第23章

Both parties, however, may resolve to continue the household, but under another mode of obligation.It may assume the form of a relation between the bead of the house, as its master, and the other members as domestic servants, male or female; and the connection between them in this new regulated domestic economy (societas herilis) may be determined by contract.The master of the house, actually or virtually, enters into contract with the children, now become major and masters of themselves; or, if there be no children in the family, with other free persons constituting the membership of the household; and thus there is established domestic relationship not founded on social equality, but such that one commands as master, and another obeys as servant (imperantis et subjecti domestici).

The domestics or servants may then be regarded by the master of the household as thus far his.As regards the form or mode of his possession of them, they belong to him as if by a real right; for if any of them run away, he is entitled to bring them again under his power by a unilateral act of his will.But as regards the matter of his right, or the use he is entitled to make of such persons as his domestics, he is not entitled to conduct himself towards them as if he was their proprietor or owner (dominus servi); because they are only subjected to his power by contract, and by a contract under certain definite restrictions.For a contract by which the one party renounced his whole freedom for the advantage of the other, ceasing thereby to be a person and consequently having no duty even to observe a contract, is self contradictory, and is therefore of itself null and void.The question as to the right of property in relation to one who has lost his legal personality by a crime does not concern us here.

This contract, then, of the master of a household with his domestics, cannot be of such a nature that the use of them could ever rightly become an abuse of them; and the judgement as to what constitutes use or abuse in such circumstances the is not left merely to the master, but is also competent to the servants, who ought never to be held in bondage or bodily servitude as slaves or serfs.

Such a contract cannot, therefore, be concluded for life, but in all cases only for a definite period, within which one party may intimate to the other a termination of their connection.Children, however, including even the children of one who has become enslaved owing to a crime, are always free.For every man is born free, because he has at birth as yet broken no law; and even the cost of his education till his maturity cannot be reckoned as a debt which he is bound to pay.Even a slave, if it were in his power, would be bound to educate his children without being entitled to count and reckon with them for the cost; and in view of his own incapacity for discharging this function, the possessor of a slave, therefore, enters upon the obligation which he has rendered the slave himself unable to fulfil.

Here, again, as under the first two titles, it is clear that there is a personal right of a real kind, in the relation of the master of a house to his domestics.For he can legally demand them as belonging to what is externally his, from any other possessor of them; and he is entitled to fetch them back to his house, even before the reasons that may have led them to run away, and their particular right in the circumstances, have been juridically investigated.

SYSTEMATIC DIVISION OF ALL THE RIGHTS CAPABLE OFBEING ACQUIRED BY CONTRACT.

31.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 a 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 a 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 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: