IIb: Rights of the Individual (Acquired Rights)
Unlike connatural rights, acquired rights can change, because their titles and the preconditions of their titles can be changed and the particular form a right takes under given conditions can be adjusted in light of other rights. There are many different kinds of modification of rights; some rights are modified in terms of association (these arise in the context of social right), for instance, and some arise due to violations of rights. One very important form of modification is transmission of rights from one person to another, through transmission of title. Of this, Rosmini says (p. 258):
There are two ways of transmitting [proprietà]:
1. When I free something of my own and someone else occupies it, making it his own.
2. When I free something of my own in favour of someone else who, under certain conditions or without conditions, accepts and takes it immediately as his own; this is called 'contract'.
The second, of course, is in some ways the most important, but the first ends up being more important than it looks. Rosmini identifies three general cases of release and reoccupation. The first case is the most obvious -- someone has something, renounces their right to it, and someone else occupies it in an ordinary lawful way. In this case, the moral and intellectual connection for proprietà has been dissolved. Wills and testaments, for instance, are this kind of transfer, although they are unusual in the sense that they are non-contracts that by legal fiction are sometimes treated by positive law as if they were contracts. The second, somewhat more tangled, case occurs when someone usurps something to which they have no right, and the passage of time erases the fact of the usurpation so that everyone has come to recognize their occupancy. Rosmini calls this "natural-positive prescription" (p. 259). It still requires good faith (the present occupant has to have reason to think the thing actually his); as Rosmini says, "the passage of time alone does not constitute any just title" (p. 260). Rather, the point is that where people are honest in their claims, the claims can stand even if the original attempt at occupation was unlawful or unjust, if the presently available reasons no longer indicate that. Bare possibility or bare doubt cannot overcome available reasons. The third occurs when someone simply stops using their right, and because of the disuse someone else appropriates it. In this case, called usucaption, it is the physical connection that has dissolved.
Contracts are usually defined as agreements or promises; Rosmini doesn't like either, because he thinks the first is question-begging and the latter inaccurate. His definition of a contract is a "concourse and jural effect of corresponding acts of two persons, of whom one, an owner of a simple or complex right, willingly dissolves the jural bond of the right with or without certain conditions, so that the other may become the owner, if he wishes" where the second person can engage in an "act of acceptance" and, having met the conditions (if any), appropriate the right (p. 265). From this it follows that not all contracts are promises (and not all promises are contracts), not all concern the future, and not all require that any conditions be met. They also do not require any particular symbolism, which usually develops to remove obscurity or potential confusion about the acts of disappropriation and appropriation. Further, it's clear that, since you can transfer the right to someone just by the relevant acts, that it is possible in many cases to transfer the right before they actually take possession; when positive laws require the actual or symbolic transfer of possession, this is again usually just to remove any potential confusion or ambiguity by adding an implicit consignment clause to each contract. Further, while people sometimes make an effort to organize their definitions around multi-party contracts, Rosmini doesn't think this is necessary; for purposes of contracts, groups can be treated as single parties, so you just need to distinguish transferring party and accepting party for any simple contract, and build more complex contracts out of that.
Since contracts require a coordination of acts, they require consent. To be consistent with right, consent has to have four features:
(1) The consent has to concern something capable of being the matter of a contract. Some rights are inalienable -- those directly with divine things and those that are themselves duties concerned with truth, virtue, and happiness. You can't contract away your right to do what virtue clearly requires you to do, for instance. However, merely violating a duty does not of itself invalidate the contract; if a man sells books that his children need for their education, Rosmini says, what he does is wrong, but books are the kinds of thing that can be involved in a contract of sale, so the consent does not run afoul of this requirement.
(2) The consent must be given by persons who are jurally able to participate. Consent requires understanding and free will; it also requires an ability to express consent in a way that can be recognized as consent that is based on understanding and free will. Likewise, those consenting have to be consenting on their own behalf, or, if they are consenting in part or whole on behalf of another, have the consent of the other.
(3) The consent must not be the result of an injustice of one party to the other. Obviously, if the contract is itself unjust, it is invalid, but it's also invalid if the contract is unwanted and forced on another by extreme violence or fear, or by using violence or fear to extort the consent. The mere fact that a contract is done out of fear does not necessarily invalidate it; for instance, if I fear earthquakes and find an insurance agent to buy earthquake insurance, this fear doesn't invalidate the contract, because it is not caused by an unjust act of the insurance company. Likewise, fraud and deception can invalidate the contract, but, again, they need to be an injustice perpetrated by one party on the other.
(4) The consent must be expressed in a way that makes clear that it can be seen as a genuine and definite consent. Note that the requirement is that it has to be such that it can be seen as genuine and definite; contracts don't depend directly on the truth but on what is available to all relevant parties to know and use as a basis for action. If you want only to pretend to give your consent, but outwardly give clear signs of consent, it is the latter, publically given consent that matters for the purpose of contract. This must also be clear enough that any future dispute about it could in principle be adjudicated. Further, the consent must be such that the relevant parties can reasonably know what is meant.
Moral reason plays a threefold role in contracts: it governs interpretation of the intentions of the parties to the contract; it compensates for verbal infelicities in the statement of the contract that would destroy the contract if taken too literally, by instead understanding them in a reasonable and beneficial way; and by conscience it determines how far clauses obligate when there is uncertainty (p. 294). It further can play a role in equitable execution of contract, where equity or fairness involves bringing the execution of the contract into alignment with rational justice, even if this involves deviation from strict interpretation of the contract.
Both abandonment-and-occupancy transfers and contracts sometimes result in a change of the rights involved. During contracts, rights can sometimes take on a 'transitory' form; for instance, if we are making a contract with someone, we both have transitory rights during the negotiation that arise from the requirements for consent. In the course of working out the contract, we may also give certain guarantees, some of which will end when the contract is finalized, and others which will be given a final, permanent form in the contract itself. The contract could also determine whether the hand-over is immediate or delayed, at once or by a process, here or at a certain place. We could also split rights, so that they are shared or received in a qualified form.
A particularly important case of modification of rights in transmission occurs with seignory, i.e., lordship or dominion, which results in some sort of state of servitude (i.e., an obligation to render ongoing service) for the other party. The person receiving the state of servitude still retains their connatural rights, but except for infants who have not yet developed their occupancy of themselves, it's also the case that no one can fully occupy another person even with regard to their acquired rights. But it is true that we can by contract 'split' some part of our jural freedom off; this happens when someone becomes a subject of a lord (which is always the case in modern change of citizenship, since modern nation-states reserve seignory powers for themselves), and it also happens in employment contracts.
There are other modifications to rights that occur for reasons distinct from any transmission of rights, and we will consider those next.
to be continued
****
Antonio Rosmini, The Philosophy of Right, Volume 2: Rights of the Individual, Cleary & Watson, trs., Rosmini House (Durham, UK: 1993).