The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• The Whole Duty of Man
• The Author’s Preface
• Book I
• Chapter I: Of Human Actions In General, the Principles Of  ’em, and How to Be Accounted For, Or Imputed
• Chapter II: Of the Rule of Human Actions, Or of Laws In General; and the Different Qualifications of Those Actions
• Chapter III: Of the Law of Nature In General
• Chapter IV: Of the Duty of Man Towards God, Or, Concerning Natural Religion
• Chapter V: Of the Duty of a Man Towards Himself  19
• Chapter VI: Of the Duty of One Man to Another, and First of Doing No Injury to Any Man
• Chapter VII: The Natural Equality of Men to Be Acknowledged
• Chapter VIII: Of the Mutual Duties of Humanity
• Chapter IX: The Duty of Men In Making Contracts
• Chapter X: The Duty of Men In Discourse
• Chapter XI: The Duty of Those Which Take an Oath
• Chapter XII: Duties to Be Observ’d In Acquiring Possession of Things
• Chapter XIII: The Duties Which Naturally Result From Man’s Property In Things
• Chapter XIV: Of the Price and Value of Things
• Chapter XV: Of Those Contracts In Which the Value of Things Is Pre-supposed; and of the Duties Thence Arising
• Chapter XVI: The Several Methods By Which the Obligations Arising From Contracts Are Dissolved
• Chapter XVII: Of Meaning, Or Interpretation
• Book Ii
• Chapter I: Of the Natural State of Men
• Chapter II: Of the Duties of the Married State
• Chapter III: Duty of Parents and Children
• Chapter IV: The Duties of Masters and Servants
• Chapter V: The Impulsive Cause of Constituting Communities 18
• Chapter VI: Of the Internal Frame and Constitution of Any State Or Government
• Chapter VII: Of the Several Parts of Government 38
• Chapter VIII: Of the Several Forms of Government 41
• Chapter IX: The Qualifications of Civil Government 47
• Chapter X: How Government, Especially Monarchical, Is Acquired
• Chapter XI: The Duty of Supreme Governours
• Chapter XII: Of the Special Laws of a Community, Relating to the Civil Government 59
• Chapter XIII: Of the Power of Life and Death
• Chapter XIV: Of Reputation
• Chapter XV: Of the Power of Governours Over the Goods of Their Subjects
• Chapter XVI: Of War and Peace
• Chapter XVII: Of Alliances
• Chapter XVIII: The Duty of Subjects
• Two Discourses and a Commentary By Jean Barbeyrac
• Note On the Translation
• The Judgment of an Anonymous Writer On the Original of This Abridgment With Reflections of the Translator, Intended to Clarify Certain of the Author’s Principles
• Discourse On What Is Permitted By the Laws In Which It Is Shown That What Is Permitted By the Laws Is Not Always Just and Moral
• Discourse On the Benefits Conferred By the Laws In Which It Is Shown That a Good Man Should Not Always Take Advantage of the Benefits Conferred On Him By the Laws

chapter xvi

The several Methods by which the Obligations arising from Contracts are dissolved

I.Fulfilling or Payment. L. N. N. l. 5 c. 11.Among the several Ways of discharging Obligations arising from Contracts, and by which likewise the Duties and Offices which proceed from thence do utterly expire, the chiefest and most natural of all, is the Fulfilling or Payment of what was agreed upon. Where, although generally he that is the Debtor, is obliged to make the Payment; yet, if it be perform’d by any other in his Name who contracted the Obligation, the same is dissolv’d; since ’tis no ways material by what Person the Thing is perform’d. Yet with this Proviso, That he who pays for another, without any Intention of bestowing it upon him, may demand from the same again what he laid out upon his Account. Moreover, Payment must be made to that Person to whom it is due, or else to one whom he has appointed to receive the Debt in his Name. And lastly, That very Thing must be perform’d or paid which was agreed upon, not any Thing else instead thereof, intire and not mangled, nor in Parcels, nor by Piece-meal; and likewise at the Place and Time appointed: Altho’ frequently the Courtesie of the Creditor, or the Inability of the Debtor, may be the Occasion of prolonging the Time of Payment, or receiving a Debt by little Sums at once, or else of accepting of one Thing for another.

II.Compensation. L. N. N. l. 5. c. 11. §5.Obligations are likewise taken away by *Compensation which is an Adjusting or Balancing the Credit and the Debt, one against the other; or when the Debtor is therefore discharged, because ’tis manifest that the Creditor himself stands indebted to him for something that is of the same Kind, and of the same Value. Especially since in those Things (called Res Fungibiles, that is) which admit of being repaid in Kind, tho’ not in Specie, an Equivalent is look’d upon to be the same Thing; and where the Debt is mutual, since I must presently return back as much as I have received, for the declining of unnecessary Payments, it seems to be the most convenient Way so to order the Matter, that each Party may keep what he has. Now it is evident, that those Things aforementioned, may very properly be brought to a Balance, of which the Time for Payment is either present, or past. But it is not so in other Things or Performances, which are of a different Nature; unless they are estimated on both Sides, and reduced to Money.

III.Release. L. N. N. l. 5. c. 11. §7.An Obligation also ceases when the Thing is released and forgiven by him to whom it was due, and whose Interest it was that the Obligation should have been perform’d. And this is done either expressly, by some certain Tokens declaring his Consent; as by giving a Discharge, by giving up or cancelling the Bonds and Writings; or else tacitly, if he himself hinders, or is any ways the Occasion that what is owing to him cannot be paid.

IV.Breaking off mutually. L. N. N. l. 5. c. 11. §8.Those Obligations are likewise sometimes dissolved, which imply some Performance on both Sides, by a mutual Breaking off before any Thing on either Side be done in the Contract; unless this be expressly forbidden by the Laws. But if any Thing is performed by one of the Parties, the Obligation in this Case cannot be cancelled, unless he who perform’d his Part, releases the other, or has Amends made him some other Way.

V.Falseness on one Side. L. N. N. l. 5. c. 11. §9.Besides, an Obligation is not indeed properly dissolv’d, but rather broken off by the Falseness of either Party; for when the one does not perform what was agreed upon, neither is the other obliged to make good what he undertook upon a Prospect of the other’s performing. For as to the main Things which are to be performed in Contracts, the former are always included in the latter by way of Condition; as if it should be said, I will perform this, if you perform that first.

VI.Case altered. L. N. N. l. 5. c. 11. §10.Obligations likewise cease when that State of Things upon which they chiefly depended, is either alter’d by the Party who was obliged to perform somewhat, or by him to whom, or for whose Sake it was to be done.

VII.Time. L. N. N. l. 5. c. 11. §11.Sometimes also Time it self puts an End to some Obligations, whose Duration depends upon a certain precise Day; unless it be prolong’d by the express or tacit Consent of each Party. Yet there is a Necessity that the Power of exacting the Obligation within the Time limited, should stand good.

VIII.Assignment. L. N. N. l. 5. c. 11. §13.Any one may make over by Assignment, his Debtor to his Creditor, provided he approves him, that he, instead of the other, may discharge the Debt. Where indeed there is required the Consent of the Creditor, but not of that third Person who is the Debtor, whom I may turn over without his Knowledge or Consent, to the other Person that is to accept him. For it is no great Matter to whom any Person makes Payment; but from whom the Debt is to be required, is very material.

IX.DEATH. L. N. N. l. 5. c. 11. §12.Lastly, By Death those Obligations expire, which were founded in the Person of the Deceas’d; for the Subject being gone, the Accidents must necessarily follow, and the Performance is hereby rendred impossible in Nature. Yet oftentimes the Obligation that lay on the Deceas’d, is continued to the Survivors; and this, either when the Survivor takes it upon him of his own Accord to preserve the Reputation of the Deceased, or for other Reasons; or when the Goods of the Deceased being made over to the Heir, the Incumbrance goes along with them.

[*] Grotius de Jure Belli & Pacis, l. 3. c. 19. §15.