Elements of Morals Part 10

_Pollicitation_ (promise) says Pothier,[33] produces no obligation properly so called, and he who has made such a promise may, as long as that promise has not been accepted by him to whom it was made, revoke it; for there can be no obligation without a right acquired by the person to whom it has been made and against the one under obligation.

Now, as I cannot of my own free will, transfer to any one a right over my property, if his own will does not concur with mine in accepting it; so I cannot, by my promise, grant any one a right over my person, until that one's will concurs with mine in acquiring it by the acceptance of my promise.

It may be true that in strict law, and from the standpoint of positive law, the promise may be obligatory only and capable of enforcement when it has been accepted, and accepted in an obvious and open way; but in natural law and in morality, the promise is obligatory in itself. Of course, it is understood that the promise bears on something advantageous to him to whom we make it; for if I promise some one a thrashing, it cannot be maintained that I am obliged to give it to him; and if he to whom I make the promise will not receive what I offer, I am by that very fact relieved from my promise; for one cannot give anything to another against his will; I am under no obligation to him who will not receive anything from me. But if the promise bears on something advantageous to any one, I am obliged to keep it without asking myself whether he to whom I made it, is disposed to accept it; presuming still that he will accept it. It is therefore not the explicit acceptance of a thing that renders the promise obligatory; it is the explicit refusal which relieves one of the promise; and together with that it would be necessary that the refusal be absolute and not contingent; for even then the promise may remain obligatory, at least in its general principles, while undergoing some modification in the execution.

Is one obliged to keep his promise when the fulfillment of it is injurious to those to whom it was made? "No," says Cicero; for example:

Sol had promised Phaethon, his son, to fulfil all his wishes. Phaethon wished to get on the chariot of his father; he got his wish, but at the same instant he was struck with lightning. It would have been better for him had his father not kept his promise. May we not say the same of the one Theseus claimed of Neptune? This G.o.d having made him the promise to grant him three wishes, Theseus wished for the death of his son Hippolytus, whom he suspected of criminal love.[34] How bitter the tears he shed when his wish was accomplished! What shall we say of Agamemnon? He had made a vow to immolate the most beautiful object in his kingdom; this was Iphigenia; and he immolated her; this cruel action was worse than perjury.

The truth of this doctrine cannot be contested. However, it is necessary to understand this exception in the strictest sense, and not to seek in the pretended interest of the person one obliges, a pretext to change one's mind. For example, if you have promised any one a post which he accepts and desires, you cannot be allowed to relieve yourself of it, by supposing that the post will in reality be a disadvantage to him, and that you will give him a better one another time.

Some other exceptions are pointed out by the moralists and jurists; for example:

1. Necessity relieves of all promise. If, for example, I have promised to go to a meeting and am kept in bed by a serious illness, it is impossible for me to go, and hence I am relieved of my promise.

2. One is not obliged to perform illicit acts: "for," says Puffendorf, "it would be a contradiction, to be held by civil or moral law, to perform things which the civil or moral law interdicts. It is already doing wrong to promise illicit things, and it is doing wrong twice to perform them."[35]

3. One cannot promise what belongs to another: for I cannot promise what I cannot dispose of.

=50. Contracts.=--A _contract_ is an agreement by which one or several persons engage to do or not to do a certain thing for one or several others. (Code Civ., Art. 1101.)

_Conditions of the contract_ (Art. 1108).--Four conditions are necessary to const.i.tute a valid and legitimate agreement:

1. The _consent_ of the parties.

2. The _capacity_ of the contractors.

3. A sure _object_ as a basis for the contract.

4. A licit _cause_ in the obligation.

(1.) The _consent_.--The consent is the voluntary acceptance of the charges implied in the contract. It is _express_ or _implied_: express, when it is made manifest by words, writing, or any other kind of expressive signs. It is implied, when, without being expressed by outward signs, it may be deduced, as a manifest consequence of the very nature of the thing, and other circ.u.mstances.

All consent presupposes, 1, _the use of reason_: the insane cannot contract any obligation; children neither;[36] 2, _necessary knowledge_.

Therefore all real consent excludes error, at least "when it falls on the very substance of the thing which is its object."[37] It is, besides, for the jurists to define with precision what is to be understood by error in matter of contract; 3, the liberty of the contracting parties: whence it follows that consent extorted by constraint and violence is not valid.

(2.) The _capacity to make a contract_ is deduced from the foregoing principles. All those who are not supposed to be able to give an intelligent and free consent, are incapable and cannot make contracts: for instance, persons under age, persons interdicted, insane or idiots, etc.

(3.) The _matter of a contract_.--"All contract has for its object something that a certain party engages to give, or do or not do." It is evident that a contract without subject-matter and bearing on nothing, is void, and does not exist.

(4.) The _cause_ of the contract must be real and legal. Contracts are subject here to the same rules as are promises.

The preceding distinctions are all borrowed from the civil law; but they express no less principles of justice and equity which may be resolved into the following rules:

1. No one should take by surprise or extort a consent through artifice or violence.

2. No one should make a contract with one whom he knows to be incapable of understanding the value of the engagement he is called upon to make: for example, with one under age, incapable before the law, but of whom it is known that the parents will pay the debts; or with one feeble-minded, though not yet an interdicted person, etc.

3. No one should contract a fict.i.tious engagement bearing on matters non-existing, or such as have only an imaginary or illegal cause.

_Interpretation of contracts._--Jurists give the following rules regarding the interpretation of obscure clauses in contracts. The rules which are to guide the judge in regard to the law are the same as those which are to enlighten the consciences of the interested parties:

"1. One should, in agreements, find out the mutual intention of the contracting parties, rather than stop at the literal sense of the words."

(Art. 1156.)

"2. When a clause is susceptible of a double meaning, one should understand it in the sense in which it may have some effect, rather than in the one in which it would not have any." (Art. 1157.)

"4. That which is ambiguous is to be interpreted by what is customary in the country where the contract is made." (Art. 1159.)

"5. One should supply in a contract its customary clauses, though they be not therein expressed." (Art. 1160.)

"6. All the clauses of agreements are to be interpreted by one another, giving each the sense which results from the entire doc.u.ment." (Art.

1161.)

"7. If doubtful, the agreement is to be interpreted against the stipulator, and in favor of him who contracted the obligation." (Art.

1162.)

CHAPTER V.

DUTIES TOWARDS THE LIBERTY AND TOWARDS THE HONOR OF OTHERS.--JUSTICE, DISTRIBUTIVE AND REMUNERATIVE; EQUITY.

SUMMARY.

=Liberty in general.=--Natural rights.

=Slavery.=--Arguments of J. J. Rousseau against slavery, servitude; oppression of work under divers forms.

=The honor of others.=--_Backbiting_ and _slander_.

=Rash judgments.=--a.n.a.lysis of a treatise of Nicole.--_Envy_; _rancor_; _delation_.

=Justice, distributive and remunerative.=--To each according to his merits and his works. Equity.

After self-preservation, the most sacred prerogative of man is _liberty_--that is to say, the right of using his faculties, both physical and moral, without injury to others, at his own risks and perils, and on his own responsibility.

=51. Liberty--Natural rights.=--The word liberty sums up all that is understood by the _natural rights of man_, namely, the right to go and come, or _individual liberty_; the right to use his physical faculties to supply his wants, or _liberty of work_; the right to exercise his intelligence and reason, or _liberty of thought_; the right to honor G.o.d according to his lights, or _liberty of conscience_; the right to have a family, a wife and children, or the _family right_, and finally the right to keep what he has acquired, or the right of property.

=52. Slavery.=--The privation of all these rights, of all these liberties in an individual, is called _slavery_. Slavery is the suppression of the human personality. It consists in transforming man into a _thing_. It takes away from him the right of property and makes of himself a property.

The slave is bought and sold as a thing. The fruits of his labor do not belong to him; he cannot come and go at will; he can neither think nor believe freely; in some countries he is interdicted the right of instructing himself; he has no family, or has one temporarily only, since his wife or children may be separately sold; and since the women belong to their masters as their property, there is no bridle against the license of pa.s.sions.

Although slavery is at the present day well-nigh abolished in the world, still as it is not yet wholly so, and as this abolition is quite recent, and tends constantly to be renewed under one form or another, it is important to sum up the princ.i.p.al reasons that show the immorality and iniquity of this inst.i.tution.

=53. Refutation of slavery--Opinion of J. J. Rousseau.=--J. J. Rousseau, in his _Contrat Social_ (I., iv.), combated slavery with as much profundity as eloquence. Let us sum up his arguments with a few citations:

1. Slavery cannot arise from a contract between the master and the slave; for to consent to slavery is to renounce one's manhood, of which no one can dispose at his will.