第24章

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 operae).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 fulfillment of the promise of another.

3.Personal security (praestatio obsidis).

Guarantee of personal performance.

This list of all 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 a 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 BookI.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 the industry of 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.