Of all the Rights capable of being acquired by Contract.
Division of Contracts. Juridical Conceptions of Money and A Book.
It is reasonable to demand that a metaphysical Science of Right shall completely and definitely determine the members of a logical Division of its Conceptions à priori, and thus establish them in a genuine System. All empirical Division, on the other hand, is merely fragmentary Partition, and it leaves us in uncertainty as to whether there may not be more members still required to complete the whole sphere of the divided Conception. A Division that is made according to a Principle à priori may be called, in contrast to all empirical Partitions, a dogmatic Division.
Every Contract, regarded in itself objectively, consists of two juridical Acts: the Promise and its Acceptance. Acquisition by the latter, unless it be a pactum re initum which requires Delivery, is not a part, but the juridically necessary Consequence of the Contract. Considered again subjectively, or as to whether the Acquisition, which ought to happen as a necessary Consequence according to Reason, will also follow, in fact, as a physical Consequence, it is evident that I have no Security or Guarantee that this will happen by the mere Acceptance of a Promise. There is therefore something externally required connected with the mode of the Contract, in reference to the certainty of Acquisition by it; and this can only be some element completing and determining the Means necessary to the attainment of Acquisition as realizing the purpose of the Contract. And in his connection and behoof, three Persons are required to intervene—the Promiser, the Acceptor, and the Cautioner or Surety. The importance of the Cautioner is evident; but by his intervention and his special Contract with the Promiser, the Acceptor gains nothing in respect of the Object, but the means of Compulsion that enable him to obtain what is his own.
According to these rational Principles of logical Division, there are properly only three pure and simple Modes of Contract. There are, however, innumerable mixed and empirical Modes, adding statutory and conventional Forms to the Principles of the Mine and Thine that are in accordance with rational Laws. But they lie outside of the circle of the Metaphysical Science of Right, whose Rational Modes of Contract can alone be indicated here.
All Contracts are founded upon a purpose of Acquisition, and are either
- A. Gratuitous Contracts,with unilateral Acquisition; or
- B. Onerous Contracts,with reciprocal Acquisition; or
- C. Cautionary Contracts,with no Acquisition, but only Guarantee of what has been already acquired. These Contracts may be gratuitous on the one side, and yet, at the same time, onerous on the other.
A.The Gratuitous Contracts (pacta gratuita) are—
- 1. Depositation (depositum), involving the Preservation of some valuable deposited in Trust.
- 2. Commodate (commodatum), a Loan of the use of a Thing.
- 3. Donation (donatio), a free Gift.
B.The Onerous Contracts, are Contracts either of Permutation or of Hiring.
- I. Contracts of Permutation or Reciprocal Exchange (permutatio late sic dicta):
- 1. Barter, or strictly real Exchange (permutatio stricte sic dicta). Goods exchanged for Goods.
- 2. Purchase and Sale (emptio venditio). Goods exchanged for Money.
- 3. Loan (mutuum). Loan of a fungible under condition of its being returned in kind: Corn for Corn, or Money for Money.
- II. Contracts of Letting and Hiring (locatio conductio):
- 1. Letting of a Thing on Hire to another person who is to make use of it (locatio rei). If the Thing can only be restored in specie, it may be the subject of an Onerous Contract combining the consideration of Interest with it (pactum usurarium).
- 2. Letting of Work on Hire (locatio operæ). Consent to the use of my Powers by another for a certain Price (merces). The Worker under this Contract is a hired Servant (mercenarius).
- 3. Mandate (mandatum). The Contract of Mandate is an engagement to perform or execute a certain business in place and in name of another person. If the action is merely done in the place of another, but not, at the same time, in his name, it is performance without Commission (gestio negotii); but if it is (rightfully) performed in name of the other, it constitutes Mandate, which as a Contract of Procuration is an onerous Contract (mandatum onerosum).
C.The Cautionary Contracts (cautiones) are:—
- 1. Pledge (pignus). Caution by a Moveable deposited as security.
- 2. Suretyship (fidejussio). Caution for the fulfilment of the promise of another.
- 3. Personal Security (præstatio obsidis). Guarantee of Personal Performance.
This List of all the modes in which the property of one Person may be transferred or conveyed to another, includes conceptions of certain objects or Instruments required for such transference (translatio). These appear to be entirely empirical, and it may therefore seem questionable whether they are entitled to a place in a Metaphysical Science of Right. For, in such a Science the Divisions must be made according to Principles à priori; and hence the matter of the juridical relation, which may be conventional, ought to be left out of account, and only its Form should be taken into consideration.
Such conceptions may be illustrated by taking the instance of Money, in contradistinction from all other exchangeable things as Wares and Merchandise; or by the case of a Book. And considering these as illustrative examples in this connection, it will be shown that the conception of Money as the greatest and most useable of all the Means of human intercommunication through Things, in the way of Purchase and Sale in commerce, as well as that of Books as the greatest Means of carrying on the interchange of Thought, resolve themselves into relations that are purely intellectual and rational. And hence it will be made evident that such Conceptions do not really detract from the purity of the given Scheme of pure Rational Contracts, by empirical admixture.
Illustration of Relations of Contract by the Conceptions of Money and A Book.
What is Money?
Money is a thing which can only be made use of, by being alienated or exchanged. This is a good Nominal Definition, as given by Achenwall; and it is sufficient to distinguish objects of the Will of this kind from all other objects. But it gives us no information regarding the rational possibility of such a thing as money is. Yet we see thus much by the Definition: (1) that the Alienation in this mode of human intercommunication and exchange is not viewed as a Gift, but is intended as a mode of reciprocal Acquisition by an Onerous Contract; and (2) that it is regarded as a mere means of carrying on Commerce, universally adopted by the people, but having no value as such of itself, in contrast to other Things as mercantile Goods or Wares which have a particular value in relation to special wants existing among the people. It therefore represents all exchangeable things.
A bushel of Corn has the greatest direct value as a means of satisfying human wants. Cattle may be fed by it; and these again are subservient to our nourishment and locomotion, and they even labour in our stead. Thus by means of corn men are multiplied and supported, who not only act again in reproducing such natural products, but also by other artificial products they can come to the relief of all our proper wants. Thus are men enabled to build dwellings, to prepare clothing, and to supply all the ingenious comforts and enjoyments which make up the products of industry.—On the other hand, the value of Money is only indirect. It cannot be itself enjoyed, nor be used directly for enjoyment; it is, however, a Means towards this, and of all outward things it is of the highest utility.
We may found a Real Definition of Money provisionally upon these considerations. It may thus be defined as the universal means of carrying on theIndustryof men in exchanging intercommunications with each other. Hence national Wealth, in so far as it can be acquired by means of Money, is properly only the sum of the Industry or applied Labour with which men pay each other, and which is represented by the Money in circulation among the people.
The Thing which is to be called Money must, therefore, have cost as much Industry to produce it, or even to put it into the hands of others, as may be equivalent to the Industry or Labour required for the acquisition of the Goods or Wares or Merchandise, as natural or artificial products, for which it is exchanged. For if it were easier to procure the material which is called Money than the goods that are required, there would be more Money in the market than goods to be sold; and because the Seller would then have to expend more labour upon his goods than the Buyer on the equivalent, the Money coming in to him more rapidly, the Labour applied to the preparation of goods and Industry generally, with the industrial productivity which is the source of the public Wealth, would at the same time dwindle and be cut down. — Hence Bank Notes and Assignations are not to be regarded as Money although they may take its place by way of representing it for a time; because it costs almost no Labour to prepare them, and their value is based merely upon the opinion prevailing as to the further continuance of the previous possibility of changing them into Ready Money. But on its being in any way found out that there is not Ready Money in sufficient quantity for easy and safe conversion of such Notes or Assignations, the opinion gives way, and a fall in their value becomes inevitable. Thus the industrial Labour of those who work the Gold and Silver Mines in Peru and Mexico—especially on account of the frequent failures in the application of fruitless efforts to discover new veins of these precious metals—is probably even greater than what is expended in the manufacture of Goods in Europe. Hence such mining Labour, as unrewarded in the circumstances, would be abandoned of itself, and the countries mentioned would in consequence soon sink into poverty, did not the Industry of Europe, stimulated in turn by these very metals, proportionally expand at the same time so as constantly to keep up the zeal of the Miners in their work by the articles of luxury thereby offered to them. It is thus that the concurrence of Industry with Industry, and of Labour with Labour, is always maintained.
But how is it possible that what at the beginning constituted only Goods or Wares, at length became Money? This has happened wherever a Sovereign as a great and powerful consumer of a particular substance, which he at first used merely for the adornment and decoration of his servants and court, has enforced the tribute of his subjects in this kind of material. Thus it may have been Gold, or Silver, or Copper, or a species of beautiful shells called Cowries, or even a sort of mat called Makutes, as in Congo; or Ingots of Iron, as in Senegal; or Negro Slaves, as on the Guinea Coast. When the Ruler of the country demanded such things as imposts, those whose Labour had to be put in motion to procure them were also paid by means of them, according to certain regulations of commerce then established, as in a Market or Exchange. As it appears to me, it is only thus that a particular species of goods came to be made a legal means of carrying on the industrial labour of the Subjects in their commerce with each other, and thereby forming the medium of the national Wealth. And thus it practically became Money.
The Rational Conception of Money, under which the empirical conception is embraced, is therefore that of a thing which, in the course of the public permutation or Exchange of possessions (permutatio publica), determines the Price of all the other things that form products or Goods — under which term even the Sciences are included, in so far as they are not taught gratis to others. The quantity of it among a people constitutes their Wealth (opulentia). For Price (pretium) is the public judgment about the Value of a thing, in relation to the proportionate abundance of what forms the universal representative means in circulation for carrying on the reciprocal interchange of the products of Industry or Labour. The precious metals, when they are not merely weighed but also stamped or provided with a sign indicating how much they are worth, form legal Money, and are called Coin.
According to Adam Smith, ‘Money has become, in all civilised nations, the universal instrument of Commerce, by the intervention of which Goods of all kinds are bought and sold or exchanged for one another.’—This Definition expands the empirical conception of Money to the rational idea of it, by taking regard only to the implied form of the Reciprocal Performances in the Onerous Contracts, and thus abstracting from their matter. It is thus conformable to the conception of Right in the Permutation and Exchange of the Mine and Thine generally (commutatio late sic dicta). The Definition, therefore, accords with the representation in the above Synopsis of a Dogmatic Division of Contracts à priori, and consequently with the Metaphysical Principle of Right in general.
What is a Book?
A Book is a Writing which contains a Discourse addressed by some one to the Public, through visible signs of Speech. It is a matter of indifference to the present considerations whether it is written by a pen or imprinted by types, and on few or many pages. He who speaks to the Public in his own name, is the Author. He who addresses the writing to the Public in the name of the Author, is the Publisher. When a Publisher does this with the permission or authority of the Author, the act is in accordance with Right, and he is the rightful Publisher; but if this is done without such permission or authority, the act is contrary to Right, and the Publisher is a counterfeiter or unlawful Publisher. The whole of a set of Copies of the original Document, is called an Edition.
The unauthorized Publishing of Books is contrary to the Principles of Right, and is rightly prohibited.
A Writing is not an immediate direct presentation of a conception, as is the case, for instance, with an Engraving that exhibits a Portrait, or a Bust or Caste by a Sculptor. It is a Discourse addressed in a particular form to the Public; and the Author may be said to speak publicly by means of his Publisher. The Publisher, again, speaks by the aid of the Printer as his workman (operarius), yet not in his own name,—for otherwise he would be the Author,—but in the name of the Author; and he is only entitled to do so in virtue of a Mandate given him to that effect by the Author.—Now the unauthorized Printer and Publisher speaks by an assumed authority in his Publication; in the name indeed of the Author, but without a Mandate to that effect (gerit se mandatarium absque mandato). Consequently such an unauthorized Publication is a wrong committed upon the authorized and only lawful Publisher, as it amounts to a pilfering of the Profits which the latter was entitled and able to draw from the use of his proper Right (furtum usus). Unauthorized Printing and Publication of Books is therefore forbidden—as an act Counterfeit and Piracy—on the ground of Right.
There seems, however, to be an impression that there is a sort of common Right to print and publish Books; but the slightest reflection must convince any one that this would be a great injustice. The reason of it is found simply in the fact that a Book, regarded from one point of view, is an external product of mechanical art (opus mechanicum), that can be imitated by any one who may be in rightful possession of a Copy; and it is therefore his by a Real Right. But from another point of view, a Book is not merely an external Thing, but is a Discourse of the Publisher to the public, and he is only entitled to do this publicly under the Mandate of the Author (præstatio operæ); and this constitutes a Personal Right. The error underlying the impression referred to, therefore, arises from an interchange and confusion of these two kinds of Right in relation to Books.
Confusion of Personal Right and Real Right.
The confusion of Personal Right with Real Right may be likewise shown by reference to a difference of view in connection with another Contract, falling under the head of Contracts of Hiring (B. II. 1), namely, the Contract of Lease (jus incolatus). The question is raised as to whether a Proprietor when he has sold a house or a piece of ground held on lease, before the expiry of the period of Lease, was bound to add the condition of the continuance of the Lease to the Contract of Purchase; or whether it should be held that ‘Purchase breaks Hire,’ of course under reservation of a period of warning determined by the nature of the subject in use.—In the former view, a house or farm would be regarded as having a Burden lying upon it, constituting a Real Right acquired in it by the Lessee; and this might well enough be carried out by a clause merely indorsing or ingrossing the Contract of Lease in the Deed of Sale. But as it would no longer then be a simple Lease, another Contract would properly be required to be conjoined, a matter which few Lessors would be disposed to grant. The proposition, then, that ‘Purchase breaks Hire’ holds in principle; for the full Right in a Thing as a Property, overbears all Personal Right which is inconsistent with it. But there remains a Right of Action to the Lessee, on the ground of a Personal Right for indemnification on account of any loss arising from breaking of the Contract. [See Supplementary Explanations, IV.]
The Ideal Acquisition of external Objects of the Will.
The Nature and Modes of Ideal Acquisition.
I call that mode of Acquisition ideal which involves no Causality in time, and which is founded upon a mere Idea of pure reason. It is nevertheless actual, and not merely imaginary Acquisition; and it is not called real only because the Act of Acquisition is not empirical. This character of the Act arises from the peculiarity that the Person acquiring, acquires from another who either is not yet, and who can only be regarded as a possible Being, or who is just ceasing to be, or who no longer is. Hence such a mode of attaining to Possession is to be regarded as a mere practical Idea of Reason.
There are three Modes of Ideal Acquisition:—
I. Acquisition by Usucapion;
II. Acquisition by Inheritance or Succession;
III. Acquisition by Undying Merit (meritum immortale), or the Claim by Right to a good name at Death.
These three Modes of Acquisition can, as a matter of fact, only have effect in a public juridical state of existence, but they are not founded merely upon the Civil Constitution or upon arbitrary Statutes; they are already contained à priori in the conception of the state of Nature, and are thus necessarily conceivable prior to their empirical manifestation. The Laws regarding them in the Civil Constitution ought to be regulated by that rational Conception.
I. Acquisition by Usucapion.
(Acquisitio per Usucapionem.)
I may acquire the Property of another merely by long possession and use of it (Usucapio). Such Property is not acquired, because I may legitimately presume that his Consent is given to this effect (per consensum præsumptum); nor because I can assume that as he does not oppose my Acquisition of it, he has relinquished or abandoned it as his (rem derelictam). But I acquire it thus, because even if there were any one actually raising a claim to this Property as its true Owner, I may exclude him on the ground of my long Possession of it, ignore his previous existence, and proceed as if he existed during the time of my Possession as a mere abstraction, although I may have been subsequently apprized of his reality as well as of his claim. This Mode of Acquisition is not quite correctly designated Acquisition by Prescription (per præscriptionem); for the exclusion of all other claimants is to be regarded as only the Consequence of the Usucapion; and the process of Acquisition must have gone before the Right of Exclusion. The rational possibility of such a Mode of Acquisition, has now to be proved.
Any one who does not exercise a continuous possessory activity (actus possessorius) in relation to a Thing as his, is regarded with good Right as one who does not at all exist as its Possessor. For he cannot complain of lesion so long as he does not qualify himself with a Title as its Possessor. And even if he should afterwards lay claim to the Thing when another has already taken possession of it, he only says he was once on a time Owner of it, but not that he is so still, or that his Possession has continued without interruption as a juridical fact. It can, therefore, only be by a juridical process of Possession, that has been maintained without interruption and is proveable by documentary fact, that any one can secure for himself what is his own after ceasing for a long time to make use of it.
For, suppose that the neglect to exercise this possessory activity had not the effect of enabling another to found upon his hitherto lawful, undisputed and bona fide Possession, an irrefragable Right to continue in its possession so that he may regard the thing that is thus in his Possession as acquired by him. Then no Acquisition would ever become peremptory and secured, but all Acquisition would only be provisory and temporary. This is evident on the ground that there are no historical Records available to carry the investigation of a Title back to the first Possessor and his act of Acquisition.—The Presumption upon which Acquisition by Usucapion is founded is, therefore, not merely its conformity to Right as allowed and just, but also the presumption of its being Right (præsumtio juris et de jure), and its being assumed to be in accordance with compulsory Laws (suppositio legalis). Any one who has neglected to embody his possessory Act in a documentary Title, has lost his Claim to the Right of being Possessor for the time; and the length of the period of his neglecting to do so—which need not necessarily be particularly defined—can be referred to only as establishing the certainty of this neglect. And it would contradict the Postulate of the Juridically Practical Reason to maintain that one hitherto unknown as a Possessor, and whose possessory activity has at least been interrupted, whether by or without fault of his own, could always at any time reacquire a Property; for this would be to make all Ownership uncertain (Dominia rerum incerta facere).
But if he is a member of the Commonwealth or Civil Union, the State may maintain his Possession for him vicariously, although it may be interrupted as private Possession; and in that case the actual Possessor will not be able to prove a Title of Acquisition even from a first occupation, nor to found upon a Title of Usucapion. But in the state of Nature Usucapion is universally a rightful ground of holding, not properly as a juridical mode of requiring a Thing, but as a ground for maintaining oneself in possession of it where there are no Juridical Acts. A release from juridical claims is commonly also called Acquisition. The Prescriptive Title of the older Possessor, therefore, belongs to the sphere of Natural Right (est juris naturæ). [See Supplementary Explanations, VI.]
II. Acquisition by Inheritance.
Inheritance is constituted by the transfer (translatio) of the Property or goods of one who is dying to a Survivor, through the consent of the Will of both. The Acquisition of the Heir who takes the Estate (hæredis instituti) and the Relinquishment of the Testator who leaves it, being the acts that constitute the Exchange of the Mine and Thine, take place in the same moment of time—in articulo mortis—and just when the Testator ceases to be. There is therefore no special Act of Transfer (translatio) in the empirical sense; for that would involve two successive acts, by which the one would first divest himself of his Possession, and the other would thereupon enter into it. Inheritance as constituted by a simultaneous double Act is, therefore, an ideal Mode of Acquisition. Inheritance is inconceivable in the State of Nature without a Testamentary Disposition (dispositio ultimæ voluntatis); and the question arises as to whether this mode of Acquisition is to be regarded as a Contract of Succession, or a unilateral Act instituting an Heir by a Will (testamentum). The determination of this question depends on the further question, Whether and How, in the very same moment in which one individual ceases to be, there can be a transition of his Property to another Person. Hence the problem as to how a mode of Acquisition by Inheritance is possible, must be investigated independently of the various possible forms in which it is practically carried out, and which can have place only in a Commonwealth.
‘It is possible to acquire by being instituted or appointed Heir in a Testamentary Disposition.’ For the Testator Caius promises and declares in his last Will to Titius, who knows nothing of this Promise, to transfer to him his Estate in case of death, but thus continuing as long as he lives sole Owner of it. Now by a mere unilateral act of Will, nothing can in fact be transmitted to another person, as in addition to the Promise of the one party there is required Acceptance (acceptatio) on the part of the other, and a simultaneous bilateral act of Will (voluntas simultanea) which, however, is here awanting. So long as Caius lives, Titius cannot expressly accept in order to enter on Acquisition, because Caius has only promised in case of death; otherwise the Property would be for a moment at least in common possession, which is not the Will of the Testator.—However, Titius acquires tacitly a special Right to the Inheritance as a Real Right. This is constituted by the sole and exclusive Right to accept the Estate (jus in re jacente), which is therefore called at that point of time a hæreditas jacens. Now as every man—because he must always gain and never lose by it—necessarily, although tacitly, accepts such a Right, and as Titius after the death of Caius is in this position, he may acquire the succession as Heir by Acceptance of the Promise. And the Estate is not in the meantime entirely without an Owner (res nullius), but is only in abeyance or vacant (vacua); because he has exclusively the Right of Choice as to whether he will actually make the Estate bequeathed to him, his own or not.
Hence Testaments are valid according to mere Natural Right (sunt juris naturæ). This assertion, however, is to be understood in the sense that they are capable and worthy of being introduced and sanctioned in the Civil state, whenever it is instituted. For it is only the Common Will in the Civil state that maintains the possession of the Inheritance or Succession, while it hangs between Acceptance or Rejection and specially belongs to no particular individual. [See Supplementary Explanations, VII.]
III. The continuing Right of a good Name after Death.
(Bona fama Defuncti.)
It would be absurd to think that a dead Person could possess anything after his death, when he no longer exists in the eye of the Law, if the matter in question were a mere Thing. But a good Name is a congenital and external, although merely ideal possession, which attaches inseparably to the individual as a Person. Now we can and must abstract here from all consideration as to whether the Persons cease to be after death or still continue as such to exist; because in considering their juridical relation to others, we regard Persons merely according to their humanity and as rational Beings (homo noumenon). Hence any attempt to bring the Reputation or good Name of a Person into evil and false repute after death, is always questionable, even although a well-founded charge may be allowed—for to that extent the brocard ‘De mortuis nil nisi bene’ is wrong. Yet to spread charges against one who is absent and cannot defend himself, shows at least a want of magnanimity.
By a blameless life and a death that worthily ends it, it is admitted that a man may acquire a (negatively) good reputation constituting something that is his own, even when he no longer exists in the world of sense as a visible Person (homo phænomenon). It is further held that his Survivors and Successors—whether relatives or strangers—are entitled to defend his good Name as a matter of Right, on the ground that unproved accusations subject them all to the danger of similar treatment after death. Now that a Man when dead can yet acquire such a Right is a peculiar and, nevertheless, an undeniable manifestation in fact, of the à priori law-giving Reason thus extending its Law of Command or Prohibition beyond the limits of the present life. If some one then spreads a charge regarding a dead person that would have dishonoured him when living, or even made him despicable, any one who can adduce a proof that this accusation is intentionally false and untrue, may publicly declare him who thus brings the dead person into ill repute to be a Calumniator, and affix dishonour to him in turn. This would not be allowable unless it were legitimate to assume that the dead person was injured by the accusation, although he is dead, and that a certain just satisfaction was done to him by an Apology, although he no longer sensibly exists. A Title to act the part of the Vindicator of the dead person does not require to be established; for every one necessarily claims this of himself, not merely as a Duty of Virtue regarded ethically, but as a Right belonging to him in virtue of his Humanity. Nor does the Vindicator require to show any special personal damage, accruing to him as a friend or relative, from a stain on the character of the Deceased, to justify him in proceeding to censure it. That such a form of ideal Acquisition, and even a Right in an individual after death against survivors, is thus actually founded, cannot, therefore, be disputed, although the possibility of such a Right is not capable of logical Deduction.
- There is no ground for drawing visionary inferences from what has just been stated, to the presentiment of a future life and invisible relations to departed souls. For the considerations connected with this Right, turn on nothing more than the purely moral and juridical Relation which subsists among men even in the present life, as Rational Beings. Abstraction is, however, made from all that belongs physically to their existence in Space and Time; that is, men are considered logically apart from these physical concomitants of their nature, not as to their state when actually deprived of them, but only in so far as being spirits they are in a condition that might realize the injury done them by Calumniators. Any one who may falsely say something against me a hundred years hence, injures me even now. For in the pure juridical Relation, which is entirely rational and suprasensible, abstraction is made from the physical conditions of Time, and the Calumniator is as culpable as if he had committed the offence in my lifetime; only this will not be tried by a Criminal Process, but he will only be punished with that loss of honour he would have caused to another, and this is inflicted upon him by Public Opinion according to the Lex talionis. Even a Plagiarism from a dead Author, although it does not tarnish the honour of the Deceased, but only deprives him of a part of his property, is yet properly regarded as a lesion of his human Right.