{"id":4751,"date":"2021-12-01T10:30:25","date_gmt":"2021-12-01T09:30:25","guid":{"rendered":"https:\/\/grundlinien.de\/?p=4751"},"modified":"2026-08-22T21:42:43","modified_gmt":"2026-08-22T19:42:43","slug":"80","status":"publish","type":"post","link":"https:\/\/grundlinien.de\/en\/80\/","title":{"rendered":"80"},"content":{"rendered":"\n

The classification of contracts, and an intelligent treatment of their kinds grounded upon it, is to be drawn not from external circumstances but from distinctions lying in the nature of contract itself. — These distinctions are those between formal and real contract, and then between ownership, and possession and use, value, and specific thing. There result accordingly the following kinds<\/em> (the classification given here coincides, on the whole, with Kant<\/em>‘s classification, Metaphysical First Principles of the Doctrine of Right<\/em>, pp. 120 ff., and it might long since have been expected that the customary sloppiness of dividing contracts into real and consensual, named and unnamed contracts, and so forth, would have been abandoned in favor of the rational classification):<\/p>\n\n\n\n

A.<\/strong> Contract of gift<\/em>, namely:
1. of a thing — properly so-called gift<\/em>;
2. the lending<\/em> of a thing, as the gifting of a part<\/em>, or of the limited enjoyment<\/em> and use<\/em>, of it; the lender here remains owner<\/em> of the thing (mutuum<\/em> and commodatum<\/em> without interest). The thing in question is here either a specific<\/em> thing, or else, even if it is such, it is regarded as a universal thing, or, like money, counts as universal in itself.
3. the gift<\/em> of a service<\/em> in general, e.g. the mere safekeeping of a property (depositum<\/em>); — the gift of a thing on the particular condition that the other party becomes owner only at the point of the donor’s death<\/em>, i.e. at the point when the donor is in any case no longer owner — testamentary<\/em> disposition — does not lie within the concept of contract, but presupposes civil society and positive legislation.<\/p>\n\n\n\n

B.<\/strong> Contract of exchange<\/em>,
1. exchange<\/em> as such:
α) of a thing<\/em> in general, i.e. of a specific<\/em> thing for another of the same kind;
β) purchase<\/em> or sale<\/em> (emtio venditio<\/em>); exchange of a specific<\/em> thing for one determined as the universal thing, i.e. one that counts, for use, only as value<\/em> without the other specific determination — for money<\/em>.
2. letting<\/em> (locatio conductio<\/em>), the alienation of the temporary use<\/em> of a property for rent<\/em>, namely:
α) of a specific<\/em> thing — letting proper, or
β) of a universal thing<\/em>, such that the lender remains owner only of this, or, what is the same, of the value<\/em> — a loan<\/em> (mutuum<\/em>; the former also commodatum<\/em> with a rent; — the further empirical character of the thing, whether it is a stick, implements, a house, and so forth, res fungibilis<\/em> or non fungibilis<\/em>, brings with it, as with lending as gift under no. 2, other particular, though not otherwise important, determinations).*
3. wage contract<\/em> (locatio operae<\/em>), the alienation of my producing<\/em> or of my rendering service<\/em>, insofar as it is alienable, for a limited time or according to some other limitation (see § 67<\/a>).
Related to this is the mandate<\/em>, and other contracts in which performance rests on character and trust, or on higher talents, and an incommensurability<\/em> arises between what is rendered and an external value (which here is not called wage<\/em>, but honorarium<\/em>).<\/p>\n\n\n\n

C.<\/strong> Completion of a contract<\/em> (cautio<\/em>) through pledging<\/em>. In contracts where I alienate the use of a thing, I am not in possession, but remain owner of it (as with letting). Further, in contracts of exchange, purchase, or even gift, I may have become owner without yet being in possession, as, in general, this separation occurs in respect of any performance where it does not take place hand in hand<\/em>. That I now also remain, in one case, or am, in the other case, put into actual possession of the value<\/em>, which either still is or has already become my property, without being in possession of the specific<\/em> thing that I am to hand over or that is to become mine — this is brought about by the pledge<\/em>: a specific thing that is my property only in accordance with the value<\/em> of my property that has been surrendered into possession or that is owed to me, but which, according to its specific character and any surplus value, remains the property of the party pledging it. Pledging is therefore not itself a contract, but only a stipulation (§ 77<\/a>), the moment that completes a contract with respect to the possession of the property. — Mortgage<\/em> and suretyship<\/em> are particular forms of this.<\/p>\n\n\n\n

Metaphysical First Principles of the Doctrine of Right<\/em>, Part I, § 31.<\/p>\n\n\n\n

* [Handwritten:] i.e. not important for the general determinations.<\/p>\n","protected":false},"excerpt":{"rendered":"

The classification of contracts, and an intelligent treatment of their kinds grounded upon it, is to be drawn not from external circumstances but from distinctions lying in the nature of contract itself. — These distinctions are those between formal and real contract, and then between ownership, and possession and use, value, and specific thing. There […]<\/p>\n","protected":false},"author":11,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[21,13],"tags":[],"class_list":["post-4751","post","type-post","status-publish","format-standard","hentry","category-paragraph-en","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/posts\/4751","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/users\/11"}],"replies":[{"embeddable":true,"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/comments?post=4751"}],"version-history":[{"count":2,"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/posts\/4751\/revisions"}],"predecessor-version":[{"id":4784,"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/posts\/4751\/revisions\/4784"}],"wp:attachment":[{"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/media?parent=4751"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/categories?post=4751"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/grundlinien.de\/en\/wp-json\/wp\/v2\/tags?post=4751"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}