Front Page Titles (by Subject) CHAPTER XV: By what means obligations arising from pacts and contracts are dissolved. - A Methodical System of Universal Law: Or, the Laws of Nature and Nations
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CHAPTER XV: By what means obligations arising from pacts and contracts are dissolved. - 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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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.
Remarks on This Book
Our Author may perhaps be thought by some to have mentioned several cases; as for instance, with regard to alluvion, casting up of islands, &c. which are rather curious than useful. But let me answer to such objections against our Author, (Grotius, Pufendorff, and other writers on the law of nature), 1. That of as little use as these questions may appear to us, they were not so in other countries, such as Egypt, where, as Strabo observes, Geograph. l. 17. p. 1139. edit. Amst. “They were obliged to be particularly exact and nice in the division of their lands, because of the frequent confusion of boundaries, which the Nile, by its overflowing occasioned, taking from one part, and adding to another, changing the very form and look of places, and entirely concealing those marks that should distinguish one man’s property from another’s. For which reason, there was a necessity for their often making new surveys, &c.”2 And it is so still in Holland and other countries, in some measure; nay some such cases may and do happen in every country, where there are large and impetuous rivers, &c. 2. But however rarely any such cases may happen, yet as one cannot be an expert, ready natural philosopher, without having run through many possible cases, and determined how gravity, elasticity, or any other physical powers, would operate in these circumstances according to their laws of working; and therefore, such exercise is by no means useless, but highly useful: So for the same reason, one cannot be ready and expert in the moral science, so as to be able readily to determine himself, or advise others how to act upon every emergency, without having practised himself in resolving all, or very many possible cases, i.e. in determining what is requisite in such and such cases, in order to do the least harm, and render every one his due. Thus, it is evident, must one prepare himself for being able to judge readily what ought to be the general rules of justice in states with regard to different cases. Thus alone can one prepare himself for judging of cases in enacting, abrogating or mending laws. And indeed the proper way of studying the laws of any particular country, is by comparing them all along with the dictates or the laws of nature concerning the same cases, in an orderly way, proceeding from simple to more and more complex cases gradually. Whence it is evident, that one well versed in the knowledge of natural law, can never be at a loss to find out what ought to be the general positive law in certain cases, and how positive law ought to be interpreted in cases, which, tho’ not expresly excepted in a law, which must be general, yet are in the nature of things excepted. 3. The same thing holds with respect to the duties of societies, one towards another, for the laws by which particular persons ought to regulate their conduct in all pacts, covenants, bargains or contracts, under whatsoever denominations they are brought by the doctors of laws, are the very rules by which societies ought likewise to regulate their conduct one towards another; societies being, as we shall find our author himself observing afterwards, moral persons. Whence it follows, that the former rules or laws being determined, it cannot be difficult to fix or determine the latter. And indeed our Author having fixed the former in such a manner, that there was almost no occasion to differ from him, and but very little occasion to add to him; in following him while he deduces and fixes the other in the succeeding book, there will be very little need of our adding any remarks, except in the affair of government, that not having been distinctly enough handled by any writer of a system of the law of nature and nations, for this reason that, as we have already had occasion to observe, none of them has ever considered government in its natural procreation, or its natural causes. Nor do I know any author by whom that hath been done but our Harrington, tho’, as he himself shews, the principles upon which he reasons were not unknown neither to ancient historians, nor to ancient writers on morals and politics. It will not therefore be a disadvantage to young readers, for whom this translation, with the remarks, is chiefly intended, in order to initiate them into this useful science, if we, upon proper occasions, in the following book concerning the laws of nations, add a few things to set the more important questions about government in a clear light. On this subject, we of this nation, and we only, dare write freely. For our happy constitution is the blessed effect of thinking freely on this matter: and it must last uncorrupted, unimpaired, while we continue to exercise the right to which we owe it: A right without the exercise of which men are not indeed men. For who will say that slaves, who know not the price of liberty, or who know not that they are slaves, deserve to be called men!
The end of the first book.
OF THE LAW OF NATIONS
A METHODICAL SYSTEM
From Certain Principles, and applied
to Proper Cases.
Written in Latin by the celebrated
JO. GOT. HEINECCIUS,
Counsellor of State to the King of Prussia,
and Professor of Philosophy at Hall.
Translated, and illustrated with Notes and Supplements,
By GEORGE TURNBULL, LL. D.
To which is added,
A DISCOURSE upon the Nature and Origine of Moral and Civil Laws; in which they are deduced, by an Analysis of the human Mind in the experimental Way, from our internal Principles and Dispositions.
Natura enim juris ab hominis repetenda natura est.1Cic.
Printed for J. Noon, at the White-Hart, near Mercer’s Chapel, Cheapside. MDCCXLI.
[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.
[2. ] The edition used here is presumably Strabo, Rerum geographicarum libri XVII (Amsterdam, 1707).
[1. ] The nature of law has to be derived from human nature.