友情提示:如果本网页打开太慢或显示不完整,请尝试鼠标右键“刷新”本网页!
读书室 返回本书目录 加入书签 我的书架 我的书签 TXT全本下载 『收藏到我的浏览器』

the science of right-第15部分

快捷操作: 按键盘上方向键 ← 或 → 可快速上下翻页 按键盘上的 Enter 键可回到本书目录页 按键盘上方向键 ↑ 可回到本页顶部! 如果本书没有阅读完,想下次继续接着阅读,可使用上方 "收藏到我的浏览器" 功能 和 "加入书签" 功能!


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 OF

                  BEING 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:

  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 Book



                         I。 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。

  The thing which is to be called money must; therefore; have cost

as much industry to produce it; or even to put it into the hands of

others; as may be equivalent 
返回目录 上一页 下一页 回到顶部 0 0
快捷操作: 按键盘上方向键 ← 或 → 可快速上下翻页 按键盘上的 Enter 键可回到本书目录页 按键盘上方向键 ↑ 可回到本页顶部!
温馨提示: 温看小说的同时发表评论,说出自己的看法和其它小伙伴们分享也不错哦!发表书评还可以获得积分和经验奖励,认真写原创书评 被采纳为精评可以获得大量金币、积分和经验奖励哦!