Christian Wolff: Natural right 6 – What a scholar must do

Wolff ends this part of Jus naturae with a study of the duties of a scholar, that is, a person who knows of things. Wolff begins by noting that there are different kinds of scholars depending on what the person in question knows: e.g. there are scholars of law and scholars of languages. Furthermore, he continues, scholars come in different grades. Scholars of the lowest or vulgar order merely know facts. More experienced scholars, on the other hand, have philosophical or even mathematical understanding why something is true. The highest order of scholars, finally, are capable of finding new truths.

Wolff suggests that all scholars should aim for the proper place in this hierarchy, that is, the place where they can achieve something. Thus, if they can ascend to a higher order, they should not be content with remaining on a lower order. Indeed, scholars of all orders should continuously try to progress further, Wolff says, and not be satisfied with the knowledge of things they have already acquired.

Wolff is also a proponent of cooperation in scholarship: if some scholar can help others further, for instance, by providing advice in acquiring information or in finding new truths, they should do so. Particularly, scholars of superior grades should teach those of inferior grades things that are useful in promoting knowledge and understanding. On the other hand, a scholar who cannot decide something on their own should follow the guidance of other, preferably more experienced scholars.

The goal of a scholar, Wolff determines, should be to propagate knowledge and science and to develop them, unless this would be contrary to other important duties. This general goal has many subgoals, as it could imply perfecting one’s intellect, but also perfecting one’s will (if we are speaking of the science of morals) or even perfecting arts that serve humankind to reach necessities, commodities and pleasures of life.

Scholars can have different careers, depending on what they are good at (e.g. whether they are used to working with their hands or with mere intellect and how they apply what they know to other things). Whatever their career choice, Wolff explains, a person following a career should especially know the things they work with. If a scholar wants to pursue any career and they haven’t decided yet what it should be, they should choose it depending on their abilities.

An important task for every scholar, Wolff emphasises, is to have a cognitive faculty they can use readily. This implies that they should especially perfect their intellect. Furthermore, their intellect should enable them to discern true from apparent good and have enough understanding of the natural law for cultivating virtue. Because of this assumed expertise, scholars are expected to be more perfect in virtue than ordinary people and to show a good example to others.

Wolff thinks that all scholars should be given as much praise as they merit. Then again, no scholar has a right for praise, if they do not merit it. Thus, they have no right to complain, when they are not praised in this case. Wolff also insists that no scholar should envy another for being praised, even if the other person does not really merit it: we are allowed to praise anyone we want, provided this is not done contemptuously.

According to Wolff, scholars have the right to defend their own fame or fame of others against those who challenge it. Then again, they are not allowed to contend for their fame by showing contempt toward others. Similarly, scholars are not allowed to gain favour of their countrymen by deriding other nations, or vice versa, to gain favour of foreigners by deriding their own country.

Scholars of second and primary order, Wolff continues, have as their special duty to raise disciplines of science to such a grade of certainty that they can and to distinguish truth in these disciplines from falsehoods. Then again, they should not undertake judgement of such things, which they have not endeavoured to know so meticulously as things, in which they excel. Thus, they should not attempt to reach greater certitude in things, which they are not yet adequately acquainted with.

Who is able to correct or refute errors committed by others has the right to do this, Wolff thinks. Then again, scholars of lowest order are not able to do this and have therefore no right to refute others and even less to correct errors. Wolff notes there are two methods of refuting people. In direct refutation, one is to demonstrate propositions as true what the other thinks is false or to show the manner in which the other falls into error. In indirect refutation, one is to assume as true what the other asserts and then infer from it propositions that the other acknowledges as false. Refutation should also not contain any scorn or arguments conducted out of hate.

In Wolff’s opinion, freedom to philosophise belongs to scholarship. Indeed, he thinks that everyone is permitted to propose their opinion on philosophical matters and also are to be permitted to publicly say their opinion on them. Thus, no one should be forced to defend an opinion that they hold to be untrue. Hence, although scholars have a right to defend truth against assailants, this truth cannot and shouldn’t be defended with external force.

Christian Wolff: Natural right 6 – Not yet living

From dead Wolff turns to those not yet living. Just like with the former, Wolff notes first that future generations do not have any rights and hence cannot acquire any property. This lack of rights extends, according to him, even to foetuses that are still in the uterus. Thus, if I say that I transfer some right to an unborn foetus, this isn’t literally true. Even so, Wolff adds, my statement still creates an obligation that I will transfer the right to the baby when they have been born.

More generally, Wolff thinks that although the unborn cannot have any proper rights, they can have some sort of quasi rights in the sense that they will acquire rights when they are born. Thus, there can be an agreement that a certain right will be passed on to the descendants of the person who currently has that right, after this person died, even if these descendants do not yet live. In the case of a foetus in the uterus, this quasi right cannot be removed and it has an equal juridical status as a promise that is supposed to be fulfilled if some condition occurs. Thus, if a thing is given to an unborn child and then delivered in my possession, I am expected to hand the thing over to the child, once they have been born.

An interesting case occurs, when a person relinquishes a right that was supposed to pass on to some unborn people. Wolff insists that such a renunciation is impossible, if the unborn person in question is already a foetus, but possible, if they are not even that. Furthermore, Wolff notes, the renunciation could also be done in such a manner that the quasi expectation of receiving the right when born would remain with the unborn people.

Wolff thinks that we also have some duties toward future generations, and indeed, that we should love and care for the generations to come. Such duties include that we must make sure that scientific truths and arts discovered by us are received by future generations by spreading new knowledge. Moral virtue is also something Wolff thinks should be transferred to future generations, for instance, by writing down examples of virtuous behaviour and teaching them to young people. Finally, Wolff suggests also that the happiness of future generations should be taken care of by e.g. planting fruit trees.

Christian Wolff: Natural right 6 – Bury your dead

Next topic Wolff discusses concerns the rights of dead humans. His first verdict is that the dead have no rights: as soon as a person dies, they lose all their rights, and at the same time, all their obligations vanish. This means particularly that the dead cannot own or possess anything, so that all things they had cease to be theirs.

The obvious question now is what happens to the things the dead person owned, and more extensively, to all the rights they had. Wolff notes that if the right in question was personal – something only they could have, such as when their neighbour allowed them to borrow a horse occasionally – this right just vanished at the time of death. On the other hand, other kinds of rights and particularly all property can be transferred from one owner to another. Thus, a person can decree that at the time of their death these rights and things will be transferred to a certain person. Sometimes the transfer happens even automatically, for instance, when the dying person owed something to another, what was owed should after the death naturally pass to the other. Only in the case that the dying person did not own enough for covering this debt, is it at least partially annulled. Furthermore, Wolff clarifies, while the rights and the property can change owner at the event of death, debt does not, that is, if you inherit something from a person, you are not obligated to pay what the dead person owed to someone else.

Although the dead do not have rights in some sense, Wolff continues, they do have rights in the sense that people still have obligations concerning them. For instance, if the dead deserve some praise, they should be praised even after their death. More generally, any good things they have done should be returned in some manner, for example, by doing good to people they had loved. This duty, Wolff thinks, should be followed especially by those who benefited from the deeds of the dead person, including those who inherited something from them.

What then of the dead who have done things that go against all morals, such as murderers? Wolff thinks that it would be best that such acts would be simply forgotten, so that no one would be influenced by these examples. If the deeds are well known, then they could be discussed, but only with the intention of instructing people not to do such things. Thus, bad deeds of the dead should be excused, as much as possible.

In Wolff's opinion, every dead person deserves some respect just due to their humanity and should thus be treated with some respect, even if they were our enemies. This respect concerns even the dead body or the corpse, which should not be treated like dead animals, Wolff insists. All dead bodies should be removed from the sight of the living, since corpses transmit diseases, but they should not be thrown to dogs or left rotting. Wolff underlines that human corpses should especially not be eaten, except in extreme necessity.

Wolff admits that there’s a number of appropriate ways to dispose of a dead body, such as cremation. Still, he thinks that the most convenient and thus the preferred way to deal with the corpse is burial, where the dead body is covered in soil. Right of burial is thus a universal right of all humans, and to show our respect to the dead, we should attend the funeral ceremonies where the dead are buried.

Where the dead can be buried, then? Wolff notes that in the natural state, the dead could be buried anywhere, but after the introduction of ownership, it requires the permission of the owner of the land. Thus, there arises a need for cemeteries or places where people are customarily buried.

Memory of the good and illustrious deeds of the dead should remain alive, Wolff notes. For this reason he recommends raising monuments, not just at the place where the remains of the dead are buried, but even in other places (these are particularly called cenotaphs). Other means include making funeral orations and inscribing epitaphs at monuments.

Funerals are not just about the simple fact of burying the dead, Wolff adds, but they often include ceremonies and rituals that are not strictly necessary for the sake of the burial itself. One such ritual is that people are not buried in nude. Wolff explains that this should be a universal custom, since it helps us to further separate dead humans from dead animals. Then again, he adds, there is no general rule whether the corpse should be wrapped in linen or whether the dead person should just wear regular clothing, but this must be decided by the circumstances. In any case, if the clothing symbolises the love and gratefulness toward the dead person, Wolff considers it appropriate that the clothed body is exposed to the eyes of the people in the funeral, for instance, by opening the coffin before lowering it to the grave.

We usually feel sad, when people dear to us have died. Thus, Wolff says, it is just natural that we show some external signs of sadness, such as crying. Furthermore, he adds, it is quite appropriate that we voluntarily choose to show further signs of mourning, such as a certain style of dress we wear.

Wolff concludes the chapter with a question controversial for a long time: is it allowed to dissect human bodies in order to learn about anatomy? He notes that dissection is essential to understand what makes humans healthy and what causes sickness. Furthermore, he adds, knowing the structure of the human body lets us also glimpse to the mind of its creator or God. Hence, Wolff sees no reason why bodies could not be dissected, as long as it is not done to living humans and as long as the dissected bodies are given a decent burial.

Christian Wolff: Natural right 6 – Right of necessity

One of the major topics of Wolff’s earlier volumes of Jus naturae was the distinction between the primaeval community of things and the later introduction of private ownership. Wolff considered the move toward the latter a good thing, but now he reveals that the ownership is not an absolute thing: there is a tacit assumption that if a person is bereft of necessities of life, they can even use things owned by another to satisfy these necessities. This right he calls a residual right remaining from the primaeval community.

This residual right, Wolff continues, is but an example of the more extensive class of rights of necessity (jus necessitatis). By this he refers to any right to do something that is usually not allowed, for the sake of some indispensable obligation that could not be otherwise satisfied. In other words, a right of necessity occurs in cases where several laws collide with one another. Indeed, he adds, all natural laws have tacit exceptions that they need not be followed, if some inevitable necessity prevents this. For instance, although we are usually obligated to help people in danger, the case is different if we are also in danger and have to first and foremost save ourselves.

While duties toward others can be overridden by right of necessity, Wolff insists, duties toward God cannot. In other words, Wolff thinks God should be worshipped, no matter what the necessity. Immediately after saying this, Wolff notes some exceptions. We should worship God internally, but we cannot do this, if we happen to be out of our mind – still, even in this case, Wolff notes, the obligation to worship exists, but it has just been suspended until we come back to our senses. In case of external worship, such as going to church, on the other hand, there might be some other duty that requires immediate satisfaction and thus prevents us from going to church for the time being.

Wolff goes into more detail investigating various cases where a right of necessity holds. One very classical example is that of shipwreck, with people trying to save themselves by using a boat that cannot carry all the passengers. Wolff thinks that, in general, first come is first served, and if all enter the boat at the same time, the stronger ones can just throw away the weaker ones. The case is somewhat different, he thinks, if the owner of the boat is present, as they have the right to decide who is to board the boat.

An example particularly relevant to rights remaining from the primaeval community occurs when a person is starving, but cannot obtain food by purchase, work or even begging. In such a state, Wolff says, the person is allowed to just take what they need from others, if necessary, even by using violence, and this is not to be seen as theft or robbery. More generally, if a person necessarily requires the use of a thing they cannot otherwise obtain, they can use such a thing belonging to someone else: for example, we are allowed to use weapons of another person, if we are threatened by an assailant and have no means of our own to defend ourselves. Even so, Wolff adds, the thing in question should be returned to its original owner, if possible. If not, for instance, if the thing is consumed by its use, like a piece of food, similar thing or at least something of equal worth should be returned.

A case that intrigues Wolff very much is that of a common danger making it necessary to destroy the property of a person, say, when an impending shipwreck necessitates throwing some cargo in the sea or when preventing the spread of fire requires wrecking some building. The basic principle is simple – if the destruction is necessary, it can be done, but the damages are to be compensated – but the more intricate question is who is to contribute in each case. In the case of cargo thrown from the ship, Wolff suggests that the compensation should be the duty of the owner of the ship and of everyone who had cargo that was not thrown in the sea, and to determine how much each is to contribute, the value of the destroyed and the saved cargo and of the ship with all instruments is to be estimated. To make matters even more complicated, Wolff adds that passengers and the payment they have contributed should also be taken into account, as well as the weight of various pieces of cargo and even of the passengers (e.g. if someone has thrown away lighter, but more expensive cargo, they should be more responsible of the damages). And of course, if the ship sinks, even if cargo was thrown in sea, no contribution is required.

In the case of the house destroyed because of raging fire, Wolff explains, the owners of the buildings that the fire could have reached should first and foremost contribute to the compensation for the damages. Wolff makes two important exceptions: firstly, those whose buildings were not saved, but burned down, need undoubtedly not contribute, and secondly, if the destroyed building was already being burned to ground, no one has to compensate for anything. Finally, if there was a certain person who was responsible, either through deliberate choice or through negligence, of the fire, this person is solely responsible for the compensation.

Wolff argues that the rights remaining from the primaeval community also go further than mere jus necessitatis. This is the case with what Wolff calls res innoxia utilitas, that is, something that we can use to our advantage without harming anyone, not even the owner of the thing, An example Wolff provides is a river: its owner is not hurt in any way, if someone draws water from it. A perhaps more important case of innoxia utilitas is that of using other people's lands. Passage through those lands and their rivers, roads and bridges should be allowed for both people and their merchandise, unless there is reasonable fear for damages, Wolff insists, although the owners might ask for a fee to provide for the maintenance of the road network. Wolff even thinks one is allowed to remain for a time in the lands of others for just reasons, and homeless people should even have the right of perpetual habitation. People should even have a right to acquire things they need for living for a fair price, which requires the maintenance of inns for travelers.

Christian Wolff: Natural right 6 - How to read contracts?

After various types of contracts, Wolff considers the more general problem of how to interpret them, that is, how to decide what the persons making the contract have wanted to say with the words in it. In other words, the question is of the intentions behind the linguistic expressions.

Wolff at once notes that interpreting contracts involves something very different from interpretation in general. Usually, it is all just about clarity. If the words have a fixed meaning and the writer or speaker is known to express their intentions sufficiently, no further interpretation is required. If the words or their meanings are not clear, we can then just simply ask the writer or the speaker to explain them further, since they know best what they intended to say.

In case of contracts, Wolff points out, there is something that interrupts this simple scheme: obligations. Now the person promising to do something is not the best person to ask what they meant by their words, since they might wish to deny some obligations they had promised themselves to. Similarly, the person who the promiser is obligated to is also not fit for interpreting the words, because they might want to have the promiser provide them more than was accepted.

The interpretation of contracts, Wolff concludes, should then happen through certain rules that can be accepted by all parties involved. In the best case, he adds, these rules could be demonstrated as being the correct ones. When the rules and the corresponding right interpretation have been decided, the obligations are now determined.

To make interpreting easier, Wolff notes that people making the contract should speak in such a manner that they can understand one another. More particularly, they should use the words in such a manner that makes their speech understandable – Wolff calls this using the proper meaning of the words. More generally, they should use all terms in the received sense and they should not knowingly and willingly depart from this. From the standpoint of interpretation, Wolff continues, the words should be presumed to be received in their proper meaning and terms in their received sense, unless some urgent reasons to the contrary appear. In other words, interpretations should mostly follow the common use of words.

Wolff takes into consideration that the contracts are sometimes interpreted much later than they have been made. In such cases, he notes, the interpretation should use meanings that the words had at that earlier time. Then again, he adds, the interpretation should not follow what he calls the etymological meaning of the words, that is, the supposed original meaning of the words, from which the later meanings have evolved.

Wolff observes that if the persons making the contract have expressly said how the contract should be understood and the contract has only common words with clear meanings, the interpreter should follow the common meaning of the words closely. More generally, if it becomes evident, what sense of the words agree with the intentions of the people making the contract, it is not allowed to suppose any other intentions behind the words. If the contract contains some technical terms, they should be generally interpreted by definitions common in the discipline in which they are used.

Wolff also considers homonymy, where the same word has different meanings, and amphiboly, where the same expression consisting of many words has different meanings. Obviously, homonymy and amphiboly cause difficulties for interpreting contracts. Wolff notes that in some cases different occurrences of the same word or expression might have to be interpreted in different manners. Generally, he adds, if homonymy or amphiboly make the intention of the contract obscure, the meaning agreeing best with the topic in question should be preferred.

A strict rule Wolff endorses is that any interpretation leading to something absurd should be rejected. This rule is to be followed, even if it would mean ignoring the proper meaning of the words. In particular, contradictions should be avoided.

Contracts are often long pieces of text, and while some passages might be transparent, others might still be obscure. In such cases, Wolff notes, the obscure parts are to be interpreted in a manner that agrees with the clearer passages. More generally, he continues, the different parts of the text should be usually interpreted in such a manner that they agree with one another, unless it is evident that e.g. later parts of the text change what was said in earlier parts.

Since the contracts are the expression of the volitions of the persons making it, interpreting them often involves studying the intentions of those persons. Thus, Wolff says, if we know the reason why the persons behind the contract wanted to say what they say in the contract, the words of the contract are to be interpreted in such a manner that they agree with this central reason. If there were many different reasons that all in conjunction made the persons to do the contract, the interpretation should agree with the sum of these reasons. Then again, if we know many alternative reasons that could have been behind the contract, the interpretation should agree with these reasons in separation.

Wolff notes that contracts often have what could be called favourable and burdensome parts. Favourable in contract is, Wolff defines, what cares for the common good of all sides of the contract, while burdensome is what burdens one side more than the others – an example of latter would be penalties attached to a contract. In interpreting the favourable parts, Wolff insists, words should be understood in the most extensive sense they can be, unless this interpretation would lead to some absurdities or unless a stricter reading would be more useful for all participants of the contract.

On the other hand, Wolff thinks, when interpreting the burdensome parts of the contracts, words are to be taken in a stricter sense, although even a figurative understanding of the words is admitted, if this helps to avoid great burdens. In the particular case of punishments, this rule implies that placing guilt upon a person would require stricter definitions, so that there would be more reasons not to punish anyone. Similarly, if a person has promised something quite liberally, a more lax interpretation is to be avoided if such would burden the person who promised too much.

Another general rule Wolff suggests is that interpretation should be made in such a manner that the speaker or writer would have interpreted it, if they were present and knew all relevant circumstances that had become common knowledge after the contract has been made. Thus, if the sufficient reasons behind the persons making the contract were known, the same interpretation could be extended to cases which literally are not included in the terms of the contract, but would agree with these sufficient reasons.

Continuing with the negative case, Wolff adds that if some case would literally agree with the terms of the contract, but would somehow contradict the intentions of a person in the contract, the interpretation should restrict the meaning of the words. Similar exceptions to terms of a contract can be made, according to Wolff, when following the strict meaning of the words would contradict natural law or would be too burdensome to some person involved in the contract.

An interesting case occurs when two contracts contradict one another and some exception has to be made. Wolff notes that because a contract contains promises and therefore causes obligations, it can be handled similarly as laws. Thus, following what he has said in a previous part of his study on natural law on collision of laws, he notes that if one contract e.g. permits or even orders something that another contract forbids, the forbidding contract is to be preferred. More generally, contracts involving stronger obligations trump contracts with weaker obligations. Thus, a contract with an oath or a penalty attached to it is to be preferred to a contract without them. If no reason for choosing one contract over the other is found, the decision can be made by agreement of all persons involved or even by lot.

Christian Wolff: Natural right 6 – Feudal relations

In the second chapter, Wolff continues with a special case of the dominum utile, namely, feudum or fief – we are now speaking of legal relations that work as the basis of feudalism. What differentiates feudum from other kinds of dominum utile is that both participants of the feudal contract – the owner and the vassal – agree to provide to one another fidelity, in other words, some duties that are further determined in the contract: for instance, the vassal might agree to provide military service to the owner, while the owner might then agree to protect the vassal.

Otherwise, the properties of the feudum are simply those of a dominium utile, for example, the vassal can use the feudal thing as they want, as long as they don’t do anything to harm its very substance, which is the property of the owner. The vassal can improve the feudal thing, unless even such changes have been explicitly denied.

The paragraphs above would really be all that can be said of a feudum in general, that is, Wolff says, its substantial determinations. Yet, when agreeing on the feudum, the owner and the vassal can add further conditions that lead to further rights and obligations. For instance, the owner can set a price or an annual payment for feudum or it could be contracted only for some period of time or e.g. for a certain family line (Wolff mentions the possibility that the feudum could be inherited by both sons and daughters or even only by daughters, but in every specific example he speaks only of sons, which was, of course, historically the most common option).

A feudal contract is usually valid, when the owner and the vassal agree on its conditions. Yet, Wolff adds, they may also agree that a certain formal document called the letter of investiture is written. He thinks that such a written document agrees well with the law of nature, since it makes the conditions of the contract explicit.

A condition Wolff considers most extensively is whether the feudal contract allows the vassal to transfer the feudum to someone else, that is, to donate or to sell it, and if it is allowed, whether the consent of the owner is required for this. In case this is allowed, the feudum must be similarly structured as it originally was, except if the feudal contract adds some additional conditions to these (for instance, the owner might demand a further payment from the new vassal). Still, if the original contract determined e.g. a certain type of service from the original vassal, the new vassal must also provide it to the owner.

Usually the owner does not need to ask the vassal, if they want to transfer their ownership to someone else – the feudum just remains valid, with the same conditions as originally. Still, the owner and the vassal can also agree, Wolff notes, that the owner cannot donate or sell the feudal thing at all or not without the consent of the vassal. If such a condition holds and the owner still does transfer their ownership to someone else, the vassal is not obligated to provide any services determined in the feudal contract to the new owner.

What kind of things can then be given as feudum? The historically most obvious example is, of course, some piece of land, but Wolff thinks that the feudal thing can be anything that is not consumed by its use, like a piece of furniture. Things consumed by use – say, a portion of wine – cannot be made a feudal thing. Yet, even such consumables can be indirectly made into a feudal thing, Wolff suggests, that is, by making a right to such consumables into a feudum. As an example Wolff gives what is called feudum de caneva (literally, a fief from cellar), where the vassal gains a right to e.g. use a certain portion of wine from the owner’s provisions during the vassal’s life.

Making a feudum of a right to some consumable things is one way to involve these consumables into a feudum, but Wolff notes also a more direct manner. That is, if a person gives some consumable – usually, a portion of money – to another, who provides as a surety something else (say, a house), we can think of the money, or whatever the consumable is, as something not consumable. With such surety in place, the owner of the money can then give the right to use the money to another person, in the sense that this other person can attempt to use the money to make more money through business deals or by loaning it with some interest. This is then a new kind of feudum, which Wolff calls both feudum pecunia (literally, fief on money) and quasi feudum, implying that this is a sort of extension of the proper sense of feudum.

Assuming it hasn’t been explicitly forbidden in the feudal contract, the vassal can create to their feudum a new feudum, which is then called subfeudum, Wolff points out: so, if the vassal has a right to use a certain piece of land, they can then hand a right to use a part of this land to someone else. What holds for any feudum obviously holds for any subfeudum, but the latter always has the further condition that the subfeudal contract someone makes with the vassal cannot contradict anything in the original feudal contract that the vassal made with the owner. The process can obviously go indefinitely further and a subfeudum can have a subsubfeudum etc.

Often a feudum runs in a family, so that when the original vassal dies, one of their descendants becomes the new vassal (usually the oldest son). Now, it may well happen that some family dies out, so that no one to have the feudum exists anymore. In such a case occurs what Wolff calls apertura feudi, which means simply that the feudal thing returns fully to its owner; in this case all possible subfeudum expire also. The same relation does not hold the other way around, that is, if the owner happens to die without any heir, the vassal does not become the owner – unless, of course, the feudal contract says so.

Wolff has already spoken of the possible selling or donating of a feudum, but a case of pawning requires more discussion. Of course, if the feudum cannot be sold or donated without the consent of the owner, it cannot also be pawned without this consent. The vassal can pawn the use of the feudum or its products, and this is what they must have understood to have implicitly pawned, if they pawn the feudum without the consent of the owner. Yet, Wolff adds, if the apertura feudi is near, that is, if the feudum is about to return to the owner, since the vassal has no heirs, pawning is forbidden even with the consent of the owner. Furthermore, even if the vassal has heirs and the owner does consent to the pawning, the heirs do not have to. Then again, only the right to use and the products of the feudum are pawned, and once the vassal has died, the heirs of the vassal are in no way obligated to provide anything else to the debtor of the vassal.

Another concept Wolff investigates is revocatio feudi, where the person who has the power to do so asks to retrieve the feudal thing. This does not usually mean the owner asking the vassal to return the feudum, since the owner does not have such a right, unless the feudal contract says that the owner can do so whenever they want. The more usual case is when the vassal has sold or donated the feudal thing without the consent of the owner or heirs, who then can ask the new holder of the thing to return it to them, once the vassal has died. In that case, the owner or the heirs need not refund the price of the feudal thing to its holder.

Another question Wolff considers is whether the vassal can refute the feudum, that is, to reject the right to use the feudal thing and to be freed of all the obligations involved in the feudal contract. In refuting the feudum, the vassal can either want to return the right to use the feudal thing to the owner or then to transfer it to someone else. In the prior case, the vassal can refute the feudum, unless this is against the rights of the owner, for instance, when the refutation is done, because the vassal wants to escape military service that the owner requires from the vassal according to the feudal contract. Furthermore, although the vassal has returned the right to the feudal thing to the owner in refuting the feudum, the heir of the vassal can later demand its return, when the vassal has died.

When the vassal refutes the feudum and intends to transfer the feudal thing to someone else, the important question is whether this intended new vassal is some heir of the vassal or just any outsider. In the latter case, the refutation of the feudum would simply mean its donation, which Wolff has already considered. In the previous case, the refutation can simply happen if the feudum is to go to the immediate heir of the vassal. Then again, if it should go to some other heir – say, a grandson, instead of the son – the immediate heir can insist the restoration of the feudum to them, once the original vassal has died.

An interesting case arises, when the vassal refutes the feudum and wants it to go to their immediate heir, who then at once wants to transfer the feudum to their heir. In that case, Wolff says, the important question is whether the vassal wanted the feudum to go specifically to the immediate heir or whether they just wanted to get rid of it. In the prior case, the feudum returns to the original vassal, in the latter case, it goes to the second heir.

The last thing Wolff investigates of feudum is the possible breaches against the obligations of the feudal contract. Obviously, any duties left unfulfilled mean a breach, such as if the owner does not provide the agreed protection to the vassal or the vassal the agreed military service to the owner. Wolff does note an exception to the latter case: if the owner is engaging in an unjust war, the vassal does not need to help them, even if the feudal contract would say so.

More serious breaches occur, if the substantial determinations of a feudum are broken, for example, if the vassal does not show any fidelity to the owner. This would happen, if the vassal does not want to avert damages to the owner or promote their advantage, when they can, and even more so, if the vassal causes damage to the owner or wants to do something against their health or in any manner conspires to do something like this. Thus, the vassal breaches the feudal contract, if they threaten the life of the owner, plan an ambush or enter into a destructive agreement with the enemies of the owner. They even commit a breach, if they desert the owner in battle or other hazard or do not help them.

Wolff notes some exceptions. If the vassal and the owner are in a common danger and the vassal prefers to save their own life over the life of the owner, no breach occurs. Similarly no breach happens, if the vassal kills the owner when the owner has first attacked the vassal with superior force and the vassal could not avoid being killed or mutilated, unless by killing the owner first.

Whatever the breach is, Wolff says, it does not lead to the vassal losing the feudum or to the owner losing their ownership, unless it is particularly agreed so. Even if such an agreement exists, the one behind the breach can still pay for their crime. In case of the vassal committing the breach, if they do not make any amends, the feudum would still continue in the sense that their heirs have a right to ask the feudum to be given to them, once the original vassal has died.

Christian Wolff: Natural right 6 (1746)

The sixth volume of Wolff’s Jus naturae seems like the same kind of mishmash without any common theme as the previous one. Thus, Wolff merely begins with a new type of contract, this time, dominium utile, which means simply a right to use and enjoy freely something, where the substantial part of that property – the so-called dominium directum – belongs to someone else. In effect, the dominium directum is the more superior form of ownership, since the person with it can donate or sell the thing, although the person with the dominium utile would still retain their right to use and enjoy the thing. Both forms of ownership must have been constituted by a person who has previously had a full ownership of the thing in question: they might have either disposed of the dominium utile and dominium directum to two different persons, or they could have retained for themselves either the dominium utile or the dominium directum.

Now, Wolff goes through various types of dominium utile, first of which is called emphyteusis. In emphyteusis, the property in case is immovable (e.g. a piece of land), and the holder of dominium directum is provided an annual payment called canon by the holder of dominium utile or emphyteuta: in effect, this is the case of renting something for use. What this canon is can be determined freely by those making the contract – it can consist of money, but it can also consist of wheat, fruits, wine, eggs or really anything. Furthermore, the quantity of canon can be determined freely and it need not be proportional to the usefulness of the property for emphyteuta. The important point is that it must be paid, no matter of the financial situation of emphyteuta: for instance, if the case is of land, it must be paid, even if the harvest had been meagre. Of course, Wolff admits, it would be a decent thing to do, if the the holder of the dominium directum would let emphyteuta pay less or even not pay at all during bad years.

Now, Wolff continues, the contract at the base of emphyteusis can give the emphyteuta the right to hand over the property in question to another person, who then becomes the new emphyteuta. The contract might also specify that the holder of dominium directum is to be given what is called laudemium or honorary payment by the new emphyteuta, whenever this emphyteuta is changing. Then again, the person who has the dominium directum can hand over this ownership of the thing without asking emphyteuta anything.

Wolff notes that emphyteusis can have further conditions, for instance, it can last for some predetemined time or be granted to a certain group of persons (e.g. a family line). Naturally, when the time in question has elapsed or if there are no persons left that are specified in the contract, the emphyteusis is cancelled and the full right to the property is returned to the holder of dominium directum. On the other hand, if the holder of dominium directum dies without any heir, the emphyteuta does not get full rights, unless this has been expressly agreed upon in the contract. Instead, no one has in this case the dominium directum anymore. Then, Wolff explains, anyone would have the right to take this dominium directum and make it their own. If the person who does this happens to be emphyteuta, then the full rights return to them and emphyteusis ends.

Emphyteusis is a contract that can be repeated in the sense that if a person has acquired a right to use and enjoy some immovable property, they can sell or donate a further right to use and enjoy this same property to someone else (think of a renter of land renting a portion of this land to another person). This further contract is then called subemphyteusis. Largely the same considerations as concerned emphyteusis concern also subemphyteusis, but there is also the further condition that subemphyteusis cannot contradict what has been agreed concerning emphyteusis.

While in emphyteusis the original owner retains the primary ownership to a thing, which he then just, as it were, leases to someone else, the case is completely opposite in what Wolff calls contractus libellarius. Here, the original owner forfeits the ownership of a thing to someone else, but only on the condition that the new owner will provide an annual canon or payment to the original owner. Contractus libellarius has also a clause stating that after a certain period of time the new owner must renew the contract for a certain price. If the new owner fails to do this or fails to provide the annual payment, the thing in question is to be handed to a yet new owner, who then has to follow the same conditions for annual payment – unless, of course, the ownership of the thing returns to the original owner, which means then end for the contractus libellarius. Still, because the contractus libellarius means actual change of ownership, the new owner can otherwise use the thing as they want and even donate or sell it to someone else

Quite similar to contractus libellarius is jus censiticum, by which Wolff refers to a right of annual income that one has from immovable property that belongs to someone else. The similarity is even more marked in the case where this right is what Wolff calls census reservativus, where the owner has sold an immovable thing to someone else on the condition of annual income, the only differences being that census reservativus concerns explicitly immovable property and that there need not be any time limit attached to it. The other form of jus censiticum or census constitutus happens when a person buys or accepts as a donation for themselves jus censiticum to something.

The final type of dominium utile Wolff considers in this first chapter is jus superficiei, which concerns particularly property on someone else’s grounds. Usually, it means a right to have a building owned by oneself on the land of another person, but the right might also concern something else, like a garden or a forest. Jus superficiei must be conceded by the owner of the land – it can be freely determined whether the right is donated or sold or conceded for an annual payment. The building in question can already exist on the grounds or it might be constructed after the contract has been made. Furthermore, if the building burns down or is otherwise destroyed, the owner of the building, called also superficiarius, has the right to build a new one. Jus superficiei also extends to the use of the pathways the superficiarius has to go through when accessing the building. Since the building in question is owned by the superficiarius, they can naturally do with it anything that an owner can do, provided it does not break the rights of the landowner – they can e.g. donate, sell or rent the house to someone else.

The final thing Wolff deals with in the first chapter concerns the possible annual payments involved in any dominium utile. These payments, he notes,can be pensiones promobiles, that is, there might be a further condition that if the payment is not made on time, the required sum continues to increase.

Christian Wolff: Natural right 5 - Serving others

Wolff ends this hodgepodge of a book with the notion of servitus. Wolff’s definition of servitus might at first seem rather difficult to comprehend - servitus is a right one has to a thing of another person. The idea becomes clearer when we move from this abstract level to more concrete examples. One particular instance of servitus is such where a person is allowed to walk or ride through another person’s estate to their own. Other types of servitus might involve a right to hunt in neighbour’s land, right to collect nuts or berries from it or a right to draw water from a well in it.

All the examples just given involve estates in a more rural area, but there are forms of servitus that are appropriate to more urban living areas. Thus, in one type of servitus a building may use the wall of another building as a supporting structure. Furthermore, the examples have all been affirmative in the sense that they allow a person to do something to the thing of another. Another type of servitus is negative in the sense that it involves a right to prevent an owner from doing something. For instance, an owner of an estate might be prevented from building a too tall building that would obstruct the view of the neighbour.

Majority of servitus are, Wolff insists, based on the free choice of the owners of the things in question. Yet, he admits, some of them might be obligated by the natural law. For instance, an owner of a building should take care that neighbouring buildings still receive enough light for normal proceedings of life. Thus, a building owner might be obligated into a servitus, where their neighbour is able to demand the placement of windows on their building, so that light can come through to the neighbouring estate.

All the examples of servitus presented thus far have been what Wolff calls a real servitus, that is, they involve relations between two estates. This type of servitus remains valid, even if the owner of the estate changes. A completely different is the case with what Wolff calls personal servitus, which is tied to a certain person and is cancelled e.g. if the person in question dies. A good example of this type of servitus is usufruct, in which a person is allowed to use a thing belonging to another person and even gather profits from it, as long as the thing in question remains substantially same.

Christian Wolff: Natural right 5 - Pawnshops and mortgages

Next topics in Wolff’s natural right are jus pignoris and jus hypothecae. The basic idea behind both is the same: a debtor pledges something for the creditor as a surety of the debt. In other words, if the debtor will not pay the debt at agreed time, the creditor has a right (jus) to sell the pledged thing to cover the remaining debt. In case of jus pignoris, the pledged thing is literally handed to the possession of the creditor - think of a pawnshop - while in jus hypothecae, the pledged thing is not and perhaps even cannot be transferred to the possession of the creditor - a good example is a mortgage loan, where the debtor uses their home as a security for a loan. In case of jus hypothecae, the pledged thing can also be something that does not yet exist, such as fruits of the next season.

The main point in both jus pignoris and jus hypothecae is then the creditor’s right to sell the surety, unless the debt is paid on time. Wolff notes that this is a conditional right, and if the creditor tries to sell the surety before the debt was due, the creditor loses completely the right to sell the surety. Furthermore, he notes, the pledged thing should be sold for a fair price, and if the money received from the sale exceeds the debt, hyperocha or the excess is to be handed to the debtor. Then again, if the money received is less than the debt, Wolff adds, the debtor is to provide the rest in some other manner.

If no one is willing to buy the pledged thing or if all buyers offer inadequate payments, Wolff continues, the creditor can also take the pledged thing itself as a payment of the debt. Then again, the creditor need not do this. In the latter case, if the debtor has no other way to pay the debt, the creditor should just wait for finding a suitable buyer. Then again, Wolff concludes, at some indefinite point the creditor just has to accept the ownership of the thing as a payment.

Pledging something does not change its ownership, Wolff reminds the reader. Hence, the debtor has the right to sell or otherwise transfer the ownership of the pledged thing to someone else. If the debtor does that, this does not infringe upon the creditor’s right to sell the thing, if the debt is not paid. Similarly, the creditor has the right to transfer the jus pignoris or hypothecae to someone else, for instance, by simply handing a pawned item to someone else’s possession. The creditor can also pledge the thing pledged to them to someone else, as a security for their own debt. In this case, Wolff notes, the debt of the original creditor should not be more valuable than the debt of the original debtor.

A person can pledge only such things as they own, Wolff explains, but they can pledge things as securities for debts that belong to someone else. If someone pledges a thing that does not belong to them, without the consent of the owner, the creditor does not gain any rights to it and has to restitute it to the owner. Then again, if the owner does deliver the pledged thing or otherwise consents, the pledge becomes valid. Furthermore, Wolff notes, a thing belonging to someone else can be conditionally pledged: “if it becomes mine”.

The creditor is obligated to take care of the pledged thing in their possession, Wolff notes. If something happens to the thing due to the creditor’s fault, they must repay any damages to the owner of the pledged thing. Indeed, Wolff adds, the debtor has no obligation to even pay the debt, if the pledged thing is damaged so gravely that it cannot be sold for the debt. Then again, if the damage happens, although the creditor has been diligent in taking care of it, they owe nothing to the debtor.

The care of the creditor for the pledged thing extends even to paying the necessary expenses for its maintenance. If the creditor has been forced to pay such expenses, the debtor is obligated to repay them to the creditor. Then again, creditor has no right to make any unnecessary investments to the pledged thing without the consent of its owner, even if these investments were useful.

The creditor is usually not allowed to use the pledged thing or to take advantage of its products: such an action constitutes then a theft. Then again, Wolff notes, in the so-called antichretic pact such a right is explicitly conferred to the creditor as a substitute for usuries. Even then, the use of the thing and the profit gained from it should not be more valuable than the usuries would be. Furthermore, Wolff points out, antichretic pact cannot be made concerning things that deteriorate when used.

If debt in question is somehow resolved, Wolff notes, whether by the debtor or someone else paying it or by the creditor annulling the debt, the respective jus pignoris or hypothecae is also cancelled. Yet, jus pignoris or hypothecae can also be cancelled, even if the debt remains in force, for instance, if a pawnbroker gives the pawned item back to its owner. Another way to cancel jus pignoris or hypothecae without canceling the debt occurs when the pledged thing is destroyed or lost. Wolff also notes that the last clause doesn’t necessarily hold when it comes to houses, because a right to a house extends to its very foundations, which still remain, even if house is destroyed.

Christian Wolff: Natural right 5 - The art of removing obligations

After having gone through in detail various ways in which obligations are created by contracts, Wolff decides to investigate how such obligations defined by contracts are terminated. For instance, if the contract in question is dissolved by mutual consent of all parties, all the obligations defined by it dissolve also: if a sale of a thing is cancelled, the former buyer is not obligated to provide money nor is the former seller obligated to deliver the thing. Wolff notes that if the contract in question is unilateral, such as a donation, it can be cancelled just by the person benefiting from the contract.

The most straightforward way to terminate obligations determined in a contract is just to provide whatever has been agreed upon. Once this is done, Wolff emphasises, the other parties have no right to exact anything further because of this contract. Whatever the contract says about the obligations, they must usually be fulfilled to the letter: if I should give you my house, I cannot give you money instead. Similarly, if I am due to pay something at a certain date, I can be compelled to pay when that day arrives. Of course, Wolff adds, deviations from the conditions imposed by the contract are allowed, if the other parties of the contract agree to that. For example, if my creditor allows it, I can provide only a partial payment at the agreed date and promise to give the rest later.

Wolff notes that while sometimes it is certain what obligations have been determined in a contract and who is the person supposed to fulfill this obligation, at other times this is not so certain: in the former case, Wolff speaks of liquid debts, in the latter case of illiquid debts. When debts are illiquid, no one can be compelled to pay or fulfill them. Thus, debts should at first be made liquid by investigating the exact terms of the contract in question.

Wolff considers also several more detailed questions pertaining to debts. For instance, what happens to obligations of a person in debt, when their creditor cedes the debts to someone else (the person in debt is now obligated to pay their debt to this new creditor, and if they ignorantly pay to the original creditor, they must give up the right to demand the payment back to the new creditor), what happens if someone else pays your debts without you mandating them to do it (they can do so and you are not legally obligated to pay them back, but it is morally right to do so, if the terms of debt were clear and the person in question did not wish to make a donation), and what if someone gives a thing they do not own as a payment and the creditor consumes it (the outcome depends on whether the person in debt and their creditor knew the debtor was not the real owner).

Debts can also be annulled, Wolff notes, either by a declaration of the creditor (this is called acceptilatio) or by a contract between debtor and creditor (this is known as pactum de non petendo). Such annulment can happen for all of the debt or only a part of it, furthermore, it can happen unconditionally, but also with other conditions attached such as other obligations to be provided instead.

A peculiar case of annulment of debts is what Wolff calls compensatio, where two persons are in debt to one another and both of their debts are annulled. Compensatio has various preconditions, for example, the debts should be equally valuable. Furthermore, if any of the debts involves a unique thing (e.g. if one person is obligated to give a certain house to the other person), compensatio is impossible. Debts must also be liquid, that is, one must be certain who owes and what is owed.

Debts can also be taken care of, Wolff says, by datio in solutum, that is, by providing something else than what one was obligated to provide. This replacement can be anything agreed with the creditor: a thing, use of a thing or some work. Datio in solutum frees debtor from the original obligation, that is, if the debtor would later have a chance to fulfill the earlier obligation, they need not do it. A more general version of datio in solutum is what Wolff calls novatio, where creditor and debtor agree to replace a prior obligation with a new obligation, possibly with new conditions. Novatio naturally cancels everything related to the former obligation, for instance, if the payment of the first debt was in delay, the payment of the new debt is not.

Another way to get a debt cleared is to get someone else to pay it. If this transfer of debt has been agreed with the new person, Wolff calls it delegatio, while by assignatio he refers to a case, where the debtor just assigns someone else to pay the debt (for this to work, the assigned person must be in debt to the original debtor). In a sense, delegatio is a much more assured arrangement: in delegatio, if the new person eventually does not pay the debt, the original debtor is still freed of the obligation, but with assignatio creditor can always get their due from the original debtor, if the new debtor does not want to pay.

In an extensive part of the chapter Wolff deals with the question of disputes concerning rights (jus controversum), that is, cases where two or more persons declare that they have the right to something, although only one of them could do so. Such disputes might arise, for instance, with illiquid debts, where it is unclear who exactly owes and what. Simplest way to end the dispute is what Wolff calls amicabilis compositio, in which one party of the dispute declares that they will want nothing of the disputed thing, even without any compensation. A similar case where some compensation is given or at least it is promised, Wolff calls transactio. Wolff notes that neither in amicabilis compositio nor in transactio is it really decided, who has the right to the disputed thing - a claimant just gives up their possible right to the thing. Even if later it would be found out that the claimant truly had the right to the thing, they would not retrieve that right anymore. In case of transactio, of course, if the claimant is not provided what they have been promised, they can renew their claim on the disputed thing.

Disputes on rights might lead the claimants to hold a tractatus. Tractatus does not mean an end to the dispute, but is merely a process in which the pros and cons of the various claimants are considered. Tractatus might also lead to a suggestion for settling the dispute, such as amicabilis compositio or transactio, but as such it does not obligate anyone, before all the parties have agreed to the terms suggested. Although tractatus as such creates no obligations, Wolff clarifies, all the parties are morally obligated to consider the various pros and cons in a fair and equitable manner.

Wolff clarifies that in addition to claimants, other people can also be involved in tractatus, if their council could help to settle the case. An important example is the mediator, who is a person obligated to find some agreement on the dispute. Thus, the mediator has to impartially weigh all the claims to the disputed thing and on the basis of these considerations offer a suggestion to settle the dispute. The suggestion of the mediator has to be founded on what truly is the case, not on what would benefit the various parties. The mediator can make only suggestions, and if any of the parties refuses to accept, it does not become a valid agreement.

An arbiter, Wolff explains, has a slightly more powerful position than a mediator. An arbiter is decided by compromissum between the disputants, that is, by a mutual agreement that they will accept the decision of the arbiter as a truth. The chosen arbiter is then not just obligated to suggest an agreement between all the claimants, but to decide upon the truth of their claims. Because of the compromissum, no single claimant can nullify the decision of the arbiter, but such a cancellation of compromissum requires yet another mutual agreement between the claimants. Wolff notes that even after the arbiter’s decision of the real owner, claimants can still choose to settle the dispute in a different manner, for instance, by a transactio in which one claimant pays some compensation for the real owner, if they give up their ownership. Still, arbiters have more power in their hands than mere mediators. Thus, they should be not just impartial, but what Wolff calls vir bonus, that is, persons known to be honorable and acquainted with what is truly good and just. They should avoid even the semblance of dishonesty and therefore decline, if one of the claimants offered a reward for a decision on their behalf, before the decision. Wolff admits that the arbiter can accept a reward, if there’s no possibility of a suspicion that it would have affected the decision, for instance, if all the parties agreed in the comprossimum that the winner of the dispute should reward the arbiter.

In addition to the claims of the parties, there might be other relevant pieces of evidence to consider in a dispute. One type of these, Wolff notes, is instrumentum, that is, a document describing what persons negotiating a contract have agreed upon. If a person is obligated to do or provide something in instrumentum, it must be signed by that person. Only the original instrumentum is to be accepted as evidence, Wolff says, unless the validity of the copy is confirmed by trustworthy persons. Even the validity of the original, signed instrumentum can be contested, Wolff adds, if a signatory can show that she has been deceitfully induced to sign it without reading. A possible evidence for such deceit is protocollum, that is, a memorandum on the main points to be written in intstrumentum. Signatories can also refuse to accept instrumentum made from charta blanca - a piece of paper containing nothing but the signature - if they would have never agreed to the terms written on it.

In addition to written documents, other physical objects might be used as evidence for deciding a dispute. Wolff gives as an example bacilla fissa. This is essentially a wooden stick, divided in two halves: to one half is made notches, indicating how much a person is obligated to provide, while similar notches are made to the other half, when a part of the debt is provided. By comparing the two halves, it is easy to see how much of the debt is still left.

In some cases disputes must be solved through witness accounts - Wolff points out that especially in cases where a person was obligated to do something, witnesses are the only possible proof for a person having worked. Witnesses are not expected to speak what is true in the logical sense, Wolff explains, but only what is morally true, that is, what they believe to be true. Of course, they are also supposed to be acquainted with the facts, in order that their testimony has any relevance. In a best case, witness is vir bonus, that is, as trustworthy as can be. On the other hand, witnesses who have been bribed should not be believed. In a refreshingly progressive fashion, Wolff notes that women can as well be reliable witnesses. Then again, relatives of the parties involved should not usually be accepted to give their testimony. Wolff believes that the reliability of witnesses can be strengthened by oaths, because the fear of divine punishments might make people hesitant to lie. In general, Wolff adds, only one witness is not enough to prove anything.

If all else fails, disputes over rights can be settled with a lot, Wolff admits. On the other hand, he expressly forbids settling disputes with duels or physical attacks, because the life of other people should be respected. If a legal dispute turns into a state of war, all participants should aim to find a more peaceful solution.

If the ownership of something is in dispute, Wolff notes, claimants are not allowed to force the possessor of the thing to yield it. This is true, even if a claimant knows for certain that they are the rightful owner - the ownership must be first proved by documents, witnesses etc. On the other hand, if the ownership is not in dispute, the owner can force the possessor to yield the thing. In the case the possessor does not want to give the thing, Wolff says, the owner can enforce what is called expletio juris, in other word, they can take from the possessor something else. This something else should be either equal in value to what is owned, or if it is more expensive, the owner has to provide the possessor compensation for the surplus. The owner has to then provide the possessor enough time to consider whether they want to return the originally owed thing or whether they want to accept the removal of the other thing.

The final topic Wolff considers in this chapter is precarium, by which he means a contract, whereby an owner concedes use of a thing to another person, without any payment and for as long as the owner wishes. Obviously, the thing in question cannot be such that it would be consumed by use, but something more permanent, for instance, when a person relinquishes a house for use to a friend. As the name of the contract indicates, the use allowed is precarious - as soon as the owner wants, the thing in question must be returned to their possession. Wolff mentions two other possibilities of how precarium could end. Firstly, if the person enjoying the use of the thing dies, precarium ends: thus, it is not something inherited through generations. Secondly, precarium could end by consolidatio, that is, by the user acquiring also the ownership of the thing. Interestingly, Wolff thinks that if the owner relinquishes the ownership of the person to a third person, precarium is not as such terminated. Of course, the new owner has the right to revoke precarium, but before that, the thing can be used as before.

Christian Wolff: Natural right 5 - As it were a contract

Wolff’s next topic is quasi contracts. These are no real contracts, but in a sense mere fictions. That is, in a quasi contract, the consent of a person for something is just assumed. In other words, there is not even a tacit consent, which might be implied e.g. by the actions of the person in question. Such a fictitious contract is valid, Wolff notes, only if her consent cannot be asked. For instance, if a student wants to buy some books, but cannot verify from her parents, whether she can use their money for this purchase, she might still have a right to assume that they would consent to it. Similar quasi contracts can be made, Wolff continues, if the person in question is underage or otherwise incapable of giving consent.

A particular type of quasi contract Wolff calls negotiorum gestio. In effect, this means a quasi mandate, where a person called gestor handles some affair for another person assuming that this other person would mandate her to do it, if he just knew about it. This type of contract, Wolff notes, is valid only if what gestor does is useful to the other person and if not doing it would cause some economic damage to the other person - for instance, gestor could hire someone to fix a building owned by the other, which was damaged in a fire. Gestor is also bound by strict rules: she can only do what the other person could be assumed to do in a similar situation and she has to explain her reasons for doing whatever she has done for the other. Gestor also cannot at the same time handle her own and the other person’s businesses, which would imply e.g. that she took advantage of the other’s property for her own sake. Then again, gestor shouldn’t be assumed to freely donate her time and effort for the other’s sake, but the other person is obligated to honour the gestor with some reward.

Similar quasi versions of other forms of contract can also appear in exceptional circumstances, Wolff notes. For instance, if something like food has been left for safekeeping and it is in danger of becoming spoiled, the custodian can do a quasi loan, by consuming the food and preparing to return something similar, when she meets the owner. Similarly, if a person holds a thing that is to be sold by the owner and she herself suddenly needs it, she can do a quasi purchase and prepare to pay the owner later what the owner would have suggested as a price.

Wolff also notes the possibility of quasi societas, that is, people becoming part of a same company-like project without consenting to forming such a company. Wolff calls such quasi societas also communio incidens, emphasising that members of this quasi society have incidentally received common obligations. A simple example of such communio incidens is people inheriting some piece of property that they must administer in common. Quasi societas can turn into an actual societas by members of the quasi societas agreeing on how to administer the common obligations.

A curious form of quasi contract rises in relation to what Wolff calls indebitum. Indebitum is, simply taken, something that is not a debt - in other words, if you pay indebitum, you erroneously pay something that you need not have paid or you pay it to a wrong person, to whom you do not owe it. A person receiving such erroneous payment is then under a quasi contract, whereby she has to return what was given, once she notices the error. Of course, she might have handed the thing further, and then it belongs to the person it was handed to. In such a case, she must at least give something equal in value to the original owner.

A case that might seem similar and thus involve a quasi contract is linked to notions of ob causam dari and causa non sequi. By ob causam dari Wolff means simply giving something in order to get the receiving person give or do something in return - for instance, paying a worker to fix a car. Causa non sequi refers then to a situation where this receiving person fails to do what she had to do. In this case, the receiving person should return what was given to her, just like in the case of indebitum. Yet, this obligation is no quasi contract, Wolff says, because by refusing to do what she should have done, she already has tacitly consented to returning what was given.

Wolff notes that accepting an erroneous payment of indebitum is a particular example of a more general notion of unknowingly accepting something sine causa, that is, accepting something that one doesn’t have a right to accept. In addition to accepting indebitum, Wolff notes, examples of accepting sine causa include all cases where something is accepted as a payment for something that is impossible or against the natural law. Now, if someone accepts sine causa without knowing it, she can be presumed to want to return what was given to her, if she just knew she shouldn’t have accepted it. Thus, she is under a quasi contract.

A related case is what Wolff calls accepting something quasi sine causa. In such a case, accepting itself is in accordance with the natural law, but keeping what was accepted is not. A good example happens, when a person has accepted something for a future business, which then fails to become a reality. After such quasi sine causa accepting, the person receiving the payment is obligated to return the payment to the owner. Yet, this obligation forms no quasi contract, because the person accepting tacitly assumes with this very act of accepting the obligation to return the payment.

Wolff also briefly considers contractus mixtus, in other words, contracts composed of other contracts; for instance, he notes, if a tenant farmer pays the rent of the land with a ratio of the produce of the land, the contract between the farmer and the owner is a mix of a locatio conductio (in this case, rent of something) and societas (because both the farmer and the owner share in the produce of the land). As Wolff himself also says, the primary interest does not lie in the numerous ways in which one can combine different types of contract, but in the general principle that this is possible and that the characteristics of the new contract can then be deduced from the characteristics of the components.

Christian Wolff: Natural right 5 - Chances are

While the first chapter of the book felt like a mash of all sorts of leftover contracts, second chapter has a clear thematic unity, namely, contracts involving chance. Wolff notes at once how problematic such contracts are, because the people making such a contract can never really be sure, whether the contract will be fulfilled. Thus, he concludes, if what is to be gained by such a contract can be achieved in some other manner, this other manner should be preferred.

Wolff begins his account of more specific types of contract with a contract that actually does not involve chance, namely, one in which a person buys divination services from another. One might think that such a contract does involve chance, since in an act of divination does something with a fortuitous result - e.g. when a diviner chooses an arbitrary animal, she cannot know beforehand what sort of entrails it has. Still, Wolff notes, what is sold is not the arbitrary result of the divination, but the very act of divination, which is not in the same sense fortuitous.

Furthermore, Wolff remarks that the act of divination has no real connection with the future it is supposed to predict - for instance, no physical law combines the entrails of an animal with the fate of a person and neither can we suppose that God would have decreed such an arbitrary connection. Thus, Wolff concludes,divination is nothing but fraud and therefore forbidden by natural law.

An example of a contract that truly involves chance is such where a lot is used to determine e.g. which person is to get what portion of a divided land that they all have a share of. Wolff notes that such a contract is valid, if all the persons involved accept it and if there is no clear reason to determine the exact portions which everyone should own. After the lot has been determined, the ownership becomes fixed.

A more suspect form of a contract involving chance, according to Wolff, is provided by lottery and other games of chance, in which e.g. a person pays for a right to spin a wheel of fortune. Such games are externally valid, yet, Wolff adds, if the aim of the game has been mainly to gain profit, they do not agree with the true end of humans. Lotteries can accord with human duty, Wolff admits, if the profits are used for the sake of other people or for the glory of God. Furthermore, the organiser of the lottery can use some of the money gained to pay for the expenses of the lottery, including her own work.

A related type of contract is one where people agree on participating on a contest, after which the prize is awarded to the winner of the contest. Such a contest could involve only pure chance, but it can also depend on the intellect, strength or dexterity of the contestants. The former case, which also includes all kinds of bets, is again forbidden by natural law, because entering such a contest could have no other purpose, but to gain profits. Contests involving also intellectual or physical faculties are a different question, since they also help to train these faculties, Wolff admits. Even so, if entering such a contest requires financial investment, all contestants should have a surplus of money that they can spare for such a purpose.

An obvious example of a contract involving chance is insurance, in which one side of the contract pays for the other to gain assurance that in case something happens to a thing owned by the first side, the other side will pay an agreed sum. Wolff does not mention insurances in general, but he does mention one specific type of it, where the insured thing is transported by ocean or through some other perilous area. Such a contract, Wolff concludes, is quite acceptable and in accordance with natural law.

Wolff thinks it important to emphasise that insurance does not mean the same thing as usury - the amount of money received from an insurance is not dependent on the time between the accident and the handing of the money. Wolff does describe contracts combining in a sense usury and insurance: foenus nauticum, in which interest is paid for the use of money delivered by sea, and foenus quasi nauticum, where the delivery is made through other dangerous terrain. In these types of contracts the interest paid should be more than regular interest, to accommodate the dangers of travel.

Another contract involving both chance and nautical affairs is what Wolff calls bodemereia. In effect, this is a contract where a person invests a specific sum of money to a ship with the condition that she will gain some profit, if the ship arrives safely at port, but loses her investment, if it doesn’t. Ship’s captain, Wolff notes, is allowed to make a bodemereia -contract, if he has otherwise difficulties in raising money for a sailing trip.

A similar business investment involving fortuitous circumstances is pars metallica or kuckus. In effect, this is a contract involving a share or a partial ownership in a mine. Since the owner of such a share cannot by herself dig and prepare the metal belonging to her in particular, she is obligated to share the costs of digging and preparing metal. These costs and the possible profits are divided in the ratio of the shares of the owners. Since it is up to chance, whether a mine will produce enough metal for covering the expenses of mining, Wolff advises that only people with plenty of money to spare should buy mining shares. Still, since the ownership of the shares is completely independent of the ownership of other shares, owners can sell their shares and get their money back from them without the agreement of other owners. If instead people agree upon a joint ownership of a mine, this means founding of a mining company, from which owners can get rid of only by finding another person to take their place in the company board.

Wolff also describes a more generalised version of a contract, in which a person buys an ownership to some uncertain product of an action - he calls it emtio spei, which in its literal sense means purchase of expectations. If the action does not result in the desired product or the expectations fail, the price paid will still not be given back. Thus, Wolff concludes that emtio spei can rarely be accepted in natural law and that it should especially be avoided if the product desired could be bought at a reasonable price somewhere else.

An interesting form of contract Wolff discusses in this chapter is contractum vitalitium, in which one person buys from another what is called reditus vitalitium, that is, a right to annually receive some things or some type of work or obligation from the seller for as long as a certain person lives, where the person in question can be the buyer, the seller or someone completely different. In a sense, we might equate this type of contract with pension, although what is provided for the buyer is not necessarily money: for instance, it might be a certain ratio of some products. Furthermore, Wolff thinks that reditus vitalitium or pension can be donated or sold again by its buyer, although then also the possible death of the original buyer will end the pension.

Is contractus vitalitium in accordance with natural law? Wolff’s general answer is affirmative, on the condition that the provided pension helps the buyer to fulfill some natural duty toward oneself or others. For instance, if the pension helps the buyer to pay for necessities of life, it most certainly is in accordance with natural law.

Christian Wolff: Natural right 5 (1745)

While the previous parts of Wolff’s Jus naturae have been at least partially thematic unities, the fifth part is the first exception and feels like just an appendix to the previous part that dealt with various types of contract. Indeed, the first chapter of this book merely continues the discussion of reciprocal contracts, in which all sides provide something to others.

A first new kind of contract dealt by Wolff is cambium, that is, any contract, in which money is exchanged for money. The most straightforward case of cambium is a contract where a person exchanges currency of one country to currency of another country. Wolff notes that there are people who provide large quantities of money just for these types of transactions and that these money changers have the right to ask a payment to cover the costs of their profession.

A more intricate sort of cambium is what Wolff calls cambium trassata, in which a person (campsarius or remittens) gives money to another person (campsor or trassans), who promises to take care that a third person (acceptans or trassatus) will give the same amount of money to a fourth person (praesentans). This rather complex sounding contract was quite a common way to provide travelers with enough money, without the need of carrying actual metal coins from one place to another, but instead using written notes or litteras cambiales (bills of exchange) detailing such contracts. They are first examples of a modern system of banking, and importantly, Wolff notes that such money contracts are inherently rational and in accordance with the natural law.

Wolff goes into great details into finesses such as who is obligated to pay, if the acceptans does not want to give the agreed sum of money to praesentans, and what should praesentans do to get her money in such a case. The most important additional point Wolff makes is that praesentans can transfer her right to get the money to another person, thus making it possible to use bills of exchange as a rudimentary form of paper money.

A third form of cambium Wolff mentions is cambium siccum, in which a person receives money from another and in return gives the other chirographum, in other words, a document in which she promises to pay the other person the same amount of money at a later date - in effect, this is just another form of loan.A further point with chirographum is that, like bills of exchange, they can be sold further.

At this point, Wolff also mentions two other documents related to loans and in general to any debt. The first one - apocha or quittancia - is a document written by the creditor, in which she declares that the debtor has paid her debt. The other one, antapocha, is, on the contrary, a declaration written by the debtor that she has paid the debt. Wolff notes that all the three documents have merely evidential weight and they do not as such create or cancel debts - thus, even if a person has lost e.g. a chirographum given to her, she is still entitled to the promised sum.

In addition to cambium contracts, Wolff considers what he calls contractus aestimatorius, in which a person gives something for another person to be sold for a certain price. If this other person manages to sell the thing for a larger sum of money, she can keep the difference; if she manages to get less than agreed, she will have to pay the rest. She can also keep the thing, if she just pays the whole price agreed, or she can return it to the first person. It is not decided whether, together with the possession of the thing, also its ownership is transferred to the second person, and the contract can be made in both ways. In some cases the choice of the owner is even significant. For instance, if the thing in question produces more wealth at the time when it is with the second person for sale (say, if the thing in question is a herd of cows that gets bigger), this additional wealth belongs to the owner.

Some types of contract Wolff deals in the first chapter of the book seem like minor and even insignificant modifications of earlier types of contract. Such is, for instance, constitutum, in which a person promises to fulfill an earlier obligation, whether it is her own or someone else’s - in the former case, constitutum means simply a reaffirmation of an old obligation, while in the second case, it is quite similar to fidejussio or a guarantee for another person’s obligation. Another case is contractum institorium, which is essentially a combination of two earlier types of contracts: locatio conductio and mandatum. In effect, in contractum institorium a person hires another person to do business deals in her name.

Wolff also suggests a reclassification of all the bilateral contracts into do ut des -, facio ut facias and do ut facias -contracts - that is, contracts where both sides give something to the other side, contracts where both sides do some work for the other and contracts where one side gives and the other side does something. Wolff ties this classification with his notion of the development of economy. In the primeval times, Wolff notes, when no one owned anything, people could only exchange work with one another. The introduction of ownership, he has already noted in earlier books, is a good thing, and now he finds yet another reason for its introduction - ownership of things allows new kinds of contracts, in which ownership of things changes.

Christian Wolff: Natural right 4 - Forms of trade

Wolff continues his account of different types of contract with such where both sides of the contract give and receive something. Simplest form of such a contract is what he calls permutatio, where straightforwardly one person gives something to another person, who in turn gives something else to the first person. What is traded in permutatio might be physical things, but they might also be anything else, like rights to use a thing or certain amount of work.

Wolff notes that permutatio is valid only if certain rules are obeyed. Permutatio must, firstly, be consensually agreed upon. Furthermore, things traded in permutatio must be owned by the people giving them, that is, one cannot trade what belongs to someone else. Traded things need not be delivered at the same time nor immediately after agreeing to permutatio, but the agreement creates an obligation to deliver the agreed things.

A rather peculiar form of permutatio is what Wolff call permutatio res sua cum sua, that is, trading one’s thing with that same thing. What Wolff means is that in this type of permutatio one person gives a thing at a certain time and the other person returns that same thing later. The main difference to ordinary borrowing of a thing seems to be that unlike with borrowing, the ownership of the thing changes for a while to the second person. Despite this, the second person cannot give the traded thing away, before returning it to the original owner.

In all forms of permutatio, Wolff adds, the traded things should be equally priced. Wolff does admit that this is not an absolute obligation - a person can use permutatio to give more in exchange to the other, but then this extra can be interpreted as a donation. Wolff also notes that price can be defined in two ways, firstly, as what a thing is considered to be priced commonly or by experts, and secondly, what an individual considers the price to be according to her particular feeling toward the thing in question. Wolff notes that the first type of price is the true price, while prices based on individual feelings should be considered only if both sides of the permutatio accept the evaluation of things according to this price.

The most important form of permutatio is emtio venditio. The defining element of the emtio venditio is for Wolff that one person is thought to give a price of the thing given by the other person, or more particularly, sum of money corresponding to this price. The person giving he thing is called venditor (seller), while the other person in this contract is emtor (buyer).

Just like permutatio in general, emtio venditio is valid only if certain conditions apply, such as consensuality and the seller owning the thing sold. Wolff also adds such considerations that a person cannot sell something that does not exist - although she can make the conditional promise that she will sell a thing, if it does exist in the future - and that a person cannot buy something she already owns - although she can pay for the possession of this thing.

A peculiar characteristic of emtio venditio is that it involves an explicit or implicit negotiation for the price of the thing. This is especially important in case of people promising to buy or sell something, because such a promise has an implicit condition that both parties must agree upon the proper price of the thing. Even if a promise is in this case conditional, it creates obligations for the person who promised: for instance, a person promising to sell a thing cannot sell it to anyone else during the negotiations for the price.

Wolff notes that in addition to determining the price of the thing sold and bought, the buyer and the seller can agree upon conditions when the price will change. For instance, faults in the thing can lower its price, while delays in the payment can make it higher.

More generally, many details in different types of contract depend on what is agreed upon by the people signing the contract. A good example of this is what Wolff calls arrha - a separate payment that one side of the contract gives in order to confirm the validity of the contract. If no other conditions are stated, arrha changes the actual contract in no manner and specifically it need never be paid back. Then again, Wolff notes, arrha is often an additional ingredient in emtio venditio, so that it is counted as a partial payment of the actual purchase (what we would call a down payment), and the contract might state some further conditions, when the down payment has to be paid back by the seller.

Wolff goes through a number of other possible additions to an emtio venditio:

• Addictio in diem: This additional clause provides the seller an opportunity to accept during a certain period a better offer, even if the sale has otherwise been completed. The better offer need not be one with more money involved, but it can have otherwise better conditions, such as a more certain payment.
• Lex commissoria: This additional clause states that unless buyer pays during certain period of time, the sale becomes invalid. Seller is then free to trade the thing with someone else. Then again, if the seller accepts even a partial payment from the buyer, the lex commissoria becomes invalid.
• Pactum de retrahendo: An additional clause stating that if the traded thing is sold anew, it should be sold to a certain person, at least if this person is willing to pay the same price as other potential buyers. Thus, if the thing is sold to someone else, this person has the right to revoke the sale.
• Pactum de retrovendendo: This additional clause gives the seller a right to buy the sold thing back during a certain period. If nothing else is agreed upon, the price for this new sale should be same as the original. This clause means that the buyer cannot sell the thing to someone else during the time when the clause is valid.
• Pactum de redimendo: This additional clause is almost same as the previous, but here it is the right of the buyer to sell the traded thing back.

Whatever clauses are added to an emtio venditio, the ownership of traded thing should in general be transferred as soon as possible to the buyer. This means also that if the thing produces some further profits - or indeed, expenses - these belong to the buyer. Like many other details, Wolff notices, the buyer and seller can agree upon some other conditions, such that the profits should still belong the seller for a certain time.

One should only buy things from their owner. Yet, Wolff adds, the buyer cannot always know for sure whether the seller is the true owner and then she just has to assume the seller is. If then it is revealed afterwards that the owner knew nothing about this, she has a right to start eviction, that is, remove the thing from its possessor (i.e. the supposed buyer). In this case, the seller is obligated to pay for the buyer any expenses caused by eviction

A form of emtio venditio Wolff picks for a special consideration is what he calls locatio conductio, where what is sold is either work or use of a thing - in effect, concept of locatio conductio combines both work relations and rents. The seller in locatio conductio is called locator, while the buyer is called conductor. As soon as this type of contract has been agreed upon, the locator is obligated to provide the conductor with the work or the use of a thing. Similarly, conductor is obligated to pay for these, even if she later decided that she did not need the work or the use.

Just like with emtio venditio in general, there are certain rules governing what the locator and the conductor can do. For instance, no unlawful work (thefts, murders etc.) can be sold or bought. Furthermore, if the contract sets some restrictions on ways how the thing in question can be used, the conductor cannot break them. Then again, if if the conductor is not using a thing, locator cannot sell its use to another conductor without getting a permission from the first conductor.

Usually it is the owner who has the sole right of selling the use of a thing. An important exception is that the conductor or the buyer of this period of use can sell this use again. Similarly, if conductor has bought a period of work from locator, she can sell this work to a new conductor. This right of further locato conductio, or as Wolff calls it, sublocatio, is inherent in the notion of locatio conductio: if locator wants to forbid such a further sale of the use of thing or the work, conductor can then renounce the whole contract.

In case of locatio conductio involving use of a thing, locator is obligated to provide the conductor with a thing that is suited to the use it is contracted for. If locator is unable to do this, the contract becomes invalid: for instance, if locator has rented a house and because of repairs the conductor cannot live there, the contract falls apart. Conductor, on the other hand, is obligated to return the thing back to locator without any damages, except such as can be expected from normal wear and tear.

A rather peculiar form of locatio conductio is socida. In this case, the locatio conductio concerns use of cattle. Socida gives the conductor a right to use a herd of cattle with one prevision - if one of the herd dies, conductor should replace it. Thus, the herd, as it were, is indestructible, or as the colourful expression says it, made out of iron.

Wolff ends the book with discussion of two very special questions, societas and usuram. By societas he means a contract between two or more people that they will combine their capitals and work together for a common goal, dividing share in potential rewards and damages. The closest equivalent to modern terms would be company, except that Wolff’s societas is founded only for a definite project and for a limited period of time, although its existence can then be continued by mutual consent. Wolff goes into great detail discussing how profits or losses are to be divided fairly, what conditions regulate a person leaving societas and other similar things we cannot enter here.

The notion of usuram is closely connected to that of mutuum in that both involve a loan of a thing, which is consumed when used, such as money. The only difference is that in mutuum the person taking the loan needs just return what was loaned, but in case of usuram, she has to pay something additional for the use of the thing. In effect, then, usuram is simply a loan with usury or interest.

While we usually think of loans with compound interest, Wolff’s primary example of usuram is a loan where interest is paid just on the loaned sum. He does admit the possibility of interest paid on interest, and furthermore, interest paid on that interest etc., but this is something he considers only in passing.

Wolff’s general opinion is that asking for interest should generally be allowed. Indeed, in a sense he thinks that interest is the norm and loan without an interest is partially a donation. Then again, he wants very strict regulations on when interest can be asked for: this should be allowed, he says, only when the loan is used for a profitable business venture. Then again, if loan is used only for providing for the necessities of life, interest should not be demanded.