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.

Martin Knutzen: Reasoned thoughts on comets, in which their nature and properties, together with the type and causes of their movement are studied and presented, including a short description of a remarkable comet in the present year (1744)

If there’s one thing Martin Knuzen was famous for, then it was introducing Immanuel Kant to Newtonian physics. Yet, Knutzen’s own understanding of Newton’s ideas was at least in some regards rather shallow, especially when it came to the mathematical machinery behind Newton’s physics. For instance, Knutzen predicted that a comet would appear during 1744, because the same comet appeared regularly every few years. A comet did appear then, but as more capable astronomes noted, it wasn’t the comet Knutzen identified it with.

Knutzen himself was apparently rather unconcerned about such criticism. Even his book on the topic, Vernünftige Gedanken von den Cometen, darinnen deren Natur und Beschaffenheit nebst der Art und Ursachen ihrer Bewegung untersuchet und vorgestellet, auch zugleich eine kurze Beschreibung von dem merkwürdigen Cometen deß jetztlauffenden Jahres mitgetheilet wird, has no indication of Knutzen even considering such a possibility. Knutzen’s motivation for his book, beyond introducing the comet of 1744 to a wider audience, is to criticise superstitious ideas where comets are regarded as harbingers of doom.

This motive lies even behind Knutzen’s more questionable thoughts, like the false identification of the 1744 comet. Knutzen emphasises the regularity of the comet’s movement, as a guarantee that they are natural phenomena. He uses a simple induction to justify the assertion that comets continue to move with the same regularity as they have appeared to do - it is equally justifiable, Knutzen says, as when Adam noted after a few days that the sun will always rise in the morning. Such regularity statements seem the more justified, the shorter the time between two appearances. Thus, Knutzen is very eager to show that 1744 comet was the same as had been seen a couple of years ago. This leads him to insist more generally that there are less comets in our solar system than other astronomers and even Newton had assumed - seemingly different comets have often been just appearances of one comet, seen in different parts of the sky due to slight changes in the comet’s orbit, crossing Earth’s ecliptic at different points at different times.

Knutzen’s main point against taking comets as omens is based on showing a failure of another inductive move. Knutzen notes that if comets were such omens or signs of bad events, they would either be causally connected to such events or then the connection would have to be an effect of God’s arbitrary choice, similar to when he in the Bible sets up rainbow as a sign of his promise to not flood the world again. Knutzen then points out that neither possibility really works. If God had set comets as an arbitrary sign, he would have had to teach this sign to us, either through revelation or through experience. There’s no mention of such a sign in the Bible - in fact, the book even speaks against looking at such astrological signs. Even experience speaks against this - if God had meant comets as arbitrary signs of bad things, then he surely would have meant them especially as a sign for astronomers, who are most certain to see these omens, but astronomers who have found most comets have not been particularly unlucky.

Similarly, Knutzen shows that there seems to be no natural connection between comets and bad events. Undoubtedly sometimes comets have appeared during a time when a war has been going on or some king has died or some other calamity has fallen upon some country. Indeed, since Earth is big, it is almost inevitable that some type of disaster is almost always going on at some point of the globe. If a comet would have some noticeable effect on the earthly goings-on, it would have to be a global effect, but there’s no correlation between global crises and appearance of comets. In fact, Knutzen continues, there’s no clear causal mechanism by which a comet could influence such events. For instance, suppose someone would say that comets could cause wars by having a force to aggravate people. Problem is, such a force would not just cause wars, but Hobbesian chaos, where everyone attacked everyone else. If comets would cause only wars, then such a force would have to affect only royalty, but it is unclear how and why such a lifeless and unconscious object as comet could pick out kings and queens as its target.

In his wish to show that comets have not harmed Earth in any manner, Knutzen goes a bit too far and insists that comets could never have an adverse effect on Earth, discounting even the notion that a comet could hit the Earth or at least fly so close that its gravity might cause some disturbances. Thus, Knutzen discounts the worries of his contemporary, William Whiston, who had suggested that such catastrophic meetings had indeed occurred before - Jewish tradition told that Noah had seen a comet before the flood, which Whiston saw as a sign of the mythical flood being an effect of a watery comet hitting Earth. Knutzen was convinced that this tale was just yet another coincidence, and since comets had never hit Earth, they would not hit it in the future. Then again, he suggested that the Jewish tradition might explain historically why comets were universally feared: Noah associated for the rest of his life comets with disasters and taught his descendants to also do so.

Although Knutzen did not then believe in comets as divine signs, he did speculate on their having some purpose in the divine plans. Comets, Knutzen deduced, are just like planets in being mostly solid objects, surrounded by an atmosphere formed from gases and dust. The main difference with the regular planets is that the orbit of comets is very oblong and so a comet is sometimes very close to the Sun, sometimes very far away from it. When the comet approaches the Sun, the increasing gravity and the heat make the comet’s atmosphere appear as a tail. When the comet again changes its course to the outer reaches of the Solar System, it still retains some of its heat - and perhaps, Knutzen suggests, the whole purpose of a comet doing such a trip is to transfer some of this heat to where it wouldn’t otherwise get.

Next time, we shall once again return to Wolff's account of natural law.

Georg Friedrich Meier: Thoughts about jokes (1744)

 

(1718-1777)
By Skara kommun - Georgius Fridericus Meier; Uploaded by Magnus Manske, CC BY 2.0 

It seems almost a joke in itself to read an author from the Wolffian tradition of philosophy discussing the merits of jokes: how could such a system, with a penchant for droll rules, help us to understand imaginative and unruly world of jokes? Yet, this is exactly what Georg Friedeich Meier sets out to do in his Gedanken von Schertzen - to find rules by which to decide which jokes are effective and which are not. Just like an artist might not be able to explain why her works are beautiful, similarly a joker might not know why some joke is particularly funny.

To clarify a bit, Meier is not a pure Wolffian, but more precisely, hails from the tradition of Baumgarten. Now, while Baumgarten’s metaphysics was, on the whole, more intellectualist than Wolff’s, which still had some empiricist leanings, in one particular aspect Baumgarten’s philosophy was more receptive to the messiness of such topic as jokes. Baumgarten accepted that in addition to the clear and distinct perfection of conceptual thought, senses have their own kind of perfection, embodied in the new discipline of aesthetics. Baumgarten hadn’t at this point published his work on aesthetics, mentioning it only briefly in his psychology, but Meier as his student probably knew about Baumgarten’s more concrete ideas.

In addition to the obvious idea that jokes should induce laughter - at least when time and audience are right for them - Meier notes that jokes are dependent on two faculties, wit and sharpness. These two faculties are in a sense opposite: while a sharp mind provides distinct notion of separate entities, wit notices all correspondences between them, such as similarities of qualities and quantitative proportions. Mere wit is not enough for a joke, or otherwise allegories could be jokes, but neither is mere sharpness nor making people laugh - conceptual analysis is no joke and neither is any old prank.

Now, what makes a joke good or bad, Meier says, can depend either on the topic joked or on the very form of the joke. He at once concentrates his work on the latter kind of perfection. Still, he does note that topic can affect our overall enjoyment of joke: a blasphemous joke can make us uneasy, no matter how good it technically is.

Formal perfection of joke consists simply in showing wit and sharpness and making people laugh. Meier specifies this rather obvious remark by giving more definite criteria for the perfection of a joke. A good joke, Meier says, must be both complex and novel - or at least complex and novel jokes are better than simple and unoriginal ones. Complexity of a joke - or more precisely, joke impressing many ideas at once - entices imagination and causes pleasant emotions, when we have the ability to conceive many things at once. Novelty, on the other hand, shows that the joker has originality and not just good memory. An old joke might have seemed funny at first, but becoming too familiar it has lost its ability to make us laugh. Thus, a good joker doesn’t repeat her stories over and over again.

A good joke shouldn’t be just witty, Meier notes, but it should also be sharp. In other words, the connections uncovered in a good joke should not be too obvious, because mere similarity does not induce laughter. What this means in practice is, for instance, comparing very small and insignificant things with great and significant things and finding unexpected similarities. Especially funny, Meier says, is putting apparently contradictory matters on the same level, which he considers to be the essence of irony. The more points of contact uncovered for sharply distinguished things, the more perfect the joke is. All of these points of contact need not be made explicit, and indeed, it is better if many of them are left implicit. Furthermore, these points of contact should concern the essence of things, thus, Meier concludes, mere word plays are very imperfect jokes and a sign of bad taste (here Meier shows his own personal taste).

Meier also notes that good jokes should be unexpected. A joke told after a number of other, similar jokes has not much of an impact, because the ideas suggested by it are too distinct in our minds. Instead, a perfect joke should be preceded by ideas of a very different sort, being like a flash of sudden witticism. Thus, Meier notes, a joke told in the middle of very serious lectures requiring conceptual distinctness is a sign of great wittiness, and even more witty is when a person jokes at the time of her own death. Because a joke should be completely unexpected, audience should not have too much time to think about the matter beforehand, so it should not be preceded by any lengthy introductions. Particularly to be avoided is laughing before one’s own joke.

In addition, Meier notes, a good joke should have all the marks of beauty, that is, sensuous perfection. Firstly, a good joke should produce a clear idea of what it attempts to convey. That is, audience should not need any detailed explanations to understand it. Then again, a good joke should also be lively, which means that it shouldn’t be too conceptualised and analysed, just like geometrical explanation of a beautiful object is not beautiful. This means that jokes should not be too long. In order to combine clarity and brevity, jokes should be aimed at the specific audience listening to it. Finally, best jokes should concern true matters, although good jokes can also be told of things someone believed to be true, such as pagan gods.

Meier doesn’t have that much to say about what in a good joke makes someone laugh, because he admits that genesis of laughter is still not very clear. He does point out that laughter is primarily connected to positive ideas, although it can have mediate connection to negative ideas, such as when we laugh at our enemies. He also notes deformities and roguery as examples of things causing laughter, although too great a deformity causes empathy and too great a roguery anger. A general rule Meier concludes from these examples is that laughter happens when we observe incongruities in unimportant trifles. Then again, laughable as such is no true joke, if the aspects of witticism and sharpness are missing. Thus, funny anecdote is not yet a joke nor is a laughingstock a witty joker. Similarly, although a good performance can enhance the effect of a joke, performance as such does not make anything a joke.

Martin Knutzen: Philosophical study of immaterial nature of soul (1744)

While most of the philosophers of the Wolffian school were busy writing grandiose compendiums of philosophical disciplines, Knutzen, the teacher of Immanuel Kant, was satisfied with more succinct treatment of individual problems. For instance, Philosophische Abhandlung von der immateriellen Natur der Seele (a translation from Knutzen’s Latin original) treats the nature of human soul. In fact, it is a defense of the immateriality of latter, against materialists, who would state that soul is nothing else but a material thing.

Knutzen’s work divides into two parts, first of which positively argues that soul is immaterial, while the second criticises the materialistic arguments against the immateriality of the soul. While the first part of the treatise is not that original, it is at least a good summary of the usual Wolffian argument for the immateriality of the soul.

The starting point of Knutzen’s argument is the simple experience that we are conscious or aware of things. This what is conscious of things is then called soul, without first any indication whether soul is material or immaterial. Now, one thing soul can be conscious of is the soul itself. An important condition for this self-consciousness is the ability to distinguish oneself from other things - this ability is something we’ll see even Fichte emphasising as an important part of human self-consciousness.

Next question Knutzen makes concerns the conditions of the capacity to make distinctions. Firstly, he notes that the soul must have representations of several things, secondly, these various representations must belong to the same subject, and finally, the representations must be compared by this same subject. In other words, soul, as the subject of these various acts, must form an absolute unity - a sort of focus, from which all these “rays of action” start. In particular, the soul cannot be a mere unified complex of parts, Knutzen says, which wouldn’t really be an absolute, but only accidental unity.

Knutzen’s proof is then almost complete. What he still requires is to show that matter is no absolute unity. This he can do easily, because matter was defined to be a complex substance consisting of many parts, which were also substances. To make things even clearer, Knutzen asks us to consider, in a Condillacian manner, a statue that would think itself. Part of such a statue might represent one part of the statue and another part would represent another part. Yet, such a combination of representations would be no unified representation of the whole statue. At most, one or more indivisible parts of the statue might think of the whole statue and at the same time of themselves, but such an indivisible part - a monad - would then not be a complex substance nor material.

The second, bit more original part of Knutzen’s book is dedicated to showing faults in arguments purporting to show materiality of soul. Furthermore, Knutzen considers the question why people endorse materialism. He comes up with two answers. Firstly, he suggests that materialists are often unable to understand anything beyond what they sense and thus unable to fathom the existence of something that cannot be sensed, such as an immaterial soul. Secondly, he insinuates that many materialists just wish to discredit the idea of immortality, so they wouldn’t have to worry any retribution of their sins.

Knutzen considers seven different arguments for material nature of soul:

1) A clear reason for a materialist understanding of soul is that body appears to determine soul in many ways: for instance, bodily weaknesses and old age hinder thinking. Knutzen notes that these facts could also be explained by suggesting that soul uses body as an instrument when thinking something - when the instrument is somehow flawed, like when the body ages, thinking becomes difficult for soul. If an old person would suddenly get a new, young body, its ability to think would be increased.

2) Knutzen has rejected the first argument of materialists, because he thinks causal interaction between soul and a body is at least as good an explanation for certain facts that could be explained materialistically. Now, another argument for materialism starts particularly from this supposed interaction between soul and body - all causality requires substances touching each other, which makes sense only when these substances are material. Knutzen is able to quickly deal with this argument, because there is no clear reason why all causality would happen through direct contact, and indeed, Newtonian account of gravity appeared to show that even material substances could affect one another through long distances. In the end, Knutzen notes, there is no need to assume that an instrument would have the same essence as its user, just like a violin is very different from a violin player.

3) Yet another argument for materialism starts from similarities in the behaviour of parents and their children, which could be explained if souls were produced from the souls of their parents. Knutzen notes that just because soul of a particular parent and a particular child are similar, other children in the same family might bear no resemblance to their parents. In any case, the similarities in behaviour might be attributed to the similarities of instruments used by souls, that is, bodies.

4) Another materialistic argument begins from the natural assumption that soul appears to undergo changes - while we are conscious of this now, we will be conscious of another thing later. If we then assume that all changes are based on motion, then soul would have to be a movable thing and therefore material. Like with an earlier argument, Knutzen can simply deny that all changes require motion - indeed, it is quite conceivable that even some material changes, like when colour of an object changes, might not need motions.

5) Locke famously noted that while matter as such appears to have no capacity to think - as shown by material substances that do not think - God with his omnipotence would surely be capable of giving the matter a power to think, which would make the assumption of immaterial soul superfluous. Knutzen’s answer is that the idea of thinking matter is a complete contradiction, thus, even God could not make matter think, no matter how omnipotent he is.

6) It is a pity that most German philosophers of the time considered animals only in brief snippets, leaving their status in the world system quite unclear. Still, many philosophers had noted that animals did have souls, but their souls differed crucially from human souls - while humans could think, animals probably didn’t. Knutzen notes that materialists might insist that animal souls can think and that they are material, which would suggest that same things could be said about human souls. While it would be easy to deny that animals think, Knutzen does not do this, but admits that animals might have this capacity. Yet, he at once points out that animal souls cannot then be material.

7) The last straw of the materialists is to insist they can explain all phenomena of human consciousness materialistically, so that no supposition of immaterial substances is required. Knutzen goes very far in describing the current theories about nerve fluids etc. Yet, he finally notes, there seems to be no clear connection between thinking and movements of nerve fluids.

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.

Christian Wolff: Natural right 4 - Loans, deposits and mandates

Although Wolff inserted the discussion of money on the pretext that money is required as a measure for trades, he continues with a discussion on contracts, in which, like in donations, a person gives or does something for someone else without receiving anything in return. The list of different types of contracts he considers is not Wolff’s personal invention, but hails from a long tradition of natural law. Indeed, this tradition continued even after Wolff, and we find even Hegel discussing briefly these various types of contract.Thus, going through these various types of contract has its reasons.

Commodatum

Wolff begins with a type of contract where a person concedes a use of an unconsumable thing she owns to another person for free. Thus, if I borrow a lawnmower to my neighbour, this is a case of commodatum, but if I borrow him some eggs, this usually isn’t, since eggs are in most cases used for culinary purposes. Then again, Wolff admits, if I would borrow eggs for my neighbour to show off in a parade, it would be commodatum, since the eggs are not consumed in the process.

Commodatum, like all these types of contracts, is based on the will of the person owning the thing borrowed. Thus, although the situation of the person asking to borrow things would be such that she should be borrowed, there’s no basis why a person not wanting to borrow would have to do this. Furthermore, commodatum remains the property of the owner, and the person to whom the thing is borrowed can only use it for temporary purposes. Specifically, that person cannot borrow the borrowed thing to someone else without a specific permission of the owner. After the use is over, borrowed thing should be returned to the owner. Indeed, if the owner needs the borrowed thing for her own purposes, it should be returned to her at once.

Naturally, if some damage happens to the borrowed thing, the person to whom the the thing was borrowed should cover the damages, if they are caused by her intentionally or through negligence. Then again, if the borrowed thing is already faulty and causes some damage to due to this fault, the owner of the borrowed thing should pay the damages.

A peculiar case of this type of contract is the so-called commodatum duntaxat causa - in effect, borrowing for the sake of the person owning the borrowed thing. The example above would be a case of this sort, if I had borrowed the lawnmower to my neighbour so that he could mow my lawn. This type of commodatum is somewhat different from the more general one, Wolff notices. For instance, if my neighbour is negligent when mowing my lawn and damages my lawnmower, it is actually my fault, since I should have been more careful in choosing a person to mow my lawn. Then again, if my neighbour would have intentionally damaged my lawnmower or if he happened to use it for some other purposes, while the damage happened, he would be obligated to pay the damages.

Mutuum

This type of contract is almost similar to commodatum, but now the borrowed thing is consumable, for instance, when I borrow eggs to my neighbour for him to use in baking. In this case, the very thing borrowed cannot be, of course, returned, but at least a thing of similar type and of same quantity should be returned.

One thing that is often borrowed in mutuum is money, for instance, if I pay my neighbour’s lunch, when he has forgotten his wallet, and he promises to return it the next day. For a loan of money to be a simple mutuum, there should be no interest paid for the loan. Since money comes in different currencies and a specific currency can be, according to Wolff, quantified in two different manners - either through its intrinsic characteristics, like the amount of gold it contains, or through its fluctuating valuation in the market - a mutuum must specify in what manner the loan is to be paid back: should be it of the very same currency and whether it must have the same amount of precious metal or have the same value in relation to other currencies.

Depositum

The name of this type of contract should be familiar from deposit boxes. In effect, in depositum some person agrees to take someone else’s thing into her custody and to guard it for free, for instance, when my neighbour leaves his car for me to watch, while he is on holiday. The ownership of the thing does not transfer to the custodian, who also has no right to use what is deposited. A use of the deposited thing would constitute a theft. Then again, the custodian of the deposited thing can deposit the thing further, that is, find another guardian for the thing she herself was supposed to guard already.

Although the custodian is obligated to guard the deposited thing, the owner has also responsibilities. Specifically, she should be careful in her choice of the custodian, and if she has happened to pick out a negligent person and she could have known this person to be negligent, Wolff insists, then the possible damage is to be blamed on her own negligent choice. Similarly, if the owner wants to end the depositum and asks for her thing back from the custodian, it is the responsibility of the owner to find reliable transportation from the custodian to herself for the thing.

Just like with commodatum, Wolff points out a possibility of depositum duntaxat causa. Here, the phrase means depositing a thing for the custodian, that is, providing her the opportunity to use the deposited thing - for instance, in the case above, my neighbour would have then allowed me to use his care he had entrusted to my care. Depositum duntaxat causa is then something close to commodatum, the difference being that the owner of the deposited thing still has more responsibility of the deposited thing.

Sequestrum

All the contract types dealt with thus far can involve more than one owner. Hence, we might have same thing owned by many persons, which they then decide to borrow to a friend of theirs or give it to this same friend to guard. Quite obviously, the eventual return of the thing is more difficult, because all must get their share, when thing is returned.

A very specific type of depositum with several owners for same thing is sequestrum. Here, the thing is deposited, because there is a lawsuit going on, determining who is the true and sole owner of the thing. Because of its close resemblance to depositum, there is not that much new to say about sequestrum. The most important difference between sequestrum and depositum concerns the time when the custodian must return the deposited thing to its owner. With sequestrum, the thing is to be returned when the controversy about its owner has been solved and the rightful owner has been decided.

Mandatum

While previous types of contracts involved things, mandatum involves actions. In a mandatum, one person asks another to do something in her name and this other person agrees to do it with no charge. Although the action in question could be nearly anything, Wolff clearly thinks mostly cases related to a business deal, for instance, if my neighbour asks me to participate in an auction in order to buy a specific object for him.

An important presupposition of mandatum is that the person mandated to do the deal should not get any profit for the deal arranged - not as a direct wage, of course, but also not through more indirect means, such as arranging a deal with a company one partially owns. In other words, the mandated person must be neutral in relation to the deal being made. Wolff does not deny that even a stakeholder could give council about and lobby for a deal - he just notes that such council doesn’t fulfil the definition of mandatum.

Wolff defines several types of mandatum. For instance, he notes that a mandatum could define very specific instructions, which the mandated person would have to follow to the letter, or it could outline only in broad details the outcome desired and leave the mandated person free to reach this goal by almost any means. In addition to this division, Wolff mentions also that mandatum could be either publicly known or a secret mandate. In the latter case, mandatum should also determine in what instances the mandated person has the right to reveal who the deal is being made for.

An important question in all the types of contract thus far has been who is to account for possible damages. In case of mandatum, it is usually the mandating party who has to be ready to pay something. The mandated person might lose opportunities to work, while doing the business deal, and they might even have to spend some money when contracting the deal, and the mandating party must be ready to account for such expenses. Then again, the mandated part must also account for damages caused by them, for instances, when overstepping the boundaries set by mandatum.

In addition to the basic case, where a person mandates another person, Wolff also considers cases where there are a lot of people mandating the same person for the same task or a lot of people mandated to do the same task by the same person. The important question about such a case is, undoubtedly, how the responsibilities are divided.

Honorarium

Peculiarly, Wolff leaves this type of contract unmentioned in the table of contents, probably because he deals it in the middle of the section about mandatum. The idea itself is rather simple - honorarium means donating money to a person as reward for their freely giving or doing something. In other words, honorarium could be given for such things like commodatum, mutuum, depositum and mandatum. The only restriction is that the person rewarded shouldn’t have done the act for the sake of receiving honorarium - in this case, Wolff says, the apparent honorarium is actually more like a wage paid for the actions.

Fidejussio

Fidejussio is a contract dependent on obligation of another person - a person entering into fidejussio guarantees that if this other person does not fulfil the obligation, the first person will do it. Although again, this obligation could be almost anything, in the most usual case fidejussio concerns a debt. Wolff notes that fidejussio is a contract that requires extreme vigilance in part of the guarantor, because it contains a clear risk of having to pay for mistakes of another. This means that valid fidejussio has strict preconditions - no one can be forced to make a guarantee and the guarantor must understand what is meant to be guaranteed and with what conditions. Furthermore, it is of utmost importance to commit fidejussio into a written form, although even an oral fidejussio is juridically valid.

Fidejussio is also dependent on the original obligation. If the obligation was not valid, then a fidejussio cannot either be. Furthermore, if the obligation is defined to start only at a certain date, fidejussio cannot begin before it. Finally, the guarantor can never be obligated to do more than the original debtor, although fidejussio can determine the guarantor e.g. to pay less of the debt.

Wolff notes that one debt can have many guarantors, and there are two main ways how this could happen. Firstly, all of them might be guarantors in conjunction. In that case, the fidejussio contract might determine who is to pay what - for example, if there is a certain ratio in which different guarantors want to pay the debt. If such a contract does not exist, Wolff says, then the person, to whom the debt should be paid (the creditor), can choose any guarantor. Secondly, guarantors can form ordered successions, that is, guarantors themselves can have their own guarantors. In such a case, naturally, the second guarantor will have to fulfill the obligation only if the original debtor and the first guarantor cannot do it.

Expromissio

Expromissio is a contract resembling fidejussio quite closely. The main difference is that while in fidejussio guarantor must fulfill the obligation only if the original debtor cannot do it, in expromissio the obligation is at once transferred to the new person. Indeed, expromissio releases the original debtor from the obligation completely.