Front Page Titles (by Subject) CHAPTER XII: Of Contracts. - The Rights of War and Peace (2005 ed.) vol. 2 (Book II)
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CHAPTER XII: Of Contracts. - 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.Such human Acts as are advantageous to others are divided, first into simple and mixed.I. Among such human Acts as turn to other Mens Advantage, some are1 single and uncompounded, others are mixed and compounded.
II. Those that are single, are either gratuitous, and done for nothing, or permutatory, and by Way of Exchange:1 Such as are gratuitous, are either merely so, or with some mutual Obligation.II.Simple Acts are divided into such as are merely gratuitous, or that imply a mutual Obligation. Those that are merely gratuitous, are either done out of hand, or respect the future Time. We have no Occasion to speak of a good Turn that is done out of hand; because, tho’ it produces an Advantage, it does not create any Effect of Right,2 no more than of a Donation, whereby a Property is transferred; for of this we discoursed above, where we treated of the several Ways of gaining a Property. Such Acts as respect the future Time, are the Promises of giving and doing certain Things, which we were just now talking of. Gratuitous Acts, with a mutual Obligation, are those which dispose of something or other without an Alienation of it; or of some Act or other, yet so as that some Effect of it does still remain; such as is, in respect of a Thing, the Leave to use it, which is called Lending: And as to what regards an Act, the doing of some Service that is attended with an Expence, or in Respect to which, both Parties stand obliged to do something, and this last is termed a Commission, one Kind of which is a Trust or Charge, where we take Pains to guard and keep what is committed to our Care. And of the same Nature with these Acts are the Promises of such Acts,3 unless it be, as we said before, that they respect the future Time; which Circumstance we would also have to be understood of the Acts we are now going to explain.
III.And into such as are permutatory, or by Way of Exchange; and these are either such as adjust what each has to give or to do.III. 1. Acts permutatory, or by Way of Exchange, either regulate and adjust the Shares, or make Things common: The Roman Lawyers rightly distinguish those Acts which regulate Shares into these, Do ut des, facio ut facias, facio ut des: I give you this, that you may give me that; I do this for you, that you may do that<295> for me; I do this for you, that you may give me that.1 Upon which Subject we may see Paulus, the Lawyer, in L. Naturalis De Praescript. Verb.
2. But the same Lawyers exempt from this Division some certain Contracts, which they call2nominate, not so much because they have a peculiar Name, (for so has also the Contract of Exchange, which, however, they exclude from their nominate Contracts) but because, on the Account of their more frequent Use, they3 had received a certain Effect, and a certain essential Property, which, tho’ nothing at all should be particularly said, one might by their very Name sufficiently understand. Upon which Account too there were assigned to them certain set Forms of Actions. Whereas in others less frequent, there being no more comprehended than what had been expressly said and concluded, there was no common and customary Form,4 but one suited to that Occasion; which was therefore called an Action in prescribed Terms. And also by Reason of this frequent Use of nominate Contracts, provided they had certain requisite Conditions, as in Case of a Sale, for Instance,5 if the Price were agreed on, even tho’ the Matter was yet entire,6 that is, before any Thing was performed on either Side, there was an absolute and Honour Necessity of standing to the Bargain. Whereas in Contracts not so frequent, whilst the Thing was entire, they had the Liberty of repenting,7 that is, they might go off from their Agreement,8 without any Penalty for so doing; because the Civil Law took away<296> from such Contracts, the Power of Compulsion, and left them wholly dependent on the Word and Honour of the Parties concerned.
3. But the Law of Nature knows nothing of any such Distinctions; nor are those Contracts which they call Innominate, either less natural, or less antient; nay Exchange, which they reckon among the innominate, is both9 more simple, and more antient, than the Contract of Sale. And Eustathius upon the twenty-second of the Iliad, speaking of a publick Trial of Skill, to which there was appointed a Prize, what Homer terms ἄρνυσθαι, to purchase, he renders ἀντικαταλλάττεσθαι, to exchange, adding, συνάλλαγμα γάρ τι καὶ τὰ τοιαν̂τα, for this, and such like, are a Kind of Bargain. Ver. 160. The Agreement is, I do this, that you may give me that, my Work for your Goods. And therefore we, for our Parts following Nature, shall, without any Regard to the Distinction of nominate and innominate, reduce all Contracts for the Regulation of Shares, to the three Sorts before-mentioned.
4. And accordingly we say, that in Cases where I give this that you may give that, I either immediately, and upon the Spot, give one Thing for another, as in the Way of Bartering which is an Exchange, properly so called, and the most antient Method, no Doubt of it, of Trading and Commerce; or I give10 Money for Money; this the Greeks call Κόλλυβος, Coin for Coin; our Merchants now-a-days change, or give Goods for Money, as in Buying and Selling; or the Use of my Goods for the Property of other Goods; or the Use of my Goods for the Use of yours; or the Use of my Goods for your Money, which last is termed Letting and Hiring. By11 Use we mean here not only the bare Use of a Thing, but also all the Profits and Advantages that accompany it, whether it be made over only for a Time,12 or to one Person and no more, or to him and his Heirs, or limited in any other precise and particular Manner, as that among the Hebrews, which lasted until the Jubilee Year: But if I give, or part with a Thing, that so, at the Expiration of some certain Time, I may have as much of the same Kind, it is a<297> Loan; and this takes Place where Things are given by Weight, Number, and Measure, whether Money, or any Thing else.
5. The Bargain of my doing this, for your doing that, or Work for Work, may be as various as the Actions whereby any reciprocal Advantage may be procured. But the Agreement of my doing this, for your giving me that, is either for Money, and this in Cases of daily Labour and Service, is called Letting and Hiring; but where one takes upon one to make Amends for any Damage that you may receive, or to secure your Effects against Hazard and Casualties, it is commonly stiled Insurance, a Contract scarce known formerly, but now as much practised as any whatever; or else I am to do so and so, in Consideration that you give me something of yours, or the Use of something of yours.
IV.Or such as put Things upon a common Foot.IV. But Acts communicatory,1 or such as introduce a common Title, make either Actions or Things common; or on the one Side Things, and on the other Side Actions for a mutual Advantage, and all this comes under the Name of Society; under which also is comprehended an Association for War, as when several private Vessels unite to defend one another against Pirates, or any other Invaders, which is usually called an Admiralty, and by the Greeks, σύμπλοια, or ὁμόπλοια, a joint Fleet.
V.Acts mixed, are either so essentially, and of themselves;V. But mixed or compounded Acts are so either as to what is principal, or by Reason of an Accessory.1 Thus, if I shall knowingly give more for a Thing than it is worth, or than I can buy it for of another, it is (a mixed Act) partly a Gift, partly a Purchase. If I agree with a Goldsmith, for so much Money, to make me so many Rings of his own Gold, it is partly a Buying, partly a Hiring.2 So also it happens in Societies, that one Side is to contribute both Actions and Money, and the other only Money. So likewise the Grant of Land to be held in Fee, is a Favour, and a Piece of Generosity; but the obliging the Person to Military Service for the Protection I give him, is Facio, ut facias, I do this for you, that you may do that for me. But if something be to be paid yearly for it besides, by Way of Acknowledgment, it is then so far a Quit-Rent. So Money sent to Sea by Way of Venture,3 is something compounded of the Contract of a Loan, and of an Insurance.
VI.Or by Reason of some Accessory.VI. An Act becomes mixed, by Reason of some Accessory, in the Manner as we see it in the Case of a Bail or a Pawn.1 For a Bail, if you regard what passes between the Person putting in the Bail, and the principal Debtor, is generally a Sort of Commission or Order. But if you respect Matters as they stand between the Creditor and the Bail, who gets nothing at all by it, it seems an Act purely free and generous; but because it is added to a burthensome Contract, it is therefore itself reputed so. Thus too a Pawn seems of itself to be a free Act, because it allows the Thing to be detained, without demanding any Thing for the Possession, but this also derives its Nature from the Contract, whose Security it provides for.
VII.Which of the Acts are called Contracts.VII. Now all Acts, advantageous to others, except those which are of meer Generosity, are called Contracts.1
VIII.There is an Equality required in Contracts, and first in the Acts that are previous to them.VIII. In all Contracts Nature demands an Equality,1 insomuch that the aggrieved Person has an Action against the other, for over-reaching him. This Equa-<298>lity consists partly in the Acts, and partly in the Subject itself of the Contract; and this Equality, and Dealing upon the Square, must be observed as well in those Acts that are previous to the Bargain, as those that are principal and essential in it.
IX.One is to know every Thing that relates to what he is dealing about.IX. 1. One of these previous Acts is, that he we deal with ought to discover to us1 all the Faults he knows of, in the Thing we are dealing for; and this is not only what is in joined by the Civil Law, but is also agreeable to the Nature of the Act, there being a nearer Society2 and Engagement between Persons contracting, than what is common to all Mankind. And thus may we answer what Diogenes, the Babylonian, said upon this Topick, That all Things which are not declared, are not therefore to be thought concealed.3Nor am I under any Necessity of telling what may be for your Advantage to hear, as in the Case of heavenly Things; for4 the Nature of a Contract being contrived for the mutual Advantage of the contracting Parties, requires something more of Exactness in it. It was well observed of St. Ambrose,5In all Contracts, whatever Faults are in the Things exposed to Sale, they ought to be discovered to the Buyer, which if the Seller does not do, tho’ the Right of the Thing be transferred to the Buyer, the latter has an Action against the former, by Reason of the Fraud. And in Lactantius,6If a Buyer does not inform the Seller of his Mistake, that so he may have a cheap Bargain; or if a Man sells a Slave that is a Fugitive, or a House infected with the Plague, and does not discover it to the Purchaser, regarding only his own Profit, he is not an ingenuous Man, as Carneades would have him, but a Knave and a Rogue.
2. But it is not so with Circumstances that do not directly concern the Thing contracted for. As if a Man should know that there are several Ships coming laden with Corn, he is not obliged to tell you so; but, however, to discover such a Thing is kind and commendable, and in some Cases not to be omitted without Breach of Charity; yet I will not say it is unjust, that is, that it violates his Right with whom he is dealing; so that what the same Diogenes very pertinently said, as Tully relates it, is as applicable here,7I have brought my Commodity, I have exposed it to Sale, I sell no dearer than others do: Nay, perhaps cheaper than they, when there is a greater Quantity of it; Whom do I injure then? Wherefore that of Cicero is not generally to be allowed, that to conceal or dissemble a Thing is, when you would have those whom it concerns to be acquainted with it, to be ignorant of what you know of the Matter, merely for the Sake of your own private Interest.8 For then only it is unjust, when it immediately concerns the Thing that is to be contracted for; as if a House be infected with the Plague, or ordered by the Magistrates to be pulled down. Which Instances you may see there.9
3. But it signifies nothing to speak of those Faults which are known to your Dealer, as the Servitude of the House,10 which M. Marius Gratidianus sold to C. Sergius Orata, and which he had bought of him before. For11 an equal Know-<299>ledge on both Sides, puts both Parties upon an equal Foot. Thus Horace,
And this is a Remark of Plato’s too, in his XI. De Legibus.12
X.One is to be left entirely to Freedom, and to have no Force put upon his Will.X. Nor should there be only an Equality of Knowledge between the Persons bargaining, but also a mutual Freedom of Will; not indeed that if one of the contracting Parties has been induced to treat through a just Fear, the other is obliged to remove it, for that is a Thing extrinsick to the Contract; but that no Man should be unjustly frightened into a Bargain; and if he be, that that Fright should first be over. In Respect to this the Lacedemonians made void the Purchase of some Land which the Eleans had by Fear extorted from the Owners, Γνόντες μηδὲν δικαιότερον εἰ̂ναι βία πριαμένους, &c. Looking upon it to be as great an Injustice to take the Goods of weaker People, upon the Pretence of Purchase, as by meer Force. Which are the very Words of Xenophon.1 But what Exceptions the Law of Nations allows in these Cases, shall be sheweda in its proper Place.
XI.There is, secondly, an Equality requir’d in the Bargain itself, if it be permutatory, or by Way of Exchange.XI. 1. The Equality required in the principal Act of a Bargain is, that no more be exacted than what is just and fit, which can scarce ever be observed in Agreements of Bounty and Beneficence;1 for if I agree to take somewhat by Way of Reward, either for what I have lent you, or for my Diligence in executing your Orders, or for my Care in looking after what you entrusted me with, I do no Wrong,2 I only mix the Contract, by making it partly permutatory, and partly gratuitous. But in all permutatory Contracts, this Equality is to be punctually observed; nor must any one pretend, that what is promised more than is due by either Party, is to be looked on as a Present: For this is seldom the Design of those that make such Contracts; nor is it to be presumed, unless it appear so. For whatsoever Men promise or give, they are supposed to do it, in Proportion to what they are to receive, and as something due only upon the Square.
2. Thus St. Chrysostom,3 ὅταν γὰρ ἐν τοɩ̂ς, &c. Whenever in our Contracts, our Purchases, or our Payments, we stand haggling, and use all our Might and Means to beat down the Price, what is this but a Sort of Robbery? The Writer of Isidore’s Life in Photius tells us of one Hermias,4 who having bought any Thing too cheap, would of his own Accord add as much as it wanted of its true Value, holding it a Piece of Injustice to do otherwise; but such an Injustice as Few attended to. And in this Sense do the Hebrew Doctors interpret the Law in5Lev. xxv. 14. and 17. Ye shall not oppress one another.<300>
XII.And, thirdly , in the Thing we are bargaining for; this explained.XII. 1. There now remains the Equality required in the Thing itself that is bargained for, consisting in this, that tho’ nothing was concealed that ought to have been discovered, nor any more exacted than what was thought to be really due, yet if there be found any Inequality in the Thing itself, tho’ neither Party was to blame for it, as, suppose, there was some unknown Defect, or there was a Mistake in the Value, yet in this Case must the Inequality be made up, and he who has too much, must give it to him who has too little, because in the Contract it either was, or ought to have been, proposed that both Sides should be dealt with alike, and upon the Square.
2. The Roman Law, however, does not in join this in every Inequality; it does not concern itself with Things of small Consequence; and Legislators even think proper to prevent, as much as possible, the too great Number of Law-Suits; but only where the Damage is considerable, as where it exceeds half the just Value.1 For the Laws, says Cicero,2 take one Way to root out Injustice, and Philosophers another; the former meddling no farther with it than as it breaks out into open Acts, and may, as it were, be felt with the Hand; the latter permitting nothing that may be discovered by deep Meditation and Reflection. And therefore they who are not subject to the Civil Laws, but are above them, ought to follow that which right Reason informs them to be good and equitable, and so too ought those who are subject to the Laws, when the Affair that is transacting is what relates to Justice and Honesty, provided that the Laws are silent in the Case, and neither grant nor take away our Right,3 but only, for some certain Considerations, deny their Aid and Countenance to it.
XIII.What Equality is to be observ’d in Acts of Beneficence, in such as are altogether so, and in such as are only so in Part.XIII. 1. But we must observe, that some Equality ought to be regarded, even in Agreements of Bounty and Beneficence, not in deed entirely such a one as is expected in Contracts of Exchange; but an Equality proportionable to what is supposed here, as conform to the Nature of the Thing, and the Intention of the contracting Parties; namely, that a Man be not himself damaged by the Kindness he does. And therefore he who is employed and commissioned by another, should be indemnified from all Charges and Losses which may attend the Execution of that Commission;1 and so the Borrower is obliged to make good any Thing that is lost,2 because he stands bound to the Owner not only for the Thing itself, that is, by Vertue of his Property in it; for so any one who had had it would be obliged, but also by Way of Gratitude for his Favour in lending him it,a unless it appear, that the Thing so lent would have perished, had even the Owner had it in his Possession: For in this Case he loses nothing by the Loan. On the contrary, he with whom any Thing is deposited,3 receives nothing but a bare Trust, and therefore, if the Thing be gone he shall not be responsible for it; neither in Respect of the Thing, because it is not in being, nor is he the richer for it; nor in Respect of his Acceptance, because in his Acceptance he received no kindness, but did one. In Things pawned4 indeed, as well as in such as are let out,5 a middle Way is to be observed, that the Receiver is not to be answerable for every Mischance, as he who borrows a Thing is, and yet a much greater Care is required of him to preserve it, than of him with whom a Thing is deposited; because, tho’ he gives nothing for the Possession of the Pledge, yet the Engagement in itself is generally an Accessory of a chargeable Contract.
2. All which agree with the Roman Laws,6 but were originally derived, not from them, but from natural Equity, and therefore are found in other Nations<301> also. And among the Rest, in Rabbi Moses Maimonides, Ductor Dubitant. Lib. 3. Cap. 43.7 To this had Seneca Respect, when he said,8Some are responsible only for their Honesty; others for the Safety of the Thing with which they are entrusted. And by this Rule we may easily form our Judgments of other Contracts. But now having (as far as was necessary to our Purpose) discoursed of Contracts in general, we shall briefly run through some particular Questions about them.
XIV.How Things are to be valued in selling; and for what Reasons the Price may be raised or lowered.XIV. 1. The most natural Measure of the Value of any Thing, is the Want of it, as1Aristotle rightly observes, and this is what the least civilized People are altogether guided by; yet this is not the only Measure;2 for the Will of Men, which governs every Thing, covets many Things more than are necessary.3Luxury, says Pliny, gave the Price to Pearls. And Cicero, in his Oration against Verres, In Proportion to our Passion for such Sort of Things, is our Value for them.4 And so on the contrary, it happens that Things which are the most necessary, are, on the Account of their Plenty, abundantly cheaper; which Seneca illustrates by several that determines the Value Instances, De Benefic. Lib. 6. Cap. 15. where he also subjoins this, The Price of every Thing is according to the Markets; when you have commended them ever so much, they are worth no more than they can be sold for. And Paulus, the Lawyer, The Prices of Things do not depend on this or that Man’s Humour or Interest, but5on the common Estimation; that is, as he explains it elsewhere, on the Value that all the World puts on them.6 Hence is it, that a Thing is only valued at so much as is usual and customary to be offered and given for it, which can scarce be so settled as not to admit a Demand of more or less, except it be where the Law has fixed a certain Rate, ἐν στιγμη̂, precisely, and to a Point, as Aristotle expresses it.
2. And now in that common and current Price of Things,7 we usually have a Regard to the Pains and Expences the Merchants and Traders have been at; and it often rises and falls all on a Sudden, according as there are more or fewer Chapmen, and according to the Plenty or Scarcity of Money or Commodities. Besides,<302> there may possibly some such Circumstances intervene, as may very justly raise or lessen the ordinary Market Price; as, the Loss we sustain, the Profit we lose, a particular Fancy for certain Things, the Favour we do one in buying or selling what we should not otherwise have bought or sold; all which Circumstances the Person we deal with ought to be acquainted with. And we may also have Regard to the Loss or Gain that arises from the Delay or the Promptness of Payment.
XV.When a Sale is compleat by the Law of Nature, and when the Property of the Thing is transferred.XV. 1. As to Buying and Selling,1 we must observe, that the Bargain and Sale is good, from the very Moment of the Contract; and tho’ the Thing be not actually delivered, yet may the Property be transferred, and this is the most simple Way of Dealing: So2Seneca says, Selling is the alienating of a Thing that belongs to us, and the translating of it, and the Right we have in it, to some other: For it is so in an Exchange.3 But if it be agreed, that the Property shall not pass immediately, then the Seller shall be obliged to transfer his Property at such a Time, and in the mean While, both the Profits and Hazards shall be the Seller’s. And therefore, that a Contract of Sale consists4 in the Seller’s engaging himself to deliver the Thing sold, and that the Buyer should not be molested in the Possession of it, or should be indemnified, in Case of such Molestation; that the Buyer must run all Risques,5 and that the Profits shall belong to him before the Property be ac-<303>tually transferred, are Maxims of the Civil Law, which are not in all Places observed. Nay, on the contrary, most Law-Makers have thought fit to enact, that till the Delivery of them the Seller shall have the Advantage, and stand to the Hazard of the Goods, as Theophrastus has remarked, in a Passage of6Stobaeus, where you may also find many other Customs touching the Formalities of Selling, about giving Earnest, about retracting, very different from the Roman Laws; and Dion Prusaeensis too has observed, that among the Rhodians, a Sale was not compleated, nor other Contracts finished, till they were publickly registred.
2. And we must know too, that if one and the same Thing be twice sold,7 of the two Sales, that shall stand good which had the Property immediately trans-<304>ferred, either by Delivery or otherwise; for by this the moral Power of the Things goes from the Seller, which it does not by a bare Promise.
XVI.What Monopolies are against the Rights of Nature, or the Rules of Charity.XVI. All Monopolies1 are not repugnant to the Law of Nature,2 for they may sometimes be permitted by the Sovereign upon a just Cause, and at a certain Rate; as may appear from the Example of Joseph, when he was Governor of Aegypt: So also under the Romans, the Alexandrians had the Monopoly,3 as Strabo tells us, of all Commodities brought from the Indies and Aethiopia. The like may be done by private Persons, provided they are contented with a reasonable Profit. But they, who, as the Oylmen in the Velabrum,4 do purposely combine to advance the Value of their Wares above the highest Degree of the current Price, and those also who use Force or Fraud to prevent the Importation of any greater Quantity, or else agree to buy up all, in Order to sell them again, at a Rate very exorbitant, considering the Season, commit an Injustice, and are obliged to make Amends and a Reparation for it. If indeed they do by any other Means hinder the bringing in of Goods, or ingross them to themselves, to vend them dearer, tho’ at a Price not unreasonable for the Season, they act against the Rules of Charity,5 as St. Ambrose proves by several Arguments, in his third Book of Offices, but properly speaking, they violate no Man’s Right.
XVII.How Money goes for every Thing else.XVII. Now as for Money, we must observe, that it naturally derives its Currency, or Equivalence,1 not from the Matter only,2 nor from this or that particular Denomination3 and Form, but from a more general Capacity of being compared4 with, or answering the Value of all other Things, at least such as are more immediately Necessary. And its Value, if it be not otherwise agreed, must be according to the Rate it bears at the Time, and in the Place of Payment;5 thus Michael Ephesius, Nicom. v. ‘Ως ἐπὶ τη̂ς χρείας τον̂το ἐπὶ τον̂, &c. Money itself<305> varies, as our Necessities do; for as we have not always the same Occasion for Things that belong to another, so Money is not always of the same Value, but sometimes is more, and sometimes less worth; but yet6the Value of Money is what lasts longest, and therefore we use it as the Standard and Measure of all Things in Trade. The Meaning of which is this, That which is the Measure or Standard to other Things, ought in itself to be constant, and such are Gold, Silver, and Copper, in Things susceptible of Price, for they are in themselves of the same Value, almost always, and in all Places. But as other Things which are useful or necessary, are either scarce, or in abundance, so the same Money, made of the same Metal, and of the same Weight, is sometimes worth more, sometimes less.
XVIII.By the Law of Nature nothing is to be abated of the Rent, or Hire, on Account of Barrenness, or the like Accidents, and what if the first Tenant being not able to use it, it be lett to another.XVIII.1 Letting and Hiring, as2Caius well observes, very much resembles Buying and Selling, and is guided by the same Rules. That which answers to the Price is the Rent or Hire; and that which answers the Property, is the possessing and enjoying the Benefit of it. Wherefore, as when a Thing perishes,3 the Owner bears the Loss; so when a Thing rented or hired proves barren, or by any other Accident unprofitable,4 the Loss is to the Tenant, nor has the Person who lets it any Thing the less Right to the Money agreed for, because when he delivered the Thing to his Use, it was then worth as much as was contracted for, tho’ this may be altered either by the Laws, or particular Agreements. But if the Landlord,5 upon the first Tenant’s not being able to make Use of it, shall let it to another, whatsoever he shall get thereby, he shall repay to him who first took it, that he may not enrich himself by another Man’s Due.
XIX.How a just Salary may be increased or lessened.XIX. And what we have before said concerning Selling, that the Price may be more or less, if what would otherwise not be bought or sold at all, be bought or sold to gratify another, the same may be understood of any Thing or Work, let or hired. But if a Man, by the same Pains, can serve several Persons, as by carrying them from Place to Place, if the Undertaker shall oblige himself entirely to every one of them, he may demand the same Reward1 from each of them, as from any one of them, if the Law does not opposeit; because a second Person’s receiving Benefit by my Labour does no Ways prejudice the Agreement made with the first.
XX.By what Law the taking Interest is forbidden.XX. 1. As to the Loan of a Thing consumable, it is a common Question, by what Law is the taking of Interest forbidden? And tho’ it be the general Opinion,1 that it is prohibited by the Law of Nature; yet the Bishop of Avilaa thinks otherwise; neither are the Arguments on the other Side weighty enough to convince one of the contrary. For whereas it is said of the Loan of a consumable Commodity, that it is what is done freely,2 as much may be said too of the Loan<306> of any other Thing that is not consumable; and yet it is not unlawful to demand some Money for the Use of it, it only causes the Contract to go by another Name. Neither is the Argument drawn from the Barrenness of Money more prevalent. For3 the Industry of Man has made Houses, and other Things naturally barren, to become fruitful. The most plausible one is, that here one Thing is given for another;4 and that the Use of a Thing cannot be distinguished from the Thing itself, when that very Use consists in the Consumption of it, and therefore nothing ought to be demanded for it.
2. But here we must observe, that when it is said, that the Use and Profits of Things consumable, or of such whose Property passes to the Persons to whom they are lent, were introduced by a Decree of the Senate,5 but that, however, there were no such Use and Profits in Reality, the Controversy depends on the Idea of the Word Ususfructus, Use and Profits, which Word certainly does no Way, according to its proper Signification, agree to any such Right;6 but however, it does not thence follow, that such a Right is nothing, or of no Value, when on the contrary it is evident, that if any one would yield up such a Right to the Proprietor, Money might be demanded on that Account. So also the Right of not paying Money or Wine borrowed, till after such a Time, is something susceptible of Estimation; For he pays less, who pays late. Therefore7 ἐν ἀντιχρήσει, in a Mortgage, the Profits of the Land answer the Use of the Money. But what8Cato,<307> Cicero, Plutarch,9 and others alledge against Usury, does not so much respect the Nature of the Thing, as the Circumstances, and accidental Consequences that commonly attend it.
3. But whatever our Opinion may be of this Matter, we ought to be satisfied with the Law given by GOD to the Hebrews,10 which forbids one Jew to<308> exact Interest for Money lent to another. For the Subject of this Law, if not of indispensible Necessity, is, without Doubt,11 morally honest, and therefore,12 in the fifteenth Psalm, it is reckoned amongst some other Things that are highly moral; as also in Ezekiel the eighteenth. Such Precepts then as these do oblige us Christians too, as being called to give more noble Instances of Virtue; and certain Duties which the Law then only enjoined the Hebrews, or other circumcised Persons (for they were both equally obliged) the same ought now to be observed towards every Body,13 all Distinction of People being entirely taken away by the Gospel, and the Word Neighbour of a much larger Signification. As that excellent Parable of CHRIST [Luke x. 29, &c.] concerning the Samaritan, does fully demonstrate. And therefore Lactantius, treating of the Duties of a Christian, says,14He shall not give his Money upon Interest, for this is to gain by another’s Loss; and St. Ambrose, To assist a Man in his Wants, is a Piece of great Humanity, but15to extort more than is borrowed is severe and cruel. And Augustus Caesar16 himself set a Mark of Infamy on some Roman Knights, who took up Money at an easy Rate, and lent it upon extravagant Interest.
XXI.What Advantages do not come under the Name of Interest.XXI. But yet we must observe, that there are some Contracts1 which look like Usury, and are generally thought to be so, which, however, are Agreements of<309> another Nature; as when what is demanded is to make Amends for the Damage the Lender sustains, by being a great While out of his Money, or in Consideration of that Gain, which, had he not lent it, he might otherwise have made, and so something is deducted for the Uncertainty of his Hopes, and for the Pains he must very probably be at. So likewise, if any Thing be demanded, to defray the Charges of him who lends Money to several Persons, and keeps always some Cash by him for that very Purpose; and if any Thing be advanced for the Hazard he runs of losing the Principal, where his Security is not extraordinary good,2 this is not to be reputed Usury. And Demosthenes, in his Oration against Pantaenetus, positively denies, that he ought to be branded with the odious Name of an Usurer, who lends3 for a moderate Profit, what he has got in his Business, and by honest Labour, partly that he may preserve what he has got; and partly that he may oblige and accommodate some Body else.
XXII.What Power the Civil Laws have in this Affair.XXII. And as for those human Laws, that allow Interest for the Use of Money, or any other Thing, as in Holland they have long allowed1 eight per Cent. per Annum, to some, and twelve per Cent. to trading People; provided that they keep within the Bounds of that just Consideration, which every Man ought to have for what he does or may suffer, by the Want of his Money or Goods; they are not repugnant to any natural or divine Right. But if they exceed this fair and modest Rate, the Laws2 may indulge an Impunity, but they cannot grant a Right.
XXIII.What Rules one must go by in a Contract for saving harmless, or of Insurance.XXIII. A Contract for1 saving harmless, called2 an Insurance, is absolutely void, if either the Insurer does know at that Time for certain, that the Goods they are treating about are already safe, or the Owner that they are lost; and this not only on the Account of that Equality, which the Nature of permutatory Contracts requires, but because the subject Matter of this Contract is supposed to be a Loss considered, as uncertain and suspicious. And the Price of such an Insurance must be regulated and stated by the common Rate.
XXIV.How one is to be regulated in a Company or Partnership; where also several Kinds of it are explain’d.XXIV. 1.1 In a Company, where Trade is carried on by a joint Stock, if each Member contributes an equal Proportion of Money, their Gain or Loss shall also be equal, but if one advances more than another, then each Person shall be rated according to his Quota, which Aristotle thus expresses,2 ἐν χρημάτων κοινωνιᾳ πλείω<310> λαμβάνουσιν ὁι πλείω συμβαλλόμενοι. In Partnership they are intitled to most who put in most. And the same is to be observed, where Persons concerned together take an equal Pains, or one does more than another; and also my Labour may answer your Money, or your Money and your Labour; for, as they usually say, One Man’s Money is but an even Recompence for another Man’s Work.3
2. But this is not always done in one Manner, for either I may furnish my Work, and you the Use only of your Money, in which Case the Principal, whether lost or safe, is yours. Or you may put the Property of the Sum in common with my Labour, in which Case I am a Partner in the Capital. In the former Instance, the Work or Service is not set against the Stock, but the Hazard of losing it, and the Gain that might probably be expected from it. But in the other, the Value of my Work is supposed to be added to the Stock of your Money, and therefore I must have a Share in the Stock equivalent to it. What we have said of Work or Service, the same also may be understood of the Fatigue and Danger of a Voyage, and in such other Cases.
3. But that either of the Partners should share in the Profit, but yet be indemnified, in Case of Loss, is against the Nature of Partnership, but it may be so agreed on without any Injustice; and then there will be a mixed Contract of Partnership and Insurance, in which Case an Equality will still be observed, if he who undertakes to make good the Loss, shall receive a greater Proportion of the Gain, than otherwise he should have had. But that any should bear the Loss, and not partake of the Gain, is for this Reason not to be allowed of, because a common Share in the Advantages is a Thing so essential to Partnership, that it cannot subsist without it. And as to what the Lawyers say, that where the Shares are not expressly named, they are to be understood as equal,4 this only holds good where the Quotas are equal. But in a Partnership of all Goods in general, not what is gained by this or that Man’s particular Contributions, but what might probably be expected from them, must be regarded.
XXV.Of a Sea-Company.XXV. When1 a Number of Ships are fitted out against Pirates by a joint Stock, the common Advantage consists in their common Defence; and sometimes in taking of Prizes. But the Ships, and all that are in the Ships, are usually appraised, and the Value brought into a Sum total, that so the Proprietors of the Vessels and Effects, may each of them bear his Share of the Damages and Expences,2 in Proportion to what they respectively have in that Sum, among which Damages and Expences those for curing the wounded are to be reckoned. All we have hitherto said, is agreeable to the Law of Nature.
XXVI.By the Law of Nations an Inequality in the Terms, if agreed upon, is not minded as to external Acts; and in what Sense this is said to be natural.XXVI. 1. Nor does the voluntary Law of Nations seem to make any Alteration here, only in this one Particular, that where the Contributions are unequal,<311> yet if they are consented to, and there be no Lie in the Case, nor any Thing concealed which should have been discovered, in all external Actions they shall be looked upon as equal; so that, as by the Civil Law, before Dioclesian’s Constitution,1 no Action was allowed in Court against such an Inequality; so neither now among those who have no other common Law than the Right of Nations,2 can there be any Redress or Constraint on that Account. And this is what Pomponius means, when he says,3 that in Buying and Selling one Manmay naturally over-reach another; where the Word may does not signify that it is just and lawful so to do, but only that it is so far permitted, that there is no Remedy provided for it against him who is resolved to insist upon, and justify himself, by his Agreement.
2. But4naturally, in that and some other Places, is put for what is conform to the received Custom. In which Sense Nature is said, by the Apostle St. Paul, to teach us, That if a Man have long Hair it is a Shame unto him. (1 Cor. xi. 14, 15.) when at the same Time it was no-ways repugnant to Nature, and was what several People practised. So the Author of the Book of Wisdom calls Idolaters, but not all Sorts of Men, ϕύσει ματάιους, Vain by Nature, (Chap. xiii. 1.) and the Apostle St. Paul, Τέκνα ϕύσει ὀργη̂ς, By Nature the Children of Wrath, (Ephes. ii. 3.) speaking not so much in his own Person as in that of the Romans, among whom he then lived. And Evenus, an antient Poet,
In which Sense too there is an old Expression of Galen, ἐπίκτητοι ϕύσεις τὰ ἔθη, Custom is an acquired or a second Nature, (Lib. 3.) So likewise Thucydides, Τω̂ν νόμων κρατήσασα ἡ ἀνθρωπεία ϕύσις, Human Nature is above Laws, (Lib. 3. Cap. 84. Edit. Oxon.) So the Greeks call Virtues and Vices which are become habitual, Πεϕυσιώμενα, Naturalized: And we read in Diodorus Siculus, τη̂ς ϕύσεως ὑπὸ τη̂ς ἀνάγκης ἡττωμένης, When Nature, that is, the Strength of the Mind, is overcome by Necessity. Thus Pomponius, the Lawyer, when he had said, that according to the Roman Law, the same Person, if of the Rank of those who do not bear Arms, could not make a Will, and yet die intestate, subjoins, that there is a5 natural<312> Contradiction in these Things, tho’ that Rule depended on the Custom of the Romans only, nor was it practised by other Nations, nor even by the Romans themselves,6 in the Case of a Soldier’s Will.
3. And the Advantage of having such a Rule as I was speaking of, introduced, was evident; for it cuts off infinite Disputes, which could not possibly be decided, by Reason of the uncertain Prices of Things, among those who had no common Judge to appeal to, nor avoided, if any Man might go back from his Bargain, upon Pretence of being unequally dealt with. It is the Essence, or Substance, of Buying and Selling, (say the Emperors,7 meaning by the Word Essence, or Substance, the constant Custom, or Way) for the Buyer to beat down the Price, and the Seller to raise it, till,8after many Words on both Sides, the one falling a little from his Demand, and the other rising in his Bidding, they agree at last in a certain and fixed Price. Seneca, with an Eye to this Regulation, says,9What signifies what they are worth, if the Buyer and the Seller are agreed about the Price? No Thanks to the Seller, if he has got a good Bargain. And Andronicus Rhodius to the same Purpose,10 Τὸ γὰρ ἐν τοɩ̂ς ἑκουσίοις, &c. Where the Agreement is voluntary, there is no Injustice in an Advantage, nor is there any Amends to be made for it. For the Law has granted an Impunity in such Cases.
4. The Author of Isidore’s Life,11 whom I lately mentioned, calls the Buying too cheap, and the Selling too dear, Ἀδικίαν ὑπὸ μὲν τον̂ νόμου ἀϕειμένην τὸ δε δίκαιον<313> ἀνατρέπουσαν, An Injustice12tolerated indeed by Law, but which in the Main is not the less an Injustice.
[1 ]By single Acts, (Actus simplices) our Author means such as tend to one single Advantage, either of the Person in whose Favour it is done, or of the Person acting; whereas compound Acts (Actus compositi) include several Views of different Advantages.
[1 ]Aristotle comprehends all those under the Title δόσεως, Of Giving, these, πράσεως, Of Selling.Grotius.
[2. ]The Person whom we have thus served, in a Manner merely gratuitous, is obliged to no more than a grateful Acknowledgment, from which no perfect and strict Right arises. What the Roman Lawyers call Management, or Administration of Affairs, belongs to the other Class of gratuitous Acts, that is, to such as are attended with a mutual Obligation. For he who transacts another Man’s Affairs without his Privity, pretends only to give his Trouble for nothing; so that he lays an Obligation on the other to reimburse all the Expences he has been at in the faithful Management of his Affairs.
[3. ]For the Promise is sometimes purely and simply gratuitous; as when a Man promises another to give him, or do something in his Favour, without his entering into any perfect and strict Obligation on his Side, on Account of the Present or Favour promised. Sometimes also the Promise, tho’ gratuitous in the main, implies something which has or may have Consequences, in Regard to which the Liberality ceases: As when we promise a Man to execute a Commission for him; for in that Case, we usually oblige ourselves only to give our Labour for nothing, and expect a Reimbursement of the necessary Expences. See § 13.
[1 ]Digest. Lib. XIX. Tit. V. De praescriptis verbis. Leg. V. where we have a fourth Class, Do, ut facias. I give you this, that you may do that; but it is the same at the Bottom with Facio, ut des. See Mr. Noodt’s Treatise, De Pactis & Transactionibus, Cap. IX. p. 677. Col. 2. Pufendorf, however, pretends to find some Difference between them, B. IV. Chap. II. § 9. They are both right, according to the different Manner of considering the Question. It is more to the present Purpose to observe, that, as the Lawyer Paulus really designed the Do, utfacias, as a fourth Class, different in some Respects from the other three, the Sense given by our Author to this whole Division, is much more general than that in which the Antients understood it. For, as he himself immediately after insinuates, the Contract of Sale, for Example, and that of Letting, are not comprehended in it, tho’ the former belongs to Do, ut des; the latter to Facio, ut des, taking the Terms in the full Extent of their natural Signification. Our Author himself (Num. 5. of this Paragraph) ranks the Contract of Letting, or Hiring, under the Class of Do, ut des; which is not conformable to the Notions of the Roman Lawyers; as appears from the very Law already quoted, which places it under Do, ut facias.
[2. ]The Distinction of nominate and innominate Contracts doth not occur in so many Words in the Roman Law; but we there find that of Contractus certi, and incerti, certain and uncertain Contracts, which better expresses the Reason alledged by our Author for that Distinction. Digest. Lib. XII. Tit. I. De rebus creditis, &c. Leg. IX. See Mr. Noodt, De Pactis & Transactionibus, Cap. IX. and Pufendorf, in the Chapter lately quoted, § 7.
[3. ]See Vasques, Lib. Controv. Cap. X. at the End. Grotius.
[4. ]Digest. Lib. XIX. Tit. V. De praescriptionibus, Leg. II. III.
[5. ]Among the Hebrews no Sale was looked upon to be compleat, unless there was either a real or imaginary Delivery of the Thing purchased. Grotius.
[6. ]Thus, for Example, when the Bargain was fixed and concluded, the Sale could not be broken without the Consent of both Parties, even tho’ the Thing sold was not delivered, nor the Money paid down. Cod. Lib. IV. Tit. XLIV. Quando liceat ab emtione discedere. Leg. I. See also Tit. X. De obligat. & actionibus, Leg. V. & Dig. Lib. II. Tit. XIV. De pactis, Leg. LVIII. Lib. XVIII. Tit. I. De contrahendâ emtione, Leg. VI. § ult.
[7. ]A Man might redemand what he had given for procuring a Slave his Freedom, if he retracted before the other Party had performed what he had engaged to do. Digest. Lib. XII. Tit. IV. De Condictione, causâ datâ, causâ non secutâ, Leg. III. § 2. See Law V. of the same Title; and on it Anthony Faure, Rational, p. 249, &c. 264, &c. as also Mr. Noodt’s Probabilia Juris, Lib. IV. Cap. V.
[8. ]The late Mr. Cocceius, in an academical Discourse, De Jure poenitendi in Contractibus, Sect. IV. maintains, that in this Case there is not only a bare Impunity in the Civil Courts, but that even the Law of Nature authorises the Liberty of retracting, as settled by the Roman Law, in Contracts without a Name. He undertakes to prove his Assertion by two Reasons. First, Because the Contract, according to him, is imperfect, on the Part of him who has given something, as he did not give it absolutely, but in Order that the Person to whom he gave it, should, in Return, do such or such a Thing in his Favour; so that, while the Person receiving has performed nothing, something is wanting for compleating the Contract. But this only proves, that if the Condition on which the Person gave it is not complied with either by the Fault of the Person receiving, or some unforeseen Accident, which has rendred the Execution impossible, he may then oblige the Receiver to restore what was not given so as to be irrevocable. Secondly, says Mr. Cocceius, The Receiver has by the very Act of Receiving, laid himself under some Obligation to him, who gave only on Condition that he should do such or such a Thing; so that the Contract is perfect on his Part, and thus the other has a Right to demand the Performance of it. Whereas the Giver obliged himself to nothing, unless the Receiver actually performs what he promised. But this is plainly begging the Question, and laying down a Principle contrary to the Equality which ought to be observed in Contracts like those under Consideration, where each of the Parties has his own Advantage in View, and consequently designs, at the same Time that he lays an Obligation on himself, to acquire a Right of demanding something in his Turn, which the other may not refuse at Pleasure. Thus, unless the Contract is made only for the Interest of the Giver, that something may be done for him; it is a visible Inequality, and such as is incompatible with the plain and equitable Rules of the Law of Nature, that he who has received a Thing, with Design to keep it, on Condition he performs what he has engaged, should not oblige him who gave it under that Condition, to leave it in his Hands, when he is ready to fulfil the Condition; and that the other, on the contrary, should be at Liberty, either to force him to stand to his Engagement, and even to demand Damages and Interest, if it be his own Fault that he cannot perform his Obligations; or to retract and recover what he gave, or the Value of it, even tho’ the Receiver is both willing and able to do what he promised; as is ordered by the Roman Law, which Mr. Cocceius attempts to reconcile with the Law of Nature.
[9. ]This is plain from those Verses of Homer, cited Lib. I. D. De contrahenda emptione.Tacitus talking of the Germans, says, The more inland People follow the good old Custom of bartering one Commodity for another. De Morib. German. Cap. V. Num. 6. Servius, at the fourth Eclogue upon the Passage,
Assigns this Reason for the Expression; Because the Antients used to chop one Ware for another. And upon that of the third Georg. ver. 307. where he construes Vellera mutentur, the Fleeces are changed, Ingenti Pretio comparentur, are sold at a great Rate. For formerly every Commodity was purchased by Exchange: And this Cajus has confirmed by an Example in Homer. Pliny, B. XXXIII. Ch. I. How much happier was the Age, when one Thing was exchanged for another, asHomerthought was the Practice in the Trojan Days. And in B. VI. Chap. XXII. speaking of the Seres, What Goods they have to dispose of, they lay down on the other Side the River, near what they have Occasion to purchase, to be taken away by these, if they are satisfied with the Exchange.Mela, of the same People, The Seres are between, a People of the strictest Honesty in Dealing, which they manage, tho’ absent, by leaving their Commodities behind them. And Ammianus of them too, Lib. XXIII. When Strangers are come over the River to buy Thread, or any other Goods, the Prices of the Things offered to Sale, are concluded on by the Eye only, without any Talk at all about them.Mela, Lib. II. Cap. I. of the Tartars, They trade by giving one Ware for another. See Busbequius, of the Inhabitants of Mengrelia, Epist. Exot. III. and Olaus Magnus, of the Laplanders, Lib. IV. Cap. V. Grotius.
[10. ]See Procopius upon this Subject, in his Secret History, Chap. XXV. In Italy they brought Species formerly from Sclavonia instead of Goods, Pliny, B. XXXIII. Chap. III. Grotius.
[11. ]Consult Pufendorf, B. IV. Chap. VIII. § 7.
[12. ]See Pufendorf, B. V. Chap. VII.
[1 ]That is, such Acts as unite the Interests of the Contracters.
[1 ]On this Doctrine see Pufendorf, B. V. Chap. II. § 10. where he corrects our Author’s Notions, in Regard to some of the following Instances.
[2. ]It is rather a single Contract of Sale, as was determined by the old Lawyers, against the Opinion of Cassius. Institut. Lib. III. Tit. XXV. § 4. According to the same Authority, there is a Mixture of the two Contracts only, when we find the Gold, and agree with the Artist for his Labour.
[3. ]See Note 3. on Pufendorf, B. V. Chap. VII. § 12.
[1 ]Nor is there any real Mixture in this Case. See Pufendorf, B. V. Chap. II. § 10.
[1 ]Labeo’s Definition of a Contract is, A mutual or reciprocal Obligation, which the Grecians call Συνάλλαγμα; such as Buying, Selling, Hiring, Letting, Partnership. Digest. Lib. L. Tit. XVI. De verborum significatione, Leg. XIX. Our Author quoted this Law. Pufendorf defines a Contract in a different Manner, B. V. Chap. II. But in Reality it is arbitrary; and it is sufficient to express clearly the Idea we fix to Terms, the Signification of which is not well settled. The Commentators on the Roman Law are very much divided on the Definition of a Contract; and I do not know whether the antient Lawyers were better agreed on the Matter or not. See Bachovius, in his Commentary on the first Part of the Digest. p. 565, 566.
[1 ]On this see Pufendorf, B. V. Chap. III.
[1 ]See the Scholiast upon that Passage of Horace, Lib. II. Sat. III. 285.
[2. ]I have explained this in Note 1 on the same Chapter of Pufendorf, § 3.
[3. ]Cicero, De Offic. Lib. III. Cap. XII. But the Philosopher is in the Main of the same Opinion with our Author; he proposes no Objection, but only answers those who pretend a Man ought to discover even accidental Circumstances, which do not at all concern the Substance of the Obligation.
[4. ]Valerius Maximus, Lib. VIII. Cap. XI. 1. An honest Seller must neither augment the Buyer’s Hopes of Advantage, nor disguise and conceal from him the Knowledge of the Faults and Inconveniencies that accompany the Purchase. The Author is speaking there of an House which the Augurs had ordered to be pulled down, which Circumstance the Person who was to dispose of it had never acquainted the Purchaser with. Grotius.
[5. ]De Offic. Lib. III. Cap. X. On this Passage see Mr. Noodt, De formâ emendandi doli mali, Cap. XIII.
[6. ]Institut. Divin. Lib. V. Cap. XVII. Num. 32 Edit. Cellar.
[7. ]De Offic. Lib. III. Cap. XII.
[8. ]Ibid. Cap. XIII.
[9. ]Cap. XVI. See Note 4. on this Paragraph.
[10. ]Cicero, ibid. Cap. XVI. See what I have said on Pufendorf, B. V. Chap. III. § 5. Note 1. second Edition.
[11. ]Theoderic’s Edict, Cap. CXLI. Grotius.
[12. ]The Philosopher says, If a Man sells a Slave who has been guilty of Murther, known to both the Buyer and Seller, the latter is not obliged to take his Slave again. p.916. Tom. II. Edit. Steph. On the same Principle he had a little before said, that If a Physician, or a Master of Exercise, buys a Slave, afflicted with the Stone, &c. or any other obstinate Distemper of Body or Mind, the Sale is good and valid, as if an express Declaration of his Distemper had been made; because that it is presumed from the Purchaser’s Profession, that he ought to know such Defects.
[1 ]Hist. Graec. Lib. III. Cap. II. § 22. Edit. Oxon.
[a ]B. III. Chap. XIX. § 2.
[1 ]See Pufendorf, B. V. Chap. III. § 7, 8.
[2. ]It is to be observed, in short, that the Execution of a Commission, unless it be done gratis, receives another Name. For when a Reward is agreed on, it begins to be Letting and Hiring. And, generally speaking, in those Cases, where a Contract is made, in Regard to a Commission, or something deposited without promise of Reward; in the same Cases, if a Reward intervenes, it is understood to be a Contract of Letting and Hiring. Institut. Lib. III. Tit: XXVI. De Mandato, § 13. See also Digest. Lib. XVI. Tit. III. Depositi vel contra. Leg. I. § 9.
[3. ]Our Author doth not tell us from what Part of St. Chrysostom’s Works he took this Passage.
[4. ]The Historian says, that Hermias practised this Maxim, among other Occasions, in Regard to an ignorant Person, who offered to sell him a Book under its Value. Cod. CCXLII. p. 1044. Edit. Rothom. 1533.
[5. ]See Moses de Kotzi LXXXII. Prac. Juben.Grotius.
[1 ]Cod. Lib. IV. Tit. XLIV. De rescindendâ venditione, Leg. II. See what has been observed on this famous Constitution of the Emperor Dioclesian, in a long Note on the second Edition of Pufendorf, B. V. Chap. III. § 9. Note 1.
[2. ]De Offic. Lib. III. Cap. XVII.
[3. ]If there is a real Damage, the Civil Laws, what good Reason so ever they may have for not allowing an Action for redressing this Inequality, leave the natural Obligation subsisting in its full Force.
[1 ]Concerning what relates to this Contract in general, see Pufendorf, B. V. Chap. IV. § 2, 3, 4. with the Notes in the second Edition.
[2. ]Consult the same Author in the same Chapter, § 6. with the Notes in the second Edition.
[a ]See Lex Wisigoth, Lib. V. Tit. V. Cap. I. II. III.
[3. ]See the same Place, § 7.
[4. ]Pufendorf treats of this Contract also in general, B. V. Chap. X. § 13, &c.
[5. ]See the same Author, Chap. VI. of the Book already often quoted, § 2.
[6. ]The Conformity is not compleat. For, to say nothing of Losses sustained in the Execution of a Commission, on which Article our Author doth not explain himself, so as to enable us to judge certainly whether his Notions were different from those of the Roman Lawyers: he doth not entirely agree with them about Things lent for Use. For, according to the Roman Law, if the Thing lent was lost by Accident, without any Fault in the Borrower, the Owner suffered, whether the Thing might or might not have been preserved in his Hands. See my eighth Note on Pufendorf, B. V. Chap. IV § 6. second Edition. The Roman Laws, which answer to our Author’s Decisions in these Cases, may be seen in the other Passages, quoted from that Book.
[7. ]This agrees with a Passage in Exodus, Chap. XXII. 7, 10, 11, 12, 13. Moses de Kotzi, LXXXVIII. and LXXXIX. Praecep. Juben.Grotius.
[8. ]De Benefic. Lib. VII. Cap. XIX. The Words of Seneca are, Non tutelam, illi, sed fidem debeo. The Philosopher is there speaking of the Obligation of restoring what we owe a Man, even tho’ he is at that Time disposed to waste it; for, says he, I am obliged to keep my Word, (Fidem debeo) but not to preserve the Thing restored, (non Tutelam). So that, tho’ these Words may bear an Allusion to the several Degrees of Care and Exactness to be observed, according to the Nature of the Contracts, the Question is very different in the Main. Perhaps Seneca here alludes to the Obligations of Guardianship; as if he had said, I am not my Creditor’s Guardian; I am obliged only to restore him his Goods, it is his Business to take Care of them.
[1 ]Ethic. Nicomach. Lib. V. Cap. VIII. p. 65. Tom. II. Edit. Paris.
[2. ]On this whole Question consult Pufendorf, B. V. Chap. I. with the Notes.
[3. ]And the same Author, in his thirty-seventh Book, treating of Jewels, It is People’s Pride and Curiosity, and especially the Extravagance of Princes, that determines the Value of these Things. And in his thirty-second Book, The Indians set as great a Price on our Coral, as we do on their Pearls; for these Things depend altogether on People’s Fancies. And St. Austin, De Civit. Dei, Lib. XI. Cap. XVI. And pray where is the Strangeness of all this, when you find that so unaccountable are those Men’s Notions, tho’ they are in their own Natures of so much Excellence and Dignity, that they shall frequently give more for a Horse than a Man Slave, and for a Jewel than a Woman Slave? The Notions of Reason are here very different from those of Necessity and Pleasure. Reason considers a Thing according to its intrinsick Value; but Necessity, according as there is real Occasion for it. Reason seeks for what may appear true to the Mind; but Pleasure for that which may gratify the Senses of the Body.Grotius.
[4. ]For, adds he, it is hard to fix the Value of Things, till the Extent of our Passions is regulated. In Verrem. Lib. IV. Cap. VII.
[5. ]Digest. Lib. XXXV. Tit. II. Ad Legem Falcid.Pliny says, Lib. XVIII. Cap. XXXI. An honest prudent Man, who has a Family to maintain, makes Use of the Provisions Price for my Trouble; that every Year furnishes him with.Grotius.
[6. ]Digest. Lib. IX. Tit. II. Ad Legem Aquil. Leg. XXXIII.
[7. ]Nor does St. Austin disapprove of this, upon Psal. lxx. But, says the Person you are dealing with; I bring my Goods a great Way, I only desire a living Price for my Trouble; and the Labourer is surely worthy of his Hire. Friend, we are not talking about your Trade and Business, but about your Lying and Perjury in it.Grotius.
[1 ]Concerning this Contract, see Pufendorf, B. V. Chap. V. § 2.
[2. ]De Benefic. V. 10. Grotius.
[3. ]As this stands in the Original, it is urged by our Author as a Proof of what he had just advanced in Relation to a Contract of Sale, Nam et ita fit in permutatione. This I take to be his Meaning; on which the Commentators are silent. If, according to the Law of Nature, the Property may be transferred the Moment the Contract is made, by which one Thing is given for another, tho’ neither of the contracting Parties delivers what he deprives himself of; or tho’ only one of them immediately gives the other Possession of the Thing exchanged; why may not the Translation of Property be likewise made without Delivery, when we give a Thing for Money? There is no more Difficulty in the latter Case than in the former. However, as those who are prejudiced in Favour of the Roman Law, the Notions of which are not more agreeable to the Simplicity of the Law of Nature, in Regard to Exchange, may also dispute what our Author takes for granted, concerning that Contract, which is of the greatest Antiquity, the Whole amounts at last to what has been said, Cap. VI. § 1. in the Text and Notes.
[4. ]Praestando ut habere liceat. According to the old Roman Law, when a Thing was sold purely and simply, the Seller only engaged so to deliver it into the Hands of the Buyer, that it might be reckoned among his Goods, according to the Law of Nations, (which was termed Dominium Bonitarium) and that he should not be molested in the Possession of it, or be indemnified, on legal Proof of such Molestation. But all this did not render the Buyer the real Proprietor, according to the Civil Law, till the Form of Prescription expired; he had not yet the Dominium Quiritium; the Property was not transferred on him omni modo, nor quoquo modo, it was only a Sort of Possession. This therefore was barely called, to deliver, (tradere) whereas the Word to give (dare) was used for expressing a Translation of the full and whole Property, which was performed with certain Formalities. (Mancipatione, vel cessione in jure) See Chap. VIII. of this Book, § 25. Note 2. But, unless it was expressly agreed to put the Buyer in Possession of the Thing bought on that Foot, he could demand the Possession only in the other Manner. See Mr. Noodt’s Probabilia Juris, Lib. II. Cap. XII.
[5. ]See Pufendorf, B. V. Chap. V. § 3. where he makes a proper Reply to what is alledged for salving the Want of Connexion in the Principles of the Roman Law; or at least the Manner in which they are usually explained. The Seller, we are told, is considered as indebted for a Thing in Kind; and therefore is not answerable for Accidents, by which the Thing may be lost, without any Fault in him. Mr. Thomasius, however, (in his Notes on Huber, De Jure Civitatis, Lib. II. Sect. VI. Cap. IV. p. 523.) not only approves of this Reason, but even maintains, that it holds good, according to the Law of Nature, when the Goods are not yet paid for, and the Seller doth not sell them on Trust. He is of Opinion, that in this Case the Property should be considered as remaining in the Seller, and that this always holds good, even according to the Law of Nature, unless it was expressly agreed, that the Property should be transferred to the Buyer, the Moment the Contract was made, and before the Delivery of the Thing sold. To support this Assertion, he observes, that by the Nature of the Contract of Sale, the Seller is not obliged to deliver the Goods till he is paid, (this probably was meant by those Words Ad Dominium transferendum, taking Dominium for Possession, not for Property; which would be begging the Question) unless he gives Credit. But I think it does not thence follow, that the Right of Property remains in the Seller. The Right, and the Enjoyment of the Right, are two different Things; as are the Contract, and its Execution. Nothing more is requisite for transferring the Right but the Will of the Proprietor; and that Will, if we judge by the Simplicity of the Law of Nature, has its full Effect, the Moment the Contract of Sale is made, unless it be otherwise agreed. But the Enjoyment of the Right, which relates to the Execution of the Contract, may be suspended till the Buyer has paid down the Money agreed on, tho’ he will not thereby be less the Proprietor of the Thing sold. The Seller is not obliged to dispossess himself of his Goods till the Buyer has paid for them; because, as he gives no Credit, he tacitly reserves to himself a Right of breaking the Contract, if the Buyer does not first perform his Engagements; nor does he intend to expose himself to the Danger either of not being paid, or, at least, not without much Difficulty, or not recovering his Goods safe and sound, which he sold only on Condition, that the Sale should be null and void, on Default of Payment. Now either the Time of Payment, which ought to precede the Delivery of the Thing sold, is fixed or not. In the former Case it is plain, that the Moment the Term expires, the Right of Property reverts to the Seller: In the latter, the Buyer is obliged to take away the Goods without Delay, because, otherwise, the Seller might lose an Opportunity of disposing of them to the same Advantage. This, I think, ought to hold good, according to the Law of Nature. But at the same Time it must be owned, that, commonly speaking, when the Sale is made in the Manner here specified, it is not so much a Contract of Sale, properly so called, as an Agreement which obliges the Parties to make such a Contract at a certain or uncertain Time. So that it is no Wonder if the Seller remains Proprietor of the Thing sold, and consequently, if Accidents and Casualties fall on him. The Effect of such an Agreement is, that the future Seller engages first, not to make a Contract of Sale with another, in Regard to the Thing bargained for, before the Term, either limited or not; and in the second Place, to give it at the Price agreed on, when the Contract of Sale shall be completed, by the Performance of the Obligations on both Sides. There may be an Agreement to sell, which may have some Effect, even without fixing any Price, as I have shewn in my third Note on Pufendorf, as before quoted. Much more then may there be an Agreement to sell at a certain Price. And this seems to have been our Author’s Notion; at least it ought to have been so, in my Opinion, when he was arguing on the Principles of the Law of Nature only.
[6. ]Tit. De Legibus, Serm. XLIV. Grotius.
[7. ]Our Author here supposes two Sales, by one of which the Right of Property was transferred, the Moment the Contract was made and concluded; which, according to him, is the most simple and natural Way of Buying and Selling: In the other it is agreed, that the Property should still remain some Time in the Seller. But he does not distinguish which is prior or posterior in Date; nor does he speak of the Case in which the two Sales were made on the same Foot; which Pufendorf supposes, as above quoted, § 5. who on this Occasion accuses him wrongfully; imagining that the whole Difference is, that one of the Sales was accompanied by a Delivery; and following Ziegler in this Point, tho’ he does not name him, who endeavours to make Grotius contradict himself. But our Author says, By Delivery, or otherwise. So that, according to him, it is possible there may be no Delivery; nor can it take Place here, when the other Buyer has without it acquired the Property, the Moment the Bargain was made; because the Delivery implying a present Translation of the Property, there would be a Translation of Property on both Sides, which would make Things so far equal. However, I do not approve of our Author’s Way of reasoning on the Substance of the Question. For tho’ a present Translation of Property is in itself more considerable than a bare Promise of transferring the Property; yet the Promise, according to the Principles laid down in the preceding Chapter, ought, in its own Nature, to have sufficient Force to hinder the Promiser from knowingly and willingly doing any Thing that shall stand good, which may put him out of a Condition of performing it. So that the Moment a Man has promised to transfer the Property of a Thing to another, he thereby deprives himself of the Power of actually transferring that Property elsewhere, till a Term, whether fixed or not, which is either expressly or tacitly agreed on. In Reality, according to the Law of Nature alone, while there is no Delivery, the first in Date has the better Right, on what Foot soever the Sale was made. But when the Thing sold has been actually delivered, the Person to whom it was delivered is not obliged to restore it, whether he was prior or posterior in Date, provided he knew nothing of Sale made to the other. That the first in Date has the better Right, when there is no Delivery, appears from the Reason already alledged, and taken from the very Nature of Promises; even tho’ there was a present Translation of Property in Favour of the last in Date, if that Translation was not accompanied with an actual Delivery, the Buyer might think it possible, that the Performance of the Contract might be hindered by several Accidents, of which Number is another Man’s prior Right. The Thing is then in Nature: It has not been in the Seller’s Power to dispose of it; so that the first Buyer, or the Person who has the first Right to it, may assert that Right, and the other ought to rest satisfied with demanding Damages and Interest of the Seller, who has amused him with a fallacious Contract. This takes Place particularly when it depended solely on the last Buyer to put himself in Possession of the Thing the Moment the Contract was made and settled. But when the Thing sold has been actually delivered to one of the Buyers, even to the last in Date, it is no longer in Nature, but ought to be considered as lost. The Person to whom it was delivered is not in Fault, if it was, as it were, mortgaged to another, because we suppose he knew nothing of the Matter. By what Title shall that other, with whom he had nothing to do, require the Delivery of a Thing which he has justly acquired? As, while the Thing is not yet delivered, the first in Date may come upon the Seller, who has it still in his Hands, because he neither could nor was obliged to foresee, that the Seller would promise it to another; so likewise, when the Seller has actually deprived himself of it, pursuant to a posterior Engagement, the Person to whom it was delivered is not obliged to enquire, while he has no Reason for Suspicion, whether the Seller has transferred his Right to another. The Necessity of Civil Commerce equally requires both; so that in both Cases it is a Misfortune to the Person who depended on having the Thing sold, if he is disappointed, either by the Discovery of a prior Right, or by a Discovery of the Delivery of the Thing, which puts the Seller out of a Condition to give the Possession of it.
[1 ]Concerning this Question, see Pufendorf, B. V. Chap. V. § 7.
[2. ]Every Body knows Thales’s Story of the Olives. Pythocles’s Invention of buying up the Tyrian Lead for the Advantage of the Athenians, is in Aristotle, Oeconomic. II. See Pliny, VIII. 37. of the Monopoly of the Skins of Hedge-Hogs. And Procopius, of the In grossing all the Silks, in his Hist. Arcan. Chap. XXV. Grotius.
[3. ]Lib. XVII. See too Cassiodore II. 4. and 26. Grotius.
[4. ]It is a just and prudent Law, C. De Monopol. And there is a very notable Passage in Lysias against the Corn-Factors, who advanced the Price of their Grain, by raising false Rumors. Add to these Cassiodore, IX. 5. and C. quicumque, Caus. XIV. Quaest. IV. Grotius.
[5. ]There is no Offence against the Rules of Charity in this Case, but when the Things in Question are absolutely necessary for the Support of Life, as Corn.
[1 ]Not so much from the Substance as the Value, Lib. I. D. De contrah. emtione. We must not regard the Matter here, but the Worth of it, L. Si is cui, § 1. De solutionibus.Grotius.
[2. ]Because we may give Silver Money, for Money of Gold.
[3. ]Because we may give Crowns for Pistoles, or Half-Crowns for Crowns; or Copper-Money for Crowns, &c. in Proportion to the respective Value of each Species.
[4. ]Because we may give Money for Corn, Wine, &c. and that by paying more or less, according as the Things bought are more or less scarce in Comparison with Money. See Pufendorf, B. V. Chap. I. § 15, 16.
[5. ]That is, if a Man borrows a Sum of Money, for Example, and, at the Time we are to pay it, Money, or other Things, are more plentiful, and consequently, Money is of more or less Value than it was when he borrowed it; the Creditor cannot demand more Pieces than he lent, nor the Debtor pretend to pay fewer than he borrowed. The Reason is, because the Case, which frequently happens, might as well turn to the Advantage of either of the contracting Parties, as to his Loss. So that they are and ought to be supposed to have tacitly consented, that it should be so much the better for him that should gain, and so much the worse for him who should lose by the Difference. There is a Hazard in such Agreements. The same is to be said, when a Thing or the Value of that Thing, is to be given at a certain Time, or in a certain Place. The Commentators very much enlarge here on the Change of the intrinsick or extrinsick Value of the Species. But this is a different Question, of which it doth not appear that our Author thought, and concerning which Pufendorf may be consulted, B. V. Chap. VI. § 6, 7.
[6. ]Its Value is publick and perpetual, D. Lib. I. D. De contr. emt.Grotius.
[1 ]Concerning this Contract, see Pufendorf, B. V. Chap. VI. with the Notes.
[2. ]Digest. Lib. XIX. Tit. II. Locati, conducti, Leg. II.
[3. ]That is, a Thing sold, but not delivered. See above, § 15. and my first Note on Pufendorf, B. V. Chap. VI. § 2.
[4. ]Provided such Accidents do not entirely take away the Use of the Thing; as is the Case, when a Farm yields no Profit, or so little, that it is hardly any Thing in Comparison of the Labour and Charge employed in the Culture, and in Proportion to the Largeness of the Farm hired. The only View in hiring a Thing is to draw some Advantage from it; so that here the Case is the same as if the Thing hired had perished, or the Tenant was turned out.
[5. ]It is here supposed, that the Owner, or Landlord, had no Reason to think the first Tenant would be unwilling he should let the Thing to another, so long as he is not in a Capacity of enjoying it himself. Such an Impediment might also happen, as would dissolve the Contract, by Vertue of a tacit Exception, founded on a reasonable Presumption of the Tenant’s Intention.
[1 ]This requires some Restriction. See what is said on the Question, § 4. of Pufendorf’s Chapter, quoted in the foregoing Paragraph.
[1 ]Concerning this see Pufendorf, B. V. Chap. VII. § 8, &c.
[a ]In Cap. 25. Matt. qu. 171. & 172.
[2. ]For these two Loans (the Commodatum and the Mutuum) are very much alike, as Locatio and Foeneratio are, the one Letting out of Goods, the other of Money; in L. Unica, C. Theod. quod jussuest: There is, pecuniam commodat.Justinian has made it in his Edition, mutuam dat. And Horace calls nummos foenore sumtos, Money taken up at Interest, conductos, Money hired, Lib. I. Sat. II. where the Scholiast has Merces, for Usura.Grotius.
[3. ]Nor ought Money ever to be idle and unprofitable, L. quid ergo, § Usuras, D. de contrar. & util. act. tutelae, L. Debitor. D. de Usuris.Grotius.
[4. ]Our Author proposes and answers this Objection more at Length, in the following Manner, in a Note on Luke vi. 35. “It is objected by some, that in the Loan of a Thing consumable, the Lender transfers his Property to the Borrower: Now, say they, the Profits arising from a Thing ought to belong to the Proprietor. But this is a Refinement of Speech, which has no Foundation in natural Equity. For, in Regard to Things that may be returned in Specie, as Money, Corn, Wine, &c. the Right a Man has to demand an Equivalent of the same Sort, stands for Property. Now it is universally agreed, that a Person to whom a Thing is restored in a short Time, receives more than he to whom it is restored after a longer Time, on Account of the Advantages attending the natural Possession. (Ἡ ϕυσικὴ κατοχή.) And this holds good in a Loan of Things consumable, as well as in that of Things not consumable, if we consider the Nature of Things in themselves, and not the Subtlety of Terms. The Delay of Payment is undoubtedly susceptible of Estimation; and consequently, some Stipulation may be made in Consideration of such Delay. If, on lending a Man a hundred Crowns, I agree with him, that he in his Turn shall lend me the same Sum another Time, which is a real Exchange; how will it be proved, that there is more Injustice in such an Agreement, than when I lend a Neighbour some Oxen for Ploughing his Ground, on Condition that he shall lend me his in his Turn? Now this Obligation of Lending in his Turn, is, like all other Things, susceptible of Estimation by Money; (and, consequently, a Man may be released from it on Payment of a certain Sum in its Place). Besides, Nature dictates to us this Maxim, that we are not obliged to serve another, when we cannot do it without Damage to ourselves. Now, he who deprives himself of his Money for some Time, to pleasure another, might have laid it out on some Piece of Land, or on a House, and received Profits arising from them during that Time. It may be said, those Profits would have been uncertain. But even that Uncertainty has its Value, and is frequently sold, as every Thing else which is subject to Hazard. Besides, if a Person to whom the Use and Profits of a Sum of Money are bequeathed without the Property, is supposed to become richer by such a Legacy; it appears, that such Use is susceptible of Estimation; and consequently, the same may be said of the Use of a Sum lent for a Year. I perceive, that most of those, who condemn an Agreement for any Interest for Money lent, do not however disapprove of demanding some Interest for Delay of Payment; whereby they allow of agreeing that if the Borrower doth not pay at the Time appointed, he shall give so much for the Interest of the Money lent. Now is not this admitting the Substance of the Thing, and disputing merely about Words? For, according to this Opinion, we may bargain thus, If you do not pay me in three Days, you shall give me so much more. But, if the three Days, or some other fixed Time is not mentioned, the Agreement shall be unlawful. Is not this a mere Quibble, without any Foundation in the Nature of Things? Let us therefore conclude; that, without Prejudice to the Law of Nature, every one who deprives himself of the Use of his Money, to oblige another, may bargain beforehand, that the Borrower shall give something in Return for that Service.”
[5. ]Digest. Lib. VII. Tit. V. De Ususfructu rerum, quae, &c. Leg. I. II.
[6. ]For by Ususfructus we understand, a Right of enjoying a Thing belonging to another, and the Profits arising from it, without touching the Substance, or disposing of it. Digest. Lib. VII. Tit. L. De Usufructu, &c. Leg. I. Whereas, when a Sum of Money is bequeathed to any one for his Use, the said Use consists in the Consumption. See Mr. Noodt’s Treatise De Usafructu, Lib. I. Cap. II. and XX. XXI.
[7. ]Cum debitor. D. in quibus causis pignus. L. ea pactione. C. de Usuris.Grotius. Concerning the Antichresis, see Pufendorf, B. V. Chap. X. § 14.
[8. ]Mr. Noodt has examined these Passages of the Authors here quoted, and some other in his Treatise De Foenore & Usuris, Lib. I. Cap. IV. VII. VIII. IX.
[9. ]As Appian, in Civil. (p. 382. Edit. H. Steph.) Grotius.
[10. ]Our Author changed his Opinion since he wrote this, as appears both from his Introduction to the Law of Holland; his 953d Letter written to Salmasius; and his long Note on St. Luke, of which I have already given a Part. He confutes himself in the following Manner, “The Law in Deuteronomy xxiii. 19, 20. stands thus; Thoushalt not lend upon Usury to thy Brother; Usury of Money, Usury of Victuals, Usury of any Thing that is lent upon Usury. Unto a Stranger thou mayest lend upon Usury; but unto thy Brother thou shalt not lend upon Usury. Those who maintain, that all Lending on Usury is contrary to the Law of Nature, pretend that the Permission here granted in Regard to Strangers is a bare Permission of Fact, not of Right, that is, a bare Impunity. But the Words do not admit of this Explication; and the People for whom the Law was made, never understood it thus; as appears from the Testimonies of Josephus and Philo, with whom all the Rabbins agree in this Point. The former of those Authors says, It is not lawful to lend upon Usury to any Hebrew, either Eatables or Drinkables; for it is not just to raise a Revenue at the Expence of their Countrymen. But we must assist them in their Necessities, and consider their Gratitude as Gain, as also the Reward which GOD will bestow on such as do good. (Antiq. Jud. Lib. IV. Cap. VIII.) Philo observes, that in the Law under Consideration, the Term Brother is not confined to one born of the same Parents, but extends to all Countrymen, or Persons of the same Nation, (De Caritate, p. 701. Edit. Paris.) And a little lower he adds, that If a Man is not disposed to give, he ought at least to lend freely, and without Interest; for, says he, by this Means the Poor will not be reduced to the utmost Misery, by being obliged to pay more than they received; and the Creditors will receive no Damage, since they will receive their Due, together with the Reputation of Goodness, Generosity, Greatness of Soul, and Commendation. (p. 702.) Clement of Alexandria has imitated and explained this Passage, Stromat. Lib. II. (Cap. XVIII. p. 473. Edit. Potter.) Hence it appears sufficiently, that the Law in Deuteronomy, under Consideration, has been considered as containing only a Duty of one fellow Citizen to another; which is clearly insinuated in Leviticus xxv. 36. where we find this Reason given for the Prohibition of Lending on Interest, That thy Brother may live with thee. For which Reason, when the Royal Psalmist, and the Prophet Ezekiel, praise such as forbear this Practice, they are to be understood as speaking only of those to whom it was forbidden by the Law. St. Ambrose, and some others after him, are of Opinion, that by the Term Strangers, of whom Interest might be taken, are meant those of the seven Nations, on whom the Israelites might lawfully make War. We are not to be surprized, says that Father, if it was allowed to lend in this Manner to Persons, who might be killed with Impunity. (De Tobia, Cap. XV.) But this Explication doth not agree with the Terms of the Law; for when it speaks of Strangers, in Opposition to Brethren, or those of the same Nation, it is certain the Words ought to be understood of all other Nations without Exception. To this it may be added, that it was not consistent with the Gravity of the Legislator, to make a Law for allowing to lend on Interest to Persons who were to be destroyed. The Reason then of the Difference here made is this, GOD required the Israelites should observe among themselves, not only the Duties common to all Men, and which relate to such Things as others might in Rigour demand; but likewise several Duties of Charity and Friendship peculiar to themselves; as appears from the Laws concerning Slaves, Servant’s Wages, the Permission of Gleaning in another Man’s Field, and several others of the like Nature. Besides, the chief Income of the Hebrews arose from Cattle and Husbandry, as Josephus observes, Lib. I. Adv. Apion. Whereas most of the neighbouring Nations inriched themselves by Trade; as the Sidonians, the Tyrians, those who lived near the Red Sea, and the Aegyptians. So that there was a very good Reason why the Law should allow the taking of some Interest for Money lent to such Strangers, tho’ it forbid the Israelites that Practice, who were for the most Part Shepherds or Husbandmen. But this Law of Moses being founded on the particular State of the People of Israel, and being imposed on them alone, obliges others only as it may insinuate some Conformity to natural Equity. As to the Gospel, our Saviour JESUS CHRIST having laid down no particular Precept concerning the Matter in Question, we are to draw Consequences from the general Precepts of his Doctrine, for knowing what he allows or prescribes in this Case, &c. — Among the old Canons of the Church we find no one that Excommunicates all in general who lend on Interest, as was practised in the following Ages. It is forbidden only to such as had some considerable Employment in the Church; to such as were called Ὁι ἐν κανόνι, in the forty-third of the Canons ascribed to the Apostles, in the fourth of the Council of Laodicea; the seventeenth of the Council of Nice; the fifth and sixteenth of the Council of Africa. And the Reason why such Sort of Men were forbid to do it, is, in my Opinion, because it was thought they ought to be free from even every Suspicion of Avarice. The Fathers of the African Council give us to understand as much, when they say, that What is blameable in the Laity, ought to be much more condemned in the Clergy. Can. V. The same Council, when it forbids Bishops, Priests, and Deacons to lend on Usury, likewise forbids them to undertake any Procuration, or plead for another; for which Prohibition this Reason is assigned, that it doth not become Ecclesiasticks to meddle with secular Affairs. [See above, B. I. Chap. II. § 10. Num. 8.] Hamenopulus alledges the same Reason, after having quoted the Canons above-mentioned. [Promptuar. Lib. III. Tit. VII. § 28.] The Emperor Leo, as the same Lawyer observes, was the first that imagining no Sort of Usury was allowed to Christians, forbid it to all in general. Before that Time, even Churches borrowed Money at four per Cent. &c.” Thus far our Author. To which if we add the Reflections of Mr. Noodt, who has exhausted this Subject, in his Treatise De Foenore & Usuris, Lib. I. Cap. X. XI. we shall receive full Satisfaction, in Regard to the Objections which the Partizans of the contrary Opinion pretend to bring from Scripture.
[11. ]The Hebrews are of Opinion, that by the Word בשד, is meant Usury for Money; but that חרביח signifies Usury for any Thing whatever. St. Jerome, upon the eighteenth of Ezekiel, They think indeed that Usury consists only in the Interest of Money: Which the Divine Scriptures providing against, do in every Thing prohibit an immoderate Advantage, and oblige you to take no more on any Account than you have given.Grotius.
[12. ]And in the cxiith, A good Man is merciful and lendeth.Grotius.
[13. ]Arnobius, in his fourth Book, says, that Christians generously impart what they have, and that to all Mankind, with as much Freedom as if they were their nearest Relations. And in another Place, They who love all Men as their Brothers.Grotius.
[14. ]Epitom. Institut. Cap. IV. Num. 12. Edit. Celler.
[15. ]St. Cyprian, De lapsis, reckons amongst several grievous Sins, the lending Money on Interest. St. Chrysostom, De Jejunio, V. Ἐὰν νηστεύσης, βλέπε, &c. If you fast, pray see that you do not put your Money out to Interest. Do you fast? Cancel the Obligations of your violent and unjust Contracts. And the same Author upon the last Chapter of the first of Corinthians, says, that Money gained by Usury, and given in Charity and Alms, is no more acceptable to GOD, than if it was so much from the Stews, the Price of Lewdness and Prostitution. St. Austin, Epist. LIV. What shall I say of Usury, which even the Laws, and our Judges allow of? Is he more barbarous who cheats and robs the Rich, than he who with his Exaction murders the Poor?Maximus, Homil. III. De Quadragesima, You will come to Church, Brother, as you ought to do, if that wretched Usury does not hamper and intangle you in her deadly Snares. To these add St. Basil, upon our LORD’s Sermon on the Mount, and what Gratian has collected from the Councils and Fathers, Caus. XIV. Quaest. III. and IV. Grotious.
[16. ]Suetoniusin Augusto, Cap. XXXIX.
[1 ]And if we would speak as the Roman Lawyers do, we should say, that Extortion indeed is an odious Name, but Usury is not so. Usury is imposed, not because the Lender desires to make a Penny of you, but because you, who borrow, defer your Payment. L. cum quidam. D. de Usuris. And Cujas, in Paratit. de nautico foenore. Extortion is what is demanded over and above the Principal, merely for Advantage sake; Usury is what is given more than the Principal, that the Creditor may not be a Loser. But because several have abused the Name of Usury, this too is now usually taken in a bad Sense, and the Word Interest is substituted in the Room of it, in a good Sense. Grotius.
[2. ]This is admitting the Thing as to the Substance, tho’ under another Name; as Pufendorf observes, B. V. Chap. VII. § 11. see likewise Mr. Noodt, De Foenore & Usuris, Lib. 1. Cap. XII.
[3. ]Procopius, Gotth. III. (Cap. XL.) speaking in the Praise of Germanus, Justinian’s Relation, Χρήματα τοɩ̂ς δεομένοις, &c. He lent great Sums to all who had Occasion for Money, and never took of them any Interest that could be truly called so.Grotius.
[1 ]So it is in the Empire. Grotius.
[2. ]And therefore Justinian looked upon it to be his Duty to regulate the Interest that was permitted before his Time, and to reduce it to a juster Rate. Novel. 32, 33, 34. Grotius.
[1 ]See Pufendorf, B. V. Chap. IX. § 8. where he treats of other hazardous Contracts; see also a Dissertation of the late Mr. Hertius, in his Paroemiae Juris Germanici, Lib. I. Cap. XLIII. p. 460, &c. Tom. III. of his Comment. & Opuscula, &c. in which he handles the principal Questions relating to the Contract of Insurance.
[2. ]Suetonius, in his Life of Claudius, said, that he took that Hazard upon himself. So Cicero took Security for the publick Money, that the People might run no Hazard in the Carriage of it. Epist. XII. 17. Grotius.
[1 ]An Instance of Partnership you have in the Dolphins, observed by Pliny, Lib. IX. Cap. VIII. and in the Nacre, and another Shell-Fish called Pinnother, IX. 40. And this Cicero mentioned too. De finibus, (Lib. III. Cap. XIX.) Grotius.
[2. ]Ethic. Nicom. Lib. VIII. Cap. XVI. p. 115.
[3. ]Par pari datum hostimentum est, opera pro pecuniâ. This is in Plautus, Asinar. Act. 1. Scen. III. v. 20. The Poet is there speaking, not of a Contract of Partnership, or that of a trading Company, but of a Contract for doing something for another, on the Consideration of something to be given.
[4. ]Digest. Lib. XVII. Tit. II. Pro Socio, Leg. XXIX. But it is more probable, that the Lawyers here meant a simple, not a proportionable Equality. They considered a Contract of Partnership as a Kind of Fraternity, (ibid. Leg. LXIII.) and, consequently, of Friendship, which threw all in common, without enquiring whether one of the Partners had contributed more than another, unless it was otherwise agreed. See Mr. Schulting on the Institutions of Cajus, Lib. II. Tit. IX. § 16. Not. 98. p. 171. of his Jurisprudentia Anti-Justinianea.
[1 ]Among the marginal References in the Original, which were transposed, and improperly placed, there are two which ought to be produced here. The first is to Livy, Lib. XXXIX. as it stands in all the Editions before mine. But we find nothing like it in that Book; and I believe our Author had his Eye upon what that Historian relates in the Close of Book XXIII. of three Companies of Partizans, who, in a pressing Necessity of the Commonwealth, undertook to go to Spain with Provisions, at their own Expence, for the Army of the Scipio’s. These Partizans, among other Terms, required that the Publick should make good their Loss, in Case any of their Ships were taken by the Enemy, or were lost in a Storm. If our Author designed to refer this to a Mixture of the Contract of Partnership, and the Contract of Insurance, of which he speaks in the foregoing Paragraph, the Example would be nothing to the Purpose. For the Agreement made by the Roman People with the Partizans, was a Farm, with a Mixture of a Contract of Insurance, there was no Partnership. The other marginal Reference is to Aristotle, who speaks of an Alliance between the antient Tuscans and the Carthaginians, by Vertue of which they were obliged to defend each other, particularly in their trading Voyages, Politic. Lib. III. Cap. IX. p. 348. Tom. II. Edit. Paris. The Philosopher elsewhere calls such Alliances, Συμπλοικὰι ϕιλίαι. Ethic. Nicom. Lib. VIII. Cap. XIV.
[2. ]See something like this in L. Wisigoth, Lib. V. Cap. V. Grotius.
[1 ]That is, before Law II. of the Title of the Code, De rescindenda Venditione; concerning which see Note 1. on Pufendorf, B. V. Chap. III. § 9.
[2. ]Concerning this Question, see Pufendorf, as last quoted, § 10, 11. with the Notes.
[3. ]Digest. Lib. IV. Tit. IV. De minoribus, &c. Leg. XVI. § 4. See also Lib. XIX. Tit. II. Locati, Conducti, Leg. XXII. § 3.
[4. ]So Gellius, Lib. IX. Cap. X. speaking of the conjugal Act; A Thing by the Law of Nature to be done in private.Grotius.
[5. ]Digest. Lib. L. Tit. XVII. De diversis regulis Juris, Leg. VII. He is there speaking of a Case, in which a Testator had disposed only of Part of his Estate, as when, naming an Heir he had assigned him only half, or a fourth Part of the Inheritance; or, when appointing several Heirs, he had assigned each of them his Share distinctly, in such a Manner that all the Shares together fall short of the Total of his Estate. According to the Roman Law, the Remainder, not mentioned by the Testator, accrued to the Heir, or Heirs, in the same Manner as if he had formerly given it them. It was laid down as a Principle, that one and the same Person could not design to make a Will, and yet let a Part of his Estate to be enjoyed by the lawful Heirs, as if he had made no Will. Mr. Bynkershoek is of Opinion that the Reason of this Decision is, because, by the Laws of the XII. Tables, all the Goods of a Person either fell to his Relations, if he died intestate, or belonged to him whom the Testator had, in his Life-Time, declared his Heir with certain Formalities. (Mancipatione familiae per aes & libram.) See that great Lawyer’s Observat. Juris Romani, Lib. II. Cap. III. However, when I consider well the Words of the Law in Question, I think it is plain enough that Pomponius designed to say there is a real Contradiction in supposing one and the same Person to die intestate, and yet have made a Will, Jus nostrum non patitur eundem in paganis & testato & intestato discedere; earumque rerum naturaliter inter se pugna est. It is not at all probable, as James Godefroy observes in his Comment on this Rule, that naturaliter here signifies, According to the Custom received by the Roman Law. That is sufficiently expressed in the first Words of the Rule, and it is impossible to make Choice of Terms more strong, for expressing a Contradiction founded on the Nature of Things. I easily conceive that the Notions of a false Philosophy might hinder that Lawyer from comprehending, that it is indeed a Contradiction that a Man should make a Will, and not make a Will in Regard to the same Goods; but he may dispose of certain Goods by Will, and let others fall to his lawful Heirs as if he died intestate. The Question is, whether there be naturally Room for presuming that is the Reason why the Testator disposed only of Part of his Estate, or whether it was through mere Forgetfulness, that the Remainder was not mentioned. We can hardly form a Judgment of this but by Circumstances. However this may be, the Maxim of the Roman Law did not take Place, in Relation to Wills made by military Men. On which Occasion the learned Godefroy shews, that such Wills were excepted only in what concerned the Disposal of Goods acquired in the War, or on Account of the War, for thus, with great Appearance of Reason, he understands those Words, eundum in paganis, that is, bonis. There was also some Exception in Regard to the Estates of Persons who did not bear Arms. See the following Note of the Author.
[6. ]Nay, and often too in the Wills of those who are not military Men, where any Dispute arises about an inofficious Will, a Will which entirely leaves out, or very slightly provides for, those who ought chiefly to be considered, L. Mater. L. Nam etsi. L. circa. D. De inoff. Testament. As also L. cum duobus, C. de inoff. test. as before. Grotius.
[7. ]Dioclesian and Maximian, Cod. Lib. IV. Tit. XLIV. De rescindendâ Venditione, Leg. VIII.
[8. ]Festus;Haglers (Cociones) seem to be called so (à Cunctatione) from their Tediousness and Hagling, because they are a long Time bargaining before they come to a Conclusion in the Price; and therefore the first Syllable was formerly writ with the Letter V. Quintilian, Declam. pro Civibus; Diu cocionatus est, He was a great While haggling about it.Grotius.
[9. ]De Benefic. Lib. VI. Cap. XV.
[10. ]Paraphrasing on Ethic. Nicom. Lib. V. Cap. V.
[11. ]This is an Extract from the Bibliotheca of Photius, already quoted at the End of § 11. of this Chapter, and from the same Page 1044.
[12. ]So Andronicus Rhodius on Nicomach. V. Cap. V. in the End, Τούτων γὰρ ἄδειαν νόμος, For the Law has granted an Impunity in such Cases.Grotius.