore the same. Power. 
 
 The restoration can in no case be ordered before the lapse 
 of one year after the deprivation of the power. 
 
 288. 
 Cantons may prescribe the procedure to be followed for the V. Procedure, 
 deprivation and restoration of the parental authority. 
 
 The (right of) appeal to the Federal Court remains reserved. 
 
 289. 
 
 Parents shall not be relieved of the duty of bearing the d. 
 expenses of the support and education of their children by 
 the deprivation 'of their parental power. 
 
 The public law regulates, with reservation of the duty of 
 relatives to support, who must bear these expenses if neither 
 parents or child can do so. 
 
 Duty of 
 Parents 
 When 
 Power is 
 With- 
 drawn. 
 
 SIXTH SECTION — PARENTAL PROPERTY RIGHTS. 
 
 290. 
 
 So long as the parental power remains in them, parents A- Manage- 
 have the right and duty to manage the child's property. j j^ General. 
 
 They are not, as a rule, obliged either to render account 
 or give security therefor. The right remains reserved to the 
 
66 
 
 FAMILY LAW 
 
 [PART II. 
 
 guardianship officials to intervene upon improper conduct by 
 the parents. 
 
 Sch. C. I 446. B. G. B. 1639 to 1645. As to the parents' right of 
 usufruct, Sch. C. § 447. B. G. B. 1649 to 1663, 1666. 
 
 II. 
 
 After Dis- 
 solution of 
 Marriage. 
 
 291. 
 
 After the dissolution of marriage, the spouse retaining the 
 parental power must furnish an inventory of the child's prop- 
 erty to the Guardians' Court ^and report every substantial 
 change in its condition or disposition. 
 
 Sch. C. § 446, 3. B. G. B. 1640. 
 
 292. 
 
 B. Use of the Parents have the right to use the child's property during 
 Child's j^g minority, and while they are not deprived of the parental 
 I. Prefatory, power by reason of their misconduct. 
 Sch. C. § 447. B. G. B. 1649 to 1663, 1666. 
 
 II. 
 
 (Meaning) 
 — Extent 
 of Use. 
 
 C. Free 
 
 Property. 
 I. Free from 
 Use. 
 
 II. Free from 
 Use and 
 Manage- 
 ment. 
 1. Wages. 
 
 293. 
 
 The income from the child's property is in the first instance 
 to be used for the support and education of the child, and the 
 surplus belongs to the parents in the proportions in which 
 they bear the burdens of the marital community. 
 
 V. note to 292. 
 
 294. 
 
 Whatever is given the child either under condition that it 
 be invested for it, or as a savings fund or with express free- 
 dom from parental use, is excepted from this use. 
 
 The management by the parents is denied only when it is ex- 
 pressly so stipulated in the gift. 
 
 Sch. C. §§ 442, 447. B. G. B. 1649 to 1654. 
 
 295. 
 
 What the child earns by its own labor, belongs to the 
 parents so long as it is a minor and lives with them in house- 
 hold community. 
 
 If the child, with the consent of the parents, lives outside 
 of the household community, it can control its own wages, 
 subject to its duties to its parents. 
 
TITLE VII.] 
 
 LEGITIMATE CHILDREN 
 
 67 
 
 296. 
 
 Whatever a child receives from its parents to pursue its 
 own trade or profession remains under its control and use. 
 
 297. 
 
 In the case of improper conduct of parents in the exercise d. 
 of their property rights, the Guardians' Court must take the 
 proper steps to protect the child. If a danger to the child's i. 
 property is imminent, then the Guardian's Court can subject 
 the parents to the control under which a guardian is placed, 
 or demand of them the furnishing of security or nominate a 
 curator for the preservation of the child's interests. 
 
 Sch. C. § 446, 4. B. G. B. 1666, 1667, 1668, 1670, 1671, 1672. 
 
 Property in 
 Profession 
 or Trade. 
 
 Official 
 Interven- 
 tion. 
 
 Preserva- 
 tive 
 Measures. 
 
 298. 
 The withdrawal of the parental property rights follows only n. with- 
 
 drawal of 
 the Prop- 
 erty 
 Rights. 
 
 in consequence of the withdrawal of the parental power. 
 If the pare'ntal power has been taken away from the parents 
 without any fault of theirs, then the use of the child's property 
 remains in them, so far as the income is not required for the 
 support and education of the child. 
 Sch. C. § 447, note 3. B. G. B. 1656, 1882. 
 
 299. 
 
 When the parental power ceases, then they must return E. Liability of 
 the property with an account therefor to the child of age or j Restitution, 
 to its guardian. 
 
 Sch. C. 5 446, 6. 
 
 B. G. B. 1681. 
 
 300. 
 
 Parents are responsible, like any other user, for the restora- n. 
 tion of the property. For whatever in good faith they may 
 have sold, compensation is to be made. For expenditures 
 which they properly made for the child itself, they are in no 
 
 way responsible. 
 
 301. 
 In case of an attachment against, or bankruptcy of, the in. 
 father or mother, the claim to compensation for a child's 
 property has a preference conformably to the law of executions 
 and bankruptcy. 
 
 Measure of 
 Responsi- 
 bility. 
 
 Preference 
 of the Claim 
 for Com- 
 pensation. 
 
68 
 
 FAMILY LAW 
 
 [PART II, 
 
 EIGHTH TITLE 
 
 THE STATUS OF ILLEGITIMATE 
 CHILDREN. 
 
 A. Founda- 
 tion in 
 General. 
 
 B. Recogni- 
 tion. 
 I. Admissi- 
 bility and 
 Form. 
 
 II. 
 
 When Pro- 
 hibited. 
 
 302. 
 
 The relation of illegitimacy arises between the child and its 
 mother at its birth. Between the child and its father it is 
 established by recognition or judicially. 
 
 Sch. C. I 426. B. G. B. 1717, 1718. 
 
 303. 
 
 The recognition of an illegitimate child can be made by 
 the father or, if he is dead or permanently incapable of judg- 
 ment, by the paternal grandfather. It is accomplished by a 
 public authentication or by a disposition mortis causa and 
 is to be communicated to the civil status official of the 
 domicile of the father. 
 
 Sch. C. § 427, 2. B. G. B. 1723 to 1725. 
 
 304. 
 
 The recognition of a child begotten in breach of marriage 
 or in incest is forbidden. 
 
 305. 
 
 in. Revocation. Both the mother and child, and after its death, its off- 
 
 ^ M°th^* °^A ^P""S> can, within three months after they have received 
 
 Child. notice thereof, protest against any act of recognition before 
 
 the proper civil status officials and declare that the recognizor 
 
 is not the father or grandfather or that the act of recognition 
 
 would be detrimental to the child. 
 
 That official is to notify the recognizor or his heirs of the 
 protest, whereupon complaint can within three months be 
 laid before the judge of the proper civil status office to reject 
 the protest. 
 
 The B. G. B. does riot legislate on this point, seeming to assume that 
 recognition and legitimation are necessarily advantageous to the child. 
 
 306. 
 
 2- ~?"'|®*^ ^'y The recognition can be contested by the proper official 
 Persons. of the father's domiciliary canton, or by any one with an in- 
 
TITLE VIII.] 
 
 ILLEGITIMATE CHILDREN 
 
 69 
 
 terest therein, within three months after they have received 
 knowledge thereof, before the judge of the proper civil status 
 office, with the proof that the recognizor is not the father 
 or grandfather of the child, or that the recognition is barred. 
 
 M7. 
 
 The mother of an illegitimate child has the right to demand 
 the judicial determination of the paternity. A like right of 
 action belongs to the child. The action lies against the father 
 or his heirs. 
 
 Sch. C. § 426, 1, and note 1, § 435. 
 
 C. Suit for 
 Paternity. 
 
 I. Right of 
 Action. 
 
 308. 
 
 The action can be brought before or after the confinement, II. Limitation, 
 but is to be laid before the lapse of a year after the birth of 
 the child. 
 
 309. 
 
 The suit for paternity seeks the contributions towards main- III. Relief 
 tenance of mother and child and in addition, when the special °"^ ' 
 
 legal conditions are present, the assurance of a civil status for 
 the child. 
 
 Contributions towards maintenance for the mother can also 
 be demanded when the child has been recognized by the father, 
 or when it was born dead or has died before judgment. The 
 performance of the parental duty takes the place of contri- 
 butions towards maintenance for the child when it obtains the 
 civil status of the father. 
 
 Sch. C. § 436. B. G. B. 1715. 
 
 310. 
 
 The procedure in paternity causes can be regulated by the IV. Procedure. 
 cantonal law of process, subject to the provisions of this ' g^g^f " ^ '°"* 
 code. The cantons, nevertheless, cannot prescribe any Process, 
 regulations as to evidence, which are stricter than those of 
 the ordinary process procedure. 
 
 Sch. C. I 437. Intr. Law 21. 
 
 311. 
 
 Whenever the Guardians' Court has received knowledge of 2. Appoint- 
 the illegitimate birth, or the unmarried mother has given it Curator. 
 
70 
 
 FAMILY LAW 
 
 [PART II, 
 
 notice of her pregnancy, a curator is appointed in all cases 
 for the child, to protect its interests. 
 
 The curator is supplanted by a guardian after conclusion 
 of the procedure or after the lapse of the time of limitation, 
 if the Guardians' Court deems it inadvisable to place the 
 child under the parental power of the mother or father. 
 
 312. 
 
 The suit for paternity shall be brought before the court of 
 the Swiss residence of the complainant at the time of the birth 
 or of the residence of the respondent at time of suit. 
 
 If the complaint calls for the assurance of the father's 
 civil status for the child, then the domiciliary commune of 
 the father shall be officially notified of the suit, for the pro- 
 tection of its interests. 
 
 313. 
 
 b. Domiciliary A complaint lies before the court of the place of domicile 
 tion. of a Swiss citizen, r^jding abroad, if the mother and child 
 
 likewise reside abroad. 
 
 3. Jurisdic- 
 tion. 
 a. General. 
 
 4. Presump- 
 tion. 
 
 6. Guilt of 
 Mother. 
 
 6. Com- 
 plaint in 
 Event of 
 Mother's 
 Marriage. 
 
 314. 
 
 If the respondent, by the proof, has cohabited with 
 the mother in the period from the 300th to the 180th day ' 
 before the birth of the child, his paternity will be presumed. 
 
 This presumption falls, however, as soon as facts are shown 
 which justify a serious doubt as to the paternity of the 
 respondent. 
 
 • "The period of possible conception" (Empfangniszeit) , B. G. B. 1592. 
 Sch. C.§426, 1. B. G. B. 1717. 
 
 315. 
 
 If the mother has led a dissolute life at about the time of 
 conception, the complaint shall be refused. 
 
 The Exceptio plurium concubentum. 
 
 316. 
 
 If the mother was married at the time of conception, then a 
 suit for paternity can be brought only after the child has been 
 judicially decreed to be illegitimate. 
 
TITLE VIII.) 
 
 ILLEGITIMATE CHILDREN 
 
 71 
 
 In such a case the time of limitation runs first from the day 
 on which the child has been decreed an illegitimate. 
 Sch. C. § 425, 4. B. G. B. 1593 to 1598. 
 
 317. 
 
 The court shall, if the complaint is well grounded, decree to 
 the mother compensation, — (l) for the expenses of confine- 
 ment; (2) for maintenance during at least four weeks before 
 and after the birth; (3) for other necessary expenditures in 
 consequence of the pregnancy and delivery. 
 
 Sch. C. § 436. B. G. B. 1715. 
 
 318. 
 
 If the father promised marriage to the mother before 
 cohabitation, if he is guilty of a misdemeanor as to her by 
 the cohabitation, or if he has abused his power over her, or 
 if she is not yet of age at the time of the cohabitation, then 
 the court may decree the payment of a sum of money as 
 compensation. 
 
 V. 
 
 Decree of 
 Contribu- 
 tions 
 Towards 
 Mainte- 
 nance. 
 For the 
 Mother. 
 Indemnity. 
 
 6. Compen- 
 sation. 
 
 2. For the 
 Child. 
 
 a. Mainte- 
 nance. 
 
 319. 
 
 The court shall, if the complaint is well founded, decree to 
 the child a sum of money towards its maintenance, corres- 
 ponding to the station in life of the mother and father, but 
 in each case this shall be of an amount sufficient to form a 
 proper contribution towards the expenses of maintenance and 
 education of the child. 
 
 The sum of money towards its maintenance is to be paid to 
 the end of the child's 18th year, and that, too, for each period 
 in advance at the times ordered by the court. 
 
 The right of action in the child cannot be barred by any 
 agreement made by the mother, or by any renunciation by 
 her, which clearly compromises the child's claims. 
 
 Sch. C. § 435. B. G. B. 1708, 1714. 
 
 320. 
 
 In the event of a substantial change of circumstances the h. Change 
 contribution towards the maintenance can be modified upon stance.' 
 petition of the complainant or respondent, and be declared as 
 
 of 
 
72 
 
 FAMILY LAW 
 
 [PART II. 
 
 limited up to the time when the child attains a competent 
 independent income according to his station in life. 
 
 3. Entering 
 Security. 
 
 321. 
 
 If the paternity is reasonably established and the mother is 
 in want, the court may before final decree order the father 
 to enter security for the probable expenses of delivery and the 
 maintenance of the child for the first three months, even 
 without positive proof that her claim is endangered. 
 
 4. Claims 
 against 
 Heirs. 
 
 322. 
 
 These claims run against the heirs also of the father. 
 Such claims, however, are limited to the extent that the child 
 could claim if it were recognized a lawful heir. 
 
 Sch. C. § 435. B. G. B. 1708 to 1714. 
 
 VI. Decree 
 Civil 
 
 Status. 
 
 323. 
 
 of Upon petition of the complainant the child may be decreed 
 the civil status of the respondent, if he has promised mar- 
 riage to the mother or has been guilty of a misdemeanor as 
 to her at cohabitation, or has abused his power over her. 
 As against a married man such a decree is barred, if, at the 
 time of cohabitation, he was already married. 
 
 324. 
 
 D. Effect. If the child remains with the mother, it receives her family 
 
 '■ R^'^*'°" °1 name and her domicile' and on the mother's side enjoys the 
 Mother and . , , , ,. . , .„ . . , . , . 
 
 Child. rights and obligations of illegitimate relationship. 
 
 The mother shall care for the child as for a legitimate one.* 
 
 The Guardians' Court may place the child under the paren- 
 tal power of the mother. 
 
 ' Sch. C. § 42. B. G. B. 11. Sch. C. 5 440. B. G. B. 1616, 1706. 
 
 2 Sch. C. I 440, note 1. B. G. B. 1705. But a guardian must be 
 appointed; so the full paternal control seems denied to the mother. Sch. C. 
 § 443. B. G. B. 1707. 
 
 325. 
 
 II. Relation of 
 
 Child. decreed the civil status of the father, then it receives his 
 
 If the child has been voluntarily recognized, or has been 
 
TITLE VIII.l ILLEGITIMATE CHILDREN 73 
 
 family name and his domicile, and, on the father's as well as 
 mother's side, enjoys the rights and obligations of illegitimate 
 relationship. 
 
 The father must care for the child as for a legitimate one. 
 The Guardians' Court may place the child under the parental 
 power of the father or the mother. 
 
 326. 
 
 If an illegitimate child is placed under the power of the III. Relation of 
 father, then the mother as well has a right of reasonable MoUier*"'* 
 personal access to her child. 
 
 The Guardians' Court may, upon petition of the mother, ' 
 or of its own motion, grant the parental power over the child, ' 
 up to a certain age, to the mother and then over to the father. 
 
 327. 
 
 If the Guardian's Court places the child under the parental VI. Rights in 
 power of the father or mother, it determines at the same time Property 
 what rights they may have in the child's property. 
 
 The parent of the legitimate child charged with the duty of managing the 
 child's estate has an absolute right to the income therefrom, subject 
 to the expense of the child's support and education. This is the right 
 regulated by the above section. 
 
74 
 
 FAMILY LAW 
 
 [PART II, 
 
 NINTH TITLE— THE FAMILY COMMUNITY. 
 
 A. Those Ob- 
 ligated to 
 Support. 
 
 Assertion 
 and Scope 
 of the 
 Claim. 
 
 FIRST SECTION — THE DUTY TO SUPPORT. 
 
 328. 
 
 Blood relatives in ascending or descending line and brothers 
 and sisters are obligated mutually to support one another as 
 soon as without this aid they would fall into need. ' 
 
 329. 
 
 The claim for support is to be made effective against those 
 under the obligation, in the order of their right to inherit and 
 goes to the rendering of what is requisite for the bare support 
 of the needy one and is proportioned to the circumstances of 
 the one obligated thereto. 
 
 Brothers and sisters can be brought under this obligation 
 to support only when they are situated in comfortable circum- 
 stances. 
 
 The claim is made effective before the proper official of the 
 residence of the one obligated and that, either by the one 
 entitled thereto or if he is supported by the public poor 
 authorities, by the poor officials charged with his support. 
 
 330. 
 
 C. Support of Foundlings are to be supported by the community in which 
 Foundlings, ^j^^^ j^^^^ obtained citizenship. 
 
 If the descent of a foundling is ascertained, then this com- 
 munity can demand compensation for its expenditures from 
 the relatives subject to such obligation of support, and in 
 the last instance from the district subject to such obligation. 
 
 SECOND SECTION — THE POWER OVER THE HOUSEHOLD. 
 
 331. 
 
 A. Prefatory. If persons, who live in a common household, have a family 
 head by virtue of law or by agreement or custom, he pos- 
 sesses the power over the household. 
 
TITLE IX.] THE FAMILY COMMUNITY 75 
 
 This power extends to all persons who, as blood relatives 
 and related in law, or by virtue of a contractual relation as 
 servants, pupils, apprentices or in similar positions, live in 
 the common household. 
 
 332. 
 
 The regulation under which the household members are B. Effect. 
 placed, must reasonably consider the interests of all such tion"and 
 members. Care of 
 
 In particular must be preserved to such members the °"^^ ° 
 
 necessary freedom for their education, pursuit of a calling, 
 and observance of religious requirements. 
 
 The family head must with like care protect the property 
 contributed by its members and secure it from damage as he 
 would his own. 
 
 333. 
 
 If a minor or an incapacitated person, a mentally weak or II. Responsi- 
 infirm member of the household, does any damage, then the " ^' 
 
 family head is liable therefor, unless it can be shown that he 
 used the usual, and, under the circumstances, requisite 
 measure of care in supervision. The family head is obliged 
 to take care that danger or damage does not -ensue to one 
 of the household mentally weak or infirm, or to others by 
 reason of such condition. 
 
 In case of necessity notice must be given to the proper 
 court with a view to having proper provisions made. 
 
 "House power," head of the household, §§ 331 to 333. This authority 
 •with its duties, is not regulated by the German Code or mentioned by 
 Schuster in his Commentary. As it seems- to be in the nature of parental 
 power, it seems a necessary inference that any one assuming or becoming 
 invested with, by agreement or otherwise, parental power would there- 
 upon become liable to perform the duties incident to the position. So 
 that this section is probably an express regulation of a condition which, 
 being rather exceptional, was omitted only for that reason. 
 
 334. 
 
 Adult children who have given their service or their income III. Claim of 
 to their parents in the common household can maintain a 
 claim therefor if they have not expressly waived a proper 
 
76 
 
 FAMILY LAW 
 
 [PART II, 
 
 compensation for same, in tlie event of an attachment against, 
 or bankruptcy of, the father or mother. 
 
 In event of a disagreement the court can pass upon the 
 matter and determine the amount of the lien according to 
 his judgment. 
 
 This point does not seem to be expressly regulated in the German Code. 
 
 THIRD SECTION — THE FAMILY PROPERTY. 
 
 A. Family 
 Endow- 
 ments. 
 
 335. 
 
 A fund may be limited to a family so that a family endow- 
 ment is created according to the rules of the law of persons 
 or of inheritance for the purpose of defraying the expenses of 
 education, wedding advancement,' maintenance of family mem- 
 bers or similar purposes. 
 
 The creation of family fideicommissa is no longer allowed.^ 
 
 ^ Ausstattung, advancement on marriage. Sch. C. § 440, note 2. 
 B. G. B. 1624. 
 
 ^Fideicommissa, trust-estate. It seems the fund is limited directly 
 to the persons interested, who hold as joint owners. Next section as to 
 ownership, Sch. C. § 325. This family endowment is not regulated by 
 the B. G. B. but- as to "Foundation" {Stiftung) Sch. C. § 57. B. G. B. 81. 
 
 336. 
 
 B. Communi- A fund can be limited to a family by relatives allowing an 
 I. Creation. inheritance, in whole or in part, to continue as community 
 
 1. Authority, property, or by putting funds into a community. 
 
 • 337. 
 
 2. Form. An agreement for the formation of a community requires for 
 
 its validity the public authentication and the signatures of all 
 the members thereof or their representatives. 
 
 338. 
 
 II. Duration. The Community can be fixed for a definite or indefinite 
 time. 
 
 If it is of indefinite duration, it may be determined upon 
 six months' notice by any member. 
 
TITLE IX.] 
 
 THE FAMILY COMMUNITY 
 
 77 
 
 In the case of an agricultural use of the common prop- 
 erty, a determination is permissible only at the customary 
 (in the place) periods in the spring or autumn. 
 
 339. 
 
 The community binds all its members to a common Indus- III. Effect. 
 trial activity. In default of other provision they are entitled ^- ^"^^ °^ 
 to equal rights in such ownership. Own^-°" 
 
 During such ownership they can neither demand a parti- ^'^'P' 
 tion nor dispose of their separate shares therein. 
 
 340. 
 
 The affairs of the community are managed by all its mem- 
 bers in common. 
 
 Each one of them can, without co-operation of the others, 
 undertake ordinary matters of administration. 
 
 341. 
 
 The members of such a community may designate one of 
 their number as its head. The head of such community 
 represents it in the scope of its business matters, and directs 
 its industrial activity. The exclusion of the others from 
 representation is, however, good as against third persons in 
 good faith only when the representative is duly entered in the 
 commercial register. 
 
 342. 
 
 The articles of property of such a community are joint 
 property of all its members. The members are jointly and 
 severally liable for its debts.* 
 
 Whatever any single member thereof possesses in the way of 
 property separate from the common goods or, during the 
 existence of such community, acquired by succession or in 
 any other way gratuitously, belongs to him personally unless 
 it is otherwise agreed.^ 
 
 ' As to liability for debts, Sch. C. § 182. B. G. B. 431. 
 
 ^ The nature of this ownership seems to be akin to the German non- 
 mercantile partnership, the common object, however, being the mainte- 
 nance of the home and family. As to the rules of German law, as to this 
 species of association {Gemeinschaft zu Gesamten Hand) v. Sch. C. |§ 6, 
 67, and B. G. B. as therein cited. 
 
 2. Manage- 
 ment and 
 Repre- 
 sentation. 
 
 a. In General. 
 
 6. Authority 
 of the 
 Head. 
 
 3. Com- 
 munity 
 Goods and 
 Personal 
 Property. 
 
78 
 
 FAMILY LAW 
 
 [PART II, 
 
 IV. Dissolu- 
 tion. 
 1. Grounds. 
 
 343. 
 
 The dissolution of such a community is effected, — 
 (1) by agreement or by notice;' (2) by lapse of the time for 
 which the community was formed, in so far as it is not tacitly 
 continued ; (3) when an attachment of a member's share in 
 the community property is ripe for execution ;* (4) by a mem- 
 ber's becoming bankrupt ; (5) by petition of member for suf- 
 ficient reasons. 
 
 'Notice, B. G. B. 723. 
 
 2 B. G. B. 725, 728. Sch. C. | 67. 
 
 2. Notice, 
 Insol- 
 vency, 
 Marriage. 
 
 344. 
 
 If any member so notifies the community, or if any mem- 
 ber has become bankrupt, or an attachment of the share of 
 anyone has ripened for execution, the other members of the 
 community can continue it by agreement, by paying out the 
 withdrawing member or his creditors. 
 
 If any member marries, he can demand payment of his 
 share without notice. 
 
 3. Death of a 
 Member. 
 
 345. 
 
 If a member dies, the heirs not in the community can 
 demand only a payment of his share. If he leaves inheriting 
 oiTspring, these may enter the community in place of the 
 deceased, with consent of the others of the community. 
 
 Sch. C. § 67. B. G. B. 727. 
 
 4. Rule of 
 Division. 
 
 346. 
 
 The division of the common property, or the payment of 
 the share of a retiring member, is governed by the condition 
 of property at the time when the cause for dissolution 
 arises. 
 
 Its accomplishment cannot be demanded at an unreason- 
 able time. 
 
 Profit ^^^' 
 
 sharing The members of a community can commit the control of 
 
 Com- the common property and representation thereof to any one 
 
 1. Definition, member, with the stipulation that he shall yearly pay each 
 
TITLE IX.] 
 
 THE FAMILY COMMUNITY 
 
 79 
 
 one a share of the net profits. This share, in the absence of 
 any other stipulation, is to be fixed in a reasonable way, by 
 the average income of the common property for a commen- 
 surately longer period, due regard being had to the work done 
 by the receiver ( Ubernehmer) . 
 
 In the German non-mercantile partnership the partners may appoint one 
 or more of their members as managers. 
 
 Sch. C. § 67. B. G. B. 709, but the particular form of management 
 here provided for does not seem to be mentioned. 
 
 348. 
 
 If the community property is not properly managed by the 
 receiver, or he does not fulfill his obligations to the members 
 thereof, the community can be dissolved. Upon petition of 
 any member the court can, on sufficient ground shown, direct 
 his joining in the management by the receiver, due regard 
 being had to the provisions as to the intestate partition. 
 
 Otherwise profit-sharing communities come under the regu- 
 lations of communities with a common management. 
 
 V. last note above. The system of an endowment or community of prop- 
 erty created and regulated in the foregoing sections seems to take the 
 place of trusts for purposes of family settlements, which are forbidden; 
 but the endowment is itself a legal entity, subject to lawful management 
 and judicial supervision. 
 
 Special 
 Grounds 
 for Disso- 
 lution. 
 
 349. 
 
 The cantons are permitted to allow the establishment of C. Home- 
 family homesteads and specially regulate them, subject to j power of 
 the following regulations. Cantons. 
 
 350. 
 
 An agricultural estate, or one serving any other industry, II. Establish- 
 or a dwelling with its appurtenances, can be declared a home- ^ Prefatory 
 stead under the following conditions. The estate or house as to 
 cannot be larger than is necessary to furnish reasonable sup- " ^^^ ' 
 
 port to a family, without regard to the encumbrances upon it 
 or the other property of the owner, or to serve it as a residence. 
 
 The owner or his family must manage the estate, pursue 
 the trade, or occupy the house, except the proper official for 
 sufficient reasons allow otherwise temporarily. 
 
80 
 
 FAMILY LAW 
 
 [PART II. 
 
 Procedure 
 and Form. 
 Publica- 
 tion. 
 
 351. 
 
 An official publication must precede the establishment 
 thereof, by means of which creditors and other persons, who 
 may deem their rights invaded by the erection of a home- 
 stead, are called upon to declare their claims. Special 
 notice of the publication must be given all lien creditors 
 of the land. 
 
 Similar procedure was requisite under the ancient Danish law before an 
 estate tail could be created. Dan. C. of Chr. V. (1683). 
 
 352. 
 
 If the estate or house meets the requirements of home- 
 
 b. Protection 
 
 Third Per- steads, and if no rights of third persons are injured by their 
 sons. establishment, the court may allow such establishment. 
 
 If a creditor raises an objection, the homestead may. not 
 be created. 
 
 The debtor may, however, satisfy objecting creditors by 
 payment without being bound to a limitation of notice. 
 
 353. 
 
 Entry in 
 Land 
 
 The creation of a homestead becomes effective by entry in 
 
 Register. the land register, which is to be published officially. 
 
 III. Effect. 
 1. Limitations 
 on Disposi- 
 tion. 
 
 Mainte- 
 nance of 
 Blood 
 Relatives. 
 
 354. 
 
 No new burdens can be laid upon an estate or house which 
 has become a homestead. The owner may neither alienate it 
 nor rent or demise it.^ 
 
 Execution against the homestead and its appurtenances is. 
 barred, subject to the right of a receivership. 
 
 '"Rent or demise" (mieten oder pachten). Mieten gives the use of a 
 property for the term granted, i.e., a dwelling house. Pachten gives the 
 right of the fruit of the leased property as well as the use, i.e., a farm 
 lease. 
 
 355. 
 
 The proper official can lay upon the owner the duty to take 
 into the homestead his blood relatives in ascending or 
 descending line, and his brothers and sisters so far as they 
 are in urgent need of support and are not unworthy of it. 
 
 The Japanese law gives the family estate to the head of the family, charg- 
 ing him with the duty of maintaining the needy members. 
 
 Jap. C. of 1898. 
 
TITLE IX.] 
 
 THE FAMILY COMMUNITY 
 
 81 
 
 356. 
 
 If the owner becomes insolvent, the estate or house is put 
 into the hands of a special receiver, who must protect the 
 interests of creditors in the preservation of the homestead. 
 
 The satisfaction of the creditors shall be made in the order 
 of the dates of their certificates of loss and in accordance 
 with the order of priority in bankruptcy. 
 
 3. In Event of 
 Insolvency. 
 
 357. 
 
 If the owner dies, the homestead can continue longer only IV. Dissolu- 
 on condition that a binding direction for its assumption by ^ g°"j-, . 
 the heirs in event of death be given in a disposition causa 
 mortis. If no such direction exists, the entry in the land 
 register is cancelled after the death of the owner. 
 
 358. 
 The owner can dissolve the homestead during his lifetime. 2. During his 
 To this end he must present his petition to the proper Lifetime. 
 
 official to have the entry in the land register cancelled, 
 
 which petition is to be published. 
 
 If no valid objection is raised, the cancellation is to be 
 
 allowed. 
 
 359. 
 
 Regulations established by cantons for homesteads require V. Cantonal 
 the approval of the Federal Council before becoming effective. trative'^ 
 
 Regula- 
 tions. 
 
82 
 
 FAMILY LAW 
 
 [PART II, 
 
 THIRD DIVISION. — GUARDIANSHIP. 
 
 TENTH TITLE — THE GENERAL LAW OF 
 GUARDIANSHIP. 
 
 FIRST SECTION. — INSTRUMENTALITIES OF GUARDIANSHIP. 
 
 360. 
 
 A. In General. The instrumentalities of guardianship are the Guardians' 
 Court, the guardian and the curator (Beistand). 
 V. Sch. C. 449, 450. 
 
 B 
 
 Guardians' 
 Courts and 
 Officials. 
 I. State In- 
 strumen- 
 talities. 
 
 36L 
 
 The guardianship officials are the Guardians' Court and the 
 Supervising Orphan Council. 
 
 The cantons select these officials and regulate the juris- 
 diction of the courts, where two courts of supervisory char- 
 acter are established. 
 
 V. Sch. C. §§451,452. 
 
 362. 
 
 II. Family- 
 Guardian 
 
 A family guardianship can be ordered, especially for the 
 ship. cases where the interests of the ward justify it, on account of 
 
 When Per- the pursuit of a trade or an association and the like. It con- 
 missible, ^j^^^ j^ ^-^^ ^^^^ ^^^^ ^^^ powers and duties and the respon- 
 
 Meaning. sibility of the Guardians' Court are transferred to a family 
 council. 
 
 In the German law a "family council" is appointed in the direction of 
 either lawful parent. Sch. C. § 451. B. G. B. 1858, 1860. 
 
 2. Appoint- 
 ment. 
 
 363. 
 
 The family guardianship is created by order of the super- 
 visory council, upon request of two near relatives of com- 
 mercial capacity, or upon request of a near relative and the 
 spouse of the ward. 
 
 Sch. C. § 451, note 1. B. G. B. 1859. 
 
TITLE X.] GENERAL LAW OF GUARDIANSHIP 83 
 
 364. 
 
 The family council shall be made up every four years by 3. Family 
 the supervising orphan council, of at least three relatives of ounci . 
 
 the ward, who may be fitted for the charge of a guardianship. 
 The spouse of the ward can belong to the family council. 
 
 Sch. C. I 452. B. G. B. 1849. As to the composition and regulation of 
 the family council, v. B. G. B. 1861 to 1881, 1905. 
 
 365. 
 
 The members of the family council must give security for 4. Security, 
 the faithful performance of their duties. Without this 
 security no family guardianship can be created. 
 
 366. 
 
 The supervising orphan council can dissolve the family 5. Dissolu- 
 guardianship at any time that the family council does not do 
 its duty or the interests of the ward demand it. 
 
 Sch. C. § 451, note 1. 
 
 367. 
 
 The guardian must protect the collective personal and prop- C. Guardian 
 erty interests of the minor or the ward under legal disability, Curator. 
 and is his representative.' 
 
 The curator is appointed for special matters of business or 
 entrusted with the administration of a property. 
 
 For the curator the provisions of this law as to the guardian 
 control, in so far as no special regulations are set up.^ 
 
 • Sch. C. § 460. B. G. B. 1793, 1794. 
 
 2 Sch. C. § 454 and citations. 
 
 SECOND SECTION — CASES FOR GUARDIANSHIP. 
 
 368. 
 
 Every person not of age, and not under parental power, A. Minority. 
 comes under a guardianship. The civil status ofificials, the 
 administrative officials and courts, must give notice to the 
 proper official as soon as they receive in the course of their 
 duties knowledge of the occurence of such a case for guard- 
 ianship. 
 
 Sch. C. §449. B. G.B. 1773. 
 
84 
 
 FAMILY LAW 
 
 [PART II, 
 
 369. 
 
 ^ ^T^Ad^l^^ Every person of full age, who by reason of diseased mind or 
 I. Mentally mental weakness is incapable of managing his affairs, or requires 
 Infirm or permanently for his protection and care a curator, or endangers 
 the safety of others, is subject to guardianship. Administra- 
 tive ofificials and courts must give notice to the proper official 
 as soon as in the course of their duties they obtain knowledge 
 of the occurrence of such a case for guardianship. 
 B. G. B. 1896. Sch. C. | 281, 31. B. G. B. 6, 104, 114. 
 
 370. 
 
 II. Prodigality, Every person of full age, who through prodigality, drunken- 
 ness, Dissi- ii^ss, dissipated life, or by the manner and method of manage- 
 pated Life ment of his property, exposes himself or his family to the 
 agement. danger of want or poverty, permanently requires for his pro- 
 tection and care a curator, or endangers the safety of others, 
 is subject to guardianship. 
 Sch. C. §§30, 31. B. G. B. 6, 114. 
 
 III. Restraint 
 of Liberty. 
 
 V. Own 
 Petition. 
 
 C. Procedure. 
 I. In General. 
 
 II. 
 
 Hearing and 
 Expert 
 Testi- 
 mony. 
 
 371. 
 
 Every person of full age, who has been condemned to a loss 
 of his liberty for a year or more, is subject to guardianship. 
 The imprisoning official has to give notice thereof to the proper 
 court, as soon as the prisoner enters upon his sentence. 
 
 The German law contains no such provision. The English law agrees 
 with the Swiss, v. Forfeiture Act 1870, § 8. 
 
 372. 
 A guardian can be appointed for an adult person upon his 
 petition, if he proves that on account of weakness due to age, or 
 other infirmity, or inexperience, he cannot properly care for 
 his property. 
 
 373. 
 
 The cantons choose the proper courts for the deprivation 
 of legal capacity and its procedure. 
 
 The right of appeal to the Federal Court is reserved. 
 
 374. 
 
 No person can be deprived of his legal capacity on account 
 of prodigality, drunkenness or dissipated life, or the manner 
 
TITLE X.] GENERAL LAW OF GUARDIANSHIP 
 
 85 
 
 and method of his property management, without being first 
 granted a hearing. The deprivation of one's legal capacity 
 on account of mental infirmity or weakness may be decreed 
 only after securing the opinion of experts, which opinion is 
 also to pass upon the advisability of a proposed hearing of 
 the one to be deprived of his legal capacity. 
 This and the following section regulate matters of procedure only. 
 
 375. 
 
 If an adult is placed under a guardian's care, the guardian- 
 ship must be advertised at least once in an official paper of 
 his residence and his domicile, as soon as the guardianship 
 has gone into effect. The supervising orphan council can 
 allow a postponement of the advertisement by way of an excep- 
 tion, so long as the mentally infirm or weak one, or the drunk- 
 ard, is kept in an institution. Before publication the guard- 
 ianship has no effect as against any one acting in good faith. 
 
 III. Publica- 
 tion. 
 
 THIRD SECTION — JURISDICTION. 
 
 376. 
 
 The appointment of a guardian is made at the residence of A. Guardian 
 the person to be put under guardianship. The cantons are at^Red-** 
 permitted to declare as competent the guardianship officials of dence. 
 the domicile, for the citizens dwelling in the canton, in so far 
 as the support of the poor wholly or partially falls upon the 
 domiciliary district. 
 
 377. 
 
 A change of residence can take place only with the consent B. Change of 
 /■ ^, ^ J. , r^ . Residence. 
 
 of the Guardians Court. 
 
 If it follows, the guardianship goes over to the court of the 
 new residence. 
 
 The fact of guardianship is in this case to be published at 
 the new residence. 
 
 378. 
 The Guardians' Court of the domicile is authorized to com- C. Rights of 
 mit the appointment of guardians for its citizens, who may ciliary"™ 
 
 Canton. 
 
86 FAMILY LAW [PART II, 
 
 have a residence in another canton, to the court of the 
 residence. 
 
 It can, in the protection of the interests of one of its citizens, 
 who shall have been put under a guardian in another canton 
 or is under a guardian, lay complaints before the proper court. 
 
 If any provision is to be made as to the religious training 
 of a minor, under a guardian, the court of the residence shall 
 seek the advice of the domiciliary Guardians' Court and 
 follow it. 
 
 As to the religious training of wards, v. Sch. C. § 462. B. G. B. 1838, 
 1915. 
 
 FOURTH SECTION — THE APPOINTMENT OF THE GUARDIAN. 
 
 379. 
 
 A. Prefatory. The Guardians' Court shall choose as guardian an adult 
 1. General. person who may appear fitted for this ofifice. 
 
 Under special circumstances several persons can be chosen, 
 who may fulfill the office in common or in an official division 
 of the powers. The joint conduct of the guardianship can, 
 nevertheless, be transferred to several persons only with 
 their consent. 
 
 V. Sch. C. § 456 and citations. 
 
 380. 
 
 II. Priority of If no good reasons speak against it, the court shall prefer 
 
 theRela- jjj ^-jjg choice of a guardian a fit near relative or the spouse 
 tives and ° . , , • i • 
 
 the Spouse, of the one to be put under a guardian, with due consideration 
 
 given to their personal situation and the nearness of their 
 
 residence. 
 
 381. 
 
 III. Wishes of If the person to be put under a guardian, or his father or 
 and th" mother named anyone as the guardian of their choice, this 
 Parents. selection shall be followed, if no serious objections thereto 
 
 exist. 
 Sch. C. § 456. B. G. B. 1897 to 1899, 1776, 1777, 1779. 
 
TITLE X.] 
 
 GENERAL LAW OF GUARDIANSHIP 
 
 87 
 
 382. 
 
 The male relatives and the husband of the person to be IV. The Gen- 
 
 eral Duty 
 of Assump- 
 tion. 
 
 Grounds 
 for Declina- 
 tion. 
 
 put under a guardian, as well as all the men in good standing 
 as citizens who live in the district of the guardianship, are 
 obligated to assume the ofifice. 
 
 The obligation to assume the office does not exist when the 
 guardian is named by the family council. 
 
 Sch. C. § 458. B. G. B. 1785 to 1788. 
 
 383. 
 
 The following can decline appointment to the office: — 
 (1) He who is sixty years old or more. (2) He who on account 
 of physical disability could fulfill the office with difficulty 
 only. (3) He who exercises the parental power over more 
 than four children. (4) He who already is charged with a 
 specially time-consuming, or two other, guardianships. (5) 
 The members of the Federal Council, the Chancellor of the 
 Federation and the members of the Federal Court. (6) The 
 cantonal officials and members of cantonal courts exempted by 
 the cantons. 
 
 Sch. C. § 458. B. G. B. 1785 to 1788. 
 
 384. 
 
 The following are not eligible to the office: — (1) He who VL Grounds 
 himself is under a guardian. (2) He who does not enjoy ^^^ 
 the honors and rights of citizenship or leads a dissolute life. 
 (3) He who has interests which are in a marked degree antag- 
 onistic to those of the one to be put under a guardian or who may 
 be antagonistic to him. (4) The members of the designated 
 guardianship officials, so long as other fit persons are at hand. 
 
 Sch. C. § 457. B. G. B. 1780 to 1784. 
 
 385. 
 
 The Guardians' Court must choose the guardian with all B. Order of 
 
 Choice, 
 dispatch. _ I. Nomina- 
 
 The procedure to deprive one of legal capacity can in case tion of the 
 of necessity be begun even before the one to be put under a 
 guardian has reached his majority. 
 
 If adult children are deprived of their legal capacity, as a 
 rule the parental power takes the place of guardianship. 
 
88 FAMILY LAW [PART II. 
 
 386. 
 
 II. Preliminary If it becomes necessary before the nomination to care for 
 
 a guardian's matters of business, the Guardians' Court of its 
 own motion adopts the necessary measures therefor. It can 
 in particular order the preliminary deprivation of commer- 
 cial capacity and appoint a representative. 
 
 Such a measure is to be published. 
 
 Sch. C. § 459, note 1. 
 
 387. 
 
 III. Notice and Written notice shall at once be given to the one chosen, 
 tion. Likewise shall the choice, in case of the publication of the 
 
 appointment of a guardian, be published in an official paper 
 of the residence and domicile. 
 
 388. 
 
 IV. Declination The guardian appointed can, within ten days after notice of 
 ^ggf " his choice, avail himself of a ground for declination. 
 
 1- Assertion In addition everyone who is interested therein can, within 
 
 ten days after he has received notice of such a choice, con- 
 test it as against the law. 
 
 If the declination or contest be found well established by 
 the Guardians' Court it makes a new choice, otherwise 
 it transmits the matter with its report to the supervising 
 orphan council for action. 
 
 Thereof. 
 
 389. 
 
 2. Preliminary The appointee is, despite his declination or contest, at his 
 Appointee.^ responsibility obligated to fulfill the duties of guardian, until 
 he has been relieved from the office. 
 
 390. 
 
 3. The Deci- The supervising orphan council shall give notice of its 
 decision to the appointee as well as the Guardians' Court. 
 If the appointee is released, the Guardians' Court shall make 
 a new choice at once. 
 
 sion. 
 
 391. 
 
 V. Transfer of If the choice is finally made, the transfer of the office to the 
 guardian is effected by the Guardians' Court. 
 
 the Office. 
 
TITLE X.] GENERAL LAW OF GUARDIANSHIP 
 
 89 
 
 FIFTH SECTION — THE CURATORSHIP. 
 
 392. 
 
 Upon petition of an interested party, or of its own motion, A. 
 the Guardians' Court shall appoint a curator, wherever 
 the law specially provides it, as well as in the following I. 
 cases: — (1) Whenever an adult person can neither transact 
 the business himself, nor appoint a representative, in an urgent 
 matter of business, by reason of sickness, absence or the like.' 
 (2) Whenever the legal representative of a minor or legally 
 incapacitated person, in a business matter, has interests 
 which may be antagonistic to those of the principal.^ (3) 
 Whenever the legal representative is prevented from repre- 
 senting him.' 
 
 • Sch. C. § 454 a. B. G. B. 1909. 
 2Sch. C. §543. B. G. B. 1906. 
 ' V. last note. 
 
 393. 
 
 If a property lacks the necessary care the Guardians' Court H. 
 shall take the necessary step and in the following cases appoint 
 a curator: — (1) Upon an extended absence of a person with- 1- 
 out a known place of sojourn. (2) Upon incapacity of a per- 
 son to manage his own property or appoint a representative, 
 in case the guardianship is not to be ordered. (3) Upon 
 uncertainty as to the hereditary succession and to protect the 
 interests of the child before birth. (4) For an incorporation 
 (korperschaft) or endowment, whenever the proper ofificers 
 are wanting and the administration is not otherwise provided 
 for. (5) For public collections of money for benevolent or 
 other public weal serving purposes, whenever no provision 
 is made for their management or expenditure. 
 
 V. Sch. C. § 454. B. G. B. 1909 to 1914. 
 
 394. 
 
 A curator can be appointed for an adult person upon his 
 petition whenever the conditions for the appointment of a 
 guardian upon his request are present. 
 
 V. Sch. C. § 454, par. a. 
 
 Cases for 
 Curator- 
 ship. 
 
 Represen- 
 tation. 
 
 Property 
 Manage- 
 ment. 
 By Virtue 
 of Law. 
 
 Upon his 
 Own Peti- 
 tion. 
 
90 
 
 FAMILY LAW 
 
 [PART II, 
 
 395. 
 
 III. Limitation If no sufficient reason is present for tiie deprivation of legal 
 Commercial capacity of any person, but nevertheless for his protection -a 
 Capacity, limitation upon his commercial capacity appears to be neces- 
 sary, then an advisor (Beirat) can be appointed for him, whose 
 co-operation is requisite in the following cases: — (1) For liti- 
 gation and conclusion of settlements. (2) Purchase, sale, 
 pledging and otherwise burdening real estate. (3) Purchase, 
 sale and pledge of securities. (4) Buildings, which exceed 
 those in the usual course of administration. (5) The granting 
 and acceptance of loans. (6) Meeting payments on account 
 of principal. (7) Gifts. (8) Acceptance of commercial obliga- 
 tions. (9) The entry of security. 
 
 Under like conditions the management of property can be 
 taken from one in need of it, while he may retain the free dis- 
 position of the income. 
 
 The Beirat, official counsellor or advisor, with limited duties as to 
 control and management, is not known to the laws of Europe and America 
 generally. 
 
 B. Jurisdic- 
 tion. 
 
 396. 
 
 Representation by a curator shall be ordered by the Guard- 
 ians' Court of his residence, for a person requiring a curator. 
 
 The appointment of an administration of his property shall 
 be made by the Guardians' Court of the place where the most 
 of the property is administered or has come to the person 
 represented. 
 
 The domiciliary community has the like powers to protect 
 the interests of its citizens as in the case of a guardianship. 
 
 397. 
 
 C. Appoint- The same regulations obtain for the procedure, as in the 
 
 ment of the ^^g^ q£ appointment of a guardian. The appointment shall 
 only be published when it appears advisable to the Guardians' 
 Court. 
 
TITLE XI.] 
 
 DUTIES OF THE GUARDIAN 
 
 91 
 
 ELEVENTH TITLE — DUTIES OF THE GUARDIAN. 
 
 FIRST SECTION — THE OFFICE OF GUARDIAN. 
 
 398. 
 
 Upon acceptance of a guardianship, an inventory shall be A. Acceptance 
 made by the guardian and a representative of the Guardians' ?^£^^ 
 
 /-> r 1 . , Uttice. 
 
 Court, of the property to be managed. I. Inventory. 
 
 If the ward is capable of judgment, he shall take part in the 
 taking of the inventory, so far as practicable. 
 
 Wherever the circumstances justify it, the supervisory coun- 
 cil, upon request of the guardian and Guardians' Court, may 
 direct the taking of a public inventory, which serves the same 
 purpose for creditors as the public inventory in the law of 
 inheritance. 
 
 V. Sch. C. § 464, par. 1. B. G. B. 1802, 1897. 
 
 399. 
 
 Valuable papers, jewelry, important documents and the II. Care of 
 like, so far as the care of the ward's property permits it, are Valuables, 
 to be placed in a secure place under the supervision of the 
 Guardians' Court. 
 
 V. Sch. C. § 463, par. 4. B. G. B. 1814 to 1820. 
 
 Other movables, so 
 
 400. 
 
 far as the 
 
 interests of the ward m. Alienation 
 
 demand it, and under direction of the Guardians' Court, are of Mov- 
 to be disposed of at public auction or private sale. Objects 
 of special personal value to the family or the ward shall not 
 be alienated, if at all avoidable. 
 
 401. 
 
 The guardian shall, so far as he does not require it for his iv. Investment 
 ward, promptly deposit all money on interest in a depository ^ Ouf °to^^ 
 named by the Guardians' Court or by cantonal ordinance, or invest, 
 invest it in interest-bearing securities, approved by the Guard- 
 ians' Court after investigation of their security. 
 
92 
 
 FAMILY LAW 
 
 [PART II, 
 
 If the guardian neglects this investment for longer than a 
 month, he becomes liable himself for interest. 
 
 In the German law the duty of parents and guardians as to manage- 
 ment of property are generally similar. Sch. C. | 463. As to the parents' 
 duty to invest, v. Sch. C. § 446, par. 2. B. G. B. 1642. 
 
 2. Change of 
 Capital 
 Invest- 
 ments. 
 
 402. 
 
 Investments of capital that do not offer sufficient security 
 shall be replaced by safer investments. The change, however, 
 shall not be made inopportunely, but with due regard to the 
 interests of the ward. 
 
 As to selection of investment by guardians, v. Sch. C. §. 463. B. 
 G. B. 1810, 1821, 1897. 
 
 V. Business 
 and Trade. 
 
 VI. Realty. 
 
 403. 
 
 If there is among the property a business or a trade or the 
 like, the Guardians' Court shall take the necessary steps for 
 liquidation or continuance thereof. 
 
 404. 
 
 The alienation of realty shall be made under the direc- 
 tion of the Guardians' Court, and is to be directed only in those 
 cases where the interests of the ward require it. Alienation 
 shall be made by public auction, with reservation of the ap- 
 proval of the bid by the Guardians' Court that shall give its 
 decision with all dispatch. A private sale, however, may be 
 made with the consent of the supervisory council. 
 
 In the German law the parent requires leave of the proper court to alien- 
 ate the realty of his child. Sch. C. § 446, par. 2. And the guardian would 
 be equally bound. Sch. C. § 463, par. 1. 
 
 405. 
 
 B. Care and If the ward is a minor the guardian must provide for his 
 
 Represen- proper support and education. For this purpose he has the 
 
 I. Care for the same rights as parents, with reservation of the co-operation of 
 
 , S?'^^??- the guardianship officials. 
 
 1. Of Mmors. * ^ 
 
 V. Sch. C. § 462, and B. G. B. 1800, 1801, 1838, 1915. 
 
 2. Of Persons 
 
 Deprived 406. 
 
 of Legal If the ward is of the age of majority, the care extends also 
 
 Capacity. 
 
TITLE XI.l 
 
 DUTIES OF THE GUARDIAN 
 
 93 
 
 to protection and counsel in all personal business matters, as 
 well as, in case of necessity, placing him in an institution. 
 V. B. G. B. 1773. 1896. 
 
 407. 
 
 The guardian represents the ward in all legal matters, with II. Represen- 
 
 reservation of the co-operation of the guardianship officials. ^ i?f' General 
 V. Sch. C. § 461. B. G. B. 1795, 1796, 1897, 1915. 
 
 408. 
 
 No security can be entered, no considerable donations 
 assumed, and no endowments created to the detriment of the 
 ward. 
 
 As to gifts, Sch. C. § 446, par. 2. B. G. B. 1641, 1643. As to the other 
 prohibitions under the general rule of German law, the court would 
 decline permission to the guardian to enter into any transaction "to the 
 detriment of the ward." 
 
 2. Forbidden 
 Trans- 
 actions. 
 
 409. 
 
 If the ward is capable of judgment, and at least sixteen 
 years old, the guardian must question him as to his desire, 
 as far as practicable, in all important matters before action 
 thereon. 
 
 The assent of the ward does not free the guardian from his 
 responsibility. 
 
 Co-opera- 
 tion of the 
 Ward. 
 
 410. 
 
 If the ward is capable of judgment, he can incur obligations 
 or renounce rights, so soon as the guardian has given his 
 consent, expressly or tacitly at first, or afterwards approves 
 the matter. The other party is free if the consent is not given 
 within a reasonable time, which he himself has fixed or caused 
 to be judicially fixed. 
 
 411. 
 
 If the approval of the guardian is not given, either party 
 can demand back what has been given; nevertheless, the 
 ward is responsible only so far as the contract has enured to 
 his benefit, or as he at the time of rescission has been enriched 
 or has wilfully disposed of the property gained. 
 
 4. Independ- 
 ent Action. 
 
 a. Consent of 
 Guardian. 
 
 b. Consent not 
 Given. 
 
94 
 
 FAMILY LAW 
 
 [PART II, 
 
 Profession 
 or Trade. 
 
 If the ward has misled the other party in the erroneous 
 assumption of his commercial capacity, he is responsible for 
 all damage caused thereby. 
 
 412. 
 
 The ward whom the Guardians' Court has allowed the 
 independent pursuit of a profession or trade, expressly or 
 tacitly, can do everything pertaining to the regular pursuit 
 thereof, and is liable with his whole property therein. 
 
 V. Sch. C. § 27. 
 
 413. 
 
 C. Property The guardian must carefully manage the ward's property.' 
 
 Manage- j^g must give account of his administration and to report 
 I. Duty to this to the Guardians' Court at the times prescribed by it, 
 Manage and j^^^ j^^^ j^gg than every two years for its approval. 
 
 Give 
 
 Account. 
 
 If the ward is capable of judgment and at least sixteen 
 years of age, he shall, so far as practicable, be consulted in the 
 accounting.^ 
 
 W. Sch. C. §463. 
 
 'V. Sch. C. § 464. B. G. B. 1839 to 1843, 1857, 1897. 
 
 II. Free 
 
 Property. 
 
 414. 
 
 Whatever is granted a ward for his free use, or whatever 
 he acquires by his own labor with consent of the guardian, 
 he can freely dispose of. 
 
 Sch. C. §447. B. G. B. 1649 to 1654. 
 
 D. Length of 
 Term. 
 
 E. Compen- 
 sation of 
 Guardian. 
 
 415. 
 
 The guardianship as a rule lasts for two years. After the 
 lapse of this term, the guardian can be continued for two years 
 longer by a simple conformation in office. After lapse of 
 four years, he can decline further responsibility as guardian. 
 
 This differs from the German law and from the law of most countries. 
 For the general rule of termination of guardianship, v. Sch. C. § 465. 
 B. G. B. 1882, 1884. 
 
 416. 
 
 The guardian has a claim for a compensation, to be paid out 
 of the ward's property, and to be determined by the Guar- 
 
TITLE XI.] DUTIES OF THE GUARDIAN 95 
 
 dians' Court for each period of accounting, according to the 
 labor involved in the management and the income of the 
 property. 
 
 This section agrees with the general English and American laws as to 
 renumeration. The German la.w is contra, v. Sch. C. § 460, par. 4. B. G. B. 
 
 SECOND SECTION — THE OFFICE OF CURATOR. 
 
 417. 
 
 A curatorship has no influence over the commercial capacity A. Position of 
 of the person under its charge, saving the provisions as to ""^^ °'^' 
 
 the co-operation of the advisor (Beirat)} 
 
 The term of office and compensation are fixed by the Guar- 
 dians' Court .^ 
 
 ly. Sch. C. § 462. B. G. B. 1901, 1915. 
 
 ^ As to compensation, v. note to § 416. 
 
 418. 
 
 If the execution of a single matter of business is entrusted B. Meaning of 
 to the curator, he must carefully follow the instructions of ^j^jp 
 
 the Guardians' Court. I- For a 
 
 Special 
 V. Sch. C. § 460, pars. 3, 4. Purpose. 
 
 419. 
 
 If the administration or oversight of a property is entrusted ii. For Man- 
 to the curator, he must confine himself to the management Iv^^^Ji^ 
 thereof and the care for its preservation. 
 
 He can take measures which exceed these purposes only 
 with special authority granted him by the principal or, if he 
 is not competent thereto, by the Guardians' Court. 
 
 V. Sch. C. § 460, par. 3. B. G. B. 1915. 
 
 THIRD SECTION — CO-OPERATION OF GUARDIANSHIP 
 OFFICIALS. 
 
 420. 
 
 The ward, who is capable of judgment as well as everyone ^ ^om- 
 interested therein, can lay before the Guardians' Court com- plaints, 
 plaints against the conduct of the guardian. 
 
 Property. 
 
96 
 
 FAMILY LAW 
 
 [PART II. 
 
 An appeal to the supervisory council lies against decrees 
 of the Guardians' Court within ten days after notice thereof. 
 
 B. Consent. 
 
 I. Of Guard- 
 ians' 
 Court. 
 
 421. 
 
 Consent of the Guardians' Court is requisite in the follow- 
 ing cases: — (1) Purchase, sale, mortgaging and otherwise bur- 
 dening real estate. (2) Purchase, sale and pledging other kinds 
 of property, so soon as these transactions exceed the usual 
 course of administration or management. (3) Buildings beyond 
 the requirements of administration. (4) Making and accept- 
 ing of loans. (5) Incurrance of commercial obligations. (6) 
 Leases for a year or longer, rentals of apartments for at least 
 three years. (7) Authorization of the ward to independently 
 pursue a profession or trade. (8) Carrying on litigation, conclu- 
 sion of a settlement, a contract of arbitration or of composition 
 subject to the provisional dispositions of the guardian in 
 urgent cases. (9) Marital contracts and contracts for parti- 
 tion of estates. (10) Declaration of insolvency. (11) Insurance 
 contracts upon the life of the ward. (12) Contracts for the trade 
 education of the ward. (13) Placing the ward in institution 
 for his education, care or nursing. (14)' Change of residence 
 of the ward. 
 V. Sch. C. II 462, 463 and citations. 
 
 422. 
 
 II. Of the The consent of the Supervising Orphan Council is, after 
 
 Supervising action by the Guardians' Court has preceded it, required in the 
 Orphan . ,, . . /,n a i . <• i , .< , 
 
 Council. followmg mstances: — (1) Adoption of a ward as a child, or 
 
 adoption of child by a ward. (2) Acquisition of citizenship or 
 renunciation of such. (3) Assumption or liquidation of a busi- 
 ness, entering an association with personal responsibility or 
 any considerable investment of capital. (4) Settlements, life 
 annuities or contracts for a prebend. (5) Acceptance or refusal 
 of an inheritance and consummation of a contract of inherit- 
 ance. (6) Declaration of majority. (7) Contracts between 
 ward and guardian. 
 This supervision is not mentioned in the German law. 
 
TITLE XI.] 
 
 DUTIES OF THE GUARDIAN 
 
 97 
 
 423. 
 
 The Guardians' Court shall audit the periodic reports 
 and accounts of the guardian, and shall require, wherever it 
 appears necessary, their completion and correction. It grants 
 or refuses the approval of the reports and accounts, and 
 wherever necessary adopts measures that are required for 
 the care of the interests of the ward. The cantons can 
 confer upon the supervising orphan council a right of audit 
 and approval. 
 
 V. Sch. C. 464, par. 3. Id. 467, par. 2 and citations. 
 
 C. Audit of 
 Reports 
 and 
 Accounts. 
 
 424. 
 
 If any matter is determined upon for the ward, without D. Meaning of 
 the legally required consent of the Guardians' Court, it has Consent. 
 for him only the effect of matter determined upon by himself 
 without the consent of his representative. 
 
 425. 
 
 The cantons shall regulate in detail the co-operation of 
 the officials in the way of an ordinance. They shall, for 
 example, make regulations for the investment and preserva- 
 tion of the ward's property, as well as the manner of keeping 
 and rendering accounts and making reports. These provi- 
 sions require the approval of the Federal Council to be valid. 
 
 Cantonal 
 Ordinances. 
 
 FOURTH SECTION — THE RESPONSIBILITY OF THE GUAR- 
 DIANSHIP OFFICIALS. 
 
 426. 
 
 The guardian and the members of the Guardians' Court A. In General, 
 shall in the exercise of their office observe the rules of a care- ' ^^^"^ ^^^ 
 ful administration, and are responsible for any damage pur- Officials. 
 posely or negligently caused by them. 
 
 V. Sch. C. § 460, par. 4. B. G. B. 1833, 1834. 
 
 427. 
 If the damage is not made good by the guardian or the 
 members of the guardianship officials, the canton shall be re- 
 
 II. Com- 
 munity, 
 District and 
 Canton. 
 
98 
 
 FAMILY LAW 
 
 [PART II. 
 
 sponsible for the loss. It is reserved to the cantons, however, 
 to hold responsible the interested communities or districts, 
 after the guardian and the Guardians' Court. 
 
 428. 
 B. Prefatory. If the Guardian's Court becomes responsible by reason of 
 the^'^Mem^ *^^ administration of a guardianship, every member is respon- 
 bers of a 
 
 Court. 
 
 sible so far as it cannot be shown that he is in no wise at 
 fault. 
 
 Each one of the responsible members must bear the damages 
 for his part. 
 
 V. Sch. C. § 441, 446, 451. B. G. B. 1837, 1848, 1897. 
 
 II. 
 
 Relation of 
 the Instru- 
 mentalities 
 to one 
 Another. 
 
 429. 
 
 If the guardian and members of the Guardians' Court are 
 alike responsible, the latter respond only for that which can- 
 not be recovered from the guardian. If the members of the 
 supervising orphan council and those of the Guardians' Court 
 are alike responsible, the former respond only for that which 
 cannot be recovered from the latter. For wilfulness all per- 
 sons liable respond directly and jointly. 
 
 V. Sch. C. § 290. B. G. B. 839. 
 
 C. Assertion 
 Thereof. 
 
 430. 
 
 The judge passes upon claims for damages against the 
 guardian and the members of the guardianship officials, as well 
 as against communities or districts and the canton. The 
 claim for damages cannot be made dependent upon the pre- 
 liminary investigation by any administrative official. 
 
TITLE XII.] 
 
 END OF THE GUARDIANSHIP 
 
 99 
 
 TWELFTH TITLE — THE END OF THE 
 GUARDIANSHIP. 
 
 FIRST SECTION — THE END OF THE WARDSHIP. 
 
 431. 
 
 The guardianship over a minor ends at the time when his A. Minors. 
 majority arrives. 
 
 Upon the declaration of majority the proper official fixes 
 at the same time the point of time when the age of majority 
 is reached and directs its publication in an official paper. 
 
 V. Sch. C. § 465, par. 2. B. G. B. 1882, 1884. 
 
 432. 
 
 The guardianship over a person condemned to a loss of B. Convicts, 
 his freedom ends with the ending of his imprisonment. The 
 temporary or conditional dismissal does not terminate the 
 guardianship. 
 
 433. 
 
 The guardianship over other persons ends with its termina- 
 tion by action of tlje proper court. The court is bound to 
 make this so soon as the reason for a guardianship no longer 
 exists. The ward, as well as everyone interested therein, can 
 claim the ending of the guardianship. 
 
 V. Sch. C. § 465, par. 2. B. G. B. 1897. 
 
 C. Other 
 Wards. 
 
 I. Prefatory of 
 the Ter- 
 mination. 
 
 434. 
 
 The ordinance of procedure is in the power of the cantons, n. Procedure. 
 The appeal to the Federal Court is reserved. 1- I" General. 
 
 435. 
 
 If the deprivation of capacity has been published, its ter- 2. Publication, 
 mination must likewise be published. The regaining of the 
 commercial capacity is not dependent upon the publication. 
 
100 FAMILY LAW [PART II, 
 
 436. 
 
 3. In Case of The termination of a guardianship, appointed by reason 
 Infirmity. °^ mental infirmity or weakness, can be effected only after 
 
 the opinion of experts has been secured and it is found that 
 the reason for the wardship no longer exists. 
 
 This seems rather to regulate the law of evidence of restored capacity 
 than the civil right. 
 
 437. 
 
 4. In Case of The termination of a guardianship, appointed by reason of 
 Drunken-^' prodigality, drunkenness, dissolute life or of the way and 
 ness, Disso- method of management of property, can be claimed by the 
 Misman- ward only when he for at least one year has given no cause 
 agement. for complaint in respect to the reason for such wardship. 
 
 438. 
 
 5. Upon Own The termination of a guardianship, appointed upon petition 
 
 e 1 ion. ^£ ^j^^ ward, can follow only when the reason for the request 
 has ceased. 
 
 439. 
 
 D. In Case of a Representation through a curator terminates with the ceas- 
 shlp^*"*^' ^"S °^ t'^^ occasion for its appointment. The administration 
 I. In General, of the property ends as soon as the reason for its creation 
 ceases and the curator is discharged. The ofifice of the curator 
 terminates with its dissolution by the proper court, in accord- 
 ance with the provisions for dissolving a guardianship. 
 
 440. 
 
 II. Publication. The ending of the curator's appointment is to be published 
 in an official paper, if its creation was advertised or the 
 Guardians' Court otherwise considers it advisable. 
 
 SECOND SECTION — THE END OF THE GUARDIAN'S OFFICE. 
 
 441. 
 
 A. Commer- The office of guardian ends at that time when he becomes 
 
 cracky commercially incapacitated or dies. 
 Death. ' v. Sch C. § 466. B. G. B. 1885. 
 

 TITLE XII.] 
 
 END OF THE GUARDIANSHIP 
 
 442. 
 
 The guardian's office ends with the lapse of the time for 
 which it is ordered, provided he be not reinstated. 
 
 443. 
 
 If a reason for exclusion from office arises during its exist- 
 ence, the guardian shall resign. 
 
 If a ground for refusal of it arises, the guardian as a rule 
 cannot ask a discharge before the lapse of his official term. 
 
 B. Discharge, 
 Non- 
 
 Reappoint- 
 ment. 
 
 I. Running of 
 the Time of 
 Office. 
 
 II. Entry of 
 Grounds for 
 Exclusion 
 or Refusal. 
 
 444. 
 
 The guardian must continue to do the necessary business III. Duty to 
 of the guardianship until his successor has qualified. ^*^* Longer. 
 
 V. Sch. C. § 467, par. 3. B. G. B. 1897. 
 
 445. 
 
 If the guardian exhibits great negligence, or is guilty of a 
 misuse of his official powers, or undertakes a matter which 
 causes him to be unworthy of the position of confidence, or 
 if he becomes insolvent, he shall be dismissed from his office 
 by the Guardians' Court. If he does not fulfill his guardian's 
 duties, the Guardians' Court can dismiss him from office, even 
 if no guilt attaches to him, so soon as the interests of the ward 
 are jeopardized. 
 
 V. Sch. C. § 466, par. 1. B. G. B. 1886 to 1889. 
 
 C. Dismissal 
 from Office. 
 
 I. Grounds 
 Therefor. 
 
 446. 
 
 The dismissal from office can be requested not only by the II. Procedure. 
 ward, who is capable of judgment, but also by anyone inter- ^- ^pon Peti- 
 ested therein. If any reason for dismissal otherwise becomes Official Act. 
 known to the Guardians' Court, it shall of its own motion 
 proceed to a dismissal. 
 
 447. 
 
 Before a dismissal the Guardians' Court shall investigate 2. Investiga- 
 the circumstances of the case and hear the guardian. Punish-'* 
 
 For slight irregularities the dismissal can only be threatened ment. 
 and a fine up to one hundred francs be imposed upon the 
 guardian. 
 
102 
 
 FAMILY LAW 
 
 [PART II, 
 
 3. Preliminary 
 Measures. 
 
 448. 
 
 If delay is dangerous, the Guardians' Court can pendente 
 lite suspend the guardian from his ofiSce, and in case of 
 necessity cause his arrest and a seizure of his property. 
 
 4. Further 
 Measures. 
 
 449. 
 
 In addition to dismissal from office and the imposing of 
 punishment, the Guardians' Court shall adopt the measures 
 necessary for the security of the ward. 
 
 450. 
 
 5. Appeals. Appeal lies from the decrees of the Guardians' Court to 
 
 the supervising orphan council. 
 
 THIRD SECTION— THE CONSEQUENCES OF ITS TERMINATION. 
 
 A. Final 
 Account 
 and 
 
 Transfer 
 of Prop- 
 erty. 
 
 451. 
 
 If the office of guardian comes to an end, the guardian 
 must make a final report to the Guardians' Court and render 
 a final account, as well as hold himself ready to transfer the 
 property to the wards, their heirs, or to the successors in 
 office. 
 
 V. Sch. C. § 467, pars. 1, 2. B. G. B. 1890 to 1895. 
 
 452. 
 
 B. Audit of The final report and account shall be audited and approved 
 
 Report" and ^^ ^^^ guardianship officials in like manner as the periodic 
 Account. reports and accounts. 
 V. last note. 
 
 Discharge 
 of Guard- 
 ian. 
 
 453. 
 
 If the final report and account be approved, and the ward's 
 property be placed at the disposition of the ward or his 
 heirs or the successor in office, the Guardians' Court shall 
 order the discharge of the guardian. 
 
 The final account is to be exhibited to the wards, his heirs, 
 or the new guardian, with a reference to regulations as to the 
 responsibility. At the same time notice is to be given them 
 
TITLE XII.l END OF THE GUARDIANSHIP 103 
 
 of the discharge of the guardian, or the refusal of approval of 
 the final account. 
 
 In the German law the guardian is discharged by the courts' acceptance 
 of the surrender of his certificate (Bestallung) . Sch C. § 467, par. 3. 
 
 454. 
 
 A claim for damages against the guardian, and the directly d. Claim for 
 responsible members of the guardianship officials, lapses with Damages, 
 the running of one year after the rendering of a final account. ' Limitation. 
 
 As against the members of guardianship officials not directly 
 responsible, as well as against communities or districts, and 
 the canton, a claim falls with the lapse of one year from the 
 time when it could have been brought. 
 
 The prescription of claims against the members of guard- 
 ianship officials, against the communities or districts or the 
 canton, begins in no event before the termination of the 
 guardianship. 
 
 455. 
 
 If an error in computation exists, or some ground for a II. Extraordi-_ 
 damage claim is first discovered after the beginning of the tatwn. ""'" 
 ordinary period of prescription, the right of action for damages 
 falls with the lapse of one year after the error or ground 
 for a claim has been discovered, but in any event with the 
 lapse of ten years from the beginning of the ordinary period 
 of limitation. 
 
 If the right of action for damages arises out of a criminal 
 act, it can be brought even after the lapse of these periods, 
 so long as criminal process has not been barred by statute. 
 
 456. 
 
 In case of attachment or bankruptcy of the guardian or E. Preference 
 the members of the guardianship officials, the claim for com- compensi°' 
 pensation by the ward has a preference conformably to the tion. 
 law of executions or bankruptcy. 
 
104 
 
 THE LAW OF INHERITANCE 
 
 [PART III 
 
 THIRD PART. 
 
 THE LAW OF INHERITANCE. 
 
 FIRST DIVISION — HEIRS. 
 
 THIRTEENTH TITLE — LEGAL HEIRS. 
 
 A. Heirs of the 
 Blood. 
 
 I. Descend- 
 ants. 
 
 II. Parental 
 Stem. 
 
 457. 
 
 The next heirs of a decedent are his descendants. Children 
 inherit in equal shares. Descendants take the place of pre- 
 deceased children, and in all degrees per stirpes (nach Stammen) . 
 
 As to the general principles of the German law of inheritance, v. Sch. C. 
 §1468 to 471. As to the statutory heirs, v. Sch C. §§ 475, 476. B. G. B. 
 1924 to 1933, 1936. 
 
 458. 
 
 If the decedent leaves no issue, the inheritance passes to 
 the parents. 
 
 Father and mother inherit equally. Descendants take 
 the place of father or mother, who have predeceased, and in 
 all degrees per stirpes. If descendants fail on one side, the 
 whole inheritance passes to the heirs of the other side. 
 
 V. note to §457. 
 
 III. Grand- 
 parental 
 Stem. 
 
 459. 
 
 If the decedent leaves neither descendants nor heirs of 
 the parental stem, the inheritance passes to the grandparents. 
 If the grandparents on the paternal side and those on the 
 maternal side survive the decedent, they inherit on both sides 
 in equal parts. 
 
 Their descendants take the place of a predeceased grand- 
 father or grandmother, and per stirpes in all degrees. 
 
TITLE XIII.] 
 
 LEGAL HEIRS 
 
 105 
 
 If the grandfather or grandmother on the paternal side or 
 maternal is predeceased, and descendants of the predeceased 
 one fail, the entire half passes to the nearest heirs of that 
 side. If heirs fail on the paternal or maternal side, the 
 whole inheritance passes to the heirs of the other side. 
 
 V. note to §457. 
 
 460. 
 
 The right of inheritance of blood relatives ceases with IV. Great- 
 grandparents. Greatgrandparents have, however, during life, parents 
 the right to use the share which would have come to their 
 offspring if they had survived the decedent. 
 
 In place of predeceased great-grandparents the right of 
 usufruct for life goes to the brothers and sisters of the 
 decedents' grandparents. 
 
 The German law is otherwise. 
 
 461. 
 
 Blood relatives outside the bonds of matrimony stand in V. 
 the maternal relationship on a like footing of inheritance with 
 the legitimates. 
 
 In the paternal relationship a right of inheritance exists 
 only when the illegitimate child has received the status of the 
 father by recognition or judicial action. If an illegitimate 
 heir or his issue has to share with legitimate descendants of 
 his father, then such illegitimate or his issue receives only half 
 so much as falls to a legitimate child or his issue. 
 V. Sch. C. §§ 424, 426. B. G. B. 1589, 1590. 
 
 Illegitimate 
 Relatives. 
 
 462. 
 
 The surviving spouse receives, if the decedent leaves issue, 
 according to his choice, the half of the inheritance for his usu- 
 fruct or the fourth absolutely. If there are surviving heirs of 
 the parental stem, he receives a fourth absolutely and three- 
 fourths for his usufruct. If there are surviving heirs of the 
 grand parental stem, the half absolutely and the other half for 
 usufruct, and when no heirs of the grandparental stem exist, 
 the whole absolutely. 
 
 V. Sch. C. § 477. B. G. B. 1931, 1932. 
 
 B. Surviving 
 
 Spouse. 
 I. Claim of 
 
 Inheritance. 
 
106 
 
 THE LAW OF INHERITANCE 
 
 [PART III. 
 
 II. Substitu- 
 tion and 
 Security. 
 
 463. 
 
 The surviving spouse can, when the usufruct falls to him, 
 demand in its place at any time a yearly income of corres- 
 ponding amount. If such a substitution has been made, the 
 spouse can demand security from his co-heirs for any impair- 
 ment of his rights. 
 
 464. 
 
 III. Security for The surviving spouse must, in the event of remarriage, as 
 heirs. ^^^' '^^ impairment of the estate, furnish at their request 
 
 security for his co-heirs. 
 
 Sch. C. § 446, par. 3, 464, par. 4. B. G. B. 1640, 1669, 1845. 
 
 C. Adopted 
 Children. 
 
 465. 
 
 The adopted child and its issue have a like right of inherit- 
 ance from its adopting parent, as legitimate issue. The adopt- 
 ing parent and his blood relatives have no right of inheritance 
 from the adopted child. 
 
 V. Sch. C. § 428, par. 3. B. G. B. 1757, 1758. 
 
 D. Common- 
 wealth. 
 
 466. 
 
 If the decedent leaves no heirs at law, then the inheritance, 
 subject to the rights of usufruct by great-grandparents and 
 the brothers and sisters of grandparents, goes to the canton 
 in which the decedent had his last residence, or to the com- 
 munity which is appointed by the law of this canton. 
 
 V. Sch. C. § 475. B. G. B. 1936. 
 
TITLE XIV.] 
 
 DISPOSITIONS MORTIS CAUSA 
 
 107 
 
 FOURTEENTH TITLE — DISPOSITIONS MORTIS 
 
 CAUSA. 
 
 FIRST SECTION — THE DISPOSING CAPACITY. 
 
 467. 
 
 Whoever is capable of judgment, and is eighteen years ^- Last 
 old, is empowered to dispose of his property by last will, with 
 due observance of the legal restrictions and forms. 
 
 V. Sch. C. § 486. B. G. B. 2229, 2238, 2247. 
 
 Will. 
 
 468. 
 
 The decedent must be of age to make a contract of B. Contract of 
 inheritance. Inheritance. 
 
 V. Sch. C. § 505. B. G. B. 2275. As to the Contract of Inheritance 
 (Erbvertrag) of the German and Swiss law v. Sch. C. §§ 504 to 509. 
 
 469. 
 
 Dispositions made by the decedent under the influence of 
 mistake, fraud, threats or duress are invalid. They attain 
 validity, however, if the decedent does not revoke them with- 
 in the period of one year after he has received knowledge of 
 the error or fraud, or the influence of duress or threats has 
 ceased. If a disposition contains an evident mistake in respect 
 to persons or things, and the true will of the decedent can be 
 with certainty determined, then the disposition is to be cor- 
 rected in this respect. 
 
 V. Sch. C. § 484, par. 3. B. G. B. 2078 to 2080 2082. 
 
 C. Imperfect 
 Will. 
 
 SECOND SECTION — FREEDOM OF DISPOSITION. 
 
 470. 
 
 Whoever leaves issue, parents or brothers and sisters or a 
 spouse, as his next heirs, can make a disposition mortis causa of 
 his property saving the (compulsory) statutory share (Pflicht- 
 teil). 
 
 A. Disposable 
 
 Portion. 
 I. Extent of 
 the Dis- 
 posing 
 Capacity. 
 
108 
 
 THE LAW OF INHERITANCE 
 
 [PART III, 
 
 If he leaves none of the mentioned heirs, he can dispose of 
 his whole property. 
 
 V. Sch. C. §§ 510, 511. B. G. B. 2303, 2317. 
 
 As to the Legitim — the compulsory portion of the German and Swiss 
 laws, the reserve of the French law, recognized in nearly all the present 
 civilized legal systems, but unknown to the English law and those of the 
 United States, except Louisiana — v. Sch. C. §§ 510 to 518. 
 
 II. Statutory 
 Share. 
 
 471. 
 
 The statutory share consists of, (1) for a descendant, three- 
 fourths of the legal claim of inheritance ; (2) for each of the par- 
 ents the half ; (3) for each one of brothers and sisters a fourth ; 
 (4) for a surviving spouse the whole claim of property if legal 
 heirs survive in addition to him, and the half if he is the sole 
 legal heir. 
 
 V. Sch. C. § 511. B. G. B. 2303. 
 
 III. Cantonal 
 Rights 
 Reserved. 
 
 IV. Exception 
 in Favor of 
 the Spouse. 
 
 472. 
 
 Cantons are authorized, as far as inheritances of their citizens,- 
 who had their last residence in their borders, are concerned, 
 either to abolish the claim of brothers and sisters to the 
 statutory share or to extend it to the issue of the brothers and 
 sisters. 
 
 This is probably a regulation to preserve ancient local customs in cer- 
 tain cantons. 
 
 473. 
 
 The decedent can give the surviving spouse by disposition 
 mortis causa the usufruct of the whole of the share of the in- 
 heritance, coming to the common descendants, as opposed to 
 them. This usufruct takes the place of the legal right of 
 inheritance in the spouse, with common issue surviving. In 
 case of remarriage the surviving spouse, however, loses the half 
 of this usufruct. 
 
 The testamentary dispositions authorized by §§ 472, 473, are not per- 
 mitted in the German law. 
 
 474. 
 
 V. Computa- 
 tion of the 
 Disposable The disposable share is determined by the condition of the 
 
 1. Deduction property at the time of the death of the decedent. In the 
 of Debts. 
 
TITLE XIV.] 
 
 DISPOSITIONS MORTIS CAUSA 
 
 109 
 
 computation, the debts of the decedent, the expenses for the 
 burial, for the sealing and taking of an inventory, as well as 
 the claims of the household members for support during a 
 month, are to be deducted from the inheritance. 
 
 For the method of computing the Legitim of the German Law, v. 
 Sch. C. I 513. B. G. B. 2310 to 2314. As to advancements, Sch. C. § 514. 
 B. G. B. 2315, 2316; and as to gifts of decedent to persons not compulsory 
 heirs in derogation of their rights, v. Sch. C. § 515. B. G. B. 2325 to 2330. 
 
 475. 
 
 Donations inter vivos are to be added to the estate in so 
 far as they come under a complaint for a reduction. 
 V. last note. 
 
 2. Donations 
 Inter Vivos. 
 
 476. 
 
 If an insurance claim based upon the death of the testator 
 is by a donation inter vivos or by a disposition mortis causa, 
 made in favor of a third person or during the lifetime of the 
 testator, has been gratuitously transferred to a third party, 
 then the surrender value of the insurance claim at the time 
 of the testator's death is to be added to his estate. 
 V. last note. 
 
 3. Insurance 
 Claims. 
 
 son. 
 I. Reasons. 
 
 477. 
 
 The decedent is empowered, by a disposition mortis causa B. Disinheri- 
 to deprive an heir of his statutory share, — (l) when the heir 
 has done some grievous wrong to the decedent or a person 
 closely connected to him; (2) when he has seriously violated 
 the family duties incumbent upon him, as against the decedent 
 or one of his kinsmen. 
 
 As to the German law of '"unworthiness to inherit," v. Sch. C. §480. 
 B. G. B. 2339 to 2344. As to the right of a testator to disinherit or deprive 
 the heir of the Legitim, v. Sch. C. § 516. B. G. B. 2333 to 2337. As 
 to the legal position of an unworthy legatee, v. Sch. C. § 485, par. 2, C. 
 and citations. Cf. Art. 540 Swiss Code. 
 
 478. 
 The disinherited one can neither share in the estate nor lay II. Efifect. 
 claim to a reduction. 
 
no 
 
 THE LAW OF INHERITANCE 
 
 [PART III, 
 
 III. Burden of 
 Proof. 
 
 IV. Disinheri- 
 son of an 
 Insolvent 
 One. 
 
 The share of the disinherited one falls, when not otherwise 
 disposed of by the decedent, to the legal heirs of the decedent, 
 as if the disinherited one had not survived the succession. 
 
 The descendants of the disinherited one keep their right to 
 a statutory share as if the disinherited one had not survived 
 the succession. 
 
 V. last note, also B. G. B. 2344. 
 
 479. 
 
 A disinherison is valid only when the decedent has assigned 
 his reason therefor in his disposition. If the disinherited one 
 contests the disinherison on account of the incorrectness of 
 this assignment, then the heir or legatee who gains an advan- 
 tage by the disinherison must prove its correctness. If this 
 proof cannot be produced, nor is a reason for disinherison 
 assigned, then the disposition is to be sustained in so far as 
 it is possible without injury to his claim to a statutory share 
 if it be that the decedent has made the disposition in evident 
 error as to the ground for disinherison. 
 V. note to 477. 
 
 480. 
 
 If certificates of losses are outstanding against a descendant 
 of the decedent, then the decedent can take from him the 
 half of his statutory share, if he gives it to his then living or 
 later born children. This disinherison falls, moreover, upon 
 request of the disinherited, if certificates of loss no longer 
 exist at the time of the succession, or if their amount does 
 not exceed one-fourth of the share inherited. 
 V. Sch. C. § 547. B. G. B. 2338. 
 
 THIRD SECTION — METHODS OF DISPOSITION. 
 
 481. 
 
 A. Generally. ^^^ decedent can dispose of his property, wholly or in part, 
 within the restrictions upon the freedom of disposition, by 
 last will or by contract for inheritance. The part of which 
 he has not disposed passes to the legal heirs. 
 V. Sch. C. § 480. B. G. B. 1937, 1941. 
 
TITLE XIV.] 
 
 DISPOSITIONS MORTIS CAUSA 
 
 HI 
 
 482. 
 
 The decedent can impose burdens or conditions upon his B. Burdens 
 dispositions, whose fulfilment can be demanded by anyone tions. °" 
 interested therein, as soon as the disposition becomes effective.^ 
 
 Immoral or illegal burdens or conditions make the dispo- 
 sition invalid. 
 
 If they are simply burdensome for other persons, or if they 
 are unreasonable, they will be considered as not made.'' 
 
 'V. Sch. C. § 495. B. G. B. 2147, 2174, 2176, 2177. 
 
 "B. G. B. 138, 2171. 
 
 483. 
 
 The decedent can, for th= whole inheritance, or for a por- 
 tion, appoint one or more heirs. Every disposition by which 
 an appointee shall receive the inheritance as a whole or in part 
 shall be considered as an appointment of heirs. 
 
 V. Sch. C. §§ 490, 491. B. G. B. 2066, 2067, 2087 to 2093. 
 
 Appoint- 
 ment of 
 Heirs. 
 
 484. 
 
 The decedent can give a property preference as a bequest to 
 any specified person without appointing him as an heir. 
 
 He can devise or bequeath to him any single piece of the 
 inheritance or the usufruct of the inheritance in whole or 
 in part, or can charge the heirs or legatees to give him returns 
 out of the value of the inheritance or to free him from obliga- 
 tions. If the decedent bequeaths a certain article, the 
 aggrieved party will not be obligated, if this article is not 
 found in the estate and no other direction of the decedent ap- 
 pears in the disposition. 
 
 As to legacies, v. Sch. C. §§ 495 to 500, and citations. Testamentary 
 burdens, v. Sch. C. § 501. B. G. B. 1940, 2192 to 2196. 
 
 D. 
 I. 
 
 Bequest. 
 Meaning. 
 
 485. 
 
 The article is to be delivered to the appointee in the condi- II. 
 tion and state with loss or increase, free or encumbered, as it 
 may be at the time of the casting of the inheritance. 
 
 For expenditures, which the one charged may have made 
 after the casting of the inheritance upon the aiticle, as well 
 
 Obligation 
 of the One 
 Charged. 
 
112 
 
 THE LAW OF INHERITANCE 
 
 [PART III, 
 
 III. Relation 
 to the 
 Inheritance. 
 
 as for deteriorations since then suffered, he stands in the rights 
 and duties of an agent without orders. 
 
 V. Sch. C. § 498, par. 3. B. G. B. 2164, 2165. As to profits, etc., v. B. 
 G. B. 2184; as to claims for expenditures, v. B. G. B. 2185. 
 
 486. 
 
 If the bequests exceed the value of the estate or of the 
 legacy to the person charged or the disposable part, then 
 a proportional abatement can be demanded. If those charged 
 do not survive the decedent or are unworthy to inherit, or 
 they announce their refusal, the bequests remain, however, 
 in force; If the decedent has made a bequest in favor of one 
 of the legal or appointed heirs, then he can demand it even 
 if he 1 ejects the inheritance. 
 V. note to § 484. 
 
 487. 
 
 E- Disposition The decedent can in his disposition indicate one or more 
 Substitu- persons to whom the inheritance or bequest shall go in the 
 tion. event of the predecease or refusal of the heir or legatee. 
 
 V. Sch. C. § 493. B. G. B. 2096, 2097, 2102, 2098. 
 
 F. Appoint- 
 ment of a 
 Rever- 
 sionary 
 Heir. 
 
 I. Naming 
 the Rever- 
 sionary 
 Heir. 
 
 H. Time for 
 the 
 Delivery. 
 
 488. 
 
 The decedent may, in his disposition, bind the appointed 
 heir as first taker, to deliver the inheritance to another as 
 reversionary heir. The reversionary heir cannot be so charged . 
 
 The same provisions obtain for the bequest. 
 
 As to the German reversionary heirship { Nacherben) taking the place 
 of successive legal and equitable interests in English and American wills 
 and settlements, v. Sch. C. § 494 and citations. As to reversionary legacies, 
 Sch. C. § 500, par. 3; B. G. B. 2191. 
 
 489. 
 
 The time for the delivery over shall be considered as of the 
 death of the first taker when it is not otherwise provided. 
 If another point of time is named, and this has not come at 
 the time of the death of the first taker, then the inheritance 
 passes to the heirs of such first taker, upon security being 
 given. If the time for any reason cannot come, then the 
 inheritance passes unreservedly to the heirs of the first taker, 
 
 V. note to i 488. 
 
TITLE XIV.] 
 
 DISPOSITIONS MORTIS CAUSA 
 
 113 
 
 490. 
 
 In all cases of reversionary heirship the proper oiificial shall III. Means of 
 direct the taking of an inventory. The delivery of the inherit- Security. 
 ance to the first taker follows, if the decedent has not expressly 
 relieved him of this duty, only upon security being given, 
 which in the case of real estate can be done by entry of the 
 duty to transfer in the Land Register. 
 
 If the first taker cannot furnish this security, or if he imperils 
 the expectancy of the reversionary heir, then an administration 
 of the inheritance shall be appointed. 
 
 491. 
 
 The first taker acquires the inheritance as another appointed IV. Legal 
 Up,V Status. 
 
 iV .. ... 1- Of the First 
 
 He becomes the owner of the inheritance subject to the Taker. 
 
 obligation to transfer. 
 
 V. note to § 488. 
 
 2. Of the 
 Reversion- 
 ary Heir. 
 
 492. 
 
 The reversionary heir acquires the inheritance of the deced- 
 ent, if he survives the point of time fixed for the transfer. 
 If he does not survive this point of time, the inheritance 
 continues in the first taker, if the decedent has not otherwise 
 directed. 
 
 If the first taker does not survive the decedent, or if he is 
 unworthy to inherit or renounces the inheritance, then it 
 passes to the reversionary heir. 
 
 V. note to § 488. 
 
 493. 
 
 The decedent may devote the disposable share of his estate, G. Endow- 
 wholly or in part, for any purpose as an endowment. ments. 
 
 The endowment, however, is good only when it complies 
 with the legal requirements. 
 
 494. 
 
 The decedent can obligate himself to another by a con- 
 tract of inheritance to leave him or a third person his estate 
 or a legacy. Such a contract does not deprive him of the 
 free disposition of his property. Dispositions mortis causa 
 
 H 
 
 Contracts 
 of Inherit- 
 ance. 
 I. Contracts 
 for Appoint- 
 ment of 
 Heirs or for 
 Bequests. 
 
114 
 
 THE LAW OF INHERITANCE 
 
 [PART III, 
 
 or gifts which are not compatible with his obligations under 
 such a contract, are open to contest. 
 As to contractual inheritance, v. Sch. C. §§ 504 to 509 and citations. 
 
 495. 
 
 II. Renuncia- The decedent can make a contract with an heir for his 
 IiTheritanc" renunciation or anticipation of an inheritance. The person 
 1. Meaning, renouncing is not considered as an heir upon the passing of 
 the inheritance. 
 
 Where the contract does not otherwise provide, the renun- 
 ciation holds good also as against issue of the renouncer. 
 
 V. last note. As to renunciation of right to inherit (Erbversicht) , v. Sch. 
 C. § 479. B. G. B. 2346 to 2351. 
 
 2. Free 
 
 Inheritance. 
 
 3. Rights of 
 Creditors 
 of Heirs. 
 
 496. 
 
 If in the contract of inheritance certain heirs are appointed 
 in place of the renouncing one, the renunciation falls when- 
 ever these do not acquire the inheritance for any reason. 
 
 If the renunciation is made iii favor of co-heirs, it will be 
 presumed that it was made only in favor of the heirs of the 
 stem which springs from the next common ancestors and does 
 not redound to remoter heirs. 
 V. last note. 
 
 497. 
 
 If the decedent at the time of the passing of the inheritance 
 is insolvent, and his creditors are not satisfied by the heirs, 
 then the person renouncing and his heirs can be called to 
 account in so far as they have received counter indemnity 
 from his estate for the renunciation of the inheritance within 
 the last five years before his death, and at the time of the 
 succession still are enriched thereout. 
 
 FOURTH SECTION — TESTAMENTARY FORMS. 
 
 A. Last Will. 
 I. Execution. 
 1. Generally. 
 
 498. 
 
 The decedent can make a disposition by last will, either by 
 public authentication or by his own writing or by oral 
 declaration. 
 
TITLE XIV.] 
 
 DISPOSITIONS MORTIS CAUSA 
 
 115 
 
 As to the German law of the execution of holographic wills, v. Sch. C. 
 § 487, par. 1. B. G. B. 2231, 2248, 2259, 2267, of publicly declared wills. 
 Sch. C. § 487, par. 2. B. G. B. 2231 to 2242, 2246, 2259. Will by oral 
 declaration, Sch. C. § 488. B. G. B. 2249 to 2252, Intr. L. 44, Imp. C. 
 Military Law of 1874, § 44. 
 
 499. 
 
 The public disposition by last will is accomplished with the 
 co-operation of two witnesses before the ofificial, notary public, 
 or another person of record, who may be charged by cantonal 
 law with these matters. 
 
 V. last note. 
 
 2. Public 
 
 Disposition, 
 a. Form 
 
 Thereof. 
 
 500. 
 
 The decedent shall communicate his will to the official, 
 whereupon he makes or causes to be made the record thereof, 
 and gives it to the decedent to read. This record shall be 
 subscribed by the decedent. The official shall date the record 
 and likewise subscribe it. 
 
 V. last note. 
 
 b. Co-opera- 
 tion of the 
 Official. 
 
 501. 
 
 The decedent shall, immediately after the dating and sub- 
 scribing, declare to the two witnesses, in the presence of the 
 official, that he has read the record and that it contains his 
 last will and testament. 
 
 The witnesses shall, upon the document, confirm by their 
 subscriptions that the decedent has made to them this 
 declaration, and that he was of sound and disposing mind at 
 the time, in their estimation. It is not essential that the 
 witness shall know the contents of the document. 
 
 V. last note. 
 
 c. Co-opera- 
 tion of the 
 Witnesses. 
 
 502. 
 
 If the decedent does not himself read or subscribe the docu- 
 ment, then the official shall read it to him in the presence 
 of both witnesses, and the decedent shall thereupon declare 
 that the document contains his last disposition. The wit- 
 nesses in this case shall certify not only to the declaration of 
 
 Execution 
 without 
 Reading 
 and Sub- 
 scribing 
 by the 
 Decedent. 
 
116 THE LAW OF INHERITANCE [PART III, 
 
 the decedent and their opinion as to his disposing capacity, 
 but also confirm by their subscriptions that the document 
 was read to the decedent by the official in their presence. 
 V. last note. 
 
 503. 
 
 e. Co-opera- Persons not of commercial capacity, or who are in conse- 
 
 ting Per- quence of a criminal sentence not in possession of a citizen's 
 sons. , . 
 
 honors and rights, or who cannot write and read, as well as 
 
 blood relatives in direct line and brothers and sisters of the 
 
 decedent and their spouses and the spouse of the decedent, can 
 
 join in the execution of the public disposition neither as the 
 
 official nor as witnesses. 
 
 The recording official and the witnesses, as well as blood rela- 
 tives in direct line and brothers and sisters or spouses of these 
 persons, may not be remembered in the disposition. 
 
 V. last note. 
 
 504. 
 
 /. Custody of The cantons shall provide that the officials charged with 
 the Docu- the records shall either themselves preserve the testamentary 
 documents in the original or a copy, or deliver them to an 
 official place of deposit. 
 
 505. 
 
 3. Holo- The holographic last will and testament must be written 
 graphic ijy hand by the testator, from beginning to end, including 
 
 the place, year, month and day of execution, as well as be 
 subscribed by him. 
 
 The will must be in all cases excepted by the testator in person. B. G. B. 
 2064. V. note to § 498. 
 
 The cantons shall provide that such writings, open or closed, 
 can be placed in some official place for preservation. 
 
 506. 
 
 4. Nuncupa- If the decedent, by reason of extraordinary circumstances, 
 tive Dispo- 3,3 imminent peril of death, quarantine, epidemics or chances 
 
 SltlOn. . ,1-. ri ir I 
 
 a. The Dispo- of war, is prevented from using one of the other forms 01 
 sition. execution, then he may make an oral testamentary disposi- 
 
TITLE XIV.] DISPOSITIONS ' MORTIS CAUSA 117 
 
 tion. To this end ha must declare his last will before two 
 witnesses and charge them to make the necessary publication 
 of his disposition. 
 
 The same disabling provisions obtain for witnesses as in 
 the case of a public testament. 
 
 V. note to I 498. 
 
 507. 
 
 The nuncupative will shall forthwith be reduced to writing 6. Publication, 
 by one of the witnesses, with the addition of the place, year, 
 month and day of the declaration, by both witnesses sub- 
 scribed, and thereupon without delay delivered to a court 
 officer, with the explanation that the decedent declared this 
 to them to be his last will, under the special controlling 
 circumstances, but in a condition of testamentary capacity. 
 Both witnesses can instead of this give the disposition to a 
 court official for record with a like explanation. If the 
 decedent makes a nuncupative will while in military ser- 
 vice, an officer of a captain's rank or higher can take the place 
 of the court official. 
 
 V. note to § 498. 
 
 508. 
 
 If it becomes possible later to use one of the other forms for c. Loss of 
 wills, then after fourteen days, reckoned from this point of ^ ' '*^' 
 
 time on, the nuncupative will will lose its validity. 
 
 V. note to § 498. 
 
 509. 
 
 The decedent can revoke his last will and testament at any II. Revocation 
 time in one of the forms prescribed for the execution. The D^estruc- 
 revocation can destroy the disposition in whole or part. tion. 
 
 V. Sch. C. § 489. B. G. B. 2253 to 2258, 2272, 2290. ^- Revocation. 
 
 510. 
 
 The testator can revoke his last will and testament by can- 2. Destruc- 
 celing the publication. If the publication is canceled either *'°"- 
 by chance or by the fault of others, then the disposition loses 
 its validity likewise, the claims for compensation being reserved , 
 
118 
 
 THE LAW OF INHERITANCE 
 
 [PART III, 
 
 in SO far as its meaning cannot be determined fully or 
 completely. 
 V. last note, 
 
 Later Dis- 
 position. 
 
 511. 
 
 If the decedent executes a last will and testament without 
 expressly revoking an earlier one, then it takes the place of the 
 earlier will and testament, in so far as it is not without doubt 
 merely a completion thereof. 
 
 Just so will a testamentary disposition as to a definite article 
 be canceled by the fact that the decedent later made a disposi- 
 tion as to the object, which was contradictory of the former. 
 
 V. Sch. C. § 489, par. 1 and note 2. B. G. B. 2254, 2258. 
 
 B. Contracts 
 of Inherit- 
 ance. 
 I. Execution. 
 
 512. 
 
 A contract of inheritance requires for its validity the form 
 of a public will. The parties to the contract must declare 
 their will at the same time to the official and subscribe the 
 record before him and the two witnesses. 
 
 V. Sch. C. § 506. B. G. B. 2274 to 2277. 
 
 II. Dissolution. 
 1. Between 
 
 the Living. 
 a. By Con- 
 tract and 
 Last Will. 
 
 513. 
 
 A contract of inheritance can be dissolved at any time by 
 the parties thereto by a written agreement. 
 
 The testator can on the one side dissolve a contract for 
 appointment of an heir or a legacy, if after execution of the 
 contract the heir or legatee has acted in such a way towards 
 the decedent as to give him a ground for disinherison. This 
 dissolution must be made in one of the ways prescribed for 
 the execution of testamentary dispositions. 
 
 V. Sch. C. |§ 508, 509. B. G. B. 2290 to 2297. 
 
 b. By With- 
 drawal 
 from Con- 
 tract. 
 
 514. 
 
 Whoever by reason of a contract of inheritance has a right 
 to payment inter vivos, can declare his withdrawal according 
 to the regulations of the law of obligations, if they are not 
 made according to contract or security is not given to him. 
 
 V. last note. 
 
TITLE XIV.] 
 
 DISPOSITIONS MORTIS CAUSA 
 
 119 
 
 515. 
 
 If the heir or legatee does not survive the death of the 2. Predecease 
 testator, the contract falls. If the testator at the time of the °^ "^"'" 
 heir's death has received a benefit from the contract, then the 
 heirs of the deceased can demand the return of this enrichment 
 if it is not otherwise agreed. 
 
 V. Sch. C. § 507. 
 
 516. 
 
 If a limitation upon the right of disposition by the testator C. Restriction 
 occurs after execution of a disposition mortis causa, the dis- "i^n '^P°s'- 
 position is not rescinded, but it becomes subject to the claim 
 for abatement. 
 
 V. last note. B. G. B. 2286 to 2288. 
 
 FIFTH SECTION — EXECUTORS. 
 
 517. 
 
 The decedent can in a testamentary disposition charge one A. Conferring 
 or more commercially capable persons with the execution of mission. " 
 his will. This commission is to be officially communicated 
 to them and they must, within fourteen days after notice 
 thereof, declare themselves as to the acceptance of the com- 
 mission. Their silence will be equivalent to an acceptance. 
 
 They have a claim for proper compensation for their services. 
 
 V. Sch C. § 502. B. G. B. 
 
 518. 
 Executors stand, in so far as the decedent has not other- 
 wise provided, under the rights and duties of the official ad- 
 ministrator of an estate. They shall carry ,out the will of 
 the decedent and stand especially charged to administer the 
 estate, to pay the decedent's debts and the legacies, and to 
 make the distribution according to the provisions of the tes- 
 tator or the prescription of law. If several executors are 
 appointed, these powers belong to them in common, subject 
 to any other provision by the testator. 
 
 As to executors' rights and duties, v. Sch. C. §§ 526, 527. B. G. B. 2202 
 to 2224. 
 
 Meaning of 
 the Com- 
 
120 
 
 THE LAW OF INHERITANCE 
 
 [PART III, 
 
 SIXTH SECTION - 
 
 INVALIDITY AND REDUCTION OF 
 DISPOSITIONS. 
 
 A. Complaint 
 of Invalid- 
 ity. 
 I. For Lack of 
 Testamen- 
 tary Capac- 
 ity, Imper- 
 fect Will, 
 Illegality 
 and Im- 
 morality. 
 
 II. 
 
 B 
 
 For Im- 
 perfect 
 Form. 
 
 III. Limitation. 
 
 Complaint 
 for Reduc- 
 tion. 
 
 I. Prefatory. 
 
 1. General. 
 
 519. 
 
 A disposition mortis causa will be declared invalid upon 
 complaint brought: — (1) If it was made at a time when the 
 testator was not of testamentary capacity.^ (2) If it arises 
 out of an imperfect will. (3) If a subject matter or a con- 
 dition attached to it is immoral or illegal. 
 
 The complaint of invalidity can be brought by anyone, 
 who as heir or legatee has an interest therein, to have the 
 disposition declared invalid.^ 
 
 ' V. Sch. C. § 484, par. la, 486. B. G. B 2229, 2238, 2247. 
 ■' Sch. C. § 484, pars. 3. B. G. B. 2078 to 2080, 2082. 
 
 520. 
 
 If the disposition suffers from an imperfect form, then it 
 can, upon complaint brought, be declared invalid. 
 
 If the imperfection of form lies in the co-operation of per- 
 sons, who are themselves or whose relatives are remembered 
 in the disposition, then only these legacies can be declared 
 invalid. The same provisions obtain as to the right of 
 complaint, as in the case of testamentary incapacity. 
 
 V. Sch. C. § 484, par. 1, 6. 
 
 521. 
 
 The right to a complaint for invalidity ceases with the 
 lapse of a year, from the point of time when the complainant 
 received notice of the disposition and the ground of invalidity, 
 and in any event with the lapse of ten years from the day of 
 the vesting of the disposition. 
 
 As against a beneficiary by fraud, it falls in case of the testa- 
 tor's lack of testamentary capacity or of illegality or iminor- 
 ality only after the lapse of thirty years. 
 
 The invalidity of a disposition can be made effective at 
 any time, as matter of defense. 
 
 522. 
 
 If the testator has exceeded his right of disposition, then 
 
TITLE XIV.] 
 
 DISPOSITIONS MORTIS CAUSA 
 
 121 
 
 the heirs, who do not receive in value their statutory share, 
 may demand a reduction of the disposition to the allowed 
 measure. 
 
 If the disposition contains provisions as to the portions of 
 legal heirs, then they are to be considered as mere directions 
 for distribution, if no other intention of the testator can be 
 gathered from the disposition. 
 
 Sch. C. § 510. B. G. B. 23, 6. 
 
 523. 
 
 If a disposition mortis causa contains bequests to heirs 
 entitled to statutory shares, preferring them to other like heirs, 
 a reduction of them shall be made, proportionally to the sums 
 only by which they exceed their statutory shares. 
 V. last note. 
 
 Favoring 
 those 
 
 Entitled to 
 Prescribed 
 Shares. 
 
 524. 
 
 The bankruptcy trustee of an heir or his creditors, in posses- 3. Rights of 
 sion of certificates of loss at the time of the succession, can, 
 within the time allowed the heir, demand the reduction, so tar 
 as it is necessary for their protection, if the testator has 
 exceeded the disposable part to the disadvantage of an heir, 
 and he has not laid a complaint for a reduction upon demand 
 of his creditors. The same right obtains as against a dis- 
 inherison, which the disinherited one does not contest. 
 
 V. last note. 
 
 525. 
 
 The reduction falls upon all appointed heirs and legatees II. Effect. 
 in like measure, in so far as no other intention of the testator ' j^^ General, 
 can be gathered from the disposition. 
 
 If a bequest to a beneficiary, who at the same time is bur- 
 dened with legacies, is reduced, then he can demand, subject 
 to the same reservation, that these legacies shall be also pro- 
 portionately abated. 
 V. last note. 
 
 526. 
 
 If a reduction is to be made on the bequest of a specific 2. ^HJJ^j'* 
 article, not divisible without damage to its value, the legatee Article. 
 
 of 
 
122 
 
 THE LAW OF INHERITANCE 
 
 [PART III, 
 
 can either demand the article itself upon making good the 
 excess value, or the disposable share instead of the article. 
 
 3. Donations 
 
 Inter Vivos. 
 a. Cases. 
 
 527. 
 The following are subject to abatement the same as dis- 
 positions mortis causa: — (1) Donations to be charged against 
 an heir's portion, such as the marriage portion, dowry, or 
 property cession, if they are not subject to adjustment. (2) 
 Settlements between heirs, and settlements between a decedent 
 and heirs. (3) Gifts which the testator could freely revoke, 
 or which he has made during the last five years prior to his 
 death, with exception of the usual occasional presents. 
 (4) Alienation of pieces of property, which the testator has 
 attempted with the evident purpose of evading the limita- 
 tion of his right of disposition. 
 
 6. Return. 
 
 Insurance 
 Claims. 
 
 528. 
 Whoever acts in good faith is bound to make a return only 
 so far as he at the time of ihe vesting of the inheritance has 
 been enriched out of the juridical act with the testator. If a 
 beneficiary under a contract of inheritance must suffer a 
 reduction, then he may demand back a corresponding part 
 of what he gave the decedent. 
 
 529. 
 
 Insurance claims upon the death of the decedent, which 
 by a donation inter vivos or by disposition mortis causa are 
 made in favor of a third person, or during the lifetime of the 
 decedent are gratuitously transferred to a third person, are 
 subject to abatement up to their present surrender values. 
 
 530. 
 
 5. Life Estate If the testator has charged his estate with claims of use, 
 ties. """' enjoyment and annuities of such a kind that their present 
 worth according to their probable duration would exceed the 
 disposable portion of the estate, then the heirs can either 
 demand a proportionate reduction of the claims or their dis- 
 charge, upon transfer of the disposable part of the estate to 
 the beneficiaries. 
 
TITLE XIV.] DISPOSITIONS MORTIS CAUSA 123 
 
 531. 
 
 A limitation to reversionary heirs is invalid as against an heir 6. Rever- 
 entitled to a statutory share, in respect thereto. HeS 
 
 532. 
 
 Subject to abatement in the first place are dispositions HI. Procedure. 
 ■mortis causa, and then donations inter vivos, and these in 
 such a way that the later are abated before the earlier ones, 
 until the statutory share is restored. 
 
 533. 
 
 The complaint for reduction ceases with the lapse of a year iv. Limitation. 
 from the point of time when the heirs obtain knowledge of 
 the injury to their rights, and in any event with the lapse 
 of ten years, in the case of testamentary dispositions to be 
 reckoned from the time of vesting, but in other dispositions 
 from the death of the testator. 
 
 If an earlier disposition becomes effective by reason of a 
 later being declared invalid, then the limitations begin at 
 this point of time. 
 
 The claim for an abatement may be interposed as a defense 
 at any time. 
 
 SEVENTH SECTION — CLAIMS ARISING OUT OF CONTRACTS 
 OF INHERITANCE. 
 
 534. 
 
 If the decedent transfers his property during his lifetime A. Claims in 
 to the contractual heir, then this latter can have a public ^^^ ? • 
 inventory taken. If the decedent has not transferred all Lifetime of 
 his property, or has acquired property subsequent to the 
 transfer, then the contract relates only to the property trans- 
 ferred, subject to any other provision. In so far as the 
 transfer has been made during his lifetime, the rights and 
 obligations under the contract pass to the heirs of the ap- 
 pointed heir, subject to any other provision. 
 Sch. C. § 504. B. G. B. 2299, 2301. 
 
 Testator. 
 
124 
 
 THE LAW OF INHERITANCE 
 
 [PART III, 
 
 535. 
 
 B. Adjustment If the decedent during his lifetime has made gifts to a 
 m Case of renouncing heir in excess of the disposable share of his estate 
 the co-heirs can demand an abatement. The disposition is, 
 however, subject to abatement only for the amount by which 
 it exceeds the statutory share of the renouncing heir. The 
 computation of the gifts is made according to the provisions 
 for an adjustment. • 
 
 tion by 
 Heir. 
 I. Abatement. 
 
 536. 
 
 II. Refunding. If the renouncing heir becomes liable to refund to the 
 estate by reason of an abatement, he has the choice either 
 to assume himself this refund or to throw the whole account 
 against him into the distribution and share in it, as if he had 
 not renounced 
 
TITLE XV.] THE OPENING OF THE SUCCESSION 
 
 125 
 
 SECOND DIVISION — SUCCESSION. 
 
 FIFTEENTH TITLE — THE OPENING OF THE 
 
 SUCCESSION. {Devolution.) 
 V. Sch. C. § 468.1 
 
 537. 
 
 The succession is opened by the death of the decedent.' 
 In so far as donations and divisions made during the life- 
 time of the decedent acquire any hereditary significance, 
 they will be considered according to the status of the estate, 
 as it exists at the decedent's death. 
 'V. Sch. C. § 472. B. G. B. 1922, 1923. 
 
 A. Prefatory, 
 from Deced- 
 ent's Side. 
 
 538. 
 The opening of the succession takes effect upon the whole B. Place of 
 
 estate as of the last domicile of the decedent. Actions to 
 declare invalid or to abate a disposition of the decedent, as 
 well as for payment out of, or partition of, the estate, shall be 
 brought before the judge of this domicile. 
 V. last note. 
 
 Opening 
 and Judicial 
 Compe- 
 tence. 
 
 539. 
 
 Everyone is capable of being an heir and of acquiring by 
 disposition mortis causa so long as he is not by prescript of 
 law incapacitated. 
 
 Donations to a number of persons collectively with the 
 purpose defined shall be acquired by all the donees under 
 the appointment of the decedent, if such body of persons 
 is not a legal entity, or shall become an endowment, if the 
 former condition does not obtain. 
 
 C. Prefatory, 
 from Heir's 
 Side. 
 
 I. Capacity. 
 
 1. Legal _ 
 Capacity. 
 
 540. 
 
 He is unworthy to be an heir or to acquire anything by dis- 2. Unworthi- 
 
 position mortis causa, — (1) who wilfully and illegally has inherit, 
 
 caused the death of the decedent or has attempted it ; (2) who a. Grounds. 
 
126 
 
 THE LAW OF INHERITANCE 
 
 [PART III. 
 
 wilfully and illegally has brought the decedent to a condition, 
 of permanent testamentary incapacity ; (3) who by fraud, duress 
 or threats has brought the decedent to, or hindered him from 
 making a testamentary disposition or revoking it; (4) who 
 wilfully and illegally has set aside or made invalid any dis- 
 position mortis causa under circumstances which no longer 
 allow the decedent to renew it. 
 
 Unworthiness to inherit is removed by the condonation of 
 the decedent. 
 
 Sch. C. § 480. B. G. B. 2339 to 2344. 
 
 b. Effect upon 
 Issue. 
 
 IV. Surviving 
 the Succes- 
 sion. 
 1. As Heir. 
 
 541. 
 
 The incapacity holds only for the one unworthy. His issue 
 inherit from the decedent as if he had predeceased the testator. 
 V. last note. 
 
 542. 
 
 To acquire the inheritance, the heir must live to receive 
 it in a condition of inheritable capacity. 
 
 If an heir dies, after he has lived to see the succession, his 
 right in the inheritance passes to his heirs. 
 
 543. 
 
 2. As Legatee. fhe legatee acquires the claim to a legacy if he survives the 
 succession with an inheritable capacity. 
 
 If he dies before the decedent, his legacy falls to the person 
 charged with payment thereof if no other disposition can be 
 shown in the will. 
 V. Sch. C. § 468, par. 5. Sch. C. § 495. B. G. B. 1939. 
 
 The Child 
 
 before 
 
 Birth. 
 
 544. 
 
 The child is, from the time of conception, capable of inherit- 
 ing, conditioned upon its being born alive. If it be born dead, 
 then it shall not be considered in the succession. 
 
 Sch. C. §§ 24, 472. B. G. B. 1923. 
 
 4. Rever- 
 sionary 
 Heirs. 
 
 545. 
 
 The inheritance or a parcel thereof may be devised in the 
 way of a limitation over to an heir or legatee, who is unborn 
 at the time of the succession. 
 
TITLE XV.] THE OPENING OF THE SUCCESSION 
 
 127 
 
 If no first taker is named, then the legal heirs take the place 
 thereof. 
 
 V. last note. 
 
 546. 
 
 If one is judicially found to be vanished, the heirs or legatees D- 
 shall, before transfer of the inheritance, furnish security for j 
 the return of the property to those better entitled thereto, or 
 to the presumed decedent. This security is, in the case of one ^ 
 disappearing in imminent danger of death, to be for five years, 
 and in case of absence without any word, for fifteen years, 
 but in no case longer than till the day on which the presumed 
 decedent would be one hundred years old. The five years 
 shall be reckoned from the time of the transfer of the inherit- 
 ance and the fifteen years from the last news of the absentee. 
 
 V. Sch. C. §§45 to 47 and citations. The person being judicially decreed 
 to be "vanished" for the statutory period by the German law is considered 
 dead, and his estate administered on that of any other decedent, subject, 
 however, to the duty of the heirs to restore it to the absentee if he returns. 
 
 Vanish- 
 ment. 
 
 Inheritance 
 from One 
 Vanished. 
 Succession 
 upon 
 Security 
 Given. 
 
 547. 
 
 If the vanished one returns, or those better entitled make 
 good their claims, those installed in the inheritance must restore 
 it in accordance with the rules of possession. 
 
 They are liable to those better entitled only during the 
 period of limitation for claims of inheritance, provided they 
 act in good faith. 
 
 V. last note. 
 
 548. 
 
 If at the time of a succession the life or death of an heir II. 
 cannot be proven because he has disappeared, then his 
 share shall be placed in official custody. Persons to whom 
 his share would go upon the non-existence of one lost have 
 the right to petition for a judicial decree of disappearance one 
 year after the disappearance in peril of death, or five years 
 after the last news from absentee and petition for the transfer 
 of the share. This transfer shall be effected in accordance 
 with the regulations for the transfer to the heirs of the lost 
 one. 
 
 V. last note. 
 
 2. End of 
 Vanish- 
 ment and 
 Restoration. 
 
 Right of 
 Inheritance 
 of the Van- 
 ished One. 
 
128 
 
 THE LAW OF INHERITANCE 
 
 [PART III, 
 
 III. 
 
 Relation of 
 the Two 
 Cases to 
 One 
 Another. 
 
 549. 
 
 If the heirs of the vanished one have already secured 
 the acquisition of his property, then his co-heirs, if an inherit- 
 ance falls to him, can rely upon this and demand thereout 
 the value of the property in such inheritance, without necessity 
 of a new decree of disappearance. 
 
 Likewise the heirs of the vanished one can rely upon the 
 decree of vanishment obtained by his co-heirs. 
 
 V. last note. 
 
 IV. Official 
 Action. 
 
 550. 
 
 If the property or the portion of one disappeared remains 
 in official custody for ten years, or if such an one would have 
 reached the age of one hundred years, then the decree of dis- 
 appearance shall be officially obtained by petition of the prop- 
 er official. 
 
 If then no persons announce themselves as entitled thereto 
 with the time set in the notice, the estate falls to the common- 
 wealth entitled thereto, or if the lost one has never resided in 
 Switzerland, to the domiciliary canton. 
 
 The same duty to restore exists as to the lost one and those 
 better entitled, as agjunst a supposed heir put in possession. 
 
 As to German procedure in the case of persons lost and untraceable (Ver- 
 schollen), v. Code of Civil Procedure, §§ 946 to 971. 
 
TITLE XVI.] THE EFFECTS OF SUCCESSION 
 
 129 
 
 SIXTEENTH TITLE— THE EFFECTS OF 
 SUCCESSION. 
 
 FIRST SECTION — REGULATIONS FOR SECURITY. 
 
 551. 
 
 The proper official of the last residence of the decedent shall A. Generally, 
 of his own motion take the proper measures for securing the 
 inheritance. Such measures are peculiar to the legally pre- 
 scribed cases, the sealing of the inheritance, the taking of an 
 inventory, the provision of an administration for the inherit- 
 ance, and the vesting of testamentary dispositions. If a 
 decedent does not die at his residence, then the official of the 
 place of death shall give notice thereof to the official of his 
 residence and take the necessary measures to protect the 
 property, which the decedent has left in the place of decease. 
 As to the Inventory, Sch. C. § 533, 534 and citations. As to appoint- 
 ment of an administrator, Sch. C. § 533, 535 and citations. As to the open- 
 ing of wills and contracts of inheritance, Sch. C. § 520. B. G. B. 2259 to 
 2264, 2273, 2300. 
 
 552. 
 The sealing of the inheritance shall be ordered in the cases B. Sealing of 
 for which the cantonal law has provided it. ance." 
 
 553. 
 
 The taking an inventory is ordered: — (1) If an heir is to be C. Inventory, 
 put under a guardian or already is under such. (2) If an heir 
 is permanently absent and without representation. (3) If one 
 of the heirs demands it. 
 
 It is taken in accordance with the regulations of the can- 
 tonal law, and as a rule is to be completed within two months 
 after the decedent's death. 
 
 The taking of an inventory may be ordered by the cantonal 
 law in other cases. 
 
130 
 
 THE LAW OF INHERITANCE 
 
 [PART III, 
 
 554. 
 
 D. Adrainis- An administrator will be appointed: — (1) If an heir is per- 
 
 I Generallv manently absent and without representation, so far as his 
 interests require it. (2) If none of the claimants can prove 
 his claim sufHciently, or the existence of any heir is uncertain. 
 (3) If all the heirs of the decedent are not known. (4) Wherever 
 the law prescribes it for special cases. 
 
 If the decedent has appointed an executor, then the adminis- 
 tration is to be handed over to him. 
 
 If a person under a guardian dies, the administration of the 
 inheritance falls upon the guardian if no other provision is 
 made. 
 
 Under German law an administrator is appointed on the joint petition 
 of the heirs. Sch. C. § 635. B. G. B. 1981, 2013, 2062. 
 
 555. 
 
 II. In Case of If the court is uncertain whether the decedent has left heirs 
 Heirs q,- jjq|-^ qj. whether all the heirs are known, those interested 
 
 shall be in a proper way publicly notified to come forward 
 within a year's time from the succession. 
 
 If no claim is made in this time, and no heirs are known to 
 the court, the inheritance passes to the commonwealth en- 
 titled thereto, subject to the right of claim of inheritance. 
 
 B. G. B. 1942. Sch. C. § 522, note 1. Id. § 519. B. G. B. 1964 to 
 1966. 
 
 E. Opening 
 
 Will. 
 I. Duty to 
 Present It. 
 
 of 
 
 556. 
 
 If a last will is found upon the death of a decedent, it is 
 at once to be delivered to the court, even though it may be con- 
 sidered invalid. The official before whom the will has been 
 protocoUed or deposited, as well as everyone who has received 
 a will for safe-keeping, or found one among the decedent's 
 effects, is personally responsible to comply with this obliga- 
 tion, so soon as he receives notice of the decedent's death. 
 
 After its delivery the court, so far as possible after a hearing 
 of the parties interested, shall either deliver the inheritance 
 for the time being to the legal heirs or appoint an 
 administration. 
 
 If there is an executor he will be appointed administrator. § 555. v. 
 Sch. C. § 520. B. G. B. 2259 to 2264. 
 
TITLE XVI.] THE EFFECTS OF SUCCESSION 
 
 131 
 
 557. 
 
 The will of the decedent must, within the period of a month n. opening, 
 after its delivery, be opened by the proper court. 
 
 The heirs shall be invited to the opening, so far as they are 
 known to the courts. If the decedent leave more than one 
 will, then all are to be delivered to the court and opened by it. 
 
 V. last note. 
 
 558. 
 All interested in the inheritance shall receive at the cost of III. Notice to 
 the estate written notice of the opened will so far as it concerns ^^^ Parties, 
 them. Notice shall be given beneficiaries of unknown sojourn 
 by proper publication. 
 
 V. last note. 
 
 559. 
 
 After the lapse of a month after notice to the beneficiaries, IV. Transfer of 
 the appointed heirs shall receive upon their demand from the * I""^"*- 
 court a certificate that they are recognized as heirs, subject 
 to the suit for invalidity or for the inheritance, provided the 
 legal heirs or those named in an earlier will have not expressly 
 contested their right thereto. 
 
 At the same time in the case assured the administrator will 
 be directed to hand over to them the inheritance. 
 
 Sch. C. § 521. As to the procedure on application for a certificate of 
 inheritance, B. G. B. 2354 to 2360. Its legal effect. Id. 2353, 2361 to 
 2369. 
 
 SECOND SECTION— THE ACQUISITION OF THE 
 INHERITANCE. 
 
 560. 
 
 Heirs acquire the inheritance as a whole upon the death of 
 the decedent, by force of law. 
 
 Subject to the legal exceptions, the claims, property, re- 
 stricted real rights and possession of the decedent pass im- 
 mediately to them, and the debts of the decedent become the 
 personal debts of the heirs. The acquisition by appointed 
 heirs will relate back to the time of devolution of the succes- 
 sion, and the legal heirs must deliver to them the inheritance 
 in accordance with the rules of possession. 
 
 A. Acquisition. 
 I. Heirs. 
 
132 
 
 THE LAW OF INHERITANCE 
 
 [PART III, 
 
 II. 
 
 Those 
 
 Entitled 
 
 Usufruct. 
 
 to 
 
 561. 
 
 The legal usufruct of the surviving spouse, as well as great- 
 grandparents and brothers and sisters of grandparents, shall 
 be disposed of in accordance with the principles prescribed 
 for legacies. The usufruct becomes really effective, however, 
 at the opening of the succession, subject to the claim of the 
 decedent's creditors. 
 
 As to the German law of the burden of legacies, v. Sch. C. § 497 and cita- 
 tions. V. also the note to § 562. 
 
 III. Legatees. 
 1. Acquisition. 
 
 562. 
 
 Legatees have a personal claim against those charged there- 
 with, or if such are not specially named, against the legal or 
 appointed heirs. 
 
 If it does not otherwise appear in the will, the claim arises, 
 as soon as the one charged therewith has received the inherit- 
 ance or can no longer refuse it. If the heirs do not fulfil 
 their obligation, they can be held to deliver the legacies, or if 
 any action forms the subject of the disposition, to make 
 compensation. 
 
 Sch. C. I 495. B. G. B. 2147, 2174, 2176, 2177. 
 
 563. 
 
 2. Object. If an usufruct or an annuity or any other periodically 
 
 recurring service be given the beneficiary, a claim arises, where 
 it is not otherwise stipulated under the provisions of the laws 
 of things and obligations. 
 
 If an insurance claim upon the life of the decedent be given, 
 the beneficiary can make it effective at once. 
 
 Relation of 
 Creditors 
 and 
 Legatees. 
 
 564. 
 
 The claims of creditors take precedence of legatees. 
 
 Creditors of an heir stand, if he has acquired the inherit- 
 ance unreservedly, on an equal footing with creditors of the 
 decedent. 
 
 565. 
 
 Abatement. If the heirs pay debts of the inheritance after payment of 
 the legacies, of which debts they had no knowledge before, 
 
TITLE XVI.] 
 
 THE EFFECTS OF SUCCESSION 
 
 133 
 
 they may call upon the legatees for a proportionate restitution 
 in so far as they could have demanded an abatement of the 
 legacies. Legatees can, however, be called upon at the most 
 to the extent of their enrichment at the time of demand of 
 restitution. 
 
 566. 
 
 Legal and appointed heirs have the right to renounce an 
 inheritance come to them. 
 
 If the insolvency of the decedent at the time of his death 
 is officially determined, or publicly known, the renunciation 
 will be presumed. 
 
 V. as to the right of heirs and legatees to accept or renounce, v. Sch. C» 
 §§ 522 to 525 and citations. 
 
 Renuncia- 
 tion. 
 Declara- 
 tion. 
 Right. 
 
 567. 
 
 The time for renunciation is three months. It begins as to 
 legal heirs, in so far as they are not shown to have received 
 notice of the inheritance until later, at the point of time when 
 the death of the decedent becomes known to them, and as to 
 appointed heirs, with the point of time when official notice 
 of the decedent's will comes to them. 
 
 V. B. G. B. 1943 to 1946. 
 
 Limitation. 
 Generally. 
 
 568. 
 
 If an inventory has been taken as a measure of security, 
 then the time for renunciation begins to run for all heirs with 
 the day on which the court has given them notice of the clos- 
 ing of the inventory. 
 
 As to the limitation of the heirs' liability by having an inventory taken, v. 
 Sch. C. §§ 533, 534 and citation. 
 
 In Case of 
 an Inven- 
 tory Taken. 
 
 569. 
 
 If an heir dies before the renunciation or acceptance of the 
 inheritance, the right to renounce passes to his heirs. The time 
 for renouncing begins to run for these heirs with the point of 
 time when they receive notice of the falling in of the inherit- 
 ance to their decedent, and ends at the earliest with the lapse 
 of the time allowed them for renunciation as against their 
 
 3. Transfer of 
 the Right to 
 Renounce. 
 
134 
 
 THE LAW OF INHERITANCE 
 
 [PART III, 
 
 4. Form. 
 
 own decedent. If the heirs renounce, and the inheritance 
 passes to other heirs not before entitled thereto, the time 
 then begins for them at the point of time when they received 
 notice of the renunciation. 
 B. G. B. 1952. 
 
 570. 
 
 The renunciation shall be made orally before the proper 
 court by the heir, or in writing. It must be unconditionally 
 and unreservedly made. 
 
 The court shall make a minute of the renunciations. 
 
 V. Sch. C. I 522. B. G. B. 1943 to 1953. 
 
 571. 
 
 II. Forfeiture 
 
 If the heir does not make the renunciation during the 
 Renounce, prescribed time,, he acquires the inheritance unreservedly. 
 If an heir has before the lapse of the time intermeddled in the 
 affairs of the inheritance, or undertaken matters not required 
 by the simple administration of the inheritance or by the 
 march of affairs of the inheritance, or if he has appropriated 
 property of the inheritance or concealed the same, he can no 
 longer renounce the inheritance. 
 Sch. C. § 534, par. 7. B. G. B. 2005. 
 
 III. Renuncia- 
 tion by a 
 Co-heir. 
 
 572. 
 
 If the decedent leaves no disposition mortis causa, and 
 one of several heirs renounces his inheritance, his share is 
 forfeited as if he had not survived the heritage. 
 
 If the decedent leaves a disposition mortis causa, the share 
 which an appointed heir renounces (no other intention of the 
 testator appearing in the will) passes to the next legal heirs of 
 the testator. 
 
 Sch. C. § 479. K. G. B. 2346 to 2351. 
 
 573. 
 
 IV. Renuncia- If the inheritance is renounced by all the next legal heirs. 
 
 Next Heirs. '* passes into liquidation through the bankruptcy oflSce. If 
 
 1. Generally, there results in liquidation a surplus after payment of the 
 
 debts, this will be distributed among those entitled as if no 
 
 renunciation had been made. 
 
TITLE XVI.] THE EFFECTS OF SUCCESSION 
 
 135 
 
 574. 
 
 If the issue have renounced the inheritance, notice thereof 
 shall be given by the court to the surviving spouse and he 
 can declare his acceptance within the period of a month. 
 
 Sch. C. § 522, par. 7. 
 
 575. 
 
 The heirs in renouncing can demand that the heirs next 
 following them shall be interrogated before the inheritance shall 
 be liquidated. 
 
 In this case the court shall give notice to these next heirs 
 of the renunciation by their predecessors, and if thereupon 
 these heirs do not declare their acceptance of the inheritance 
 within a month's time, then it is renounced by them also. 
 
 Right of 
 the Surviv- 
 ing Spouse. 
 
 Renuncia- 
 tion in 
 Favor of 
 Next Heirs. 
 
 576. 
 
 For sufficient reasons the proper court can allow the legal V. Extension 
 or appointed heirs an extension of the time or fix a new period ° '™^' 
 of time. 
 
 577. 
 
 If a legatee renounces a legacy, then it falls in favor of the VI. Renuncia- 
 person charged with it, if no other intention of the testator Legacy.^ 
 appears in the will. 
 
 V. Sch. C. § 525. B. G. B. 2180. 
 
 578. 
 
 If an heir heavily in debt has renounced the inheritance to VII. Security 
 
 the end that it remain withdrawn from his creditors, they or 
 the trustee in bankruptcy can within six months contest the 
 renunciation, if their claims are not secured. If their contest 
 is upheld, the inheritance goes into ofificial liquidation. A 
 surplus serves in the first place for satisfaction of contesting 
 creditors, and, after payment of the remaining debts, goes to 
 the heirs in whose favor the renunciation was made. 
 
 for the 
 Creditors 
 ofan Heir. 
 
 ^7'' . . VIII. Respon- 
 
 If the heirs of an insolvent decedent renounce the inherit- sibility in 
 
 ance, they are liable to his creditors nevertheless, in so far Renuncia- 
 tion. 
 
136 
 
 THE LAW OF INHERITANCE 
 
 [PART III, 
 
 as they may have received property from the decedent within 
 the last five years before his death, which property would, 
 in the distribution of the inheritance, have been subject to 
 adjustment. 
 
 The local customary outfit at marriage, as well as cost of 
 education and instruction, are not subject to this liability. 
 Heirs who are in good faith are liable only in so far as they 
 have been enriched. 
 
 As to the German law of liabilities of heirs, etc., v, Sch. C. § 532 and 
 citations. 
 
 THIRD SECTION — PUBLIC INVENTORY. 
 
 580. 
 
 A. Prefatory. Every heir who has the right to renounce an inheritance 
 is entitled to demand a public inventory. The petition must 
 be brought within the period of a month, in form similar to an 
 enunication, before the proper court. 
 
 If it is required by one of the heirs, it avails the others also. 
 V. Sch. C. § 533, par. 1. 
 
 B. Procedure. 
 I. Inventory. 
 
 581. 
 
 The public inventory shall be taken by the proper court 
 in accordance with the regulations of the cantonal law, and 
 consists of a schedule of the articles of property and debts of 
 the inheritance, and each item shall have a value attached. 
 
 Whoever can give information as to the property matters 
 of the decedent is obliged, upon his own responsibility, to 
 make every disclosure required of him by the magistrate. In 
 particular the heirs must notify the court of decedent's debts 
 known to them. 
 
 II. Call to 
 Account. 
 
 582. 
 To the inventory the court shall join a call to account, by 
 which, in the way of an appropriate public advertisement, 
 creditors and debtors of the decedent, including creditors, by 
 reason of surety contracts, shall be called upon to present their 
 claims and debts within a certain period of time. Creditors 
 
TITLE XVI.] THE EFFECTS OF SUCCESSION 
 
 137 
 
 are therein to be notified of the consequences of non-presenta- 
 tion. The period of time shall be at the least one month 
 from the day of the first publication. 
 V. § 590 and Sch. C. § 537. B. G. B. 1970 to 1974. 
 
 583. 
 
 Claims and indebtednesses, which appear in public records III. Taking 
 or in papers of the decedent, shall be included in the inven- official 
 tory upon official suggestion. Motion. 
 
 The inclusion thereof shall be announced to those debtors 
 and creditors. 
 
 584. 
 
 After the lapse of the time of publication, the inventory IV. Result, 
 shall be closed and thereupon for at least a month opened to 
 the inspection of interested parties. 
 
 The costs are to be borne by the estate, and, when it does 
 not suffice, by the heirs who have demanded the inventory. 
 
 585. 
 
 During the time of the inventory, only the necessary acts 
 of administration may be undertaken. 
 
 If the court allows the continuance of the decedent's busi- 
 ness by an heir, his co-heirs have the right to demand security. 
 
 Relation of 
 the Heirs 
 During the 
 Inventory. 
 Adminis- 
 tration. 
 
 586. 
 
 The collection of debts of the decedent is excluded during II. Collection, 
 the continuance of the inventory. Limitation. 
 
 A limitation does not run. Process of law can neither be 
 pursued nor discontinued save in urgent cases. 
 
 587. 
 After conclusion of the inventory, every heir shall be sum- 
 moned to declare himself within a month's time as to the 
 acquisition of the inheritance. Where the circumstances jus- 
 tify it, the proper court can grant a longer time for presenting 
 appraisements, for settlement of doubtful claims and the like. 
 
 D. Effect. 
 I. Time for 
 Declara- 
 tion. 
 
138 
 
 THE LAW OF INHERITANCE 
 
 [PART III, 
 
 II. 
 
 Declara- 
 tion. 
 
 III. Conse- 
 quences of 
 Acceptance 
 under a 
 Public 
 Inventory. 
 1. Liability 
 According 
 to Inven- 
 tory. 
 
 588. 
 
 The heir can, during the appointed time, renounce or de- 
 mand the official liquidation, or accept the inheritance under 
 a public inventory or unreservedly. 
 
 If he makes no declaration, he has accepted the inheritance 
 under the public inventory. 
 
 Sch. C. § 622 and citations. 
 
 589. 
 
 If an heir takes the inheritance under a public inventory, 
 the debts of the decedent scheduled in the inventory, and the 
 articles of property, pass to him. The acquisition of the 
 inheritance, with its rights and obligations, relates back to 
 the time of devolution of the succession. 
 
 For debts scheduled in the inventory the heir is liable, not 
 only with the inheritance, but his own property. 
 
 2. Liability 
 Outside of 
 Inventory. 
 
 590. 
 
 The heirs are not liable, either personally or with the 
 inheritance, to creditors whose claims have not been included 
 in the inventory, for the reason that they have neglected 
 presenting them. 
 
 If creditors have overlooked the presentation for inventory 
 purposes, without any fault of their own, or if their claims, 
 despite their presentation, are not included in the schedule, 
 the heir is liable so far as he is enriched out of the inheritance. 
 
 In all cases creditors can made good their claims, so far as 
 they are protected by right of pledge of articles of inheritance. 
 
 V. i 582. 
 
 591. 
 
 E. Liability for Decedent's debts on security entered shall be specially 
 
 Security noted in the inventory, and can be made good against the 
 
 heir, even when he accepts the inheritance, only to the amount 
 
 that, upon a bankruptcy, satisfaction of all the debts out of 
 
 the inheritance would fall upon secured debts. 
 
 592. 
 
 " F. Acquisition If an inheritance fall to the commonwealth by official action, 
 
 by the ^ citation to account will be sent out and the commonwealth 
 
 Common- 
 wealth. 
 
TITLE XVI.] THE EFFECTS OF SUCCESSION 139 
 
 is liable for the debts of the inheritance only to the extent 
 of the estate which it has acquired in the inheritance. 
 V. B. G. B. 1942. 
 
 FOURTH SECTION — THE OFFICIAL LIQUIDATION. 
 
 593. 
 
 Every heir has the right, instead of renouncing the inherit- A. Prefatory, 
 ance or accepting it under a public inventory, to petition for ^' ^n Hdr °* 
 an official liquidation. So long, however, as a co-heir declares 
 his acceptance, no relief can be given under such petition. 
 
 In case of the official liquidation the heirs are not respon- 
 sible for the debts of the inheritance.^ 
 
 1 Sch. C. § 535. B. G. B. 1981, 2013, 2062, 1984. 
 »B. G. B. 1975. 
 
 594. 
 
 If the decedent's creditors have good reason to believe that II. Petition of 
 their claims will not be paid, and if they are not -satisfied or of'^^the"'^^ 
 given security upon their petition brought, they can, within Decedent, 
 three months from the death of the decedent, or the vesting 
 of the disposition, demand an official liquidation of the 
 inheritance. 
 
 Legatees can under similar conditions demand proper meas- 
 ures for their security. 
 
 I. Administra- 
 tion. 
 
 595. 
 
 The official liquidation shall be carried out by the proper B. Procedure, 
 court or under their direction by one or more administrators 
 of the inheritance. It begins with the taking of an inventory 
 to which is joined a citation to account. The administrator 
 stands under the supervision of the court, and the heirs have 
 the right to raise objections before it, to the measures con- 
 templated or taken by him. 
 
 Sch. C. § 535, par. 6. B. G. B. 1985, 1986. 
 
 596. 
 
 For the purpose of the liquidation, the current business of II. Ordinary 
 the decedent is to be wound up, his obligations to be met, [jj^^"' ^" 
 
140 
 
 THE LAW OF INHERITANCE 
 
 [PART III, 
 
 his claims to be collected, legacies to be paid as far as possible, 
 the rights and duties of the decedent, so far as necessary, 
 judicially to be determined, and his estate to be converted 
 into money. The alienation of parcels of real estate of the 
 decedent has to be made by public sale, and may be eifected 
 by private sale only with the free consent of all the heirs. 
 
 The heirs can demand that the things and moneys in the 
 inheritance, not necessary for the liquidation, shall be trans- 
 ferred to them wholly or in part even during that process. 
 
 III. Liquidation 
 in Bank- 
 ruptcy. 
 
 597. 
 
 If the inheritance is overburdened with debts, the liquida- 
 tion is accomplished through the bankruptcy office, accord- 
 ing to the provisions of the bankruptcy law. 
 
 Sch. C. § 536. B. G. B. 1975, 1980, 1985, 2013. 
 
 FIFTH SECTION. — ACTION FOR AN INHERITANCE. 
 
 598. 
 
 A. Prefatory. Whoever, as a legal or an appointed heir, thinks he has a 
 better right to an inheritance or things in an inheritance 
 than the possessor, has the right to assert his claim in an 
 action for the inheritance. The judge, upon petition of the 
 complainant, takes the necessary measures for his protection, 
 such as requiring security, or authorization of an entry in the 
 Land Register. 
 
 V. Sch. C. § 528 and citations. 
 
 599. 
 
 B. Effect. If the complaint be sustained, the possessor must surrender 
 
 the inheritance or things in it to the complainant according 
 to the rules of possession. 
 
 The respondent cannot set up the defense of prescriptive 
 title to the things as against such a complaint. 
 V. last note and B. G. B. 2018 to 2021. 
 
TITLE XVI.] THE EFFECTS OF SUCCESSION 141 
 
 600. 
 
 The action for an inheritance lapses with the running of a C. Limitation, 
 year, as against a respondent in good faith, computed from 
 the time when the complainant has received knowledge of the 
 possession by the respondent, and of his own better right, but 
 in all cases with the running of ten years from the death of 
 the decedent or the time of vesting of his last testamentary 
 disposition. 
 
 The period of limitation is always thirty years, as against 
 a respondent guilty of bad faith. 
 
 601. 
 
 The right of complaint of a legatee lapses with the running D. Complaint 
 of ten years from the notice of the disposition, or from the Legatees, 
 time at which the legacy later becomes due. 
 
142 
 
 THE LAW OF INHERITANCE 
 
 [PART III, 
 
 SEVENTEENTH TITLE — DIVISION OF THE 
 INHERITANCE. 
 
 FIRST SECTION — THE COMMUNITY BEFORE DIVISION. 
 
 602. 
 
 A. Effect of If several heirs inherit from the decedent, there exists 
 
 sion ""^"^^^ between them, until the inheritance is divided, by reason of 
 I. Com- 
 
 munity 
 Heirs. 
 
 of 
 
 II. 
 
 B. 
 
 Liability of 
 Heirs. 
 
 Claim for 
 Division. 
 
 the succession, a community of all the rights and obligations 
 of inheritance. 
 
 They become joint owners of the objects of inheritance and 
 exercise the rights of inheritance jointly, subject to contractual 
 or legal powers of representation and administration. Upon 
 petition of one co-heir, the proper court can direct a repre- 
 sentation for the community of heirs until the division. 
 
 V. Sch. C. § 529. B. G. B. 2032. 
 
 603. 
 
 The heirs become jointly liable for the decedent's debts. 
 
 604. 
 
 Every heir can, at a reasonable time, demand the division 
 of the inheritance in so far as he is not obligated to the com- 
 munity by contract or provision of law. Upon request of 
 one heir, the judge can for the time direct the postponement 
 of the division of the inheritance, or separate things of in- 
 heritance, if the immediate undertaking thereof would seri- 
 ously damage the inheritance in its value. The co-heirs of an 
 insolvent heir have the right to demand proper measures for 
 the security of their claims at once after the succession. 
 
 Sch. § 530. B. G. B. 2042 to 2046. 
 
 605. 
 
 Postpone- If in any succession regard must be had for a yet unborn 
 
 ment of the child, the division must be postponed until the time of its 
 Division. . . „ . . . ,. . , , < , . 
 
 birth. For that length of time the mother has a claim upon 
 
 the enjoyment of the common property, in so far as it is neces- 
 sary for her support. 
 Sch. C. § 530, par. 1. 
 
TITLE XVII.] DIVISION OF THE INHERITANCE 
 
 143 
 
 606. 
 
 Heirs, who at the time of decedent's death have received D. Claims of 
 
 their support in his household, can demand that after his Household 
 
 J , , . Compan- 
 
 death the support shall be contmued to them for at least one ions. 
 
 month, at the cost of the estate. 
 
 SECOND SECTION — METHOD OF DIVISION. 
 
 607. 
 
 Legal heirs must share not only among themselves, but also A. In General, 
 with the appointed heirs, according to the same principles. 
 
 They can, where it is not otherwise directed, freely agree 
 upon the division. 
 
 Co-heirs who are in possession of objects of inheritance, or 
 are debtors of the decedent, must make full and exact dis- 
 closure thereof in a division. 
 
 V. Sch. C. B. G. B. 2046, 2047. 
 
 608. 
 
 The decedent may by a disposition mortis causa give 
 directions to his heirs as to the division and the makeup of 
 the shares. 
 
 Subject to the adjustment in case of inequality of the 
 shares not contemplated by the testator, these directions are 
 binding upon the heirs. 
 
 If no other intention of the decedent is apparent in the will, 
 the bequest of any specific property to an heir holds only as a 
 direction for division and not as a legacy. 
 
 Sch. C. § 531. 
 
 B 
 
 Order of 
 Division. 
 I. Disposition 
 by 
 Decedent. 
 
 609. 
 
 Upon demand of a creditor, who has acquired an heir's n. Co-opera- 
 claim to an inherited estate or has attached it, or who pos- courtL 
 sesses certificates of loss against him, the court must co-operate 
 in the division in place of this heir. 
 
 It is reserved to the cantonal law to provide for still other 
 cases an ofificial co-operation in the division of an estate. 
 
144 THE LAW OF INHERITANCE [PART III. 
 
 610. 
 
 C. Procedure The heirs all have an equal claim to the objects of the 
 I. Heirs'*''^'""' inheritance in a division thereof, if no other regulations 
 
 Equal should control. They must communicate to one another 
 
 '^ ^' everything as to their relations with the decedent, which 
 pertains to the equal and just division of the inheritance. 
 
 Every co-heir can demand that the debts of the decedent 
 be satisfied or secured before a division of the estate. 
 Sch. C. § 531, 3, 5. B. G. B. 2046, 2047. 
 
 611. 
 
 II. Making up The heirs shall make as many lots or portions out of the 
 
 property of the estate as there are heirs or stems of heirs. 
 
 If they cannot agree, the proper court, with due regard to 
 local custom, the personal relations and the wishes of the 
 majority of the co-heirs, shall, upon demand of any one of the 
 heirs, make up the lots. The division of the lots shall be 
 made by agreement or by drawing lots among the heirs. 
 
 This and the following to § 625 regulate details as to the division of 
 decedent's estates, which the German civil law does not seem to legislate 
 upon. 
 
 612. 
 
 III. Donation An article of inheritance that might lose substantially in 
 Single^ ^ ° value by division shall be given to one of the heirs undivided. 
 Things. If the heirs cannot agree upon the division or disposition of any 
 
 article, then it shall be sold and the proceeds divided. 
 
 Upon demand of any heir the sale must be held by auction, 
 and if the heirs cannot agree, the proper court shall determine 
 whether the auction shall be public or only among the heirs. 
 
 613. 
 
 D. Special Articles by nature belonging together shall not be sepa- 
 I Things^ Be- rated from one another, if one of the heirs objects to the 
 
 longing severance. 
 
 Fandly^"^' Family documents and articles of special value as souvenirs 
 
 Documents, to the family shall not be alienated if an heir objects thereto. 
 
 If the heirs cannot agree thereon, the proper court shall 
 
 decide upon the sale or donation with or without a charge 
 
TITLE XVII.] DIVISION OF THE INHERITANCE 145 
 
 therefor, with regard to local custom, and wherever no such 
 custom exists, to the personal relations of the heirs. 
 
 614. 
 
 Claims which the decedent has had against one of the II. Claims of 
 
 heirs must be charged against such heir in the division. Decedent 
 
 " against 
 
 Heirs. 
 
 615. 
 
 If an heir receives in the division an article of inheritance III. Pledged 
 which is pledged for debts of the decedent, the debt of the fnhwhilnce 
 pledge is also charged upon him. 
 
 616. 
 
 The cantons may designate in reference to the various agri- IV. Realty, 
 cultural practices, the minimum surface measures for the ^' Parceling, 
 division of realty. 
 
 617. 
 
 Realty shall be charged to the heirs at the value thereof at 2. Acceptance. 
 the time of the division. Agricultural realty is to be valued °" Charge 
 at the rental value, other realty at the market value. 
 
 618. 
 
 If the heirs cannot reach an understanding as to the charge b. Method of 
 value, this shall be finally fixed by ofificially appointed experts. Vahw '^'"^ 
 
 If the rental value is not sufficiently known, it will be pre- 
 sumed that it is three-fourths of the market value. 
 
 619. 
 
 If an heir has received realty under the market value, the 3. Share of 
 co-heirs have a right, upon a sale thereof or a portion of the het^in the 
 same within the following ten years, to claim a proportional Increase, 
 part of the increase in value, provided this claim has been 
 entered in the Land Register at the division. 
 
 This share shall not exceed what the co-heir would have 
 received if the realty had been charged at the market value 
 in the division. The co-heirs have no claim for the increased 
 value arising through betterments, buildings, increment of 
 timber, or the like. 
 
146 
 
 THE LAW OF INHERITANCE 
 
 [PART III. 
 
 V. Agricul- 
 tural Trade. 
 1. Exclusion 
 from 
 Division. 
 
 620. 
 
 If in the estate there is an agricultural trade, and if one 
 of the heirs declares himself ready to take it over, and appears 
 to be adapted therefor, it shall be given, undivided, to this 
 heir at the charge of the rental value, provided it makes a 
 unit for the economical pursuit thereof. The one taking over 
 a trade can also demand the tools, stock, and cattle used in 
 its pursuit. 
 
 The determination of its charge value is made for the 
 whole, according to the regulations for appraising realty. 
 
 621. 
 
 Designa- If one of the co-heirs makes objection, or several declare 
 
 tion of the themselves ready to take it over, the proper court shall decide 
 
 Take It. upon the transfer, sale or division of the trade, with regard to 
 
 local custom, and where none such exists, to the personal 
 
 relations of the heirs. 
 
 Heirs who desire themselves to follow the trade have a 
 first claim for the undivided transfer. If none of the sons 
 will take over the property for his own trade, the daughters 
 also have the right to take it over, provided they themselves 
 or their husbands appear fitted to pursue it. 
 
 3. The Com- 
 munity of 
 Heirs. 
 
 a. Claim. 
 
 622. 
 
 If the taker of the trade is so burdened by the shares of 
 the co-heirs that he must for their security charge his immov- 
 ables, the liens already upon them reckoned in, to more than 
 three-fourths of the charge value, he can demand that the 
 division in relation to the trade taken over shall be postponed. 
 
 In such case the co-heirs together make a profit-sharing 
 community. 
 
 6. Dissolu- 
 tion. 
 
 623. 
 
 If the taker comes to the position of making a settlement 
 without excessive burden of debt, any co-heir can notify the 
 community and demand his share. The taker, when it is 
 not otherwise agreed upon, may at any time demand the 
 dissolution of the community. 
 
TITLE XVII.] DIVISION OF THE INHERITANCE 
 
 147 
 
 624. 
 
 Settlement 
 with 
 
 Hereditary 
 Rents. 
 
 If the taker has made use of the right to postpone the 
 division, any co-heir has the right, instead of remaining in the 
 community of heirs for the profits, to demand his share thereof 
 in the form of a claim secured by a lien upon the common 
 property. This settlement, however, the taker shall furnish 
 in the form of a hereditary rent, for the part by which he 
 would thereby burden the common property in excess of the 
 three-fourths of the charge value, and that in a rent which 
 shall be irrevocable for at least ten years, and to bear interest 
 at the highest according to the prevailing rate for rents. The 
 provisions of the law of rents as to the limits of the burden 
 and the liability of the state have no application to the 
 hereditary rents. 
 
 625. 
 
 If another trade is joined to the agricultural trade as a VI. Other 
 "by-occupation," (nebenbetrieb) , the whole shall be transferred 
 undivided at the charge of the market value to the heir, 
 who declares himself ready to take it over and appears fitted 
 for it. If one of the co-heirs makes objection, or if several 
 declare themselves ready to take it over, the proper court 
 shall decide upon the transfer, sale or division of the trade 
 with regard to the personal relations of the heirs. 
 
 Trades. 
 
 THIRD SECTION — THE ADJUSTMENT. 
 
 626. 
 
 The legal heirs are mutually bound to bring into the adjust- A. Duty of 
 ment everything which the testator in his lifetime has given Adjust, 
 them by advancement against their shares. 
 
 Whatever the testator has given his issue as marriage por- 
 tion, marriage outfit, or by property cession, release of debt or 
 the like, comes under this duty to adjust, so far as the testator 
 has not expressly directed the contrary. 
 
 V. Sch. C. I 478, note 1. B. G. B. 2051, 2053. 
 
 627. 
 
 If an heir die before or after the succession, his duty to B. Adjustment 
 
 adjust passes to the heirs who take his place. Issue of an 
 
 Decease 
 Heirs. 
 
 of 
 
148 THE LAW OF INHERITANCE [PART III, 
 
 heir are, in reference to the gifts which he has received, bound 
 by the duty to adjust even when the gifts have not come to 
 them. 
 
 628. 
 
 C. Method of The heirs have the choice to undertake the adjustment by 
 
 Computa- restoring in kind or by charging against according to the 
 
 I. Throwing in value, and that, too, when the gifts exceed the amount of the 
 
 or Charg- heirs' portion. Contrary directions of the testator are 
 
 reserved, as well as the claims of co-heirs, for abatement of 
 
 the gifts. 
 
 629. 
 
 II. Relation to If the gifts exceed the amount of the heirs' portion, the 
 Portion"^^ excess need not be adjusted, subject to the claim of co-heirs 
 for an abatement, when the testator evidently desired to 
 prefer the heir therewith. This preference is presumed in 
 case of outfits given to children upon their marriages in a 
 customary amount. 
 
 630. 
 
 III. Adjustment The adjustment is made according to the value of the 
 Value. gifts, as of the time of the succession, or, if the property has 
 
 already been alienated, according to the value received 
 therefor. 
 
 Money spent for improvements and damages, as well as 
 fruits received, are to be brought into the account between 
 heirs according to the rules of possession. 
 
 631. 
 
 D. Costs of The outlays of the decedent for the education and instruc- 
 
 Education. ^^^ q£ ^j^g ggyeral children are to be subject to adjustment 
 only in so far as they exceed ordinary measure — if no other 
 intention of the decedent is shown. Uneducated and frail 
 children are to be allowed a reasonable preference in the 
 division. 
 
 V. Sch. C. § 440, note 2, as to marriage outfit. As to other gifts, Sch. 
 C. I 478. 
 
TITLE XVII.] DIVISION OF THE INHERITANCE 
 
 149 
 
 632. 
 
 Customary occasional gifts do not need to be considered in E. 
 an adjustment. • 
 
 This conforms with the German law. v. last'note. 
 
 633. 
 
 Adult children who have contributed their labors or their 
 income to their parents in a common household can claim a 
 reasonable adjustment therefor in the division, if they have 
 not expressly renounced a proportionate compensation. 
 
 The B. G. B. does not regulate on this point. 
 
 Occasional 
 Gifts. 
 
 Adjustment 
 of Contribu- 
 tions to the 
 Household 
 Com- 
 munity. 
 
 FOURTH SECTION 
 
 CONCLUSION AND EFFECT OF THE 
 DIVISION. 
 
 634. 
 
 A. 
 
 Conclusion 
 of the 
 Conclusion 
 of the 
 Contract. 
 Contract 
 for 
 Division. 
 
 Contract as 
 to the 
 Hereditary 
 Shares. 
 
 The division becomes binding upon the heirs with the 
 separation and acceptance of the lots or with the conclusion 
 of the contract for division. This latter requires a written 
 form for validity. 
 
 635. 
 
 Contracts between the heirs as to the transfer of hereditary H 
 shares, as well as contracts of the father or mother with 
 the children as to the heirs' portion which may fall to them 
 from the other spouse, require a written form for validity. 
 
 If they are made between an heir and a third person, they 
 give this third person no right to join in a division, but a 
 claim only upon the portion apportioned to the heir in the 
 division. 
 V. Sch. I 529. B. G. B. 2033 to 2037, 2371. 
 
 636. 
 
 Contracts made by an heir with a co-heir or a third person, III. Contracts 
 as to an inheritance not yet fallen to him, without the co- Succession 
 operation or consent of the decedent are not binding. 
 
 Considerations given under the terms of such a contract 
 can be demanded back. 
 
 The German law seems to conform herewith apparently. The lawful con- 
 tract for the sale of inheritance to property vested by the death of the 
 owner, v. Sch. C. § 547. B. G. B. 2371 to 2385. 
 
150 
 
 THE LAW OF INHERITANCE 
 
 [PART III, 
 
 B. Liability of 
 Co-heirs 
 Among 
 Themselves. 
 
 I. Guaranty. 
 
 637. 
 
 After conclusion of the division, co-heirs are liable to one 
 another for the articles of inheritance, as vendor and vendee. 
 
 They must guarantee to one another the validity of the 
 claims, which have been made upon them in the division, 
 and are liable to one another, so far as it is not a matter of 
 securities in bankruptcy, up to the amount at which the claim 
 has been charged to the taker at the division, as one who has 
 given simple security. The action arising out of the duty to 
 guarantee lapses with the running of a year after the division, 
 or from the time upon which the claims would later become 
 due. 
 
 II. Contest 
 the 
 Division. 
 
 638. 
 
 of A contest of the contract for division is governed by the 
 regulations in regard to the contest of contracts in general. 
 
 C. Liability to 
 Third 
 Persons. 
 
 I. Joint 
 Liability. 
 
 639. 
 
 The heirs are liable for the decedent's debts to creditors, 
 even after a division, jointly and with their whole property, 
 so long as the creditors have not expressly or tacitly con- 
 sented to a division or assumption of the debts. The joint 
 liability of co-heirs terminates with the lapse of five years 
 after the division, or from the time at which the claim would 
 later become due. 
 
 V. Sch. C. § 532. 
 
 II. 
 
 Contribu- 
 tion from 
 Co-heirs. 
 
 640. 
 
 If an heir has paid a debt of the decedent, which was not 
 charged against him in the division, or if he has paid in one 
 debt more than he had assumed, he has the right to demand 
 contribution from his co-heirs. This claim for contribution 
 lies in the first place against him, who assumed the debt 
 paid, in the division made. 
 
 Otherwise, in default of other arrangement, the heirs must 
 bear the debts among themselves in proportion to the heirs' 
 portions. 
 
 Sch. C. I 529, 2. B. G. B. 2039. 
 
TITLE XVIII.] 
 
 GENERAL PROVISIONS 
 
 151 
 
 FOURTH PART. 
 
 THE LAW OF THINGS. 
 
 FIRST DIVISION — OWNERSHIP. 
 
 EIGHTEENTH TITLE — GENERAL PROVISIONS. 
 
 641. 
 
 Whoever is the owner of a thing can freely dispose of it A. Definition 
 within the Hmitations of the law's enactment. °^ Property 
 
 He has the right to reclaim it from anyone who retains it 
 from him, and to defend it against every illegal interference. 
 V. Sch. C. § 323. B. G. B. 903. 
 
 therein. 
 
 642. 
 
 Whoever is the owner of a thing has the ownership in all 
 its component parts. 
 
 A component part of a thing is everything that belongs to 
 its integrity according to the usual local conception, and 
 cannot be separated from it without its destruction, injury 
 or alteration. 
 
 B. Extent of 
 Property. 
 I. Component 
 
 Parts. 
 
 643. 
 
 Whoever is the owner of a thing has the ownership also in II. 
 its natural fruits. 
 
 Natural fruits are the periodical additions, and the profits 
 which are won from a thing conformably to its destined use 
 according to the usual conception. 
 
 Until a severance, the natural fruits are a component part 
 of the thing. 
 
 Sch. C. § 323. 
 
 Natural 
 Fruits. 
 
152 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 644. 
 
 III. Appurte- The disposition of a thing carries with it also its appur- 
 
 1. Definition, tenances, if no exception is made. Appurtenances are the 
 
 movable things, which are, according to the usual local con- 
 ception or clear intention of the owner, attached to the main 
 thing permanently for its management, use or preservation, 
 and, by connection, adjustment or otherwise, brought into the 
 relation with the main thing, in which it must serve such 
 main thing. 
 
 If anything is an appurtenance, its temporary severance 
 from the main thing cannot take from it this quality. 
 
 645. 
 
 2. Exceptions. Such movable things are never appurtenant which serve the 
 
 possessor only for a temporary use or for consumption, or 
 which stand in no relation to the particular qualities of the 
 main thing, as well as such things as are brought into con- 
 nection with the main thing only for storage, sale, or leasing 
 purposes. 
 
 646. 
 If several persons have a thing in their ownership by frac- 
 tions, and without outward severance, they are co-owners. If 
 it is not otherwise determined, they are co'owners in equal 
 Each co-owner has in respect to his share the rights 
 Co-owners, and duties of an owner, and this share can be alienated and 
 pledged by him and be attached by his creditors. 
 
 Sch. C. § 304. B. G. B. 741, 742, 743. As to pledging, v. Sch. C. 
 I 325, 2, 3. 
 
 Ownership 
 in Com- 
 mon. 
 Co-own er- 
 
 Relation of P^"^*^ 
 
 2. Adminis- 
 tration. 
 
 647. 
 
 The co-owners control the thing in common, when it is not 
 otherwise agreed upon. Each one has the right, so long as 
 the majority has not otherwise ordered it, to perform the cus- 
 tomary acts of administration, such as the direction of better- 
 ments and the procuring of cultivation. For the direction 
 of more important acts of administration, such as change 
 of cultivations and undertaking of extensive repairs, the reso- 
 lution of the majority of the co-owners is requisite, which 
 majority likewise represents the greater part of the thing. 
 
 Sch. C. I 304, 1, 2, 3. B. G. B. 744, 745. 
 
TITLE XVIII.] 
 
 GENERAL PROVISIONS 
 
 153 
 
 648. 
 
 Each co-owner has the right to represent the thing, to use 
 and to enjoy it, in so far as it is compatible with the rights 
 of the others.^ 
 
 For the alienation or burdening of the thing, as well as for 
 the change of its intended use, the consent of all the co-owners 
 is requisite, provided they have not otherwise unanimously 
 stipulated.^ 
 
 ' B. G. B. 742. Sch. C. § 304. 
 "Sch. C. § 304, 5. B. G. B. 747. 
 
 Control 
 over the 
 Thing. 
 
 649. 
 
 The costs of administration taxes and other charges, which 
 grow out of the co-ownership, or lie against the thing owned, 
 shall be borne by the co-owners in proportion to their shares, 
 when not otherwise agreed. 
 
 If a co-owner has borne such expenditures in excess of this 
 his share, he can demand contribution from the others in the 
 same proportion. 
 
 Sch. C. § 304, 3. B. G. B. 748. 
 
 4. 
 
 Bearing of 
 Costs and 
 Charges. 
 
 650. 
 
 Each co-owner has the right to demand a dissolution of 
 the co-ownership, if it is not forbidden by some juridical act 
 or by the dedication of the thing to a permanent purpose. 
 
 The dissolution can be delayed at the most ten years by 
 a juridical act. 
 
 The dissolution may not be inopportunely demanded. 
 
 Sch. C. § 304, 4. B. G. B. 752, 757. 
 
 Dissolution. 
 Claim for a 
 Division. 
 
 651. 
 
 The dissolution is effected by a physical division, by a sale, 
 privately or at auction, with a division of the proceeds, or by 
 transfer of the whole thing to one or more of the co-owners 
 by purchase from the others. If the co-owners cannot agree 
 upon the method of dissolution, the thing will be divided physi- 
 cally by order of the judge, or if this is impossible without a 
 material depreciation of its value, it shall be sold at auction 
 publicly or among the co-owners. 
 
 b. Method of 
 Division. 
 
154 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 An adjustment of the shares in money can be joined to the 
 physical division by way of owelty. 
 See last note. 
 
 II 
 
 Joint 
 
 Ownership. 
 1. Prefatory. 
 
 652. 
 
 If several persons own a thing by virtue of their community, 
 such persons being bound together into a community by pre- 
 script of law or contract, they are joint owners and the right 
 of each one pertains to the whole thing. 
 
 Sch. C. § 30. 
 
 653. 
 
 2. Effect. The rights and duties of the joint owners are determined 
 
 by the rules under which their legal or contractual community 
 stands. If there is no other prescript, the exercise of owner- 
 ship, and in particular the control over the thing, requires the 
 unanimous action of all joint owners. 
 
 So long as the community lasts, a right to a division or the 
 control over a part thereof is barred. 
 V. last note. 
 
 3. Dissolu- 
 tion. 
 
 654. 
 
 Dissolution is effected by the alienation of the thing or the 
 termination of the community. 
 
 The division is made according to the provisions in regard 
 to co-ownership, when it is not otherwise stipulated. 
 
TITLE XIX.] 
 
 OWNERSHIP OF LAND 
 
 155 
 
 NINETEENTH TITLE — OWNERSHIP OF LAND. 
 
 FIRST SECTION — SUBJECT, ACQUISITION 
 LOSS OF OWNERSHIP IN LAND. 
 
 AND 
 
 655. 
 Pieces of land are subject to realty ownership. 
 Pieces of land in the sense of this law are, — (1) immov- 
 ables'; (2) the independent and permanent rights contained 
 in the Land Register ^ ; (3) mines.' 
 1 V. Sch. C. § 323. 
 ■^v. Sch. C. §348. 
 'v. Sch. C. §350. 
 
 A. Subject. 
 
 656. 
 
 The entry thereof in the Land Register is necessary to the 
 acquisition of ownership in land. 
 
 In case of occupation, inheritance, expropriation, execution, 
 or judicial order, the {erwerber) new owner acquires the owner- 
 ership therein even before an entry made, but he can make 
 disposition of the piece of land in the Land Register only 
 after such an entry has been made. 
 
 This section adopts for the entire republic the German law, previously 
 in force in certain of the cantons only. On this subject, v. Sch. C. §§ 317 
 to 322. 
 
 B. Acquisition. 
 I. Entry. 
 
 657. 
 
 The contract for transfer of ownership requires the public H. Methods of 
 authentication to be binding. The disposition mortis causa ^ Transfer"" 
 and contract of marriage require the prescribed forms of the 
 law of inheritance and of marital property. 
 
 Sch. C. § 327. 
 
 658. 
 
 The appropriation of a piece of land, registered in the Land 2. Appropria 
 Register, can only occur if it is without an owner according 
 
156 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 to such registry. The appropriation of land that is not taken 
 up according to such registry stands under the regulations as 
 to ownerless things. 
 V. Sch. C. § 331. 
 
 Formation 
 of New 
 Land. 
 
 659. 
 
 If land fit for tilling arises through alluvium, discharge upon, 
 slipping of land, changes in the course or channel of public 
 water, or otherwise, out of ownerless land, it belongs to the 
 canton in whose domain it lies. The cantons are free to cede 
 such land to the abutting owners. If any one can prove that 
 the soil was torn away from his property, he can reclaim it 
 within a reasonable time. 
 
 V. Sch. C. § 331, Intr. Law § 65. 
 
 4. Shifting 
 Land. 
 
 660. 
 
 of Shiftings of soil from one piece of land to another work no 
 change of the boundaries. The soil and other objects thereby 
 transferred from one piece of land to another are subject 
 to the regulations as to attached things or conjunctions of 
 things. 
 
 5. Prescrip- 
 tion. 
 
 a. Ordinary 
 Prescrip- 
 tion. 
 
 661. 
 
 If anyone has been unjustifiedly entered in the Land 
 Register as an owner, his ownership can no longer be con- 
 tested after he has possessed the piece of ground in good faith 
 for ten years, uninterruptedly and uncontestedly. 
 
 V. next note. 
 
 Extraordi- 
 nary Pre- 
 scription. 
 
 662. 
 
 If anyone is in possession of a piece of ground, as his prop- 
 erty, uninterruptedly and uncontestedly for thirty years, the 
 piece not being entered in the Land Register, he can demand 
 that he be entered therein as owner. Under like conditions 
 this right belongs to the possessor of a piece of land whose 
 owner cannot be ascertained from the registry or may be 
 declared dead or disappeared upon the beginning of the 
 prescriptive period of thirty years. The entry may, however. 
 
TITLE XIX.] 
 
 OWNERSHIP OF LAND 
 
 157 
 
 be made only upon judicial order, after no objection has been 
 raised within a time set by official declaration, or any objection 
 raised has been overruled. 
 
 C. Sch. § 330. Ger. Code Civ. Proc. 977 to 981. B. G. B. 927. 
 
 663. 
 
 For the coniputation of the time of limitations, the inter- c. Limitations, 
 ruption or ceasing of the adverse possession, the regulations 
 as to outlawing of claims correspondingly apply. 
 
 664. 
 
 Ownerless and public things are subject to the sovereignty 
 of the state in whose domain they are found. In the public 
 waters, as well as land, not fit for cultivation, as cliffs and 
 debris, snow and ice and glaciers, and springs issuing there- 
 from, no private ownership exists, subject to proof otherwise. 
 
 The cantonal law fixes the necessary regulations as to the 
 appropriation of ownerless land, the enjoyment and common 
 use of the public things, such as streets and squares, waters 
 and river beds. 
 
 b. Ownerless 
 and Public 
 Things. 
 
 665. 
 
 The ground of acquisition gives the new owner a personal HL Right of 
 claina against the occupant for entry and upon his refusal 
 the right to a judicial determination of the ownership. 
 In case of appropriation, succession, disappropriation, execu- 
 tion, or judicial order, the new owner can himself cause the 
 entry to be made. 
 
 Changes in ownership of real estate, caused by marital 
 property law, shall, after the publication of the entry in the 
 marital registry, be entered in the Land Register. 
 
 This conforms in principle with the German law, under which all owner- 
 ship of land must be registered in the land register {Grundbuch) . The 
 German legislation on this subject is largely contained in the Land Regis- 
 try Act {Grundhuchordnung) of March 24, 1897. 
 
 666. 
 
 Ownership in land ceases with the cancellation of the entry C. Loss, 
 as if with the complete obliteration of the piece of ground. 
 
158 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 The point of time at which the loss arises in case of expro- 
 priation is fixed by the law of expropriation of the federal 
 state and cantons. 
 
 This also conforms with German law. 
 
 SECOND SECTION — DEFINITION AND LIMITATIONS OF 
 OWNERSHIP OF LAND. 
 
 A. 
 I. 
 
 Definition. 
 Scope. 
 
 II 
 
 Definition 
 of Bound- 
 aries. 
 1. Method. 
 
 Duty to 
 Mark out 
 Boundaries 
 
 667. 
 
 Ownership in land and soil reaches above and underneath 
 into the air and the earth so far as the exercise of the owner- 
 ship requires. 
 
 It embraces all buildings and plants as well as springs, sub- 
 ject to the legal restrictions. 
 
 This modifies somewhat the English law doctrine, which does not limit 
 the right of ownership, either above or below the surface; it conforms with 
 German law. v. Sch. C. § 324. B. G. B. 905. 
 
 668. 
 
 The boundaries shall be set forth upon the land registry 
 surveys and in the metes and bounds of the piece of land. 
 If the survey in the Land Register and the metes and bounds 
 contradict one another, the correctriess of the survey shall 
 be presumed. 
 
 Prior to the adoption of this code, there were three systems of land trans- 
 fer in Switzerland; the German judicial registry of title, the French notarial 
 law, and in some cantons transfer was, by the deed of the vendor, registered 
 according to a method somewhat similar to the registry of deeds in York 
 and Middlesex, England. 
 
 V. Sch. C. 5 321. B. G. B. 894 to 897. 
 
 This section adopts the German system of judicial registry of land title 
 based on an official survey, of which the plans or maps show each lot of 
 ground separately owned, each lot being also numbered and referring by 
 such number to a separate registry of the title transfers and of liens, etc. 
 of each lot. 
 
 669. 
 
 Every owner of land is obliged, upon demand of his neigh- 
 bor, to co-operate in fixing an uncertain boundary, whether 
 it be to correct the Land Register's survey, or to lay out 
 boundary marks. 
 
TITLE XIX.] 
 
 OWNERSHIP OF LAND 
 
 159 
 
 670. 
 
 If there exist monuments of boundaries between two pieces 3. Co-owner 
 
 of real estate, such as walls, hedges, or fences, upon a bound- 
 ary line, co-ownership therein is presumed in favor of both 
 neighbors. 
 
 V. Sch. C. I 326, 6. B. G. B. 921, 922. 
 
 ship in 
 
 Boundary 
 
 Markers. 
 
 671. 
 
 If anyone uses in a building on his own ground material m. 
 not his own, or his own material on ground not his own, it 
 becomes a component part of the land. 
 
 The owner of the material is, however, if it has been used 
 without his consent, entitled to demand the severance of the 
 material and its return at the cost of the owner of the land 
 provided this is possible without unreasonable damage. 
 
 Under like conditions the owner of the land, if the use of 
 it has been without his consent, can demand the removal 
 of the material at the cost of the builder. 
 
 Buildings 
 
 upon Land. 
 
 Soil and 
 
 Building 
 
 Material. 
 
 Property 
 
 Relation. 
 
 672. 
 
 If no severance of the material from the land is made, the 
 owner of the land shall furnish a proper compensation there- 
 for. In case of bad faith in the building landowner, the judge 
 can grant full compensation in damages. In case of bad faith 
 in the owner of the building material, he can claim only what 
 the building may be worth at the least, to the owner of the 
 land. 
 
 As to overlapping buildings, v. Sch. C. § 326, 4. B. G. B. 912 to 915, 916- 
 
 b. Compensa- 
 tion. 
 
 673. 
 
 If the value of the building clearly exceeds the value of the 
 land, he who has acted in good faith can demand that the 
 ownership in building and land shall be granted to the owner 
 of the materials conditioned upon proper compensation to 
 the land owner. 
 
 c. Transfer of 
 the Owner- 
 ship in the 
 Land. 
 
 674. 
 
 Buildings and other constructions, which extend from one 2. Buildings 
 piece of land over upon another, remain part of that piece, Over" '"^ 
 
160 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 from which it proceeds, if its owner has a real right to its so 
 standing. The right to the extension can be entered upon 
 the Land Register as a servitude. If such extension is with- 
 out right, and the aggrieved party does not raise an objection 
 promptly, although this has come to his notice — provided 
 the circumsta.nces justify it — the one building over can be 
 granted the real right to the extension or property in the soil, 
 upon proper compensation made, provided likewise he has 
 acted in good faith. 
 V. note to § 672. 
 
 3. Right to 
 Build. 
 
 675. 
 
 Buildings and other constructions, put or built upon a 
 stranger's land, or otherwise permanently joined to land or 
 underneath the soil, can have a special owner, if their relation 
 as a servitude is entered in the Land Register. The disposition 
 of a right to build in special parts of a building is barred. 
 
 Servitudes or easements were not in the older forms of German registry 
 of land title entered on the register. They are now, and this section con- 
 forms on this point with modern German legislation. 
 
 676. 
 
 [ 4. Conduits. Conduits for water, gas, electrical power, and the like, which 
 
 may be placed outside of a piece of land which they serve, 
 shall be considered to be appurtenant of the works from 
 which they proceed, and the property of the owner thereof, 
 unless otherwise agreed. 
 
 In so far as the neighbor's right does not apply, the real 
 burdening of the land of others by such conduits is effected 
 by the erection of a servitude. The servitude arises, if the 
 conduit is not outwardly visible, upon the entry in the Land 
 Register, and in other cases upon the construction of the 
 conduit. 
 
 677. 
 
 5. Movable Huts, booths, barracks, and the like, retain their special 
 
 Buildings, owner, if they have been erected on strange land without an 
 intention of permanent connection. Their description is not 
 to be entered in the Land Register. 
 
TITLE XIX.] 
 
 OWNERSHIP OF LAND 
 
 161 
 
 678. 
 
 If anyone introduces strange plants upon his own land, VI. Plantings 
 
 or his own plants upon strange land , the same rights and duties i'P° j *^^ 
 
 . r r 1 .. .. Land, 
 
 arise as m the case of use of building materials or movable 
 
 buildings. 
 
 The disposition of a servitude corresponding to the right 
 to build does not lie in case of plants or woods. 
 
 V. Sch. C. § 323, note 2. B. G. B. 907. 
 
 679. 
 
 If anyone is injured by a land owner's exceeding his right V. Responsi- 
 of property, or is threatened with an injury, he can bring an Landown r 
 action to remove the source of injury, or to be secured against 
 an impending injury, or for compensation. 
 V. Sch. C. 1 323. B. G. B. 907, but see B. G. B. 904. 
 
 680. 
 
 The legal restrictions upon ownership stand without entry B. 
 in the Land Register. Their termination or alteration by j 
 juridical act require for their validity the public authentication 
 thereof and the entry in the Land Register. 
 
 The termination or alteration of property restrictions of 
 a public character is forbidden. 
 
 681. 
 
 If a right of pre-emption has been noted in the Land H- 
 Register, it holds during the time fixed in the notation over 
 against every owner, upon the specified conditions, or, failing 1. 
 such, upon the conditions under which the land was sold to the ^ 
 respondent. The vendor must give notice to one having the 
 right of pre-emption of an intended sale. The right of pre- 
 emption is barred with the lapse of one month after the one 
 entitled thereto has received notice of the sale, and in every 
 case with the lapse of ten years after the notation thereof. 
 V. Sch. C. § 198, B. B. G. B. 1094, 1097, 1098. 
 
 Restric- 
 tions. 
 In General. 
 
 Restric- 
 tions upon 
 Alienation. 
 Pre-emp- 
 tion. 
 
 By Reason 
 of a. Nota- 
 tion. 
 
 682. 
 
 Co-owners have a right of pre-emption, as against one, not 
 a co-owner, who has acquired a share therein. 
 German law seems contra, v. Sch. C. § 198, note 1. B. G. B. 1095. 
 
 6. Among 
 Co-owners. 
 
162 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 Right to 
 Buy and 
 Right to 
 Buy Back. 
 
 6S3. 
 
 If a right to buy or a right to buy back is noted in the Land 
 Register, it holds during the time fixed of record, as against 
 each owner. These rights are barred in any case with the 
 lapse of ten years from the date of notation thereof. 
 
 V. Sch. C. § 195, which, however, seems to be limited to personal or 
 ■'movable'' property. 
 
 III. Right of a 
 Neighbor. 
 1. Way of 
 Using the 
 Property. 
 
 6S4. 
 
 Everyone is obliged, in the use of his property, as, for 
 example, in the pursuit of a trade upon his land, to refrain 
 from all encroachments upon the property of his neighbors. 
 
 Forbidden especially are every injurious, and, according to 
 place and quality of the land, or according to local custom, 
 unjustifiable encroachment by smoke, soot, heavy dusts, noise 
 or vibrations. 
 
 V. Sch. C. I 323. B. G. B. 904, 906. 
 
 2. Digging 
 
 and 
 
 Building. 
 a. Rule. 
 
 685. 
 
 In case of excavations and buildings the owner may not 
 thereby do damage to abutting lands, so that he causes their 
 soil to move or endanger or damage existing improvements. 
 
 The regulations concerning overreaching buildings apply 
 to buildings which offend against the precepts of the law 
 of neighbors. 
 
 V. Sch. C. § 326. B. G. B. 909. As to overlapping buildings, Sch. 
 C. § 326, 4. B. G. B. 912 to 915. 
 
 Cantonal 
 Regula- 
 tions. 
 
 686. 
 
 The cantons may determine the distances to be observed 
 in case of excavations and buildings. 
 
 It is reserved to them to enact further building regulations. 
 
 3. Planting, 
 o. Rule. 
 
 687. 
 
 Overreaching limbs and over-extending roots can, if they 
 
 damage his property, and upon his complaint are not removed 
 
 within a reasonable time, be chopped off by a neighbor and 
 
 retained by him. If an owner of land submits to such over- 
 
TITLE XIX.] 
 
 OWNERSHIP OF LAND 
 
 163 
 
 reaching of limbs upon land used for agricultural or building 
 purposes, he has the right to all fruits (Anriss) growing 
 thereon. 
 
 These regulations do not apply to timber lands bordering 
 on one another. 
 
 V. Sch. C. § 326, 2. B. G. B. 910, 911. 
 
 688. 
 The cantons may prescribe certain distances from an adjoin- 
 ing land for plantings, according to the kind of land and 
 plants, or oblige the landowner to allow the extending over of 
 boughs or roots of fruit trees and in such cases regulate or 
 abrogate the right to the fruits. 
 
 This also agrees with German law. The general rule of the B. G. B. may 
 be modified by state legislation, v. Intr. L. 122, 124. 
 
 Cantonal 
 Regula- 
 tions. 
 
 689. 
 
 Every owner is obliged to receive the waters that naturally 
 flow from the higher land, as, for example, rain water, melted 
 snow, and water from springs that are not caught. No one 
 may change the natural drainage to his neighbor's injury. 
 
 The water flow necessary for the lower land can be with- 
 drawn from it only so far as it is indispensable for the higher 
 land. 
 
 Surface 
 Waters. 
 
 690. 
 
 In case of surface drainage, the owner of the lower lying 
 land must receive without compensation the water which has 
 flowed upon his land in a natural way. If he is damaged 
 by the drainage, he can demand that the higher landowner 
 at his own cost shall extend the drain through the lower land. 
 
 Surface 
 Drainage. 
 
 691. 
 
 Every landowner is bound to allow the drainage across his 
 land of springs, drain pipes, gas pipes, and the like, as well 
 as electrical conduits, over or underground, full compensation 
 being given him for the damage done thereby, provided the 
 conduit cannot be laid without the use of his land or at 
 unreasonable cost. 
 
 6. Through 
 Drainage. 
 
 a. Duty to 
 Allow It. 
 
164 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 The right to drain across by reason of the right of neigh- 
 borhood cannot be claimed in those ca^es, in which the 
 cantonal or federal law has prescribed a way of appropriation. 
 
 Such through drainage, if the one entitled thereto demands 
 it, shall be entered at his cost in the Land Register. 
 
 This section introduces a law as among adjoining and neighboring owners 
 entirely unknown to English law, and also until very lately in the B. G. B. 
 Since the introduction of irrigation, the question has become one of ex- 
 treme importance in several of the Western states, the courts taking 
 diverse views on the point. 
 
 692. 
 
 b. Preserva- The servient landowner may require that due regard be 
 Intere°sts*ol had to his interests. 
 
 the Bur- Where extraordinary circumstances justify it, he can, in case 
 
 dened One. ^f surface conduits, demand that the land upon which they 
 
 may have been laid shall be purchased from him to a fair 
 
 extent at full price. 
 
 Change of 
 Circum- 
 stances. 
 
 693. 
 
 If circumstances change, the servient owner can demand a 
 change of course of the conduit to correspond to his interests. 
 
 The cost of the change must, as a rule, be borne by the 
 dominant owner. 
 
 Where special circumstances justify it, a reasonable part 
 of the costs may be laid upon the servient owner. 
 
 7. Right of 
 
 Way. 
 a. Way of 
 
 Necessity. 
 
 694. 
 
 If a landowner has no sufficient way from his land to the 
 public highway, he can demand that his neighbors shall allow 
 him a way of necessity upon full compensation therefor. 
 This right directs itself in the first instance against the neigh- 
 bor, to whom the occasion of a way of nepessity can earliest 
 be imputed on account of former property conditions and 
 rights of way, and then against him for whom the way of 
 necessity is least harmful. In establishing the way of neces- 
 sity, consideration must be given the interests of both parties, 
 v. Sch. C. § 355. B. G. B. 1018 to 1020. 
 
TITLE XIX.] OWNERSHIP OF LAND 165 
 
 695. 
 
 It is reserved to the cantons to enact detailed regulations b. Other 
 as to encroachment upon adjacent land permitted the land- ^f ^*^ °^ 
 owner, for the purpose of development or making improve- 
 ments and buildings, as well as in respect to the right of 
 ingress or egress, to establish a water way, a winter way, 
 plow way, right to wood, and the like. 
 
 696. 
 
 Rights of way, established directly by law, stand in law b. Recording, 
 without entry. They are, however, to be entered upon the 
 Land Register if they are of a permanent nature. 
 
 697. 
 
 The expense of enclosure of a piece of land shall be borne 8. Enclosure. 
 by its owner, subject to the regulations in respect to co- 
 ownership in boundary marks. 
 
 The cantonal law remains untouched as far as the duty 
 and manner of enclosure is concerned. 
 
 698. 
 
 The landowners shall contribute according to their interests 9. Duty to 
 to the cost of measures taken in the exercise of the rights of 
 adjourning and neighboring owners. 
 
 Maintain. 
 
 699. 
 
 The right to enter woods and pasture ground, and the pick- VI. Right of 
 ing of wild-growing berries, mushrooms, and the like, are free Defense^" 
 to everyone according to local custom, in so far as the proper 1. Entry, 
 officials have not issued special definitely defined prohibitions, 
 in the interest of their culture. 
 
 The cantonal law can make special regulations in regard to 
 the use of lands in the pursuit of hunting or fishing by others 
 than the owners. 
 
 700. 
 
 If things are brought by water, wind, avalanche, or other ^- ^^P°^^' °f 
 natural force or chance occurrence, upon strange land, or if Deposited 
 animals, such as large and small cattle, swarms of bees, birds ^^ ^^^ 
 
166 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 and fish come upon strange soil, the owner of that land must 
 allow the owner of such things or animals access to his land 
 and allow him to take them away. 
 
 He can demand compensation for any damage arising there- 
 by and has a right of lien on such things therefor. 
 
 This exact point does not seem to be specifically regulated in the Ger- 
 man law, but the principle is clearly laid down in Sch. C. § 313, B. G. B. 
 856. 
 
 3. Protection 
 against 
 Danger or 
 Damage. 
 
 701. 
 
 If anyone can ward off from himself or others a threatening 
 damage or an impending danger only by encroaching upon 
 the land of a third person, then he is bound to allow such 
 encroachment so long as the danger or damage are much 
 greater than the impairment caused by the encroachment. 
 Proper compensation must be made for the damage caused 
 thereby. 
 V. Sch. C. § 86. B. G. B. 227, 2^8. 
 
 V. Public 
 Law's 
 Restric- 
 tions. 
 
 1. In General. 
 
 702. 
 
 It is reserved to the federation, the cantons and the com- 
 munes to establish limitations upon land ownership in the 
 interest of the common weal, e.g., in respect to the building—, 
 fire—, and health-police, the condition of forests and roads, lanes 
 (Reckweg), erection of boundary marks and marks of measure- 
 ment, improvements of the soil, the parceling of land, the 
 laying together of fields and of building grounds, the preser- 
 vation of antiquities and natural landmarks, the protection of 
 the landscape and points of outlook from deterioration, and 
 the protection of mineral springs. 
 
 2. Soil Im- 
 provements. 
 
 703. 
 
 If soil improvements, as erection of dikes, drainage, refores- 
 tation, building roads, joining together of wooded and 
 agricultural properties and the like, can be effected only by a 
 joint undertaking and two-thirds of the landowners concerned, 
 who likewise own more than half the soil concerned, have 
 given their consent to the undertaking, then the other 'land- 
 owners are bound to contribute. 
 
TITLE XIX.] 
 
 OWNERSHIP OF LAND 
 
 167 
 
 The cantons can regulate the procedure. The cantonal 
 legislation can still further encourage the carrying out of such 
 soil improvements and prescribe corresponding regulations for 
 building ground. 
 
 704. 
 
 Springs are a part of the land, and can be acquired as prop- 
 erty only along with the soil from which they spring. The 
 right to springs on the land of another can be acquired by 
 entering it as a servitude in the Land Register. 
 
 Subterranean waters are on the same footing with springs. 
 
 705. 
 
 The diversion of springs can be allowed, restricted or for- II. Diversion of 
 bidden by cantonal law, for the general good. pnngs. 
 
 If contentions between cantons arise thereout, the Federal 
 Council shall finally decide them. 
 
 Rights to 
 Springs 
 and Wells. 
 Ownership 
 and Right 
 in Springs. 
 
 Digging 
 away of 
 Springs. 
 Compensa- 
 tion. 
 
 706. 
 
 If springs and wells, which are used to a considerable extent HI- 
 or have been walled in for the purpose of their use, are dug 
 away, damaged, or made filthy by buildings, improvements or 1- 
 measures of any kind, to the disadvantage of the owner or 
 the one entitled to their use, he can demand compensation 
 therefor. If the damage is neither intentional nor negligent, 
 or the aggrieved party is himself at fault, the judge shall act 
 upon his own judgment as to what extent and how compen- 
 sation is to be given. 
 
 707. 
 
 If springs and wells, which are indispensable for the culti- 2. Restoring, 
 vation of, or the dwelling upon, a piece of land, are drained by 
 digging, or made foul, the restoration of the former condition, 
 in so far as it is at all possible, can be demanded. 
 
 In other cases this restoration can be demanded only where 
 special circumstances justify it. 
 
 708. 
 
 If adjoining springs, as outlet of a common water shed, ''V- ^°^|j ^f 
 form a group of springs of different owners, each owner can Springs. 
 demand that they shall be considered to be in common and shall 
 be brought to those entitled thereto in their usual volume. 
 
168 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 V. Use of 
 Springs. 
 
 VI. Wells of 
 Necessity. 
 
 VII. 
 1. 
 
 Duty of 
 Cession. 
 Of Water, 
 
 The expense of the common undertaking shall be borne by 
 those entitled thereto in proportion to their interests. 
 
 If any one of them objects, each one of them is entitled to 
 a reasonable walling in and drainage from his spring, even if 
 the strength of the other springs is thereby impaired, and must 
 furnish compensation therefor only in so far as his spring has 
 been increased by the new arrangements. 
 
 This permits the confinement of subterranean waters — sources of neigh- 
 boring springs — and the piping of them to the owners of the springs. No 
 one can block this arrangement by refusing his consent. Each one is 
 entitled to what was his natural supply before such undertaking. 
 
 709. 
 
 It is reserved to the cantons to regulate to what degree 
 springs, wells and brooks upon private property may be used, 
 also by the neighbors and other persons for household water, 
 watering cattle or the like. 
 
 710. 
 
 If a piece of land is deprived of the water necessary for the 
 house and yard, and this cannot be obtained without quite 
 unreasonable difficulty and expense from other sources, the 
 owner of such land can demand from a neighbor, who can give 
 him such supply without loss, that he shall allow him a share 
 of his well or spring supply upon full compensation therefor. 
 
 In fixing such a well of necessity, regard must in the first 
 place be given to the interest of the one to be burdened with 
 such a charge. 
 
 If conditions change, a change of the provision made can 
 be demanded. 
 
 711. 
 
 If springs, wells, or brooks are of no use to their owner, 
 or, in relation to their availability, of very little use, then 
 their owner can be required to yield them up against full 
 compensation for the purposes of drinking water plants, public 
 hydrants, or other purpose of the common weal. This com- 
 pensation can consist of a supply of water from the new 
 arrangement. 
 V. 710. 
 
TITLE XIX.] OWNERSHIP OF LAND 169 
 
 712. 
 
 Owners of arrangements for drinking water can demand 2. Of Land, 
 the cession of the surrounding land along the way of the 
 appropriation thereof, in so far as it is necessary for the 
 protection of their springs from contamination. 
 
 V. 710. 
 
170 THE LAW OF THINGS [PART IV, 
 
 TWENTIETH TITLE — MOVABLE PROPERTY. 
 
 713. 
 
 A. Subject. Subject to ownership as movables are those corporeal 
 
 things, movable by their nature, as well as the forces of 
 nature which can be brought under legal control and do not 
 belong to land. 
 
 V. Sch. C. §§ 72, 73, 74. 
 
 714. 
 
 B. Methods of Change of possession to the new owner is requisite in a 
 I. Transfln°"' transfer of ownership in movables. 
 
 1. Change of Whoever in good faith accepts the transfer of a movable 
 Possession, thing to him becomes its owner, even if the vendor has no 
 
 right of alienation therein, as soon, as according to the rules 
 of possession, his possession of the thing is protected. 
 
 V. Sch. C. §§ 311, 316. B. G. B. 854, 1006. 
 
 See for these rules arts. 933-936 of this code. 
 
 715. 
 
 2. Reserva- The reservation of ownership in a movable thing, trans- 
 0°" h' fcrred to the new owner, is effective only when it has been 
 
 o. In General, entered in a public register kept by the execution officials 
 at the then residence of such owner. 
 
 In the traffic in cattle, a reservation of ownership is not 
 allowed. 
 
 716. 
 
 b. In Case of Objects transferred with reservation of ownership can be 
 ' demanded back by the owner only upon condition that he 
 return the payments made by his transferee, with deduction 
 of a reasonable interest and compensation for use. 
 
 717. 
 
 3. Acquisition If in consequence of any special legal condition the thing 
 Possession, remains with the vendor, the transfer of ownership is ineffec- 
 
TITLE XX.] 
 
 MOVABLE PROPERTY 
 
 171 
 
 tive as against third persons, if their disadvantage or a vio- 
 lation of the provisions as to "fist" pledge (Faustpjand) is 
 contemplated. 
 
 The judge acts herein according to his judgment. 
 
 Sch. C. § 332. B. G. B. 929. 
 
 718. 
 
 An ownerless thing becomes the property of anyone who 1 1- Appropria- 
 
 takes possession of it with the intention of becoming its owner, j Ownerless 
 
 V. Sch. C. § 312, 3, § 340. B. G. B. 958, 959. Things. 
 
 719. 
 
 Captive animals become ownerless if they again attain their 
 freedom, and their owner does not at once and uninterruptedly 
 seek for them and is at pains to make them captive again. 
 
 Tamed animals become ownerless as soon as they again 
 attain a condition of wildness and no longer return to their 
 master. Swarms of bees do not become ownerless by going 
 upon strange land. 
 
 V. Sch. C. § 340, note 1. B. G. B. 960. As to ownership of bees, B. G. B. 
 961 to 964. 
 
 2. Animals 
 Becoming 
 Ownerless. 
 
 720. 
 
 Whoever finds a lost thing must notify the owner thereof, HI. Finds 
 
 and, if he does not know him, either give notice of the thing 
 found to the police or himself provide for a notification and 
 inquiry, proper under the circumstances. 
 
 He is bound to give notice to the police if the value of the 
 thing clearly exceeds ten francs. 
 
 Whoever finds a thing in an inhabited house, or in a place 
 serving the public use or traffic, must deliver it up to the 
 house owner, lessee, or the persons in charge thereof. 
 
 Sch. C. § 307. B. G. B. 965 to 977. 
 
 1. Notifica- 
 tion, 
 Inquiry. 
 
 721. 
 
 The thing found must be reasonably preserved. With the 2. Safekeeping 
 consent of the proper official, after a preliminary advertise- Sale. 
 ment, the thing may be sold at public auction, if its main- 
 
172 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 tenance is expensive, if it is perishable, or if the police or a 
 public place has kept it longer than a year. 
 
 The proceeds of the sale take the place of the thing. 
 
 V. note to § 720. 
 
 Acquisition 
 of Property. 
 — Return. 
 
 722. 
 
 Whoever has fulfilled his obligations as a finder acquires 
 ownership in the thing, if within five years after the notifi- 
 cation or notice to the police the owner cannot be found. 
 
 If the thing be returned, the finder has a claim for compen- 
 sation for all expenditures, as well. as for a reasonable reward. 
 
 If things are found in an inhabited house, or in a place 
 serving the public use or traffic, the owner, lessee, or the 
 establishment will be considered as the finder, but he can 
 claim no reward. 
 
 V. note to § 720. 
 
 4. Treasure 
 Trove. 
 
 723. 
 
 If an article of value is found, of which from the circum- 
 stances it can be safely assumed that it has been buried for 
 a long time, or concealed, and has no owner, it will be con- 
 sidered treasure trove. 
 
 If falls to the owner of the land or movable thing in which 
 it has been found, subject to the regulations in regard to 
 things of scientific value. 
 
 The finder has a claim for a reasonable reward which, 
 however, may not exceed the half of the value of the treasure 
 trove. 
 
 Sch. C. § 341. B. G. B. 984. 
 
 724. 
 
 5. Scientific If ownerless natural objects or antiquities of considerable 
 
 Articles. scientific value are found, they become the property of the 
 canton in whose territory they have been found. 
 
 The owner on whose land such articles have been found is 
 bound to allow their excavation upon security for any damage 
 thereby caused. 
 
TITLE XX.] MOVABLE PROPERTY 173 
 
 The finder, and, in case of treasure trove, the owner also, 
 have claims for reasonable compensation not in excess, how- 
 ever, of the value of the article. 
 
 V. note to § 723. 
 
 725. 
 
 If movable things are brought to anyone by floods, winds, IV. Accession, 
 avalanches, or other force of nature, or chance occurrences, 
 or if stray animals happen into his keeping, he has the rights 
 and duties of a finder.' 
 
 If a swarm of bees flies into an occupied apiary of another, 
 it belongs to the owner of the apiary without any duty to 
 compensate.^ 
 
 • This provision does not occur in the German Civil Code, which seems to 
 make no such distinction as to how things may be lost, the duty of the 
 finder depending not on how he finds it, but the taking of the thing found 
 into possession. Sch. C. § 307. 
 
 -^ As to bees, B. G. B. 961 to 964. 
 
 726. 
 
 If anyone works up a thing not his own, or transforms it, V. Working up. 
 the new thing belongs to him, if the work is more valuable 
 than the material ; otherwise it belongs to the owner of the 
 original material. But if the workman has not acted in good 
 faith, the judge may, even if the work is more valuable than 
 the object, adjudge the new thing to the owner. 
 
 Claims for recompense for damages, or for unjust enrich- 
 ment, remain reserved. 
 
 V. Sch. C. § 338. B. G. B. 950. 
 
 727. 
 
 If movable things of different owners become so mixed VI. J°!"!"g o"" 
 or joined together that they cannot be separated without To'gether. 
 substantial damage or unreasonable labor and expense, then 
 there arises a co-ownership in the new thing to all parties 
 interested, and that according to the value of the several parts 
 at the time of the joining. 
 
 If a movable thing is mixed or joined with another 
 thing in such a way that it appears to be an incidental part 
 
174 THE LAW OF THINGS [PART IV, 
 
 thereof, then the whole thing belongs to the owner of the 
 chief part. 
 
 Rights to compensation for damages or for unjust enrich- 
 ment are reserved. 
 
 V. Sch. C. § 335, 337. B. G. B. 946 to 951. 
 
 728. 
 VII. Prescrip- If anyone has had the possession of a movable thing not 
 his own uninterruptedly and uncontestedly during five 
 years in good faith as his property, he becomes owner by 
 prescription. 
 
 Involuntary loss of possession does not break the running 
 of the prescription, if the possessor within a year's time or 
 by means of a complaint laid during this time recovers the 
 thing. 
 
 In computing the period of time, the interruption and the 
 standstill of the prescription, the regulations as to the 
 limitation of claims correspondingly apply. 
 
 In the German law ten years. Sch. C. § 334. B. G. B. 937 to 945. 
 
 729. 
 
 C. Loss. The ownership in movables, despite the loss of possession, 
 
 ceases only when the owner gives up his right, or another in 
 succession has acquired the ownership. 
 Sch. C. § 332. B. G. B. 929. 
 
TITLE XXI.] 
 
 RESTRICTED RIGHTS 
 
 175 
 
 SECOND DIVISION.— RESTRICTED REAL RIGHTS. 
 
 TWENTY-FIRST TITLE. 
 
 FIRST SECTION— LAND SERVITUDES AND CHARGES ON LAND. 
 
 730. 
 
 A piece of ground can be burdened in favor of another A. Subject. 
 piece in such a way that its owner must submit to certain 
 encroachments by the owner of the other piece, or may not 
 exercise his right of ownership within certain limitations in 
 favor of this other owner. An obligation to perform acts 
 can be joined to the servitude only incidentally. 
 
 Sch. C. § 352, 355. B. G. B. 1018. 
 
 731. 
 
 An entry in the Land Register is requisite to the creation 
 of a servitude. 
 
 The regulations as to ownership of land control as to the 
 acquisition and entry thereof, in so far as it is not otherwise 
 ordered. 
 
 Prescription is only possible by way of a burden to lands, 
 in which property can be acquired by prescription. 
 
 V. Sch. C. § 353 and note 3. B. G. B. 900. Registry of servitudes is 
 among the latest evolutions of the German land law, which the Swiss law 
 has adopted by this section. 
 
 B 
 
 Creation 
 and Extin- 
 guishment. 
 
 I. Creation. 
 
 1. Entry. 
 
 732. 
 
 The valid contract creating a servitude must be in written 2. Contract, 
 form. 
 Sch. C. § 353. 
 
 733. 
 
 An owner may create a servitude upon his own land in 3. 
 favor of another piece of land belonging to him. 
 
 Creation to 
 One's Own 
 Detriment. 
 
176 
 
 THE LAW OF THINGS [PART IV, 
 
 734. 
 
 II. Extinguish- Every servitude terminates with the cancellation of the 
 ment. 
 
 1. In General, entry, as well as with the complete destruction of the servient 
 
 or the dominant tenement. 
 
 This simply applies the general rule as to all rights within the operation 
 of the Land Registry Laws. Sch. C. § 365. 
 
 735. 
 
 2. Merger. If the dominant tenant becomes the owner of the servient 
 
 tenement, he can extinguish the servitude. 
 
 So long as the servitude is not extinguished, it remains as 
 a real right. 
 
 V. Sch. C. I 365. B. G. B. 889. 
 
 736. 
 
 3. Extinguish- If a servitude has lost all value for the dominant tenement, 
 ment Judi- ^, . ^ ,,..., 
 
 cially. the servient tenant can demand its extinguishment. 
 
 If an interest of the dominant tenement still exists, but is 
 
 of disproportionately small consequence, compared to the 
 
 burden thereof, the servitude can be wholly or partially 
 
 extinguished upon compensation given. 
 
 No such legal ground for extinguishment seems to exist in German law, 
 but see Sch. C. § 355, 1. 
 
 737. 
 
 C. Content. The dominant tenant may do all that is necessary to retain 
 
 I. Scope. ^jjjj exercise the servitude. 
 
 1. In General. . ..... 
 
 He is bound, however, to exercise his right in the most 
 
 sparing manner possible. The servient tenant may do 
 nothing that hinders or impedes the exercise of the servitude. 
 V. Sch. C. § 355, 3. B. G. B. 1023. 
 
 738. 
 
 2. According In so far as the rights and duties clearly appear in the 
 
 " "^^ entry, this is controlling as to the extent of the servitude. 
 Within the entry the extent of the servitude can be shown 
 by its reason for acquisition or by the manner in which it has 
 been exercised for an extended time uncontestedly and in 
 good faith. 
 
TITLE XXL] 
 
 RESTRICTED RIGHTS 
 
 177 
 
 739. 
 
 If the necessities of the dominant tenement alter, an 3. In Case of 
 increased burden may not be imposed upon the servient Necesa^ 
 tenant. 
 
 4. By Can- 
 tonal Law 
 and Local 
 Custom. 
 
 Burden of 
 Mainte- 
 nance. 
 
 740. 
 
 The extent of rights of way, as footpath, paved road, 
 carriage way, plough way, winter way, wood way, further 
 rights to pasture, wood, water for cattle, or irrigation and 
 the like, shall be fixed, so far as they are not otherwise regu- 
 lated for the special case, by the cantonal law and local custom. 
 
 • 741. 
 
 If any contrivance belongs to the use of the servitude, the II. 
 dominant tenant must maintain it. If the contrivance serves 
 also the interests of the servient tenant, both tenants must 
 bear the burden of maintenance according to their interests. 
 
 V. Sch. C. § 355, 2. B. G. B. 1022. 
 
 742. 
 
 If only a portion of the land is used in the exercise of a III. Changes of 
 servitude, the owner can, if he proves an interest and assumes ^ Transfer, 
 the costs, demand the transfer to another, for the dominant 
 tenant, no less appropriate place. 
 
 He is entitled thereto even if the servitude has been entered 
 in the Land Register as against a certain place. 
 
 The regulations as to adjacent owners are likewise applied 
 to transfer of conduits. 
 
 V. Sch. C. § 355. B. G. B. 1023. 
 
 743. 
 
 If the dominant tenement be divided, the servitude as a 
 rule continues in favor of all the parts thereof. If the use 
 of the servitude, however, is limited to one part by the sur- 
 rounding conditions, the servient tenant can demand that it 
 be extinguished in respect to the other parts. The recorder 
 notifies the dominant tenant of the petition and executes 
 extinguishment if he raises no objection within a month's 
 time. 
 
 V. Sch. C. § 355, 5. B. G. B. 1025, 1026. 
 
 2. Division 
 thereof. 
 
 a. Of the 
 Dominant 
 Tenement. 
 
178 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 Of the Ser- 
 vient Tene- 
 ment. 
 
 744. 
 
 If the servient tenement be divided, the burden, as a rule, 
 continues upon all parts thereof. If, however, the servitude 
 does not rest upon any particular part, and according to the 
 circumstances cannot so rest, each owner of a portion not 
 burdened therewith may demand that it be extinguished as 
 to his land. 
 
 The recorder notifies the dominant tenant of the petition, 
 and executes the extinguishment if he raises no objection 
 within a month's time. 
 
 V. note to § 743. 
 
 SECOND SECTION — USUFRUCT AND OTHER SERVITUDES. 
 
 A. Usufruct. 
 I. Subject. 
 
 745. 
 
 The usufruct can be created in things movable, land, 
 rights, or a property. It gives the one entitled thereto, where 
 not otherwise ordered, the full enjoyment of the subject. 
 
 V. Sch. C. §§ 358, 359. B. G. B. 1030, 1068, 1069, 1085. 
 
 II. 
 1. 
 
 Creation. 
 In General. 
 
 746. 
 
 In case of things movable, or choses in action, the transfer 
 to the acquisitor is essential to create an usufruct; and in 
 the case of lands, the entry thereof in the land title registry. 
 The regulations as to ownership obtain, in so far as it is not 
 otherwise ordered, for the acquisition thereof in things mova- 
 ble and in lands, as well as for the entry thereof. 
 
 As to possession, v. Sch. C. § 360, 1. As to registry of the usufruct 
 of lands, this section simply reiterates the general rule of German law 
 as to right in immovable property. 
 
 2. By Pre- 
 script of 
 Law. 
 
 747. 
 
 The legal usufruct in lands exists as against third persons 
 who have knowledge of the right thereto, even without entry 
 in the Land Register. 
 
 By the entry it becomes effective as against everyone. 
 
TITLE XXI.] 
 
 RESTRICTED RIGHTS 
 
 179 
 
 748. 
 
 The usufruct ceases with the complete extinction of its 'H- Extinguish- 
 subject and likewise as to lands with the cancellation of the i Grounds, 
 entry when this was necessary to its existence. 
 
 Other grounds for extinction, as lapse of the term, release 
 or death of the one entitled thereto, give the owner in case of 
 lands only the right to a cancellation of the entry. 
 
 The legal usufruct ceases with the ending of the ground 
 therefor. 
 
 V. Sch. C. § 365, 6. B. G. B. 1061, 1068, 1090. 
 
 749. 
 
 The usufruct ends with the death of the one entitled thereto, 
 and for juristical persons with their dissolution, or at most 
 for one hundred years. 
 
 V. Sch. C. § 358. B. G. B. 1061. 
 
 2. Term. 
 
 750. 
 
 The owner is not under obligation to restore the thing 
 become extinct. 
 
 If he restores it, the usufruct is also revived. If indemnifi- 
 cation has been given for the thing become extinct, as in case 
 of appropriation and assurance, the usufruct continues in the 
 indemnification matter. 
 
 3. Indemnifi- 
 cation upon 
 Extin- 
 guishment. 
 
 751. 
 
 If the usufruct has ceased, the possessor must give back *• Re^storation. 
 the subject thereof to its owner. 
 V. Sch. C. § 361. 
 
 752. 
 
 The owner of the usufruct becomes liable for the destruction 
 and for the depreciation of the thing, in so far as he does not 
 prove that this loss has come without any neglect on his part. 
 Objects used up, whose consumption does not belong to the 
 use, must be compensated for. 
 
 He is not required to pay for the depreciation of objects 
 caused by the reasonable use of the thing. 
 
 V. Sch. C. § 360, 2. B. G. B. 1041, 1050. 
 
 b. Responsi- 
 bility. 
 
180 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 c. Expendi- 
 tures. 
 
 753. 
 
 If the owner of a usufruct has made outlays or undertaken 
 charges to which he was not bound, he can demand compen- 
 sation therefor upon the return, just as a bailee without hire. 
 Improvements made by him for which, however, the owner 
 will furnish no indemnification, he may take away, but he 
 must restore the original condition. 
 
 V. Sch. C. § 360, 5. B. G. B. 1078. 
 
 5. Lapse of 
 Claims for 
 Compensa- 
 tfon. 
 
 754. 
 
 Claims by an owner for compensation on account of changes 
 or depreciation of the thing, as well as claims of the owner of 
 the usufruct for compensation for outlays or taking away of 
 improvements, lapse after one year from the return of the 
 thing. 
 
 V. Sch. C. § 361, 5. B. G. B. 1057. 
 
 755. 
 
 The usufruct owner has the right to the possession, the use. 
 
 VI. Definition. 
 
 Usufruct ^"^d th^ enjoyment of the thing.* 
 
 Owner. He attends to its administration. In the exercise of this 
 
 ■ right he must act according to the rules of a careful* 
 management. 
 
 'Sch. C. § 360, 2. B. G. B. 1030, 1068, 1073. 
 
 ^Sch. C. §§ 360, 361. B. G. B. 1036, 1037, 1039, 1040, 1041. 
 
 [ 6. Natural 
 Fruits. 
 
 c. Interest. 
 
 756. 
 
 Natural fruits belong to the owner of the usufruct if they 
 have ripened during the time of his enjoyment thereof. 
 
 Whoever cultivates the field has for his outlay a claim 
 against him who takes the ripe fruit for reasonable compen- 
 sation, not; however, in excess of the worth of the ripe fruits. 
 
 Component parts, which are not periodical additions or 
 profits out of the thing, belong to the owner thereof. 
 
 V. notes to § 755. 
 
 757. 
 Interest on investments, subject to usufruct, and other 
 periodic returns, belong to the owner of the usufruct from the 
 
TITLE XXI.] 
 
 RESTRICTED RIGHTS 
 
 181 
 
 Transfera- 
 bility. 
 
 2. Right of the 
 Property 
 Owner. 
 
 a. Oversight. 
 
 6. Security. 
 
 day when his right begins up to the time when it ceases, 
 even if they do not fall due till later. 
 Sch. C. I 360, 2. 
 
 758. 
 
 The usufruct can, if it is not a matter of a strictly personal 
 right, be transferred in use to another. The property owner 
 may make his rights effective directly against such transferee. 
 
 In German law the right of usufruct cannot be assigned, but the usu- 
 fructuary may authorize another to exercise the right, v. Sch. C. | 361, 
 note 1. 
 
 759. 
 
 The owner of the property can make objection to every 
 illegal or unreasonable use of the thing. 
 V. Sch. C. § 362. B. G. B. 1053. 
 
 760. 
 
 The owner of the property may demand from the owner 
 of the usufruct security as soon as he can prove an impairment 
 of his rights. 
 
 Without this proof, and even before the transfer of the 
 thing, he can demand security if perishable things or securities 
 form the subject of the usufruct. 
 
 In case of securities, their deposit suffices for the giving 
 security. 
 
 V. Sch. C. 362, 2, 3. B. G. B. 1052, 1054. 
 
 761. 
 
 The claim for security does not lie against him who has 
 given the object to its owner subject to the usufruct. 
 
 In case of the legal usufruct the claim stands under the 
 special regulation of the legal relation. 
 
 762. 
 
 If the usufruct owner does not give security within a reason- d. Conse 
 able fixed time or does not discontinue illegal use of the thing 
 after protest from its owner, the judge shall take away from 
 him possession of the thing until further order, and appoint a 
 curatorship. 
 
 V. note to § 760. 
 
 Security in 
 Case of a 
 Donation 
 and Legal 
 Usufruct. 
 
 quences 
 not Fur- 
 nishing 
 Security. 
 
 of 
 
182 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 3. Duty to 
 Take 
 Inventory. 
 
 4. Burdens. 
 a. Care of the 
 Thing. 
 
 763. 
 
 The property owner and the usufruct owner have the right 
 at any time to demand that an inventory with public authen- 
 tication shall be taken of the articles, subject to the usufruct 
 at their joint cost. 
 
 Sch. C. § 359. B. G. B. 1067. 
 
 764. 
 
 The usufruct owner shall keep the subject in its condition 
 and himself undertake any improvements or renewals which 
 belong to its usual maintenance.^ 
 
 If important work or provisions are necessary for the pro- 
 tection of the subject, the usufruct owner must give notice 
 thereof to the owner and allow their execution. If the owner 
 does not lend any assistance, the usufruct owner may provide 
 therefor at the cost of the owner. ^ 
 
 'Sch. C. I 360, 2. B. G. B. 1041. 
 
 ■■'Sch. C. § 360, 3, 4. B. G. B. 1042, 1043, 1044. 
 
 765. 
 
 The usufruct owner bears the expenditures for the ordinary 
 maintenance and management of the thing, the interest for 
 the principal debts charged thereon, as well as the taxes and 
 imposts, in proportion to the length of his rights therein. If 
 the taxes and imposts are paid by the owner of the property, 
 the usufruct owner must refund the same to him in the same 
 proportion. The property owner bears all other charges, but 
 he may, in case the usufruct owner does not voluntarily upon 
 demand furnish the necessary moneys, attach the usufruc- 
 tuary objects. 
 
 V. notes to § 764. 
 
 766. 
 
 Duty to Pay If a property is subject to a usufruct, the owner of such 
 CaS^^T '" usufruct must pay the interest upon the debts against the 
 Usufruct in principal, but he can, where circumstances justify it, demand 
 any Prop- ^j^g^^ j^g ^^ freed from this obligation to pay interest by having 
 
 the debts paid out of the property and the usufruct restricted 
 
 to the balance, the property remaining. 
 V. notes to § 764. 
 
 b. Mainte- 
 nance and 
 Manage- 
 ment. 
 
TITLE XXI.] 
 
 RESTRICTED RIGHTS 
 
 183 
 
 767. 
 
 The usufruct owner must insure the subject thereof in favor d. Insurance, 
 of the property owner against fire and other perils, in so far 
 as this insurance is counted among the duties of careful man- 
 agement, according to the local conception. 
 
 The insurance premiums in this case must be paid by the 
 usufruct owner during the time of his usufruct, as well as 
 whenever a thing already insured falls into the usufruct. 
 
 V. notes to § 764. 
 
 768. 
 
 The owner of a usufruct in land must see to it that it is 
 not used beyond the usual measure in the manner of enjoying 
 the usufruct. So far as fruits are raised in excess of this 
 manner, they belong to the property owner. 
 
 769. 
 
 The owner of a usufruct may not undertake changes, in the 
 economical use of the land, that are of substantial disadvantage 
 to the property owner. 
 
 The thing itself may neither be transformed nor materially 
 altered by him. 
 
 Such new improvements, as quarries, marlpits, peat-diggings 
 and the like, are allowed him only after previous notice to 
 the property owner, and under the condition that the econom- 
 ical use of the land be not materially changed thereby. 
 
 Sch. C. § 362. B. G. B. 1053. 
 
 770. 
 
 If a woodland is the subject of the usufruct, the owner 
 thereof can claim its use only so far as an ordinary plan of 
 management justifies it. The owner of the property, as well 
 as that of the usufruct, can require the observance of a plan 
 of management which does not impair their rights. 
 
 If in consequence of a storm, fall of snow, fire, scourge of 
 insects or other reasons, a substantial excess of use occurrs, 
 it shall be gradually reduced or the plan of management be 
 fitted to the new conditions, but the money received for the 
 excessive use shall be capitalized, and shall serve as an adjust- 
 ment for the later reduction of the use. 
 
 V. B. G. B. 1038. 
 
 V. Special 
 Cases. 
 1. Land. 
 a. Fruits. 
 
 Economical 
 Use. 
 
 c. Woodland. 
 
184 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 d. Mir 
 
 Perishable 
 and 
 
 Appraised 
 Things. 
 
 3. Claims. 
 a. Definition. 
 
 6. Repay- 
 ments and 
 Reinvest- 
 ments. 
 
 771. 
 
 The regulations as to the usufruct in woodland shall corres- 
 pondingly apply to the usufruct in subjects whose use consists 
 in the winning of parts of the earth, as, for example, mines. 
 
 V. § 769, as to digging. As to mines, in the German law, minerals do 
 not generally belong to the surface owner as such ; but mining rights are 
 separately granted by the government, with a separate registry thereof. 
 
 V. Sch. C. § 350. B. G. B. 1038. 
 
 772. 
 
 The owner of the usufruct in perishable things acquires the 
 property therein, when not otherwise agreed, but becomes 
 liable for the value they had at the beginning of the usufruct. 
 
 If other movable things are transferred under an appraise- 
 ment, the owner of the usufruct therein, when not otherwise 
 agreed upon, can freely dispose of them, but becomes liable 
 for their value when he makes use of this right. Compensa- 
 tion can be made in subjects of like kind and value, in case 
 of agricultural arrangements, herds, storehouses and the like. 
 
 V. Sch. C. § 359. B. G. B. 1036, 1037, 1041. 
 
 773. 
 
 If a claim is object of an usufruct, the owner thereof can 
 collect its yield. 
 
 Notices to the debtor, as well as dispositions of securities, 
 must proceed from the creditor and from the usufruct owner. 
 Notices from the debtor must go to both. 
 
 The creditor and usufruct owner have, as against each other, 
 a right to compel consent to the measures required by a 
 careful administration in case of a danger to the claim. 
 Sch. C. § 360, 6. B. G. B. 1078, 1083. 
 
 774. 
 If the debtor is not authorized to make a repayment to 
 the creditor or the usufruct owner, he must either pay both 
 together or deposit it. 
 
 The subject of the performance, as, for example, the princi- 
 pal debt repaid, continues subject to the usufruct. The credi- 
 tor, as well as the usufruct owner, have aright to the safe and 
 interest-bearing reinvestment of the principal sums. 
 Sch. C. § 360, 1. B. G. B. 1076 to 1080. 
 
TITLE XXL] 
 
 RESTRICTED RIGHTS 
 
 185 
 
 Right to 
 Delivery. 
 
 B. Right of 
 
 Residence. 
 L In General. 
 
 775, 
 
 The owner of the usufruct has the right, within three months 
 after the beginning of his usufruct, to demand the deUvery of 
 the claims or valuable papers, subect to his right of usufruct. 
 
 If their delivery follows, he becomes liable to the former 
 creditor for the value thereof at the time of their delivery, 
 and must furnish security in that amount unless such be 
 waived. 
 
 The transfer follows, in case of no waiver, only after 
 security is given. 
 
 Sch. C. § 360, 1. B. G. B. 1036. But as to instruments payable to 
 bearer, B. G. B. 1081, 1082. 
 
 776. 
 
 The right of residence consists in the right to reside in a 
 building or in a part thereof. 
 
 It cannot be transferred or inherited. It is governed by 
 the same law as usufructs, in so far as the law does not other- 
 wise provide. 
 
 V. Sch. C. § 366. This right of residence, often reserved by the farmer 
 when, too old to work, he transfers his holding to a more active member 
 of his family, or devised by will for the benefit of the widow and minor 
 or unmarried children, is recognized and its exercise quite usual in Ger- 
 many. It is not, however, separately regulated in the B. G. B., but may 
 be the subject of state legislation. (Intr. Law § 96.) 
 
 777. 
 
 The right of residence is in general measured by the personal ii. 
 requirements of him entitled thereto. He may, if the right is 
 not expressly confined to his person, bring his immediate family 
 and servants into the residence. If a right of residence is 
 confined to a part of the house, he who is entitled thereto 
 may also use the arrangements intended for common use. 
 
 V. Sch. C. § 364. B. G. B. 1093. 
 
 778. 
 
 If an exclusive right of residence belongs to one entitled HI. Charges, 
 thereto, he bears all the charges for the usual maintenance. 
 If he has only a right to co-enjoyment, the expenses of main- 
 tenance fall upon the owner of the property. 
 
 On this point the German law seems contra, v. Sch. C. § 370. B. G. B- 
 1108. 
 
 Privileges 
 of Him 
 Entitled 
 Thereto. 
 
186 
 
 THE LAW OF THINGS 
 
 [PART IV. 
 
 C. Right to 
 Build. 
 
 D. 
 
 Right to 
 Springs. 
 
 Other 
 Servitudes. 
 
 779. 
 
 Land can be burdened with the servitude, so that the 
 grantee thereof receives the right to erect a construction, 
 upon or under the surface, or to support it thereon. This right 
 can be transferred or inherited unless otherwise agreed. If 
 the right to build is independent and permanent, it can be 
 entered as an immovable in the Land Register. 
 
 This resembles the "heritable building right" of the German law, as to 
 which V. Sch. C. § 349. B. G. B. 1012 to 1017. Law of Land Registry, § 7. 
 
 780. 
 
 The right to a spring on another's land burdens the land 
 in which it is with the servitude of drawing and carrying 
 away water therefrom. It can be transferred or inherited 
 unless otherwise agreed. If the said right is independent 
 and permanent, it can be entered as an immovable in the Land 
 Register. 
 
 781. 
 Servitudes of other kinds as to lajid can be created in favor 
 of any person or community, provided these can serve any 
 purpose for anyone in a particular respect, as for the holding 
 of target practice or for a road and footpath. They cannot 
 be transferred unless otherwise agreed, and their nature is 
 determined by the usual requirements of those entitled thereto. 
 Otherwise the law as to servitudes applies to them. 
 
 THIRD SECTION — CHARGES ON LAND. 
 
 782. 
 A. Subject. By a charge on land, the then owner of any land becomes 
 
 bound to a service to the claimant, for which service the 
 land only is liable. The owner of any other piece of land 
 may become the one entitled thereto. Subject to' a rent and 
 the charges of the public law on land, a charge on land can 
 have for its subject only a service, which springs from the 
 economical nature of the land charged therewith, or which is 
 fixed by the economical requirements of the land entitled 
 thereto. 
 V. Sch. C. § 366. B. G. B. 1105. 
 
TITLE XXI.J 
 
 RESTRICTED RIGHTS 
 
 187 
 
 Creation 
 and Ter- 
 mination. 
 Creation. 
 Entry and 
 Method of 
 Acquisition. 
 
 783. 
 
 A charge on land is created by entry in the Land Register. 
 
 Upon entering it, a fixed sum shall be charged as its total 
 value in coin of the land, and, in case of periodically recurring 
 services in default of any other stipulation, twenty times the 
 sum of the yearly service. 
 
 The regulations as to land ownership obtain as to the 
 acquisition and entry unless otherwise provided. 
 
 V. Scb. C. § 367. 
 
 784. 
 
 Public law charges on land require no entry in the Land 2. Charges on 
 Register unless otherwise provided. tlfg" Public 
 
 If the law gives the creditor only a claim for a charge on Law. 
 land, this charge arises only after entry thereof in the Land 
 Register. 
 
 For Pur- 
 poses of 
 Security. 
 
 785. 
 If a charge on land is created for the purpose of security 
 for a money claim, it comes under the regulations as to rent. 
 V. Sch. C. § 372 and note 2. 
 
 786. 
 
 A charge on land ends with the cancellation of the entry, H. Termina- 
 as well as with the complete destruction of the land charged ^ j^ General, 
 therewith. 
 
 From a waiver or discharge or other terminating grounds, 
 the one burdened therewith obtains a claim for cancellation 
 of the entry as against the one entitled thereto. 
 
 V. Sch. C. § 367. 
 
 787. 
 
 The one entitled thereto can demand the discharge by pay- 
 ment of the charge on land, according to arrangement and 
 further: (1) If the land charged is parceled out, and thereby 
 the right of the creditor is seriously impaired. (2) If the 
 property owner depreciates the value of the land and offers 
 no other securities as compensation therefor. (3) If the 
 debtor is three years in arrears as to the services. 
 
 This seems to apply to the charge, the German law of mortgage. Sch. 
 C. I 388 and citations. 
 
 2. Discharge. 
 a. By the 
 Creditor. 
 
188 
 
 THE LAW OF THINGS 
 
 [PART IV. 
 
 b. By the 
 Debtor. 
 
 788. 
 
 The debtor can demand the discharge according to agree- 
 ment and further: (1) If the agreement on which the charge 
 rests, has not been observed by the one entitled thereto. 
 (2) After thirty years' existence of the charge, and that, too, 
 even if a longer term or an irredeemable character be agreed 
 upon. 
 
 If the discharge follows upon an existence for thirty years, 
 a notice thereof must be given within the year in all cases. 
 This claim is barred if the charge on land is joined to an 
 irredeemable land servitude. 
 
 V. note to § 787. 
 
 789. 
 The discharge follows upon payment of the amount, entered 
 in the Land Register as the total value of the charge, 
 subject to the right of proof that the charge in reality had a 
 smaller value. 
 
 790. 
 
 The charge on land is not subject to prescription. The 
 single act of service is subject to prescription from the time 
 when it becomes the personal indebtedness of the owner 
 charged therewith. 
 
 791. 
 
 C. Meaning. The creditor of the charge on land has no personal claim 
 
 ' p'^Jj'^°^ "^^ upon the debtor, but a right only for satisfaction thereof 
 out of the value of the land charged. 
 
 The single act of service becomes, however, with the lapse 
 of three years from the time of its falling due, a personal 
 debt for which the land is no longer liable. 
 Sch. C. § 368. B. G. B. 1108 contra. 
 
 c. Considera- 
 tion for 
 Discharge. 
 
 1. Prescrip- 
 tion. 
 
 792. 
 
 II. Duty to If the land changes owners, the purchaser becomes at once 
 
 P*y- the debtor of the charge.^ If the land charged is parceled 
 
 out, the same consequences follow for the charge on land 
 as for the ground rent.^ 
 
 ' V. Sch. C. § 369. 
 
 ■' V. Sch. C. § 370. B. G. B. 1108, 1109. 
 
TITLE XXII.] THE LAND-PLEDGE 189 
 
 TWENTY-SECOND TITLE — THE LAND-PLEDGE. 
 
 FIRST SECTION — GENERAL PROVISIONS. 
 
 793. 
 
 The pledge of land is effected by, — (1) an entry of security A. Prefatory, 
 by way of nnortgage ; (2) a mortgage certificate of indebted- ^- Kinds, 
 ness; or (3) a ground rent.^ 
 
 Other kinds of land pledges cannot be effected. 
 
 ^ The code reduces the sixty odd forms of giving land as security for a 
 debt or as security for certain purposes, e.g., the wife's separate estate, 
 guaranty of credit, etc., to three forms. These are based upon the his- 
 torical development of legal and economical conditions, and are controlled 
 in this result by two considerations: — (1) The personal relations between 
 debtor and creditor with land as the subject of the security given for the 
 claim or indebtedness; and (2) The modern demand of commercial life 
 that land shall be fieely and readily transferable and its value be likewise 
 made a ready asset for the purposes of credit. Specifically: — 
 
 (1) Die Grundpfandverschreibung is "merely the entry upon the land title 
 register {Grundbuch), upon which no document or instrument is issued. 
 Material thereto is that the right to security depends upon the existence 
 of a claim, which is secured thereby. Formally it exists in the entry in 
 the public registers until its cancellation." 
 
 This form of pledge serves only the purpose of security. Only an excerpt 
 from the land title register, or a means of proof, is furnished the creditor. 
 
 (2) Der Schuldbrief is "the pledge of land as security for a personal debt, 
 upon which a document or instrument of pledge is issued, which gives the 
 creditor an assignable right in the land, given in pledge, while a personal 
 relation of indebtedness is connected therewith." It seeks to combine the 
 characteristics of the mortgage and ground rent, with the view of making 
 the instrument issued by the land title registrar more readily usable for 
 the purposes of commercial life, in that it is not only a mortgage in our 
 sense of the word but also a landed security of a definitely ascertained 
 value, safeguarded, too, by an official appraisement of the land, etc. 
 
 (3) Die Giili is a ground rent — "a charging the land with a creditor's 
 claim for interest and capital, without any personal claim against the 
 debtor and therefore with only a landed. security, fixed for the best part of 
 the land value. On the above statement of the origin and nature of the 
 Swiss law, it is evidently needless to attempt any exact reference to other 
 legal systems as to the pledging of land, as it differs from all of them. It 
 is most like the German, as it is included in the registry of land title. 
 
190 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 although even on this point there is a notable exception as to the claims 
 of laborers. For the purpose of a general comparison with Roman, Ger- 
 man and English law, v. Sch. C. §§ 371 to 391, and v. B. G. B. 1113 and 
 following. 
 
 II. 
 
 Form of the 
 
 Claim. 
 
 Amount. 
 
 794. 
 
 In creating a landed pledge, a definite sum for the claim 
 in lawful coin must be given in all cases. If the amount of 
 the claim is undetermined, a maximum amount shall be given 
 beyond which the land shall not be liable for any demands 
 of the creditor. 
 
 This last paragraph would apply especially to the first class of pledges — 
 where security is entered for the wife's separate estate, for credit extended 
 to another, etc. 
 
 795. 
 
 2. Interest. The interest obligation can be freely fixed by contract 
 
 within the limits prescribed against usury. 
 
 The cantonal laws can fix the maximum interest, allowable 
 on claims, for which land is pledged. 
 B. G. B. 246. Sch. C. § 376. B. G. B. 1119. 
 
 as a 
 
 ity. 
 
 796. 
 
 III. Land. A landed pledge can be created only upon lands entered 
 
 1- ^''^"I'^ili.'y in the Land Register.' 
 
 The cantons may permit under prescribed conditions, or 
 forbid the pledging of public land or soil of commons or 
 pastures which may belong to corporations, as well as the rights 
 of members thereof to use such. 
 
 ^ This regulation brings debts secured on land into harmony with the 
 registry system. 
 
 797. 
 
 Definite- In case of the creation of a landed pledge the land pledged 
 
 Q^®^- p J must be definitely specified. 
 
 of Land. Parts of a piece of land cannot be pledged so long as its 
 
 division has not been entered in the Land Register. 
 
 "Certainty" means definite entry on the proper land register. Sch. 
 
 C. I 375. B. G. B. 1114. 
 
TITLE bcxil.] 
 
 THE LAND-PLEDGE 
 
 191 
 
 798. 
 
 A right to a landed pledge for one debt can be created as 
 against several pieces of land , if they belong to the same owner 
 or are the property of jointly obligated debtors. ^ In all other 
 cases each parcel must be charged with a definite part of the 
 debt, when several parcels of land are pledged for the same 
 debt.** This charge is determined by the comparative worth 
 of the parcels, if not otherwise agreed upon. 
 
 ' Sch. C. § 378, 3. B. G. B. 1132. 
 
 ' In German law each parcel is charged with the entire debt, but it may 
 be apportioned by agreement, v. last note above. 
 
 b. Several Par- 
 cels of Land. 
 
 799. 
 
 The pledge of land is created by entry thereof in the Land B. Creation 
 Register, subject to the legal exceptions. ^"^ T?'^' 
 
 A contract to create a pledge of land requires for its validity I. Creation. 
 
 the public authentication. 1- Entry. 
 
 This accords with the general rule of German law. v. Sch. C. § 309. 
 As to pledge of lands, v. Sch. C. § 375 and citations. 
 
 800. 
 
 If a piece of land is owned in common, each owner can 2. Corn- 
 pledge his share therein. 0""'*^^. 
 
 If a piece of land is held by joint ownership, it can be 
 pledged jointly only and in the name of all its owners. 
 
 V. Sch. C. § 378. 
 
 801. 
 
 The pledge of land ceases with the cancellation of the entry, IL Termina- 
 as well as with the complete destruction of the land. The *'""■ 
 disappearance in consequence of appropriation comes under 
 the law of appropriation of the federal government and the 
 cantons. 
 
 802. 
 
 In case of estates being united under the co-operation or 
 sanction of public officials, the rights of landed pledges, which 
 fall upon the pieces of land brought together, are to be trans- 
 ferred in the same degree to the land granted for compensation. 
 
 in. Land 
 
 Pledges in 
 Case of 
 United 
 Estates. 
 1. Shifting of 
 the Rights 
 of Pledge. 
 
192 THE LAW OF THINGS [PART IV, 
 
 If one piece of land takes the place of several parcels, 
 pledged for different obligations, or of which not all are charged 
 therewith, the rights of pledge are laid upon the land in its 
 new dimension, with all possible preservation of their former 
 rank. 
 
 German legislation, which began with the' Prussian Edict of 1807, 
 abolished the ancient feudal services, and founded the peasant ownership of 
 agricultural land. These peasant holdings are generally quite small, and 
 where in the division of estates one person becomes the holder of several 
 small tracts, they may be lawfully joined into one, the displaced owners 
 receiving the tracts thus vacated with compensation for differences in value 
 of tracts and for other damage actually caused. Similar Swiss law is in- 
 dicated in this section. 
 
 803. 
 
 2- ^otice by The debtor may discharge by payment rights of pledge of ' 
 ' lands which are united in a mingling of estates at the time 
 of such joinder, provided three months' notice is given. 
 
 804. 
 
 3. Compen- If compensation for pledged lands be given, it is to be 
 
 Mtion in distributed among the creditors according to their priority or 
 in case of equal rank according to the amounts of their claims. 
 Such sums may not be paid out to the debtor without the 
 consent of the creditors, if they amount to more than the 
 twentieth part of the principal debts, or if the new land does 
 not offer sufficient security. 
 
 805. 
 
 C. Effect. The right in a landed pledge binds the land including all 
 
 ^ OW^^ t^ ^^^ ^^^ parts and appurtenances. 
 
 If in the pledging, things are expressly included as appurte- 
 nant and so entered in the Land Register, e.g., machinery 
 and hotel equipment, they are treated as appurtenant, so long 
 as it is not set forth that this quality cannot under some 
 legal provision belong to them. 
 
 Rights of third persons in appurtenances are reserved. 
 
 806. 
 
 II. House and If the land pledged is leased or rented, the obligation of 
 Rents *^^ pledge extends also to the claims for rent or returns 
 
TITLE XXII.) 
 
 THE LAND-PLEDGE 
 
 193 
 
 which accrue from the issuance of an attachment against the 
 land pledged, or from the beginning of bankruptcy proceed- 
 ings against a debtor up to its attachment. 
 
 This obligation is effective as against those liable for rent 
 only after notice is given them of the attachment or the 
 bankruptcy proceeding has been published. 
 
 Legal transactions of the owner of the land as to claims for 
 rent or returns not yet accrued, as well as the attachment 
 by other creditors, are not effective as against a pledgee of 
 the land, who may have instituted foreclosure proceedings 
 against pledge before the maturity of the claim for rent. 
 
 807. 
 
 Claims for which a pledge of land is registered are subject HI- Limitation, 
 to no limitation of time. 
 
 808. 
 
 If the property owner impairs the value of the pledged IV. 
 thing, the creditor may have him judicially forbidden any ^ 
 further damaging interference. 
 
 The creditor can be empowered by the court to take any 
 appropriate precautions, and can undertake such even without a. 
 such authority when danger is imminent. 
 
 He can demand compen,sation from the property owner 
 for the cost of such measures, and has for such cost a right 
 of lien on the land without entry in the Land Register, which 
 lien is prior to every lien of record. 
 
 809. 
 
 If an impairment of value has occurred, the creditors can 
 demand security for his rights from the debtor, or require the 
 restoration of the original conditions. If the peril of an impair- 
 ment of value threatens, he can demand security. 
 
 If the demand is not complied with within the judicially 
 appointed time, the creditor can claim a payment of the debt 
 to such amount as is necessary to put him in a secure position. 
 
 Rights to 
 Security. 
 Measures in 
 Case of Im- 
 pairment of 
 Values. 
 Prohibition 
 and Self- 
 help. 
 
 b. Security, 
 Restora- 
 tion, Pay- 
 ment. 
 
 810. 
 
 Impairments of value which have occurred through no fault ^- Innocent 
 . , ..... . impair- 
 
 of the property owner give the creditor a right to security mentsof 
 
 Value. 
 
194 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 or payment only in so far as the property owner is secured 
 against loss. The creditor can, however, take steps to remove 
 or prevent any impairment of value, and has for the cost 
 thereof a right of lien against the land without any claim 
 against the owner and without entry in the Land Register 
 — the lien being prior to every recorded lien. 
 
 3. Severance 
 of Small 
 Parcels. 
 
 811. 
 
 If a part of the land, less in value than the twentieth part 
 of the principal debt, is alienated, the creditor cannot refuse 
 the release of this part from the lien, provided a proportionate 
 payment is offered or the rest of the land offers him ample 
 security. 
 
 Further 
 Charging. 
 
 812. 
 
 A waiver by the property owner of the right to place further 
 burdens upon the land pledged is not binding. 
 
 If, after the creation of a mortgage right in land, a servitude 
 or charge on land is laid upon the land without the consent of 
 the pledgee thereto, the right of landed pledge is prior to the 
 later burden, and this latter will be extinguished whenever in 
 foreclosure proceedings its existence damages the prior lien 
 creditor. 
 
 The owner of the servitude or the charge on land has, how- 
 ever, as against subsequent liens, a claim for the value of 
 his charge, to be satisfied first out of the proceeds. 
 
 VI. Priority 
 Pledges. 
 1. Effect 
 Thereof. 
 
 of 
 
 813. 
 
 The security of rights of pledge is confined to the position 
 given it by its entry upon the register. Rights of pledge in 
 lands can be created in a second or any other rank, provided 
 a stated sum is reserved as prior, at the time of entry thereof. 
 
 814. 
 
 Priority of If rights to landed pledges of different ranks are created 
 
 (Mortgage as against one piece of land, upon the extinguishment of any 
 
 Entries) pledge thereof, no subsequent creditor has any claim to be 
 Amongst f => • -i 
 
 Themselves. 
 
TITLE XXII.] 
 
 THE LAND-PLEDGE 
 
 195 
 
 3. Vacant 
 Positions 
 among 
 Pledges. 
 
 moved up to the vacancy. Another landed pledge may be 
 created in the place of the prior canceled pledge. 
 
 Contracts between creditors for the advancement of liens 
 are effective as against third persons only when they are 
 noted on the register. 
 
 815. 
 
 If a right of landed pledge is created in a subsequent posi- 
 tion without any prior pledge existing, if the debtor has not 
 made any disposition as to a prior pledge title, or if such prior 
 claim amounts to less than the entry thereon, then the pro- 
 ceeds of the pledge upon foreclosure shall be distributed to the 
 real lien creditors according to rank without regard to the 
 vacant positions of pledges. 
 
 816. 
 
 The creditor has a right to be paid out of the proceeds of VIL Satisfac- 
 land in case his claim be not paid. Any agreement whereby [he"piedge°^ 
 the land pledged shall become the property of the creditor, L Method 
 in case he be not paid, is invalid. Thereof. 
 
 If several pieces of land are pledged for the same debt, the 
 institution of foreclosure proceedings shall be begun against 
 all at the same time, but the foreclosure shall be carried out 
 by order of the execution office only so far as is necessary. 
 
 817. 
 The proceeds of sale of the land shall be divided among 2. 
 the lien creditors according to their rank. Creditors of the 
 same rank have a right to equal payment among themselves. 
 
 818. 
 
 The right of pledge of lands offers the creditor security, — 
 (l) for the principal debt; (2) for the costs of execution and 
 interest for any delay; (3) for three years' interest due at the 
 time of institution of any bankruptcy proceedings, or of any 
 foreclosure proceedings, and the interest accruing from the 
 last interest day. 
 
 The interest originally agreed upon may not be increased 
 beyond five per cent to the disadvantage of subsequent 
 landed lien creditors. 
 
 Division of 
 
 the 
 
 Proceeds. 
 
 3. Scope of the 
 Security. 
 
196 THE LAW OF THINGS [PART IV, 
 
 819. 
 
 *■ m'^""*'' ^°'^ ^^ ^^^ pledgee has made necessary outlays for maintaining 
 nance Ex- ^^^ thing pledged, especially has paid insurance premiums 
 penses. incurred by the property owner, he can claim therefor the like 
 
 security as for his principal debt without entry in the Land 
 
 Register. 
 
 820. 
 
 VIII. Right of If a rural piece of land is increased in value by an impiove- 
 of Im- ment in soil, accomplished under the co-operation of public 
 provement officials, the owner thereof can have a right of lien entered in 
 
 1. Preference. *^^ Land Register for his share of the costs, for the benefit 
 
 of his creditor, such lien being preferred to all others entered 
 up. If such a soil improvement is accomplished without 
 public subvention, the property owner can have this right of 
 lien entered for at most two-thirds of his expenses. 
 
 821. 
 
 2. Liquidation If the soil improvement is accomplished without public sub- 
 and the ^ vention, the lien debt is extinguished by annuities of at least five 
 Right of per cent of the registered lien debt. The right of lien is extin- 
 
 '^"' guished for the claim and for any annuity after lapse of three 
 
 years from the date of its maturity, and the subsequent lien 
 creditors are advanced accordingly. 
 
 822. 
 
 IX. Claim for Insurance money may be paid to the owner of the insured 
 of^Insu"-""* property only with the consent of all lien creditors. 
 
 ance. Upon proper security given, it may, however, be paid to 
 
 the property owner for the purpose of restoring the pledged 
 property. 
 
 Otherwise the cantonal regulations as to fire insurance re- 
 main reserved. 
 
 823. 
 
 X. Represen- If the name or residence of a landed pledge creditor is un- 
 tation of known, a curator to the creditor may be appointed by the 
 Creditor. Guardians' Court upon petition of the debtor or others inter- 
 ested in the cases, where the law provides personal action by 
 the creditor, and such is imperatively necessary. The Guar- 
 dians' Court of the place wherein the pledge is located is 
 competent. 
 
TITLE XXII.l 
 
 THE LAND-PLEDGE 
 
 197 
 
 SECOND SECTION 
 
 THE ENTRY FOR SECURITY, AGAINST 
 LAND. 
 
 824. 
 
 By entry of security against land, any claim present or a. Purpose 
 future or only a possible one, can be secured by a right of pledge. ^^^ Form. 
 The land pledged need not be the property of the debtor. 
 
 825. 
 The en try of security against land must be made with a fixed 
 position of lien even for claims of an indefinite or changing 
 amount, and retain the rank according to the entry in the 
 register, regardless of all fluctuations. An excerpt from the 
 Land Register as to any security entered shall be furnished 
 upon request of the creditor, which, however, shall have 
 the character only of a means of proof and not of a security. 
 This means of proof may be replaced by certificate of entry 
 on the article of agreement. 
 
 B. Creation 
 and Termi- 
 nation. 
 
 I. Creation. 
 
 826. 
 
 If the claim has been extinguished, the property owner n. Termina- 
 
 of the pledged land can demand of the creditor that he R°'ht t 
 
 permit a cancellation of the entry. Cancella- 
 
 tion. 
 
 827. 
 If the property owner is not the principal debtor, he can 
 obtain a discharge of the right of lien under the same condi- 
 tions under which the debtor may obtain an extinguishment 
 of the claim. If he pays the debt, he is subrogated to the 
 rights of the creditor. 
 
 Position 
 the 
 
 Property- 
 Owner. 
 
 of 
 
 828. 
 The cantonal law can empower the purchaser of land, who 
 is not personally responsible for the debts charged there against 
 (provided no attachment has issued), to discharge the rights 
 of lien thereon, if they exceed the value of the land, by his 
 paying to the creditors the purchase price or, in case of acqui- 
 sition without consideration, the amount at which he values 
 
 Unilateral 
 Discharge. 
 Conditions 
 and En- 
 forcement. 
 
198 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 the land. He must give the creditors six months' notice of 
 the intended discharge. The consideration for the discharge 
 shall be divided among the creditors according to their rank. 
 
 6. Public 
 Auction. 
 
 829. 
 
 In case of such discharge creditors have the right, within a 
 month's time after notice from the purchaser, to demand a 
 public auction of the thing pledged, security first being given 
 for the costs; such sale to be had after due public notice 
 within a month's time after such is demanded. 
 
 If a higher price is thereby obtained, then this shall be the 
 amount of the discharge money. The costs of the auction shall 
 be borne by the purchaser in case of its bringing a higher 
 price ; otherwise the creditor, who demands it, shall bear them. 
 
 c. Official 
 Valuation. 
 
 830. 
 
 The cantonal law can provide in place of the public auction 
 an ofificial valuation, whose amount shall be the discharge 
 price. 
 
 Notice of 
 the Claim. 
 
 831. 
 
 Notice of the claim by the creditor is effective as against 
 the owner of the thing pledged, not the debtor, only if notice 
 thereof has been given to debtor and property owner. 
 
 C. Effect. 
 
 I. Property 
 and 
 
 Indebted- 
 ness. 
 
 1. Alienation. 
 
 832. 
 
 If land, against which there is an entry for security, is 
 alienated, the liability of the liened land and of the debtor 
 remain unchanged if it is not otherwise agreed. 
 
 If, however, the new property owner has assumed the liability 
 for the principal debt, the former debtor becomes freed if 
 the creditor has not within a year's time declared in writing 
 his intention to hold him liable. 
 
 833. 
 
 2. Subdivision If a part of the mortgaged land, or one of several such pieces 
 
 of the Land. ^^ j^^^ ^j ^^^ ^^^^ owner, is alienated, and the mortgaged 
 
 property is subdivided, the liability, in default of other 
 
TITLE XXII.l 
 
 THE LAND-PLEDGE 
 
 199 
 
 arrangement, is to be apportioned in such way that each part 
 is charged according to its value. If a creditor will not accept 
 this apportionment, he can, within a month's time after it 
 has become operative, demand that his claim be paid off 
 within a year. If the purchasers have assumed the liability 
 for the liens charged upon their pieces of land, the former 
 debtor becomes free, provided the creditor does not in 
 writing within a year's time declare his intention to hold 
 him. 
 
 834. 
 
 The Land Registrar must give the creditor notice of the 
 assumption of the debt by the purchaser. 
 
 The limitation of a year for the declaration by the creditor 
 runs from the time of this notice. 
 
 Notice of 
 the Assump- 
 tion of the 
 Debt. 
 
 835. 
 The transfer of the claim for which an entry of security II- Transfer of 
 is made requires for its validity no entry in the Land ^ ^""' 
 
 Register. 
 
 836. 
 
 The legal rights of lien on lands, created by virtue of the D. 
 cantonal law for public law liabilities or other relations affect- 
 ing landowners generally, require no entry in the registry i. 
 unless otherwise ordered. 
 
 837. 
 The right to lien on land by operation of law exists, — (1) H- 
 for the vendor's unpaid purchase money ; (2) for the claims 
 of the co-heirs and co-parceners on partition of lands belonging 1- 
 to the community; (3) for the claims of laborers or contrac- 
 tors who have furnished materials and labor or labor only 
 for buildings or other constructions upon a piece of land, 
 against this land, whether they hold the landowner or a 
 contractor as the debtor. The one entitled thereto cannot 
 in advance renounce his right to such rights of lien against 
 land by operation of law. 
 
 Lien by 
 Operation 
 of Law. 
 Without 
 Registry 
 Entry (Un- 
 recorded). 
 
 With Regis- 
 try Entry 
 (Recorded). 
 Cases. 
 
200 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 838. 
 
 2. Vendor, The entry of the right of lien of the vendor, the co-heirs, or 
 
 Co-heir and , „ , . . , , . 
 
 Co- co-parceners, must follow at the latest three months after the 
 
 parceners, transfer of the property. 
 
 3. Laborers 
 and Con- 
 tractors. 
 
 a. Entry. 
 
 839. 
 
 The right of lien of laborers and contractors can be entered 
 on the land title registry from the time when they become 
 bound to furnish the work. 
 
 The entry must be made not later than three months after 
 completing the work. 
 
 It may be made only when the claim is acknowledged by 
 the property owner, or is judicially determined and cannot 
 be demanded if the property owner offers sufificient security 
 for the claim made. 
 
 840. 
 
 6. Rank. If several liens by operation of law, of laborers or contractors, 
 
 are entered up, they have as between themselves an equal 
 right to satisfaction out of the pledge, even though they are 
 of different dates. 
 
 841. 
 
 c. Preference. If claims of laborers and contractors suffer a loss by reason 
 of the attachment of the pledge, the deficiency is to be made 
 up out of the share of prior pledge creditors in excess of the 
 value of the land itself, provided the land has been burdened 
 by their rights of lien in an appreciable way to the disadvan- 
 tage of the laborers and contractors. 
 
 If a prior lien creditor has transferred his title to a lien, 
 he must furnish the laborers and contractors compensation 
 for that which has been thereby taken away from them. 
 
 As soon as the commencement of the work has been noted 
 in the Land Register upon notice from one entitled thereto, 
 rights of lien may only be entered up as entries of security 
 against the land until the time for entry has expired. 
 
TITLE XXII.] 
 
 THE LAND-PLEDGE 
 
 201 
 
 THIRD SECTION — (SCHULDBRIEF) MORTGAGE CERTIFI- 
 CATE AND GROUND RENT — (GULT). 
 
 842. 
 A personal claim is established by a mortgage-certificate A. Mortgage, 
 secured by pledge of land. ^- ^"PS^^ 
 
 843. 
 
 The cantonal law can provide an official valuation of the n. Valuation. 
 land for the parties in the execution of a mortgage, or gen- 
 erally prescribe it. 
 
 It can prescribe that mortgages may be given only up 
 to the amount of the valuation or up to a portion of that 
 valuation. 
 
 844. 
 
 The mortgage can, when not otherwise provided, be ter- m. Termina- 
 minated only upon six months' notice by the creditor or debtor, uon upon 
 and upon the usual interest days. The cantonal law can 
 prescribe limiting regulations as to the termination upon 
 notice of mortgages. 
 
 845. 
 
 The position of the property owner of the thing pledged jv. Position of 
 who is not the debtor is determined by the provisions as to Property 
 entry of a security against land. 
 
 The defenses of the debtor in case of a mortgage run in 
 favor also of the property owner. 
 
 846. 
 
 The regulations as to entry of security against land obtain V. Alienation, 
 also for the consequences of alienation or subdivision of the 
 land. 
 
 847. 
 By the ground rent a claim as a landed charge is laid upon b. Ground 
 a piece of land. It can be created only as against agricultural ^ purpose and 
 
 Form. 
 
202 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 lands, dwellings and building lots. The claim stands without 
 any personal liability on the part of the debtor, and the ground 
 of indebtedness is not assigned. 
 
 II. 
 
 Extent of 
 Charge. 
 
 848. 
 A ground rent can be charged upon rural lands up to two- 
 thirds of the rental value of the land increased by one-half 
 of the value of the buildings. A ground rent can be charged 
 upon urban land up to three-fifths of the average rental 
 value on the one side and the value of the land and buildings 
 on the other side, taken together. These values are fixed 
 by an official appraisement, to be regulated by the cantonal 
 law. 
 
 849. 
 
 III. Responsi- The cantons are responsible for the use of all necessary 
 State. ° ^ ^""^ ^^ *^^ appraisement. They have a right of recourse 
 against offending officials. 
 
 IV. Redeema- 
 bility. 
 
 850. 
 
 The property owner of a piece of land subj.ect to a ground 
 rent has the right, at the end of a period of six years, — a year's 
 notice of such intention having been given — to demand a dis- 
 charge of such ground rent, even if the contract has made it 
 irredeemable for a longer time. 
 
 The ground rent creditor can discharge the claim for a 
 ground rent only in the cases provided by law. 
 
 V. Obligation 
 and 
 Property. 
 
 851. 
 
 The ground rent lies against the owner of the burdened 
 land. A purchaser of the land becomes, under a discharge 
 of the former owner, the debtor of the ground rent claim 
 without further action. The rents due become personal 
 charges as soon as the land is no longer responsible for it. 
 
 852. 
 VI. Subdivision. In case of subdivision of land charged with a ground rent, 
 the owners of the several parcels become the rent debtors. 
 
TITLE XXII.] 
 
 THE LAND-PLEDGE 
 
 203 
 
 Otherwise the shifting of the claim upon the parcels follows 
 a like procedure as is provided for an entry of security. In 
 case of payment the creditor must give a year's notice thereof 
 within the month after the shifting has become effective. 
 
 853. 
 
 The special legal provisions are reserved for ground rents VII. Cantonal 
 created under the cantonal law, especially regarding the ^^^ Heredi- 
 limitations on interest and th,e definition of the position of Ground 
 the pledge, as well as hereditary rents. Rehts. 
 
 Cf. 624. 
 
 854. 
 A mortgage and a ground rent may not include a condition 
 or a counter-service. 
 
 855. 
 With the execution of a mortgage or creation of a ground 
 rent, the relation of debtor and creditor, lying at the base 
 of their creation, is extinguished by a novation. Any other 
 arrangement is effective only between the parties thereto, as 
 well as against third persons who do not act in good faith. 
 
 Common 
 Regulations. 
 Creation. 
 Form of the 
 Claim. 
 
 Relation 
 Original 
 Claim. 
 
 to 
 
 856. 
 
 In the execution of a mortgage or a ground rent, a pledge 3. Entry and 
 title shall always be furnished in addition to the entry into Title^^ 
 
 the Land Register. o. Necessity 
 
 The entry in the registry makes the mortgage or ground °q piljge* ^ 
 rent effective before the pledge title to the pledge is issued. 
 
 857. 
 
 Mortgage and ground rent titles shall be certified by the 
 registrar of the Land Register. They require the signature 
 of such registrar and an official or office designated by the 
 cantonal law. 
 
 They may be delivered to the creditor or his agent only 
 with the express consent of the debtor and owner of the 
 burdened land. 
 
 Furnishing 
 the Pledge 
 Title. 
 
204 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 858. 
 '^' p?'^H^ °^ ^^^ "^^^ forms of the mortgage and the ground rent shall be 
 Title^^ fixed by ordinance of the Federal Council. 
 
 859. 
 
 4. Designation As creditor of the mortgage, as of the ground rent, a certain 
 
 Creditor. person or the holder may be designated. 
 "' n^r" "^^ landowner himself may be designated as creditor of 
 
 e ivery. ^j^^ pledge of his own land. 
 
 860. 
 
 6. With Power 
 
 In case of the execution of a mortgage or a ground rent, an 
 ^' attorney-in-fact can be appointed to make and receive pay- 
 ments, accept service of notices, execute releases from pledge, 
 and in general to preserve the rights of creditors as well as 
 the debtor and the property owner with all care and impar- 
 tiality. The name of such attorney is to be noted in the land 
 title registry and upon the pledge title. 
 
 If the power of attorney falls, the judge shall adopt the 
 necessary measures, if the parties cannot agree. 
 
 Place of 
 Payment. 
 
 861. 
 
 If the pledge title does not otherwise provide, the debtor 
 shall make all payments at the place of residence of the 
 creditor and that, too, even when the title runs in favor of the 
 holder. If the creditor's place of residence is not known, or 
 is changed to the disadvantage of the debtor, he can acquit 
 himself by deposit with the proper official at the proper resi- 
 dence or former residence of the creditor. If interest coupons 
 are added to the title, the payment of interest is to be made 
 only to the holder of the coupon. 
 
 862. 
 
 6. Payment Upon the claim's being transferred, the debtor can, so long 
 
 Ter of the"^' ^® ^° notice is given him, pay interest and annuities, for which 
 Claim. no coupons are outstanding, to the former creditor, even if the 
 
 title runs in favor of the holder. The payment of the princi- 
 pal or an instalment thereof, on the contrary, he can effectively 
 make in all cases only to him who appears to be the creditor 
 at the time of the payment. 
 
TITLE XXII.] 
 
 THE LAND-PLEDGE 
 
 205 
 
 863. 
 
 If no creditor appears, or if he renounces his right to the II. 
 pledge, the debtor has the choice of canceUng the entry in ^ 
 the Land Register, or allowing it to stand. He may make 
 the pledge title effective for a further time. 
 
 Termina- 
 tion. 
 
 Disappear- 
 ance of 
 Creditor. 
 
 864. 
 
 A mortgage or ground rent may not be canceled on the 2. Cancella- 
 Land Register before the pledge title is invalidated or has ^'°"' 
 been judicially declared without force. 
 
 865. 
 
 A claim upon a mortgage or a ground rent gives everyone III. 
 
 a right according to the entry, provided he has relied in good ^ 
 
 faith upon the land title registry. 
 
 a. 
 
 866. 
 
 The pledge title, correct in form as mortgage or ground 
 rent, gives everyone a right according to its tenor, provided 
 he in good faith has relied upon its authentication. 
 
 Rights of 
 Creditor. 
 Shield of 
 Good Faith. 
 By Reason 
 of the 
 Entry. 
 
 By Reason 
 of the 
 Pledge 
 Title. 
 
 867. 
 
 If the terms of a mortgage or a ground rent do not corres- 
 pond to the entry, or. an entry does not appear, then the 
 Land Register controls. The purchaser in good faith of the 
 title has, nevertheless, a claim for compensation for any dam- 
 age, according to the provisions as to the Land Register. 
 
 c. Relation of 
 the Title to 
 the Entry. 
 
 868. 
 
 The claim upon a mortgage or ground rent can, as well when 
 the title runs in favor of a specified name as when it runs 
 in favor of the holder, be alienated, pledged, or in general 
 made effective only in connection with the possession of the 
 pledge title. 
 
 The making effective of claims is reserved in those cases 
 where the invalidity of the title has been declared or a title 
 not yet issued. 
 
 Making 
 Effective. 
 
206 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 3. Transfer. 
 
 869. 
 
 The transfer of the claim upon a mortgage or ground rent 
 requires in all cases the delivery of the pledge title to the 
 purchaser. 
 
 If the title runs in favor of a certain name it requires like- 
 wise the notation of the transfer upon the title, with addition 
 of the purchaser's name. 
 
 870. 
 
 IV. Declaring If a pledge title or interest coupon has been lost or unin- 
 1. In Case of tentionally destroyed, it may be judicially declared of no force 
 Loss. and the debtor obligated to payment thereof, or a new title 
 
 or coupon may be furnished for the claim not yet due. 
 
 The declaration of invalidity is effected by public notice 
 for a year in accordance with the provisions as to the amorti- 
 zation of paper payable to bearer. Likewise, the debtor 
 may demand the declaration of invalidity if a paid-ofT title 
 has become lost. 
 
 2. Summons 
 of the 
 Creditor. 
 
 871. 
 
 If a creditor of a mortgage or a ground rent is unknown 
 for ten years, and during this time no interest is demanded, 
 the owner of the land pledged can demand that the creditor 
 may be summoned to declare himself, according to the pro- 
 visions as to the declaration of disappearance. 
 
 If the creditor does not declare himself, and the investiga- 
 tion shows the great probability that the claim no longer 
 exists of right, the title shall be judicially declared of no 
 force, and the position of pledge free. 
 
 872. 
 V. Objections The debtor can make only such defenses as relate to the 
 Debtor. entry or its authentication, or belong to him personally, as 
 against the creditor laying the claim. 
 
 873. 
 
 ^^' the'^FMedge '^^^ creditor must deliver to the debtor upon his request 
 Title upon in case of full payment the uncanceled pledge title. 
 Payment. 
 
TITLE XXII.] 
 
 THE LAND-PLEDGE 
 
 207 
 
 874. 
 
 If the legal status suffers any change, as, for example, part VII. Changes 
 payment of the indebtedness, reduction thereof, or release of Rekdons 
 the pledge, the debtor has the right to have it entered upon 
 the Land Register. 
 
 The Land Registrar shall note this change upon the title. 
 
 Without this entry every purchaser in good faith of the 
 title can avoid the effect of the change of legal status for 
 himself, with exception of payments made with the annuities 
 provided in the title. 
 
 FOURTH SECTION — ISSUE OF LOAN CERTIFICATES WITH 
 RIGHT OF PLEDGE IN LANDS. 
 
 A. Obligations 
 for Loans 
 with Right 
 of Pledge. 
 
 875. 
 Obligations of indebtedness running in favor of the name 
 of the creditor or the holder may be secured by a pledge of 
 land, — (1) by execution of an entry of security against land 
 or a mortgage for the whole loan and the designation of an 
 agent for the creditors and the debtor; (2) by execution of a 
 security bond for the whole loan in favor of the place of issue 
 and the fixing of a right of security in such for the obligation 
 creditors. 
 
 876. 
 
 Mortgages and ground rents delivered in series come 
 under the general law of mortgages and ground rents with the 
 exception of the following provisions. 
 
 877. 
 
 The certificates run in a hundred francs or multiples thereof. II. Form. 
 All certificates of a series bear successive numbers and have 
 the same form. 
 
 If the certificates are not issued by the owner of the land 
 himself, the place of issue must be fixed as the agent of the 
 creditor and debtor. 
 
 878. 
 A sum may be added to the interest payment due from III. Amortiza- 
 the debtor for the gradual liquidation of the series. *'°"' 
 
 B. Delivery of 
 Mortgages 
 and Ground 
 Rents in 
 Series. 
 
 I. In General. 
 
208 THE LAW OF THINGS [PART IV, 
 
 The yearly sinking fund payment must correspond to a 
 certain number of certificates. 
 
 879. 
 
 IV. Entry. The certificate shall be entered in the Land Register with 
 
 an entry for the whole loan and the addition of the number 
 of certificates. 
 
 By way of exception in case of a small number of titles, 
 each certificate may be entered. 
 
 880. 
 V. Effect. The bureau of issue can, even where it is named as agent. 
 
 Issue. undertake no changes in the conditions of pledge which are 
 
 not reserved at the time of issue. 
 
 881. 
 2. Repayment. The repayment of the certificate is effected according to 
 Liquidation. ^^^ P^^"^ °^ liquidation, fixed at the time of issue or by the 
 bureau of issue under a letter of attorney received at the time 
 of issue. 
 
 If a certificate is repaid, its amcAint shall be paid to the 
 creditor and the certificate canceled. 
 
 A cancellation of the entry, when not otherwise agreed 
 upon, may be made only after the debtor has fully complied 
 with the covenants in the entry, and has delivered up the 
 certificate with its coupons or deposited a sufficient sum for 
 the coupons not yet presented. 
 
 882. 
 
 b. Supervi- Xhe owner or the bureau of issue, must make payments 
 
 according to the plan of liquidation and cancel the paid off 
 certificates. 
 
 In case of ground rents the cantons must cause the pay- 
 ments and cancellations ofificially to be supervised. 
 
 883. 
 
 c. Disposition Repayments are in all cases to be applied at the next 
 of Repay- redemption to the liquidation of the pledge titles or 
 
 certificates. 
 
TITLE XXIII.] 
 
 PLEDGE OF MOVABLES 
 
 209 
 
 TWENTY-THIRD TITLE — PLEDGE OF MOVABLES. 
 
 FIRST SECTION — PLEDGE OF HAND (FAUSTPFAND) AND 
 RIGHT OF RETENTION. 
 
 884. 
 
 Movables can, where the law makes no exception, be 
 pledged only by transferring the possession of the pledged 
 article to the pledgee. 
 
 The receiver in good faith of the article pledged acquires 
 the right of pledge in so far as rights do not exist in favor 
 of third persons by reason of a former possession, even if the 
 pledgor did not have the right to dispose of the thing. The 
 right of pledge does not arise so long as the pledgor retains 
 exclusive control over the thing. 
 
 V. Sch. C. §§ 392, 394 and citations. 
 
 Pledge of 
 
 Hand. 
 
 Creation. 
 
 Possession 
 
 of the 
 
 Creditor. 
 
 885. 
 
 For the security of claims of banking institutions and asso- 
 ciations, which are authorized by the proper official of their 
 proper canton to transact such business, a right of pledge 
 in cattle can be created without a transfer of the possession 
 by an entry in a record of obligations and notice to the 
 execution office. 
 
 An ordinance of the Federal Council shall fix the details of 
 keeping the record as well as the fees. 
 
 The cantons determine the districts in which records shall 
 be kept and the officials to be charged with their keeping. 
 
 No such exception as to cattle is mentioned in the German code; but 
 a pledge can be given or registered ships by a bottomry bond. C. of 
 Comm. 679, which seems to be the principal German exception to the gen- 
 eral rule. See also Sch. C. § 392, and note 1 to same. 
 
 Pledge of 
 Cattle. 
 
 886. 
 
 A succeeding pledge of hand is created by giving the pledgee 3. Successive 
 of hand notice and directions to give the pledge over to the ^ ^'"^" 
 
 succeeding creditor as his claim is paid. 
 
210 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 887. 
 4. Pledging by The creditor can further pledge the article of pledge, only 
 see. ^j^j^ ^YiQ consent of the pledgor. 
 
 II 
 
 Termina- 
 tion. 
 1. Loss of 
 Possession. 
 
 888. 
 
 The right of pledge of hand ceases as soon as the creditor 
 loses possession of the article of pledge and cannot demand 
 it back from the third possessors. It has no effect if the 
 pledge with the consent of the creditor remains in the exclu- 
 sive control of the pledgor. 
 
 V. Sch. C. § 406, 1. B. G. B. 1253. 
 
 2. Duty to 
 Return. 
 
 889. 
 
 If the right of pledge in consequence of the extinction of 
 the claim or for any other reason has ended, the creditor 
 shall return the article of pledge to its owner. Until he is 
 fully satisfied, he is not bound to return the pledge in whole 
 or in part. 
 
 V. Sch. C. § 399, 6. B. G. B. 1223. 
 
 3. Liability of 
 the 
 Creditor. 
 
 890. 
 
 The creditor is liable for any damage arising out of a 
 depreciation in value or destruction of the thing pledged, 
 provided he cannot prove that this happened without his 
 fault. 
 
 If the creditor has wilfully alienated the pledge, or in turn 
 pledged it, he is liable for all damage occasioned thereby. 
 
 V. Sch. C. § 399. 1. B. G. B. 1215. 
 
 III. Effect. 
 1. Rights of 
 the 
 Creditor. 
 
 891. 
 
 The creditor has, in case of nonpayment of his claim a 
 right to pay himself out of the proceeds of the sale of the 
 pledge. 
 
 The rigfit of pledge gives him security for his claim, in- 
 cluding the interest contracted for the costs of collection, 
 and the interest for the delay. 
 
 V. Sch. C. § 403 and citations. 
 
TITLE XXIII.] PLEDGE OF MOVABLES 211 
 
 892. 
 
 The right of pledge attaches to the thing pledged, including 2. Extent of 
 its appurtenances. The creditor shall, if not otherwise agreed. Liability. 
 deliver to the owner the natural fruits of the thing pledged 
 as soon as they cease to be a component part of the thing. 
 Fruits, at the time of realization upon the pledge still a part 
 thereof, are subject to the pledge. 
 
 Sch. C. § 397. B. G. B. 1212. 
 
 893. 
 
 If several rights of pledge attach to the same thing, the 3. Order of 
 creditors shall be satisfied in their order. Si'Fjf? °^ 
 
 The order of these rights of pledge is fixed by the time of 
 their creation. 
 
 Sch. C. § 394. 
 
 Pledge. 
 
 894. 
 
 Every agreement, whereby the thing pledged shall be for- 4. Contract for 
 feited to the creditor in case he is not repaid, is invalid. torteiture. 
 
 Sch. C. § 392. B. G. B. 1229. 
 
 895. 
 
 The creditor has the right to retain movable things and B. Right of 
 securities in his possession, with the consent of the debtor, i_ prefatory, 
 until the satisfaction of his claim, if the claim is due, and 
 according to its nature the claim stands in conjunction 
 with the object of the retention. Among merchants this con- 
 junction arises as soon as the possession as well as the claim 
 originate from their regular business. 
 
 The creditor has the right of retention, provided no rights 
 exist in favor of third persons, from former possession, even 
 if the thing, which he has received in good faith, does not 
 belong to the debtor. 
 
 Sch. C. § 4060, 3. B. G. B. 1204. 
 
 896. 
 
 The right of retention cannot be exercised over things II. Exceptions, 
 whose nature does not permit a realization upon them. 
 
212 THE LAW OF THINGS [PART IV, 
 
 Likewise the right is barred if an obligation assumed by the 
 creditor, or a direction, communicated by the debtor before 
 or at the transfer of the thing, or the public regulation 
 opposes it. 
 
 897. 
 
 III. Upon In case of insolvency of the debtor, the creditor has the 
 
 nso vency. j.;gj^|. q{ retention even if his claim be not due. If the in- 
 solvency has occurred or become known to the creditor after 
 the delivery of the thing, he can exercise his right of reten- 
 tion, even if an obligation before assumed by him, or a special 
 direction of the debtor, opposes it. 
 
 898. 
 
 IV. Effect. If the debtor fails to meet his obligation, the creditor can, 
 
 if he has not been sufficiently secured, realize upon the thing . 
 retained after previous notice to the debtor, as in the case 
 of a pledge of hand. 
 
 In case of realization upon bonds issued, the official for 
 attachment or bankruptcy has to undertake the necessary 
 measures, in place of the debtor. 
 Sch. C. I 403. 
 
 SECOND SECTION— RIGHT OF PLEDGE IN CLAIMS AND 
 OTHER RIGHTS. 
 
 899. 
 
 A. In General. Choses in action and other rights can be pledged if they are 
 
 transferable. Right of pledge in them comes under the pro- 
 visions as to pledge of hand, if not otherwise ordered. 
 Sch. C. § 400 and citations. 
 
 900. 
 
 B. Creation. To pledge a claim, for which no instrument or only a 
 I. In Case of certificate of indebtedness exists, the written draft of the 
 
 or without contract of pledge is required and the delivery of the certifi- 
 an Evi- ^.^te of indebtedness, such existing. .The pledge creditor and 
 Indebted- the pledgor can notify the debtor of the pledge. 
 
TITLE XXIII.] PLEDGE OF MOVABLES 213 
 
 In the pledge of other rights there is required in addition 
 to the written pledge contract the observance of the form 
 provided for the transfer. 
 
 901. 
 
 In case of securities (payable) to holder, the transfer thereof !!• In Case of 
 to the pledgee suffices for the act of pledge. In case of other 
 securities, the delivery of the instrument is required in con- 
 nection with an endorsement or an assignment. 
 
 902. 
 
 If there exist receipts for goods, which they represent, a HI. In Case of 
 right of pledge in the goods is created by a pledge of the Goods! ^ 
 receipts. 
 
 If there exists in addition to a receipt for goods a special 
 certificate of pledge (warrant) the pledge of such certificate is 
 enough to create the pledge as soon as the pledge, with the 
 amount of the debt and day when due, is endorsed upon such 
 receipt. 
 
 903. 
 
 A subsequent right of pledge of a claim is valid only if the IV. Subsequent 
 prior pledge creditor is notified in writing by the creditor of 
 the claim or by the subsequent pledge creditor of the subse- 
 quent pledge. 
 
 904. 
 
 In a right of pledge of an interest-bearing claim, or of a C. Effect, 
 claim with other periodically recurring secondary returns as ' LJen, 
 dividends, only the current rights are pledged, if not other- 
 wise agreed upon, and the creditor has no right to overdue 
 returns. 
 
 If, however, there are special instruments for such secon- 
 dary rights, these are considered to be included in the pledge, 
 if not otherwise agreed, only in so far as the right of pledge 
 in them is formally created. 
 Sch. C. 5 397. B. G. B. 1293. 
 
214 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 905. 
 
 II. Represen- Pledged shares of stock shall be represented in the meetings 
 Pledged °^ stockholders by the shareholders and not by the pledge 
 Shares. creditors. 
 
 906. 
 
 III. Adminis- If careful management requires the notification and collec- 
 tration and .. , ^, , . ^ • . , , , ,. , 
 Repayment. ^^°^ o* the claim put m pledge, the creditor thereof may 
 
 proceed to it and the pledge creditor may demand that it be 
 
 proceeded with. 
 
 The debtor, as soon as he is notified of the pledge, may 
 make payments to the one only with the consent of the other. 
 
 If this fails, he shall deposit the amount of the debt. 
 
 THIRD SECTION — THE PAWN PLEDGE. 
 
 A. Pawn 
 Shop. 
 
 I. Grant of 
 Right to the 
 Business. 
 
 907. 
 
 To follow the pawnbroking business, one must obtain the 
 permission of the cantonal authorities. 
 
 The cantons can provide that this permission shall be 
 given only to public institutions of the canton or the com- 
 munes, or to undertakings of general utility {gemeinniitzige 
 Uniernehmungen) . 
 
 The cantons can require fees from the institutions. 
 
 908. 
 
 II. Term. The permission shall be given to private places only for a 
 
 stipulated time, but it can be renewed. 
 
 It can be revoked at any time if the place does not observe 
 the regulations to which its business is subject. 
 
 909. 
 
 B. Right of The pawn pledge is based upon the delivery of the object 
 
 pf"^" of pledge to the pawn shop and the giving of a pawn ticket 
 
 I. Creation, therefor. 
 
 910. 
 
 II. Effect. If jhg pledge is not redeemed at the stipulated time, the 
 
 1. Sale of the , f • , ,. . i i. 
 
 Pledge pawn shop can, after previous public notice to redeem, nave 
 
TITLE XXIII.l 
 
 PLEDGE OF MOVABLES 
 
 215 
 
 A personal claim cannot 
 
 Right to 
 Surplus. 
 
 the object of pawn sold officially, 
 be enforced by the pawn shop. 
 
 911. 
 
 If a surplus arises out of the proceeds of the sale over the 
 amount of the pawn, the proper person may demand its 
 surrender to him. 
 
 Several claims against the same debtor may be considered 
 as a whole in computing the surplus. 
 
 The right to the surplus lapses in five years after the sale 
 of the thing. 
 
 912. 
 
 The pledge can be redeemed by him entitled thereto upon HI. Redemp- 
 surrender of the pawn ticket so long as a sale has not been '°" ° 
 
 Pledge. 
 1. Right to 
 Redeem. 
 
 had. If he cannot produce the ticket, he is entitled to redeem 
 the pledge after maturity of the claim if he can prove his 
 right. This right belongs to the one entitled thereto after 
 the lapse of six months after maturity, even if the institution 
 has expressly reserved the right to require the surrender of 
 the ticket before redemption. 
 
 913. 
 
 The pawn shop is entitled upon each redemption to de- 
 mand interest for the whole of the current month. If the 
 pawn shop has expressly reserved the right to give up the 
 pledge to anyone upon surrender of the ticket, it is entitled 
 to do this so long as it does not know nor should know that 
 the holder of the ticket has come into possession of it in a 
 dishonest way. 
 
 914. 
 
 The business of buying things from the public, with the C. Purchase 
 right in the seller to buy back (within a certain time at a ^f Repur- 
 higher price), is put in the same class as pawnbroking. chaseGiven. 
 
 2. Rights of 
 the Pawn 
 Shop. 
 
 915. 
 
 The cantons can prescribe detailed provisions for the regu- D. 
 lation of the pawnbroking business. 
 
 These provisions require the approval of the Federal 
 Council to be valid. 
 
 Regulation 
 of the 
 Business. 
 
216 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 FOURTH SECTION — CERTIFICATES OF PLEDGE. 
 
 916. 
 
 A. Meaning. Institutions designated by the proper cantonal official 
 
 for dealing in land pledges can issue certificates of pledge, 
 with a right of pledgp in the titles of land pledges to them, and 
 in other claims arising in the course of their regular business, 
 without there being required a special contract of pledge 
 and the delivery of the title to the pledge and the documents. 
 The Pfandbriefe seem to correspond to our mortgage trust certificates, 
 issued by many trust companies, giving the holders the security of mort- 
 gages held in trust by the company for its certificate holders, and a guaranty 
 by the company to maintain intact a fund of mortgages at all times some- 
 what more in amount than the certificates outstanding. 
 
 917. 
 
 B. Form. The certificates of pledge are for the creditor uncallable. 
 
 They are issued to the holder or to an owner and provided 
 with interest coupons payable to bearer. 
 
 Authoriza- 
 tion for 
 Issue 
 Thereof. 
 
 918. 
 
 Institutions which would issue certificates of pledge require 
 therefor a special authorization from the proper official. 
 
 Federal legislation shall determine the conditions under 
 which the issue of certificate of pledge may be made, and 
 prescribe detailed provisions as to the management of such 
 institutions. 
 
 Until the federal order goes into force, the power over this 
 regulation belongs to the cantons. 
 
TITLE XXIV.] 
 
 POSSESSION 
 
 217 
 
 THIRD DIVISION — POSSESSION AND THE LAND 
 REGISTER. 
 
 TWENTY-FOURTH TITLE — POSSESSION. 
 
 919. 
 
 Whoever has the actual power over a thing is its possessor. 
 In the CEise of land servitudes and landed charges, the actual 
 exercise of the right is equivalent to its possession. 
 Sch. I 311, 312. B. G. B. 854. 
 
 A. Definition 
 
 and Kinds. 
 I. Definition. , 
 
 920. 
 
 If a possessor has transferred the thing to another to a II. Independ- 
 limited real right or a personal right, both are possessors. ent and De- 
 Whoever possesses a thing as property owner has an inde- Possession, 
 pendent possession, and the other a dependent possession. 
 
 Sch. § 311, 2. B. G. B. 868. 
 
 921. 
 
 A hindrance temporary in its nature, or neglect to exercise III. Temporary 
 the actual power, does not terminate the possession. Interrup- 
 
 Sch. § 313. B. G. B. 856. 
 
 B. Transfer. 
 
 I. Between 
 Persons 
 Present. 
 
 922. 
 
 Possession is transferred by the delivery of the thing itself, 
 or the means which procure the assignee the power over the 
 thing. The transfer is complete as soon as the vendee with 
 the consent of the former possessor finds himself in the posi- 
 tion of being able to exercise power over the thing. 
 
 Sch. § 312. B. G. B. 854. 
 
 923. 
 
 If a transfer is made between persons not present, the II. Between 
 transfer is complete upon the delivery of the thing to the present ^°^ 
 vendee or his representative. 
 
 V. note to § 922. 
 
218 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 III. Without 
 Delivery. 
 
 924. 
 
 Possession of a thing can be acquired without deUvery if a 
 third person, or the vendor himself by reason of a special legal 
 relation, remains in possession of the thing. As against the 
 third person this transfer of possession is effective only from 
 the time when the vendor has given him notice thereof. 
 
 The third person can refuse delivery to the vendee for the 
 same reason for which he could have refused it to the vendor. 
 
 Sch. § 312. 
 
 925. 
 
 If receipts are given for goods delivered to a freighter or a 
 
 IV. In Case of 
 
 for Goods, storage house to represent the goods, the transfer of such 
 an instrument is equivalent to a transfer of the goods 
 themselves. 
 
 If, however, a receiver in good faith of the goods stands 
 opposed to a receiver in good faith of the receipt for goodsj 
 then the former has a preference over the latter. 
 Sch. § 312. 
 
 C. Signifi- 
 cance. 
 
 I. Protection 
 of Posses- 
 sion. 
 
 1. Selthelp. 
 
 2. Action for 
 Depriva- 
 tion of Pos- 
 session. 
 
 926. 
 
 Every possessor may resist forbidden arbitrary power with 
 force. He may, if the thing be taken from him secretly or 
 with force, at once seize the land by expelling the offender 
 and take away the movable thing from the offender caught 
 in the act and directly pursued. He must, however, refrain 
 from any force not justified by the circumstances. 
 
 Sch. § 315. B. G. B. 858, 859. 
 
 927. 
 
 Whoever has deprived another of a thing through forbidden 
 arbitrary power is obliged to give it back even if he claims 
 a better right to the thing. 
 
 If the defendant at once establishes his better right, and 
 by reason of the same the thing could be again demanded 
 of the complainant, he can refuse the return thereof. The 
 action lies for return of the thing and compensation for 
 damages. 
 
 Sch. § 315. B. G. B. 1007. 
 
TITLE XXIV.] 
 
 POSSESSION 
 
 219 
 
 Action for 
 Disturb- 
 ance of Pos- 
 session. 
 
 4. Jurisdic- 
 tion over 
 and Limi- 
 tation of the 
 Action. 
 
 928. 
 
 If the possession is disturbed by any forbidden arbitrary 
 power, the possessor can make complaint against the disturb- 
 er even if he claims to have a right. The action lies for 
 the removal of the disturbance cessation from further dis- 
 turbance and compensation for damages. 
 
 Sch. § 315. B. G. B. 862. 
 
 929. 
 
 The action for forbidden interference is admissible only when 
 the possessor demands the thing back and demands the ending 
 of the disturbance at once, after the interference and the 
 offender become known to him. 
 
 The action lapses after the running of a year, beginning 
 with the deprivation or interference, even though the pos- 
 sessor has obtained knowledge of the attack and the offender 
 later for the first time. 
 
 Sch. § 315. B. G. B. 864. 
 
 930. 
 
 It will be presumed of the possessor of a movable thing II. Protection 
 
 that he is its owner. _ ^ Presum?'' 
 
 For every former possessor the presumption stands that tion of 
 
 he during the time of his possession was the owner of the ""oper y. 
 thing. 
 
 931. 
 
 If anyone is in possession of a movable thing, without wishing 
 to be its owner, he can invoke the presumption of ownership 
 thereof in favor of him from whom he received it in good 
 faith. If anyone is in possession of a movable thing under 
 claim of a limited real or personal right, the existence of this 
 right will be presumed, but he cannot invoke this presump- 
 tion as against him from whom he received the thing. 
 
 Presump- 
 tion in Case 
 of Depend- 
 ent Posses- 
 sion. 
 
 932. 
 
 The possessor of a movable thing can invoke the presump- 
 tion in favor of his better right as against any suit, under a 
 reservation of the provisions as to wilful deprivation of or 
 interference with that possession. 
 
 Action 
 against the 
 Possessor. 
 
220 THE LAW OF THINGS [PART IV, 
 
 933. 
 
 Right of Whoever receives a movable thing in good faith as his prop- 
 
 and'^Re-'"" ^^Yt ^r transferred under a limited real right, shall be protected 
 claiming. in his acquisition even if it was bailed to the alienor without 
 Bailed ^^Y authority to transfer it. 
 
 Things. 
 
 934. 
 In Case of The possessor, from whom a movable thing has been stolen 
 Things. °^ been lost by him or otherwise got out of his possession 
 against his will, can demand it from any receiver thereof within 
 five years. If the thing has been sold at public auction or 
 transferred in a market or by a merchant who deals in goods 
 of that kind, it can be demanded from the first and each 
 later receiver, taking it in good faith, only upon making good 
 to him the price paid by him. 
 
 The re-delivery is effected otherwise in accordance with the 
 provisions as to claims against possessors acting in good faith. 
 V. Sch. § 307. B. G. B. 965, 977. 
 
 935. 
 
 In Case of Money and securities payable to holder cannot be demanded 
 Securities'to t>ack from a receiver of them in good faith, even if they have 
 Holder. gotten away from the possessor against his will. 
 Sch. §§ 312, 316. 
 
 Bad Faith. 
 
 936. 
 
 In Case of Whoever has not acquired possession of a movable thing in 
 good faith can be called upon by the former possessor at any 
 time to give it up. If, however, the former possessor has 
 also not acquired it in good faith, then he cannot reclaim the 
 thing from a later possessor. 
 Sch. § 315. B. G. B. 1007. 
 
 937. 
 
 5. Presum- In respect to pieces of land entered in the Land Register, a 
 
 of°Realty^^^ presumption of right arises and an action for possession for him 
 
 only whose entry appears. Anyone, however, who has the 
 
 actual power over the piece of land, can lay his complaint for a 
 
 wilful deprivation of or interference with his possession. 
 
 Sch. § 320. B. G. B. 891. 
 
TITLE XXIV.] 
 
 POSSESSION 
 
 221 
 
 938. 
 
 Anyone in possession of a thing in good faith does not HI. Responsi- 
 become responsible for compensation to the one entitled j Possessor 
 thereto by reason of the fact that he used and enjoyed the in Good 
 thing according to his presumed right. 
 
 He need not replace what is thereby consumed or has been 
 damaged. 
 
 Sch. §§ 31, 6, 339. B. G. B. 987, 988, 993. 
 
 Faith. 
 a. Use. 
 
 939. 
 
 If the one lawfully entitled thereto demands the return of 
 the thing, the possessor in good faith can demand compensa- 
 tion for his necessary and useful outlays and can refuse the 
 return thereof until such compensation has been made. 
 
 For other expenditures he can demand no compensation, 
 but he may, if such be not tendered him, take away what 
 he has expended before giving back the thing, provided this 
 can be done without damage to the thing itself. Fruits 
 gathered by the possessor are to be set off against the claims 
 for expenditures. 
 
 Claim for 
 Compensa- 
 tion. 
 
 940. 
 
 One who is in possession of a thing in bad faith must give 
 it up to him lawfully entitled thereto, and must pay com- 
 pensation for all damages caused by the deprivation of posses- 
 sion as well as for the fruits gathered or neglected. 
 
 He has a claim for expenditures only if such would have 
 been necessary for the one lawful owner. 
 
 So long as the possessor does not know to whom he shall 
 return the thing, he is liable only for the damage which he 
 is responsible for. 
 
 Sch. § 315 and citations. 
 
 2. Possessor 
 in Bad 
 Faith. 
 
 941. 
 
 The one entitled to prescription may avail himself of the IV. Prescrip- 
 possession of his predecessor in so far as his possession has *'°"' 
 been useful to the prescription. 
 
222 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 TWENTY-FIFTH TITLE — THE LAND REGISTER. 
 
 A. Creation. 
 I. Form. 
 1. In General. 
 
 942. 
 
 A Land Register shall be kept of rights in and to land or 
 immovables. 
 
 The Land Register consists of the main book and the 
 surveys completing the main book, lists of immovable estates, 
 deeds, descriptions of immovable estates, and the day book. 
 
 V. on the subject of the land registry (Grundbuch), Sch. §§ 317-321. 
 This subject in the German law is only slightly touched upon in the Civil 
 Code: the subject is principally regulated in the Land Registration Act 
 (Grundbuchordnung) of 24th March, 1897, which is based largely on Prus- 
 sian law. 
 
 Admission. 
 Subject. 
 
 943. 
 
 As realty there shall be admitted to the Land Register, — 
 (1) immovable estates; (2) independent and permanent rights 
 in realty; (3) mines. 
 
 As to the form of admission of independent and permanent 
 rights and mines, a regulation of the Federal Council shall fix 
 the details. 
 
 944. 
 
 b. Exceptions. Realty, not private property, and such as serves the public 
 use, shall be admitted to the Land Register only when real 
 rights therein shall be brought for entry or the cantons 
 prescribe their admission. 
 
 If a piece of ground, admitted to the register has been 
 changed to such as is not admissible, it shall be excluded 
 from the Land Register. 
 
 A special Land Register shall be reserved for railroads 
 serving the public commerce. 
 
 Books. 
 Main Book. 
 
 945. 
 
 Each piece of realty shall receive its own leaf and number 
 in the main book.. 
 
TifLE XXV.] 
 
 THE LAND REGISTER 
 
 223 
 
 The procedure to be followed in case of the division of a 
 piece of land, or the joining of several, shall be fixed by a 
 regulation of the Federal Council. 
 
 946. 
 
 Upon each leaf shall be entered in separate sections, — (1) 
 the property; (2) servitudes and charges on land, fastened 
 thereupon or resting thereon ; (3) rights of pledge with which 
 it may be charged. Appurtenances, upon request of the 
 property owner, shall be noted thereon and may, if this is 
 done, be stricken out only with the consent of all parties 
 interested, as appear in the register. 
 
 The Leaves 
 of the 
 Register. 
 
 947. 
 
 With the consent of the owner several pieces of land can be 
 placed on one single page even if they be not connected with 
 one another. 
 
 The entries upon this leaf hold for all the pieces alike, with 
 the exception of servitudes. The owner can at any time 
 demand the separation of several pieces upon a collective 
 leaf, under a reservation of all existing rights therein. 
 
 c. Collective 
 Leaves. 
 
 948. 
 
 Presentations for entry in the Land Register shall be d. Day Book, 
 recorded without delay in the day book, according to their Deeds, 
 order in point of time, together with the name of the person 
 presenting them and their requests. Deeds filed for entry 
 in the Land Register shall be arranged in an orderly way and 
 preserved. 
 
 In the cantons, which allow the Registrar of the Land 
 Register to give out an authentication thereof, an evidentiary 
 protocol takes the place of the deeds, and the recovering 
 thereof provides the public authentication. 
 
 949. 
 
 The Federal Council fixes the rules for keeping the Land 4. Regula- 
 Register, promulgates the necessary regulations, and can, for *'°''^' 
 the proper administration of such registry system, prescribe 
 the keeping of subsidiary registers. 
 
224 
 
 THE LAW OF THINGS 
 
 [PART IV, 
 
 The cantons are authorized to enact special regulations 
 as to the entry of real rights in land, which remain under 
 the cantonal law, which regulations, however, require the 
 sanction of the Federal Council to be valid. 
 
 5. Land Reg- 
 ister Sur- 
 veys. 
 
 II. 
 
 Keeping 
 the 
 
 Registers. 
 District. 
 Jurisdic- 
 tion. 
 
 Land in 
 Several Dis- 
 tricts. 
 
 2. Land 
 Registries. 
 
 3. Fees. 
 
 950. 
 
 The admission and registration of the several pieces of land 
 are effected in the Land Register by reason of a survey, 
 which as a rule is founded upon an official survey. 
 
 The Federal Council prescribes how these plans are to be 
 recorded. 
 
 951. 
 
 Districts shall be formed for the keeping of the Land Regis- 
 ters. Land shall be entered on the register of the district in 
 which it Hes. 
 
 952. 
 
 If a parcel of land lies in several districts, it shall be entered 
 in the Land Register in each district with a reference to the 
 Land Register of the other districts. Notices and entries 
 giving rise to rights, are made in the Land Register of the 
 district in which the larger part of the land lies. The entries 
 in this Land Register shall be communicated by the registrar 
 to the other offices. 
 
 953. 
 
 The creation of land registries {Grundbuchdmter) , the fixing 
 of the districts, the appointment of and compensation for the 
 officials, as well as the establishment of supervision, shall be 
 done by the cantons. 
 
 The cantonal regulations require the sanction of the Federal 
 Council to be valid. 
 
 954. 
 
 The cantons may require fees for entries in the Land 
 Register, and for any survey work in connection therewith. 
 
 No fees may be required for entries made in connection 
 with land improvements, or the exchange of lands, for the 
 purpose of rounding out the agricultural use thereof. 
 
TITLE XXV.J 
 
 THE LAND REGISTER 
 
 225 
 
 955. 
 
 The cantons are responsible for all damages arising out HI. Registrars, 
 of the administration of the Land Register. ^- bmty°"^'' 
 
 They have a right of recovery against the ofificials and 
 employees of the Land Register's administration, as well as 
 against the organs of supervision, guilty of any negligence. 
 They can demand security from the ofificials and employees. 
 
 956. 
 
 The official conduct of the Land Registrar shall be subject 
 to a regular supervision. Complaints against his official 
 conduct, and delays in regard to deeds delivered or to be 
 delivered to him, and declarations, shall be passed upon by 
 the cantonal supervisory official, unless judicial proceedings 
 are prescribed. 
 
 A special regulation is reserved for the appeal from these 
 decisions to the federal officials. 
 
 2. Supervision. 
 
 957. 
 
 3. Breaches of official duties by officials and employees 
 of the Land Register's administration shall be punished by 
 the cantonal supervisory official with the disciplinary penalty. 
 
 This penalty consists in a reprimand, a fine up to one 
 thousand francs, and, in aggravated cases, removal, from office. 
 
 The right of criminal prosecution is reserved. 
 
 Discipli- 
 nary Regu- 
 lation. 
 
 958. 
 
 The following rights in realty shall be entered in the Land 
 Register: (1) The property ownership. (2) The servitudes and 
 charges on land. (3) The rights of pledge therein. 
 
 959. 
 
 Personal rights may be noted in the land title register if 
 their notation is expressly provided for by law, as in case of 
 pre-emption and repurchase, option to purchase, rental and 
 lease. 
 
 By their notation they become effective as against any 
 later acquired right. 
 
 B. Entry. 
 
 I. Land 
 Register 
 Entries. 
 
 1. Property 
 Ownership 
 and Real 
 Rights. 
 
 2. Notations. 
 a. Personal 
 
 Rights. 
 
226 THE LAW OF THINGS [PART IV, 
 
 960. 
 
 b. Limitations Limitations of disposition may be noted against various 
 sition.^^° parcels of land, — (1) by reason of an ofificial order for security 
 
 for claims in litigation or satistified; (2) by reason of an 
 attachment, a confession of bankruptcy or a judicial mora- 
 torium; (3) by reason of any juridical act for which the nota- 
 tion is by law provided, as for homesteads and reversionary 
 heirship. 
 
 Such limitations on disposition become effective upon the 
 notation, as against any later acquired right. 
 
 961. 
 
 c. Preliminary Preliminary entries can be noted, — (1) for the security of 
 
 " '^' alleged real rights ; (2) in case of the legally allowed comple- 
 
 tion of proof. 
 
 They are made with the consent of all parties interested 
 or upon order of the judge, with the consequence that the 
 right becomes effective as a real right from the time of the 
 entry in case it is later established. 
 
 The judge shall decide promptly upon the application and 
 grant the notation upon the claimant's making out a credible 
 right, and in this notation he shall exactly fix its effect in 
 time and extent and, in case of necessity, set a time for judi- 
 cially establishing the claims. 
 
 962. 
 
 II. Limitations The cantons can prescribe that limitations of the public 
 of the Pub- ig^Tff — j^s building lines and the like, — shall be noted in the 
 
 Land Register. These regulations require the Federal Council's 
 sanction to be valid. 
 
 963. 
 
 III. Preliminary Entries are made in consequence of a written declaration 
 Entry. ^V *^^ owner of the realty, contemplated by the disposition. 
 
 1. Publication. No declaration is required of the owner if the purchaser can 
 Entries. ^^^Y upon a prescript of the law, upon a judicial decree, or 
 upon a record equivalent to a judicial decree. 
 
 The officials charged with the duty of public authentication 
 can be directed by the cantons to publish the transactions 
 authenticated by them for entry. 
 
TITLE XXV.] 
 
 THE LAND REGISTER 
 
 227 
 
 964. 
 
 A cancellation or alteration of an entry requires the written 
 declaration by the persons entitled thereto, as appears in the 
 entry. 
 
 This declaration can be made by its inscription in the day 
 book. 
 
 b. In Case of 
 Cancella- 
 tions. 
 
 965. 
 
 Land Register dispositions, as entries, alterations, or cancel- 
 lations, may in all cases be made only upon proof of the right 
 thereto and the legal ground therefor. 
 
 The evidence as to the right of disposition consists of the 
 proof that the petitioner is the person entitled thereto accord- 
 ing to the record of the Land Register, or has received a 
 power of attorney from this person. 
 
 The evidence as to the legal ground con^sts of the proof 
 that the proper form for its validity has been followed. 
 
 2. Evidence. 
 a. Legal Evi- 
 dence. 
 
 966. 
 
 If the proofs for a disposition upon the Land Register 
 are not produced, the announcement is to be rejected. 
 
 If, however, the legal ground is shown, and it is only a 
 question of completing the proof as to the right to the dispo- 
 sition, a preliminary entry can be made with consent of the 
 property owner or upon a judicial order. 
 
 b. Completion 
 of the Evi- 
 dence. 
 
 967. 
 
 The entries are made in the main book in the order in which IV. Mode of 
 they are announced or authentications or declarations are ^ hTceneral 
 signed before the registrar. 
 
 An excerpt of all entries shall be furnished the parties in 
 interest upon their request therefor. The form of the entries 
 and cancellations, as well as that of the excerpts, shall be fixed 
 by ordinance of the Federal Council. 
 
 968. 
 
 The entry and cancellation of land servitudes are made upon 
 the leaf of the parcel of land entitled thereto, and the one 
 charged therewith. 
 
 In Case of 
 Servitudes. 
 
228 THE LAW OF THINQS [PART IV, 
 
 969. 
 
 V- Duty to The Registrar shall notify the parties in interest of any 
 
 dispositions entered upon the Land Register, if they are made 
 without the previous knowledge of such parties. 
 
 The periods fixed for the contest of any such dispositions 
 commence to run upon the delivery of such notices. 
 
 970. 
 
 C. Publicity of The land title register is public. Whoever can show reason- 
 Register, ^b'y ^^ interest therein can demand that the leaves to be indi- 
 cated approximately, together with the proper deeds shall be 
 shown him in the presence of an official of the Land Registry, 
 or that excerpts from the same shall be furnished him. 
 
 The objection that one did not know of an entry made in 
 the Land Register is not allowable. 
 
 971. 
 
 D. Effect. In so far as the entry in the Land Register is provided 
 
 I. Signifi- £Qf ^j^g grounding of a real right, this right exists as a real 
 Non-entry, one only if it appears upon the Land Register. 
 
 Within the terms of the entry, the extent of a right can be. 
 proven by the deeds or otherwise. 
 
 972. 
 
 II. Signifi- Real rights spring from and receive their rank and date by 
 
 cance of the , , ^ • ^t. • u i 
 
 Entry. ^'^^ entry m the main book. 
 
 1. In General. Their efficacy relates back to the time of their inscription 
 
 in the day book, provided that the legal proofs are attached 
 to the announcement, or, in case of preliminary entries, are 
 made promptly. Where, according to a cantonal law, the 
 public authentication is made by the Land Registrar by 
 the recording of an evidentiary protocol, this takes the place 
 of the recording in the day book. 
 
 2. As against Whoever in good faith has relied upon an entry in the Land 
 sons Acting Register, and thereby acquired property or other real rights, 
 
 in Good is to be protected in this acquisition. ~1 
 
TITLE XXV.] 
 
 THE LAND REGISTER 
 
 229 
 
 974. 
 
 If the entry of a real right is not justified, no third person, who 
 knows the defect or should know it, can rely upon such entry. 
 That entry which is made without any legal ground therefor, 
 or arising out of a void juridical act, is unjustified. 
 
 Whoever, by such an entry, is injured in a real right, can 
 directly rely upon the defectiveness of the entry as against 
 a third person not acting in good faith. 
 
 As against 
 Third Per- 
 sons not 
 Acting in 
 Good Faith. 
 
 975. 
 
 If the entry of a real right is unjustified, or if a proper 
 entry is canceled or changed in an unjustified way, anyone 
 injured thereby in his real rights can bring his complaint for 
 concellation or correction of the entry. 
 
 The real rights acquired in good faith by third persons 
 through the entry and the claims for damages are excepted. 
 
 E. Termina- 
 tion and 
 Change of 
 Entries. 
 
 I. In Case of 
 Unjustified 
 Entries. 
 
 976. 
 
 If upon the termination of the real right the entry has lost II. Upon Ter- 
 all legal consequence, the one charged therewith can demand Se"Rea" 
 its cancellation. Right. 
 
 If the Land Registrar grants this request, any party 
 interested may bring his complaint for a cancellation before a 
 judge. The Land Registrar is entitled, by virtue of his office, 
 to cause a judicial investigation and determination of the 
 cessation of the right to be made, and to act upon the can- 
 cellation in accordance with the judicial order. 
 
 977. 
 
 The Land Registrar may undertake corrections, without HI- Corrections, 
 the consent of the parties in interest, only upon judicial orders. 
 
 Instead of a correction, the improper entry can be canceled 
 and a new entry be effected. 
 
 The correction of a mere clerical error is made officially 
 according to the rule of an ordinance of the Federal Council 
 in relation thereto. 
 
230 
 
 INTRODUCTORY AND 
 
 CONCLUDING TITLE — INTRODUCTORY AND IN- 
 AUGURATING PROVISIONS. 
 
 FIRST SECTION- 
 
 -THE APPLICATION OF THE OLD AND 
 NEW LAW. 
 
 A. General 
 Provisions. 
 
 I. Rule of 
 Non- 
 retroaction. 
 
 1. 
 
 The legal effect of facts, which have occurred before this 
 law went into effect, shall also hereafter be judged according 
 to the provisions of the law of the canton or confederation, as 
 they may have obtained at the time of the occurrence of 
 these facts. 
 
 Accordingly transactions undertaken before this time (Jan- 
 uary 1, 1912), shall, in relation to their legal obligation and 
 their legal consequences, be controlled also in the future by 
 the provisions obtaining at the time of their being undertaken. 
 Facts arising after this time (January 1 , 1912) , shall be judged 
 by the new code in so far as the law has provided no exception. 
 
 II. Retro- The provisions of this law, enacted on account of public 
 
 1 PubUc order and morality, shall apply upon the law's going into 
 
 Order and effect to all matters, so far as the law provides no exception. 
 
 Morality. Accordingly, provisions of the old law, which, according to the 
 
 new law's conception, contravene public order and morality, 
 
 have no further application after this law goes into effect. 
 
 Definition 
 of Legal 
 Relations 
 under the 
 Statute. 
 
 Legal relations, whose extent is prescribed by statute, inde- 
 pendently of the will of the parties interested therein, shall be 
 defined according to the new law after the going into effect 
 of this statute, even if these relations were established before 
 this point of time. 
 
 4. 
 
 3. Rights not Matters of fact, come into existence under the authority of 
 Acquired, ^jjg j^.^ g^g j^ ^^g^ jj^j ^hjch at the time of the going into 
 
INAUGURATING PROVISIONS 
 
 231 
 
 effect of the new law have given rise to no legal right, come 
 under the new law so far as their legal effect goes, after that 
 point of time. 
 
 5. 
 
 Commercial capacity shall in all cases be determined accord- 
 ing to the provisions of this statute. 
 
 However, he who has been, at the time of this law's going 
 into effect, commercially capable according to the old law but 
 would not be so under the new one shall be recognized as such 
 also even after this point of time. 
 
 B. Rights of 
 Persons. 
 
 I. Commer- 
 cial 
 Capacity. 
 
 The declaration of vanishment comes under the provi- H. Vanish- 
 sions of the new law after this statute's going into effect. 
 
 Declarations of death, or absence under the old law, shall 
 have, after this statute's going into force like effect with 
 declarations of vanishment under the new law, so that the 
 relations consequent thereupon according to the old law, such 
 as inheritance or divorce, shall remain unaffected, as far as 
 they have been put into effect. 
 
 A proceeding pending at the time of the new law's going 
 into effect shall, with proper allowance of the time run, be 
 begun anew according to the provisions of this statute or at 
 the request of the interested party, be carried to a conclusion 
 according to the old procedure and with regard had to the 
 old limitations. 
 
 Associations of persons and institutions or foundations III. Juristic 
 which have acquired a personality under the old law, retain Persons, 
 it under the new law, even if they would not have acquired 
 such personality under its provisions. 
 
 Juristical persons, already existent, for whose incorporation 
 under this statute an entry in the public register is essential, 
 must also secure this entry within five years after this law's 
 going into effect, even if such entry was not required under 
 the old law, and after the lapse of this limitation of time 
 shall not, without such entry, any longer be recognized as 
 juristical persons. 
 
232 
 
 INTRODUCTORY AND 
 
 The extent of this personality is defined by the new law 
 as soon as this statute goes into effect. 
 
 C. 
 
 I. 
 
 Family 
 Law. 
 Marriage, 
 Divorce, 
 and Per- 
 sonal 
 Effects of 
 Marriage. 
 
 8. 
 
 Every marriage comes under the new law as soon as this 
 statute goes into effect, in respect to the contract of mar- 
 riage, its dissolution, and the personal effects of marriage. 
 
 Marriages and divorces, legal under the old law, shall remain 
 so. Marriages not valid under the old law can be declared 
 invalid only according to the provisions of this law as soon 
 as it has gone into effect, and the time already run must be 
 considered in questions of limitation. 
 
 II. Marital 
 Property 
 Rights. 
 1. Statutory 
 Property 
 Rights. 
 
 9. 
 
 In respect to effects of marriage upon property rights, the 
 provisions of the present family and inheritance rights shall 
 obtain in the relation of the married persons to one another, 
 even after this law goes into effect, i.e., those rights designated 
 by the cantons as property rights, with the exception of the 
 regulations as to extraordinary property status, the separate 
 property and the marital contract. 
 
 As against third parties the married persons come under 
 the new law, if before it goes into effect they have not entered 
 upon the property register their joint -wrritten declaration to 
 retain their former property status. 
 
 The married persons can, by the filing of their joint written 
 declaration with the proper official, place their property 
 rights even as against one another under the new law. 
 
 2. Marriage 
 Contract. 
 
 10. 
 
 A marriage contract entered into before this law becomes 
 effective retains its validity after this time also, but after 
 such time is effective as against third persons only on condition 
 that it was before that time properly filed for record in the 
 property register. 
 
 If a marriage contract under the old law has been recorded 
 in a public register, then it shall be transferred to the prop- 
 erty register by the proper official. 
 
INAUGURATING PROVISIONS 233 
 
 11. 
 
 Changes in the marital property rights, effected by the 3. Liability, 
 introduction of this law, remain subject to the present pro- 
 visions for any change as to the property status in respect 
 to liability. 
 
 12. 
 
 The law of parents and child comes under the new law as ill. Parental 
 soon as this law becomes effective. and Filial 
 
 A loss of parental power, suffered under the old law, remains 
 effective under the new law also, if upon application of one 
 of the parents it is not otherwise decided in accordance with 
 the regulations of the new law. 
 
 If children who stand under the parental power by the new 
 law are subject to a guardianship when the new law becomes 
 effective, then is this guardianship to be superseded by the 
 parental power, but shall continue in force until the change is 
 effected by the proper guardianship officials. 
 
 13. 
 
 The status of illegitimacy as soon as this law goes into IV. lUegiti- 
 effect comes under the new law. If an illegitimate child be 
 born before such time, the mother and child can make claim 
 upon the father for only those rights which were given them 
 under the old law. Recognition by the father is to be 
 effected according to the provisions of the new law, even if the 
 child was born before such became effective. 
 
 14. 
 
 Guardianship comes under the provisions of the new law V. Guardian- 
 as soon as this statute goes into effect. 
 
 An appointment of a guardian made before such time 
 remains stable but shall be harmonized with the new law 
 by the guardianship officials. Guardianships, appointed under 
 the old law but not permissible under the new law, are to 
 be dissolved but remain in force up to the time of such 
 dissolution. 
 
234 
 
 INTRODUCTORY AND 
 
 D. 
 I. 
 
 15. 
 
 Th^^H*^"'^^' Conditions of inheritance, and the effects upon property 
 
 and Succes- "ghts of the death of a father, a mother, or one of a married 
 
 sion. couple, by the cantonal law inseparably joined therewith, 
 
 shall, if the decedent dies before the introduction of this statute, 
 
 be regulated even after such time by the old law. 
 
 This provision relates as well to the succession as to the 
 heirs. 
 
 II. Disposi- 
 tions 
 
 Mortis 
 Causa. 
 
 16. 
 
 Any disposition mortis causa made or rescinded before 
 the introduction of this statute, if it be effected by any com- 
 petent testator under the law in force at such time, cannot 
 be contested on the ground that the testator may have died 
 after the introduction of the new law, and according thereto 
 may be without such capacity. 
 
 A disposition mortis causa cannot be contested for any 
 formal defect if the provisions as to form, which obtained at 
 the time of the disposition or the death, have been observed. 
 
 The contest of any overleaping the freedom of disposition, 
 or of the mode of disposition, shall be governed by the pro- 
 visions of the new law in all cases of dispositions mortis causa 
 if the decedent dies after the introduction of such law. 
 
 17. 
 
 E. Law of Presently existing real rights upon the introduction of this 
 
 I. Rea"^igiits statute remain unchanged under the new law, saving the 
 in General, provisions as to the Land Register. 
 
 In respect to their extent, however, real property and 
 limited real rights come under the new law, after its intro- 
 duction, in so far as an exception is not made. If their crea- 
 tion be no longer possible under the new law, they remain 
 under the present law. 
 
 II. Right to 
 Entry in 
 Land 
 Register. 
 
 18. 
 
 Claims to the creation of a real right, arising before the 
 introduction of this statute, shall be recognized as legal if 
 they comply with the form of the old or the new law. The 
 regulation concerning the keeping of a Land Register prescribes 
 what proofs are requisite for the entry of such claims. 
 
INAUGURATING PROVISIONS 235 
 
 The extent of a real property right, fixed by a juridical act 
 before the introduction of this statute, remains unaffected 
 by the new law in so far as it does not conflict therewith. 
 
 19. 
 
 Prescription is to be determined according to the new law III. Prescrip- 
 after the introduction of this statute. If a right of prescrip- *^'°"- 
 tion has begun under the old law, and it corresponds to the 
 new law, then the time elapsed up to the introduction of this 
 statute shall be reckoned in proportionately in the limitation 
 for prescription. 
 
 20. 
 
 Rights of property now existing in trees upon another's IV. Trees upon 
 soil shall be in the future also recognized according to can- Soil. 
 tonal law. 
 
 The Cantons may limit or rescind these legal relations. 
 
 21. 
 
 Servitudes created before introduction of this statute V. Servitudes, 
 remain in force even without entry after the installation of 
 the land title registry, but so long as they are not entered, 
 cannot be made effective against creditors. 
 
 22. 
 
 Pledge titles existing at the time of introduction of this VI. Pledges of 
 statute remain in force without any necessity of their being ^ Recogni- 
 conformed to the new law. It is, however, reserved to the tion of 
 cantons to prescribe a new execution of existing pledge titles pledge 
 after the plan of the new law within fixed times. Titles. 
 
 23. 
 
 New rights of lien on lands can, after the introduction of 2. Creadon^ of 
 this statute, be created only in the ways recognized thereby. Lien. 
 For their creation, up to the time of installation of the Land 
 Register, the present cantonal forms shall remain in force. 
 
 24. 
 
 The extinguishment and changes of titles, the release from 3. Extmguish- 
 liens and the like, come under the provisions of the new law. Titles. 
 
236 
 
 INTRODUCTORY AND 
 
 4. Extent of 
 the Lien. 
 
 Rights and 
 
 Obligations 
 
 Arising 
 
 from the 
 
 Land 
 
 Pledge. 
 
 In General. 
 
 b. Rights of 
 Security. 
 
 c. Notice — 
 Transfer. 
 
 6. Rank. 
 
 after its introduction. Until the installation of the Land 
 Register, the forms shall be fixed by the cantonal law. 
 
 25. 
 
 The extent of the lien is fixed for all rights of lien on lands 
 by the new law. If, however, a creditor by virtue of a special 
 arrangement has lawfully received in pledge along with the 
 realty certain things, his right of pledge in these shall remain 
 in force even if they could not under the new law be joined 
 in pledge. 
 
 26. 
 
 The rights and obligations of creditor and debtor are to be 
 determined by the old law, so far as contractual consequences 
 are concerned, for rights of pledge existing at the time of 
 introduction of this statute. 
 
 In respect to consequences entailed by force of the statute, 
 and not changeable by contract, the new law controls from 
 this time on, even for already existing rights of pledge. 
 
 If the right of pledge covers several parcels of land, the 
 right of lien remains in force according to the old law. 
 
 27. 
 
 Rights of a lien creditor during the existing conditions, 
 as, for example, for purposes of security, and likewise the rights 
 of a debtor, come under the new law from the time of intro- 
 duction of this statute for all rights of pledge. 
 
 28. 
 The notification of claims of liens and the transfer of pledge 
 titles shall be determined by the old law in cases of rights 
 of pledge already created before the introduction of this 
 statute, saving any compulsory provisions of the new law. 
 
 29. 
 
 The rank of rights of pledge shall be determined according 
 to the old law, until the parcels of real estate are entered in 
 the Land Register. From the time of installation of such 
 register on, the rank of creditors shall be fixed by the Land 
 Registry law of this statute. 
 
INAUGURATING PROVISIONS 
 
 237 
 
 30. 
 
 In respect to the fixed position of the Hen or a right of 
 the creditor to an insertion or a following position, the new 
 law shall obtain upon the introduction of the Land Registry, 
 or at least after the lapse of five years from the enforcement 
 of this statute, saving any special existing claims of the credi- 
 tor. The cantons can make further provisional regulations, 
 subject, however, to the approval of the Federal Council. 
 
 7. Position 
 Lien. 
 
 of 
 
 Restriction 
 after the 
 Appraise- 
 ment. 
 In General. 
 
 b. Continu- 
 ance of the 
 Present 
 Law. 
 
 31. 
 
 The provisions of this statute in respect to the limitation 
 of creation of rights of lien after the appraisement of the things 
 pledged shall apply only to rights of lien in lands in the future 
 to be created. Positions of liens, created in lawful manner 
 under the present law, remain preserved under the new law 
 until their extinguishment, and presently existing rights of 
 lien may be renewed in these positions of lien without regard 
 to the restricting provisions of the new law. 
 
 32. 
 
 The provisions of the present law in respect to the extent 
 of the burden reman in force for the creation of mortgages so 
 long as the cantons do not make new regulations in respect 
 thereto. Otherwise they obtain until their revocation by the 
 cantons, also in their application to the creation of con- 
 tractual creation of entries for security upon real estate. 
 
 33. 
 
 The cantonal inaugurating statutes can determine that in 
 general or in a special respect any kind of landed pledge of the 
 present law shall be treated similarly with such an one of the 
 new law. 
 
 So far as this occurs, the provisions of this statute become 
 eflfective also upon its introduction, in regard to such can- 
 tonal rights of lien. Cantonal provisions in such a case 
 require the approval of the Federal Council to be valid. 
 
 ^*- . vn. Rights of 
 
 Rights of pledge in movables can be created from the time Pledges of 
 
 of the introduction of this statute on, only in the forms ^ pormal'^^' 
 
 Provisions. 
 
 9. Assimila- 
 tion of Pres- 
 ent Kinds 
 of Pledge 
 with those 
 of the New 
 Law. 
 
238 
 
 INTRODUCTORY AND 
 
 provided herein. So far as before this time a pledge of mova- 
 bles in another form has been made, it is lost with the lapse of 
 six months, which begin to run upon the maturity of the claim 
 with the introduction of the statute and, in case of a later 
 maturity, with its introduction or at the time when the notice 
 is permissible. 
 V. Art. 884. 
 
 35. 
 
 2. Effect. The effects of the pledge of movables, the rights and duties 
 
 of the pledge creditor, the pledgor and the pledge debtor arrange 
 themselves according to the new law, from the time of intro- 
 duction of this statute on, even if the right of pledge has 
 already arisen. A contract of forfeiture, executed before the 
 introduction of this statute, loses its validity at this point of 
 time. 
 
 VIII. Right of 
 Retention. 
 
 36. 
 
 The right of retention under this statute extends also to 
 those things which before its introduction have come into 
 the control of the creditor. 
 
 The creditor is entitled to it even for all claims which arose 
 before this time. Earlier created rights of retention come under 
 the regulations of this statute in respect to their effectiveness. 
 
 37. 
 
 IX. Possession. Possession is regulated by the new law upon its intro- 
 duction. 
 
 38. 
 
 X. Land The Federal Council by arrangement with the cantons shall 
 
 1 ^Iroduc- arrange a general plan for the introduction of the Land Register 
 
 tion of the and the surveys. Present existing arrangements for land 
 
 Register registration and surveys shall, so far as possible, be retained 
 
 as part of the new arrangement for land registration. 
 
 Surveys. 
 Costs. 
 
 39. 
 
 The costs of surveying are in the main to be borne by the 
 confederation. 
 
INAUGURATING PROVISIONS 239 
 
 This regulation applies to all surveys, beginning with the 
 year 1907. 
 
 A more detailed regulation of the payment of costs will 
 finally be fixed by the Federal Assembly. 
 
 40. 
 
 As a rule the survey shall precede the entry in the Land b. Relation to 
 Register. With the approval of the Federal Council, however, Regi^te?'^ 
 the Land Register may be introduced even before that, if 
 sufificient lists of estates in immovables are at hand. 
 
 41. 
 
 In respect to the time of surveying, proper regard must c. Time for 
 be had to the conditions of the cantons and the interest of Completion, 
 the various districts. The surveying and the introduction of 
 the Land Register can follow one another in the various 
 districts of the canton. 
 
 42. 
 
 The Federal Council shall fix the manner of surveying for d. Manner of 
 the various sections after consultation with the cantons. urveymg. 
 
 In sections, for which a more accurate survey is not neces- 
 ary, as forests and pastures of considerable extent, a simple 
 sketch or plan shall be made. 
 
 43. 
 
 Upon the introduction of the Land Registry, real rights, 3. Entry of 
 already existing, shall be entered. ^ ProSe.'' 
 
 To this end a public proclamation is to be made to file 
 and enter such rights. Real rights under the present law 
 already entered in public records will be officially entered in 
 the land title register, so far as they can exist under the 
 new law. 
 
 44. 
 
 Real rights under the present law, which are not entered, b. Conse- 
 retain their validity, but as against third persons, who may not^'snter- 
 rely in good faith upon the Land Register, may not be enforced. ing. 
 
240 
 
 INTRODUCTORY AND 
 
 It remains for the legislation of the confederation or the 
 cantons, after prior proclamation, to declare as extinguished 
 all real rights not entered in the Land Register after a 
 certain time. 
 
 Treatment 
 of Extin- 
 guished 
 Rights. 
 
 45. 
 
 Real rights, no longer permissible under the Land Registry- 
 law, as property in floors of a house, property in trees upon 
 land of another, rights of pledge in easements, and the like, 
 will not be entered in the Land Register, but are to be noted 
 in some serviceable way. If they are lost for any reason, they 
 cannot be created anew. 
 
 46. 
 
 5. Postpone- The introduction of the Land Register under the pro- 
 
 troduction visions of this statute can be postponed by the cantons, under 
 
 of the Land authority from the Federal Council, as soon as the Cantonal 
 
 ^'^ '^' provisions as to forms, with or without amendments, appear 
 
 sufficient to secure the working of the Land Register within 
 
 the meaning of the new law. 
 
 In such case it must accurately be fixed, with what forms of 
 the cantonal law the workings of the new law shall be joined. 
 
 6. Introduc- 
 tion of the 
 Law of 
 Things 
 before the 
 Land 
 Register. 
 
 7. Workings of 
 the Can- 
 tonal 
 Forms. 
 
 47. 
 
 The law of things under this statute becomes effective in 
 general, even without the Land Registers being introduced. 
 
 48. 
 
 The cantons can designate forms, as preparation, ^ entry into 
 Land-, Pledge- or Servitude- Register, to which the effect of the 
 Land Register is at once given, with the introduction of the 
 law of things and before the installation of the Land Register. 
 
 These forms may be established with the effect that even 
 without and before installation of a Land Register, the effect 
 of a land registration shall be given thereto, in respect to 
 the creation, transfer, arftendment and extinguishment of real 
 rights. On the contrary, so long as the Land Register is not 
 installed, or some other similar provision made, the effects as 
 
INAUGURATING PROVISIONS 
 
 241 
 
 to third persons acquiring rights in good faith, cannot be given 
 to them. 
 
 ^Fertigung is the form under the old law in many cantons for realty 
 transactions, i.e., the examination and approval by an official of such 
 transactions, and entering in a register. 
 
 49. 
 
 Where a limitation of five or more years is newly introduced, F. Limitation, 
 the time lapsed before the introduction of this statute shall 
 be counted in, in any limitation, wherein, however, at least 
 two years must run from that time till the full time of limita- 
 tion is reached. 
 
 Shorter periods of limitation fixed by this statute, or of 
 forfeiture, commence to run with the introduction of this 
 statute. Otherwise the provisions of the new law control 
 as to limitations from this time on. 
 
 50. 
 
 Contracts executed before introduction of this statute retain 
 their validity even if their form does not comply with the 
 ■provisions of the new law. 
 
 G. Form of 
 Contract. 
 
 SECOND SECTION - 
 
 -INAUGURATING AND TRANSFERRING 
 PROVISIONS. 
 
 51. 
 
 Upon the introduction of this statute, the civil law regula- 
 tions of the cantons are repealed so far as it is not other- 
 wise provided by federal law. 
 
 A. Repeal of 
 the Can- 
 tonal Civil 
 Law. 
 
 52. 
 
 The cantons shall provide the proper regulations for 
 supplementing this statute, e.g., in respect to the jurisdiction 
 of officials and the creation of civil status offices, guardianship 
 courts, and land title registry bureaus. So far as the new 
 law requires the supplementing thereof by cantonal ordi- 
 nances, the cantons are obliged to provide such and may issue 
 them in the manner of a regulation. 
 
 These provisions require the sanction of the Federal Council 
 to be valid. 
 
 Supple- 
 mentary 
 Cantonal 
 Regula- 
 tions. 
 
 Right and 
 Duty of the 
 Cantons. 
 
242 
 
 INTRODUCTORY AND 
 
 II. 
 
 Preliminary 
 Regulation 
 by the Con- 
 federation. 
 
 Designa- 
 tion of the 
 Proper 
 ofHcials. 
 
 D. Public 
 
 Authenti- 
 cation. 
 
 E. Grants of 
 Water 
 Rights. 
 
 Security of 
 Savings 
 Banks 
 Deposits. 
 
 53. 
 
 If a canton has not provided in proper time the necessary 
 arrangements, the Federal Council shall order preliminarily the 
 requisite regulations in place of the canton, with notice to the 
 Federal Assembly. If a canton makes no use of its authority in 
 any matter which does not necessarily require a supplementary 
 ordinance, then the provisions of thip statute shall obtain. 
 
 54. 
 
 Where this statute speaks of a proper official, the cantons 
 shall determine what official, already at hand or first to be 
 appointed, shall be competent. 
 
 Where this statute speaks not expressly either of a judge 
 or an administrative official, the cantons may designate 
 as competent either a judicial or administrative official. 
 
 The procedure before the competent official is fixed by the 
 cantons. 
 
 55. 
 
 The cantons determine in what manner within their 
 boundaries public authentication is to be made. 
 
 They must, for the effecting of public announcements 
 in a foreign tongue, provide proper regulations. 
 
 '56. 
 
 Until the promulgation of a federal ordinance, the follow- 
 ing regulation shall obtain as to grants of water rights: — 
 
 Water rights in public waters, as soon as proven to be at 
 least thirty years old or of an indefinite time, and not joined 
 as an easement to a dominant parcel of land, may be entered 
 in the landtitle register as independent and permanent rights. 
 
 57. 
 
 The cantons are authorized, until federal regulation of 
 savings banks, to create a statutory right of pledge in com- 
 mercial paper, and claims of the particular banks, with a 
 limitation preserving the rights of third persons for the sav- 
 ings deposits in their boundaries. 
 
 This form of pledge is not restricted to the formal provisions 
 of this statute as to pledges of movables. 
 
INAUGURATING PROVISIONS 243 
 
 Such enactments for a statutory form of pledge to secure 
 savings deposits can be made only in the form of legislation, 
 and require the sanction of the Federal Council to be valid, 
 which is to give special attention to sufficiently emphasizing 
 the principle of savings deposits, and to fix the definition of 
 the objects of pledge with sufficient clearness. 
 
 Otherwise the government of the savings banks system 
 remains, as heretofore, a matter of cantonal law, until made a 
 matter of federal regulation. 
 
 58. 
 Until the revised law of obligations becomes effective, the G. Sale of 
 sale of realty shall be governed by the following regulations, ^^ ^' 
 
 which will be incorporated into the law of obligations as 
 Arts. 271a to 271g: — 
 
 THE SALE OF REALTY. 
 
 271a. Agreements of sale, having realty as their object, 
 require public authentication to be valid. 
 
 271b. Preliminary contracts, such as promises to sell and 
 agreements to buy back, require public authentication to be 
 valid. 
 
 Preferential agreements ^ of purchase are good, if in written 
 form. 
 
 1 Vorkaufsvertrage are contracts under which one receives the right to 
 buy land, as soon as the owner intends to sell it to a third person and on 
 the same conditions. 
 
 271c. If a purchase of realty has been conditionally agreed 
 upon, the entry in the Land Register is to be made only 
 when the condition is fulfilled. 
 
 The entry of a reservation of property is forbidden. 
 
 271d. The cantons can by legislation prescribe that an 
 agricultural industry may not be further sold in parcels by 
 the purchaser before the lapse of a certain time. 
 
 The cantons therein shall observe the following regulations : — 
 
 1. The prohibition of the further sale in parcels shall not last 
 for more than five years from the time when the agricultural 
 industry was transferred to the ownership of the purchaser. 
 
 2. The prohibition shall not apply to building, to land under 
 
244 INTRODUCTORY AND 
 
 control of a guardian, or land sold under execution or in 
 bankruptcy. 3. The proper official shall allow an earlier 
 sale wherever sufficient grounds justify it, e.g., if it is a ques- 
 tion of sale by heirs of the purchaser or the like. A sale con- 
 trary to these provisions is invalid and gives no right to entry 
 in the Land Registry. 
 
 271e. The seller of a piece of land shall, saving any other 
 arrangement, furnish the purchaser compensation, if the piece 
 does not possess the quantity given in the agreement of sale. 
 If a piece of land does not measure the quantity given in 
 the official survey in the Land Register, the seller must 
 compensate the purchaser only when he has undertaken the 
 warranty thereof. 
 
 The obligation of such warranty for any defects in a build- 
 ing lapse with the running of five years, reckoned from the 
 time of acquisition of title thereto. 
 
 271f. If a fixed time for acceptance of title to real estate 
 by the purchaser has been agreed upon in writing, then it will 
 be assumed that from that time the enjoyment and risk passes 
 to the purchaser. 
 
 271g. Otherwise the provisions in respect to sale of mov- 
 ables apply similarly to the sale of real estate. 
 
 59. 
 
 H. Gifts. Until the revised law of obligations becomes effective, gifts 
 
 are subject to the following regulations, which will be incor- 
 porated in the law of obligations, as Arts. 273a to 273p. 
 
 SUPPLEMENT TO SEVENTH TITLE OF THE LAW OF OBLI- 
 GATIONS—GIFTS. 
 
 273a. As a gift shall be construed every disposition inter 
 vivos, whereby anyone enriches another out of his own prop- 
 erty without a corresponding return. Whoever renounces a 
 right before he has acquired it, or refuses an inheritance, has 
 made no gift. The performance of a moral duty will not be 
 considered a gift. 
 
 273b. One who is commercially capable may dispose of 
 his property in the way of gifts so far as the marital property 
 law or the law of inheritance place no restrictions upon him. 
 
INAUGURATING PROVISIONS 245 
 
 From the property of one commercially incapable, a gift can 
 be made only under a reservation of the responsibility of the 
 legal representative as well as with observance of the provi- 
 sion of the law of guardianship. 
 
 A gift can be declared invalid upon complaint to the Guard- 
 ians' Court, whenever the donor becomes deprived of his 
 legal capacity because of spendthriftiness, and whenever an 
 action to deprive him of such capacity has been begun against 
 him within a year after the making of the gift. 
 
 273c. One who is commercially incapable may also accept 
 and lawfully acquire a gift, if he is capable of judgment. 
 
 The gift, however, is not acquired, or is rescinded, if the legal 
 representative forbids its acceptance or orders its return. 
 
 273d. A gift from hand to hand is made by delivery of 
 the thing from the giver to the favored one. In the case of 
 land and real rights in land a gift is effected only by an entry 
 in the Land Register. This entry assumes a valid promise 
 of the gift. 
 
 273e. The promise of a gift to be valid requires a written 
 form. If pieces of land or real rights in such are the subject 
 of the gift, the public authentication thereof is requisite for 
 their validity. 
 
 If a promise of gift is fulfilled, the situation will be considered 
 as a gift from hand to hand. 
 
 273f. One who intends to give a gift to another, can, even 
 when he has actually separated it from the rest of his property, 
 revoke his action at any time before the acceptance by the 
 donee. 
 
 273g. Conditions or burdens may be attached to a gift. 
 A gift whose completion is made dependent upon the death 
 of the donor comes under the provisions in respect to disposi- 
 tions mortis causa. 
 
 273h. The donor can compel the fulfillment of any burden 
 assumed by the donee, according to the terms of the contract. 
 If the fulfillment of the burden concerns the public interest, 
 the proper official can require its fulfillment after the donor's 
 death. The donee may refuse fulfillment of any burden, in 
 so far as the value of the gift does not meet the costs of the 
 burden, and the deficit is not made good to him. 
 
246 INTRODUCTORY AND 
 
 273i. The donor can reserve the reversion of the thing 
 given to himself in the contingency that the donee should 
 die before him. This right of reversion can be reserved in the 
 Land Register in the case of gifts of land or real rights in 
 such. 
 
 273k. The donor is responsible to the donee for any damage 
 accruing to him by reason of the gift, only in case of deceit 
 or gross negligence, otherwise he must guarantee to him, for 
 the thing given or the claim surrendered, only that which 
 he promised him. 
 
 273 1. In the case of gifts from hand to hand, or of a prom- 
 ise of gift fulfilled, the donor can demand back the gift 
 so far as the donee is enriched, — (1) when the donee has 
 committed a serious offence against the donor or some per- 
 son closely joined to him; (2) when he has seriously offended 
 against the family obligations incumbent upon him in respect 
 to the donor or one of his relatives; (3) when he has in an 
 unjustifiable manner not fulfilled the burdens imposed upon 
 him in the gift. 
 
 273m. In case of the promise of a gift the donor can refuse 
 fulfillment, — (1) for the same reasons for which the thing 
 given in a gift from hand to hand can be reclaimed; (2) when, 
 since the promise made, the property conditions of the donor 
 have so altered that the gift would unusually seriously bur- 
 den him ; (3) when, since the promise made, family obligations 
 have increased for the donor, such as existed before that not 
 at all or in quite small measure. 
 
 273n. Upon the issuance of a loss certificate or beginning 
 of bankruptcy proceedings against the donor, every promise 
 of gift is rescinded. 
 
 273o. The recall of a gift can be made effective within a 
 year, reckoned from the time when the donor has received in- 
 formation of the reason therefor. 
 
 If the donor dies before the lapse of this year, the right of 
 action during the rest of this period passed to his heirs. 
 
 The heirs of the donor can recall the gift if the donee has 
 intentionally and unlawfully killed the donor or prevented 
 his recall thereof. 
 
 273p. If the donor has obligated himself to return per- 
 
INAUGURATING PROVISIONS 
 
 247 
 
 formances, his obligation thereto is extinguished by his death, 
 so far as it is not otherwise provided, 
 
 60. 
 
 The federal law of execution and bankruptcy of April 11, 
 1889, is amended, upon the introduction of this statute, as 
 follows : — 
 
 37: The expression "landed pledge" (Grundpfand) in the 
 meaning of this statute embraces, — the entry of security (v. 
 Art. 793, 824), {Grundpfandverschreibung) , the mortgage 
 {Schuldbrief) , the ground rent (GilU), land pledge rights under 
 former law, charges on land and every right of preference in 
 specified immovable estates, as well as the right of pledge in . 
 the appurtenance of an immovable estate. 
 
 The expression "pledge of hand" {Faustpfand) comprehends 
 also the pledging of cattle, the right of retention and pledge 
 of choses in action or other rights. 
 
 The expression "pledge" (Pfand) embraces pledges of land as 
 well as pledges of movables. 
 
 45 : The provisions of the Civil Code are reserved for the 
 proof of claims of the pawn shops. 
 
 46: Third paragraph: In default of a representation, 
 each member of a community can be held responsible for the 
 debts arising out of the community status, at the place of its 
 common industrial activity. 
 
 47: Third paragraph: For claims, however, which arise 
 arise out of a business classified under Arts. 167 and 412 of 
 the Civil Code, an execution against a debtor is to be levied 
 against the debtor himself in the place of his business. 
 
 49 : An inheritance can, so long as the partition is not made 
 a contractual community not effected, or an official liquida- 
 tion not ordered, be levied upon in the method of execution 
 against the deceased, in the place where the decedent could 
 be levied against at the time of his death. 
 
 59: Second paragraph: An execution levied in the 
 lifetime of the decedent can be extended against his estate 
 under the provisions of Art. 49. 
 
 65: Third paragraph: If an execution is directed 
 against an undivided inheritance, it is filed against the repre- 
 
 Execution 
 and Bank- 
 ruptcy. 
 
248 - INTRODUCTORY AND 
 
 sentative of the estate, or, if such an one is not known, one 
 of the heirs. 
 
 67, Figure 2: The name and residence of the debtor 
 or his legal representative in a given case; in an execution 
 sought against an estate, there must be added what heirs 
 are to be joined. 
 
 94, Third paragraph: The rights of landed pledge 
 creditor to the hanging or standing fruits as part of the thing 
 pledged remain secured, yet only on condition that such 
 creditor himself has begun execution process for realization 
 upon the landed pledge before the realization upon the 
 pledged fruits takes place. 
 
 96, Second paragraph: Dispositions of property by 
 the debtor are invalid, so far as thereby the rights accruing 
 to the creditors from the attachment are injured, saving the 
 rights of possession acquired by innocent third parties. 
 
 101: The attachment of a piece of land has the effect of 
 a restriction upon the disposition thereof, and is communicated 
 to the Registrar by the execution office, together with the 
 statement of the amount for which the attachment is made, 
 for the purpose of its reservation. Likewise the participation 
 of new creditors in the attachment or the lifting of the attach- 
 ment is to be communicated to him. 
 
 The notation of a pledge of an immovable estate is extin- 
 guished if within two years after the pledge thereof the 
 realization process is not sought. 
 
 102: The attachment of a piece of land embraces also its 
 fruits and other profits, saving the rights of recorded lien 
 creditors. 
 
 The execution office must give notice of the attachment 
 made to recorded lien creditors, as well as lessees, in a proper 
 case. It cares for the administration and management of 
 the immovable estate. 
 
 107, Fifth paragraph: In case of an attachment against 
 a married man, the wife can independently protect her 
 rights to the property contributed by her to the marriage, 
 and Art. 168, paragraph 2, of the Civil Code, does not apply. 
 
 Ill, First paragraph: The husband, the children, wards 
 and dependents of a debtor have the right for a period 
 
INAUGURATING PROVISIONS 249 
 
 of forty days, as to claims arising out of the marital, parental, 
 or guardianship relations, to take part in an attachment, ev^n 
 without any prior execution. This right can, however, only be 
 asserted, when the attachment has been made during the 
 continuance of the guardianship, parental or marital relations, 
 or within a year's time after its cessation. 
 
 The length of a process or execution is not reckoned therein. 
 Children of full age of the debtor can assert for themselves 
 at any time the claims given them under Art. 334, Civil Code, 
 in an attachment without prior execution. 
 
 The Guardians' Court is authorized to make such claim 
 for children, wards or dependents. 
 I- 132"*: The realization upon a share of a community of 
 property is accomplished under the provisions of Art. 132. 
 
 The provision of Art. 344, Civil Code, remains reserved. 
 
 135, First paragraph: The conditions of sale shall 
 stipulate that the pieces of land are sold subject to all liens 
 thereon (servitudes, charges, entries of security, mortgages and 
 ground rents), with the transfer of any personal obligation 
 to the purchaser. The former debtor of a transferred debt, 
 under an entry of security or mortgage, becomes free only when 
 the creditor does not, within a year's time from such transfer, 
 declare his intention to hold him thereto (Art. 832, Civil 
 Code). Any debts secured on land, fallen due, are not 
 transferred in obligation, but are paid first out of the pro- 
 ceeds. 
 
 136, Second paragraph: Repealed. 
 
 136 *: The title of the purchaser at such sales can be 
 contested only in a complaint with the request for rescission 
 of the auction sale. 
 
 137: If a time for payment is made, the land remains until 
 the payment of the sale price, for the account and risk of the 
 purchaser, in the management of the execution ofifice. With- 
 out its consent no entry may meanwhile be made in the 
 Land Register. In addition the execution ofifice can stipulate 
 special security for the extended purchase price. 
 
 138, Third paragraph: A corresponding summons is 
 directed also to the owners of servitudes, so far as the can- 
 tonal law comes into application. 
 
250 INTRODUCTORY AND 
 
 141, Third paragraph: In case of the charging of a 
 piece of land with a servitude or other burden, without 
 consent of the preceding lien creditor, he has the right to 
 require the summons of the immovable estate, both with or 
 without notice of the new burden. If the bid for the im- 
 movable estate with the new burden does not realize enough 
 for satisfaction of the creditor, and he receives better pro- 
 tection without the new burden, then he is entitled to demand 
 its extinguishment in the Land Register. If any surplus 
 remains after his protection, then it is in the first instance 
 to be applied it to the compensation of the bolder of the new 
 burden, to the extent thereof. 
 
 143'''*: The provisions of the Civil Code and the com- 
 plementary regulations of the cantons in respect to home- 
 steads remain reserved. 
 
 150, First paragraph: So far as the claim of a creditor 
 is fully covered, he must receipt the certificate of claim 
 and hand it to the execution official to be handed the debtor. 
 
 Third paragraph: In the case of execution sales of 
 immovable estates, the official causes the proper cancellations 
 and changes to be made in the Land Register in respect to 
 servitudes and rights of pledge in land. 
 
 152, Second paragraph: If leases exist against the 
 immovable estate, the execution office must give notice to the 
 lessee of the issuance of the execution. 
 
 153, Third paragraph: If a third party has instituted 
 the proceeding under Arts. 828 and 829 of the Civil Code, the 
 immovable estate can be sold in execution only if the execu- 
 tion creditor, after termination of the procedure, furnish the 
 proof to the execution office, that in addition a right to a 
 pledge in land lies in his favor for the claim placed in execu- 
 tion against such immovable estate. 
 
 158, Second paragraph: After the delivery of this 
 certificate, the creditor can direct the execution against the 
 person of the debtor by way of attachment or bankruptcy 
 proceedings, so far as it is not a matter of a ground rent or 
 other burden on land. If he proceed within a month's time, 
 a new order of payment is not necessary. 
 
 176: Notice of bankruptcy proceedings shall be given, as 
 
INAUGURATING PROVISIONS 251 
 
 soon as they are effective, to the recorder of land titles, the 
 bankruptcy office, and the recorder of the commercial register. 
 Likewise the termination or recall of bankruptcy proceedings 
 are to be communicated. 
 
 193, Second paragraph: The regulations of the law 
 of inheritance as to the ofi&cial liquidation of an estate remain 
 intact. 
 
 208, First paragraph: The beginning of bankruptcy 
 proceedings effects, as against the bankrupt estate, the falling 
 due of obligations of the debtor in bankruptcy with exception 
 of those protected by liens upon his real estate. The credi- 
 tor can claim, in addition to the principal, interest to the day 
 of institution thereof and costs of the proceedings. 
 
 219, Third paragraph: The rank of landed lien credi- 
 tors, and the extent of such security for interest and other 
 collateral claims, is determined by the provisions in respect 
 to pledge of lands. 
 
 Second class, letter a, third paragraph: In a similar 
 position to what the debtor in bankruptcy as guardian or 
 possessor of the paternal power owes, is yet without the time 
 limitation named, what he may owe as member of a 
 guardians' court (426 to 430 Civil Code). 
 
 Fourth Class. The half of the claim of the wife of a 
 debtor in bankruptcy for the loss of her marital contribution 
 made subject to the provisions of the union of property or 
 the community of property, so far as the wife is not already 
 covered by the taking back of the property at hand and by 
 the security given her for the half of her marriage contribution. 
 
 258, Fourth paragraph: Art. 141, paragraph 3, is 
 applicable. 
 
 259: With respect to the conditions of forced sales the 
 articles 128, 129, 134, 135, 136, 136 (bis), 137 and 143 apply; 
 in place of the execution office read bankruptcy bureau. 
 
 260*'**: The provisions of the Civil Code and comple- 
 mentary cantonal regulations in respect to homesteads remain 
 intact. 
 
 296, The allowance of time shall be publicly announced 
 and communicated to the execution office as well as to the 
 Registrar. 
 
252 INTRODUCTORY AND 
 
 308, First paragraph: The decision, as soon as it is 
 legally binding, shall be publicly announced and communicated 
 to the execution office as well as Registrar. 
 
 61. 
 
 K. Application The federal law respecting the civil law relations of settlers 
 
 Fofdgn^"'^ and sojourners of June 25, 1891, remains in force for the 
 
 Law. legal relations of Swiss abroad and foreigners in Switzerland, 
 
 as also as far as the law is different from canton to canton for 
 
 the relations of citizens of different cantons. 
 
 Especially will the cantonal law of compulsory portion 
 respecting brothers and sisters and their descendants be 
 recognized as the home law of the canton's citizens 
 (Art. 22 of said law). 
 
 The federal law of June 25, 1891, shall receive the follow- 
 ing additions : — 
 
 7a. Persons for whom no domicile or residence can be 
 proven come under the Swiss law. 
 
 7b. A foreigner without commercial capacity, who has 
 closed a juridical act in Switzerland, cannot invoke his 
 incapacity if he were commercially without capacity at such 
 time, according to the Swiss law. 
 
 This provision has no application to family juridical acts 
 or questions of inheritance, or such as involve the title of realty 
 situate abroad. 
 
 7c. The validity of a marriage will, if the bridegroom or 
 bride or bo h are foreigners, be determined with respect to 
 each of them according to the domestic law. The form of 
 a marriage contracted in Switzerland is determined by Swiss 
 law. 
 
 7d. A Swiss living abroad may contract a marriage in 
 Switzerland. 
 
 He must cause his desire to be made known to the civil 
 status official of his place of domicile. 
 
 7e. If a foreigner living in Switzerland will contract 
 a marriage there, he must make known his desire before the 
 civil status official of his residence, after he has obtained the 
 
INAUGURATING PROVISIONS 253 
 
 consent of the executive of the canton of his residence to such 
 marriage. 
 
 This consent may not be refused if the domiciliary officials 
 declare that they will recognize the marriage of their citizen 
 with all its consequences, but it can be granted even without 
 such a declaration. The betrothal of a foreigner having no 
 residence in Switzerland can be celebrated with consent of 
 the executive of the canton in which it is to take place, if, by 
 declaration of the domiciliary officials or otherwise, it appears 
 that the marriage with all its consequences will be recognized 
 in the domicile. 
 
 7f. A marriage contracted abroad according to the law 
 there obtaining will be considered as valid in Switzerland if its 
 contraction was not planned for the foreign place with open 
 intention to circumvent the grounds for invalidity in Switzer- 
 land. A marriage contracted abroad and invalid according 
 to the law of the place of its contraction can be declared 
 invalid in Switzerland only when it may be invalid under the 
 Swiss law. 
 
 7g. A Swiss married person living abroad can bring a 
 suit for divorce before the court of his domicile. The 
 divorce in such case is decreed exclusively according to 
 Swiss law. 
 
 If the divorce of Swiss persons living abroad has been 
 decreed by a court of competent jurisdiction there, it will be 
 recognized also in Switzerland even if the divorce were not 
 justified by the Swiss law. 
 
 7h. A foreign husband living in Switzerland can bring a 
 divorce proceeding before the court of his residence if he prove 
 that according to law or legal custom of his domicile the 
 ground laid for the divorce is permitted and the Swiss juris- 
 diction is recognized. 
 
 A ground for divorce, which has occurred at a time when 
 the couple stood under another law, can be asserted only 
 when it is permitted by the former law as ground for 
 divorce. 
 
 These conditions met, the divorce of the foreign couple is 
 effected otherwise according to the Swiss law. 
 
254 INTRODUCTORY AND 
 
 7i. Complaint and judgment in respect to the foreigner 
 in Switzerland or the Swiss abroad can follow upon divorce 
 or separation as it is allowed by the law invoked. 
 
 Separation or a dissolution of a marital community, according 
 to foreign law corresponding thereto, comes under the same 
 law as divorce. 
 
 62. 
 
 L. Repeal of Upon the introduction of this statute all civil law provisions 
 
 Civil Law. of the confederation in conflict herewith are repealed. 
 
 In particular are repealed: — 
 
 The federal law concerning the determination of and pub- 
 lication of the civil status and marriage of December 24, 
 1874. 
 
 The federal law concerning personal commercial capacity 
 of June 22, 1881. 
 
 The federal statute of the law of obligations of June 14, 
 1881, in the following provisions: Sixth title, excepting Art. 
 204 (Arts. 199 to 203 and 205 to 228) ; twenty-eighth title (Arts. 
 716 to 719), as well as Arts. 10, 29, to and including 35, 38, 76, 
 105 and 130, relative to claims upon landed security; 141, 146, 
 paragraphs 2 and 3, 161, relative to public proclamations 
 according to the Civil Code; 198, 231, first paragraph; 281 and 
 314, relative to the entry of leases in public records; 337, 414, 
 507, relative to the words "according to cantonal law." 
 
 The transition provisions of the law of obligations remain 
 in force so far as they are not supplanted by the transition 
 provisions of this statute for their sphere of application. 
 
 "Associations" of the French text of the law of obligations 
 receive the term "co-operative societies." 
 
 63. 
 
 M. Final Pro- This statute goes into force January 1, 1912. The Federal 
 vision. Council may, with consent of the Federal Legislature, put 
 
 particular provisions hereof into force at an earlier date. 
 
 The Federal Council is charged with the proclamation of 
 this statute, according to the provisions of the Federal Statute 
 
INAUGURATING PROVISIONS 255 
 
 of June 17, 1874, relative to the popular vote upon federal 
 laws and federal resolutions. 
 
 Passed by the National Council, 
 Bern, loth December, iQoy. 
 
 President, Paui. Speiser. 
 Secretary, Ringier. 
 
 Passed by the Council of State, 
 Bern, loth December, igoy. 
 
 President, P. Sherrer. 
 Secretary, Schatzmann. 
 
 THE SWISS FEDERAL COUNCIL RESOLVES. 
 
 The foregoing Federal Statute shall be published. 
 
 In the name of the Swiss Federal Council: 
 
 The President of the Confederation, 
 
 MULLER. 
 
 The Chancellor of the Confederation, 
 
 RiNGIER. 
 
 Bern, I2th December, iQoy. 
 
 Date of publication, December 2i, 1907. 
 Limit of time for referendum, March 20, 1908. 
 
INDEX. 
 
 ( Numbers refer to sections. I. S. = Introductory Statute, at end of Code.) 
 
 A. 
 
 Adoption, requirements as to, 264-69; dissolution of, 269; effect of, 268. 
 
 Age, see majority, mental capacity. 
 
 Application of code, non-retroactive, I.S. 1; retroactive, I.S. 2-4; as to 
 family law, I.S. 8-14; as to forms of contract, I.S. 60; as to inheritance, 
 I.S. 15-16; as to limitations, I. S. 49; as to rights of persons, I. S. 5-7; 
 as to things, I.S. 17-48. 
 
 Application of foreign law, I.S. 61. 
 
 Associations, see persons. 
 
 B. 
 
 Betrothal, see also Marriage, legal effect of, 91. 
 
 Birth, its proof, 31-33; registers, 46, 47. 
 
 Boundaries, adjoining owners' mutual rights as to, 668 et seq. 
 
 Buildings, 671 et seq. 
 
 C. 
 Cantonal law, relation to federal, 5, I.S. 51; public law of cantons, 6 et seq. 
 
 Cf. Custom, local. 
 Charges, on land, 782 et seq.; (a) creation and termination, 783-90; (b) 
 
 definition, 791-92. 
 Charity, see Foundations, Foundlings. 
 
 Children, see Illegitimacy, Legitimacy, Marriage (G), Relationship. 
 Civil status, authentication thereof, 39; registers of, 39-51. 
 Code, see Application, Interpretation. 
 Commercial capacity, definition, presumptions and limitations of, 12-19, 
 
 I.S. 5. 
 Community of parents and children, name and domicile, 270; aid, support, 
 
 etc., 271-72; parental power, 273-89. 
 Community of property between spouses, 47-53; dissolution, etc., 50-52; 
 
 liability for debts, 48-49; management and disposition, 47-48; 
 
 restricted community of property, 52-53. 
 Compulsory portion, 471. 
 Contracts of inheritance, 468, 494-97, 512-15; claims arising out of, 
 
 534-536. 
 Conversion, see Movables. 
 Conveyancing, see Land, Land title register. 
 Corporations, see Persons (juristic). 
 Curatorship, cases and incidents of, 392-97; office of and meaning, 417- 
 
 19. 
 Custom, local, relation to federal law, 5. 
 
258 INDEX 
 
 D. 
 
 Death (c/. Vanishment, q.v.), judicial declaration of, 35-38; proof of, 32-34. 
 
 Decedents' estates, see Inheritance, Succession, Inventory. 
 
 Disinherison, 477-80; forms, of last will, etc., 498-516; invalidity and 
 
 reductions of, 619-33; methods of, 481 et seq: 1. Testamentary, 481- 
 
 93; 2. Contracts of inheritance, 494-97. 
 Dispositions causa mortis, 467 et seq.; disposing capacity, 467; contracts 
 
 of inheritance, 468; effect of mistake, duress, etc., 469; freedom of 
 
 disposition, 470-76. See also Wills. 
 Divorce, 137 et seq.; decree, absolute or limited, etc., 143-45, 158; effect of, 
 
 149, 151-57; grounds of, 137-42; suit for, form, etc., 143^5, 158. 
 
 Cf. Marriage invalidity. Impeachment. 
 Domicile: Domiciliary status, defined and distinguished from residence, 
 
 22; cf. Residence and sojourn, 23-26. 
 Donations, see also Dispositions causa mortis, 475. 
 
 E. 
 Easement, see Land. 
 
 Evidence, rules of, burden of proof, 8; public records, 9; general, 10. 
 Executors, 517-18. 
 
 Family community, 328 et seq.; duty to support, 328-29; power over 
 household, etc., 331-34; family property, etc., 335-59. 
 
 Foundations, change of purpose, 86; dissolution of, 88-89; erection of, 
 80-82; family and religions, 87; organization, etc., 83-85. 
 
 Foundlings, support of, 330. Cf. Illegitimacy. 
 
 Gifts, see Dispositions causa mortis. 
 
 Ground rents, see Pledges I. 
 
 Guardianship, 360 et seq., I.S. 14; appointment, 379-91; cases for, 368- 
 72; duties of guardians, 398-416; end of guardianship, etc., accounts, 
 compensation, etc., 431-55; Guardians' Courts, etc., 361-66, 420- 
 25; gukrdian vs. curator, 367; instrumentalities, 360; jurisdiction, 
 376-78; procedure, 373-75; responsibility of guardianship officials, 
 426-30. See also Curatorshjp. 
 
 Good faith, rules as to, 243. 
 
 H. 
 Heirs, see Inheritance. 
 Homesteads, cantons allowed to establish them, 349; incidents thereof, 
 
 350-56; dissolution, 357-59. See also Community, etc. 
 Husband and wife, see Community of property. Matrimonial regime. 
 
 Union of property. 
 
INDEX 259 
 
 Illegitimacy, decree of civil status, 323; property rights of, 327; recognition 
 of such, 303-06; relations between parents and child, 324r-26; 
 status of illegitimate children, 302 et seq., I.S. 13; suit for paternity, 
 etc., 307-22. See also Foundlings, Legitimacy. 
 
 Incumbrances, see Charges. 
 
 Inheritance, law of, 457 et seq., I. S. 15; legal heirs (of the blood), 457-61; 
 surviving spouse, 462-64; adopted children, 465; commonwealth, 
 466; division of, 602 et seq. See also Community, etc.. Succession. 
 
 Interpretation of code, its general application, 1; definition of legal rela- 
 tions, 2 and 3; judicial discretion, 4; relation to cantons and can- 
 tonal law, 5-6; relation to law of obligations, 7. 
 
 Inventory, decedents' estates, 680-90. 
 
 L. 
 
 Land, 655; acquisition and loss of ownership, 656-66; buildings upon, 
 671-77; charges on, 782 et seq.; definition of ownership, 667-72; 
 plantings upon, 678; pledge of, 793 et seq.; register of land titles, 942 
 et seq., I. S. 38-48; responsibility of owner, 679; restrictions upon 
 ownership, 680-98; restrictions by public law, 702-03; right of 
 entry and defense, 699-701; rights to springs and wells, 704^12; 
 servitudes, 684^98; 730-781; (a) creation and extermination, 731- 
 736; (b) scope of, 737-40; (c) maintenance, 741; (d) changes of 
 burden, 742; (e) division of, 743-44; usufruct, 745 et seq. 
 
 Land title register, 942 et seq. 
 
 Legitimacy, contest as to, 253-57; declaration of , 258-63; presumption of , 
 252. 
 
 Limitations, I.S. 49; effect of code upon old law of. 
 
 Loan certificates, 875, 916-18. 
 
 M. 
 
 Maintenance. 
 
 Majority defined, 14. 
 
 Marital capacity, 96-97; age, 96; capacity of judgment, 97; consent of 
 
 guardians, 98-99. 
 Marriage, application of code, I.S. 8 et seq. Cf. Community of property. 
 
 Union of property between spouses, Separation of property. Divorce. 
 
 (A) Publication, 106; form of application therefor, 106; place of 
 application, etc., 106; rejection of application, 107. 
 
 (B) Objection to marriage, 108; right thereto, 108; by officials, 109; 
 procedure therein, 110; judicial ruling thereon. 111; limitation on 
 right, 112. 
 
 (C) Betrothal of civil marriage, 113; public officials competent, 113; 
 refusal thereof, 114; same without publication, when permissible, 
 115; the ceremony, rules as to, 116-19; form thereof, 117; certificate 
 and religious celebration, 118; regulations, federal and cantonal, 119. 
 
260 INDEX 
 
 (D) Invalidity of, grounds of nullity, 120; suit as to same, 121; limita- 
 tion of suit, 122. 
 
 (E) Impeachment of (voidable); 1. Grounds of, 123-127; 2. By 
 parents or guardians, 128. 
 
 (F) Impeachment, when barred, 129-31. 
 
 (G) Declaration of invalidity, 132-34 ; its effect and consequences as 
 to children and parties. 
 
 (H) Right of complaint not heritable, 135. 
 (I) Competence and procedure, 136. 
 
 (J) Consequences of marriage, 159 et seq.; rights and duties of parties, 
 159-61; representation of union, 162-67, 177; capacity of wife to 
 sue, etc., 168; protection of union, 169; sundering thereof, 170; judi- 
 cial control thereof, 171-76. 
 
 Marriage property register, 248 et seq.; effect of entry in, etc., 249-51. 
 
 Matrimonial regime, 178 et seq.; statutory vs. contractual, 178; meaning 
 of term, 178; contractual and its effects, 179 etseq.; judicial sundering 
 thereof, 182-87; separate property and its status, 190-93. See 
 Community of property. Union of property between spouses. Separa- 
 tion of property. 
 
 Mortgages, see Pledges I. 
 
 Movables, definition, 713; acquisition and loss of property therein, 714- 
 29; (a) by transfer, 714-17; (b) by appropriation, 718-19; 
 (c) by finding, 720-24; (d) by accession, 725; (e) by conversion, 
 726; commingling, 727; prescriptive title, 728; usufruct, 745 et seq. 
 
 N. 
 Name, right to and protection of, 29; change, 30. 
 
 Parental power, definition etc., 273-82 I.S. 12; effect of its deprivation, 
 289; official intervention, 283-88. See also Family community; cf. 
 Homesteads, cf. Separation of property, cf. Union of property (marital) . 
 
 Parental property rights, in child's property, 292-96; liability of parents, 
 299-301; management, 290-91; official intervention, 297-98. 
 
 Parents and children, see Parental power. Parental property rights. 
 
 Pawn pledge, etc., 907 et seq. 
 
 Pawn shop, 907 et seq. 
 
 Person, personality defined, 11; natural persons, 11-51; juristic persons, 
 51-89 I.S. 7; protection of personality, 27-28; protection of name, etc., 
 29-30; beginning and end of personality, 31; proof thereof, 32-34; 
 declaration of absence and procedure therefor, 35-38. 
 
 Personal property, see Movables. 
 
 Pledges: 
 
 I. Of land, 793 et seq., I.S. 22-33; kinds, 793; form of, 794-95; regis- 
 tration necessary, 796; creation and termination, 799-804; effect 
 
INDEX 261 
 
 of, 805 et Mff.; priority of pledges, 813-15; satisfaction of, 816-19; 
 entry of security given, 824r41; mortgage, 842-46; ground rent, 
 847-53; regulations as to, 854r-74 (entry of, etc.); loan certificates 
 against pledges of land, 875, 916-18; mortgages, etc., in series, etc., 
 876-83. 
 
 II. Of movables, 884 et seq. I.S. 34-35; (a) pledge of land, 884r-94; 
 (b) right of retention for a claim, 895, 898, I.S. 36. 
 
 III. Of claims (choses in action, etc.), 899 et seq.; creation, 900-03; 
 Lien thereof, etc., 904r-06. 
 
 IV. Of pawn, 907 et seq. 
 
 Possession, definition and kinds, 919 el seq. I.S. 18, 37; transfer of, 922-25; 
 incidents of, 926-41. 
 
 Register of property, rights, under matrimonial regime, 248 et seq. ; of land 
 titles, 942 et seq. 
 
 Relationship defined, blood and affinity, 20-21 ; children, status of legiti- 
 mate, 252 et seq. 
 
 Residence defined, 23 and 24; of dependent persons, 25; sojourn distin- 
 guished, 26; right of, as usufruct, 776-78. 
 
 S. 
 
 Sales, see Movables. 
 
 Security, see Land (pledge) . 
 
 Separation of property (marital), 63-55. 
 
 Servitudes, 684-98, 730-81, I.S. 21 (see under Land). 
 
 Springs and wells, see Land. 
 
 Succession, 537 et seq.; opening of, place, jurisdiction, etc., 537-38; heir- 
 capacity, etc., 539-45; in case of vanishment, 546-50; effects of, 
 regulations, etc., 551-92; official liquidation, 593-97; right of 
 action for, 598-601 ; division of inheritance, 602-25 ; conclusion and 
 effect of division, 634^40; adjustments, 626-33. Cf. Disinherison. See 
 also Inheritance. 
 
 T. 
 
 Testaments and testamentary dispositions, see Dispositions mortis causa 
 
 and Wills. 
 Things, extent of property therein, 643-45; law of, 641 et seq.; ownership 
 
 in common therein, 646-51; joint ownership therein, 662-54. 
 Trusts, see Foundations. 
 
 U. 
 
 Union of property (marital), 194 et seq.; of man and wife, 194r-96; in- 
 ventory and its effects, 197-99; management, ,use and power of 
 disposition, 200-205; liability of husband and wife, 206-211; dissolu- 
 tion and effects, 212-14. 
 
262 INDEX 
 
 Usufruct, 745 et seq.; definition, 745, 755-67; creation of, 746-47; ex- 
 tinction of, 748-54; special cases of, 768-75; right of residence as 
 usufruct, 776-78. 
 
 Vanishment, I.S. 6. 
 
 W. 
 
 Wells, see Land. 
 
 Wile, capacity to sue or be sued, 168. 
 
 Wills, see also I.S. 16; execution, 498-508; revocation, 509-11; limitation 
 on right to will, 516.