The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• A Note On the Text
• Acknowledgments
• A Methodical System of Universal Law: Or, the Laws of Nature and Nations, With Supplements and a Discourse
• Book I: Of the Law of Nature
• Preface
• Chapter I: Concerning the Origine and Foundation of the Law of Nature and Nations.
• Remarks On This Chapter
• Chapter II: Concerning the Nature and Distinguishing Qualities Or Characteristics of Human Actions.
• Remarks On This Chapter
• Chapter III: Of the Rule of Human Actions, and the True Principle of the Law of Nature.
• Remarks On This Chapter
• Chapter IV: Of the Application of This Rule to Actions, and the Differences of Actions Proceeding From Thence.
• Remarks On This Chapter
• Chapter V: Of the Duties of Man to God.
• Remarks On This Chapter
• Chapter VI: Of the Duties of Man to Himself.
• Remarks On This Chapter
• Chapter VII: Concerning Our Absolute and Perfect Duties Towards (others In General), and of Not Hurting Or Injuring Others (in Particular).
• Remarks On This Chapter
• Chapter VIII: Concerning Our Imperfect Duties Towards Others.
• Remarks On This Chapter
• Chapter IX: Concerning Our Hypothetical Duties Towards Others, and the Original Acquisition of Dominion Or Property.
• Remarks On This Chapter
• Chapter X: Of Derivative Acquisitions of Dominion Or Property Made During the Life of the First Proprietor.
• Chapter XI: Of Derivative Acquisitions By Succession to Last-will and to Intestates.
• Chapter XII: Concerning the Rights and Duties Which Arise From Property Or Dominion.
• Remarks On This Chapter
• Chapter XIII: Concerning Things Belonging to Commerce.
• Remarks On This Chapter
• Chapter XIV: Concerning Pacts.
• Chapter XV: By What Means Obligations Arising From Pacts and Contracts Are Dissolved.
• Remarks On This Book
• Book II: Of the Law of Nations
• Chapter I: Concerning the Natural and Social State of Man.
• Remarks On This Chapter
• Chapter II: Of the Duties Belonging to the Matrimonial State, Or Society.
• Chapter III: Of the Duties That Ought to Be Observed In a Society of Parents and Children.
• Chapter IV: Concerning the Duties Belonging to Masters and Servants, and That Despotical Society.
• Chapter V: Of the Complex Society Called a Family, and the Duties to Be Observed In It.
• Remarks On This Chapter
• Chapter VI: Of the Origine of Civil Society, Its Constitution and Qualities, Or Properties.
• Remarks On This Chapter
• Chapter VII: Of Sovereignty, and the Ways of Acquiring It.
• Remarks On This Chapter
• Chapter VIII: Concerning the Immanent Rights of Majesty, and the Just Exercise of Them.
• Chapter IX: Concerning the Transeunt Rights of Sovereignty.
• Chapter X: Of the Duties of Subjects.
• A Supplement Concerning the Duties of Subjects and Magistrates.
• A Discourse Upon the Nature and Origine of Moral and Civil Laws, &c.
• Section I
• Section Ii
• Section Iii
• Section Iv
• Section V
• Section Vi
• Section Vii
• Section Viii
• Section Ix
• Section X
• Section Xi
• Section Xii
• Section Xiii
• Section Xiv
• Section Xv
• Bibliography
• Primary Sources
• Secondary Literature

CHAPTER XIV

Concerning pacts.

SECTION CCCLXXXV

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.

SECTION CCCLXXXVI

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.

SECTION CCCLXXXVII

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.†

SECTION CCCLXXXVIII

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.*

SECTION CCCLXXXIX

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.*

SECTION CCCXC

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.*

SECTION CCCXCI

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).

SECTION CCCXCII

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.

SECTION CCCXCIII

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.*

SECTION CCCXCIV

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.

SECTION CCCXCV

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).

SECTION CCCXCVI

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.

SECTION CCCXCVII

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).

SECTION CCCXCVIII

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.*

SECTION CCCXCIX

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.*

SECTION CCCC

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

SECTION CCCCI

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).

SECTION CCCCII

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).

SECTION CCCCIII

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.

SECTION CCCCIV

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.

[* ] 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.

[* ] 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.

[* ] 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.