64. The form of the object and the mark are themselves puopmtii.
e\teiual ciiciimstdnees, rtcpiivcd of meaning and worth if taken apait from nse, employment, or some sncli manifestation of the subiective will The picscnce of the will, howevei, is iii time, and its obiective leality is continuance ot the siib]ecti\e inaiiifestation If the manifestation lapses, the object, aliaiidoiied by the leal essence of the will and of iiossession, becomes owiieilcss Hence I may lose 01 acqniie inopeiU thiongli jncsciijition Note — Piesciiption does not luu couutei to stiict, light and IS not intiodmed into law meiely to cut shoit the stiifc and confusion, which would natinally arise out of old claims It is lounded on tlie leality of piopeity, in othei wolds ujiou the net essitv that the will, in older to keep a thing, must manifest itself in it — Public monuments aie piopeiti of the nation, oi lathor they, like all woiks of art intended foi use, tiio hung and self-siifhcient ends because of then mdwelliiig soul of lememhiance and lioiiom Depiived ot this soul they aie, so fai as the nation is eonceiiied, without a uiastei, and become casually a pill ate possession, as has happened with the Grieck and Egyptian ivoiks of ait in Tiiikei — The jniiate light of an autlioi’s fainily to his woiks is jnesciibed foi similar leasoiis Those woiks become in a sense inasteiless, since they, like theiuoiiuiiients, though in an opposite way, become first eoininon piopeity, and then tliiongh various channels, private piopeitv To set apait land foi a cemeteiy and then not use it, oi to set apait land nevci to be used, contams an empty unreal caprice As to traverse this action does no injury, resjiect foi it cannot be guaranteed Addition — Presciiption lests upon the supposition that I have ceased to look upon the object as mine If a thing IS to lemain mine, thcie must be a continuous act of will, and tins act reveals itself through use oi pi esei ration — The decline in the value of public monuments was frequently illustiated diuiiig the Eefoiination in institutions founded for the saying of masses The spirit of the old 'jiii: PHILOSOPHY oi moni confession and theiefoie of these buildings had fled, and the buildings could be taten as piivate properlv C Relinquishment of Propeity 65 I may lelinqui&h pioperti, since it is mine onlv bi virtue of iny Lai mg put my mil mlo it I mav let a thing go uuoivned b) me oi jiass it oi ei to the ivill and possession of anothei, but this is possible oiilv so fai as the obieit is in its natiiio something external Addition — Piesciiptiou is lelincpiishmont without duett deelaiation of will Tiuc lelinquishmcnt is a cledaiation that I mil no longei legaid the objert as mine The process m all its jihases niai be tahen to be a tine talcing of possession Fust thoie is the duett pieheusion, then hv use propel ty is thoioughlr atqiiiied, and the thud steji is the unit\ of both these elenieuts, possession thiough lelinquishment 66 Some goods, oi latliei substiuilivc phases of life are inalienable, and the light to them does not peiish thiough lapse of tune These tompiise in\ inuei peisoualiti and the univeisal essence of nil const lousuess of mi self, and are peisonality m geneial, fieedoin of mil in the broadest sense, social life and lehgioii Note — What the spiiit is in conception, or implicitly, it should also be in actuality, it slioiilil bo a peison, that is to sa}, be able to 2 iossess jirojieiti, haie sociably and religion This idea is itselt the conception of sjiuit As causn sui, or free cause, it is that, ciijiis natura non potest connpi nisi existens (Spinoza, “ Etli ” Def 1) In this very conception, nainelv, that spiiit shall be what it is only through itself and by the infinite letum into itself out of its natural and direct reality, lies the possibility of opposition between what it is onlv imjilicitlv (§ 57), and what it IS only exphcitly In the wiU this ojqiosition is the jiossibility of evil, but in general it is the possibility of the PROPER I Y.
PROPER I Y.
alienation of personality and substantive being, and this alienation may occui eitlioi unconsciously or intentionally — Examples of the disposal of pei sonality are slaveiy, vassalage, inability to own piopeity oi lack of complete control ovei it Relinquishment of leason, sociality, morality or religion occui s in supeistition, it occurs also if I delegate to otheis the authority to piesciibe for me what kind of acts I shall commit, as when one sells himself for robbery, murdei, oi the possibility of auv othei crime, it occurs when I permit otheis to deteimme what foi me shall be dut}"- 01 religious ti uth The light to nothing that is inalienable can be foifeited thiough lapse of time The ait by which I take possession of my peisoiiality and leal being, and establish myself as having lights, responsibilities and moial and lehgious obligations, depiives these attiibutcs of that externality, which alone gii es them the capacity of being possessed by another Along with thedupaituie of this oxteinality goes the leference to time oi to anv pievious consent oi complaisance This rotuin of myself into mjsclf, being the piocess by which I establish myself as idea or complete legal and moral poison, docs away with the old i elation It lemoves the violence which I and otheis had done to my own conception and leasou, the wiong of haiingtieated the infinite existence of solf-consciousness as something meiely extraneous, and of having suffcied otheis to do the same This retuiii into myself levc.ils the contiadiction implied in my having given into the keeping of others my light, morality oi religion I gave them what I did not myself 2>ossess, what, so soon as I do possess it, exists in essence only as mine, and not as something external Addition — It lies in thenature of the matter that the slave has an absolute right to make himself free, or that, when anyone has lined out his moiahtv for robbery and muider, the transaction is absolutely void. Anyone possesses the competency to annul such an agreement It is the same UIIE PHILOSOPHY OF RIOIII With the lettmg of loligiosity h}' a piiest, who is my confessor The inner religious condition ei eiy one must iidjiist hy himself A leligiosity, jiait of which is lianclcd oiei to some one else is not genuine, foi the sjniit is oiili one, and must dwell within me To me it must belong to unite the acd of worship with rehgions aspiration 67 The use of single pioducts of niv paiticiilai jiliisical endowments oi mental capacities I may Iniud ovci to olhers foi a limited tune, since, when a time limit is lecogni/cd, these pioducts may bo said to have an e^tei-nal relation to niy gemiine and total being If I weie to dispose of ni} whole time made concictc in woilc, and all my adiiity, I would be giving up the essence of my piodiictious Mv whole actiiity and leahty, m short, my personality, nonld he the juopeity of auothoi Note — This IS the same lektion as that (§ 61) hctucon the substance of an obtect and its nse As it is only be limiting use that ne can distinguish it fiom the ob-|oct, so the use ot mv pouois is to be distinguished fioni these poweis thoiiiselvos, onh m so fai as it has a rpiantitative limit The total niunbei of manifestations of a faculty is the faculty, the accidents aie the substance, the 2 )aiticulais, the uniiersal AdchHon — The distinction, beie anali zed, is that between a slave and a seivant oi d.iv-laboiuei in oiu own time The Athenian slave had possibly lightci occupation and highei kind of mental woik than is the lulo with oui workmen But he was a slave notwithstanding, since the whole circle of his activity was controlled by his master 68 What is pecnliai to a mental jiroduct can be exteinalizcd and directly converted into an object, which it is possible for others to produce When another person has acquiied the object, he may make the thought or, it may he, the mechanical genius in it, liis own, a possibility which in the case of liteiaiy woiks constitutes the leason and special value of acquisition. But, over and above PROPERl r this, the new ownoi comes at the same lime into jiossession of the f^eiieial powci to expiess himself ni the same way, and so of making any numliei of objects of the same kind Note — In works of ait the foim, iihicli images the thought in an exleinal inateiwl, is so conspicuously the possession of the aitist, that an mutation of it is leally a jiioduct of the iiiiitatoi’s mental and mechanical skill But 111 the case of litci.iliiie oi an invention of some technical contiicaiice, the foiin in which it is externalized IS of a mechanical soit In a book the thought isiiresented in a low of paiticulai abstiact signs, in an invention the thought has a wholly inechanieal content The way to repioduce such things, as uieio things, is a matter of oidinaiy skilled laboiii Between the tno extiemcs, on the one side a Moik ol ait, and on the othei a pioduct of manual laboiii, tlicie aie all stages of i>ioductiou, some of which lueliue to one ol the e\ti ernes, some to the othei 69 Since the pnichasei ol siiili a pioduct ot mental skill possesses the full use and value of his single copy, he Is complete and fiee ownei of that one copy, although the anthoi of tliewoik oi thcimcutoi of the appaiatuBiemams ownei of the geueial method of niiiltijilying such pioducts The authoi oi inventor has not disjiosed diiectlyof the geneial method, but may icseive it foi his private utteiaiice Note — The justification of the light of the author or mventoi cannot he sought in his aibitraiily making it a condition, when lie disposes of a copy, that the possibility of bunging out other copies shall not belong to the pui chaser, but shall lemam in his own hands The first question is whether the sepaiatiou of the object from the power to reproduce, which goes with the object, is allowable m thought, and does not destioy full and fiec possession (§ 62). Does it depend ujion the arbitiaiy choice of the fiist jnoducei to reserve to himself the powei to icpioduee oi dispose of the product of Ills mind’’ Or, on the other hand, may he iin: PHILOSOPHY OF nioin count it of no value, and fjirc it ficelv with each scpaiate co])v^ Now theie is tins jieeuliaiitv aLoul this power, that thiouqh it the object becomes not incielv a posses'^ion, but a means of wealth (see § 170, and fol ) This new featuie is a special kind of c\toinal use, and is dilleient and separate fioni the use to which the object cciis diioctly appointed It is not, as it is called, an accc'-sio imfinaJis as aie ftetuin Hence as the distinction ok in sin the spheie of CNternal use, uhiihis natuially capalile ot beni" divided, the lesei ration of one pait, while anothei is beiiii; disjiosed of, is not the icleiition of an ouneiship without utile The piiuiaiy and most impoitant claim of tiade and commerce is to give them suiety against highwac robbciy In the same uai the jnimaiv though meieh nog.itice demand of the sciences and aits is to iiisuie the uoikeis in these fields against laicciir, and give then piopuity i>iotection But 111 the case ot a mental product the intention is that otlieis should compichcnd it, and make its imagination, memoiy, and thought then own Leiiiiiing is not merely the treasuring up of noids in the ineiiioij, it is through thinking that the thoughts of others aie seized, and this aftei -thinking is real leaiiiiiig Now that nliich IS learned becomes in turn something which can be disposed of, and the external cxpiession of this material niai easily assume a foim diffeient fioni the foiin into which the original tlnnlfoi threw his noik Thus lliose who have worked over the material a second time may regard as their own possession whatever money they may be able to extract from their work, and may contend that they have a right to reproduce it In the transmission of the sciences in general, and especially in teaching positive science, church doctrine, or jurisprudence, are found the adoption and repetition of thoughts which aie already established and exjiressed This IS largelj’’ the case with writings composed foi the same purpose It IS not possible to state accurately, and establish piiopiniiY piiopiniiY explicitly l)v law and right, ius.t how far the new form, which ciccines thiough repeated expression, should tiansmiite the scientific tieasiiie or the thoughts of others, who lUe still in extciual possession, into a special mental possession of the peison who le-constiucts them, how far, in othoi woids, a lejiotitiou of an author’s work should he called a jilagiaiisiii Hence plagiarism must he a question ol honoui, and should be lefiaiued from on that scoie Laws against repiintiiig piotcct the piopertj' of author and piiblishei in a reiv definite but, indeed, limited measuie The ease nitli wliith one can intentionally alter the foim Ol iiiseit slight modifications into a large work on science oi a ccuiiiucheiisne theoiy which is the woik of another, and fnitln'r, the great difticulty, when discoursing on what one has leceired, of abiding by the lettei of the authoi, intioduce, in addition to the special purposes requiiing such a repetition, an endless vaiiety of changes, which stamp upon the foieign aiticle the moie oi less superficial iinpiession of soiiiethiiig which is one’s own Thehuiidieds of cuiiijiendimiis, a,biidgments, compilations, aiithmctics, geoiiietiies, icligious tiacts, evei}'^ lenture of a critical louiual, an annual oi a ticlopaedia, keep on lepeating undei the same oi an alteied title, although each may he maintained to be something now and unique Yet the piofit which the woik pioiiiised the authoi oi inventoi in the fiist place may be wiped out, oi the puipose of both author and imitatoi may be defeated, or one may be ruined.
It IS iiotewoitby that the term plagiarism, or scholar’s larceny is no loiigei lioaid It may be that the principle of honour has dislodged it, or that the feeling of honour has vanished oi ceased to be diiected against plagiarism, or that a small compilation oi slight change of foim is lanked as an oiigiual and independent pioduction, and so highly esteemed as to banish all thought of plagiansm '11112 PHILOSOPHY OF BIGlIl 70 Since peisonality is soinetliiiig cliicetly piosent, tlio compiebcnsne totality of one’s outei actnity, the life, is not exteinal to it Tims tlie disposal oi saciifice of life is not tlie manifestation of one’s iieisonality so nincli as the veiy opiiosite Hence I have no light to lelniquish my life Only a moial and social ideal, wIiilIi suhineige'i the diiect, &ini 2 ile and scjiaiate iieisonality, and constitutes its leal jioivei, lias a light to life Lite, as such, heiiig diiect and iinicflected, and death the dnect negation of it, death must come fiom ivithout as a lesult of uatmal causes, or must he recened in the seiiice of the idea fioni a foieigii hand Acldihoii — The ^laituulai }icison is lealh a siihouliiiato. ■who must deiotc his life to the seivice of the ethical labile, ■when the state demands his life, he must j leld it up But should the man take his own life '• Suicide may at fiist glance ho looked upon as hiaieiv, although it he the pool braieiy of tailois and maid-seivants Oi it may he icgaidcd as a iiiisfoitune, caused hi a hiokeu hcait But the point is, Haie I any light to kill inyseli '' The answer IS that I, as this individual am not loid ovei my life, since the comjiieliensive totaliti of one’s actiiity, the life, falls within the direct and pieseiit jieisonality To speak of the right of a iieison ovei his lile is a contiadiction, since it imjilies a light of a pel son oici himself But no one can stand ahoie and execute himself "When Heicules burnt himself, and Biutus fell uiion his sxvord, this action against their peisonality was doubtless of an heroic type, but yet the simple light to commit snicide must be denied even to heroes Ti ansition from Propniy to Contract 71 Outu ard and visible existence, as definite, is essentially existence for anothei thing (see tiote to § 48j Thus liroperty, as a visible external thing, is determined by its coNTXtArr relations to othei external things, these relations being both iiotessaiy and accidental Eut piopeity is also a manifestation of imII, and the othci, foi ivlncli it exists, is the mil of anotliei jicison Tins lefeience of mil to will is the tiiie and jieciiliai gioiind on ivhicli freedom is lealized The means h}- which I hold piopeity, not by viitue of the lelatiou of ail obictt to mj' siil»icctive will, but by virtue of auolhei will, and hence shaic m a common will, is coiitiact Note — It IS lust as iiiiith a uecesity of reason that men make eoiitiacts, exchange, and tiade, as that they should have piopeity (§ 41, note) In then consciousness it is some want, henovolence, oi advantage, which occasions the contiact, but ically it is leasou, oi the idea as it is embodied lu the lealized will of a tiec pci son It is taken for gianlcd that eontiacting paities lecognize one anothei as pel sous and owncis Ilecogmtioii is contained and presupposed in the fact that contiact is a lelatiou of the ohiective spiiit (§ 35, note to § 57) Addition — In eouti act I hold projiei ty through a common will It IS the interest of leasoii that the subjective will become imiveisal, aud exalt itself to tins level of realization In contract the paiticulai mil lemams, although it is now 111 conjunction mtb anotbei will The univeisal will assumes lieie no higlici foim than co-opeiation SECOND SECTION CONTBACT 72 In contract propeity is no longer viewed on the side of its external reality, as a meie thing, but rather as containing the elements of will, another’s as well as my own. Contiact is the jirocess which picsents aud occasions the contiadictiou by which I, existing foi myself and excluding anothei wiU, am and i emain an ownei only in so far iiii: PHiLosopiiy OF luoiii.
as I identify myself ivitli tlie will of aiiotlicr, and cease to be an owner 73 Guided by tbe conception I must relinquish my piopeity not merely as an external thing (§ 65), but as piopeit}, if my will is to become a geuumo iiictoi in leality But by Mitue of this pioiediiic ray Mill, ivhen relinquished, is anothei ivill The necessaiy natuie of the couceptiou IS thus lealized in a unity ot difteient wills, which, iieieithless, give up then ditteiuiices ami peenlianties But this identity implies not that one will is identic al with the other, but lathci that each at this stage leiiiains an mdcpeiident and jii irate will 74 Foi two absolutely distinct and sepaiate owners theie IS now foimed one will. While each of them ceases to be an oimoi thiough lus own distinct will, the one will remains Each will gives up a paiticiilai piopeity, and leceiiesthe 23aiticulai jiioiieity of anothei, adoiitmg only that conclusion with which the othei coincides 75 Since the two coutiactmg appear as diioctly indeiieudent jieisons (a) contiact iiioeeeds iioiii aibitiaiy choice, (13) the one will foimed by the contiact is the woik meiely of the two interested jieisons, and is thus a common, but not an absolutely universal will, (y) the object of the contiact is a single external thing, because only such a thing is subject to lelmqnishmeiit at tlieir mere option (§ 65 and fol ) Note — Mainage does not come under the conception of contract This view is, we must say it, in all its shamelessness, propounded by Kant (“IMetaiih. Auf der Rechtslehre,” p 106). Just as little does the nature of the state conform to contract, whether the contract be regaided as a compact of all with all, or of all with the prince or government — The introduction of the relationsof contract and private property into the functions of the state has produced the greatest confusion both in the law and in real life In oailier times civil rights and duties were thought and maintained CO.V'IBACT to Lo ii Jiioctly possession of jiaiticulai individuals in oiiposition to tlie iiyhts of jnmee and state In more recent yeais, also, the lights of jnmce and state have been tieated as ob]ects of covenant They aie said to be based on contiact, oi the meie goneial consent of those who wish to foim a state Dillerent as these two views of the state aie, they agiee in taking the phases of piivate property into aiiothei and a liighei legioii This will be rcferied to again n hen Me come to s^ieak of ethical observances and the state Addition — It IS a popular view in modem times that the state is a contiact of all with all All conclude, so the doctiiiic inns, a comjiact with the prince, and he in turn with the sub]ects Accoiding to this superficial view, there IS in contiact only one unity of difterent wills, but in fact thoie are two identical wills, both of which are persons, and wish to remain possessors Contract, besides, arises out of the spontaneous choice of the peisons Marriage, indeed, has that point in common with contract, but with the state it is dilfeient An individual cannot enter or leave the social condition at liis option, since every one is by his veiy natuie a citizen of a state The characteristic of man as rational is to live in a state, if there is no state, reason claims that one should be founded A state, it is tiue, must grant permission either to enter or to leave it > but this pel mission is not given in deference to the arbitrary choice of the individual, nor is the state founded upon a contract which presupposes this choice. It is false to say that it rests with the arbitrary wiU of all to estabhsh a state, rather is it absolutely necessary for every one to be in a state The great progress of the modern state is due to the fact that it has and keeps an absolute end, and no man is now at liberty to make private arrangements in connection with this end, as they did in the middle ages 76. Contract is formal when the two elements through llli: PIIILOSOPIIV OF RIGIir wliidi the comiuou will aiibPS, the negative dit>]j(isal of th(' tluDg and the positivi' roee^hion of it, aie so diMded, that one of the contiactiny lualces one side ol the nifieeineiit, and the othei, the othei Tins is g'lft CoiiU.ict is leal when eaeh of the eonliactois peitorms Loth sides of the double agieement, and is and icmains an ownei This IS e\(.hanp;e Addition — Contiact imolves two a^ieemenls to two tlnnifs, I both giie iiji and aiqniie a piopeity Ileal eonti.ict OLLUis, when eadi iields up and acquiies possession, 111 ^'iving up he leniams an ownei Foiiiial lontiaLt occnis when a pel son onh gnes np oi aiquiies 77 In leal coiitiact evtiy one both keeps the same proiieity as he had -nheii lie imdeitook the lontiact, and also yields up his piopeili Hence it is neiessaii to distinguish the piopeity, nhidi in coutiait leinaiiis jieimanently mine, fiom the extciual olqeds whidi diaiige hands The umveisal and selt-identical element in exchange, that with legaid to nliidi the objects to bo esdianged aie ocpial, is the xaluc (§ C3) Note — Bv the xeiv cone ejil ion of contiait a Iieetn enoimis annuls the agi cement, since the contractoi, in disposing of his goods, must leinaiu in jiossession of a ciuantitative oqunalent An lujuiy may fanlv be called enormous, if it exceeds half of the x'alnc, hut it is lufanite, xvhen a contiact oi any stijmlatien is euteied into to dispose of ail iiialieiiablo good (§ 60) A stipulation is oiih one single part or side of the whole contiact, oi a ineiely ioimal settlement, of which moie hercaftei It contains only the foimal phase of contiact, the consent of one pnity to perform something, and the consent of the other parly to accept the perfoimance It must, theiefoie, be classed amongst the so-called one-sidcd contiacts The division of contiacts into one-sided and two-sided, and many othci divisions of the same kind m Homan law, aie siqieificial combinations, arising from some particular and external coxrB-vcr cousidfiatiou, as, for mstaiice, the way m which they are uiaile They may also introduce attributes which do not conceiii the natnie of coutiact, such as those which have ineaniiig only in reference to the administration of justice (actiones), and to the legal conseqaences of jiositive laws, 01 such as may arise out of wholly external ciicumstances aud luiuie the conception of light 78 The distinction between propeity and possessioi between the substantive and the external side (§ 45), assumes in coutiact the foim of a distinction between the common will oi agieement and the realization of this will in peifoimance The agieement, taken by itself in its difteieuce fioni peifoimance, is something imagined or symbolic, appealing in leality as a visible sign (“ Encyclopsedia of the Pliilosophiial Sciences” ) In stipulation it may be manifested by gesture or othei symbolic act, but u,sually m an espiess dcclaiation thiough speech, which is the most woi thy vehicle of thought Note — Stipulation, thus inteipieted, is the form in winch the content of a comluded contract is outwaidly symbolized But this symbol is only the form. By this IS not meant that the content is still meiely subjective, meielj' a dcsideiatum, but tliat the conclusion of the actual ariaugcmeut is made by the will Addition — As in piopeity we had the distinction between property aud possession, the substantive and th cxteiiial, so in contiact we haie the difference between the common wiU as agreement and the particular will as performance It IS in the natiu'e of contract that both the common and the particnlar wills should be manifested, because it is the relation of will to ivill In civilized communities agreement, manifested by a sign, is separated from performance, although with luder peoples they may concur There is m the forests of Ceylon a tribe, which in trading puts down its property and waits patiently for the arrival of those who will place then piopeity over against G IHE PHILOSOPHY OF RIGHT.
it, the dumb declaration of the will is not separated from performance 79 As stipulation involves the will, it contains, from the standpoint of right, the substance of contract In contrast with this substantive contract the possession, which lemams till the contiact is fully earned out, has no leality outside of the agieement I have given up a iiossession and my pm ate contiol over it, and it has alieady become the property of anothei I am legally bound to cairy out the stipulation Note — Meie pioiiiise is different fi om contiact Wliat I promise to do, give or peifoim, is future and a mere subjective qualification of my will I am at liberty to change nij piomise But stipulation is already the embodiment of iny volition I have disiiosed of my jiiopeity, it has ceased to be mine, and I recognize it as already belonging to another The Roman distinction betu een pactum and conhacius is not sound Fichte once laid it down that the obligation to hold to the contiact began for me only ■when the other paity began to do his share Before peifoimance I am supposed to be doubtful whether the other had been really in earnest The obligation before jierfoimance is, therefore, said to be moral and not legal The trouble is that stipulation is not merely external, but involves a common will, which has already done away with meie intention and change of mind The other paity may of course change his mind after the engagement, but has he any right to do so For plainly I may choose to do what is ■wrong, although the other person begins to perform his side of the contract Fichte’s view is worthless, since it bases the legal side of contract upon the bad infinite, that is, an infinite series, or the infinite divisibility of time, material and action The embodiment of the will in gesture or a definite form of words IS its complete intellectual embodiment, of which the performance is the merely mechanical result.
CON TRAC r CON TRAC r It does not alter the case that positive law distinguishes between so-called real tontiacts and consensual contracts, leal eontiacts being complete only when the actual perfoiniance (res, hadiho rex) is added to consent Sometimes in these leal contiacts tlie sui lender to me of the object enables me to caiiy out my part of the engagement, and my obligation to act lefeis to the object only m so far as I have leceived it into my hands This occurs in loan, inteiest, deposit, and sometimes in exchange also These cases do not concern the relation of stipulation to jierforinance, but niciely the manner of iieifoimance It is also optional m the case of contract to bargain that on one side the obligation shall not aiise until the other party fulfils his shaio of the eiigagenient 80 The classification or rational treatment of contracts IS deduced not fioni external circumstances, but from distinctions which are involved in the very nature of contract These distiuctions are those between formal and leal contract, between property and possession oi use, and between yaluo and the* specific thing The subjoined classification agrees in the mam with the Kantian (“Metaphysical Principles of the Theory of Right,’’ p 120) It is surprising that the old method of classification of contracts into real and consensual, named and unnamed, has not long ago given way before something that is more reasonable A Gift.
(1) Gift of an object oi gift proper, (2) Loan of an object — ^the gift of a portion of it or of a partial use or enjoyment of it, the lender remaining owner, {mxUmim and commodatum without interest) The object is specific, or it may be legarded as univeisal, or it is, as in the case of money, actually umveisal (3) Gift of service, as for example the mere storage THE PHILOSOPHY OF BIGHl of a property (depositiim) The gift of au object on the special condition that the receivei shall he oirner on the givei’s death, ivheu the giver can no longer he ownei, is bequest, and does not comi“ under the conception of contract It piesuppose^ the civic community and positive legislation B. Exchange (1) Exchange as such (a) Exchange of objects, i e of one specific thing for another of the same kind (/3) Purchase or sale (emtio, venditin) The exchange of a specific object, for a geueial object, •which has the phase of value but not of use, namely money (2) Eent {locaho, condncho), relinquishment of the tempoiary use of a piopeity for lent or inteiest (a) Eenting of a specific thing, lenting propei (/3) Eenting of a univcisal thing, so that the lessoi remains owner only of the universal oi the value This IS loan, imdittini and commodatiim with interest Whethei the object be a flat, fuinituie, house, a les fungibihs or now fiingibili^, this question gives rise, here also as in the second kind of gift, to particular qualifications that arc unimportant (3) Contract for wages (loeaho operce) — relinquishment, limited in time or otherwise, of my labour oi services, in so far as as they are disposable (§67) Akin to this IS the brief and other such contiacts, in which the performance depends upon character, confidence, or special talents Here the service cannot be measuied by its money value, which IS not called wages, but an honoiarium oi fee C. Completion of a contract (cautio) through a secunti COKIHAC r.
In contracts where I dispose of the nse of a thing, as in rent, I am no longer in possession of it, hut am still the owner In exchange, purchase, or gift, I may have hecoine owner, without being as yet in actual possession Indeed, in every contract, except such as aie directly on a cash basis, this sepal atiu 11 is to be found Secuiity or pledge isconcerned with an obiect which I give up, or an object which is to be mine It either teeps oi puts me in actual possession of the value, although in neither case am I m possession of the specific thing The thing which I have either given up, 01 expect to receive, is luy piopeity only as regards its value, but as a specific thing it is the property of the holder of the pledge, who owns also whatever suiplus value the object may have Pledge is not itself a contiact, but only a stipulation (§ 77), winch completes contract on the side of possesoiou of property — Mortgage and suiety are special foims of the pledge Addition — In contiact it was said that by means of an agi cement a property becomes mine, although I have not possession as yet and shall have possession only by performing my part If lam out-and-out ownei of the object, the intention of a pledge is to place me at ouce in possession of its value, thus already in the engagement the possession is guaranteed Suiety is a special land of pledge, some one offering his iiromise or credit as warrant tor my performance Here a jiei son does, what lu a pledge is done by a thing 81 AVhen peisoiis are viewed as diicct and incomplete, their wills are still particular, however identical they may be implicitly, and however much they may, in contract, be subordinated to the common will. So long as they are direct and incomplete, it is a matter of accident whether their particular wills accord with the geneial will, which has existence only by means of them When the paiticular will IS actually different from the universal, it is led by caprice, random msight and desire, and is opposed to general right. This is wrong 'line PHILOSOPHY OF RIttHI Note — It IS fioin the standpoint of logic a highei necessity winch brings about the transition to wrong The two phases of the eoncej)tion of right aie (a), intrinsic light or the general will, and (i>) light as it exists, or the particular will It inheres in the abstract reality of the conception that these two phases sliould be opposed and given independence — The particulai, independent will is capiice and ciiatic choice, which I, in exchange, have yielded up with legaid to only one single thing, but not altogethei Addition — In coutiact the two wills give rise to a common w ill This common will is only i datively uiiivei sal, and thus still in oiiposition to the jiarticnlar will Exchange 01 covenant, it is tine, implies the light to demand jierfoi mance But the paiticulai will may act in opposition to the geueial abstiact light Hence aiises the negation, which was already implicit in the general will This negation is wrong The geneial pioceduro is this, to purify the will of its abstiact simplicity, and thus to summon out of the common will the paiticular w'lll, which in turn takes the field against the common will, the paiticipants. 111 contiact, still pieseive their paiticulai wills Contract is not, theiefoie, beyond aibitraiy capiice, and remains exposed to wrong THIED SECTION Wbong