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77

Since, in the real contract, each party retains the same property with which he enters and which he at the same time gives up, that which remains identical distinguishes itself, as the property that is in itself present in the contract, from the external things which, in exchange, change their owner. That identical element is the value, in which the objects of the contract, for all the qualitative external diversity of the things, are equal to one another — their universal element (§ 63).

The determination that a laesio enormis annuls the obligation entered into in the contract thus has its source in the concept of contract, and more precisely in the moment that the contracting party, through the alienation of his property, remains an owner, and, in a more precise determination, quantitatively remains the same owner. But the injury is not merely enormous (it is taken to be such when it exceeds half the value), but infinite, when a contract or stipulation for the alienation of an inalienable good (§ 66) has been entered into at all. — A stipulation, moreover, is at first distinguished in its content from the contract in that it signifies some single part or moment of the whole contract, and also in that it is the formal fixing of it, as will be discussed presently. On that side, it contains only the formal determination of the contract — the consent of the one party to perform something, and the consent of the other party to accept it; it has therefore been counted among the so-called unilateral contracts. |81| The distinction of contracts into unilateral and bilateral, as well as other divisions of them in Roman law, are, in part, superficial groupings made on the basis of some single, often external consideration, such as the manner of their formality; in part, they also mix together, among other things, determinations that concern the nature of the contract itself with those that pertain only to legal procedure (actiones) and to the legal effects under positive law, often stemming from wholly external circumstances and doing violence to the concept of right.

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4 responses to “77”

  1. Hegel (Notes) Avatar
    Hegel (Notes)

    α) Property remains – universality distinguished from specific particularity.
    β) § 77 Two kinds of expressions of the will –
    Stipulation is thus subsumed under contract – conversely contract too [is subsumed] under obligatio – this divided into
    α) contract arising from a licit act, β) obligation arising from crime, wrong in general

  2. Hegel (Encyclopedia 1827) Avatar
    Hegel (Encyclopedia 1827)

    Encyclopedia of the Philosophical Sciences in Outline (1827), § 494:

    § 494. Just as in stipulation the substantial element of the contract is distinguished from the performance as the external element, which is reduced to a mere consequence, so too, with respect to the thing or the performance, the distinction is posited between its immediate specific character and its substantial element, the value, in which that qualitative determinacy is transformed into quantitative determinacy; a piece of property thereby becomes comparable with another and can be equated with something qualitatively wholly heterogeneous. Thus it is posited in general as an abstract, universal thing.

  3. Hegel (Encyclopedia 1830) Avatar
    Hegel (Encyclopedia 1830)

    Encyclopedia of the Philosophical Sciences in Outline (1830), § 494:

    § 494. Just as in stipulation the substantial element of the contract is distinguished from the performance as the real expression, which is reduced to a mere consequence, so too, with respect to the thing or the performance, the distinction is posited between its immediate specific character and its substantial element, value, in which that qualitative determinacy is transformed into quantitative determinacy; a piece of property is thereby made comparable with another and can be equated with something qualitatively wholly heterogeneous. Thus it is posited in general as an abstract, universal thing.

  4. Hegel (Simple) Avatar
    Hegel (Simple)

    § 77: The value stays the same

    In an exchange, I get something other than what I give. A bike for a guitar. The things change owners. But something stays with me: the value. Before, I had a bike worth 200 euros. Now I have a guitar of the same value. In value, the things are equal, however different they look.

    What if the exchange is very uneven?

    Roman law had a rule for this. If someone got less than half the value, he could cancel the contract. This rule follows from the nature of contract. For in a contract, I should remain the same owner in terms of value.

    Much worse still is a contract about something one may not give away at all. For example, about one’s own freedom. This harm is not just great. It is beyond all measure.

    Single pledges:

    A single pledge is not yet the whole contract. One person pledges to do something. The other pledges to accept it. That is why people have called them one-sided contracts.

    The Romans sorted contracts in many ways. Often by outward features, such as their form. In doing so, they mix different things. What belongs to the nature of contract stands next to rules for the court. This is shallow and clouds the concept of right.

    Summary: In an exchange, each remains the owner of the same value. So an exchange must not be grossly uneven. A contract about something you may not give away has no force at all.

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