The same may be said of wounds,and chains,and imprisonment,both because there is no benefit consequent to such patience,as there is to the patience of suffering another to be wounded or imprisoned,as also because a man cannot tell when he seeth men proceed against him by violence whether they intend his death or not.And lastly the motive and end for which this renouncing and transferring of right is introduced is nothing else but the security of a man's person,in his life,and in the means of so preserving life as not to be weary of it.And therefore if a man by words,or other signs,seem to despoil himself of the end for which those signs were intended,he is not to be understood as if he meant it,or that it was his will,but that he was ignorant of how such words and actions were to be interpreted.
The mutual transferring of right is that which men call contract.
There is difference between transferring of right to the thing,the thing,and transferring or tradition,that is,delivery of the thing itself.For the thing may be delivered together with the translation of the right,as in buying and selling with ready money,or exchange of goods or lands,and it may be delivered some time after.
Again,one of the contractors may deliver the thing contracted for on his part,and leave the other to perform his part at some determinate time after,and in the meantime be trusted;and then the contract on his part is called pact,or covenant:or both parts may contract now to perform hereafter,in which cases he that is to perform in time to come,being trusted,his performance is called keeping of promise,or faith,and the failing of performance,if it be voluntary,violation of faith.
When the transferring of right is not mutual,but one of the parties transferreth in hope to gain thereby friendship or service from another,or from his friends;or in hope to gain the reputation of charity,or magnanimity;or to deliver his mind from the pain of compassion;or in hope of reward in heaven;this is not contract,but gift,free gift,grace:which words signify one and the same thing.
Signs of contract are either express or by inference.Express are words spoken with understanding of what they signify:and such words are either of the time present or past;as,I give,I grant,I have given,I have granted,I will that this be yours:or of the future;as,I will give,I will grant,which words of the future are called promise.
Signs by inference are sometimes the consequence of words;sometimes the consequence of silence;sometimes the consequence of actions;sometimes the consequence of forbearing an action:and generally a sign by inference,of any contract,is whatsoever sufficiently argues the will of the contractor.
Words alone,if they be of the time to come,and contain a bare promise,are an insufficient sign of a free gift and therefore not obligatory.For if they be of the time to come,as,tomorrow I will give,they are a sign I have not given yet,and consequently that my right is not transferred,but remaineth till I transfer it by some other act.But if the words be of the time present,or past,as,Ihave given,or do give to be delivered tomorrow,then is my tomorrow's right given away today;and that by the virtue of the words,though there were no other argument of my will.And there is a great difference in the signification of these words,volo hoc tuum esse cras,and cras dabo;that is,between I will that this be thine tomorrow,and,I will give it thee tomorrow:for the word I will,in the former manner of speech,signifies an act of the will present;but in the latter,it signifies a promise of an act of the will to come:
and therefore the former words,being of the present,transfer a future right;the latter,that be of the future,transfer nothing.But if there be other signs of the will to transfer a right besides words;then,though the gift be free,yet may the right be understood to pass by words of the future:as if a man propound a prize to him that comes first to the end of a race,the gift is free;and though the words be of the future,yet the right passeth:for if he would not have his words so be understood,he should not have let them run.
In contracts the right passeth,not only where the words are of the time present or past,but also where they are of the future,because all contract is mutual translation,or change of right;and therefore he that promiseth only,because he hath already received the benefit for which he promiseth,is to be understood as if he intended the right should pass:for unless he had been content to have his words so understood,the other would not have performed his part first.And for that cause,in buying,and selling,and other acts of contract,a promise is equivalent to a covenant,and therefore obligatory.
