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 (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: Reasonable thoughts on the social life of men and especially on the community - The enlightened despot

The origin of households in the Wolffian system is the desire for intercourse, together with the obligation to care for the possible outcome of the intercourse, that is, children. Now, Wolff suggests that household by itself cannot satisfy all needs of a human being. At most, a life constricted to a household can satisfy only basic needs, but this would be only animal and not human life – the households could not provide for the future nor would they be able to care for higher needs like science and arts. Wolff even invokes the Hobbesian argument that a life without a community of men would be a life of fear, because anyone could be killed by other people.

A community or a state is then created by households entering into a mutual contract that aims at the general well-being of all of them – note that it is the head of the houshold that gets to decide the loalty of everyone in his family. Wolff obediently notes all the six classical possibilities with the traditional names derived from Aristotle: the good constitutions or monarchy, aristocracy and polity and their corrupted variants or tyranny, oligarchy and democracy. Wolff then does allow the possibility of ”polities” or republics ruled by majority votes, although he notes that they are often hindered by party politics. Still, the rest of the book is clearly meant for absolute or constitutional monarchies, where the king has all or at least majority of power in his hands. Wolff's task is to enlighten the German despots and make their minds accessible to reforms their states required.

Wolffian ideal of society contains some characteristics that justify calling him an enlightenment philosopher. For instance, Wolff encourages kings to found schools, colleges and universities for educating people in sciences and handicrafts, to build hospitals and apothecaries for serving the sick and to make the cities beautiful for all senses by filling them with works of art and by making sure that nothing stinks. Then again, the main interest of Wolff in politics is the upholding of public morality, which gives Wolff's suggestions a moralizing tone. Thus, Wolff suggests that only art that teaches morals is to be accepted and that a state should be filled with buildings for public moral preaching. The most extreme suggestion from modern standpoint is that all punishments should happen in public in order that potential criminals would think twice of their immoral intentions.

The idea of places for public moral preaching is interesting as a not so veiled attempt to promote churches as necessary for the well-being of the state – the attempt becomes even more apparent, when Wolff notes that belief in God is almost a prerequisite for a moral society. True, Wolff has admitted that morality is possible without religion. Wolff even goes so far as to accept China as an atheist state that has one of the best constitutions in the world – as we shall see, this admission will be fatal to Wolff's carrieer. Still, Wolff is convinced that majority of atheists will be scoundrels incapable of living in community with other people.

Wolffian politics is then not so much interested of the welfare of the people, but of their morality – although bodily and mental welfare is, of course, part of moral perfection in Wolffian system. Thus, it is just natural that in Wolff's opinion laws of a state should be based on the law introduced already in Wolff's moral writings, that is, the natural law. Wolff does allow some changes to be made to the natural law in case when following it would be extremely difficult. For instance, natural law determines that a child should become independent, when she has all the necessary skills for taking care of herself. Yet, because it is often hard to determine the exact time when a person has become mature in his actions, state must make a concession and determine some fixed age at which everyone is to be considered an adult.

Natural law is for Wolff even a higher authority than state. Usually one must obey the rulers of one's state, but if the rulers break the natural law, people are not committed to obeying them. Thus, if a king tries to murder someone, the attemped victim has the right to defend herself. Yet, Wolff advices people to resist the ruler's will only in the cases where one's own well-being is threatened or where one is commanded to do immoral things. Hence, if a despot threatens to kill your neighbours, you have no obligation to help them – unless you happen to be the soldier who is to pull the trigger.

Wolffian system of politics appears then to have no true stopgap for tyrants and dictators. True, Wolff does advise kings to limit their own power and become as symbolic rulers as king of Sweden or queen of England are nowadays. Wolff even justifies this adivce through a comparison with the universal monarch or God, who leaves the actual government of the world to humans. Yet, there is no guarantee that a tyrant would follow Wolff's advice. Indeed, Wolff can only hope that religion and the fear of God would stop kings from tyrannical behaviour – a rather poor hope when Wolff has just congratulated God of not meddling in human affairs.

The individual states are then related like individual persons to one another, and just like persons ideally act like self-enclosed monads, so should states have no concern for the international community. Positive in this isolationism is that Wolff thinks all warfare to be evil and justifiable only as a self-defence – although Wolff does accept also reasonable suspicision of evil intentions as a reason for self-defence, somewhat like American head of state before the attack to Iraq. But Wolff appears to be blind to the invisible economic battle that his mercantilist tendencies generate – Wolff advices states to horde as much money as possible, which in effect make economic co-operation impossible in international level.

So much then for Wolffian politics. Next time I'll have something to say about the generation of Wolffian school.