In the second chapter, Wolff continues with a special case of the dominum utile, namely, feudum or fief – we are now speaking of legal relations that work as the basis of feudalism. What differentiates feudum from other kinds of dominum utile is that both participants of the feudal contract – the owner and the vassal – agree to provide to one another fidelity, in other words, some duties that are further determined in the contract: for instance, the vassal might agree to provide military service to the owner, while the owner might then agree to protect the vassal.
Otherwise, the properties of the feudum are simply those of a dominium utile, for example, the vassal can use the feudal thing as they want, as long as they don’t do anything to harm its very substance, which is the property of the owner. The vassal can improve the feudal thing, unless even such changes have been explicitly denied.
The paragraphs above would really be all that can be said of a feudum in general, that is, Wolff says, its substantial determinations. Yet, when agreeing on the feudum, the owner and the vassal can add further conditions that lead to further rights and obligations. For instance, the owner can set a price or an annual payment for feudum or it could be contracted only for some period of time or e.g. for a certain family line (Wolff mentions the possibility that the feudum could be inherited by both sons and daughters or even only by daughters, but in every specific example he speaks only of sons, which was, of course, historically the most common option).
A feudal contract is usually valid, when the owner and the vassal agree on its conditions. Yet, Wolff adds, they may also agree that a certain formal document called the letter of investiture is written. He thinks that such a written document agrees well with the law of nature, since it makes the conditions of the contract explicit.
A condition Wolff considers most extensively is whether the feudal contract allows the vassal to transfer the feudum to someone else, that is, to donate or to sell it, and if it is allowed, whether the consent of the owner is required for this. In case this is allowed, the feudum must be similarly structured as it originally was, except if the feudal contract adds some additional conditions to these (for instance, the owner might demand a further payment from the new vassal). Still, if the original contract determined e.g. a certain type of service from the original vassal, the new vassal must also provide it to the owner.
Usually the owner does not need to ask the vassal, if they want to transfer their ownership to someone else – the feudum just remains valid, with the same conditions as originally. Still, the owner and the vassal can also agree, Wolff notes, that the owner cannot donate or sell the feudal thing at all or not without the consent of the vassal. If such a condition holds and the owner still does transfer their ownership to someone else, the vassal is not obligated to provide any services determined in the feudal contract to the new owner.
What kind of things can then be given as feudum? The historically most obvious example is, of course, some piece of land, but Wolff thinks that the feudal thing can be anything that is not consumed by its use, like a piece of furniture. Things consumed by use – say, a portion of wine – cannot be made a feudal thing. Yet, even such consumables can be indirectly made into a feudal thing, Wolff suggests, that is, by making a right to such consumables into a feudum. As an example Wolff gives what is called feudum de caneva (literally, a fief from cellar), where the vassal gains a right to e.g. use a certain portion of wine from the owner’s provisions during the vassal’s life.
Making a feudum of a right to some consumable things is one way to involve these consumables into a feudum, but Wolff notes also a more direct manner. That is, if a person gives some consumable – usually, a portion of money – to another, who provides as a surety something else (say, a house), we can think of the money, or whatever the consumable is, as something not consumable. With such surety in place, the owner of the money can then give the right to use the money to another person, in the sense that this other person can attempt to use the money to make more money through business deals or by loaning it with some interest. This is then a new kind of feudum, which Wolff calls both feudum pecunia (literally, fief on money) and quasi feudum, implying that this is a sort of extension of the proper sense of feudum.
Assuming it hasn’t been explicitly forbidden in the feudal contract, the vassal can create to their feudum a new feudum, which is then called subfeudum, Wolff points out: so, if the vassal has a right to use a certain piece of land, they can then hand a right to use a part of this land to someone else. What holds for any feudum obviously holds for any subfeudum, but the latter always has the further condition that the subfeudal contract someone makes with the vassal cannot contradict anything in the original feudal contract that the vassal made with the owner. The process can obviously go indefinitely further and a subfeudum can have a subsubfeudum etc.
Often a feudum runs in a family, so that when the original vassal dies, one of their descendants becomes the new vassal (usually the oldest son). Now, it may well happen that some family dies out, so that no one to have the feudum exists anymore. In such a case occurs what Wolff calls apertura feudi, which means simply that the feudal thing returns fully to its owner; in this case all possible subfeudum expire also. The same relation does not hold the other way around, that is, if the owner happens to die without any heir, the vassal does not become the owner – unless, of course, the feudal contract says so.
Wolff has already spoken of the possible selling or donating of a feudum, but a case of pawning requires more discussion. Of course, if the feudum cannot be sold or donated without the consent of the owner, it cannot also be pawned without this consent. The vassal can pawn the use of the feudum or its products, and this is what they must have understood to have implicitly pawned, if they pawn the feudum without the consent of the owner. Yet, Wolff adds, if the apertura feudi is near, that is, if the feudum is about to return to the owner, since the vassal has no heirs, pawning is forbidden even with the consent of the owner. Furthermore, even if the vassal has heirs and the owner does consent to the pawning, the heirs do not have to. Then again, only the right to use and the products of the feudum are pawned, and once the vassal has died, the heirs of the vassal are in no way obligated to provide anything else to the debtor of the vassal.
Another concept Wolff investigates is revocatio feudi, where the person who has the power to do so asks to retrieve the feudal thing. This does not usually mean the owner asking the vassal to return the feudum, since the owner does not have such a right, unless the feudal contract says that the owner can do so whenever they want. The more usual case is when the vassal has sold or donated the feudal thing without the consent of the owner or heirs, who then can ask the new holder of the thing to return it to them, once the vassal has died. In that case, the owner or the heirs need not refund the price of the feudal thing to its holder.
Another question Wolff considers is whether the vassal can refute the feudum, that is, to reject the right to use the feudal thing and to be freed of all the obligations involved in the feudal contract. In refuting the feudum, the vassal can either want to return the right to use the feudal thing to the owner or then to transfer it to someone else. In the prior case, the vassal can refute the feudum, unless this is against the rights of the owner, for instance, when the refutation is done, because the vassal wants to escape military service that the owner requires from the vassal according to the feudal contract. Furthermore, although the vassal has returned the right to the feudal thing to the owner in refuting the feudum, the heir of the vassal can later demand its return, when the vassal has died.
When the vassal refutes the feudum and intends to transfer the feudal thing to someone else, the important question is whether this intended new vassal is some heir of the vassal or just any outsider. In the latter case, the refutation of the feudum would simply mean its donation, which Wolff has already considered. In the previous case, the refutation can simply happen if the feudum is to go to the immediate heir of the vassal. Then again, if it should go to some other heir – say, a grandson, instead of the son – the immediate heir can insist the restoration of the feudum to them, once the original vassal has died.
An interesting case arises, when the vassal refutes the feudum and wants it to go to their immediate heir, who then at once wants to transfer the feudum to their heir. In that case, Wolff says, the important question is whether the vassal wanted the feudum to go specifically to the immediate heir or whether they just wanted to get rid of it. In the prior case, the feudum returns to the original vassal, in the latter case, it goes to the second heir.
The last thing Wolff investigates of feudum is the possible breaches against the obligations of the feudal contract. Obviously, any duties left unfulfilled mean a breach, such as if the owner does not provide the agreed protection to the vassal or the vassal the agreed military service to the owner. Wolff does note an exception to the latter case: if the owner is engaging in an unjust war, the vassal does not need to help them, even if the feudal contract would say so.
More serious breaches occur, if the substantial determinations of a feudum are broken, for example, if the vassal does not show any fidelity to the owner. This would happen, if the vassal does not want to avert damages to the owner or promote their advantage, when they can, and even more so, if the vassal causes damage to the owner or wants to do something against their health or in any manner conspires to do something like this. Thus, the vassal breaches the feudal contract, if they threaten the life of the owner, plan an ambush or enter into a destructive agreement with the enemies of the owner. They even commit a breach, if they desert the owner in battle or other hazard or do not help them.
Wolff notes some exceptions. If the vassal and the owner are in a common danger and the vassal prefers to save their own life over the life of the owner, no breach occurs. Similarly no breach happens, if the vassal kills the owner when the owner has first attacked the vassal with superior force and the vassal could not avoid being killed or mutilated, unless by killing the owner first.
Whatever the breach is, Wolff says, it does not lead to the vassal losing the feudum or to the owner losing their ownership, unless it is particularly agreed so. Even if such an agreement exists, the one behind the breach can still pay for their crime. In case of the vassal committing the breach, if they do not make any amends, the feudum would still continue in the sense that their heirs have a right to ask the feudum to be given to them, once the original vassal has died.
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