第18章

19.Acquisition by Contract.

In every contract there are four juridical acts of will involved;two of them being preparatory acts, and two of them constitutive acts.

The two preparatory acts, as forms of treating in the transaction, are offer (oblatio) and approval (approbatio); the two constitutive acts, as the forms of concluding the transaction, are promise (promissum) and acceptance (acceptatio).For an offer cannot constitute a promise before it can be judged that the thing offered (oblatum) is something that is agreeable to the party to whom it is offered, and this much is shown by the first two declarations; but by them alone there is nothing as yet acquired.

Further, it is neither by the particular will of the promiser nor that of the acceptor that the property of the former passes over to the latter.This is effected only by the combined or united wills of both, and consequently so far only as the will of both is declared at the same time or simultaneously.Now, such simultaneousness is impossible by empirical acts of declaration, which can only follow each other in time and are never actually simultaneous.For if Ihave promised, and another person is now merely willing to accept, during the interval before actual acceptance, however short it may be, I may retract my offer, because I am thus far still free; and, on the other side, the acceptor, for the same reason, may likewise hold himself not to be bound, up till the moment of acceptance, by his counter-declaration following upon the promise.The external formalities or solemnities (solemnia) on the conclusion of a contract-such as shaking hands or breaking a straw (stipula) laid hold of by two persons- and all the various modes of confirming the declarations on either side, prove in fact the embarrassment of the contracting parties as to how and in what way they may represent declarations, which are always successive, as existing simultaneously at the same moment; and these forms fail to do this.

They are, by their very nature, acts necessarily following each other in time, so that when the one act is, the other either is not yet or is no longer.

It is only the philosophical transcendental deduction of the conception of acquisition by contract that can remove all these difficulties.In a juridical external relation, my taking possession of the free-will of another, as the cause that determined it to a certain act, is conceived at first empirically by means of the declaration and counter-declaration of the free-will of each of us in time, as the sensible conditions of taking possession; and the two juridical acts must necessarily be regarded as following one another in time.But because this relation, viewed as juridical, is purely rational in itself, the will as a law-giving faculty of reason represents this possession as intelligible or rational (possessio noumenon), in accordance with conceptions of freedom and under abstraction of those empirical conditions.And now, the two acts of promise and acceptance are not regarded as following one another in time, but, in the manner of a pactum re initum, as proceeding from a common will, which is expressed by the term "at the same time," or "simultaneous," and the object promised (promissum) is represented, under elimination of empirical conditions, as acquired according to the law of the pure practical reason.

That this is the true and only possible deduction of the idea of acquisition by contract is sufficiently attested by the laborious yet always futile striving of writers on jurisprudence such as Moses Mendelssohn in his Jerusalem- to adduce a proof of its rational possibility.The question is put thus: "Why ought I to keep my Promise?" For it is assumed as understood by all that I ought to do so.It is, however, absolutely impossible to give any further proof of the categorical imperative implied; just as it is impossible for the geometrician to prove by rational syllogisms that in order to construct a triangle I must take three lines- so far an analytical proposition- of which three lines any two together must be greater than the third- a synthetical proposition, and like the former a priori.It is a postulate of the pure reason that we ought to abstract from all the sensible conditions of space and time in reference to the conception of right; and the theory of the possibility of such abstraction from these conditions, without taking away the reality of the possession, just constitutes the transcendental deduction of the conception of acquisition by contract.It is quite akin to what was presented under the last title, as the theory of acquisition by occupation of the external object.

20.What is Acquired by Contract.

But what is that, designated as external, which I acquire by contract? As it is only the causality of the active will of another, in respect of the performance of something promised to me, I do not immediately acquire thereby an external thing, but an act of the will in question, whereby a thing is brought under my power so that I make it mine.By the contract, therefore, I acquire the promise of another, as distinguished from the thing promised; and yet something is thereby added to my having and possession.I have become the richer in possession (locupletior) by the acquisition of an active obligation that I can bring to bear upon the freedom and capability of another.

This my right, however, is only a personal right, valid only to the effect of acting upon a particular physical person and specially upon the causality of his will, so that he shall perform something for me.It is not a real right upon that moral person, which is identified with the idea of the united will of all viewed a priori, and through which alone I can acquire a right valid against every possessor of the thing.For, it is in this that all right in a thing consists.

The transfer or transmission of what is mine to another by contract, takes place according to the law of continuity (lex continui).