The stipulation contains the side of the will, and hence the substantial element of what is rightful in the contract, as against which the possession still subsisting — insofar as the contract is not yet fulfilled — is, by itself, only the external element, which has its determination solely in that other side. Through the stipulation, I have given up a property and my particular arbitrary will over it, and it has already become the property of the other; I am, therefore, through it, directly and rightfully bound to perform.

The distinction between a mere promise and a contract lies in this: that in the former, what I intend to give, do, or perform is expressed as something future, and remains still a subjective determination of my will, which I can therefore still change. The stipulation of the contract, by contrast, is already itself the determinate being of my resolve of will, in the sense that I have thereby alienated my thing, that it has now ceased to be my property, and that I already recognize it as the property of the other. The Roman distinction between pactum and contractus is of a poor sort. — Fichte once put forward the claim that the obligation to keep the contract only begins for me with the other party’s performance actually commencing, because, prior to performance, I am in ignorance as to whether the other party seriously meant what he expressed; the obligation prior to performance is therefore, he holds, only of a moral, not a rightful, nature. But the expression of the stipulation is not an expression in general; rather, it contains the common will that has come about, in which the arbitrary will of disposition and its alteration has been superseded. What is at issue, therefore, is not the possibility of whether the other party was or has become inwardly of a different disposition, but whether he has the right to be. Even if the other party begins to perform, the arbitrary will to commit a wrong likewise remains open to me. That view shows its nullity at once, in that the rightfulness of the contract would be made to rest on the bad infinite, on a process running on into infinity, on the infinite divisibility of time, of matter, of action, and so forth. The determinate being that the will has in the formality of the gesture, or in language determinate in itself, is already its complete determinate being, as that of an intellectual being, of which performance is only the selfless consequence. — That there are, moreover, in positive law, so-called real contracts, as distinct from so-called consensual contracts, in the sense that the former are regarded as fully valid only when actual performance (res, traditio rei) is added to the consent, has no bearing on the matter. These are, in part, the particular cases in which this handing-over first puts me in a position to be able to perform on my side, and my obligation to perform relates solely to the thing insofar as I have received it into my hands, as with loans, contracts of lending, and deposit (which can also be the case with other contracts) — a circumstance that concerns not the nature of the relation of stipulation to performance, but the manner of performing; in part, it is left generally to arbitrary discretion to stipulate, in a contract, that the obligation of one party to perform shall not lie in the contract as such, but shall depend only on the performance of the other party.

Contributions towards the Correction of the Public’s Judgments on the French Revolution, Collected Works, VI, 111 ff.