The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• Acknowledgments
• Abbreviations
• General Note
• Advertisement By the Translator.
• Juventuti Academicae Salutem.
• To the Students In Universities.
• Philosophiae Moralis Institutio Compendiaria With a Short Introduction to Moral Philosophy
• Philosophiae Moralis Institutio Compendiaria
• Liber I: Ethices Elementa.
• Caput I: De Hominis Natura Ejusque Partibus.
• Caput II: De Summo Bono Et Virtute.
• Caput III: De Variis Virtutum Divisionibus.
• Caput IV: De Virtutibus Et Officiis Erga Deum.
• Caput V: De Officiis Erga Alios Homines Exercendis.
• Caput VI: De Officiis Cujusque Erga Se, Et De Animi Cultura.
• 1 {caput VII: De Virtutis Studio Excitando Et Retinendo.
• Liber II: Jurisprudentiae Naturalis Elementa.
• Caput I: De Lege Naturali.
• Caput II: De Juris Natura Et Divisionibus.
• Caput III: De Virtutum Et Vitiorum Gradibus, Inter Se Comparatis{; Iisque Quae Speciem Moralem Afficiunt}.
• Caput IV: De Jure Privato Naturali.
• Caput V: De Jure Adventitio Reali, Et Rerum Dominio.
• Caput VI: De Dominii Acquirendi Rationibus.
• Caput VII: De Jure Derivato, Ejusque Causis.
• Caput VIII: De Dominii Transferendi Rationibus, Per Contractus, Successiones, Aut Testamenta.
• Caput IX: De Contractibus.
• Caput X: De Sermocinantium Officiis.
• Caput XI: De Jurejurando Et Votis.
• Caput XII: De Rerum Pretio.
• Caput XIII: De Variis Contractuum Generibus Post Pretia Rerum Constituta.
• Caput XIV: De Obligationibus Quasi Ex Contractu Ortis.
• Caput XV: Jura Ex Damno Dato, Atque Ex Aliorum Injuriis Orta. Jura Belli.
• Caput XVI: De Jure Extraordinario Ex Necessitate, Omniumque Jure Communi.
• Caput XVII: De Juris Interitu. De Litibus In Libertate Dirimendis, Et Interpretatione.
• Liber III: Oeconomices Et Politices Elementa.
• Caput I: De Conjugio.
• Caput II: De Parentum Et Liberorum Officiis.
• Caput III: De Herorum Et Servorum Jure.
• Caput IV: De Civitatum Origine Et Causis.
• Caput V: De Interna Civitatum Structura, Et Summi Imperii Partibus.
• Caput VI: De Variis Rerumpublicarum Formis.
• Caput VII: De Summi Imperii Jure, Ejusque Acquirendi Rationibus.
• Caput VIII: De Legibus Condendis, Et De Jurisdictione.
• Caput IX: De Jure Belli.
• Caput X: De Foederibus, Legatis, Et Civitatum Interitu [deletione].
• A Short Introduction to Moral Philosophy.
• Book I: The Elements of Ethicks.
• Chapter I: Of Human Nature and Its Parts.
• Chapter II: Concerning the Supreme Good.
• Chapter III: Concerning the Chief Divisions of Virtue.
• Chapter IV: Our Duties Toward God.
• Chapter V: Our Duties Toward Mankind.
• Chapter VI: Concerning Our Duties Toward Ourselves, and the Improvement of the Mind.
• Chapter VII: Some Practical Considerations to Excite and Preserve the Study of Virtue.
• Book II: Elements of the Law of Nature.
• Chapter I: Of the Law of Nature.
• Chapter II: Of the Nature of Rights, and Their Several Divisions.
• Chapter III: Concerning the Various Degrees of Virtue and Vice, and the Circumstances On Which They Depend.
• Chapter IV: Concerning the Natural Rights of Individuals.
• Chapter V: Of Real Adventitious Rights and Property.
• Chapter VI: The Methods of Acquiring Property.
• Chapter VII: Of Derived Property.
• Chapter VIII: The Methods of Transferring Property, Contracts, Succession, Testaments.
• Chapter IX: Of Contracts In General.
• Chapter X: Our Obligations In Speech.
• Chapter XI: Of Oaths and Vows.
• Chapter XII: Concerning the Values Or Prices of Goods.
• Chapter XIII: Of the Several Sorts of Contracts.
• Chapter XIV: * Obligations Resembling Those From Contracts.
• Chapter XV: Of Rights Arising From Damage Done, and the Rights of War.
• Chapter XVI: Extraordinary Rights In Cases of Necessity, and the Common Rights of Mankind.
• Chapter XVII: How Rights and Obligations Cease: How Controversies Are to Be Decided In Natural Liberty: and the Rules of Interpretation.
• Book III: The Principles of Oeconomicks and Politicks.
• Chapter I: Concerning Marriage.
• Chapter II: The Duties of Parents and Children.
• Chapter III: The Rights of Masters and Servants.
• Chapter IV: The Original of Civil Government.
• Chapter V: The Internal Structure of States: and the Several Parts of Supreme Power.
• Chapter VI: Of the Various Plans of Government.
• Chapter VII: The Rights of the Supreme Power: and the Methods of Acquiring It.
• Chapter VIII: Of Civil Laws and Their Execution.
• Chapter IX: The Laws of War.
• Chapter X: Of Treaties and Ambassadors, and the Entire Dissolution of States.
• Bibliography of Modern Literature

CHAPTER XIV

*Obligations Resembling those from Contracts.

I. Beside these obligations and rights already mentioned, there are others which arise from some lawful action of the person bound: of such as arise from unlawful actions we treat in the next chapter. These rights arising from lawful actions, arise either from the nature [right] of property, or from some manifest interest of society, and common social laws. The obligations answering to them the civilians feigned to arise from contracts, that the forms of the actions might be the same. They are quite different from those of tacit conventions, as in tacit conventions we truly conclude consent from some action; but in those ’tis plainly feigned, {tho’ we know there was no consent,} as the matter itself is equitable.1 The obligation by a tacit convention is quite prevented by a previous contrary declaration of the party: but not so in these we now speak of; as they have another just foundation, independent of the consent of the person obliged.

Of these there are two classes, one arising from this, that a person intermeddles without any contract with the goods of others, or such upon which others have a just claim: the other, from a person’s taking to himself and holding some valuable advantage at the expence and loss of others, who consented not to sustain such loss gratuitously. In the former class is included the obligation of such as possess the goods they know belong to others, to restore the goods with their profits; as also his obligation† who without commission manages any business for an absent <and unaware> person, or for a minor [for someone who, wanting the fit reason and prudence, can not consent]. All these are bound to account, and to restore the goods with their increase and profits <and that is considered in actiones directae concerning the management of others’ business and of guardianship>.2

The like is the obligation of the heir or executor, toward the creditors or legatees of the deceased; and it arises from his entering heir{, or undertaking the execution of the will}. For ’tis plain, all the effects of the deceased are naturally chargeable with his debts, and with whatever others have a perfect claim to. He therefor who takes possession of the effects, the only fund whence these debts are to be paid, is bound to pay them, as far as the effects go, deducting for himself the necessary expences of management. The heirs or executors however may always claim the benefit of an inventary, that they may not be bound further than they find effects of the deceased. Nor need we feign {any contracts} to explain the just grounds of these obligations, {nor} that the heir {or executor} is the same person with the deceased.3

II. As to the second class; where a man is bound by deriving to himself some advantage at the expence of others, who did not consent that it should be gratuitous: under this is included the obligation of those on the other hand whose business was managed by others without commission, and that of minors [or that of those who, wanting the fit reason and prudence, were not able to consent] toward their guardians, to indemnify them, and compensate their labours in all useful services, and to ratify any contracts prudently made for their behoof; and refund any prudent expences in their education <and instruction. That is considered in actiones contrariae of managing other’s business and of guardianship>.4

What parents <who are not in straitened circumstances> expend in educating their own children, we conclude from the tender parental affection, that ’tis intended as a donation, when the parent has not declared the contrary. Nay parents are naturally bound to support and educate their children suitably to their condition, and to convey to them at death what remains of their goods. But if a parent is in great straits, or if any child has some other way obtained a plentiful fortune, a parent in these cases may justly charge a child with the whole expence of its support and education, and exact it for his own maintainance in old age, or to support his other children.

III. But if one maintains and educates the <poor> child of another; there’s no presumption here that it was done as a donation; ’tis more presumable that a debt is hereby constituted, to be discharged by the {goods or} future labours of this child, as far as the expence was truly made for the behoof of the child; but not what was intended for the splendor of his family who maintained it.5 Nay further, as generally all this expence upon an indigent orphan would be lost entirely if it died before it were capable of labour; the maintainer might perhaps, in the rigour of justice, be allowed to charge something more on account of this hazard; and by this allowance men will be more encouraged to such necessary care of indigent orphans. But then this hazard continually decreases as the child advances in years, and cannot increase considerably the charge, except for a few of the first years. An indigent orphan thus maintained is therefor in no worse case than that of any indigent person who without any fault of his is involved in a great debt, from whom the creditor may justly demand payment by his labours, while the debtor retains all the other natural rights of mankind, and whensoever either by his labours, (of which, he may justly choose to turn himself to such as may be most beneficial to him, and soonest discharge the debt), or by the liberality of any friend, he can discharge it, he can no longer be justly detained in service. Now were an account of all the necessary charge of maintainance, and of the value of labour, justly stated, it would appear, that such an orphan sound in body and mind could always fully discharge such debt by his labours before he were thirty years of age: and consequently that this can never be a foundation for perpetual hereditary slavery; even allowing an extraordinary interest were charged upon the expences because of the hazard, as is done upon contracts of bottomry in trade.6 And yet this charge must appear pretty inhuman upon persons in any grievous distress: nor can any distress be conceived greater than that of an indigent child destitute of all aid from its parents.<* >

Under this branch too is included the obligation of him who using the plea of necessity, (of which hereafter) has done damage to others; and of one who received what appeared due, but afterward ’tis found was not due; or what was paid upon a contract against which there lay a just exception making it void; or received any price, in consideration of something which is not paid or performed by him{: who are all obliged to indemnify and restore}.

When one partner in a company has preserved or improved at his own expence any of the common goods of the company; the obligation of the other partners toward him is of the later class; and his to them of the former.

The obligations contracted for us by others, if they are done by our commission, are manifest contracts; if not, they come under the case of business managed without commission already mentioned.7

[* ]Obligationes quasi ex contractu. [This chapter is entirely modeled on Carmichael’s Supplement IV on “quasi contracts.” See below the last note but one of this chapter.]

[1. ]See Carmichael, Notes on Puf. 11.2.2, p. 113.

[† ]Negotii utilis gestor.

[2. ]See Notes on Puf. 11.2.3–4, p. 114.

[3. ]Ibidem, 11.2.5.

[4. ]Ibidem, 11.2.6, pp. 114–15.

[5. ]Ibidem, 11.2.7, pp. 115–16.

[6. ]Ibidem, 16, p. 144. The parallel chapter in System (2.14, vol. II, pp. 77–86) is not very different from the present one. Hutcheson is only more detailed in arguments on the rights of orphans adopted and against slavery (pp. 80–85).

[* ]<See Carmichael’s Supplement IV ad Pufendorf’s De officio hominis et civis, p. 281 and his Annotations to the book II, chapter 4.> [Cf. Notes on Puf., pp. 112–17 and 138– 45 and the comments by the editors. It is rather surprising that here the Translator omits the note where Hutcheson clearly acknowledges his debt toward Carmichael, on the duties of children to their parents, of orphans to their adoptive parents, and on his polemic against slavery.]

[7. ]On these three last paragraphs see Notes on Puf., 11.2.8–10.