Front Page Titles (by Subject) CHAPTER XI: Of Promises. - The Rights of War and Peace (2005 ed.) vol. 2 (Book II)
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CHAPTER XI: Of Promises. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 2 (Book II) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 2.
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I.The Opinion which maintains that no Promises are naturally obliging, refuted.I. 1. We now come in the Order of our Subject1 to treat of Obligations arising from Promises; where we presently meet Franciscus Connanus, an eminent Scholar, opposing us. He maintains this Opinion, that those Agreements which include no Contract2 are not binding, either3 by the Law of Nature, or Nations; and yet he owns, that they may, however, be laudably performed, if the Thing promised be such as might, had no Promise ever been made, honestly, and conformably to the Rules of some Virtue, be done.
2. To confirm his Opinion, he not only brings the Testimony of some Lawyers, but also these Reasons. First, That he who believes a Man who promises rashly, and without any Cause, is as much to blame, as he who himself makes such a vain Promise.4Secondly, That it would be very dangerous to most Men’s Fortunes, if they were obliged to perform all their Promises, which they generally make more out of Ostentation, than a real Intent to perform them. And lastly,<280> That it is reasonable to leave some Things to every Man’s Honour, and not to confine him to a Necessity of Performance. It is reputed base not to perform what we have promised, not that it is really unjust, but because it argues a Lightness in the Promiser. He also urges the Testimony of Cicero,5 who said, that those Promises are not to be performed, which are of no Advantage to them who receive them, or are more prejudicial to us, than of Service to them. But if the Thing be not intire,6 he would have the Party not engaged to execute what he had promised, but only to make the other Person Amends for his Disappointment. And as for Agreements that are not of themselves obligatory, that they receive their Force, either from the Contracts in which they are inserted, or to which they are joined, or from the actual Delivery of the Thing promised: Which produces on the one Side Actions, on the other Exceptions, and a prohibiting any future Claim to what has been so delivered. And that such Agreements as do oblige according to the Laws, as those that are made by Way of Stipulation in Form, and some others, receive all their Power from the Benefit of the Laws, whose Efficacy is such, as to make that which in itself is only honest or reputable, to be also necessary and binding.
3. But this Opinion (of Connanus) taken so generally, as he expresses it, cannot be consistent. For, First, it would thence follow, that the Articles of Agreement made between Kings and People of divers Nations, so long as there was nothing performed on either Side, were of no Force, especially in those Places where there are no set Forms of Treaties or Contracts. Nor indeed can any Reason be given, why the Laws, which are, as it were, the common Covenant and Promise of the People7 (and so they are called by8Aristotle and9Demosthenes) should give such an obliging Force to Agreements; and yet, that a Man’s own Will, endeavouring by all Means possible to oblige itself, cannot do the same Thing, especially in a Case where the Civil Law offers no Obstruction. Besides, since the Property of a Thing may be transferred by the bare Will, sufficiently declared, (as we have said before) why may we not in the same Manner transfer to one the Right, either of requiring us to transfer to him the Property of a Thing, (which is less than the actual Acquisition of the Right of Property itself) or of requiring us to do something in his Favour, since we have as much Power over our Actions as we have over our Goods?
4.10 And to this do wise Men agree; for as the Lawyers say, Nothing is more natural,11 than that the Will of the Proprietor, desiring to transfer his Title to another, should have its intended Effect: In like Manner it is said,12 that nothing is so agreeable to human Fidelity, as to observe whatsoever has been mutually agreed upon. So the Edict for Payment of Money promised,13 tho’ there was no other<281> Reason alleged why it should be due, but the free Consent of the Promiser, is said to be agreeable to natural Equity. And Paulus, the Lawyer, says,14 that he does naturally become a Debtor, who by the Law of Nations is obliged to pay, because we relied upon his Credit. Where this Word Obliged implies a certain moral Necessity, or an indispensible Obligation. Neither may we allow what Connanus says, that we are then reckoned to rely upon a Man’s Credit, when the Thing promised ceases to be intire, or has something of it already performed by one Party. For Paulus, in that Place, was treating of a personal Action, brought for a Thing paid where it was not due,15 which is entirely void, if the Payment was made upon any Agreement whatever.16 Because then, even when the Money was not yet laid down, and consequently, when the Thing was as yet entire, one was obliged by the Laws of Nature and Nations, to discharge one’s Promise; tho’ the Civil Law, to prevent the Occasions of litigious Suits, gives no particular Encouragement to demand it.
5. And M. Tully attributes so great a Power to Promises,17 that he calls Faithfulness the Foundation of Justice; which also18Horace calls The Sister of Justice; and the Platonists often term Justice, Ἀλήθειαν, Truth; which Apuleius19 has translated Fidelity, or the being as good as one’s Word. And Simonides20 makes Justice to consist not only in returning what we have received, but also in speaking Truth.
6. But to make this plainer, we must carefully distinguish the three Degrees or Manners of speaking about Things future, which either really are, or at least are thought to be in our own Power.
II.A bare Assertion does not lay one under an Obligation.II.1 The first Degree, or Manner, is a bare Assertion, signifying what we intend hereafter, in the Mind we are now in. And that this Declaration may be innocent, it is required, that we sincerely express what at that present Time we think, but not that we continue in that Thought. For the Mind of Man has not only a natural Power,2 but also a Right to alter a Design; and if there be any Fault in the Change, as it often happens, that is not essential to the Change, but proceeds from the Subject of it, because perhaps the first Opinion was the better.
III.That an imperfect Promise does naturally oblige, but no Right arises from thence to the Person who receives it.III. The second Manner, when the Will determines itself for the Time to come, is by giving some positive Token, that sufficiently declares the Necessity of its Perseverance. And this may be called an imperfect Promise,1 which setting aside the<282> Civil Law, obliges either absolutely or conditionally; but yet gives no Right, properly so called, to him to whom it is made. For it happens in many Cases, that we may lay ourselves under an Obligation, and at the same Time give no Right to any other over us,2 as appears in the Duties of Charity and Gratitude; and of this Kind is the Duty we are talking of, of religiously keeping our Words. And therefore no Man can by the Law of Nature, from such a Promise demand or detain what belongs to the Person so promising. Nor can he be compelled by that Law to perform what he has promised.
IV.What that Promise is from whence a Right to another does arise.IV. A third Degree is, when to this Determination we add a sufficient Declaration of our Will to confer on another a real Right of demanding the Performance of our Promise. And this is a compleat Promise, as having the same Effect as the Alienation of a Man’s Property. For it is either an Introduction to the Alienating of a Thing, or the Alienation of some Part of our Liberty. To the former belong our Promises to give, to the latter our Promises to do something. And of this the Scriptures give us a notable Proof, where they tell us, that1 GOD himself, who cannot be obliged by any Law imposed by another, would act contrary to his own Nature, not to perform what he promised, Neh. ix. 8. Heb. vi. 18. and x. 23. 1 Cor. i. 9. and x. 13. 1 Thess. v. 24. 2 Thess. iii. 3. 2 Tim. ii. 13. whence it is plain, that to perform Promises is a Duty arising from the Nature of immutable Justice, which as it is in GOD, so it is in some Measure common to all such as have the Use of Reason.2 Add to this Solomon’s Judgment in the Affair, Prom. vi. 1, 2. My Son, if thou hast been Surety for thy Friend, thou hast tied up thy Hands to a Stranger, thou art ensnared by the Words of thy Mouth, thou art taken by the Words of thine own Mouth. And from hence it is, that a Promise is called by the Hebrews אסדה, a Bond, or a Chain, and is3 compared to a Vow, Num. xxx. 4, 5, 6. And so is the Original of the Word ὑπόσχεσις, observed by Eustathius, upon the second of the Iliad, Ἁλέσκει γὰρ πω̂ς καὶ κατέχει τὸν ὑποσχόμενον ὁ τὴν Ἐπαγγελίαν δεξάμενος, He who receives the Promise,4seizes upon, and binds the Promiser: Which is very well expressed by Ovid in his second Book of Metamorphoses, where the Promiser says to the Promised, Vox mea facta tua est, My Word is become yours.5
2. These Things being premised and understood, we may easily answer Connanus’s Arguments. For what the Lawyers say of abare Promise, has Respect only to6 what was introduced by the Roman Laws, which made a Stipulation7 <283> in Form, an undoubted Sign of a deliberate Mind. Nor do we deny but that such Laws are in Force among other Nations. What Law does oblige us to perform a bare Promise? says Seneca, speaking of a human Law, and8 a Promise under no solemn Form.<284>
3. But there may be naturally other Signs of a deliberate Mind, besides this Stipulation, or any other Thing like it, which the Civil Law requires to create an Action. And indeed, as for that which is made without Deliberation, we do not allow it to have any Power of obliging at all, as Theophrastus9 has observed in his Book about Laws. Nay, and as to what is done deliberately, but not with an Intent thereby to transfer a proper Right to another, we deny that from thence there arises naturally a Right to any Man to demand any Thing of us in Strictness, tho’ we acknowledge, that we ought, not only for our Reputation, but also by a Sort of moral Necessity, to perform what we have thus promised. As to that Passage of Cicero, we shall treat of it below, when we come to speak how Agreements are to be understood; but now let us see what Conditions are required to make a Promise perfect.
V.First, to make a Promise compleat, it is required that the Promiser have the Use of his Reason; where the Law of Nature is distinguished from the Civil Law in the Case of Minors.V. 1. First, It is required that the Promiser should have the Use of his Reason;1 therefore the Promises of Madmen, Ideots, and Infants are void. But the Case of Minors is not the same; for tho’ they are supposed not to have a perfect Judgment, as are also Women, yet that is not always so, nor is it of itself sufficient to render their Acts invalid.2
2. But at what Years a Child comes to the Use of Reason, cannot be certainly determined; but must be judged either from his daily Actions, or from the general Customs of every Nation. Among the Hebrews,3 a Lad after thirteen Years of Age might oblige himself by any solemn Promise, and a young Woman after twelve. In other Places the Civil Law, for very good Reasons, declares many Promises of Pupils and Minors void, and that not only among the Romans, but the Grecians too, as is observed by Dion Chrysostom, in his seventy-fifth Oration.4 And some they qualified by the Benefit of a Restitution; but these are the peculiar Effects of the Civil Law, and therefore have nothing common to the Law of Nature and Nations, unless it be that where they are received, there it is natural that they should be observed.5 And therefore, if a Foreigner makes a Bargain with a Native, he shall be obliged by the Laws of his State, because he who enters into a Contract in any Place, is a Subject for the Time being, and must be obedient to the Laws of that Place.
3. But it is quite a different Case, if the Bargain was made either upon the Seas, or in a desert Island, or by Letters between Persons at a Distance. For such Contracts are to be regulated only by the Law of Nature; as also such Agreements as pass between Sovereigns, considered as such. For what they do in a private Capacity may by the Laws be made void,6 when it is in their Favour, but not when they will be Sufferers by it.
VI.Whether a Promise given thro’ Mistake does naturally oblige us, and how far it does so.VI. 1. As for a Promise made by an Error or Mistake,1 the Point is more intricate and perplexing. For it is usual to distinguish an Error, which concerns the Substance of the Thing, from that which does not concern it. Whether any Fraud gave Occasion to the Promise or not. Whether the Person with whom we<285> deal was privy to, or had any Share in that Fraud. Whether it be an Act of strict Right and Justice, or only such as our Honour and Reputation would incline us to. For the Opinions of Writers differ according to the Variety of these Cases, declaring some Acts to be void, and others valid; but so, that it is wholly at the Pleasure of the Person injured, either to repeal or reform them. But most of these Distinctions come from the Roman Laws, as well from the old Civil Law, as from the Praetorian, and some of them are not perfectly true, or well digested.
2. But in Order to find out the natural Truth, it will be proper to apply here a Maxim concerning the Force and Efficacy of Laws, which has been ever allowed by the general Consent of all People, viz. that2 when a Law is founded upon the Presumption of a Fact, that was not really so, then that Law shall not oblige, because the Truth of the Fact failing,3 the whole Foundation of the Law fails with it. And when a Law is founded upon such a Presumption, may be gathered from the Subject of the Law, from the Words of it, and from the Circumstances. So we may say too,4 that in Case a Promise be made upon the Presumption of a Fact, that is not really so as the Promiser believed, that Promise is naturally of no Force; because the Promiser did not give his Consent to the Thing absolutely, but upon such and such Conditions, as are not verified by the Event. To which we may refer that Question in Cicero, De Orator. 1. of him5 who falsely believing his own Son to be dead, had made another his Heir.
3. But if the Promiser were negligent, in searching out the Truth of it,6 or in expressing his own Sense, and thereby caused any Damage to the other; the Promiser shall be obliged to repair it, not by Vertue of the Promise, but on the Account of the Damage occasioned through his Fault, of which we shall treat more by and by. But if there were a Mistake in the Promiser, and yet that Mistake was not the Occasion of the Promise, the Act shall be valid, because there was nothing wanting of the true Consent; but in this Case also, if the Person to whom the Promise was given, did by any Fraud7 of his Occasion that Mistake, he shall be obliged to repair any Damage that shall arise to the Promiser from that Mistake, from that other Principle of Obligation. But if the Promise was but in Part caused by a Mistake, the Promise shall as to the Rest stand good.
VII.A Promise made thro’ Fear obliges; but he who caus’d that Fear is bound to disengage or idemnify.VII. 1. There is no less perplexing a Question about a Promise made through Fear,1 for here too People generally distinguish between Fear, that is extremely great, either absolutely, or with Regard to the Person apprehensive, and that which is slight and inconsiderable; whether occasioned justly or unjustly; whether by the Person who receives the Promise, or by some other. They also distinguish between such Acts as are purely gratuitous and such as both Parties are interested in; and according to these Differences it is, that some Acts are said to be void,<286> others revocable at the Will of the Promiser, and others to be wholly remitted; concerning every one of these Cases, there is a great Variety of Opinions.
2. For my Part I wholly agree with them who hold that, setting aside the Civil Law,2 which sometimes quite takes away, and sometimes lessens the obligatory Power, he who through Fear has promised any Thing, is obliged to perform it, because his Consent here was absolute, and not conditional, as in the Case of an Error. For, as Aristotle has well observed,3 he who through Fear of Shipwrack, throws his Goods over-board, would gladly preserve them, provided there was no Storm, and he in no Danger of being lost; but upon Consideration of the Time and Place, he absolutely resolves to part with his Goods, rather than be himself destroyed. But yet I must allow, that if the Person to whom the Promise was made, did cause not a just but an unjust Fear, and this a very small one too, yet if the Promise was, upon this Motive, made, he is obliged to discharge the Promiser,4 if he desire it; not that the Promise is in itself void, but on Account of the Damage unjustly caused by extorting the Consent. But what Exceptions the Law of Nations allows in this Case,5 shall be explained below, in its proper Place.
3. But that some Acts are made void6 on the Account of Fear, which Fear was occasioned not by him with whom we were dealing, but by another, is an Effect of the Civil Law, which often nulls Acts, tho’ freely done, if the Doer be of weak Judgment, or leaves it to his Choice, either to stand to or go from his Word. And here what we have said before, concerning the Force and Efficacy of the Civil Law,7 we would have again remembered. But what Force Oaths add to the Confirmation of Promises, shall be shewed hereafter.<287>
VIII.To make the Promise valid, it must be in the Power of the Promiser to perform it.VIII. 1. To make a Promise firm, it is requisite, that the1 Thing promised either now is, or may be, in the Power of the Promiser; wherefore in the first Place, it is certain, that no Promise can oblige us to that, which is in itself unlawful; for no Man has a Power to do any such Thing, or can have. But a Promise (as we said before) receives its Force from the Power of the Promiser, nor does it reach any farther. Agesilaus2 being once challenged upon his Promise, answered, Ναὶ δη̂τα, εἰ δ’ ἐστὶ δίκαιον· εἰ δε μὴ ἔλεξα μὲν, ὡμολόγησα δ’ οὐ, Very well, if it is just; but if not, I only said it, I did not promise it.
2. If the Thing be not now in the Power of the Promiser, but may in Time be, the Validity of the Promise remains suspended till that Time,3 because the Promise must then be supposed to be upon this Condition, that it ever be in his Power. But if that very Condition, by which the Thing is to come into the Promiser’s Power, be in his Power too, then the Promiser shall be obliged to do whatever is morally possible for procuring the Accomplishment.
3. But the Civil Law, for Reasons of publick Advantage, nulls many Promises of this Kind also, which the Law of Nature would oblige us to; as that of a Man or Woman already married, who promise some future Match,4 and several other Promises made by Minors, and Children while under their Parents.
IX.Whether a Promise made on an ill Account be valid; this explained by a Distinction.IX. Here it is usual to enquire, whether a Promise made upon a Motive that is naturally dishonest and criminal,1 can be valid by the Law of Nature; as if a Man should promise any Thing to him that should kill another: That this is a criminal Promise, is plain enough from this, in that it was made designedly to tempt a Man to do what he ought not to do. But yet not every Thing that is ill done, does lose the Effect of a just Right,2 as appears from a profuse and extravagant3 Deed of Gift. Here is the Difference, as soon as ever the Gift is made,<288> the Evil ceases, for a Man does not do ill in leaving to the Donee what he gave him. But in Promises made on an ill Account, the Evil remains till the Crime is committed; for so long, the very fulfilling of the Promise, being an Inducement to what is ill, carries a Stain along with it, which begins to wear off as soon as the Crime is committed: Whence it follows, that the Validity and Efficacy of such a Promise continues in Suspence till that Time, as I said before concerning Things promised, the Execution of which is not yet in our Power; but the Crime being perpetrated, the Obligation immediately exerts its Force, which from the Beginning was not intrinsically wanting, but was hindred by the moral Evil of the Engagement. An Instance we have of this in Judah, Jacob’s Son, who performed his Promise to Thamar, whom he reputed an Harlot, sending her the promised Reward4 as her Due. But now if the Promise be occasioned by the Injustice of the Person to whom it is given, or the Bargain be unfair, and there is any Inequality in the Agreement, how this is to be amended is another Question,5 of which we shall treat very quickly.
X.What we are to judge of a Promise that entitles us to something due before.X. But when a Promise is made on the Account of something already due,1 it is not therefore the less obligatory, if we respect natural Right alone, according to what we said above, concerning our accepting what is another’s. Because a Promise is a natural Debt, even when made without any Cause. But here also any Damage that arises by Extortion, or any Inequality in the Agreement shall be repaired, according to the Rules which shall be laid down a little lower.
XI.The Manner of making a firm Promise in our own Persons.XI. As to what concerns the Manner of promising, it requires, as I said before, concerning the transferring of Property,1 an external Act, that is some sufficient Sign to testify the Consent of the Will, which may sometimes be done by a Nod, but generally by Word of Mouth or Writing.
XII.The Manner of confirming a Promise made by others, and of Ambassadors who go beyond their Commissions.XII. But we may also be obliged by what1 another Man does, if it appears that we have deputed and impowered him to act for us,2 either as our Proxy3 in that particular Affair, or by Vertue of some general Qualification; it may also happen, where the Commission is to act in general, that the Person so commissioned may lay us under an Obligation, tho’ he acts contrary to our Will, signified to him in his private Instructions; for here be two distinct Acts of the Will, the one whereby we oblige ourselves to ratify whatever our Proxy shall do in such a Business; the other, whereby we oblige our said Proxy, that he shall not act beyond some private Instructions that are known to him and no Body else. This is to be well observed,4 in Relation to those Things which Ambassadors promise for their Principals, who by Vertue of their publick Powers and Credentials, do sometimes exceed their secret Orders.<289>
XIII.How far the Master of a Ship, and Factors, are obliged by the Law of Nature; where also is observed the Error of the Roman Law.XIII. Hence we may understand, that an Action brought against1 the Owner of a Ship, on Account of the Master, and that against a Merchant, on Account of his Factors, which indeed are not so much Actions,2 as Qualities of Actions, are founded upon the very Law of Nature; and here too I cannot but observe, that it is very ill done of the Roman Laws, to make every Man to whom the Ship belongs3 become wholly responsible for whatever the Master does. For this is neither agreeable to natural Equity, which is satisfied, if every one be bound4 for what concerns himself, nor is it advantageous to the State, for Men would be discouraged from sending Ships to Sea,5 if they were afraid of being, as it were, infinitely accountable for what the Master of the Vessel did. Insomuch that in Holland, where Merchandize has of a long Time mightily flourished, this Roman Law, neither formerly, nor now, is of any Force. Nay, on the contrary it is ordered, that the whole Company in general shall be answerable no farther, than the Value of the Ship, and of the Goods that are in it, amounts to.
XIV.A Promise must be accepted before it can be binding.XIV. But that a Promise may transfer a Right,1 the Acceptance of the Person to whom it is made is no less required here,2 than in the Case of transferring a Property; yet so, that here also a precedent Request shall be judged to subsist, and to have the Force of an3 Acceptance. Neither does that which the Civil Law has introduced, concerning imperfect Promises4 made to the Publick, hinder this, which Reason, however, has so far prevailed with some, that they presume that the sole Act of the Promiser is by the Law of Nature sufficient. For the Roman Law does not say, that the Force of the Promise is compleat before it be accepted; but only forbids to revoke it,5 that it may be always accepted; which Effect is not from the Law of Nature, but merely from the Civil Law. Not much unlike to which is what the<290> Law of Nations has introduced in Favour of Infants and Madmen: For in such as these the Law supplies the Intention, both of possessing Things which are required by Possession, and of accepting what is promised or given.
XV.Whether this Acceptance should be signified to the Persons promising, explained by a Distinction.XV. It is also sometimes disputed, whether (to make a Promise valid) it be enough that it is only accepted, or that the Acceptancen also be signified to the Promiser before it can obtain its full Effect; and it is certain, that either Way the Promise may be obliging. As thus, This Engagement shall stand good, if it be accepted; or thus, This shall stand good, if I understand that it is accepted. In those Promises indeed, which imply a mutual Obligation, the Engagement is to be understood in the latter Sense;1 but in Promises of mere Generosity it is best to suppose, that it was meant in the former Sense, unless it evidently appears to the contrary.
XVI.Whether a Promise may be revoked, the Person to whom it was given dying before he had accepted of it.XVI. Hence it follows, that before Acceptance (for till then no Right is transferred) a Promise may be revoked without Injustice, nay, and without the Imputa-<291>tion of Fickleness too, if it were really so intended, when first made,1 that it should not begin to be of Force till the Time of its being accepted. It may be also revoked, if the Person to whom the Promise was given die before Acceptance; because it seems to be referred to his own Choice, and not to that of his Heirs. For it is one Thing to be willing to give away a Right to such a Man, and by him to be transferred to his Heirs, and2 another Thing to be willing to give it indifferently to him or his Heirs; for it is very material to consider on whom we confer a Kindness. And this is what Neratius answered,3 that for his Part he could not believe, that the Prince would have granted that to one who was dead, which he had granted to him, supposing him alive.
XVII.Whether it may be revok’d upon the Death of the Person employ’d to signify it, explained by some Distinctions.XVII. 1. A Promise also may be revoked upon the Death of the Person, who was employed to signify the Intention of the Promiser, because the Obligation lay in his Words. But it is otherwise, if the Person sent upon this Errand were a common Messenger or Carrier, who is not the Instrument of the Obligation himself, but only the Bearer of the Deed that contained the Obligation. And therefore the Letter, or Writing, which declares such a Consent, may be carried by any Body else. We must also distinguish between him who is deputed to signify the Promise we make, and one who is authorized by us to make that Promise himself. In the former Case a Revocation shall be of full Force, tho’ it be not known1 to him who carries the Promise. But in the other the Revocation will be invalid;2 because the Right of promising depended on the Will of the Person commissioned; and consequently, if he know nothing of the Revocation, he commits no Fault in promising. So also in the former Case,3 though the Donor die, the Donation may be accepted, as being on one part compleated, though subject to a Revocation, as does more plainly appear in the Affair of Legacies;4 in the other Case it cannot,5 because it is not done, but only ordered to be done.
2. But in a dubious Case, it is to be presumed that it was the Will and Intention of the Person, who gave such Orders, that his Orders should have been executed, unless some great Change, such as the Death of the Person so ordering, should happen to intervene. But however, there may be some Conjectures6 which<292> may incline us to believe otherwise, and these we ought without any Difficulty to admit, to the End that what was ordered to be given upon any religious Account may stand good. And thus may the Question, which was formerly much canvassed, be answered,7 whether an Action upon that Order lies against the Heir. About which particular Case the Author of Lib. 11. to Herennius relates, that Drusus, the Praetor, decreed one Thing, and Sextus Julius another.
XVIII. Whether a Promise accepted by Proxy, may be revers’d, explained by some Distinctions.XVIII. 1. Disputes also frequently arise concerning1 the accepting of a Thing for another. In which Case we must distinguish between a Promise made to me of something to be given to another, and a Promise made directly to him to whom the Thing is to be given. If the Promise be made to myself, without considering whether I have any Interest in it, a Consideration that the Roman Law2 has introduced, I look upon it, that by the Law of Nature I acquire a Right of accepting, that thereby the Right of demanding the Performance of the Promise may pass to another, if he also will accept of it; so that the Promiser has no Right in the mean Time to revoke it; but I, who received the Promise, may, if I please, remit it. For this Sense is not against the Law of Nature, and also very agreeable to the Words of such a Promise; nor is it a Matter of Indifference, whether another obtains a Favour by my Means or not.
2. But if the Promise be made directly to the Person to whom the Thing is to be given; we must then distinguish whether the Accepter has a particular Commission to accept it, or one so general, as may be judged sufficient to include it; or whether he has no such Commission at all.3 Where such a Commission has been given before, there is no Occasion to enquire, whether the Person be a Freeman or no, which the4Roman Laws insist upon, but the Promise is compleat and in full Force by that Acceptance. Because a Consent may be conveyed, and signified by any third Person, whose Will is reputed mine, if impowered by me, and he readily takes it upon him. But if there be no such Commission, and yet this third Person, to whom the Promise is not made, accepts it with the Consent of the Promiser;5 then has the Promiser no Power to revoke the Promise, till he whom<293> it concerns shall either approve or reject it; yet so, that in the mean Time, he who has accepted of the Promise has no Power to remit it, because he was not employed to take any Right upon himself, but only to engage the Promiser’s Honour, in the Performance of the intended Favour; so that if the Promiser should pretend to revoke it, he may be said to break his Word, but not invade any Man’s Right.
XIX.Within what Time some Conditions may be tacked to a Promise.XIX. From what has been said we may easily understand, what we are to judge of any burthensome Condition annexed to a Promise. For that may be done as long as the Promise is not compleated by Acceptance,1 nor the Promiser’s Word and Honour given, that it shall be irrevocable. But a burthensome Condition annexed to a Promise, for the Advantage of a third Person, may be revoked, as long as it is not yet accepted by that third Person; tho’ there are some, who in this, as well as in other Questions, are of another Opinion. But to one that throughly considers the Matter, the natural Equity will so clearly appear, that there will be no Occasion for many Proofs.
XX.An invalid Promise may become obliging.XX. It is also sometimes disputed, how a Promise, occasioned by an Error or Mistake in the Promiser, may become valid; if the Truth of the Matter being known,1 the Promiser be willing to stand to his Promise. The same Question may also be put concerning Promises, which are obstructed and disapproved of by the Civil Law, as being occasioned by Fear,2 or any other Cause or Motive, when that Cause or Motive shall afterwards cease. For to confirm these, some think, that nothing is required but the internal Act or Intention of the Mind, which being joined with the former external Act, or open Declaration, they judge sufficient to create an Obligation. Others disliking this, because they cannot allow that any antecedent outward Act should be a sufficient Sign of an internal Act coming after it, require a new Promise, notified by Word of Mouth, and a new Acceptance. But the middle Opinion is nearest the Truth, which requires some outward Act, but not a verbal one, since the retaining of the Thing promised by the Person to whom it was promised, and the relinquishing of it by the Promiser, or some other such Circumstance, are enough to testify a real Consent.
XXI.Promises made without any Motive, are not therefore naturally void.XXI. But, to avoid confounding the Civil Law with the Law of Nature, it must be observed, that neither those Promises, nor those Donations,1 in which the Reason for making them is not expressed, are therefore naturally invalid.
XXII. Nor is any Man by his Promise that he makes for what1 another is to do, obliged to pay Damages and Interest, provided he omits nothing that on his Part he can possibly do,XXII.How far he who promises for what another is to do stands himself naturally oblig’d. in Order to get that other Man to perform his; unless the Words of the Promise, or Nature of the Affair, carry with them any stricter Ob-<294>ligation. He was discharged from his Engagement, (says Livy, Lib. 2.)2since it was no Fault of his, that it was not performed.
[1 ]See Chap. I. of this Book, § 2.
[2. ]Συνάλλαγμα, that is according to the Notion of the Roman Lawyers, whom that Author follows, an Engagement valid in Law. Now Engagements valid in Law were either Contracts, properly so called, which were distinguished by some particular Name, as Sale, Letting, Loan &c. or Agreements by Vertue of which there was somewhat in Fact, or actually given. Both of them are in general called not only Contracts, but also Affairs. (Negotia) Civil Affairs (Negotia Civilians) Civil Causes, &c. See Mr. Noodt’s excellent Treatise, De Pactis & Transactionibus, Cap. IX.
[3. ]Compare this with what I have said on Pufendorf, B. III. Chap. V. § 9. Note 2. I have since seen a Dissertation of the late Mr. Cocceius, intituled, De Jure circa Actus imperfectos, printed at Francfort on the Oder, in 1699. in which he maintains, Sect. II. That even by the Law of Nature, a simple Agreement is not Obligatory. But for Proof of this Paradox, he makes use of very weak Reasons, which seem as void of Solidity as those of the French Lawyer, refuted by our Author. I say the same of the Explication given by the same Cocceius, in his Dissertation, De Jure paenitendi in Contractibus, of what the Roman Law understands by Συνάλλαγμα, Sect. II. § 6. On Occasion of which he accuses our Author, § 7. Of not knowing what he says on that Subject.
[4. ]See Pufendorf, B. III. Chap. V. § 9. &c. with the Notes.
[5. ]The Passage shall be quoted in Chap. XVI. of this Book, Note 2.
[6. ]That is if the Person, to whom the Promise was made, has entered on the Performance of what he engaged to do in View of our Promise.
[7. ]The Laws are not, properly speaking, Covenants, though they are the Result of human Establishment, grounded on Covenants. See Pufendorf, B. I. Chap. VI. §2.
[8. ][[This footnote and the next are reversed by mistake in the original text. Rhet. Lib. I. Cap. XV. p. 545. Tom. II. Edit. Paris. That Philosopher else where defines Law, An Agreement made according to the common Consent of the People. Rhet. ad Alex. Cap. I.]]
[9. ]Orat. I. Adversus Aristogiton, p. 492. Edit. Basil. The Passage is quoted at Length in the Digest. Lib. I. Tit. III. De Legibus, &c. Leg II.
[10. ]Insomuch that the Hebrews maintain that Silence, in an Affair that will not admit of a Delay, has the Force of a direct Engagement. Baba Kama, Cap. X. § 4. Grotius.
[11. ]Institut. Lib. II. Tit. I. De divisione rerum, &c. § 40. These Words do not signify, as it may seem on first Sight, that a bare Declaration of a Will of alienating one’s Goods, is sufficient for transferring the Property of them on the Person in whose Favour that Will has been sufficiently intimated. For, according to the Roman Lawyers, who on this Occasion pay but little Regard to the true Principles of the Law of Nature, the Translation of Property can be effected only by the actual Delivery of the Thing alienated. All that is here meant, is, when a Man delivers a Thing with a Design of transferring the Property of it, (not of lending or depositing it) this, according to the Law of Nature, which Justinian re-establishes in its whole Force, is sufficient for transferring a full Right of Property; whereas before his Time, none but what were called Res Mancipi, could be thus alienated. See Chap. VIII. of this Book, § 25. Note 2.
[12. ]Digest. Lib. II. Tit. XIII. De Pactis, Leg. I.
[13. ]This our Author calls Pecunia constituta, in the Language of the Roman Lawyers, who likewise expressed it by one single Word Constitutum, as appears from the Law itself, from whence this Maxim is taken. Digest. Lib. XIII. Tit. V. De Pecuniâ constitutâ, Leg. I.
[14. ]Digest. Lib. L. Tit. XVII. De diversis regulis Juris, Leg. LXXXIV. § 1.
[15. ]Condictio indebiti. See Digest. Lib. XII. Tit. VI.
[16. ]Thus, for Example, a Creditor could not demand the Interest of his Money, if the Debtor had obliged himself to pay Interest by a simple Agreement only, and without a Stipulation in Form. See § 4. of this Chapter, Note 5. But if the Debtor had paid the Interest thus promised, he had no Action at Law for recovering it, as not due, provided he gave the Money on the Foot of Interest; for otherwise, the Sum received by the Creditor was reckoned into the Principal. Digest. Lib. XLVI. Tit. III. De solutionibus & liberationibus. Leg. V. § 2.
[17. ]De Offic. Lib. I. Cap. VII.
[18. ]Lib. I. Od. XXIV. ver. 6, 7.
[19. ]De habitud. Doctrin. Platonic, Lib. II. p. 15. Edit. Elmenhorst.
[20. ]Plato, De Republic. Lib. I. p. 331. Tom. II. Edit Steph.
[1 ]On this Distinction see Pufendorf, B. III. Chap. V. § 5, &c. The late Mr. Hertius observes, that our Author borrowed it of Dominic de Soto, Lib. VII. De Justitiâ & Jure, Quaest. II. Art. I.
[2. ]That is, when we have not laid ourselves under a Necessity of not changing our Mind, and there is nothing without us, that imposes that Necessity on us. See Pufendorf, B. I. Chap. VI. § 6.
[1 ]Pollicitatio. An imperfect Promise, according to Mr. Barbeyrac’s Version; who adds, that he could not express it otherwise. It is, continues he, a Term borrowed from the Roman Law, by which is understood A Promise, or free Offer, made to a City, State, Community, or in short, to any Body of Men, on a just Account; as, for Example, in View of some Employment, either to be conferred, or actually conferred on him, or for repairing the Damage done by Fire, Earthquakes, or the Fall of Houses, Digest. Lib. L. Tit. XII. De Pollicitationibus, Leg. III. Leg. I. § 1. Leg. IV. See Mr. Noodt’s De Foenere & Usuris, Lib. III. Cap. VII, concerning the Difference between a Donation and this Kind of Promise; which is not altogether the same with the imperfect Promise mentioned by our Author. For in this the Promiser doth not intend to give any Right, properly so called, to the Person in whose Favour he lays himself under a Necessity of performing what he promises. But in the Pollicitatio, the Promiser has a real Intention of giving a full Right to the Body, to which the Promise is made. The whole Difference between the Pollicitatio, and what our Author in the next Paragraph calls a perfect Promise, is that by Vertue of the Decision of the Civil Laws, the former is in full Force, and irrevocable, the Moment it is made, whereas the latter may be revoked, before the Acceptance, whatever Intention the Promiser might have had of giving a full Right to demand the Performance of his Promise.
[2. ]That is, not a perfect strict Right, by Vertue of which a Man may be forced to do what he is obliged to; as appears from what our Author says in the Close of this Paragraph. The Maxim here laid down can be admitted in no other Sense; for as for the Rest, all Obligations to another, answer to some Right, either perfect or imperfect; and this is sufficiently shewn by the Example of Gratitude. See Pufendorf, B. III. Chap. V. § 1. and what I have said on that Place, in a Note of the second Edition.
[1 ]So Baldus, Lib. I. D. De pactis.Grotius.
[2. ]See Pufendorf, B. II. Chap. III. § 5.
[3. ]Men do, as it were, enter into a Covenant with the Gods, by making their Vows to them. Schol. Horat.Grotius.
[4. ]From hence they are called the Bonds of our Credit. Donat. ad Eunuch.Grotius.
[5. ]These are the Words of Apollo to his Son Phaeton, when, after he had sworn by the River Styx to grant whatever he should ask, that head strong young Man For what the Lawyers say of desired the driving the Chariot of the Sun for one Day,
Which signifies, The rash Request you have made shews that I promised too hastily. Here is nothing that comes near the Sense which our Author had in his Mind. But either his Memory failed him, or he was misled by some faulty Edition, and read,
[6. ]It is very judiciously observed by Paulus, Sent. Lib. XI. Tit. XIV. If there be only a bare Promise to pay Interest, it signifies nothing, for among the Roman Citizens, a bare Promise bears no Action.Grotius.
[7. ]See Mr. Noodt’s Treatise De Pactis & Transactionibus, Cap. X. In Order to enter better into our Author’s Notions, it will be proper here to set down what we find delivered at large in one of his Letters, written for the Instruction of his Brother some Years before the Publication of the Work before us. “The Romans, says he, did not design to give all Promises made vivâ voce, such a Force of obliging, as that the Person to whom a Promise is made in that Manner, should always have a Right to demand the Performance of it; which is a natural Consequence of all Obligations merely natural. It is asked, whether Legislators really had such a Power, since Justinian himself acknowledges that the Principles of the Law of Nature are immutable? The Difficulty appears the more considerable, as the Maxims of the Law of Nature in Respect to Agreements and Promises are not reduced to a bare Permission; but imply a positive Order and a real Obligation. Now it may happen two Ways, that a human Legislator may permit a Thing seemingly contrary to the Law of Nature: Either by not acting at all; or by giving a Right to act. The Legislator doth not act at all, when he doth not punish, for Example, Lies, Fornication, and such other Crimes, contrary to the Law of Nature and the Law of GOD. He gives a Right to act, when, for Example, he authorises a Man to keep a Thing honestly acquired by Prescription. The Question is, which of the two takes Place in Promises, and Agreements made without a Stipulation in Form: Whether the Civil Law only hinders a Man from suing for what is due by Vertue of such Engagements, or whether it moreover gives a real Right to break through them? There are Difficulties on both Sides; but the latter may very well be maintained; because supposing the Civil Laws really authorize a Person to break his Word in the Case under Consideration, they yet do nothing contrary to the Law of Nature. For the Law of Nature doth not require purely and simply, that a Man should be obliged to stand to the Performance of all he has promised; but only on a Supposition that he has promised what he had a Power to promise; in the same Manner, as all Alienations are not valid by the Law of Nature, but only those whereby we alienate what we have a Power to alienate. In Reality, to be truly a Debtor, it is necessary that the Person had a Permission to contract the Debt: In Order to enter into an Obligation, the Person must be at Liberty to engage himself: To make an Alienation valid, a Man must have the full and whole Property of the Goods so disposed of. Now the Civil Laws, without clashing with the Law of Nature, and even in a Manner approved of and advised by that Law, may lay a Restraint on each Man’s natural Power of entering into an Obligation, either to the Advantage of the Promiser, or for the publick Good. Thus a Vow made by a Daughter, without her Father’s Consent, is by GOD himself declared null and void. Numb. xxx. 5. And natural Equity requires that some Sort of Restraint should be laid on the Force of a Consent given by Persons of weak Judgment and easily surprised; as is declared in the Roman Law, in Relation to the Guardianship of Minors. Digest. Lib. IV. Tit. IV. De Minoribus, &c. Leg. I. When therefore the Civil Laws declare a Promise or Agreement null, they order nothing contrary to the Law of Nature. For they do not dispense with a Person’s performing what he had a Power to promise; they only take away that Power, and consequently prevent there being any Obligation even according to the Law of Nature; for a Person lies under no Obligation, when he has promised what he could not promise: So that the Law of Nature is not changed in such Cases; all the Change is in the Matter or in the Subject.—Though Persons at Age have commonly more Judgment than Minors; some People are very forward in promising. So that the Civil Laws cannot do better than prescribe certain Forms for obligatory Promises, to hinder too hasty Engagements, and in some Measure caution Men to think well of what they do. We see they proceed in the same Manner in Relation to Wills, in Order to prevent Surprizes, to which some Persons are exposed from the Practice of the crafty and artful, &c.” Part II. Epist. XII.
[8. ]That is, not ratified as the Law directs in such Cases. So in his nineteenth Epistle he makes this Distinction, Jam non promittunt de te sed spondent. They now do not promise but engage for you. A Stipulation and an Engagement is called by Paulus, A Solemnity of Words, Lib. V. Sent. and by Cajus Tit. De Obligationibus quae ex consensu fiunt.Grotius.
[9. ]That Philosopher says, It is safer to trust a Horse with his Bridle on his Neck than loose Words.Diogen. Laert. Lib. V. § 39. But our Author here had his Eye on Stobaeus, Serm. XXIV. Where there is an Extract taken probably from Theophrastus, Treatise of Laws; as appears from the Title, under which Stobaeus has placed that Extract.
[1 ]See Pufendorf, B. III. Chap. VI. § 3. &c.
[2. ]Tho’ a Person is not endowed with all possible Prudence, and Judgment; if he has Understanding enough to know what he does, and to determine with Deliberation; the Promises and Agreements made by him are valid, according to the Law of Nature, when there is no Error on the Promiser’s Side, or no Fraud on the Side of the Person, to whom the Promise is made.
[3. ]See Selden, De Successionibus in Bona defunctorum, Cap. IX.
[4. ]See Pufendorf, B. III. Chap. VI. § 4. Note 3.
[5. ]Judges are undoubtedly obliged to make this the Rule of their Sentences. But it does not follow that all Obligations contracted by a Minor, are void, so that, according to the Law of Nature and in Conscience, he is always excused standing to his Promise. See Note 5. on Pufendorf, as last quoted.
[6. ]See Chap. XIV. of this Book, § 2. Num. 3, 4.
[1 ]See Pufendorf, B. III. Chap. VI. § 6, &c.
[2. ]See an Instance in L. Mancipia, C. de Servis fugitivis, in Gailius, Lib. I. Obs. XI. Num. 7. and in Molinaeus, Ad Consuet. Paris. Tit. I. Sect: XIII. Gl. III. Grotius.
[3. ]See Chap. XVI. of this Book, § 8.
[4. ]Seneca, De Benefic. IV. Cap. XXXVI. He is a Madman that stands to a Mistake.Grotius.
[5. ]De Oratore, Lib. I. Cap. XXXVI. See Pufendorf, B. III. Chap. VI. § 6. Note 5. in the second Edition.
[6. ]We must distinguish here between Promises of pure Generosity, and Agreements, where a Promise is made with a View to something promised by the other Party in his Turn. In the former, as they are a pure Effect of Liberality, the Promiser is responsible only for his Sincerity. As nothing but his own good Will engages him to promise; so nothing obliges him to examine all Things with the utmost Exactness. Acts of Kindness would certainly be too burthensome, were Men obliged to pay, as it were a Fine, whenever designing to do another a Favour, and thinking himself able to do it, he is disappointed of his Hopes. If therefore the Person, to whom the Promise was made, has depended on it, as on a Thing, which could not fail; it is his Fault and not ours; as well as when a Man has not expressed himself with sufficient Clearness. For it was his Business to call for an Explanation of what lay open to some Ambiguity; when this is not done, it is presumed that we thought ourselves sufficiently understood. But in Regard to Agreements, where both Parties have an Interest, a Man may be answerable for his Negligence in not examining the Thing in which a Mistake lies, and not expressing himself in a sufficient Manner. This is to be judged of according to the Circumstances, whereby it is the Business sometimes of one of the Parties, and sometimes of the other to speak with the utmost Exactness, or examine every Thing.
[7. ]Concerning the Effect of Fraud in Promises, and Agreements, see the Text and the Notes on Pufendorf, B. III. Chap. VI. § 8. To which add the notes on the Abridgment of The Duties of a Man and a Citizen, B. I. Chap. IX. § 13. Second Edition.
[1 ]See Pufendorf, B. III. Chap. VI. § 9. &c.
[2. ]The Civil Laws, precisely speaking, never hinder a Man from obliging himself validly in Conscience, and according to the Law of Nature, when he had a serious Intention of so doing, and there are none of these Defects which naturally make the Obligation void. The vacating of the Contract, and the Restitution, which they grant, is but a Favour, which may be renounced; and a Man is supposed to renounce, whenever, being unacquainted with the Law, he made a serious Bargain concerning the Things for which that Favour is granted. So that, supposing Promises and Agreements made under the influence of Force really obligatory by the Law of Nature; the Civil Law, which declares such Engagements null and void, and relieve those who have contracted them, do not remove the Obligation in Conscience of standing to them.
[3. ]Ethic. Nicomach, Lib. III. Cap. I. p. 28. Tom. II. Edit. Paris.
[4. ]But, if the Promiser has really given his Consent, what signifies enquiring, whether the Fear be just or unjust? No Wrong is done to the Person who consents. Besides, this useless Circuit of our Author shews how far his Ideas are from being just. See what is said on Pufendorf, as quoted in Note 1.
[5. ]In this Book, Chap. XVIII. Sect. XVIII. XIX. and B. III. Chap. XIX. Sect. II. Grotius.
[6. ]Seneca following Nature, Controv. Lib. IV. Contr. XXVI. delivers himself thus, What is transacted through Compulsion and Necessity may be repealed, if this Compulsion and Necessity was occasioned by the Party concerned in the Bargain: For it is nothing to me, says he, how you are imposed upon, if I don’t impose upon you. It must be my Fault, if I am to suffer for it. Compare with this what you have lower, B. III. Chap. XIX. Sect. IV. Grotius.
[7. ]What our Author would have his Readers remember and apply in this Place, is what he has said in the foregoing Paragraph, Num. 2. So that his Opinion is, that in order lawfully to require the Person to whom we have made a Promise, should release us from the Promise, which was valid, tho’ forced; or to excuse our selves from standing to such a Promise, as being really null, by Vertue of the Civil Laws, which deprive it of the Force it would otherwise have had; the Fear must be real, and not a bare Panic Fear. So that though a Person, by the Influence of Fear, is determined to enter into an Engagement, which he would not have contracted without it; if however, he had no Reason to fear, either on the Part of him with whom he treats, or of a third Person, so much the worse for him. The Fact, supposed by the Law, has no Place here, and consequently the Favour of the Law ceases. This I take to be our Author’s Meaning, though he has not sufficiently explained himself. As to the Thing itself, in my Opinion, the Whole depends on knowing whether the other contracting Party knew that the Person thus determined to treat against his Will was influenced by a Panic Fear, or not. For if he knew it, he ought not to take Advantage of it; and in that Case, the Consent requisite in Agreements, is not thereby less destitute of the Liberty requisite, so far as he is concerned.
[1 ]See Pufendorf, B. III. Chap. VII.
[2. ]This is related by Plutarch, Apophthegm Laconic. p. 208. Tom. II. Edit. Wech.
[3. ]Consult Pufendorf, B. III. Chap. VIII. § 4.
[4. ]It is certain that, commonly speaking, such Promises are suspected of betraying such Sentiments as are contrary to what married Persons ought to entertain one for another, and therefore may easily imply something dishonest? But still we may conceive Cases, where they may be made without any Violation of Conjugal Fidelity. Mr. Thomasius produces two, in his Remarks on Huber, De Jure Civitatis, Lib. II. Sect. VI. Chap. III. § 13. Let us suppose, says he, that in the Time of a Plague, two married Friends agree, with the Consent of their Wives, that if one of the Husbands and one of the Wives die, the two Survivors shall marry. Again, let us suppose a virtuous Woman married to a debauched Husband, who takes no Care of her and her Children, but squanders away his Money: A prudent Friend to whom she has communicated her Griefs, promises to serve her with his Advice, and all in his Power; and farther, engages to marry her in case her Husband dies. There is nothing in all this but what is very innocent.
[1 ]Concerning the whole Affair of unlawful Promises and Agreements, see what I have said in a long Note in the second Edition of Pufendorf, B. III. Chap. VII. § 6. Note 2. To which may be added two small Pieces, in which while I was applying my Principles to a considerable Example, I have taken Occasion to clear up this Question still more; a Question, in its self difficult, and which, in my Opinion had not been well handled. These Pieces may be seen in the Journal des Scavans: One in the Month of August, 1712. Edit. Paris. (October, Edit. Amst.) the other in the Month of December, 1713. (February and March, Edit. Amst.) Mr. Gundling, Professor at Hall in Saxony, has expressed his Dislike of my Notions, in his little Treatise of the Law of Nature, published under the Title of Via ad Veritatem. But as he has not undertaken to confute my Reasons, either on that Subject; or on some others, where he rejects my Opinion; I am not as yet obliged so much as to doubt of their Solidity.
[2. ]See Chap. V. of this Book, § 14. Num. 5. and § 16.
[3. ]That is, when a Person, who has a full Right to dispose of his Goods, is injudiciously liberal, and gives without Reason, Choice or Rule. The Author explains himself in his Treatise, De Imperio Summarum Potestatum circa Sacra, Cap. V. § 11. A private Man, says he, who has the full Disposal of his own Goods, has with a rash Liberality given his Estate to others. This is a vicious Action; but the Alienation is valid.Ziegler and Tesmar, two Commentators, have ventured to advance, one by Way of Doubt, and the other in the Form of an Assertion, that there is no moral Evil in such a Donation. It is diverting to see them instancing in pious Donations, and what the young Man in the Gospel ought to have done, whom our Lord commanded to sell all he had, and give the Money to the Poor. It might easily be made appear that pious Donations, with how good an Intention so ever made, may be and often have been faulty in several Respects.
[4. ]By the Law of Nature, I mean, which was the Rule that Men then lived by. C. Aquilius was of another Opinion from the Civil Law, as is testified by Valerius Maximus, Lib. VIII. Cap. XI. Num. 2. Grotius.
[5. ]Cap. XII. Sect. IX. X. XI. Grotius.
[1 ]See the Chapter in Pufendorf, which I have quoted several Times, § 9.
[1 ]Here also consult Pufendorf, B. III. Chap. VI. § 16.
[1 ]This Subject is treated by Pufendorf, B. III. Chap. IX.
[2. ]See Chap. VI. of this Book, § 2. Note 1.
[3. ]Servius, upon that Passage of the ninth Aeneid,
says, this was done by People sent by each Party for that Purpose. Grotius.
[4. ]See an Instance of this in Mariana, XXVII. 18. another in Guicciardin, Tom. I. Grotius.
[1 ]The former is called in the Original Actio exercitoria: The latter Actio institoria. See Digest. Lib. XIV. Tit. I. and III.
[2. ]That is, that when one has lent Money, for Example, to the Master, or Factors; the Action which the Creditor has on that Account is not so much a particular Sort of Action, as an Action for Money lent to a Person borrowing in another Man’s Name. And hence it is that a Man had also a personal Action directly, on the Account of a Loan, against the Master of the Vessel, or the trading Master. Institut. Lib. IV. Tit. VI. Quod cum eo contractum, &c. § 8. See Hubert Giphanius, and Theodore Marcilly on this Paragraph.
[3. ]Digest. Lib. XIV. Tit. I. De exercitoriâ Actione, Leg. I. § 25. and Leg. II.
[4. ]If we consider the Partners one with Regard to the other, natural Equity certainly requires that each should be responsible for his own Part only. But he who is supposed to have contracted with them by Means of the Master, is naturally supposed to have contracted, not with this or that Partner in particular, but with all the Partners in general, or with the Company. So that he may sue which of them he pleases, because they are all obliged in solido one for the other. The Master, with whom the Contract is made, represents all the Partners in general: He is not more Agent for one than for another, and it is on that Foot that the Contract is made with him.
[5. ]But, as the Commentators observe, it will be said on the other Hand, that few People would contract with the Master, if they knew they could come on the Partners only for each Man’s Part; for, beside the Danger of some of them proving insolvent, it would be very troublesome to have as many Law-Suits as there are Persons, who sometimes live in different Places. So that this Inconveniency counterbalances the other. And where would be the Advantage of not discouraging such as send Ships to Sea, if those, with whom the Master may have to do, in the Navigation and Trade, with which he is charged, are discouraged from contracting with him? The Truth is, that the Civil Laws may in this Case make such Regulations as are judged proper; and that Men are supposed to engage on the Foot of such Regulations.
[1 ]See Pufendorf, B. III. Chap. VI. § 15. According to the Roman Law, He who writes to an absent Slave, that he may have his Liberty, doth not intend immediately to quit the Possession of his Slave; but rather to fix his Will in that regard to the Time that the Slave receives his Letter. Digest. Lib. XLI. Tit. II. De adquirenda vel amittenda Possessione, Leg. XXXVIII.
[2. ]Tertullian, speaking like a Man who was perfectly acquainted with the Laws, says, in his Book De Jejuniis, A Vow, when GOD has accepted it, is for the future as obliging as a Law.Grotius.
[3. ]See Chap. VI. of this Book, § 2.
[4. ]That if a Promise is freely made, the Thing may be claimed as a Debt. Digest. Lib. L. Tit. XII. De Pollicitat. Leg. III. See what has been said, Note 1. on § 3. Pufendorf, in the Place by me quoted, gives a different Answer to the Objection taken from this Law. But the Matter is of small Importance, because we are speaking of the Civil Law, which may give certain Acts a Force that they would not have had by the Law of Nature; as it may take from others that which they might have naturally.
[5. ]See such another Law of the Wisigoths, Lib. V. Tit. II. Cap. VI. Grotius.
[1 ]This is likewise Pufendorf’s Opinion, B. III. Chap. VI. § 15. In which our two Authors follow the Decision of a celebrated Scholastic, Lessius, De Justitiâ & Jure, Lib. II. Cap. XVIII. Dub. VI. whose Words Mr. Vander Muelen here quotes, and at the same Time approves of the Thought. I am of Opinion, however, that the Question ought to be decided in a quite contrary Manner. As Men are more easily induced to promise, when it is done for their own Interest, and in View of some other Thing they demand in their Turn; they are and commonly may be supposed to will the Effect of such a Promise, from which some Advantage will accrue to us or ours, more invariably than that of gratuitous Promises. The late Mr. Huber, De Jure Civit. Lib. II. Sect. VI. Cap. III. § 9. maintains, but without offering any Reason for it, that, unless the Promiser has expressly declared he meant the Promise should not have its full Force, till he knew it was accepted; it is never necessary he should know it, and the Acceptance is sufficient, whether the Question turns on gratuitous Promises, or on Agreements, in which both Parties are interested. Mr. Thomasius, on the contrary, in his Notes on that Author, p. 514. maintains that the Knowledge of the Acceptance is always necessary; because as the Promise remains suspended, till the Person, to whom it is made, becomes acquainted with it, the same ought to be said of the Acceptance. Suppose, says he, that the Person, to whom the Promise is made, is present, and that he accepts of the Thing either only within himself, or by whispering to a third Person; such a Promise will not be binding. But the Consequence doth not hold good from the Necessity of Acceptance to the Necessity of knowing that Acceptance. The Acceptance is absolutely necessary, for forming an Unity of the two Wills, from which the full and entire Obligation results. But the Moment the two Wills are thus united, tho’ that which is determined has as yet no Knowledge of the Determination of the other; nothing essential to the Obligation is wanting, unless there be an express or tacit Condition, which makes the entire Accomplishment of it depend on the Knowledge of the Acceptance. If the Effect of the Promise in this Case remains suspended till the Acceptance, it is by a necessary Consequence of the Person’s Absence, and not because the Promiser designed to reserve to himself a sufficient Time for retracting. He may indeed retract, because something may happen, that obliges him to change his Mind. But, in Order to prove that the Knowledge of the Acceptance is always necessary for laying him under a Necessity of persisting in his Will, we must always have Reason to believe that, if the Person to whom the Promise is made had been present, he would not have promised so as to engage himself on the Spot, supposing the Thing had been also accepted immediately; whereas, the Presumption will rather be on the other Side, at least in such Agreements, where both Parties have an Interest. If it was always necessary that a formal Acceptance of a Promise should be known, it would follow, contrary to what Mr. Thomasius himself acknowledges (Jurisp. divin. Lib. II. Cap. VII. § 14.) after our Author, that even when the Promise was made pursuant to the Request of him to whom it is made, it would be invalid, except the Petitioner was apprized of the good Will of the Promiser. The anticipated Acceptance of the Petitioner has, in my Opinion, no more Force than the Offers of the Person who of his own Accord promises absolutely, and on no other Condition than that of Acceptance. He, who made the Request, may as well change his Mind before he knows it is granted, as he who made the Offer, before he was acquainted with the Acceptance. As to the Instance, alledged by Mr. Thomasius, I own it seems to me but little to the Purpose.
[1 ]In Reality, a Man may promise irrevocably, even before the Acceptance. But in Order to this he must clearly declare that from that Moment he confers a full Right on the Person in whose Favour he obliges himself, and reserves to himself no Liberty of retracting; provided always that, if he doth not accept of the Promise, when duly notified to him, the Promiser re-enters on his whole Right. Confer this Paragraph and those which follow with what Pufendorf says, B. III. Chap. IX. § 3. &c.
[2. ]And therefore, to avoid all Dispute, it was usually said, To him and his Heirs.Servius upon the ninth Aeneid, ver. 302. See too the Wisigothic Law, Lib. V. Tit. II. Cap. VI. Grotius.
[3. ]Digest. Lib. L. Tit. XVII. De diversis Regulis Juris, Leg. CXCI. on which see James Godefroy’s Comment.
[1 ]It must here be supposed that the Person, to whom the Promise was made, was himself acquainted with the Revocation, by some other Means, before he accepted of it. Otherwise, if the Revocation comes too late, the Promiser will suffer.
[2. ]Provided, however, that the Revocation of the Commission was not sufficiently known some other Way by him to whom the Agent has since promised in the Name of the Person who entrusted him with it.
[3. ]See the Book De Tenuris Angliae, Cap. VII. Grotius.
[4. ]For, though a Testator may revoke the Legacy, yet till he has actually so done, all is done that was necessary on his Side; and if he dies, nothing more is requisite for giving a Right to the Legatee, who accepts of it.
[5. ]It must here be supposed that the Person commissioned to make the Donation, was acquainted with the Donor’s Death; for if he knows nothing of it, and the Donee accepts of it, though the Donor was not alive at the Time of Acceptance, it is entirely the same as if he was not yet dead. He had invested his Agent with full Power, and thus divested himself, as much as in him lay, of all Right to the Thing to be given, unless he recalled the Commission in Time, before it was executed. Had he intended the Donation should be valid only in Case it was accepted before his Death, it was his Business to insert that Clause in the Commission. Unless that be done, the Donee, who could neither accept sooner, nor guess the Donor would die, ought to be considered as if, the Donation being made to him by the Donor in Person, he had accepted of it; and that the rather, because commonly there is very good Reason to believe the Donor would not have failed giving, even though he thought he should die.
[6. ]On this Foundation it is decided by a Law quoted by our Author in his Margin, that if a Father having permitted his Son to set one of his Slaves free, dies intestate, and the Son not knowing of his Father’s Death, hath since made Use of the Power he gave him, the Act stands good in Favour of the said Slave, because it doth not appear his Master changed his Mind. Digest. Lib. XL. Tit. II. De manumiss. vindic. Leg. IV. This Regulation was made in Favour of Liberty; as many others, in which for the same Reason the Rigour of the Law was relaxed. See Cujas on the said Law, Recit. in Salv. Julian, Tom. VI. Opp. p. 317.
[7. ]It happens that the same Question is answered differently by different Persons. As when it was asked whether an Action upon the Order lies against the Heir. M. Drusus, the City Pretor, gave it in the Affirmative. And S. Julius in the Negative. Lib. II. Cap. XIII. Where the Enquiry turned on a Commission executed after the Decease of the Person who gave it. See what I have said on Pufendorf, B. III. Chap. IX. § 4. Note 3.
[1 ]Consult the Chapter of Pufendorf last quoted, § 5.
[2. ]See Institut. Lib. III. Tit. XX. De inutil. stipul. § 19.
[3. ]Our Author, without doubt, supposes the Order shewn to the Person who promises. So that this was an unnecessary Addition made by the late Mr. Huber (De Jure Civit. Lib. II. Sect. VI. Cap. III. Num. 18.) as if our Author never thought of it.
[4. ]No Man can stipulate for another, except a Slave for his Master, and a Son for his Father. Digest. Lib. XLV. Tit. I. De verborum obligationibus, Leg. XXXVIII. § 17. Whatever Stipulation is made by a Person under another’s Power, is accounted the Act of the latter, as truly as if made by himself. Ibid. Leg. XLV. But a Father, on the other Hand, could not stipulate for his Son, nor a Master for his Slave. See Mr. Noodt’s excellent Treatise, De Pactis & Transactionibus, Cap. XXIV.
[5. ]The Author here puts a Case, somewhat difficult to conceive, viz. Of an Acceptance, which however gives the Person accepting no Right. Such an Acceptance having no Effect in Relation to the Force of the Promise, and leaving the Promiser at full Liberty to revoke it without invading any Man’s Right; it cannot, in my Opinion, be termed an Acceptance, unless in a very improper Sense. The pretended Accepter is in Reality no more than a bare Witness of the good Dispositions which the other shews in Favour of the third Person. Our Author seems to consider him as a Sort of Security for the Continuance and Execution of those good Dispositions. But neither is this Notion more just. The Character and Use of a Security supposes an antecedent Obligation, which gives a third Person some true and perfect Right: But in the Case before us the Person to whom another designs to oblige himself to do what has been mentioned, has acquired no Right. From which I conclude, it is only one of those half Promises, spoken of by our Author, § 111. to which he gives the Name of Pollicitatio. The whole Difference is, that he there talks of a Declaration made to the very Person, in whose Favour another obliges himself to persist in the Will of doing such or such a Thing; whereas here the Declaration is made to a third Person, without the Orders or even the Privity of the Person interested in the Affair. And the former Declaration has this Advantage over the latter, that if the Promiser will afterwards confer a true Right on him in whose Favour he had declared his Will, and thus change the imperfect Promise into a perfect one; the Person last mentioned from that Moment acquires a full Right over the Thing promised: No other Acceptance is necessary than that already made by the Person concerned. Whereas, in the other Case, the third Person having had no Commission for accepting, and the Promise not regarding him; it can have no Effect till after the Acceptance of him in whose Favour another signified his Will of doing something.
[1 ]A perfect Donation admits of no Conditions after it is made. Code, Lib. VIII. Tit. LVI. De Donationibus quae sub modo, Leg. IV. Obrecht observes on this Place that our Author’s Maxim takes Place only in new Conditions added by the Will of one of the Parties contracting. But our Author had no Design of denying that; which he supposed as incontestable. For who can doubt whether, if the two Parties are agreed, some new Condition may not be added, even after Acceptation, burthensome either to both, or one only? It is then a Sort of new Bargain, or at least an Amendment of the former Engagement.
[1 ]See Pufendorf, B. III. Chap. VI. § 14.
[2. ]All unjust Fear annuls a Promise, by the Law of Nature, as well as by the Civil Law. See what I have said on § 7.
[1 ]Quae causam expressam non habent. Tho’ a Man doth not express his Motive for promising, it doth not follow that he had none. He may have several private Reasons, which he doth not think proper to declare. There is always Room for presuming either that the Promiser proposes some Advantage to himself, or that he promises with a View of doing the Person, in whose Favour he engages himself, a Pleasure, and thus having the Pleasure to oblige him. Even supposing he doth not well know why he promises, it is sufficient that he resolves to promise with an entire Freedom, and that there is no Crime in the Promise. The Will doth all in this Case, as well as in Alienations. A Man is not less Master of his own Actions, than of his own Goods; so that if he is willing to lay himself under a Necessity of doing something in Favour of another, that is sufficient for giving the other a full Right to demand the Effect of such an Engagement. This I take to be our Author’s Meaning. But I do not see where lies the Difference, which he here supposes, between the Rules of the Civil Law, and the Maxims of the Law of Nature. For, in the Stipulations, it was not at all necessary that the Promiser should express the Reason why he promised. He was asked, Do you promise? He answered, I do promise. That was sufficient. On the contrary, an Agreement without Stipulation, was not therefore more valid, tho’ he said, for Example, I will give you this or that, in Order that you do such or such a Thing for me.
[1 ]See Pufendorf, B. III. Chap. VII. § 10
[2. ]Compare here what is below, B. III. Chap. XX. § 30. Grotius.