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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
It seems necessary to add a little to what our Author hath said in this chapter concerning usury, to shew at one and the same time, the true state of the case with regard to the forbidding of usury in the Israelitish commonwealth, and how civil laws may confine and alter natural rights, consistently with the law of nature. And here all we have to do is to copy a little from our excellent politician Mr. Harrington, in his prerogative of popular government (p. 245).
Mr. Harrington, who hath shewn at great length, that property must have a being before empire or government, or beginning with it must still be first in order, because the cause must necessarily precede the effect, reasons thus: “Property comes to have a being before empire two ways, either by a natural or violent revolution: natural revolution happens from within, or by commerce, as when a government erected upon one balance, that for example, of a nobility or a clergy, through the decay of their estates, comes to alter to another balance; which alteration in the root of property, leaves all to confusion, or produces a new branch or government, according to the kind or nature of the root. Violent revolution happens from without, or by arms, as when upon a conquest there follows confiscation. Confiscation again is of three kinds, when the captain taking all to himself, plants his army by way of military colonies, benefices or Timars, which was the policy of Mahomet; or when the captain has some sharers, or a nobility that divides with him, which was the policy introduced by the Goths and Vandals; or when the captain divides the inheritance, by lots or otherwise, to the whole people; which policy was instituted by God or Moses in the commonwealth of Israel. Now this triple distribution, whether from natural or violent revolution, returns, as to the generation of empire, to the same thing, that is, to the nature of the balance already stated.”4 Mr. Harrington having fully proved these points, or that property is the natural cause of government, and that changes in it must make proportional changes in government, it follows from hence, that unless the balance of property be fixed, empire or government cannot be fixed, but will be continually altering as the balance of property varies; but property in land can only be fixed by an Agrarian law. Now these principles being laid down, the following truths concerning money, and the methods of regulating it in governments will be manifest, namely, “That the balance in money,” as Mr. Harrington expresses it, “may be as good or better than that of land in three cases: First, where there is no property of land yet introduced, as in Greece during the time of her ancient imbecility; whence, as is noted by Thucydides, The meaner sort, through a desire of gain, underwent the servitude of the mighty. Secondly, in cities of small territory and great traffic, as Holland and Genoa, the land not being able to feed the people, who must live upon trade, is over-balanced by the means of that traffic, which is money. Thirdly, in a narrow country, where the lots are at a low scantling, as among the Israelites; if care be not had of money in the regulation of the same, it will eat out the balance of land. For which cause, tho’ an Israelite might both have money, and put it to usury, (Thou shalt lend [upon usury] to many nations, Deut. xv. 6. and xxiii. 19.) yet might he not lend upon usury to a citizen or brother. Whence two things are manifest. First, that usury in itself is not unlawful: And next, that usury in Israel was no otherwise forbidden, than as it might come to overthrow the balance or foundation of the government. For where a lot, as to the general, amounted not perhaps to four acres, a man that should have a thousand pounds in his purse, would not have regarded such a lot in comparison of his money; and he that should have been half so much in debt, would have been quite eaten out. Usury is of such a nature, as, not forbidden in the like cases, must devour the government. The Roman people, while their territory was no bigger, and their lots, which exceeded not two acres a man, were yet scantier, were flead alive with it; and if they had not helped themselves by their tumults, and the institution of their tribunes, it had totally ruined both them and their government. In a commonwealth whose territory is very small, the balance of the government being laid upon the land, as in Lacedemon, it will not be sufficient to forbid usury; but money itself must be forbidden. Whence Lycurgus allowed of none, or of such only as being of old or useless iron, was little better, or if you will, little worse than none. The prudence of which law appeared in the neglect of it, as when Lysander, General for the Lacedemonians in the Peloponnesian war, having taken Athens, and brought home the spoil of it, occasioned the ruin of that commonwealth in her victory. The land of Canaan, compared with Spain or England, was at most but a Yorkshire, and Laconia was less than Canaan. Now, if we imagine Yorkshire divided, as was Canaan, into six hundred thousand lots, or as was Laconia into thirty thousand, a Yorkshireman having one thousand pounds in his purse, would I believe, have a better estate in money than in land: Wherefore, in this case, to make the land hold the balance, there is no way but either that of Israel, by forbidding usury, or that of Lacedemon, by forbidding money. Where a small sum may come to over-balance a man’s estate in land; there, I say, usury or money, for the preservation of the balance in land, must of necessity be forbidden, or the government will rather rest upon the balance of money, than upon that of land, as in Holland and Genoa. But in a territory of such extent as Spain or England, the land being not to be overbalanced by money, there needs no forbidding of money or usury. In Lacedemon merchandize was forbidden; in Israel and Rome it was not exercised; wherefore, to these usury must have been the more destructive; but in countries where merchandize is exercised, it is so far from being destructive, that it is necessary; else that which might be of profit to the commonwealth, would rust unprofitably in private purses, there being no man that will venture his money but through hope of some gain; which, if it be so regulated, that the borrower may gain more by it than the lender, as at four in the hundred, or thereabouts, usury becomes a mighty profit to the public, and a charity to private men: In which sense, we may not be persuaded by them, that do not observe these different causes, that it is against scripture. Had usury to a brother been permitted in Israel, that government had been overthrown: But that such a territory as England or Spain cannot be over-balanced by money, whether it be a scarce or plentiful commodity, whether it be accumulated by parsimony, as in the purse of Henry VII. or presented by fortune, as in the revenue of the Indies. For in general this is certain, that if the people have clothes and money of their own, these must either rise (for the bulk) out of property in land, or at least, out of the cultivation of the land, or the revenue of industry; which, if it be dependent, they must give such a part of their clothes and money to preserve that dependence, out of which the rest arises, to him or them on whom they depend, as he or they shall think fit; or parting with nothing to this end, must lose all; that is, if they be tenants, they must pay their rent, or turn out. So if they have clothes or money dependently, the balance of land is in the landlord or landlords of the people. But if they have clothes and money independently, then the balance of land must be in the people themselves, in which case they neither would, if there were any such, nor can, because there be no such, give their money or clothes to such as are wiser, or richer or stronger than themselves. So it is not a man’s clothes and money or riches, that oblige him to acknowledge the title of his obedience to him that is wiser or richer, but a man’s no clothes, or money, or his poverty. Wherefore, seeing the people cannot be said to have clothes and money of their own, without the balance in land, and having the balance in land, will never give their clothes or money or obedience to a single person, or a nobility, tho’ these should be richer in money, in such a territory as England or Spain, money can never come to over-balance land. Henry VII. tho’ he missed of the Indies, in which, for my part, I think him happy, was the richest in money of English princes. Nevertheless, this accession of revenue did not at all preponderate on the king’s part, nor change the balance. But while making farms of a standard he increased the yeomanry, and cutting off retainers he abased the nobility, began that breach in the balance of land, which proceeding ruined the nobility, and in them that government. The monarchy of Spain, since the silver of Potosi sailed up the Guadalquiver, which in English is, since that king had the Indies, stands upon the same balance in the lands of the nobility on which it always stood.”5 See Mr. Harrington himself. What hath been now quoted from him is sufficient to shew in what manner we ought to reason about the regulation of money in a state. There will be occasion afterwards to consider the natural causes of government more fully. But it is plain from what was said in a former remark, 1. That superior wisdom and virtue will naturally create authority. And that, 2. Property alone can give or create power, and will naturally produce it. And therefore, 3. That empire will follow the balance of property: And by consequence, 4. There is no natural mean of fixing government, but by fixing the balance upon which it depends. Wherefore, 5. That is a proper regulation of money with respect to the preservation of a government, which is necessary or proper to fix the balance upon which the nature of that government depends or turns. But, 6. Men have a natural right to form themselves into any form of civil government proper to promote their greater happiness; and consequently, to make any regulations necessary or proper to that effect. Thus the Lacedemonians had a right, for the preservation of their government, to forbid money, and the Israelites to forbid usury. And thus our government has a right to regulate the interest of money as the nature and end of our government, i.e. as the greater good in our government requires. If it be asked what the law of nature says about money in a state of nature, the answer is obvious; it requires that commerce be carried on with or without money, in an honest candid way; so as none may be made richer at the detriment of others; and allows bartering, buying, letting and hiring, and other contracts, all imaginable latitude or liberty within the bounds of honesty, the general dictates of which, with regard to all contracts, are sufficiently explained by our Author.
The difference between pacts and contracts.Tho’, by the law of nature, there be no difference between pacts and contracts, both deriving their subsistence and force from consent; yet it may be said, that contracts, according to the antient way of speaking, related to commerce about goods and labour (§327); and pacts to other things and deeds, which are not matters of ordinary commerce.* Thus, e.g. tho’ free persons of either sex are not in commerce, yet among them agreements are made about marriage, to be celebrated either immediately, or some time after; and both these agreements, the former of which is called betrothing, the other full marriage, come under the title of pacts.
Why pacts are necessary.Now, since men cannot live comfortably and agreeably, except they render one to another those duties of humanity and beneficence which we have already defined (§214); and yet benevolence is become so cold and languid amongst men, that we can hardly depend upon one another’s humanity and beneficence for them (§326); and besides, these are duties not of perfect, but imperfect obligation, (§122),* and therefore duties which cannot be extorted from the unwilling: for these reasons, there is no other security for our obtaining them but another’s obligation to us by his consent; and therefore we ought thus to secure to ourselves the performance of those good offices by others to which we would have a perfect right. Now, this consent of two or more to give, or do any thing which could not be otherwise exacted from them by perfect right, but was due merely in consequence of the law of humanity and beneficence, is called a pact.
Such pacts ought to be fulfilled. A first argument to prove it.Nor can it be questioned that such pacts ought to be faithfully fulfilled. For since he who promises any thing, declares his mind, whether by words or other signs; and words are so to be used, that the person we speak to may not be de-ceived (§196); the consequence is, that all fraud, all lying, all falshood ought to be far removed from those who deliberately make covenants or pacts; and therefore that nothing ought to be held more sacred than keeping faith, or more detestable than perfidy.†
A second argument.There is a second reason which every one will own to be of no less weight. And it is this, the love of justice is the source of all the duties we owe to one another (§173), and this love commands us not to do to others what we would not have done by them to ourselves (§177). But surely none would desire to be deluded by the promises and pacts of another. It is therefore our duty not to deceive any one by our pacts or promises; not to defraud one, by making him trust to our fidelity; but faithfully and conscientiously to perform what we engage to do.*
Pacts of several sorts.Pacts are either unilateral or bilateral. By the former, one party only is bound to the other; by the latter, both parties mutually oblige or engage themselves one to another; and therefore this latter kind of pacts includes in them a tacite condition, that one is to perform his promise, if the other likewise fulfils the pact on his side. Both however are either obligatory or liberative. By the former, a new obligation is brought upon one or other, or upon both. By the latter, obligations formerly constituted are taken off. Again, pacts may be of a mixed kind; such are those by which former obligations are annulled, and new ones are constituted at the will of the parties covenanting. Of this kind principally, it is evident, are novations and transactions about doubtful or uncertain affairs. But there is one rule for them all, which is, that they ought to be faithfully and religiously kept, especially if one hath not promised with an intention to lay himself under a strict obligation.*
By the law of nature, naked or bare pacts oblige perfectly.Hence we infer, that by the law of nature there is no difference between pact and stipulation; and therefore that Franc. Connanus, in his comment. 1. 6. is mistaken, when, to exalt the excellence of the Roman laws, he denies that by the law of nature obligation arises from promises, as long as they are simple agreements, and are not converted into contracts. His arguments have been sufficiently refuted by Grotius of the rights of war and peace, 2. 2. 1. and Pufendorff of the law of nature and nations, 3. 5. 9. We shall only add, that Connanus speaks not in so high a strain of the natural obligation of bare pacts as the Romans themselves did, who never denied their perfect obligation, tho’ they did not grant an action upon them for particular reasons.*
Express and tacite pacts.A pact being the mutual consent of two or more in the same will or desire (§386); i.e. an agreement of two or more about the same thing, the same circumstances; the consequence is, that this internal consent must be indicated by some external sign. But such signs are words either spoken or written, and deeds; the former of which make express, the latter tacite consent (§284); and therefore it is the same, whether persons make a pact by express, or by tacite consent, provided the deed be such as is held to be significative of consent by the opinion of all mankind, or of the particular nation;† nay, consent is sometimes justly inferred, from the very nature of the business, if it be of such a kind, that a person cannot be imagined to dissent (§284).
Who can, and who cannot make pacts.It is plain from the definition of a pact as requiring consent (§391), that they cannot covenant who are destitute of reason, and therefore that the pacts of mad persons are null, unless they were made in an evidently lucid interval from their madness; as likewise the pacts of infants, and of all whose age cannot be supposed capable of understanding the nature of the thing; or of such persons, whose minds are disturbed by their indisposition; or of persons in liquor, even tho’ their drunkenness be voluntary;* or finally, of those who promised any thing to another, or stipulated any thing from another to themselves in jest.
Of pacts made by mistake or ignorance.From the same principle it follows, that pacts made thro’ ignorance or mistake are unvalid, if this fault of the understanding was culpable, vincible and voluntary (§107); but not, if it be of such a nature, that the most prudent person is liable to it; (§108), as, if the covenanting persons had different persons and objects in their view; or if either of them was mistaken about the person, or object, or any circumstances of it which could not easily be known, and which, had he known, he would not have made the pact.*
Of fraud or knavery.Much less still is a pact valid if one be led into it by the fraud or knavery of the other; or in which one is involved, and by which one is wronged by another’s cunning and deceitfulness; because he cannot be deemed to have consented, who was so blinded or deluded by another’s artful misrepresentations, that he had quite a different opinion of the person or object when he covenanted, than he afterwards found to be the case.† On the other hand, there is no reason why a pact should be null when a third person induces one to make it without the other’s knowledge, tho’ in this case it be indisputable, that the person by whose fraudulence the pact was made, is obliged to repair the damages of the persons whom he hath thus injured.
Of force and fear.And since nothing can be more repugnant to consent than force and fear; nor can an action be imputed to one, if he was forced to it by one who had no right to force him (§109); hence it is clear, that one is not bound by his promise to a robber, or to any one who unjustly uses violence against him. But a pact is not invalid, if it be made with one who had a right to use violence; and much less is a pact null, if not he to whom the promise is made, but a third person, without his knowledge, used violence, or was the cause of the pact.* Nor is a pact invalid, if the person forced to it, afterwards freely consents and confirms his promise, because he then becomes obliged, not by his first promise extorted from his by force and fear, but by his after voluntary consent (§109).
The consent of the parties ought to be mutual.Moreover, since a pact consists in the consent of two or more to the same thing (§386), it is very plain that this rule must hold not only in bilateral, but likewise in unilateral pacts; and therefore a promiser is not bound, unless the other signify that the promise is agreeable to him. But this may be justly presumed, either from the condition of the person to whom the promise is made; or from the nature of the thing promised; or from antecedent request, provided, in this last case, the same thing that the other had demanded be promised.
What with regard to impossible things.Again, because pacts are made about something to be performed (§386), but impossible things cannot be performed, and therefore the omission of them is imputable to none (§115); the consequence is, that pacts about things absolutely impracticable are null: no obligation arises from them, unless the thing, at the time the pact was made, was in the power of the promiser, and he shall afterwards destroy, by his own fault, his power to fulfil his promise; or unless one fraudulently promised a thing not absolutely impossible, but which he knew to be impracticable with regard to him (§115).
What with regard to immoral things.And since those things are justly reckoned among impossibles, which, tho’ not impossible in the nature of things, yet cannot be done agreeably to the laws and to good manners (§115); hence it is evident, that pacts and promises contrary to the laws of justice and humanity, or even to decency, modesty and honour, (and which, for that reason, we ought to be judged not to be capable of doing, as Papinianus most justly and philosophically speaks, l. 15. D. de condit. instit.) are not valid. A person is not obliged to fulfil a promise by which he engaged to commit any crime; nor is he who promised to pay one a reward for perpetrating any crime bound by such a promise; and therefore all pacts about base and dishonest things, whether unilateral or bilateral, are of no effect.*
What with regard to detrimental promise.Hence again we infer, that one is not obliged to perform promises, the fulfilment of which would manifestly be detrimental to the other, tho’ this other should urge the fulfilment of the promise to his own ruin. For since we are forbid to injure any person by the law of nature (§178), and none can make pacts contrary to the law of nature, (§398), no pact by which another is hurt can be valid; and he who keeps such a promise, even to one who insists upon the fulfilment of it, is no less deserving of punishment, than he who hurts one against his will, and by force.*
What with respect to pacts about the deeds and things of others.Besides, because we make pacts about those things which we desire to have a perfect right to exact from others (§386); but those things can neither be done, nor given, which are not at our disposal, but subject to the dominion of another person; we have therefore reason to deny that one can make a valid pact about things belonging to others, without commission from the owner, or even about his own things, to which any other hath already acquired some right by a prior pact. He indeed who hath engaged to use all his diligence to make another give or do, is obliged to fulfil that promise.* Yea, he is obliged to answer for the value of it, if he hath engaged himself to get another to give, or do a thing to any one; but he to whom a third person hath made such a promise, hath no right to exact the thing or deed, thus promised to him, from the person to whom it belongs to dispose of it. See Hertius de oblig. alium datur. facturumve.1
What with regard to conditional pacts, &c.From the same principle, that promise to give or do consists in the consent of both parties (§386), it manifestly follows, that it depends upon the parties to make a pact with, or without conditions, and any agreement with regard to time they please; and that these circumstances ought to be observed by the persons engaging, provided what regards the condition truly makes the effect of the pact depend upon an uncertain event; i.e. provided it be truly a condition. Whence it is plain, that what is promised under what is called an impossible condition, is not obligatory, since such an additional clause hardly deserves to be termed a condition: † and those who have promised or stipulated what they foresaw could not be done, must be deemed either to have been in jest, or to have been mad: in the first of which cases, they must be judged not to have consented; and in the other of which they must be judged not to have had it in their power to have consented (§392).
What with regard to a base condition.But since base and dishonest things are justly reckoned amongst impossibles (§115), and what is promised upon an impossible condition is null and void, (§401); and since in general it is unlawful to make pacts about base or dishonest things (§398); hence we may justly infer, that base and dishonest conditions render a pact null;* and that he who promised upon such a condition is not bound to fulfil his promise; but that if it be fulfilled, he is justly liable to punishment for having done a crime; as is the other party likewise, being, by making such a condition, the moral cause of that crime (§112).
Whether one may not promise and covenant by another?Moreover, since one may assist another, or promote his advantage by means of a mandate, or by undertaking his business without a commission (§346), we must conclude, that it is the same whether one promise and make a pact in person, or another do it for him by his order. But since he who undertakes another’s business without a commission from him, is obliged to manage it to his advantage (§348), which he does not do, who is liberal of another’s goods, and gives any thing of another’s away without the owner’s consent (§400); the consequence is, that he who undertakes another’s business without a commission, may stipulate to that person; (so that this rule in the Roman law is not agreeable to natural equity, “That none can stipulate to another, unless he be under subjection to him,” §4. Inst. de inut. stip.) but he cannot promise for him without his knowledge; and such a promise does not bind the owner.
What hath been said of pacts extends likewise to contracts.Finally, because, as we observed in the beginning of this chapter, there is no distinction, by the law of nature, between pacts and contracts, both deriving all their subsistence and force from consent (385), it is evident, that all the rules which have been laid down in this chapter, do no less belong to contracts than to pacts; and that one does not proceed in a wrong method, who deduces the nature of contracts from the nature of pacts, and so begins by considering the latter.
By what means obligations arising from pacts and contracts are dissolved.
General axioms.We have already proved that pacts ought to be religiously fulfilled, and that nothing is more sacred than one’s pledged faith (§387); but by faith is meant nothing else but the performance of promises and pacts; (and therefore Cicero de off. 1. 6. justly, tho’ not exactly according to etymological rules, says, “Fidem appellatam, quia fiat, quod dictum est”).1 Hence then we infer, that those who covenant have then attained to their end, when they have satisfied the terms of their covenant, and what was agreed upon is done. But the end (which according to the philosophers, is first in intention, and last in execution) being obtained, or being of such a nature that it cannot be obtained (§397), the obligation arising from a promise or pact must cease.*
Of the first way by payment.Since an obligation arising from a pact or promise ceases when it is fulfilled, and that which was agreed upon is done (§405); the consequence is, that it ceases by payment, which is nothing else but the natural performance of the thing promised or agreed upon. But it is the same thing to him who is to be paid, by whom he be paid, provided the thing itself which was owing to him, or, (if it be a consumeable commodity) the equivalent be paid to him (§364); because thus the obligation to him is naturally discharged. So, for the same reason, it is evident, that he who is under an obligation by his pact, is not delivered from that obligation when another offers to fulfil it for him, if it be of such a nature as not to admit of being performed by another in his room.*
What, and to whom payment ought to be made.From the same principle we infer, that the species is to be restored, if the use or custody only of an inconsumeable thing was granted; and the same in kind and quantity, if the use of a consumeable thing was granted; that one thing cannot be obtruded upon a creditor for another against his will; and much less can he be forced to accept of a part for the whole; or to take payment later, or in another place than was agreed upon in the contract;† because, in all these cases, the thing in obligation is not naturally performed (§307). Further, it is plain, from the same principle, that we are to pay to no other but our creditor, provided the laws allow him to receive payment, or to him to whom he has ceded his right, or given commission to receive payment; for otherwise, tho’ the thing in obligation is performed, yet it is not fulfilled to him to whom one is debtor by the contract (§406).
The second way, Compensation.Again, because obligation ceases when a contract is fulfilled, and with respect to consumeable things as much is held for the same (§364); the consequence is, that obligation is removed by compensation, which is nothing else but balancing debt and credit, both of which have a certain value, one with another.*
What is just with regard to it.From the definition of compensation it is plain, that it can only take place among those who are mutually owing one to another, and therefore that another’s debt to me cannot be obtruded upon my creditor. Compensation has place with respect to consumeable things, which, since they do not regularly admit of price of fancy, have always a certain value; but species cannot be compensated by species, nor a thing of one kind by a thing of a different kind, nor personal performances by like performances, because all these things admit of a price of affection, and are of an uncertain value. In fine, compensation, even by unequal quantities, amounting to the sum, holds good, tho’ it does not appear reasonable to desire to compensate a clear debt by one not so clear or contended for.*
A third way, Acquittance.Moreover, since every one can abdicate his own right (§13), an obligation may likewise be dissolved by acquittance or voluntary remission, by which we understand a creditor’s voluntary renounc-ing his right of exacting a debt. And since it is the same whether one manifests his will by words, or other signs (§195), it is also the same whether one renounces his right to a debt by words or by deeds, as by giving up, tearing or burning the bond, provided some other intention of the creditor be not evident, or the bond be not destroyed by the creditor, but by another without his order, or be not rather accidentally lost, destroyed or effaced, than by the will of the creditor.†
A fourth way. Mutual disagreements.Moreover, since any one may resign his right, and remit a debt due to him (§410), it follows, that both parties in a bilateral contract, may by mutual agreement dissolve their contract, especially, since nothing is more natural, than that a thing may be dissolved in the way it was formed, l. 35. D. de reg. jur. But so, that this manner of dissolving an obligation cannot have place, if the positive laws ordain a contract to be indissolveable: such as matrimony now is amongst Christians, which among the Romans, might, as is well known, be dissolved by consent.
Whether obligation be dissolved by treachery?But because the obligation of a bilateral contract can only be dissolved by mutual consent (§411), the will of one of the parties does not dissolve it; and therefore the treachery of either party does not dissolve the contract, as Grotius of the rights of war and peace, 3. 19. 14. and Pufendorff of the law of nature and nations, 5. 11. 9. seem to think. For even he who does not fulfil his part, remains obliged to do it, because he cannot liberate himself by his own single will from an obligation, which can only, as hath been said, be dissolved by mutual consent, and the other has a right to compel him to fulfil his pact; tho’ if the latter will not use his right,* then the obligation ceases on both sides, because it is now removed by the consent of both (§411).
The fifth and sixth way. The term elapsed, and the condition not fulfilled.But seeing any circumstance may be added to a pact, and these circumstances must be observed (§401), it is evident that an obligation being conceived ex die, i.e. so that what is promised cannot be demanded till a certain day, it cannot be demanded before that time fixed: But if it be conceived in diem, within the compass of a certain time, then when that day comes, the obligation is dissolved ipso jure.* And the condition upon which the effect of a pact depended not taking place, obligation is dissolved for the same reason, unless one being ready to fulfil his part of the pact, is hindered either by his party or a third person, without whom the pact could not be fulfilled.
The seventh manner.Besides, there are obligations which are contracted with an eye to a certain person, and his qualities; but these are of such a nature, that they cannot be performed by other persons (§406): And therefore it is clear, that these obligations cannot pass to heirs and successors, and that they expire with the death of the promiser. Something like this we observed with respect to the obligation of a betrother, and of one who accepteth of a commission or trust. But this way of obligation’s being dissolved, does not belong to other obligations, which can be fulfilled out of the goods of the person obliged; because these, as admitting of performance in the room of the person obliged, are justly transmitted to heirs, as we have shewn in its proper place (§305).
The eighth change of state.The case is the same, if we are bound to perform any thing as being in a certain state. For it is the same, as if the promise had been made upon condition this state should continue. And therefore the condition failing, the obligation likewise ceases (§413): Thus he who contracted as a manager, his administration being at an end, is no more bound, the obligation being solely founded upon his state as administrator, l. ult. D. de Instit. act. l. 26. C. de adm. tut. But this is only true of obligations arising from pacts or positive law, and not of those which arise from the law of nature.*
The ninth.Moreover, since the obligation ceases if the end be such as cannot be obtained (§406), he must be delivered from his obligation who promised the species itself, if it be quite lost by accident, unless he promised it for a certain value, or as it were in part of payment, and the first obligation be not removed by renovation. Besides, since impossibility is no excuse, if one be in fault or delay, it is evident that he ought to bear the loss who is in fault or delay; and therefore, all that was said above concerning the risks in buying and selling takes place and might be repeated here (§353).
The tenth, novation and delegation.In fine, since one may pay by another (§407), and remit an obligation to another (§411), and parties may depart from a pact by mutual consent, and introduce a new obligation, which last kind of agreement we called above a mixed pact (§389), it follows, that any one may remit to another his former obligation, and accept a new one from him in its place, which is called renewal or novation; or if it be about matters subject to contention and dispute, transaction, and that a creditor may remit a debtor, upon condition that another, whom he approves of, be substituted in his place, which is called delegation, and that novation ought to be made in express words, or by the most evident signs, and that delegation must be done with the united consent of all concerned in the affair; and, in fine, that there is a great difference between delegation and cession, by which a creditor transfers an action against his debtor to another, without his debtor’s knowledge, and against his will.
[4. ] Harrington, “The Prerogative of Popular Government,” in The Political Works of James Harrington, bk. I, chap. III, 405–6.
[5. ] Ibid., 406–8.
[* ] Pufendorff, law of nature, &c. 5. 2. 4. has acknowledged this difference. And tho’ the Roman writers, because they use the words in another sense, and make another distinction between contracts and pacts, do not always make use of the word contrahere in speaking of things in commerce, or the word pacisci in speaking of things out of commerce; (for they say contrahere nuptias, l. 22. D. de ritu nupt. and pacisci ab aliquo numos, Val. Max. 9. 4. 2.) yet the word contractus is seldom or never used by them but to signify an agreement about things in commerce. This is so true, that the civilians (contra Donell. comm. juris, 13. 18.) [[Hugo Donellus (Hugues Doneau, 1527–91), French jurist and commentator on Roman civil law (Commentariorum juris civilis libri viginti octo) deny marriage to be a contract, because it relates to persons and their inseparable union, which are not things in commerce. We may therefore admit this difference between contracts and pacts.]]
[* ] The history of Abraham and Abimelech furnishes us with an example. The law of humanity and beneficence required, commanded both of them, Abraham especially, an upright pious man, who had received many favours from Abimelech, to behave kindly and graciously towards one another: natural reason obliged Abraham to gratitude: And yet we read, Genesis xxi. 23. that they bargained or covenanted friendship the one with the other. And thus the ancients obliged one another by covenants to perform what they were previously obliged to by the law of humanity and beneficence.
[† ] For as by pacts we in some measure supply our indigence; and we make covenants or pacts with others, that they may be obliged to render us those good offices of humanity and beneficence, which we can hardly expect from them without such pacts; it is plain that human life, and all the interests of social commerce, depend upon fidelity in fulfilling them. Therefore Cicero says justly, pro Q. Roscio comoedo, c. 6. “To break one’s faith is so much the more base and attrocious, that human life depends upon faith.” Hence unlying lips have always been reckoned a noble quality, as Euripides expresses it in Iphig. in Taur. v. 1064. [[Euripides, Iphigenia in Tauris.Καλóν τι γλωσσ’, ὅτῳ πίσις παρῇ.A faithful tongue is a beautiful thing.]]
[* ] We do not here use this argument, “That civil society could not subsist without faith and honesty.” For tho’ this argument proves the necessity of pacts, and of faithfulness amongst mankind, and Cicero hath elegantly demonstrated this necessity from this consideration, “That without some share of this justice, without faith and pacts among themselves, even those who live by villainy and wickedness could not subsist.” [[Cicero, De officiis (On duties), 2.11.40. Yet we have already shewn, that the origine of moral obligation is not to be derived from this principle of sociality (§75): And therefore we have rather chosen to give these two reasons in the preceding sections derived from our first principle of love.]]
[* ] This we add, in opposition to those who assert, that there is a perfect and an imperfect promise; the former of which they define to be a promise, wherein the promiser not only designs to be obliged, but actually transfers a right to another, to exact the thing promised from him as a debt: And the latter they define to be a promise wherein the promiser designs indeed to be obliged, but not in such a manner as that the thing promised may be exacted from him by the person to whom he promises it. To which kind they refer this way of promising, “I have purposed to give you such a thing, and I desire you may credit me.” As likewise, the promises of great or complaisant men, when they promise one a vote or a recommendation, Grotius of the rights, &c. 2. 2. 2. Pufendorff of the law of nature, &c. 3. 5. 5. But, 1. Such promises are often not pacts, but words or asseverations only, which Grotius and Pufendorff themselves distinguish from pacts: Yea, sometimes, they are but preparations to pacts, or what is called treaties. 2. It is a contradiction to say, one wills to promise, and yet does not will to give a right to exact from him. It is a fiction, by which, if it be admitted, I know not what pacts and promises may not be basely eluded, after the example of the Milanese, who being reproached with perjury, answered, “We swore indeed, but we did not promise to keep our oath.” Upon which answer, when Radevicus de gestis Friderici I. l. 2. c. 25. relates it, he justly says, “A suitable answer indeed, that their discourse might be of a piece with their profligate manners; and that they who lived perfidiously and infamously, might speak as wickedly as they lived, and their discourse might be as impure and villainous as their actions.” [[Radevicus, De rebus gestis Friderici I. Romanorum Imperatoris. 3. Finally, tho’ the promises of great men should sometimes be imperfect with respect to exaction, it does not follow from hence, that they are imperfect in respect of obligation.]]
[* ] According to the Romans, one was perfectly obliged by a bare pact; and they looked upon him who broke his word with no less contempt than other nations. Besides, they did not think the obligation imperfect which arose from such bare promises as were not confirmed by stipulation, when there was place for compensatio, 1. 6. D. de compens. constituto, l. 1. § pen. D. de pecun. const. novatio, l. 1. fin. D. de novat. fideijussoribus & pignoribus, l. 5. D. de pign. exceptio. l. 7. §5. l. 45. D. de pact. l. 10. l. 21. l. 28. C. eodem: Whence even what a promiser paid by mistake, could not be recovered condictione indebiti, l. 19. D. de cond. indeb. most of which cases are of such a nature that they can hardly be brought under the notion of imperfect obligation. The Romans only refused to grant an action upon bare pacts, because they had contrived a certain civil method which they ordered to be used in agreements or pacts, viz. stipulation. Wherefore, as in several countries the laws do not grant an action upon the pawning of immoveable things, unless the pawn be registered in the public acts, and yet these laws do not detract from the perfect obligation of pawn, which exerts itself in other ways; so neither did the Romans think that pacts did not produce a perfect obligation, because they did not grant an action upon bare pacts.
[† ] Hence by the Roman law, a nod was reckoned consent, l. 52. § ult. D. de obl. & act. Quintilian. declam. 247. Nay, submission and silence were reckoned consent, l. 51. pr. D. locat. l. 11. §4. 7. D. de interr. in jure fac. and elsewhere, which we likewise admit to be true, unless there be some probable reason why one might, tho’ he did not assent, rather choose to be silent, than to testify his dissent by words or deeds, e.g. if a son, afraid of a cruel father, being asked by him, whether he would marry Mavia whom he hated, should be silent, he cannot be thought to have consented. For what if a son, when such a father bids him go hang himself, should say nothing, would he therefore be deemed to have consented?
[* ] For tho’ in other cases, an action done in drunkenness be imputed to one whose drunkenness was voluntary (§50), yet here another sentence must be pronounced, and the degrees of drunkenness must be distinguished. For either the promiser was quite drunk, or only a little in liquor. Now, if he was quite drunk, that could not but be perceived by the party bargaining with him; and therefore, the latter either acted knavishly, or at least he is blameable for covenanting with such a person; so that there is no reason why, when the person has recovered from his drunkenness, such a contracter should have any right to demand the fulfilment of such a promise. But if the person be not quite drunk, his promise must be obligatory, because he was not quite incapable of judging what and to whom he promised.
[* ] By these rules may all the cases be resolved that are usually put upon this head. Thus, for instance, the pact will not be valid, if one promised to espouse a virgin, who is afterwards found to be pregnant, because the most prudent person might have mistaken in this case: Nor is the contract of marriage valid, if Afrania be betrothed to one in mistake, instead of Tullia whom he had in view, but did not know her name; because not having the same person in view, they did not consent to the same thing: In fine, if Tullia after betrothment is found to be Epileptical, or liable to any other hideous disease, the betrother shall not be bound in such a case, because he was ignorant of, or in an error about a circumstance which he could not easily discover, and which, if he had known, it is not probable he would have desired the marriage.
[† ] Hence none will say, that Jacob’s marriage with Lea was valid by the law of nature, since it was brought about by the fraudulence of Laban, Gen. xxix. 22. Nor was the custom of the country, by which Laban pretended to exculpate himself, sufficient to excuse him, or to oblige Jacob to submit, and suffer himself to be so maliciously deceived by his father-in-law. For that custom was not obligatory; and if it really had been received as a law, Jacob ought to have been pre-admonished of it, and Laban ought not to have promised Rachel to Jacob, but to have acquainted him, who was a stranger, that by the customs in Syria, the younger sister could not be betrothed before her elder sister. This transaction was therefore full of knavery, nor could it have been valid, had it not seemed better to Jacob, who was a stranger, to put up the injury, than to involve himself in an ambiguous suit.
[* ] For since imputability ceases, if one be neither the cause nor doer of a thing (§105), but in this case, he to whom a promise is made, is neither the author nor cause of the violence by which the other was forced to promise, the violence cannot be imputed to him. Thus, e.g. if any person in imminent danger from robbers or pirates, should hire a convoy at a high price, it would be in vain for him to pretend to his convoy, when the hire is demanded, that he promised it in fear of robbers. So Seneca decides the matter, Controv. 4. 27. [[Seneca, Controversiae, in Seneca (the Elder), Declamations.]]
[* ] For it is manifestly contradictory, that the law of nature should confirm pacts contrary to itself; that it should at the same time prohibit a pact, and command it to be fulfilled; or that a pact should be at one and the same time null, and yet obligatory. And therefore, a pact is departed from without perfidy, which could not be fulfilled without committing a crime. Nor does he deserve the character of faithful, who performs what he cannot do without incurring guilt. And for this reason the nurse gives an excellent answer to Dejanira, when she would have her to promise silence.Praestare, fateor, posse me tacitam fidem,Si scelere careat, interim scelus est fides.Seneca in Herc. Oeteo. Act. 2. v. 480.
[[Seneca, Hercules Oetaeus 2.480, in Seneca (the Younger), Tragoediae incertorum auctorum: “I confess that I can offer silent faith, if it is free from crime, meanwhile, faith is the crime.”
[* ] Nor can the maxim, volenti non fieri injuriam [[“there is no injury done to someone who is willing to suffer it”, be opposed to this doctrine. For we have already shewn, that this maxim does not take place when it is unlawful to consent. But it is unlawful to consent to what God hath prohibited by right reason, or by his revealed will. For this reason, tho’ Saul being wounded, had begged the young man to slay him, yet he was so far from escaping unpunished for consenting to this request, that David ordered him to be put to death as guilty of Regicide, 2 Sam. l. 15, &c.]]
[* ] For since he hath promised no more than his help and diligence, the other hath no right to exact more from him. And in general, as often as one stipulates something to himself, which he knew, or might have known not to be in another’s power; so often is the Promissor discharged from his promise, by using all his diligence. This is elegantly expressed by Seneca of benefits, 7. 13. “Some things are of such a nature, that they cannot be effectuated; and in some things it is to do them, to have done all that one could in order to effectuate them. If a physician did all in his power to cure one, he hath done his part. Even tho’ a person be condemned, an advocate deserves the reward of his eloquence, if he exerted all his skill. And praise is due to a General, tho’ he be vanquished, if he exerted all due prudence, diligence and courage.” [[The reference to bk. 7, chap. 13 is incorrect.]]
[1 ] Hertius (praeses) and Gärtner (respondens), Disquisitio juridica de obligatione alium daturum facturumve.
[ † ] For a condition is a certain circumstance expressed by the stipulating parties, by which the effect of the pact is suspended, as by an uncertain event. But seeing impossible does not mean an uncertain event, but an event which it is certain cannot happen, it is plain that such a circumstance does not suspend the effect of a pact, and therefore it is not a condition. Miltiades therefore cavilled, when he required the Lemnians to surrender their city according to their pact, because, coming from home he had arrived at Lemnos by a north wind, Nepos, Miltiad. c. 1. and 2. For the Lemnians meant Athens: nor could Miltiades understand the Lemnians in any other sense, since he at that time had no home but at Athens. The condition was impossible, and therefore rendered the pact null; especially seeing the Lemnians might easily have been perceived by Miltiades to have spoken in jest and to banter him.
[* ] For a particular reason, the Romans held conditions, whether physically or morally impossible, in testaments, as not written, not existing, §10. Inst. de her. inst. l. 1. l. 19. D. de condit. Inst. l. 8. & l. 20. D. de condit. & dem. For as it seemed absurd to indulge jesting and trifling to a testator in so serious an affair; so neither could the omission of an impossible action be deemed fraud in an heir, since he could never have consented to it (§115). And hence by the Roman law they would have got their legacies which were left to them by Eumolpus in Petron. Sat. cap. 91. tho’ they had not fulfilled the condition. [[Petronius, Satyricon, 141, p. 321. “All who have legacies by my testament, except my children, shall only have them upon condition that they cut my body into pieces, and eat it up publickly.” But since, in our opinion, the law of nature knows no other last-wills beside those which are done by way of pact (§291), all that hath been said of pacts is applicable to last-wills; so that the law of the Thebans was absurd, which ordered ridiculous conditions to be performed, as that one who had flattered a woman in order to be her heir, should carry her naked corps besmeared with oil upon his shoulders.Scilicet elabi si posset mortua, credo,Que nimium institerat viventi.Hor. Serm. 2. 5.
Horace, Satires II, 5.87: “Of course, I believe, if she could slip away from him when she was dead—he had pressed too hard on her while she was alive.”
[1. ] Cicero, De officiis (On duties), 1.7.23: “‘Good faith’ is so called because what is promised is ‘made good.’”
[* ] The civil law distinguishes between the ways by which obligation is removed ipso jure, in the nature of the thing, and the ways by which it is taken off by exception. When the obligation is cancelled by any deed of the parties contracting, as by paying, compensation, acquittance, &c. then it expires ipso jure by the nature of the thing. But if it be dissolved on the account of equity, it is said to be removed by an exception. But tho’ we do not think this distinction quite idle, or without foundation, (upon which see an excellent dissertation by Hen. Cocceius de eo quod fit ipso jure) [[H. von Cocceji (praeses) and Zaunschliffer (respondens), Discursus juridicus inauguralis de eo quod fit ipso jure yet it will easily be granted to us, not to be of the law of nature, by those who are acquainted with the judiciary affairs of the Romans, and the reason which induced them to make this distinction.]]
[* ] This happens as often as a person’s quality or virtue engaged one to make a pact with him. And therefore, if Titia be obliged by contract of marriage to marry Sempronius, she is not freed from this obligation, tho’ Sulpicia should be ever so ready and willing to fulfil the contract in her stead, because Sempronius chose Titia for her age, her figure, her personal good qualities, and it is not the same to him whom he espouses. On the contrary, to a lender it is the same, whether he receive the book he lent from the person who borrowed it, or from another with whom he had nothing to do: And it is the same to a creditor, whether he receive his money and interest from his debtor, or from a third person unknown to him, because thus the thing in obligation is naturally performed.
[† ] For tho’ necessity may require some indulgence to a debtor, and tho’ the laws of humanity may often oblige a creditor to remit a little of his rigour, we are here speaking of right; and by it pacts and contracts ought to be punctually and faithfully performed. “For,” as Cicero says, Off. 2. 24. “nothing cements or holds together in union all the parts of a society, as faith and credit, which can never be kept up, unless men are under a necessity of honestly paying what they owe one to another.” [[Cicero, De officiis 2.24.84.]]
[* ] There is yet another reason: For since he is paid who gets what was owing to him (§406), and he to whom a consumeable thing was owing, gets it when he gets as much (§363); it follows, that in such a case, he who any way receives as much as was owing, is paid; and therefore, compensation is but a short way of paying; and it is most reasonable that it should have the same effect as payment.
[* ] Much less does he act justly, who would compensate a clear debt by this consideration, that he hath abstained from injuring his creditor by unjust violence, because in this case plainly there is no mutual obligation. It was therefore a very odd way of compensation by which Vitellius satisfied his creditors, Dion. Cass. Hist. l. 65. p. 735. “When he went into Germany he was so embroiled in debt, that his creditors would scarce dismiss his person upon any security; but a little after, when he was made Emperor, and returned to Rome, they hid themselves. And he ordering them to be brought before him, told them that he had restored them safety for their money, and demanded back the bonds and instruments of contract.” [[Dio Cassius, Dio’s Roman History, vol. 8, bk. LXIV, pp. 229–31. As if a robber could reckon it for credit to a traveller, that when he had it in his power to murder him, he had only robbed him, without shedding one drop of his blood.]]
[† ] Thus the Romans might justly say, that their taxes and other fiscal debts were remitted to them, when Hadrian with that design burnt all their bonds and obligations, that by such a stupendous liberality he might win the affections of the people, Spartian. Had. cap. 6. [[Spartianus’ life of the Emperor Hadrian, included in vol. 3 of Boxhorn, Historiae Augustae scriptores Latini minores. But a debtor would most absurdly conclude so, if his creditor should deliver him his bond in order that it might be drawn up in a new and better form, or if his bond was burnt by accidental fire. And hence we may see, why it hath always been pronounced most iniquitous in the Roman people, for one plunged in debt, novas tabulas postulare, i.e., to demand a remission of his debt from the magistrates or tribunes of a turbulent genius. For thus the acquittance came not from the creditors, but from magistrates profuse of what did not belong to them, and whose office and duty it was to render justice to creditors, instead of liberating debtors against the will of creditors. This practice, of most pernicious example, was first put in use by Sylla, Liv. Ep. l. 88. And that Cataline expected the same, and that the people expected the same from Caesar is manifest, tho’ men of that turbulent spirit were then disappointed, Salust. Catil. cap. 21. Caesar de bello civili, 3. 1. Sueton. Jul. cap. 42. Plutarch. Solon. p. 86.]]
[* ] But either can do that, if the other will not fulfil the pact. For in every bilateral contract, this condition is supposed, that the one is obliged to perform what he promised, if the other performs his part (§379). If one therefore does not satisfy his promise, the condition fails upon which the obligation depended (§401), and therefore the obligation of both ceases.
[* ] Therefore, this rule of the Roman lawyers hath too much of subtlety in it, viz. ex contractu stricti juris non posse ad tempus deberi, &c. §3. Inst. de verb. oblig. l. 4. pr. D. de serv. l. 44. §1. D. de obl. & act.
[* ] Thus the special duties owing to a city by one as consul, cease so soon as one ceases to be consul. Thus likewise the duties of a son, as far as they proceed from positive law, cease, so soon as the son is no longer under paternal power. But the duties to which the law of nature binds him, such as obedience, reverence, gratitude, remain after emancipation, nor can they be refused to parents by children no longer under paternal power.