第12章 Of the Law of Nature concerning Contracts(2)

Whosoever therefore acquires some Right in the naturall state of men,he onely procures himself security,and freedome from just molestation in the enjoyment of his Primitive Right:As for example,if any man shall sell,or give away a Farme,he utterly deprives himself only from all Right to this Farme,but he does not so from others also.

V.But in the conveyance of Right the will is requisite not onely of him that conveys,but of him also that accepts it.If either be wanting,the Right remaines:for if I would have given what was mine,to one who refus'd to accept of it,I have not therefore either simply renounc'd my Right,or convey'd it to any man;for the cause which mov'd me to part with it to this Man was in him onely,not in others too.

VI.But if there be no other Token extant of our will either to quit,or convey our Right,but onely Words;those words must either relate to the present,or time past;for if they be of the future onely,they convey nothing:for example,he that speaks thus of the time to come,I will give to morrow,declares openly that yet he hath not given it;so that all this day his right remains,and abides to morrow too,unlesse in the interim he actually bestowes it:for what is mine,remains mine till I have parted with it.But if I shall speak of the time present,suppose thus;I doe give,or have given you this to be received to morrow,by these words is signified that I have already given it,and that his Right to receive it to morrow,is conveyed to him by me to day.

VII.Neverthelesse,although words alone are not sufficient tokens to declare the Will;if yet to words relating to the future,there shall some other signes be added,they may become as valid,as if they had been spoken of the present:If therefore,as by reason of those other signes,it appear,that he that speaks of the future,intends those words should be effectuall toward the perfect transferring of his Right,they ought to be valid;for the conveyance of right depends not on words,but (as hath been instanc'd in the 4.Article)on the declaration of the Will.

VIII.If any man conveigh some part of his right to another,and doth not this for some certain benefit received,or for some compact,a conveighance in this kind is called a Gift,or free Donation.But in free donation those words onely oblige us which signifie the present,or the time past;for if they respect the future,they oblige not as words,for the reason given in the foregoing Article:It must needs therefore be,that the Obligation arise from some other tokens of the Will:But,because whatsoever is voluntarily done,is done for some good to him that wils it;there can no other token be assigned of the Will to give it,except some benefit either already receiv'd,or to be acquir'd;but is suppos'd,that no such benefit is acquired,nor any compact in being;for if so,it would cease to be a free gift:It remains therefore,that a mutuall good turne without agreement be expected;but no signe can be given,that he,who us'd future words toward him who was in no sort engag'd to return a benefit,should desire to have his words so understood,as to oblige himselfe thereby.Nor is it suitable to Reason,that those who are easily enclined to doe well to others,should be oblig'd by every promise,testifying their present good affection:And for this cause,a promiser in this kind,must be understood to have time to deliberate,and power to change that affection as well as he to whom he made that promise,may alter his desert.But he that deliberates,is so farre forth free,nor can be said to have already given:But if he promise often,and yet give seldome,he ought to be condemn'd of levity,and be called not a Donour,but Doson.

IX.But the act of two,or more,mutually conveighing their Rights,is call'd a Contract.But in every Contract,either both parties instantly performe what they contract for,insomuch as there is no trust had from either to other;or the one performes,the other is trusted,or neither performe.Where both parties performe presently,there the Contract is ended,as soon as 'tis performed;but where there is credit given either to one,or both,there the party trusted promiseth after-performance;and this kind of promise is called a COVENANT.

X.But the Covenant made by the party trusted with him,who hath already performed,although the promise be made by words pointing at the future,doth no lesse transfer the right of future time,then if it had been made by words signifying the present,or time past:for the others performance is a most manifest signe that he so understood the speech of him whom he trusted,as that he would certainly make performance also at the appointed time;and by this signe the party trusted knew himselfe to be thus understood,which,because he hindred not,'twas an evident token of his Will to performe.The promises therefore which are made for some benefit received (which are also Covenants)are Tokens of the Will;that is,(as in the foregoing Section hath been declared)of the last act of deliberating,whereby the liberty of non-performance is abolisht,and by consequence are obligatory;for where Liberty ceaseth,there beginneth Obligation.

XI.But the Covenants,which are made in contract of mutuall trust,neither party performing out of hand,if there arise a just suspicion in either of them,are in the state of nature invalid:for he that first performes by reason of the wicked disposition of the greatest part of men studying their owne advantage,either by right,or wrong,exposeth himself to the perverse will of him with whom he hath Contracted;for it suites not with reason,that any man should performe first,if it be not likely that the other will make good his promise after;which,whether it be probable,or not,he that doubts it,must be judge of,as hath been shewed in the foregoing Chapter in the 9.