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Remarks on This Chapter - Johann Gottlieb Heineccius, A Methodical System of Universal Law: Or, the Laws of Nature and Nations 
A Methodical System of Universal Law: Or, the Laws of Nature and Nations, with Supplements and a Discourse by George Turnbull. Translated from the Latin by George Turnbull, edited with an Introduction by Thomas Albert and Peter Schröder (Indianapolis: Liberty Fund, 2008).
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Remarks on This Chapter
We have not had occasion for some time to add to our Author, or to make any remarks on his reasonings. And indeed the reason why I choose to translate this Author into our language, is because there is seldom any occasion to add to what he says, and almost never any ground of disputing against him, so orderly, clear, just and full, is his method of proceeding in this most useful of all sciences. But because usucapion and prescription are usually treated of at greater length by writers on the laws of nature and nations than our Author does; and because this is a proper occasion to explain a little upon the distinctions that are commonly made by moralists about the dictates of the law of nature and right reason, or conformity to them, let me subjoin the following observations.
1. First of all, it is proper to observe the difference which the Roman law makes between prescription in general, and that kind of it which they distinguished by the name of usucapio. By usucapio they meant the manner of acquiring the property of things by the effect of time. And prescription had also the same meaning; but it signified moreover the manner of acquiring and losing all sorts of rights and actions, by the same effect of the time regulated by law. See l. un. C. de usucap. transf. & Inst. de usucap. and Domat’s civil law, in their natural order, T. 1. p. 485. But writers on the law of nature have now very seldom occasion to make use of the word usucapio; that of prescription being now common by usage, both to the manner of acquiring the property of things, and to that of acquiring and losing all sorts of rights by the effect of time. 2. The chief reasons assigned by the Roman law for the first introducing of property by prescription, are, as Pufendorff of the law of nature and nations hath observed, book 4. cap. 12. §5. “That in order to the avoiding of confusion, and cutting off disputes and quarrels, it is of great consequence to the public welfare, that the proprieties of things should be fixed and certain amongst the subjects, which would be impossible, should perpetual indulgence be allowed to the negligence of former owners, and should the new possessors be left in continual fear of losing what they held. (Ne scilicet quarundam rerum diu & fere semper incerta dominia essent, l. 1. ff. de usurp. & usucap.) Again, trade and commerce could not otherwise subsist in the world. For who would ever contract with another? who would ever make a purchase, if he could never be secured in the quiet possession of any thing conveyed to him? Nor would it be a sufficient remedy in this case, that if the thing should be thus challenged by a third party, the person from whom we receive it should be obliged to make it good; for after so long a course of time, thousands of accidents might render him incapable of giving us this satisfaction. And what grievous commotions must shake the commonwealth, if at so vast a distance of years, so many contracts were to be disannulled, so many successions were to be declared void, and so many possessors to be ejected? It was therefore judged sufficient to allow such a time, as large as in reason could be desired, during which the lawful proprietors might recover their own. But if through sloth and neglect they suffered it to slip, the Praetor might fairly reject their too late importunity. And tho’ it might so happen, that now and then a particular person lost his advantage of recovering his goods, utterly against his will and without his fault, only because he was unable to find out the possessor, yet the damage and inconvenience arising from that general statute to some few private men, is compensated by the benefit it affords to the public.” It was a judicious reflexion of Aratus of Sicyon in Tully’s offices, l. 2. c. 23. “He did not think that possessions of fifty years should be disturbed, because in so long time many things in inheritances, purchases and portions, might be held without an injury to any.” 3. Now from the nature of property acquired by prescription, i.e. by the effect of time regulated by law, and the reasons upon which the utility, or rather necessity of it is founded, it is plain on the one hand, that whatever is not subject of commerce, cannot be the object of prescription, such as liberty; so prime, so essential a blessing; a blessing so much dearer than life, that none can ever be presumed so much as tacitely to have consented to be a slave! Liberty, a blessing, a right in the nature of things unalienable; or to renounce which is contrary to nature, and the will of the author of nature, who made all men free! Public places, goods belonging to the public, &c. So, on the other hand, whatever is the object of commerce may be the object of prescription, i.e. property in it may be acquired by the effect of time. As every man who is otherwise capable of acquiring dominion, is likewise capable of prescribing; so by this right of prescription we may acquire dominion over both sorts of things, moveable and immoveable, unless they are particularly excepted by the laws. But moveable things may pass into prescription sooner than immoveable, for this reason, that immoveables are judged a much greater loss than moveables; that they are not so frequently made the subject of commerce between man and man; that it is not so easy to acquire the possession of them, without knowing whether the party that conveys them be the true proprietor or the false; and consequently, that they are likely to occasion fewer controversies and suits. Plato’s rules for the prescription of moveables are these: “If a thing of this kind be used openly in the city, let it pass into prescription in one year; if in the country in five years: if it be used privately in the city, the prescription shall not be compleated in less than three years. If it be thus held with privacy in the country, the person that lost it shall have ten years allowed him to put in his claim, de leg. l. 12.”3 As for the prescription of immoveables, the constitution of Plato’s commonwealth was not acquainted with it. It is proper to observe here, that by the civil law prescription has not only respect to property; but it destroys other rights and actions when men are not careful to maintain them, and preserve the use of them during the time limited by the law. Thus a creditor loses his debt for having omitted to demand it within the time limited for prescription, and the debtor is discharged from it by the long silence of his creditor. Thus other rights are acquired by a long enjoyment, and are lost for want of exercising them. See Domat’s civil law, &c. T. 1. book. 3. t. 7. §4. 1. and the Roman laws there quoted. And all the long reasonings in Thomasius de perpetuitate debitorum pecuniariorum, and in Titius’s observations on Lauterbach, obs. 1033, and elsewhere, quoted by the very learned Barbeyrac on Pufendorff, of the law of nature and nations, book 4. cap. 12. 1.4 to shew how far prescription is of natural right, and what civil law adds to it, do not prove, that the law of nature does not permit, nay require, that a time should be limited, even for claiming rights, upon the elapsing of which, rights and actions, and what the lawyers call incorporeal things, are prescribed. No one ever pretended, that the law of nature fixed a time which gave a title by prescription with regard to things corporeal or incorporeal. But if security of property and commerce require, that such a time should be fixed, where there is property and commerce, then the law of nature or right reason requires that a time prescribing be fixed so far as security of property and commerce, and quiet possession by honest industry require it, whether with respect to corporeal or incorporeal things. Let me just add upon this head, that whereas it was said above, that things out of commerce cannot be prescribed, yet by the civil law one may acquire or lose by prescription, certain things which are not of commerce; but it is when they are connected with others, of which one may have the property. They are acquired by their connection with such other things. See Domat ibidem. Now, if here also it be said, that the law of nature knows no such distinction: the answer is, that the law of nature or right reason acknowledges every distinction which the public utility of a state requires, in order to prevent confusion and quarrels, and to render honest industry secure in the enjoyment of its just acquisitions. For, 4. whatever distinctions moral writers have made about belonging or being reducible into the law of nature, directly or indirectly, immediately, remotely, or abusively; this is plain, that in order to determine what the law of nature or right reason says about a case, the circumstances of the case must be put. For in the science of the law of nature, as well as other sciences, however general the rules or canons may be, yet in this sense they are particular, that they only extend to such or such cases, such or such circumstances. Now, if we apply this general position to the present question, it will appear that prescription is of the law of nature, in the same sense that testamentary succession, or succession to intestates is of the law of nature, viz. That right reason is able to determine with regard to prescription, in like manner as with regard to the others, some general rules which equity and public, common security require to be settled about them, where any number of men live in commerce, and property is established, that industry may have due liberty and security. Testamentary succession, and succession to intestates, as we have found them to be regulated by right reason, may be detrimental in some cases to the public, because in some cases, it may be more the interest of the public that any other should succeed to an estate than the heirs according to these general rules with regard to succession, by or without testament. But notwithstanding such detriment that may in some cases happen to the public, general rules about succession are necessary; and none are fitter to be such than those which most encourage in-dustry, by best securing the possessor in his right of disposing of his own, the great motive to industry; and those which determine succession in the way it is properest for the general good, that men’s affections should operate towards others. In like manner, whatever detriment may arise in certain cases from the general rule, that time should give a title by prescription; yet the general rule ought to obtain, because it is the best general rule that can be conceived, the least inconvenient, or rather the best for the security of commerce and property, being the best encouragement to honest industry, by giving the securest possession of its honest acquisitions. In fine, if we ask what the law of nature says about succession, or prescription, or any thing else, we must put a case or enumerate the circumstances; and therefore, we must either ask what it requires about them where men are in a state of nature, or where men are under civil government. If we confine the questions of the law of nature to the former case (tho’ there be distinctions to be made even in that case, as will appear afterwards) yet we limit the science too much, and render it almost useless: But if we extend it to what right reason requires under civil government, we must, in order to proceed distinctly, define the principal end of the civil constitution, and its nature, before we can answer the question; which will then be twofold. Either, 1. What that particular constitution requires, in consistency with its end and frame, with regard to prescription, for instance, or any other thing? Or, 2. Whether the end and frame of that constitution requiring such and such rules about prescription for instance, or succession, or any other thing, be a good end, and a good frame, i.e. whether all the parts of it, considered as making a particular constitution, do make one consonant to the great general end of all government, public happiness? Thus, if we attend to the necessity of thus stating the meaning of what is called determination by natural law, we will easily see that what is urged from the laws in the Jewish commonwealth against prescription, does not prove that right reason does not require that every state should make some regulation with regard to the effect of time, as to security in possession. For tho’ the divine law, which prohibited perpetual alienations for several reasons, abolished by that means prescription, yet the letter of this law being no longer in force, where alienations which transfer the property for ever are allowed, the use of prescription is wholly natural in such a state and condition, and so necessary, that without this remedy every purchaser and every possessor being liable to be troubled to all eternity, there would never be any perfect assurance of a sure and peaceable possession. And even those who should chance to have the oldest possession, would have most reason to be afraid, if together with their possession they had not preserved their titles. See Domat’s civil laws, &c. T. 1. p. 483. God, for reasons arising from the constitution of the Jewish republic, forbad the perpetual alienation of their immoveable estates (and not of their goods in general, as some objectors against prescription urge) but all their laws concerning usury, conveyances, and other things, were necessarily connected together, and with their Agrarian law, (as we shall see afterwards). And therefore there is nothing in the law of Moses that condemns prescription as an unjust establishment; and we can no more infer it from hence to be such (as Barbeyrac well observes, ibidem)5 than we may conclude that the perpetual alienation of lands is odious, and not conformable to natural right. But not to insist longer on this head, it is not only evident that the law of nature for the security of property and the encouragement of industry requires, that a time should be regulated for the effect of possession as to prescribing, in all states which admit of alienations and commerce; but that it requires that this time should be the most equal that can be fixed upon, all the circumstances of a particular state being considered, with regard to the non-disturbance of honest industry, i.e. the properest to prevent unjust dispossession on either side, i.e. either with respect to the first or the last possessor. And therefore, 5. There is no difficulty with regard to the following general maxims about it. 1. That prescription may affectually proceed, ’tis requisite that the party receiving the thing at the hands of a false proprietor, do obtain this possession by a just title; and consequently, that he act in this matter bona fide, with fair and honest intention. For this is necessary to just possession. “A man doth not become a just possessor of a thing barely by taking it to himself, but by holding it innocently.” Detaining is otherwise, as Tacitus expresses it, diutina licentia, a long continued injustice. Upon this head Pufendorff observes, that according to the civil law, ’tis enough if a man had this uprightness of intention at his first entring on the possession, though he happens afterwards to discover, that the person who conveyed it to him was not the just proprietor. But the canon law requires the same integrity throughout the whole term of years, on which the prescription is built. But Barbeyrac justly takes notice in his notes, “That the maxim in the civil law is better grounded than that of the canon law. And the artifice of the clergy consists not so much in this, that the determinations of the Popes require a perpetual good intention in him that prescribes, as in this, that they will have the goods of the church look’d upon as not capable of being alienated, either absolutely, or under such conditions as will make all prescriptions void.”6 2. Another necessary condition is, that it be founded on constant possession, such as hath not been interrupted, either naturally, as if the thing hath returned in the mean while to the former owner, or hath at any time lain abandoned or forsaken: or civilly, as if the owner had been actually engaged at law with the possessor for the recovery of what he lost; or at least by solemn protestations hath put in a salvo to his right. 3. That the space of time during which the prime possessor holds the thing, shall be reckoned to the benefit of him that succeeds in the possession, provided that both the former and the latter first entered upon it with honest minds, and upon a just title. For otherwise the prime possessor shall not be allowed to make over his time to the next holder, and consequently, if the former come to the possession by dishonest means, the time he passed in it shall not be computed towards the prescription of the latter, tho’ he, for his own part, obtained the possession fairly and justly. See Pufendorff, ibidem. 4. Prescription does not run against minors. And if one that is major happens to have a right undivided with a minor, the prescription which could not run against the minor, will have no effect against the major. And the same reason for which prescription does not run against minors, hinders it likewise from running against those whom a long absence disables from pursuing their rights; which is to be understood not only of absence on account of public business, but also of other absences occasioned by accidents, such as captivity. See Domat’s civil law, ibidem. And for the same reasons, it is highly agreeable to reason, that the time during which a country hath been the seat of war, shall not avail towards prescription. But with regard to minority, it is remarked by Pufendorff ibidem, that there may be a case in which the favour of possession shall overbalance the favour of majority. As for instance, suppose it should so happen, that when I want only a month or two of compleating my prescription, and it is morally certain that the ancient proprietor will not within that space give me any trouble about the title, and if he should then decease leaving an infant heir, it would be unreasonably hard, if after five and twenty years possession, I should be thrust out of my hold for want of those two months, especially if it be now impossible for me to recover damages of him from whom I received what is thus challenged, as I might have done, had the dispute happened before the goods devolved on the minor. See this subject more fully discussed than it can be done in a short note, by Pufendorff and Grotius. It is sufficient for our purpose to have taken notice of these few things relative to prescription; and to have observed once for all, that unless the determinations of the law of nature be confined to signify the determinations of right reason with regard to a state of nature, (a very limited sense of the law of nature, in which it is hardly ever taken by any writer) every decision of right reason concerning equity, justice, and necessity or conduciveness to the public good of society, or of men having property and carrying on commerce, is a decision of the law of nature. Whatever reason finds to be the best general rule in this case is a law of nature; and in this sense, prescription is of the law of nature, i.e. reason is able to settle several general rules about it in consequence of what commerce, the security of property, and the encouragement of industry make necessary. So that where reason is able to make any such decisions, it is an impropriety to say, that thing is not of the law of nature, because some forms and modes relative to it must be determined and settled by convention, or by civil constitution; as the parti-cular spaces of time, for instance, with regard to prescription of moveables and immoveables, &c. must be. For if right reason requires, that time should have a certain effect with regard to property, then is prescription of the law of nature, which by its definition is the acquisition or addition of a property, by means of long possession. But indeed we may safely say, that the law of nature is an absolute stranger to the debates among lawyers, whether prescription should be defined with Modestinus adjectio, or adeptio with Ulpianus; for all such disputes are mere verbal wranglings, grievossly cumbersome to right reason and true science.
Concerning things belonging to commerce.
How men began to want many things.After men had departed from the negative communion of things, and dominion was introduced, they began to appropriate useful things to themselves in such a manner, that they could not be forced to allow any one the use of them, but might set them aside wholly for themselves, and their own use (§236). But hence it followed of necessity, that all men had not the same stock, but that some abounded in things of one kind, which others wanted; and therefore one was obliged to supply what was wanting to himself either by the labour of another, or out of his provision. Yea, because every soil does not produce every thing,* necessity forced men to give to others a share of the things in which they abounded, and which they had procured by their own art and industry, and to acquire to themselves what they wanted in exchange; which when they began to do, they are said to have instituted commerce.
The necessity of commerce.Indeed if all men were virtuous, none would have reason to fear any want. For every one would then liberally give to those who wanted of what he had in abundance (§221). But since the love of mankind hath waxed cold, and we live in times when virtue is praised, and starves, there was a necessity of devising that kind of commerce, by which another might be obliged, not merely by humanity and beneficence, but by perfect obligation, to transfer to us the dominion of things necessary or useful to us, and to assist us by their work and labour.
That could not be done but by contracts.By commerce therefore we understand the exchange of useful things and labour, arising not from mere benevolence, but founded on perfect obligation. But since by commerce either work is performed, or dominion and possession is transferred, which obligation ought to be extorted from none without his knowledge, and against his will (§320); the consequence is, that commerce requires the consent of both parties. Now, that consent of two persons concerning the exchange of necessary work, or things which is not of mere humanity and beneficence, but of perfect obligation, is commonly called a contract; and therefore it is obvious, that commerce cannot be carried on without the intervention of contracts.*
Most of them suppose the price of labour and things fixed.From the nature of commerce, as it hath been defined (§327), it is evident, that it will rarely happen that one will communicate his goods or labour with another gratuitously; but every one will desire something to be returned to him, which he thinks equivalent to the goods or labour he communicates. Wherefore, those who would commute things or labour one with another, must compare things together; which comparison cannot otherwise be made, than by affixing a value to things, by means of which an equality can be obtained and preserved. But a quantity, moment, or value affixed to goods and labour, by means of which they may be compared, is called price. And therefore most contracts cannot take place without affixing or settling price.*
Price is either vulgar or eminent.This comparison is instituted either between goods and work by themselves, or a common measure is applied, by which all other things are valued. In the first case, vulgar or proper price takes place, or the value we put upon goods and labour compared amongst themselves. In the latter case, there is a common measure by which we estimate all things that enter into commerce, which is called eminent price;* such as is money amongst us. But in both cases equality is required.
How vulgar or proper price is fixed.That in the earlier times of the world men knew nothing but the proper price of things, is plain, because eminent price could not have been instituted without the consent of many; but every one imposed vulgar price upon his own work and goods at his pleasure. But since that is done with intention, and in order to purchase by them what one wants from another (§325); it is plain, that regard ought to be had in fixing the price of goods and labour to others from whom we want certain things; and therefore they ought to be estimated at such a rate, as it is probable others will be willing to purchase them.*
What circumstances ought to be attended to in fixing it.Now, since work or things ought to be valued at such a price as it is probable others from whom we want any thing will purchase them; it is obvious, that sometimes the necessity and indigence of others will raise the price of things;† and sometimes the scarcity of the thing will raise it; and that regard ought likewise to be had to workmanship, the intrinsic excellence of the thing, the labour and expence bestowed upon it, the danger undergone for it; and, in fine, to the paucity or multitude of those who want the goods or labour, and various other such circumstances.
What is called price of affection.It may be objected, that men are accustomed to put an immense value upon their own goods, a much greater certainly than any one will purchase them at, whether it be that the author renders them precious, or their rarity, or some remarkable event which they recal to our memory. But since we are now treating of the duties which ought to be observed in commerce, and that kind of price is not commonly considered in commerce, but on-ly in repairing damages (§212),* it is evident that this price does not destroy our rule.
Why eminent price was invented.But since commerce was instituted among men that one might supply his wants out of another’s stock or labour (§326), and price was devised for no other reason but that equality might be obtained in the exchange of goods or labour (§328); it could not but happen very often, that one might not have a very great abundance of what another might want, that one might despise what another would desire to exchange, and that the value of things which persons might desire to commute, might be so uncertain and variable, that some of the parties must run a risk of loss; and that the things to be exchanged might be of such a bulk, that they could not be commodiously transported to distant places, or could not be taken proper care of in the journey.—All which inconveniencies not being otherwise avoidable, necessity itself at last devised some eminent price that all would receive, and the proportion of which to goods could easily be determined.*
Its necessary qualities.The end of money, or eminent price, requires that the matter chosen for that purpose be neither too rare, nor too common, nor useless, and in itself of no price;† that it be easily divisible into small parts, and yet not too brittle; that it may be easily kept and laid up, and easily transported to any distance; because, if it was too scarce, there would not be a sufficient quantity of it to serve the uses of mankind; and if it was too common, it would be of no price or value, in which case, it would not be received by all; if it could not be easily divided into any portions, equality in commerce could not be obtained by it; and yet, if it was too brittle, it would easily wear out by use, and thus its possessors would be impoverished. In fine, if it could neither be conveniently kept, nor easily transported, the same inconvenience which rendered commerce difficult before the invention of it, would still remain (§333).
Why the nobler metals are used to this purpose.But because these properties belong to no other matter but the more precious kinds of metals, as gold, silver and brass; these metals are therefore applied to this use, and hence coined money of various weights and sizes hath seemed to most civilized nations the properest substance to answer the ends of commerce. If any people hath thought fit to give an eminent price to any other matter,* it hath been done out of necessity, and for want of money, and with this intention, that the scarcity or difficulty being over, every one might receive solid money for the symbolical; or such money hath only been used by a nation within itself, and was not proper for carrying on commerce with foreign nations.
What price is to be put on money.Tho’ it belong to the supreme power in a state to fix the value of money (as we shall shew afterwards in the proper place); yet, as with respect to vulgar or proper price, regard ought to be had to others from whom we would have any thing in exchange (§330); so it is evident, that a value ought to be put upon money, at which it is probable other nations, with whom we are in commerce, will not refuse it; and therefore the value of it ought to be regulated according to that proportion of one metal to another, which is approved by neighbouring civilized nations, unless we would fright other nations from having any commerce with us, or be ourselves considerable losers.*
The most antient of all contracts before the invention of money was bartering.That we may now come to the contracts, by means of which commerce is carried on (§327), it is obvious to every one, that one kind of contracts took place while the proper price of things only was known, and money or eminent price was not yet in use (§330), and that after money was invented another kind took place, and that some were known both after and before money was in use. Among those which took place before money was in use, the first and principal is bartering. For in the first ages of the world commerce was only carried on by exchanging or bartering commodities and labour; and therefore bartering is the most antient of contracts; and it continued still to be in use in many nations, after money was in use, as well as where no price was yet put upon gold, silver, and brass.*
How many sorts there are of it.Bartering is giving something of our own for something belonging to another; which, because it may be done two ways, i.e. either with, or without estimating and putting a certain price upon the things exchanged, it therefore follows, that when no estimation is made, it is called simple bartering; and when an estimation is made, and price fixed, it is called estimatory bartering. The former is somewhat like mutual donation, and the latter somewhat like buying and selling, l. 1. C. de permut. l. 1. §1. D. de contr. emt. For tho’ Pufendorff of the duties of a man and a citizen, 1. 15. 8. asserts that mutual donation is quite a different business from bartering, because it is not necessary that equality should be observed in it, yet there is no difference in this respect; for neither is equality observed in simple bartering.*
What is just with respect to simple barter.Because simple barter is somewhat like mutual donation, and it is not necessary that equality should be observed in it (§338), it is plain neither of the contracting parties can have any reason to complain of being wronged, unless the other use force or guile (§322. and 321.) nor is such a contract null on account of injury, except when he who exchanges a more precious thing for a thing of no value, has not the free disposal of his goods (§317); and more especially, if the thing thrown away in such a manner, be of such a kind that it cannot be alienated without doing something base, unless the accepter himself be perchance guilty of equal baseness.†
What is just with regard to estimatory permutation.In estimatory permutation or barter, since here a price is put upon the things to be exchanged, (§338), equality ought certainly to be observed, and neither ought to wrong the other; nor is the barter valid if either be circumvened, unless the injury be of so little moment that it be not worth minding.*
Of the contracts, I give that you may do: I do that you may give; I do that you may do.But men not only barter commodities, but likewise work for work, or work for other considerations; whence these contracts, I give that you may do; I do that you may give, and I do that you may do; which being of the same kind and nature with barter, or reducible to barter, simple or estimatory (§338), the same rules already laid down concerning them (§338) must, it is evident, be observed in those contracts. For either one’s work is estimated with respect to another’s work or goods, (which kind of negotiation is called, not unelegantly, by Ammian. Marcell. hist. 16. 10.1pactum reddendae vicissitudinis) or work for goods is done without any estimation.* And in the former case equality ought to be observed, and damage of any considerable moment ought to be repaired; but in the latter all complaints about wrong or hurt are to no purpose.
Contract of loan.There are other contracts by which commerce was carried on before the invention of money, viz. all gratuitous ones, by which, what before was only owing to one by imperfect right, or by mere love and benevolence, became due to him by perfect right, such as a contract of loan. For since we are obliged to what was called (§228) officiousness, we are likewise bound to accord to one who may want it, the use of any commodity belonging to us not consumable, with his obligation to restore it; i.e. to lend, or give in loan.† But the love of mankind becoming cold, it could hardly be hoped that one would do this service to another spontaneously (§326), and therefore necessity forced men to invent a kind of contract, by which men might be obliged by perfect right thus to grant the use one to another of their not consumable goods.
The duties of the borrower.Now, because the use of a thing is granted by loan, on condition of the borrower’s restoring it in species (§342),* the former is obliged not only not to apply the thing borrowed to other uses than those for which it was given, but likewise to apply it to these uses with the greatest care and concern; and therefore, when the use is over, or when the proprietor re-demands it, to restore it to him in species, and if it hath suffered any damage by his fault, to repair it; but he is not bound to make up fortuitous damages, unless he had voluntarily so charged himself (§106); nor can he demand for any expences he may have laid out upon it, unless they exceed the hire to be paid for the letting of such a thing.
The contract of deposite.Again, the love of humanity obliges every one to promote the good of others to the utmost of his power (§216); but since we have only an imperfect right to demand such good offices, it is often our interest to stipulate with others, in order to their being obliged by a perfect right to take the custody of our things deposited with them; and this is the intention of the contract of deposite or charge, by which we understand a perfect obligation upon another to keep gratis our things intrusted to his faith, and to restore them to us upon demand in species.*
The duties of the trustee.It is plain from the definition of a charge, (§344), that the trustee is obliged to the most watchful custody of his charge, not so much as to untie it, or take it out of its cover, much less apply it to his use, without the master’s consent; in which case, the contract becomes not a charge, but contract of loan or use. And that the trustee is obliged to restore the thing intrusted to his keeping to its owner whenever he calls for it, unless right reason dissuade from so doing (§323); and consequently he is not only bound to make satisfaction, but is likewise worthy of severe punishment, if knowingly and guilefully he refuses to restore it, more especially, if it was lodged in his trust in a case of distress.†
The contract of commission.Again, the love of humanity ought to excite every one to assist another as readily as himself (§216); but because one cannot be sure of that from another, there is need of a contract, by which we may oblige one to manage our business which we have committed to him diligently, without any reward.* Now this contract we call commission, as when one without his knowledge, undertakes another’s business, or orders and manages it for him voluntarily gratis, he is said negotia gerere, to take another’s business upon him of his own accord.
The duties of a proxy.Wherefore, since a proxy undertakes another’s business committed to his care (§346), but it depends upon the master’s pleasure what, and how far to commit; it is plain, that the person giving the commission, either gives him full power to do all as he shall judge proper, or circumscribes the person commissioned within certain limits; or at least, by way of counsel, suggests to him what he would have him do. In the second case therefore, the proxy cannot exceed the bounds of his commission. In the first, he is only obliged to answer for knavery. In the third, that he may expede his commission by doing something equivalent. But, in all these cases, the procurator or proxy is obliged to render account of his management, in consequence of the very nature of a commission.*
As likewise of him who takes another’s business upon him uncalled.He also who takes another’s business upon him without commission, without being called to do it, of his own accord, and gratis (§346), by so doing binds himself to manage it to the best advantage, and to bestow all possible care about it, and therefore to render account, and to stand to all the losses that may happen by his fault.†
The duties of a lender, a deponent, a person giving a proxy, and of one whose business is managed by another without commission.These then are the contracts which took place, money or eminent price not being yet found out: and with regard to them all, we have one thing yet to observe, which is, that because in the three last, one obliges himself to give and do something gratuitously, but not to suffer any hurt on another’s account, in them therefore no one ought to suffer by his good offices, and consequently he who lends is obliged to restore to the borrower expences that are not immoderate (§343), and the deponent is obliged to restore to the trustee all necessary charges; and the person giving a commission, or the person whose affair is undertaken and managed without his commission, is obliged to restore necessary or useful charges; and they are all of them bound to repair all the damages that may have been incurred for their sake, or on account of managing their af-fairs by the borrower, the trustee, the proxy, or the voluntary undertaker, without their fault.*
The contracts which took place after the invention of money, buying, selling, renting, hiring.We now go on to another kind of contracts which began to take place when money was invented, the chief of which are buying and selling, renting and hiring. The first is a contract for delivering a certain thing for a certain price. The second is a contract for granting the use of a certain thing or labour at a certain rate or hire. But as the price in buying is the value of the thing itself in money, so hire is the value of the use of a thing, or of labour in money; and therefore, from the very definitions, it is plain that buying and selling, renting and hiring, now-a-days, require payment in money, and in that are different from bartering, and the other contracts defined above; “I give that you may give; I give that you may do; I do that you may give, and I do that you may do.”* Yet they all agree in the chief points, and have almost all the same common properties or effects.
The seller is obliged to tell the qualities, of the thing he sells to the buyer.Since therefore this is the nature of the contract buying and selling (§351), that a thing is delivered at a certain price; the consequence is, that the buyer and seller ought equally to know the thing; and therefore the seller ought not only to point out to the buyer all its qualities, all its imperfections, faults or incumbrances, which do not strike the eyes and other senses;† but he is likewise bound to suffer him to examine it with his eyes, and by all other means; so that of things belonging to the taste, the sale is not perfect till they are tasted; and of others which stand in need of other trials, the sale is not perfect till the trial hath been made: And therefore, if what Euripides says be true with respect to any contract, it certainly holds with regard to this chargeable one, “Light is necessary to contractors.” Cyclop. v. 137.2
Neither of the parties ought to be wronged.Hence it is also plain, that equality between the thing sold and the price paid, ought to be observed (§329); and therefore every injury ought to be repaired, whether it be done by guile or force, or be occasioned by a justifiable mistake.* Yet here we ought to call to mind what was before observed, that the wrong ought to be of some considerable moment, because here price does not consist as it were in a point, but admits of some latitude, and it would justly be reckoned being too sharp, and opening a door to endless suits and contentions, to rescind a contract for every small loss (§340).
To whom the loss and gain belong before delivery.It is disputed to whom the loss and gain belongs while the thing sold is not delivered; whether it immediately passes to the buyer so soon as the price is agreed upon, or whether it still belongs to the seller while the thing is undelivered? What the Roman law has determined in this case is well known; nor will any one expect that we should insist long upon the reasons of that decision. To us, who are now only enquiring into the determination of the law of nature, it seems incontrovertible, that the owner or master is to stand all chances (§211); nor does it appear less certain to us, that what proceeds from delay or fault, is not mere chance; and therefore he, who by any deed damages another, is obliged to repair that damage (§211). Whence it follows, that because the buyer may, by the law of nature, be master of the thing bought without delivery (§275), the risk, after the sale is compleated, immediately falls upon the buyer, unless the seller be guilty of any delay in delivering it, or some other fault.*
Whether the decision of the Roman law is agreeable to the law of nature?Now, because the buyer immediately becomes master or proprietor even before delivery, and therefore ought to stand to all chances (§353); the consequence is, that the doctrine of the Roman lawyers concerning the risk of a thing sold is true, but is not so consistent with their own principle, which denies that the dominion passes to the buyer without delivery; that since the proprietor hath the right of all the fruits, accessions, and other advantages of what is his own (§307), he hath also a right to all the gains of a thing sold to him; but so, that this rule shall then only take place, if the buyer hath any way satisfied the seller for the price;* because otherwise he would, at the same time, have the thing and the price, and thus he would be made richer at another’s detriment (§257).
When the risk belongs to the seller.But since a thing justly perishes to the loss of the seller when he is guilty of delay in delivery, or of any other fault (353), it is manifest that the buyer is exempt from all risk, if the seller, when he offers him the price, refuses to give him full possession of the thing sold, or cannot do it; and likewise, if it can be proved to have been owing to the seller’s fault or negligence, that the thing sold perished either in whole or in part.
The seller owes warranty to the buyer.Buying and selling is done on purpose that a thing may be delivered for a certain price (§278). But since he who transfers dominion to another for an onerous cause, as, for a certain price, is obliged to warranty (§274), the seller must be obliged to warrant the buyer, if the thing be evicted from him upon account of any cause antecedent to the contract; but not, if, after the sale, something shall then happen, on account of which one is deprived of his property, or if it be taken from him by accident, or by superior force.†
Other pacts may be added to this contract.Moreover, because buying and selling is a contract, (§350); but a contract requires the consent of both parties (§327), it is manifest, that in buying and selling all turns upon agreement; and therefore any other pacts may be added to it by consent, provided they be not absurd, unjust, or fraudulent; as for instance, addictio in diem, —lex commissoria, —pactum de retrovendendo, —pactum protomiseos, —pactum de evictione non praestanda,—pactumde poena in casum poenitentiae praestanda, and such others.*
As likewise exceptions and conditions.From the same principle we infer that a seller may except something for himself in the sale, and that either party may add to the bargain any condition not repugnant to honesty and good manners, as likewise appoint a day, before which the thing is to be delivered, and the price paid.* Nay, that they may also agree, that the price not being paid, the property shall remain for some time with the seller, or that the buyer, retaining some part of the price in his hands, for which he is to pay interest, may be thus secured against eviction; that accessions shall go with the principal, that some fixed things may be carried off, that the thing sold shall be let at a certain rate to the seller, &c.
Buying by cant or auction.Besides, we conclude from the same principle, that tho’ buying and selling requires equality, (§352); yet, by the consent of both parties, a sale may be agreed upon which shall not be null on the account of any inequality whatsoever. Such are auction, when the price is not fixed by the seller, but by the highest of contending bidders: emptio sub hasta, which is nothing else but a more solemn auction, instituted by public authority: emptio per aversionem, when things of different value are not rated separately, but sold together: and emptio spei, when the purchase is no certain thing, but hope and expectation only, on which, by agreement of the parties, a price is laid. In all which contracts, since equality is not required, by consequence neither of the parties can complain of injury in these cases, unless there be some knavery on either side, or the thing produced by the event was not thought of by the contracters.*
Of letting and hiring.The other contract which took place after the invention of money, is letting and hiring (§350): For tho’, according to the Roman law, in letting farms a part of the fruits was paid for the rent, which was called quanta,† 1. 21. 6. loc. conduct. and thus this contract could take place before money was in use; yet there is no reason why it may not be referred to the contract, “I give that you may give ”; because in this case the use of the thing is not compared with money or eminent price, but with the proper or vulgar price of the fruits; and therefore the value of fruits not being always the same, but higher or lower according to the plenty or scarcity of the season, one year the proprietor might be a loser, and another year the tenant.
The duties of the landlord.Because renting and hiring is a contract for the use of a thing, or labour at a certain rate or hire; the consequence is, that he who lets ought to grant the use of a thing, or the labour contracted for, to the person who hires it; and therefore, if, by his fault, or by accident, it happens that he who hires cannot have the use of the thing hired, or cannot perform the labour promised, the stipulated hire justly diminishes in proportion.* Yea, sometimes the lessor may be sued to the value; and the same holds, if the landlord should expel, without a just cause, the tenant before his lease is out.
And of the tenant.In like manner it is the tenant’s duty to pay in due time the stipulated rent, to use what he hath the use of as another’s, to be returned in specie, like an honest man, to make up damages owing to his fault; and not to desert the farm while his lease is yet unexpired, unless he be forced to it by just causes, as the incursion of an enemy, the fear of a plague, and other such dangers. For since the landlord is obliged to deliver him the thing safe and sound, to indemnify him, and not to turn him out before his time is expired (§361); it is most equal, that what he would not have another do to him, he should not do to another; and, vice versa, what he would have another do to him, that he should do to another (§88); especially since in this chargeable contract equality ought in justice to be observed (§329).
Of pacts which may be added to this contract.But this contract also depends wholly upon consent (§327); and therefore it is plain that several pacts may be annexed to it, provided they be consistent with good morals;* and therefore that it may be with, or without conditions, and for a certain time. And since tacite consent is held for real consent; hence we may infer, that tacite re-hiring is valid, if the first lease being elapsed, neither party renounces the contract; and that in this case it is just that the same terms should take place as in the former engagement.
Of the loan of consumable commodities.Now those are the contracts which began to take place after money was in use; we are therefore, in the next place, to consider those contracts which could have place either before or after money was found out. The chief of which is the contract of loan, mutuum; by which we understand granting the use of consumable things, on condition that as much shall be restored in kind.* For since not only money, but every consumable commodity may be credited in this manner, it is plain that this contract had place before men had acknowledged money for a common measure of things, and it is now most frequent.
The dominion of the thing credited is transferred to the debtor.It is plain, from the definition of this contract, (§364), that the debitor has the power of abusing the thing credited to him; and therefore the credi-tor has abdicated his right of excluding the debtor from the use of it; and thus he hath, only upon condition of receiving as much from the debtor, transferred to him all his right; but to transfer the right of excluding others from the use of a thing, is to transfer dominion (§231); wherefore this contract is an alienation, by which the dominion of the things credited passes intirely to the debtor.†
The debtor’s obligation.From the same definition we infer, that the debtor is obliged to return as much, not only in quantity, but in quality; and therefore, if it be money that is lent to him, and its intrinsic value should afterwards be augmented or diminished, regard is to be had to the time when the contract was made; and accordingly so much ought to be diminished as the money has rose, or so much ought to be added as the money has fallen. Moreover, the debtor ought not to delay paying; nor is he delivered from his obligation by the perishing of the consumeable commodity he received from his creditor, nor by any accidental event.*
Whether usury be allowable by the law of nature?But tho’ this contract be in its nature gratuitous, (as well as commodatum, of which above, i.e. loan of not consumeable things); yet the love of mankind waxing cold, it hath become customary for creditors to stipulate a reward to themselves for what they lend to their debtors; which, if it consist in paying monthly or yearly a certain proportion of the sum lent, as 3, 4, or 5 per cent. it is called interest or usury, tho’ that last term is often taken in a bad sense for exorbitant interest, by which creditors reduce their debtors to the last dregs. Concerning usury, it is a celebrated question, that has been severely agitated by learned men, whether it be agreeable to the law of nature for creditors to stipulate with debtors for it.*
What is to be affirmed here.But since, 1. It is not unjust to communicate our goods with others, not gratuitously, but for a hire (§328). 2. Since one often makes great gain by the use of another’s goods, while, in the mean time, the creditor suffers loss or inconvenience by the want of them; but none ought to inrich himself at the detriment of another (§257). 3. Besides, since he runs a great risk who lends his goods to another on these terms, that he may consume or abuse them, it is not unreasonable that the creditor should exact a hire from the debtor in proportion to the risk (§331).—From all these considerations, we think it may be justly concluded, that a pact about interest with one who may make gain of our money, is not contrary to the law of nature.† And tho’ interest ought to be proportioned to the gain which the debtor may, in all probability, make of the sum; yet it is not iniquous that it should be augmented in proportion to the risk, the scarcity of money, and other circumstances (§331), as the custom of bottomry shews us, dig. 1. 22. tit. 2. de nautico foenore.
What is meant by pledge, mortgage, and antichretic pact.Another contract of this kind is pawn or pledge, by which we understand an obligation to deliver something to a creditor for the security of what he lends or credits. For if a thing, especially if it be in its nature immoveable, be not delivered, but yet the creditor hath a right constituted to him in it, of taking possession of it, in case the debt be not cancelled, that transaction between the creditor and debtor is called hypotheca, mortgage. Again, if it be agreed that a creditor should receive the fruits of a thing delivered to him for the security of what he hath credited, in lieu of interest, this invention is termed pactum antichreticum (§283).
What is just about a pawn.From the definition of a pawn, it is plain that it ought to be the debtor’s own; and therefore he deserves punishment who pawns any thing belonging to another, whether lent to him, deposited with him, or hired by him. That the creditor ought not to use a pawn, if it may be rendered worse by use, but to preserve it with as much care as his own goods, and to return it to the debtor, when the debt is cleared. Finally, since the owner regularly runs risks (§211),* the consequence is, that the risk of the pawn belongs to the debtor, and that perishing by accident, he is notwithstanding obliged to pay his debt.
What is just about mortgage.From the definition of mortgage (§369), we infer, that it can scarcely consist in moveables, which a debtor may easily alienate and transfer to a stranger without his creditor’s knowledge; but it consists chiefly in immoveables, as houses, lands, cities and territories;* and likewise in larger stocks of moveable things, which are not easily transported from place to place, as large libraries; yea, in rights and actions likewise, if great advantage accrue from them to the possessor. But whatever is thus pledged to a creditor, his right in it continues, to whomever it may be transferred; for otherwise his hypotheca would be without effect.
What is just about the pactum antichreticum.From the definition of the pactum antichreticum, (§369), it is obvious that it can only take place in pawning things which yield increase; and since the fruits are in lieu of interest, they ought not greatly to exceed that measure of interest which we have found to be most agreeable to equity. The creditor, in this case, is not liable to accidents, unless it be so agreed; and therefore if the creditor, on account of barrenness, or any public calamity, does not receive the value of the interest due to him, the debtor is obliged to make it up.
What is common to all these conventions.This is in common to all these contracts, that being designed for the security of the creditor, (§369), the creditor, if the debtor be tardy in his payment, has a right to alienate the pawn or mortgage, and deducting his principal and interests, is obliged only to refund the overplus to the debtor, unless there be an accessory pact, lex commissoria; by which it is stipulated, that the pawn, if not relieved within a certain time, shall be left to the creditor for his principal and interests. For tho’ the more recent Roman laws did not allow of such a pact,* l. un. C. Theodos. de commissor. rescind. l. ult. C. de pact. pign. and that might have been justly done on account of the exorbitant avarice of creditors; yet it does not follow from hence, that the law of nature, which permits every owner to alienate his own on whatsoever conditions, does not allow of such a pact (§309), which Hertius hath shewn, by many examples, to have been in use amongst princes and independent nations, in his notes upon Pufendorff, 5. 10. 14. p. 737.
Of suretyship.The third contract which may take place before and after money is invented, is suretyship; i.e. an obligation a person comes under to pay another’s debt, if he does not. For if one binds himself not merely to pay, the other failing, but conjointly with him in solidum for the whole debt, he is debtor, and the obligation of both is equal. Again, he who, with the consent of the creditor, delivers a debtor from his obligation, and takes it upon himself, is called expromissor, Bail. All these contracts, as well as that of pawn or mortgage, are contrived for the security of creditors, and afford an ample proof of the decay of benevolence among mankind.*
For what things it is lawful to be surety.Moreover, from the definition of suretiship, (§374), it is plain that there is no place for suretiship, which is a subsidiary security, unless the debt be such that it may be as conveniently paid by another as by the principal debtor; and therefore suretiship for condemned persons, tho’ some ancient nations admitted it, is contrary to right reason.† But yet there is no reason, when the crime may be expiated by a mulct, why another person may not interpose in behalf of the criminal, and oblige himself to pay the mulct, if the criminal fail.
The obligation of sureties.As to the obligation of sureties, it is plain, from the definition (§374), that they oblige themselves to the same which the creditor has a right to exact from his debtor, and therefore it is unjust for a creditor to stipulate more to himself from a surety than from the debtor; that the obligation of a surety is subsidiary, and therefore that by the law of nature a surety does not stand in need of the singulari beneficio ordinis vel excussionis,3 as it is called in the civil law; but may then be sued, when it clearly appears that the principal debtor has not wherewith to pay.* Many sureties engaged for the same persons and debts, are only bound proportionably, unless they have voluntarily and expresly bound themselves for the whole; and therefore the benefit of division is due to them by the law of nature, as being proportionably bound, unless one’s fellow sureties be insolvent, and one could not but know they were so.
Of the solidity among two or more debtors.When two or more become debtors of one and the same thing (§374), it is evident, that every one of them being obliged to the creditor for the whole debt, the creditor may exact the whole debt from either of the two he pleases;* and when any one of them pays the debt, the other is discharged from his obligation to the creditor, but not with respect to his fellow-surety; for he who paid for him (§346) did his business, and therefore ought to be indemnified by him (§349).
As to an expromissor or bail.Again, from the definition of an expromissor or bail (374), we infer, that his obligation is the same with that of the principal debtor, insomuch that the latter, bail being accepted by the creditor, is free; and therefore neither can this kind of surety plead the discussion of the principal debtor before him; nor can the creditor, if he cannot recover his debt from this surety, any more have recourse to the principal debtor whom he hath once freed, but he must depend upon this surety alone for it, upon whose faith he had relieved his debtor.
The contract of partnership.The next contract which may take place either where money is, or is not in use, is partnership, as it may plainly do, since it is nothing else but sharing among many the profit or loss that may arise from joint stock or labour:* for commodities and labour may be communicated either before or after money is in use.
What is just with respect to partnership.Because in universal partnership all things, in general partnership some things only are common; so that these contracts somewhat depend upon chance (§379); the consequence is, that amongst such partners the loss and gain must be common, but the contribution may be very unequal; and therefore such a partner hath no reason to complain if his fellow-partner expends more than him, when his necessities require it; yea, a partner is obliged to pay his proportion of debt contracted by his fellow-partner; for which reason, it cannot be doubted that it is highly reasonable that every one of such partners should share of the gain made by any one of them; and that he who has a right to the gains, ought to bear his share of the loss, damages, or inconveniencies.
What in singular partnership.But since in singular or particular partnership equality ought to be observed (§380), which however is not always observed in the contribution; it follows, that the equality in dividing loss and profit cannot be arithmetical, but must be geometrical.† And therefore he who hath contributed more stock or labour, ought to have a proportionably greater share of profit and loss than he who contributes less. But seeing any one can grant to any other whatever advantages he pleases with regard to his own goods (§309), it is undeniable that partners may agree one with another in any manner; and may observe, in dividing loss and gain, either arithmetical equality, or any inequality, unless, by the knavery of one or other of them, the division degenerates into that of the lion in the fable, Phaed. Fab. 1. 6.
Whether one partner may quit the partnership against the other’s will?In fine, since partnership is formed by consent, and by way of convention (§379), this rule of the Roman law can hardly be deduced from the principles of the law of nature, viz. “That any one may quit partnership, provided he do it not fraudulently, nor at an improper time.”* The whole matter rather turns upon the conditions of the agreement; and therefore, if the partnership was contracted for perpetuity, it ought to be perpetual; if for a time only, it is but for the time fixed; unless one of the partners be injurious to the others, and do not fulfil the articles of agreement; in which case, it is most just that the others should have the right of renouncing the partnership even before the time agreed upon in the contract.
Of donation.Let us add donation, by which we understand a promise to transfer something of ours to another gratuitously. From which definition, it is plain that it may be made with or without conditions; and therefore in view of death. So that donations are justly divided into donations among the living, and donations in prospect of death. And a donation among the living obliges to deliver the thing promised, and leaves no room to the donor to revoke his promise. But from what was said above, it is evident, that he who receives the donation cannot demand warranty from the donor, if the thing be evicted (§274), and that he is obliged to shew gratitude to his benefactor by words and deeds on all occasions (§222).
Some corolaries about contracts in general.To conclude; with regard to all contracts in general, it is to be observed, that because they consist in consent (§327), they can only be formed by those who are not incapable, by nature of by law, of consenting. Again, because they were devised for the sake of commerce (§327), they must be about things which may be in commerce honestly, and with the permission of the laws; and therefore contracts about impossible or base things, or things exeemed by the laws from commerce, are null: but as many things are exeemed by positive laws from commerce, which naturally are subjects of it, so positive laws may likewise permit contracts about several things which are not subjects of commerce, according to the laws and manners of other nations.*
[3 ] Plato, The Laws 954d.
 Thomasius (praeses) and Hofmann (respondens), Dissertatio juridica de perpetuitate. For Titius’s observations, see Schütz and Lanterbach, Thesaurus juris civilis.
[5 ] See note 1 by Jean Barbeyrac in bk. 1, xii.7, of Pufendorf’s Law of Nature and Nations.
[6 ] See note 5 by Jean Barbeyrac in bk. 4, xii. 3 of Pufendorf’s Of the Law of Nature and Nations.
[* ] To this purpose belongs that elegant observation in Virgil, georg. 1. v. 54.This ground with Bacchus, that with Ceres suits,That other loads the trees with happy fruits.A fourth with grass, unbidden decks the ground,Thus Tmolus is with yellow saffron crown’d.India black ebon and white ivory bears,And soft Iduma weeps her od’rous tears.Thus Pontus sends her beaver stores from far,And naked Spaniards temper steel for war.Epirus for the Elian chariot breeds,(In hopes of palms) a race of running steeds.Thus is th’ original contract; these the lawsImpos’d by nature, and by nature’s cause.
To the same effect does this poet sing at greater length, georg. 2. v. 199. & seq. Compare with these passages, Varro de re rustica, 1. 23. Ovid. de arte amandi, 4. v. 578. and above all, Seneca, ep. 87. who having quoted the passage of Virgil above cited, adds, “These things are thus separated into different provinces, that commerce amongst men might be necessary, and every one might want and seek from another.” [[Ovid, Amores; Seneca, Ad Lucilium epistulae morales, vol. 2, letter 87, p. 335. Aristotle urges the same origine and necessity of commerce, Nicomach. 5. 8. Polit. 1. 6.]]
[* ] This is observed by Isocrates, except. adv. Callimach. p. 742. “There is such a force in pacts, that many affairs among the Barbarians, as well as Greeks, are transacted by them. Upon the faith of them we bargain, and carry on commerce. By them we make contracts with one another; by them we put an end to private feuds or public war. This one thing all men continue to use as a common good.” [[Isocrates, Isocrates, vol. 3, “Against Callimachus,’’ secs. 27–28, p. 271.]]
[* ] Hence by the Greeks not only pacts and contracts, but all kinds of commerce are called συμβολάς, σὐμβολα, συμβὸλαια, συμβὸλαια, κοινωνικά, from the verb συμβάλλειν, which signifies to bring together and compare. For those who are to interchange goods or labour, compare them together, every one assigns a certain value to his goods or work, and so demands a proportional return. Thus, e.g. if we fix the proportion of gold to silver to be as eleven to one, we affix to each metal a moral quantity or price; which being done, nothing is more easy than to exchange these metals, and keep equality. But we say most contracts suppose the price of things determined, not all. For some are gratuitous, and therefore contracts are rightly divided into onerous, when the burden on both sides is equal; beneficent, when one obliges himself to do any thing to another gratuitously; and contracts of chance, in which fortune so reigns, that one may receive what is done by another sometimes with, and sometimes without any onerous title.
[* ] Hence Aristotle justly defines money; “A common measure to which all things are referred, and by which all things are estimated,” Nicomach. 9. 1. And hence all things which enter into commerce are said to be purchasable by money. This alone is reprehensible, that men should estimate things by money, which do not enter into commerce; such as, justice, chastity, and conscience itself. And against this venality the antient poets have severely inveighed. Horat. serm. 2. 3. v. 94.Omnis enim res,Virtus, fama, decus, divina humanaque, pulchrisDivitiis parent: quas qui construxerit, illeClarus erit, fortis, justus, sapiensne etiam, & rex,Et quidquid volet.
[[Horace, Satires II, 3.94: “For everything, virtue, reputation, glory, the human and divine, obeys beautiful riches: as for the man who piles them up, he will be famous, brave, just, even wise, and a king, and whatever he may want.”
So Propertius, 3. 10.Aurea nunc vere sunt saecula, plurimus auroVenit honos, auro conciliatur amor.Auro pulsa fides, auro venalia jura,Aurum lex sequitur, mox sine lege pudor.
This passage is not from Propertius, Elegies 3.10, but from Ovid, Ars amatoria 2.277: “These truly are the golden ages, the highest honour comes to gold, love is won by gold, faith is broken by gold, oaths are on sale for gold, the law follows gold, soon shame without a law.”
Many such like passages are to be found among the antients, as in Petronius’s satyricon, c. 137. and in Menander, of whom we have this elegant saying concerning a rich man preserved;Opta modo, quidquid volueris: omnia evenient:Ager, domus, medici, supellex argentea,Amici, judices, testes: dederis mado.Quin & deos ipsos ministros facile habebis.
“Only choose whatever you want: everything will turn out: land, houses, doctors, silver supplicating, friends, judges, witnesses: now you will have given them. In fact you will easily have the gods themselves too as your servants” (translation by the editors). Menander (342–292 bc), Athenian author of comedies, the greatest part of which have only survived in fragmentary form. It is not evident from which play this particular quotation has been translated.
[* ] For if we suppose the Arabians to estimate their incense and spiceries at such a price, that they would not give above one dram of them for six hundred bushels of corn, they would never get corn at that price, because none would exchange it upon so unequal terms, nor would others get their spices; and thus there would be a stop to commerce, for the sake of which price is devised. Since therefore the means ought to be as the end, the consequence is, that price ought to be fixed so that commerce can be carried on; and for this reason, in settling it regard ought to be had to others from whom we would purchase any thing.
[† ] It is true indeed, that the most necessary things have not always the highest price, kind providence having so ordered it, that the things which we can least dispense with the want of are abundant every where; and those things only are rare and difficult to be found, which are not necessary, and which nature itself does not crave, as Vitruvius justly philosophizes, Architect. 8. praef. [[Vitruvius, Ten Books on Architecture. But if necessity be joined with scarcity, e.g. if there is every where a dearth of corn, the price of it rises very high, as experience tells us. And then happens, as Quintilian says, declam. 12. “In magna inopia, quidquid emi potest, vile est.” “In great scarcity, what can be bought is cheap.” Quintilian, The Major Declamations Ascribed to Quintilian, “XII: The Case of the People Who Ate Corpses,” 159. The seven years famine in Egypt was an instance of this, Gen. xlvii. 14. & seq.]]
[* ] Fancy or affection is of such a nature, that it cannot pass from one to another; and therefore it will be no motive to one to purchase a thing from me at a greater price, because it is agreeable to me on account of its serving to recal something to my memory that gives me pleasure. But this however is but generally true: for sometimes in commerce even this price is considered; as when, 1. The affection to a thing is common on account of the author or artist, or of its singular beauty and rarity. Hence the statues of Phidias, and the more finished pictures of Apelles or Parrhasius, sold at a higher than the vulgar or proper price, because they deserved the common esteem of all mankind. 2. If the purchaser has a greater affection to a thing than the possessor; e.g. if my possession would greatly better another’s, and he therefore desire, like him in Horace, who thus speaks, serm. 2. 6.O si angulus illeProximus accedat, qui nunc denormat agellunt!
[[Horace, Satires II, 6.8–9: “Oh, if that nearest little corner could be added, which now disfigures the shape of my little farm!”
[* ] This is observed by Paullus JC. l. 1. D. de contra empt. who describes the origine of buying and selling as above. Aristotle likewise gives much the same account of the matter, ad Nicomach. §8. and Polybius 1. 6. upon which passages Perizonius hath commented with much erudition, de aere gravi §2. p. 6. & seq. [[Perizonius, Dissertatio de aere gravi as has Duaren. upon that of Paullus animad. 1. 6. Franciscus Duarenus (François Douaren) (1509–59), French humanist jurist.]]
[† ] Wherefore Aristotle justly calls Money, Nicomach. 5. 8. “a surety, which if one carries along with him he may purchase any thing.” Whence Pufendorff of the law of nature and nations, v. 1. 13. justly reasons thus: “As we accept a man of known credit and value, and not every common fellow for a surety, so no man would part with his goods, which perhaps he had acquired with great labour and industry, for what he might meet with any where, as a handful of dust and sand; it was necessary therefore, that money should consist of such a matter, as might be convenient for keeping, and by reason of its scarcity, should have the value of many things crowded and united with it.”
[* ] Thus the Carthaginians used instead of money something I know not what, fastened to a bit of skin, and marked with some public stamp, Aeschin. dialog. de divit. c. 24. p. 78. edit. Petri Horrei. [[Aischines, Aeschinis Socratici dialogi III. The Lacedemonians an useless lump of iron, idem ibid. p. 80. Plutarch. Lycurg. p. 51. Plutarch, “Lycurgus,” in Plutarch’s Lives, vol. 1 other nations used shells, Leo Afr. l. 7. Leo Africanus, Africae descriptio IX libris absoluta others grains of corn, kernels of fruit, berries, lumps of salt, Pufendorff. §1. 13. Pufendorf, Law of Nature, bk. 5, chap. 1. Examples of paper, leather, lead, and other things made use of for money in besieged towns, are to be found (not to mention instances from more modern history) in Polyaenus Strategem. 3. 10. Polyaenus, Stratagems of war and there Masuic. p. 274. Seneca de beneficiis, 5. 14. But all such money used in barbarous nations, is capable of carrying on but a very small trade among themselves. And symbolical money used in public calamities, is really to be considered as tickets or bills, which the supreme magistrate obliges himself to give ready money for, when the distress is over. Thus Timotheus is said by Polyaenus to have persuaded merchants to take his seal for money, to be received upon returning it.]]
[* ] For if we put too high a value on our money, foreign nations will either not care to have commerce with us, or they will raise the price of their commodities in proportion to the intrinsic value of our money. But if we put a less value on our money than neighbouring nations, nothing is more certain, than that our good money will remove to our neighbours, and their bad money will come to us in its room, so that none will know what he is worth. Hence it follows, in the more civilized nations, the proportion of gold to silver varying according to times, and being sometimes as twelve, sometimes as eleven, sometimes as ten to one, the price of gold must be sometimes higher and sometimes lower. (See our dissertat. de reduct. monet. ad just. pret. §24.) [[Heineccius and Egelgraser, De reductione monetae. Wherefore the Arabians could not but be great losers, who, according to Diodorus Siculus, Bibliothec. 3. 45. received for brass and iron an equal weight of gold; or, as Strabo, Geogr. 16. p. 1124. Strabo, Geography paid for brass three times the weight of gold, for iron twice the weight, and for silver ten times the weight, partly through their ignorance of arts, and partly through their indigence of those things which they bartered for it, that were more necessary to them. See what is related of the Peruvians by Garcillass. de la Vega dans l’histoire des Yncas, 5. 4. p. 425. Garcilaso de la Vega (1539–1616), author of the Commentarios reales que tratan del origen de los Incas of 1609 (Royal Commentaries of the Incas and General History of Peru).]]
[* ] So it was among our ancestors the ancient Germans, Tacitus de moribus Germ. c. 5. who observes, that in his time the Germans who lay nearest to the Roman provinces, had conceived some desire of money. Justin, hist. 2. 2. relates the like of the Scythians. Pomponius Mela of the Satarchi, a People in the European Scythia, de situ orbis, 2. 1. [[Pomponius Mela (fl. 40 ad), Latin geographer. His De situ orbis was published in various editions in the first half of the eighteenth century. Strabo of the Spaniards, Geogr. 3. p. 233. The same is yet practised by several nations in Asia, Africa and America: And it is the less to be wondered at with respect to barbarous countries, since the Greeks and Romans, long after the invention of money, carried on commerce in no other way but by barter. We have a noted example of it among the Greeks in Homer, Iliad 7. v. 482. and among the Romans in Plin. nat. hist. 18. 3. 33. 1.]]
[* ] For in it, each of the contracting parties estimates not his own but the other’s; and not at the just price others would put upon it, but according to his fancy; and so there is in such a contract no equality of goods, but of affection or fancy only. Because as often as the affection of the acquirer is greater than that of the possessor, regard is had in commerce, as we have already said (§332), to price of affection. The commerce between Glaucus and Diomedes in Homer, exchanging their arms, furnishes us with an example, Iliad 2. v. 236.
Aurea aereis, centena novenariis, &c.
[[“[G]olden for brass, the worth of an hundred oxen for the value of nine.” (Homer, The Iliad, vol. 1, 6.236)
Of which barter Maximus Tyrius, Dissert. Platon. 23. very elegantly observes, “Neither did he who received the gold get more than he who got the brass. But both acted nobly, the inequality of the metals being compensated by the design of the exchange.” Maximus of Tyre, The Philosophical Orations, Oration 35.3, p. 277.]]
[† ] Hence it may be doubted, whether the exchange made by Jacob and Esau, the latter of whom shamefully sold his birth-right for pottage, Gen. xxv. 29. would have been valid in foro humano. For tho’ Esau was very blame-worthy in setting so small a value upon the prerogative God had favoured him with, and he be on that account very justly called by the apostle, Heb. xii. 6. a profane person; yet Jacob acted no less basely in taking advantage of his brother’s hunger, to defraud him of so great a privilege (§322). For what Esau could not sell without a crime, that his brother could not buy without a crime; and it was his duty to dissuade his brother from such folly, and not to abuse his weakness. But many things of this sort are admirable in their typical sense, which are scarcely defensible by the rules of right reason.
[* ] For the vulgar or proper price of things is either legal or conventional; the former of which is fixed by law, or the will of superiors, the latter by the consent of the contracting parties. Now, seeing the former is fixed, and consists, as it were in a point, but the latter is uncertain, or admits of some latitude; in the former case one is justly thought to be wronged who does not receive the full price; in the latter case, the damage ought to be of some consideration to invalidate the contract in foro humano. “For,” as Seneca says of benefits, 6. 15. “what’s the matter what be the value of a thing, if the price be agreed upon between the buyer and the seller? The price of every thing is temporary. When you have highly praised things, they are just of so much value and no more than what they may be sold for.” Hence in formed governments, we may observe that a contract is only annulled when the injury is enormous, as by the Roman law, when one of the parties was wronged above half the price, l. 2. C. de rescind. vendit.
[1. ] Marcellinus, Ammianus Marcellinus, 16.12 (not 10) .26.
[* ] Such was the promise of Agamemnon in Homer, Iliad. 10. v. 135.If gifts immense his mighty soul can bow,Hear all ye Greeks, and witness what I vow:Ten weighty talents of the purest gold,And twice ten vases of refulgent mold;Seven sacred tripods, whose unsully’d frame,Yet knows no office, nor has felt the flame;Twelve steeds unmatch’d in fleetness and in force,And still victorious in the dusty course, &c.
[[Homer, The Iliad of Homer, vol. 3, 10.155 (not 135)–162
All this to pacify Achilles.—Whence it is plain, that it was a practice for one to stipulate with one for inestimable services, and to promise him for them whatever he thought would be most agreeable, without any regard to equality.]]
[† ] Loan therefore is a perfect obligation to allow another the use of something belonging to us, on condition of his restoring it to us in specie, gratis. And hence it is plain, that in natural law a loan scarcely differs from (precarium) what is granted to one upon his asking it, between which there is however some difference in civil law. Hence also may this question easily be decided, “Whether a contract of loan derives its essential obligation from the consent of the contracting parties, or from the delivery of the thing?” For tho’ by the law of nature, consent alone to the use of a thing obliges (§327); yet it is not a loan till the thing be delivered; because he to whom the promise of a loan is made, before he hath received the thing thus promised, is not obliged to restore it in specie: it is only a pact or agreement about a loan. But that there is a difference between these two is plain from hence, that the borrower, by loan, is obliged to restore the thing, but by a compact about lending, he who promises to lend is obliged to give the thing in loan: so that different obligations arise from these two negotiations.
[* ] Grotius of the rights of war and peace, 2. 12. 13. was the first who distinguished here, whether a thing would have perished in like manner in the hands of its proprietor or not; in the latter of which cases, at least, he thinks the loss should fall upon the borrower: And Pufendorff of the law of nature and nations, 5. 4. 6. is of the same opinion; So likewise Mornac, ad l. 1. C. commod. [[Mornac, Observationes in 24 priores libros digestorum. But since accidental or fortuitous events, arising merely from providence, are imputable to no person (§106), they certainly cannot be imputed even to a borrower. Nor is the divine law repugnant to this sentence, Exod. xxii. 14. For it cannot be understood otherwise than when the borrower is in fault. See Jo. Clerici Comment. in Exod. p. 110. le Clerc, Mosis prophetae libri quatuor.]]
[* ] Nothing was more sacred among the ancients than this contract, because the deponent reposes the greatest trust and confidence in the trustee; and nothing can be more base than to deceive a friend under the mask of friendship (§322). Hence the religious veneration paid to such trusts, not only among the Hebrews, of which see Exod. xxii. 7. and Josephus’s antiquities of the Jews, 4. 8. 38; but among the Greeks likewise, and several other Pagan nations, as we may learn from the story of Glaucus in Herodot. 6. 87. and from Juvenal, Sat. 13. v. 15. who there calls it depositum sacrum. Hence it is not to be wondered, that the ancients pronounced such terrible curses against those who dared to refuse to give back their charge; and looked upon them as no less infamous, and equally to be punished with thieves. See what is said on this subject by Gundlingius in Gundlingianis, part. 2. diss. 8.
[† ] For because regard is had to all circumstances in imputation (§113), therefore such a crime is so much the more vile and odious, in proportion as he is more inhuman, who not only cheats under the cloak of friendship (§322), but cruelly adds affliction to the afflicted. This is warmly urged by Hecuba against Polymnestor, who, when Troy was destroyed, killed Polydorus, son to Priam, that he might have the gold entrusted with him to himself, Hecub. v. 1210, & seq. Euripides. [[Euripides, “Hecuba,” in Euripides, trans. Way, vol. 1.]]
[* ] It is a true and solid remark of Noodt, in his probabilia, 1. 12. [[Gerard Noodt (1647–86), Dutch jurist, professor at Leiden. See his Opera omnia ab ipso recognita. that a mandate or commission in ancient times, had not perfect obligation, but that the proxy or person commissioned, was only bound by the laws of humanity and friendship, to the diligent and honest execution of his commission: and that the symbol used was giving the hand; whence it is not unlikely that this contract was called Mandatum, Isidor. orig. 4. 4. You may see examples of thus giving hand to proxies in Plautus Capt. 2. 3. 82. where the youth says,Haec per dextram tuam, te dextera retinens manu,Obsecro, infidelior mihi ne fuas, quam ego sum tibi.
Plautus, The Captives, lines 441–42, in vol. 1 of Plautus: “This I beseech you by this hand, this hand I hold in mine: don’t be less true to me than I am to you.”
And in Terence Heaut. 3. 1. v. 84.
Cedo dexteram: porro te idem oro, ut facias, Chreme.
Terence, The Self-Tormentor, line 493, in vol. 1 of Terence: “Give me your hand. I beg you to continue that way, Chremes.”
Anciently therefore, this whole business depended upon integrity, and not laws, till benevolence becoming very cool among mankind, necessity obliged them to make it a contract, that thus the proxy might be laid under a perfect obligation of executing his commission diligently. And the case is the same with regard to all the other gratuitous contracts.]]
[* ] To this belongs that noted passage of Cicero, pro Q. Rosc. c. 38. “Why did you receive a commission, if you was either resolved to neglect it, or to make your own advantage of it? Why do you offer your service to me, and yet oppose my interest? Get away: I will transact the affair by another. You undertake the burden of an office to which you think yourself equal: an office which does not appear heavy to those who have any degree of weight or sufficiency in themselves. Here there is a base violation of two most sacred things, faith and friendship. For one does not commission another unless he have confidence in him, nor does one trust a person except he have a good opinion of his integrity. None therefore but the most abandoned villain would both violate friendship, and deceive one who could not have been hurt had he not trusted to him.” [[Cicero, Pro Quinto Roscio Comoedo, in Cicero, Pro Publio Quinctio.]]
[† ] To the cause or author of a deed are it and all its effects imputable (§105). Since therefore, he who takes upon him another’s business is the author of the administration (§346), to him are all the consequences of the administration justly imputable. But the consequences of administration are giving account and repairing damages incurred by the fault of the administrator. And therefore he who takes upon him the administration of another’s business is obliged to give account, and to make reparations for damages proceeding from any fault in him. So that there is no need of deriving this obligation, with the lawyers, from feigned or presumed consent, since such an administrator as hath been described, by his own deed in undertaking another’s business, tacitely indeed, but truly obliges himself to all that hath been said.
[* ] We say those damages ought to be repaired which a proxy hath suffered by managing another’s affairs. For it is not enough that he hath incurred any accidental damage on occasion of his having undertaken another’s business: because none being obliged to answer for accidents, a person giving commission to another is not. Wherefore, if a proxy, while he is expeding his commission, is robbed by highwaymen, or falls into a dangerous sickness, the loss he may thus providentially suffer is not to be imputed to his constituent. “For such accidents,” says Paullus, l. 26. §6. D. mandati, “are imputable to fortune, not to commission.” See Grotius of the rights of war and peace, 2. 14. 13. But it is otherwise with respect to one commissioned by a prince to do some public business in a foreign country. For he to whom the glory of obeying is the chief reward, ought to be indemnified by the public. See Hubert. Eunom. ad l. 26. D. mandati. Pufendorff of the law of nature and nations, 5. 4. and Hert. de lytro, 2. 10. [[Hertius (praeses) and Viselius (respondens), De Lytro von Rantzion.]]
[* ] For tho’ estimatory barter bears some affinity to buying and selling (§338), yet it really differs from it in this respect, that in selling, money intervenes, but in estimatory barter, an estimated thing is given for another thing. Whence it is very manifest, what ought to be determined concerning the ancient controversy between the Sabiniani and the Procullani, whether price in buying and selling could only consist in money, or might consist in other things. Upon which see, besides the learned commentators upon §2. de empt. vend. instit. V. C. Gottf. Mascou. de sect. Sabin. & Procul. 9. 10. 1. & seq. [[Mascovius, Exercitatio inauguralis de sectis Sabinianorum et Proculianorum in jure civili.]]
[† ] There are faults and imperfections which are so glaring, that it would be needless to point them out; so that if one is deceived with respect to such faults, he deservedly suffers by his own blindness and heedlessness; to which case belongs the contest between Marius Gratidianus and C. Sergius Orata in Cicero, off. l. 3. 16. But the Roman laws, that men might be more firmly bound to do this good office one to another, ordained that all the faults should be told in selling which were known to the seller, and appointed a punishment for those who hid any, or did not discover them. “For tho’ the twelve tables,” says Cicero, “ordered no more than this, that the seller should be bound to make good those faults, which were expresly mentioned by word of mouth in the bargain, and which whoever denied was to pay double damages, the lawyers have appointed a punishment for those, who themselves do not discover the faults of what they sell: For they have so decreed, ‘That if the seller of an estate, when he made the bargain, did not tell all the truth in particular, that he knew of it, he should afterwards be bound to make them good to the purchaser,’” de off. 3. 16. The same author, c. 12. disputes, “Whether an honest merchant bringing, when corn was scarce at Rhodes, a large quantity thither from Alexandria, and withal knowing, that a great many ships, well laden with corn, were in the way thither from the same city, was bound to tell the news to the people of Rhodes, or might lawfully say nothing of it, but sell his own corn at the best rates he could?” of which question see Grotius of the rights of war and peace, 2. 12. Pufendorff of the law of nature and nations, 5. 3. 4.
[2. ] Euripides, Cyclops, in Euripides, vol. 1.
[* ] If it should be invincible, involuntary and inculpable (§107): For otherwise, if one buys any thing at a certain price, which he hath not seen nor sufficiently examined, his error ought to fall on himself, if the seller used no guile to deceive him, (which we know Laban did to Jacob in buying his wife, Genesis xxix. 23.) because he suffers justly for his mistake, who might not have mistaken, had he not been supinely negligent.
[* ] Pufendorff’s opinion (of the law of nature, &c. 5. 5. 3.) is much the same, but more obscurely told, where he distinguishes whether a certain day was fixed for the delivery or not, and if fixed, whether it be elapsed or not. For he thinks it most equal that the seller should run the risk till the term is elapsed; but that, the term being elapsed, if the thing perishes, it perishes to the buyer. But since the buyer is master, by the law of nature, without delivery, and the term being elapsed, it may not be always the seller that is in delay, but that may often be the fault of the buyer; we think in general the risk belongs to the buyer, in whose power it was to have received the thing immediately, upon paying down the price. But if he hath fulfilled the conditions of the contract on his side, or if he is ready to fulfil them, the seller who delays the delivery, deservedly runs the risk, whether a certain term for delivery was agreed upon or not.
[* ] But not only he seems to have given satisfaction as to the price, who hath paid the money, but he also to whom the seller trusts, having, e.g. stipulated to himself an annual interest. For tho’ this is the most simple kind of contract, in which the price being paid down, the thing is immediately delivered, i.e. if men merchandize Graeca fide, which was the only kind of commerce Plato allowed in his commonwealth de legibus, l. 11. yet that cannot always be done, and experience shews us, that commerce consists more in credit than in ready money.
[† ] Truly, what happens by superior force happens by accident; wherefore, since when the contract of buying and selling is perfected (§353), the owner must stand all chances, even when a thing sold is carried off from the buyer by chance or superior force, he cannot seek warranty or reparation from any person. Moreover, there is no doubt, but, as other pacts added to this contract ought to be valid; so the buyer and seller may agree that there be no warranty, but that the thing may be entirely at the buyer’s risk. Such a pact was added to the selling of the girl by Sagaristio in Plautus, in Persa, 4. 4. v. 40.Prius dico: hanc Mancupio nemo tibi dabit, jam scis?Do. Scio.
[[Plautus, The Persian, line 589, in vol. 3 of Plautus: “I tell you this first: nobody will give you a warrant with her. You understand now?” “I understand.”
[* ] The definitions of these pacts are known from the civil law. Addictio in diem, is a pact which gives the seller leave to accept of any better bargain that shall offer itself by such a day, which may be done two ways. First, when the bargain is compleated, but upon condition that it shall be null, if better terms offer themselves: Or, secondly, if it be only agreed, de futuro, that it shall be a bargain, if better offers are not made. Lex commissoria, makes void the bargain, if the price be not paid by such a day. We have an example of it in Cornelius Nepos in the life of Atticus, c. 8. Pactum de retrovendendo, is an agreement, that upon tender of the price at any time, or by such a certain day, the buyer shall be obliged to restore the goods to the seller or his heirs. Such is that sale in Livy, 31. 13. and that in Julius Capitolin. in Marco c. 17. [[See Boxhorn, Historiae Augustae scriptores latini minores. Vol. 2 includes writings by Julius Capitolinus. Pactum protomiseos, is the privilege of the first refusal, that is, if the buyer be hereafter disposed to part with the commodity, he must let the seller, or his heirs, have the first refusal, at the same rate he would sell it to another. The nature of the rest is obvious from the terms by which they are expressed. [Eviction is the loss which the buyer suffers, either of the whole thing that is sold, or of a part of it, because of the right which a third person has to it; so that pactum de evictione non praestanda, is an agreement between the seller and the buyer, that the former shall not be obliged to warrant the buyer against all danger of being evicted or troubled in his possession of the thing sold. Warranty being a consequence of the contract of sale, there is a first kind of natural warranty, which is called warranty in law, because the seller is obliged to it by law, altho’ the sale make no mention of it. And it being in our power to augment or diminish our natural engagements by covenants, there is a second kind of warranty, which is a warranty by deed or covenant, such as the seller and buyer are pleased to regulate among themselves. Pactum de poena incasum poenitentiae praestanda, is an agreement to pay a fine, in case of repenting and not standing to the bargain.]]]
[* ] Nay the sale may be so agreed upon, as that a certain term of years agreed upon being run out, the thing sold shall then return to the seller or his heirs, and yet the buyer shall not redemand the price paid. Estates are often sold in this manner. See Pufendorff, law of nature, &c. 5. 5. 4.
[* ] And hence we may decide the famous suit between the fishers and the Milesian youth, who had bought the cast of a net from them, occasioned by the fortune of the cast, the fishermen having drawn out a golden tripod in their net, each party contended this unexpected treasure was theirs, and the oracle very absurdly adjudged it to the wisest.De tripode ex Phoebo quaeris, Milesia pubes?Huic tripodem addico, cui sit sapientia prima.
Laert. 1. 28. Val. Max. 4. 1. [[Valerius Maximus, Facta et dicta memorabilia (Memorable Doings and Sayings) 4.1, ext. 7. Also cited in Diogenes Laertius, Lives of Eminent Philosophers, 1.28: “Are you enquiring about the tripod from Phoebus, Milesian youth? I assign the tripod to him who is of the greatest wisdom.” But it is plain that the tripod belonged to the fishermen, if its owner was not known (§324), notwithstanding the contract, the Milesian youth having only had regard in the contract to what fish should be caught, and not to golden tripods, of which neither of the parties could have any thoughts. See l. 8. §1. D. de contr. empt. l. 11. §ult. & l. 12. D. de act. empt.]]
[† ] For if the lord of the mannor stipulate to himself a certain portion for his rent, that bargain hath the nature of partnership, as will appear from the definition of these contracts, when we come to treat of them. Moreover, letting a fruitful farm for a certain share of the fruits, is not a contract of renting and hiring, as is plain from this consideration, that the latter is an onerous contract, in which equality is required (§324); but in the former it cannot obtain. For if one should stipulate to pay for the use of a farm for six years, every year so many measures of grain, it may happen that in one year of great plenty, when corn is very abundant and cheap, the rent shall be moderate, and proportioned to the use of the farm, but another year of scarcity it shall be immoderate on the account of scarcity and dearness. And therefore, we have already said, that renting and hiring requires that the price be paid in money (§350).
[* ] This equity was acknowledged by all the ancients, as by Sesostris king of Egypt, who, if any part of the land was washed away by the force of the river, ordered the rent to be proportionably diminished, Herodot. 1. 2. p. 81. edit. Steph. [[Herodotus, Herodoti Halicarnassei historiae libri IX. Nor did the Romans observe less equity in this affair, according to Polybius, hist. 6. 15. and among them Caesar, by Sueton’s relation, cap. 20. But it is manifest, that here likewise ought to be understood a considerable loss, and not a very small one, seeing the barrenness of one year is often compensated, especially in farms, by the plenty of a succeeding year; and it is unreasonable that the tenant should have all the advantages, and yet refuse to bear the smallest share of loss.]]
[* ] Hence it is, that estates are often let out on such conditions that in renting and hiring very little remains of the nature of such a contract. Hence perpetual leases, hence irregular ones, by which at once the dominion, and all hazards, are devolved upon the lessee; of which we have an instance quoted from Alfenus Varus [[Alfenus Varus was a lawyer and consul in 39 bc by Corn. van Bynkershoek, observ. 8. 1. & seq. ad legem 31. D. locati. There is such a contract among the Germans, of which I have treated Element. juris Germ. 2. 14. §105, after Tabor, who has given us a dissertation on this subject. Possibly the De servitutibus realibus: Dissertatio juridica by the German jurist Johann Otto Tabor (praeses) and Hermann Hopfener (respondens).]]
[* ] We call those consumeable things which we can number, measure or weigh. And this is the nature of them, 1. That they cannot be used without being abused or consumed. 2. That they may be returned either in kind or in species, 1. 2. §1. D. de rebus cred. i.e. if I owe a hundred guineas, my creditor will own himself satisfied whether I return him the same guineas I received from him, or others of the same kind. And hence it is plain what is meant by the same kind: it means the same in quantity and quality. But thence follows another property of consumeable commodities. 3. viz. That with respect to them as much is the same, Nor, 4. do they (as Thomasius has observed de pretio adfect. in res fung. non cad.) admit of a price of fancy, unless they be very scarce, so that as much in kind cannot easily be found. Thus, tho’ at Rome Falernian wine was a consumeable commodity, yet a price of fancy fell upon Trimalchion’s Opimian wine of a hundred years old, Petronius Arbit. Satyric. cap. 34.
[† ] It is well known what a bustle Alexius a Massalia, i.e. Claudius Salmasius, has made about this affair, endeavouring to turn the defenders of this Thesis into ridicule. But all his weapons borrowed from the civil law, and much stronger ones, have been turned against him by Wissenbachius, Fabrottus, and other learned men, insomuch that the subject is now exhausted. [[A reference to a debate between the jurists Charles Annibal Fabrot (1580–1659), Claude Saumaise (1588–1653), and Johann Jakob Wissenbach (1607–65). Wissenbach’s and Fabrot’s positions were published in one volume with Saumaise’s Disquisitio de mutuo. But the principles here laid down shew, that right reason is not against the Civilians in this matter, and does not favour Salmasius. It is true that the creditor does not alienate the quantity, but preserves it safe to himself, by obliging the debtor to return him the same in kind: But the dominion of the species credited, and all the risks, pass undoubtedly to the debtor, as Salmasius himself, being pushed to the utmost extremity, is forced by his adversaries to own.]]
[* ] For since the dominion of a consumeable commodity is transferred to the debtor (§365), but he who has the dominion must stand chances (§211), the creditor cannot be freed from his obligation, if, e.g. the wine lent him should turn into vinegar, or the money lent should be stoln from him, or be lost by any other accident. Much less then will poverty excuse a debtor from payment, if he has squandered away his estate, or, like an idle drone, lives at another’s expence, and wantonly consumes on his pleasures the gains of another’s sweat and labour. For this is a most pestiferous race, ready to engage in the vilest schemes. And they who have wasted their own substance must needs covet that of others. See Salust. Catil. cap. 20.
[* ] We need not insist long upon the history of this controversy, which was revived in Holland the last century. We are saved this labour by Noodt de foenore & usuris, 1. 4. [[G. Noodt, De foenore et usuris libri tres Martinus Schook exercit. var. p. 430. Martin Schoock (1614–69), Exercitationes variae, de diversis materiis and Thomas. not. ad Lancellot. 4. 7. not. 275. p. 2024. Lancelotti, Institutiones juris canonici, ed. Thomasius the last of whom hath given us a full history of the rise of this dispute, and of the managers on both sides of the question. It must however be acknowledged, that most of the learned who have wrote upon this subject have been more taken up about the divine positive law than the law of nature; so that very little advantage is to be reaped from them by students of natural law.]]
[† ] To this doctrine it is in vain objected, as, 1. “That money is a barren thing, and therefore that usury, as a kind of offspring, ought not to be required for it.” For it is a barren thing in a physical sense, but not in a civil sense; for in commerce the double, and very often more, is gained by it, Mat. xxv. 16. 17. Or, 2. “That loan of inconsumeable things is gratuitous, and therefore loan of consumeable goods ought to be so too.” For he who lends an unconsumeable thing suffers less inconvenience, and runs less risk than a creditor who transfers to his debtor the dominion of a consumeable thing, with the power and right of abusing it. Or, 3. “That God hath prohibited such pacts, Exod. xxii. 25. Lev. xxv. 37. Psalm xv. 5. Luke vi. 34.” For God proscribed such pacts from the Israelitish common-wealth, so far only that an Israelite could not exact interest from an Israelite; they were permitted with strangers, Deut. xxiii. 19. 20. But the law of nature makes no difference between fellow citizens and strangers. See Jo. Selden de jure nat. & gent. See Heb. and Jo. Cleric. ad Exod. xxii. 25. p. 112.
[* ] By the law of Germany in the middle ages, when a pawn perished by chance, the debtor was freed from all obligation to pay his debt, jus prov. Sax. 3. 5. Sometimes it was provided by a special pact, that the risk should belong to the creditor, as in Pontan. hist. Dan. 1. 9. ad annum 1411. [[Pontanus, Rerum Danicarum historia. But because that proceeded from this singular principle of the Germans, that the creditor got the dominion of the pawn, of which see our Elem. jur. Germ. l. 2. 11. §319. the reasons given in this section do not permit us to attribute these things to the law of nature.]]
[* ] This we add on account of what Pufendorff says of the law of nature, &c. 5. 10. 16. “In the state of nature such mortgages are needless; for if the debtor refuses payment, the possession of the mortgage assigned in security, must be detained by force of arms. But in that state, even without such a particular assignment, it is lawful to seize on any thing that belongs to the debtor.” But examples of such mortgages are not wanting even among independent nations, as Hertius has shewn in his notes upon this passage of Pufendorff, p. 738. & seq. who elegantly replies to Pufendorff’s argument, that this mortgage may be of great use, if the town thus pledged should fall into a third person’s hands. Moreover, we readily grant, that independent nations do not rashly satisfy themselves with such simple mortgages, but do at least stipulate the right of keeping a garison in these cautionary towns, as Elizabeth queen of England did in the 1585, when the Hollanders put several towns into her hands, Em. Meteran. Rer. Belg. l. 13. and the other Belgic annalists for that year. [[Emanuel van Meteren (1535–1612), author of a history of the Low Countries, frequently republished with additions after his death (Historien der Nederlanden en haar naburen oorlogen tot het jaar 1612).]]
[* ] The more ancient laws among the Romans adhering more strictly to the simplicity of the law of nature, are not contrary to this commissory pact; yea, while the republic was yet free, it was looked upon as lawful, as appears from a passage in Cicero’s epistles, epist. ad famil. 13. 56. quoted by Hertius, and before him by Jac. Gothofred. ad l. un. Theodos. de commiss. rescind. (Philotes Alabandenses ὑποθήκας Cluvio dedit: hae commissae sunt.) [[Cicero, Epistulae ad familiares 13.56: “Philocles of Alabanda has mortgaged some property to Culvius. The time of the mortgage has expired.” But the terrible severity of creditors, by which debtors were unmercifully squeezed, being forced to pawn, in this manner, things of much greater value than the debt, at last obliged the emperors to proscribe this pact, as exceeding detrimental to debtors.]]
[* ] For if benevolence prevailed, as it ought to do, among mankind, a creditor would not distrust a debtor, nor would a debtor allow one thought of defrauding his creditor to enter into his mind; and thus there would be no occasion for pawns or sureties. But now that men are become so suspicious and diffident, that they will not believe unless they see, this is an argument of the decline of benevolence, and of the prevalence of perfidy among men. This is allowed by Seneca in a most beautiful passage (of benefits, 3. 15).
[† ] Pufendorff, 5. 10. 12. hath brought many instances of it among the Greeks; and Hertius in his notes on Pufendorff, ibidem, p. 735, produces statutes approving of such sureties. But as for others who pretend to justify this kind of suretiship by examples in the sacred writings, they are easily refuted, Gen. xlii. 37. For every one may perceive that obligation of Reuben to have been foolish, especially seeing he did not pledge his own head, but the lives of his innocent children; and besides, it was not for a condemned person, but for his brother Benjamin’s return out of Egypt. Whence it is not probable that the pious and prudent Jacob accepted of the offered security, Gen. xliii. 9. Juda offers security, but not for a condemned criminal, nor does he pledge his life. Finally, 1 Kings, xx. 39. there no person pawns his life for a guilty criminal, but the custody of a captive is demanded under the peril of death. So that there is nothing in the sacred writings to justify this custom among the ancients.
[3. ] “The right of bringing an action in a particular order” (that is, first against the principal debtor, then against the surety).
[* ] A contrary opinion hath prevailed in many nations, who thought that recourse might be had to the surety before the principal debtor. Concerning the Hebrews, see Prov. xx. 16. xvii. 18. As for the Greeks, that saying of Thales is well known, “Be surety, and ruin is at your heels.” The ancient Germans had likewise such a proverb. See Schilt. Exercit. 48. 21. [[Johann Schilter (1632–1705), Exercitationes theoretico-practicae ad L libros Pandectarum. The same rigour was also observed by the Romans, till Justinian introduced the beneficium ordinis vel excussionis, novella 4. But since a surety only accedes as a subsidiary security on failure of the principal, if he might be immediately sued, there would be no difference between the Surety, the Expromissor or Bail, and the Principal debtor. It is therefore agreeable to right reason, that he who is bound as a subsidiary security, should not be sued before the discussion of the principal debtor. So Cicero Epist. ad Attic. 16. 15. “Sponsores adpellare, videtur habere quamdam δυσωπίαν” Cicero, Epistulae ad Atticum 16.15: “To call upon sureties seems to have a certain shame [attached].”]]
[* ] There is therefore no place here for the division of an obligation. But because if both who are bound in solidity be solvent, and both may easily be sued, there is no just cause why the creditor should press one, and extort the whole sum from him alone; humanity does not allow one so rigorously to prosecute his right, as to press any one singly, but commands us to have recourse to both. For surely humanity doth not permit us to demand any thing from any other which we can obtain otherwise, without detriment to ourselves or any other (§216).
[* ] We are therefore here treating of community in consequence of the consent of partners. But because consent may be either tacit or express, and both have the same effect (§275), the consequence is, that partnership may be contracted by tacite consent, i.e. by deed, Hert. diss. de societate facto contr. [[Hertius (praeses) and Gilfeld (respondens), De societate facto contracta. Now, since either all goods and labour, or a certain share only, or some particular goods and labour, may be joined, partnership may be either universal, or general, or particular. Grotius of the rights of war and peace, 2. 12. 24. hath justly remarked, that universal and general partnership have something of chance in them; but that in particular or singular partnership, equality ought to be observed.]]
[† ] Some have said, that arithmetical equality ought to be observed here, as among brethren; and thus they interpret, l. 6. l. 29. l. 80. D. pro Soc. and other Roman laws, Connan. Comment. jur. civ. 7. 19. 5. Huber. Praelect. ad tit. Inst. de societate. [[Connan, Commentariorum; U. Huber, Praelectionum juris civilis tomi 3. But this fraternity of partners is a fiction, to which the law of nature is a stranger; and besides, in this case the profit arises from joint stock and labour; wherefore, nothing can be more just than that loss and gain should be shared proportionably to stock and labour. So Aristotle rightly decides the matter, ad Nicom. 8. 16.]]
[* ] This may be proved from the very reasons brought by ancient lawyers. For sometimes they give this reason, “That community is the mother of discords,” l. 77. §20. D. de legat. Sometimes they say, “It is a natural vice to neglect what is in common,”l. 2. C. quando & quibus quarta pars. To which some add another reason, “That respect is had in the choice of a partner to his abilities and industry; and therefore, if either partner does not answer his co-partner’s hope and expectation, with regard to his honesty and diligence, the other hath a right to renounce the partnership.” But buying and selling, renting and hiring often produce as much discord, in which contracts they allow no place for changing one’s mind, or repenting. And houses let, are often no less neglected than houses in common to many, and yet it is not allowable to break such a contract before the time is out. Again, he who hires one to work for him, hath regard to the skill, honesty and industry of the person he hires, and yet he cannot break his contract before the time is expired. If therefore this rule takes place in other contracts, why may it not be allowed to take place likewise in partnership, l. 5. C. de obl. & art. “As every one is at liberty to contract or not contract, so none can renounce the obligation he hath once come under, without the consent of his party.”
[* ] For example, with us it is base and to no purpose to pawn dead bodies. But the laws of the Egyptians permitted pawning of dead bodies, and denied burial to children if they neglected to relieve such pledges by paying their parents debts, Diod. Sicul. Bibl. 1. 93. On the other hand, it is unnatural and abominable to pawn wives and children, as was permitted in the kingdom of Pegu, because it must be attended with most miserable consequences. And therefore the Romans judged him worthy of banishment, who knowingly accepted in pawn a free-born child from his father, l. 5. D. quae res pign.