[p. 241]
|241| in a thing of the same kind or of the same value.
§ 16
The declaration of will contained in the contract is not yet the actualization and execution of the passing of my thing or labour to the other. This transition on the ground of the contract is the performance.
Explanation. My promise in the contract contains that through my will I have excluded something from the sphere of the mine, and at the same time I have recognised that the other has taken it up into his own. Because now that something is mine, so far as it depends on me, has its ground in my will, the thing has through the contract already become the property of the other. Insofar, then, as I did not perform what was determined in the contract for the other or did not put him in possession, I would violate his property. I am therefore obligated by the contract itself to keep it (acquisition by testament).
§ 17
An infringement by another upon the sphere of my freedom can be either 1. of such a nature that he has my property as his own in his possession or lays claim to it in the sense that he has the right to it and, if not he but I had the right to it, would surrender it to me. He respects herein right in general and asserts only that in this particular case it is on his side. Or else 2. it lies in his action that he does not recognise my will at all and thus violates right as right.
Explanation. The concepts so far contain the nature of right, its laws, its necessity. But right is not a necessary of the kind that the necessary of physical nature is, – e.g. the sun cannot step out of its orbit. A flower must be wholly in accordance with its nature. If, for example, it does not fulfil its formation, this comes
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