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79

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. — Fichte1 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it contains the common will that has come about, in which the arbitrary will of disposition and its alteration has been superseded.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.

  1. Beiträge zur Berichtigung der Urteile des Publikums über die französische Revolution [Contributions to the Correction of the Public’s Judgements on the French Revolution], Sämtliche Werke, VI, 111 ff. ↩︎

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  1. Hegel (Notes) Avatar
    Hegel (Notes)

    My will is bound, common will – set into one with the will of the other; – that the unity has reality – α) through performance – β) stipulation – in the manner of will as something spiritual, through signs – word, gesture, writing; formality, elaborateness, handshake – the common will is there for both – my will no longer merely subjective for me. What is there is the externalization of my will and its connection with another’s; I have given this externalization existence; so that it is no longer merely a subjective one; – but a deed – posited outside me –
    The thing, after (post) the contract, is mine –
    My property α) of my will, β) of my possession; – that side externalized – stipulation;
    The difficulty lies, or lay, in the distinction of the utterance – namely that my will – before the utterance as performance – should be something inner, subjective – hence on my part capable of change; – merely an opinion – something similar occurs: incitement to riot, slander, abusive words – it was only an opinion that I expressed – and indeed only through words – a movement of the air, wind, which has already dispersed as soon as I made it; – what remains? – only the inner, and my opinion, subjective, which would remain only mine.
    Such words – are deeds and actions – In the world of representations one does not strike with cudgels, nor trade with gold, silver, etc. – no more than does a bill of exchange, because it is only words, written indeed, but only on paper, in black ink – yet it stands entirely in the place of money, as money stands in the place of goods – not only in its place, but, on account of its content, is fully valid money and value.
    Different rights – to fulfillment and to performance – to the kind of actions – that were to be brought – a sorry, crippled distinction – finally thrown together, overturned – thoughtlessness – that is, the universal not brought out –
    Pactum is in Roman law a contract – in part equivalent to a mere promise – but lacking the stipulation – namely stipulation as solemn formality – yet praetorian law gradually, and Justinian finally, abolished this distinction. Thibaut [Theorie der logischen Auslegung des römischen Rechts, 1799], see p. 125
    – Fichte – likewise concerning older Roman law –: “in the case of the unnamed contracts (that is, particular kinds not named in civil law) the obligation was based merely on the performance that had taken place; but this obligates only the recipient; he could therefore bring the action for fulfillment; but he could also, so long as the counter-performance had not taken place, or the recipient had made no expenditures toward fulfilling the contract commensurate with what he had received, – simply reclaim what had been given, on account of a change of mind, ob poenitentiam”. Thibaut [l. c.], p. 124.
    Contractus nomin[atus]: each produced a particular action named after it; contractus innomin. required that in each individual case the formula of the action be adapted to the particular case at hand; actio praescriptis verbis.

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