The Elements of Law Natural and Politic [33]
In transferring of right, two things therefore are required: one on the part of him that transferreth; which is, a sufficient signification of his will therein: the other, on the part of him to whom it is transferred; which is, a sufficient signification of his acceptation thereof. Either of these failing, the right remaineth where it was; nor is it to be supposed, that he which giveth his right to one that accepteth it not, doth thereby simply relinquish it, and transfer it to whomsoever will receive it; inasmuch as the cause of the transferring the same to one, rather than to another, is in that one, rather than in the rest. 5. When there appear no other signs that a man hath relinquished, or transferred his right, but only words; it behoveth that the same be done in words, that signify the present time, or the time past, and not only the time to come. For he that saith of the time to come, as for example, to-morrow: I will give, declareth evidently, that he hath not yet given. The right therefore remaineth in him to-day, and so continues till he have given actually. But he that saith: I give, presently, or have given to another any thing, to have and enjoy the same to-morrow, or any other time future, hath now actually transferred the said right, which otherwise he should have had at the time that the other is to enjoy it. 6. But because words alone are not a sufficient declaration of the mind, as hath been shewn chap. XIII, sect. 8 words spoken de futuro, when the will of him that speaketh them may be gathered by other signs, may be taken very often as if they were meant de praesenti. For when it appeareth that he that giveth would have his word so understood, by him to whom he giveth, as if he did actually transfer his right, then he must needs be understood to will all that is necessary to the same. 7. When a man transferreth any right of his to another, without consideration of reciprocal benefit, past, present, or to come; this is called FREE GIFT. And in free gift no other words can be binding, but those which are de praesenti, or de praeterito: for being de futuro only, they transfer nothing, nor can they be understood, as if they proceeded from the will of the giver; because being a free gift, it carrieth with it no obligation greater than that which is enforced by the words. For he that promiseth to give, without any other consideration but his own affection, so long as he hath not given, deliberateth still, according as the causes of his affections continue or diminish; and he that deliberateth hath not yet willed, because the will is the last act of his deliberation. He that promiseth therefore, is not thereby a donor, but doson; which name was given to that Antiochus, that promised often, but seldom gave. 8. When a man transferreth his right, upon consideration of reciprocal benefit, this is not free gift, but mutual donation; and is called CONTRACT. And in all contracts, either both parties presently perform, and put each other into a certainty and assurance of enjoying what they contract for: as when men buy or sell, or barter; or one party performeth presently, and the other promiseth, as when one selleth upon trust; or else neither party performeth presently, but trust one another. And it is impossible there should be any kind of contract besides these three. For either both the contractors trust, or neither; or else one trusteth, and the other not. 9. In all contracts where there is trust, the promise of him that is trusted, is called a COVENANT. And this, though it be a promise, and of the time to come, yet doth it transfer the right, when that time cometh, no less than an actual donation. For it is a manifest sign, that he which did perform, understood it was the will of him that was trusted, to perform also. Promises therefore, upon consideration of reciprocal benefit, are covenants and signs of the will, or last act of deliberation, whereby the liberty of performing, or not performing, is taken away, and consequently are obligatory. For where liberty ceaseth, there beginneth obligation.